STATE OF FLORIDA
COMMISSION ON ETHICS
In re ILENE LIEBERMAN, )
Respondent. ) Complaint No. 92-2
) DOAH Case No. 93-1181EC
) Final Order No. COE 95-10
AMENDED FINAL ORDER AWARDING ATTORNEY'S FEES AND COSTS
On January 18, 1995, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to the Commission and all parties her Recommended Order, a copy of which is attached hereto. After seeking an enlargement of time in which to file exceptions and waiving the 90-day period in which the Commission must take final action pursuant to Section 120.59, Florida Statutes, both Respondent/Petitioner Ilene Lieberman and Complainant/Respondent David Kaminsky filed Exceptions to the Recommended Order on February 27, 1995. The matter thereafter came before the Commission for final agency action.
This matter began with David Kaminsky filing a complaint with the Commission on Ethics alleging that Ilene Lieberman had violated the Code of Ethics for Public Officers and Employees. The complaint, together with four amendments, essentially set forth four allegations, three of which were determined to be legally insufficient to indicate a possible violation of the Code of Ethics and one of which was determined to be legally sufficient. An investigation of this one allegation was undertaken by Commission staff to aid in the determination of probable cause. Thereafter, the Report of Investigation dated November 20, 1992 was reviewed and considered by the Commission, and it entered its Public Report dismissing the complaint for lack of probable cause on February 2, 1993.
On February 19, 1993, the Respondent timely petitioned for an award of attorney's fees and costs against Complainant pursuant to Section 112.317(8), Florida Statutes. That petition was referred to the Division of Administrative Hearings, and a formal hearing was held on April 6, 7, 8, and 13, and June 14, 1994. The Hearing Officer entered her Recommended Order on January 18, 1995, recommending that Respondent be awarded attorney's fees and costs in the amount of $37,280.89. The Hearing Officer further recommended that jurisdiction not be retained by the Division of Administrative Hearings to determine fees incurred after March 8, 1993.
Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).
The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.
Complainant/Respondent David Kaminsky, through his attorney, excepts to the Hearing Officer's findings of fact on four grounds: 1) that the Recommended Order rejected certain of Complainant/Respondent's proposed findings; 2) that the Recommended Order failed to include certain proposed findings even though they were accepted by the Hearing Officer; that the Recommended Order overlooked undisputed material facts showing that the complaint was not "frivolous"; and 4) that the Recommended Order overlooked undisputed material facts and controlling case law supporting Complainant/Respondent's advice of counsel defense. Complainant/Respondent then excepts to the Hearing Officer's conclusions of law, specifically paragraphs 67, 68, 69, and 70.
1. Complainant/Respondent's first group of exceptions are directed not to the facts found by the Hearing Officer but, instead, are directed to the proposed findings of fact submitted by the Complainant/Respondent and rejected by the Hearing Officer. In the first of these, regarding proposed finding of fact 7, Complainant/Respondent argues that the Hearing Officer's reason for rejecting it--"to the extent that Mr. Stracher's opinion is based on competent substantial evidence"--was totally incorrect and not supported by the record and existing case law.
It is evident from our review of the record and the Recommended Order that the Hearing Officer afforded very little weight to Mr. Stracher's testimony. That is the Hearing Officer's prerogative. Heifetz, supra. Further, it appears that the Hearing Officer legally satisfied the requirements of Section 120.59(2), Florida Statutes, which requires of the Hearing Officer "a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request." See also Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 476 So.2d 1350 (Fla. 1st DCA 1985), appeal after remand, 495 So.2d 209, review denied, 503 So.2d 327. Therefore, Complainant/Respondent's first exception is denied.
2. Complainant/Respondent next excepts to the Hearing Officer's rejection of his proposed finding of fact 9. This proposed finding was rejected by the Hearing Officer based upon her assessment of Kaminsky's credibility. As previously noted, the First District Court of Appeal in Heifetz v. Department of Business Regulation, supra, stated:
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based upon competent substantial evidence. Id. at 1281.
This function having been fulfilled by the Hearing Officer, Complainant/Respondent's second exception is denied.
