STATE OF FLORIDA
COMMISSION ON ETHICS
ILENE LIEBERMAN, ) Complaint No. 92-2
) DOAH CASE No. 97-2953FE
Respondent. ) COE FINAL ORDER NO. 98-16
FINAL ORDER AFTER REMAND
AWARDING ATTORNEY’S FEES AND COSTS
This matter comes before the Commission on the Recommended Order the Division of Administrative Hearings Administrative Law Judge entered on February 17, 1998 (a copy of which is attached hereto and incorporated herein by reference), in which she recommends that the Commission enter a final order awarding Ilene Lieberman additional attorney’s fees and costs. The parties were notified of their right to file exceptions pursuant to Rule 34-5.023(3), Florida Administrative Code. No exceptions were filed by either party. Accordingly, the matter is now before the Commission for final action.
On April 25, 1995, the Commission entered a Final Order Awarding Attorney’s Fees and Costs to Respondent Ilene Lieberman (COE 95-10), finding that under Section 112.317(8), Florida Statutes, Complainant David Kaminsky had filed an ethics complaint which was frivolous and without basis in law and fact. The amount of fees and costs awarded in that Final Order was $37,280.89. On May 9, 1995, Kaminsky appealed that Final Order to the Fourth District Court of Appeal and Lieberman subsequently cross-appealed.
In the appeal of another Ethics Commission Final Order (COE 95-5) involving the same Respondent--Lieberman v. Brown, Fourth District Court of Appeal Case No. 95-1129--the Commission sought to intervene and Lieberman objected. By Order dated May 22, 1995, the Court denied the Commission’s Motion to Intervene. On that basis, the Commission did not seek to intervene in the Kaminsky v. Lieberman appeal.
Subsequently, in Kaminsky v. Lieberman, 675 So.2d 261 (Fla. 4th DCA 1996), the Court reversed that portion of the Commission’s Final Order that declined to order additional proceedings or consider supplemental evidence to allow Lieberman to establish the amount of attorney’s fees and costs that were expended after the conclusion of the hearing before DOAH. The Court also granted Lieberman’s motion for appellate attorney’s fees.
After receiving the Court’s Mandate, the Commission remanded the case to the Division of Administrative Hearings for additional proceedings to determine: 1) the additional attorney’s fees and costs Lieberman incurred after the last day of the prior DOAH hearing; and 2) the amount of appellate attorney’s fees. The Administrative Law Judge’s Recommended Order, entered pursuant to those directions, is now before the Commission for final action.
Under Section 120.57(1)(j), Florida Statutes (1997), an agency may adopt the recommended order as the final order of the agency. The agency may reject or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings did not comply with 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 Administrative Law Judge. 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 Administrative Law Judge, the Commission is bound by that finding.
1. The Findings of Fact set forth in the Recommended Order, with the mathematical correction to Paragraph 7 noted in Footnote 2, are approved, adopted, and incorporated herein by reference. Those findings of fact reflect the following amounts were incurred for attorney’s fees and costs by Lieberman:
A. Post-1994 DOAH hearing through 1995 Commission final action:
Attorney hours $28,037.50
Paralegal time 1,857.50
B. Appeal and Cross-Appeal:
Attorney hours $29,743.75
Paralegal time 3,775.00
C. Post-appeal through 1998 DOAH hearing:
Attorney hours $ 5,172.50
Paralegal time 160.00
TOTAL $ 5,332.50
D. Post-1998 DOAH hearing through Commission final action:
Attorney hours $ 4,500.00
E. Total additional attorney’s fees:$73,246,25 
F. Other documented expenses:
Costs $ 7,533.38
1/9/98 transcript 388.95
Expert witness fee 5,375.00
G. Total additional attorney’s fees and costs:$86,543.58
1. The Conclusions of Law set forth in the Recommended Order, corrected as noted in Footnotes 3 and 4, are approved, adopted, and incorporated herein by reference.
2. Accordingly, the Commission on Ethics concludes that the reasonable amount of attorney’s fees incurred by Lieberman is $73,246.25. The reasonable amount of fees for Lieberman’s expert witness is $5,375.00. And the reasonable amount of costs incurred by Lieberman in this proceeding is $7,922.33.
WHEREFORE, pursuant to the mandate of the Fourth District Court of Appeal, the Commission on Ethics determines that Complainant David Kaminsky is liable to Respondent Ilene Lieberman and the City of Lauderhill for additional attorney's fees and costs in the amount of $86,543.58.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 16, 1998, in Tallahassee, Florida.
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS 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 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 ORDER IS RENDERED.
cc: Mr. Stuart R. Michelson, Attorney for Respondent
Mr. Anthony J. Titone, Attorney for Complainant
Division of Administrative Hearings
The District Court stated, “. . . the attorney involved may not be able to forecast presently unearned fees and costs with any degree of accuracy at the hearing. As a matter of basic fairness, the interested parties should be neither shortchanged nor over-charged for the sake of administrative expediency.” Id., at p. 262. From the perspective of the trier of fact, deciding whether the attorney is able to forecast presently unearned fees and costs with the requisite degree of accuracy is a difficult issue. Resolving this issue in future proceedings may depend on the parties’ willingness to stipulate to reasonable fees or it may require proof, or at least a proffer, at the formal hearing before the trier of fact. Alternatively, the parties and the trier of fact may agree to a bifurcated proceeding, with proof of the appropriate amount of fees and costs following a determination of the entitlement to fees and costs.
Paragraph 7 of the Recommended Order contains a math error. The paralegal’s time is stated to be 75.5 hours which, multiplied by $50, would equal $3,775.00, not $3777.50.
The figure given on Page 8 as reasonable attorney’s fees--$73,376.25--contains a math error. The correct figure, as indicated above, is $73,246.25.
Although Paragraph 22 of the Recommended Order states that the costs incurred is $7,533.38 “which includes the cost of the transcript,” the costs figure stated on Page 8 is $7,922.33 ($7,533.38 plus the $388.95 transcript cost per Paragraph 12). Therefore, the statement made in Paragraph 22 is corrected to read “which does not include the cost of the transcript.”