BEFORE THE
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.[1] 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
TOTAL $29,895.00
B. Appeal and Cross-Appeal:
Attorney
hours $29,743.75
Paralegal
time 3,775.00[2]
TOTAL $33,518.75
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
[3]
F. Other documented expenses:
Costs $ 7,533.38[4]
1/9/98
transcript 388.95
Expert
witness fee 5,375.00
TOTAL $13,297.33
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.
______________________________
Date
______________________________
Kathy Chinoy
Chair
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
[1]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.
[2]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.
[3]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.
[4]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.”