3. Complainant/Respondent's third exception focuses upon his proposed finding of fact 11. Kaminsky argues that it is impossible to ascertain why or how the Hearing Officer rejected this proposed finding of fact, yet the Appendix to the Recommended Order states: "Rejected as not supported by the greater weight of the evidence." The weight to be given to the evidence heard is within the Hearing Officer's sole province. Accordingly, Complainant/Respondent's third exception is denied.
4. Complainant/Respondent's fourth exception attacks the Hearing Officer's rejection of his proposed findings of fact 12 through 14. With regard to these proposed findings, the Hearing Officer rejected them altogether as "not supported by competent, substantial and credible evidence." The proposed findings themselves were directed to the ultimate issues to be determined under Section 112.317(8), Florida Statutes. A review of the record together with the Recommended Order leads us to conclude that the Hearing Officer's treatment of Complainant/Respondent's proposed findings of fact 12, 13, and 14 was properly within her discretion. Accordingly, Kaminsky's fourth exception is denied.
5. Kaminsky's next group of exceptions assails the Hearing Officer's acceptance of certain of his proposed findings of fact but, he complains, the Hearing Officer failed to include them in the Recommended Order. Specifically, he claims his proposed findings of fact 1, 2, 3, 4, 5, 8, and 10 were deemed accepted in substance or part by the Hearing Officer, but none were actually included verbatim in the Recommended Order. Proposed finding of fact 6 was accepted in part and rejected in part, as was proposed findings of fact 1, 3, 5, and 8. As Kaminsky recognizes, his proposed findings went to the "heart" of the matter, which clearly, the Hearing Officer decided contrary to the result urged by Kaminsky. However, we can find no fault with the Hearing Officer's treatment of the referenced proposed findings, as all appear to be based upon competent, substantial evidence contained in the record. Therefore, Complainant/Respondent's fifth exception is denied.
6. In Complainant/Respondent's next exception, which he has identified as no. 3, he takes exception to what he claims are undisputed material facts the Recommended Order overlooked which clearly show that Kaminsky's complaint was not frivolous. The "undisputed material facts" which Kaminsky sets forth in his exceptions are not included in the Recommended Order. Nor do they appear in Kaminsky's proposed findings of fact and conclusions of law he filed with the Hearing Officer. Notwithstanding their origin, at best they appear to be a marshalling by Kaminsky of those facts which, in his view, support his contention that his complaint against Lieberman was not frivolous. We are reminded of Heifetz and its progeny which instruct us about our proper role in this proceeding. Where the Hearing Officer's findings of fact are supported by competent, substantial evidence, we are not at liberty to second-guess the Hearing Officer or supplant her findings of fact with those suggested by the Complainant/Respondent. Accordingly, this exception is denied.
7. In what he has identified as Exception No. 4, Complainant/Respondent contends that the Recommended Order entirely overlooked undisputed material facts and controlling case law which support Kaminsky's defense that he relied upon advice of counsel prior to filing his ethics complaint against Lieberman. Neither Section 112.317(8), Florida Statutes, nor Rule 34-5.029(3), Florida Administrative Code, suggest that where a complainant has consulted with an attorney prior to filing his ethics complaint, he will subsequently be shielded from a finding that he acted with a "malicious intent," or that the complaint was "frivolous and without basis in law or fact." Nor have any prior decisions of this Commission recognized such a defense. Whether a complainant consulted with an attorney prior to filing his complaint with this Commission will not, in and of itself, excuse a finding that a complaint was filed with a malicious intent to injure the reputation of a public officer or employee, or a finding that the complaint itself was frivolous and without a basis in law or fact. However, such evidence may tend to affect the ultimate findings of fact, particularly as they relate to malicious intent. Those ultimate factual findings are, as here, properly determined by the Hearing Officer after hearing all of the evidence, judging the credibility of witnesses, resolving conflicts in the testimony, and deciding the issues one way or another. Here, because there appears to be competent substantial evidence to support the Hearing Officer's findings, they will not be disturbed. Thus, Kaminsky's exception in this regard is denied.
8. Complainant/Respondent next takes issue with the Hearing Officer's conclusions of law, specifically paragraphs 67, 68, 69, and 70. Those conclusions of law essentially find that the complaint was frivolous and without basis in law or fact; that Kaminsky filed his complaint with a malicious intent to injure Lieberman's reputation; that his malicious intent was further evidenced by his failure to investigate the allegations prior to filing the complaint; and that in his consultation with his attorney brother-in-law prior to filing the complaint he did not provide his brother-in-law with sufficient information for the attorney to advise him regarding the merits of his complaint. We note that each of these conclusions are based upon competent, substantial evidence found by the Hearing Officer. We also find that the conclusions are legally correct. Accordingly, Complainant/Respondent's exceptions to the Hearing Officer's conclusions of law, paragraphs 67, 68, 69, and 70, are denied.
Ilene Lieberman, identified herein as the Respondent/Petitioner, filed exceptions to the Hearing Officer's Recommended Order. In summary, the exceptions are directed to the Hearing Officer's rejection of certain proposed findings of fact submitted by Respondent/Petitioner; to a proposed finding submitted by Complainant/Respondent Kaminsky and accepted in substance by the Hearing Officer; and to the Hearing Officer's recommendation that jurisdiction not be retained by the Division of Administrative Hearings to determine fees incurred after March 8, 1993.
1. With regard to Respondent/Petitioner's proposed findings of fact 187 and 188, the Hearing Officer rejected these proposed findings together as "subordinate to the facts actually found." Respondent/Petitioner argues that this was an error on the part of the Hearing Officer, because the testimony underlying these two proposed findings was uncontradicted, and where testimony is uncontradicted, a finding contrary to the weight of that evidence is not supported by competent substantial evidence, citing Rodriguez v. Sheraton Bal Harbour Hotel, 509 So.2d 369 (Fla. 1st DCA 1987). In rejecting proposed findings of fact 187 and 188 as subordinate to the facts actually found, the Hearing Officer did not make a finding contrary to the weight of that evidence. Instead, the weight she placed on Mr. Kaminsky's and Mr. Pardo's testimony was solely within her province. Thus, the holding in Rodriguez has no applicability, and Respondent/Petitioner's first exception is denied.
2. The second exception is directed at the Hearing Officer's rejection of Petitioner/Respondent's proposed findings of fact 192, 193, 194, 195, 196, 197, 198, and 199, all of which were rejected by the Hearing Officer as "subordinate to the facts actually found." The proposed findings themselves concern Complainant/Respondent's consultation with his attorney brother-in-law, Mr. Pardo, prior to filing his complaint against Respondent/Petitioner. The weight to be given to the evidence on this issue was for the Hearing Officer to determine. From our review of the Recommended Order, particularly paragraphs 61 through 63, and from the record itself, she already accorded very little weight to their testimony. Further, the proposed findings themselves would not alter the Hearing Officer's findings or conclusions, all of which appear to be based upon competent, substantial record evidence. For these reasons, the exceptions concerning proposed findings of fact 192, 193, 194, 195, 196, 197, 198, and 199 are denied.
3. The next group of exceptions assails the Hearing Officer's rejection of Respondent/Petitioner's proposed findings of fact 202, 203, 204, 205, 206, 207, 208, and 209, which the Hearing Officer rejected as "irrelevant." In these proposed findings, Respondent/Petitioner attempted to show that Kaminsky did not consult with Mr. Pardo, and if he did, it was not in good faith. Here, however, the Hearing Officer did not recommend against an award of attorney's fees because of any "advice of counsel" defense put forth by Kaminsky. Instead, she found that although Kaminsky had informally discussed the matter with his brother-in-law, he did not provide Mr. Pardo with all that would have been necessary for Pardo to give an informed opinion regarding the merits of his complaint against Lieberman. The Hearing Officer's findings and conclusions are supported by competent substantial evidence. Further, the weight to be placed upon Kaminsky's and Pardo's testimony, any determinations as to their credibility, and permissible inferences to draw therefrom were for the Hearing Officer to determine. Because we can find no error in the Hearing Officer's rejection of proposed findings of fact 202, 203, 204, 205, 206, 207, 208, and 209, these exceptions are denied.
4. Proposed findings of fact 210, 211, and 211 were rejected by the Hearing Officer as "subordinate to the facts actually found." Respondent/Petitioner excepts to the rejection of these proposed findings by the Hearing Officer, all of which dealt with how and when Kaminsky allegedly consulted with Pardo. From these proposed findings, Respondent/Petitioner evidently sought a conclusion that no consultation ever took place. However, as recognized previously, the Hearing Officer found that Kaminsky informally discussed the complaint with his brother-in-law prior to filing it. [Recommended Order, paragraphs 61, 62, 63, and 70.] The Hearing Officer's findings of fact and conclusions of law in this regard are supported by competent substantial evidence. We find no error in the Hearing Officer's rejection of proposed findings of fact 210, 211, and 212; thus, these exceptions are denied.
5. Respondent/Petitioner next excepts to the Hearing Officer's rejection of proposed finding of fact 218 for its being "argumentative." Respondent/Petitioner contends that this is not a basis in law for the Hearing Officer to reject the proposed finding, which again dealt with Kaminsky's consultation with his brother-in-law, Pardo. As the fact-finder in this proceeding, it was the Hearing Officer's responsibility to decide the issues presented one way or another. The Hearing Officer satisfied that function, and after reviewing the record, we can find no error in the Hearing Officer's rejection of proposed finding of fact 218. Therefore, this exception is denied.
6. In her next exception, Respondent/Petitioner assails Kaminsky's proposed finding of fact 10, which the Hearing Officer "accepted in substance," according to the Appendix to the Recommended Order. The proposed finding itself suggests that Kaminsky did not entertain serious doubts as to the truth or falsity of the allegations contained in his complaint. Respondent/Petitioner submits that the proposed finding is entirely nonsensical, and that the Hearing Officer erred by either not rejecting or striking Kaminsky's proposed finding of fact 10. In reviewing our Rule 34-5.029(3), Florida Administrative Code, it appears that Kaminsky's proposed finding merely tracked language from that rule which describes different ways to prove "malicious intent to injure the reputation." Here, the Hearing Officer found, based upon competent substantial evidence, that Kaminsky had ill will and hostility toward Lieberman, and her findings in that regard led to the ultimate finding--that Kaminsky filed the complaint against Lieberman with a malicious intent to injure her reputation. Thus, it is immaterial whether Kaminsky proposed a finding of fact suggesting that he had not acted with a "reckless disregard," because the preponderance of the evidence established--and the Hearing Officer concluded--that he had a malicious intent. Therefore, this exception is denied.
7. Taking Respondent/Petitioner's first exception last, Lieberman excepts to the Hearing Officer's recommendation that jurisdiction not be retained by the Division of Administrative Hearings to determine fees incurred after March 8, 1993.
Initially, we note that as Lieberman suggests, this March 8, 1993 date contains a scrivener's error; the correct date should be March 8, 1994, as the record indicates that Lieberman's attorney of record billed for his time through this date [Respondent's Exhibit 26, and Recommended Order, paragraph 53].
Respondent/Petitioner next complains that although the Hearing Officer's fee calculation includes a recommendation that Respondent/Petitioner's attorney be compensated for his actual time spent at hearing--37.5 hours (in addition to fees incurred through March 8, 1994), she does not address any pre- or post-hearing effort he expended; nor does she award, other than what was established at hearing, any other costs Lieberman incurred in this proceeding. Lieberman argues that she could not present evidence as to the costs and fees incurred during the hearing itself or for the extensive amount of work that had to be done immediately prior to and subsequent to the hearing. Although Lieberman requested that the Division of Administrative Hearings retain jurisdiction over this matter to tax further fees and costs through the conclusion of these proceedings [Respondent/Petitioner's proposed recommended order, paragraph 32], the Hearing Officer recommended against retaining jurisdiction by the Division. We further note that this issue was apparently argued to the Hearing Officer during closing arguments, but those arguments were neither transcribed nor made a part of the record before us. We also note that this issue received only cursory mention in Respondent/Petitioner's proposed recommended order, and almost no discussion by the Hearing Officer in her Recommended Order.
Notwithstanding, we basically agree with Respondent/Petitioner's contention that Section 112.317(8), Florida Statutes, allows for an award of attorney's fees to compensate for time spent in litigating both the entitlement to and the amount of fees. However, we do not view our decision in In re Steven B. Feren, (Final Order entered October 18, 1994), as mandating an additional proceeding before the Division of Administrative Hearings to assess fees and costs for matters not proven at the initial hearing. We have not previously addressed this issue in a proceeding under Section 112.317(8), Florida Statutes. However, we can find no support in any administrative decisions or caselaw which would suggest that supplemental proceedings be had. On the contrary, it would appear that there is substantial authority to support a denial of additional fact-finding for the purpose of introducing evidence that could have, in the exercise of due diligence, been offered at the original hearing. Henderson Signs v. Fla. Dept. of Transportation, 397 So. 2d 769 (Fla. 1st DCA 1981); School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990).
We further note that in the Feren case, our Final Order (and the Hearing Officer's recommended order) reflect an award of attorney's fees for the "total number of attorney and paralegal hours reasonably spent and expected to be spent on these proceedings to bring them to a final conclusion." That award was based upon competent substantial evidence in the record. Here, the Hearing Officer found and awarded as reasonable Mr. Stuart Michaelson's 141.8 hours X $125 per hour for a total fee due him of $17,725, and that determination, based upon our review of the record, is based upon competent substantial evidence. There is no evidence in the record that would support the award of additional fees beyond this amount, nor entitlement to any costs not proven at the initial hearing. Thus, this situation is not unlike the situation we faced in another Section 112.317(8) proceeding, In re Jimmy Bilbo, (Final Order entered June 7, 1994), where that respondent/petitioner proved that the complaint filed against him was filed with a malicious intent to injure his reputation and was without a basis in law or fact, but failed to prove at the hearing before the Hearing Officer that he had actually incurred any attorney's fees or costs in defense of that complaint, or that said fees and costs were reasonable under the standards enunciated in Florida Patient's Compensation Fund v. Rowe, 473 So. 2d 1145 (Fla. 1985). Citing Henderson Signs v. Fla. Dept. of Transportation, supra, we declined Bilbo's supplemental offer of proof; nor did we order additional proceedings.
Because eventually proceedings must come to an end, we are not inclined to order supplemental proceedings to hear additional evidence as to supplementary attorney's fees and costs, when it was, or should have been, reasonably foreseeable to Respondent/Petitioner's counsel that additional effort would be expended in bringing this matter to its conclusion, as was the case in Feren. Nor can we find that the Hearing Officer erred by not retaining jurisdiction. Therefore, Respondent/Petitioner's exception on this issue is denied.
The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
Accordingly, the Commission finds that the Complainant, David Kaminsky, filed an ethics complaint which was frivolous and without basis in law and fact against the Respondent, Ilene Lieberman, a public officer, with a malicious intent to injure the reputation of Ms. Lieberman and that Mr. Kaminsky is therefore liable for attorney's fees and costs incurred, as described herein.
WHEREFORE, pursuant to Section 112.317(8), Florida Statutes, the Commission on Ethics determines that the Complainant, David Kaminsky, is liable to the Respondent, Ilene Lieberman, for attorney's fees and costs in the total amount of $37,280.89.
ORDERED by the State of Florida Commission on Ethics meeting
in public session on Thursday, April 20, 1995.
R. Terry Rigsby
THIS AMENDED ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS AMENDED ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (physical address at 2822 Remington Green Circle, Suite 101); AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE AMENDED ORDER (including the Recommended Order) DESIGNATED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS AMENDED ORDER IS RENDERED.
cc: Mr. Stuart R. Michelson, Attorney for Respondent/Petitioner
Mr. Anthony J. Titone, Attorney for Complainant/Respondent
Division of Administrative Hearings