STATE OF FLORIDA
COMMISSION ON ETHICS
In re JIMMY BILBO, )
Respondent. ) Complaint No. 93-98
) Final Order No. COE ____
FINAL ORDER DENYING COSTS AND ATTORNEY FEES
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on March 28, 1994 by the Division of Administrative Hearings (DOAH) [a copy of which is attached and incorporated by reference]. The Hearing Officer recommends that the Commission enter a Final Order denying the Respondent's Amended Petition for Attorney's Fees and Costs.
The Respondent filed exceptions to various portions of the recommended order. While the "exceptions" contain much commentary and tracking of the history of the matter that really do not amount to a substantive exception, the exceptions do specifically take issue with paragraph "21" of the Recommended Order (identified by the Hearing Officer as a conclusion of law). Paragraph "21" of the Recommended Order provides:
Bilbo is asking for $325 for attorney's fees. Rule 4-1.5 of the Florida Bar Rules of Professional Conduct lists several factors which can be used in determining a reasonable fee. These factors include, among other things, the time and labor required, the skill requisite to perform the service properly, the fee customarily charged in the locality for similar services, and the experience, reputation, and ability of the lawyer performing the service. Bilbo has failed to prove what legal service was actually performed, who performed the service, how many hours of service were performed, or the fee customarily charged in the locality for similar services. Bilbo has not met the burden of proof necessary to determine the amount of attorney's fees and, therefore, is not entitled to an award of attorney's fees.
In substance, the totality of the Respondent's exceptions amounts to his assertion that since the Hearing Officer found that the Complainant filed the ethics complaint with malicious intent to injure the reputation of the Respondent and found that the complaint was frivolous and without basis in fact or law (paragraphs "19" and "20" of the Recommended Order) and since he is not an attorney subject to the Florida Bar Rules of Professional Conduct, that he has complied with all of the requisites and proofs necessary to substantiate an award of attorney fees.
Further, via his exceptions, the Respondent seeks to submit for the Commission's evidential consideration three items not admitted into evidence at the DOAH hearing on the matter, not tendered for admission at the hearing, and apparently not in existence at the time of the hearing. The three items submitted with the exceptions are: STATEMENT, on letterhead of Gwendolyn Spivey, Attorney at Law, to the Respondent, dated April 7, 1994, listing a total fee of $325.00; AFFIDAVIT AS TO ATTORNEY'S FEES, signed by Robert L. Hinkle, Esquire, stating his opinion that $325.00 is a reasonable fee to be paid to the attorney for the Respondent for the services rendered in Commission Case No. 93-98; INVOICE, from Accurate Stenotype Reporters, Inc. to the Respondent, in the amount of $414.00, for preparing a transcript of the DOAH hearing in this matter.
In the conclusion portion of his exceptions, the Respondent reasserts his arguments noted above and asserts that the Recommended Order of the Hearing Officer should be rejected and instead a Final Order granting Respondent an award of attorney fees in the amount of $325.00 and costs in the amount of $414.00 should be issued by the Commission.
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.
The Complainant filed no exceptions to the Recommended Order nor any response to the Respondent's exceptions.
Having reviewed the Recommended Order, the exceptions, the record of the public hearing of this matter that has been placed before the Commission, and having considered the arguments of the Respondent and the Complainant made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and determinations:
Rulings on Exceptions
In order to be entitled to an award of costs or attorney fees under Section 112.317(8), Florida Statutes, an ethics Respondent must show by a preponderance of the evidence that the Complainant filed the ethics complaint with malicious intent to injure the reputation of the Respondent and that the complaint is frivolous and without basis in law or fact. The Hearing Officer found that these elements were proven by the Respondent and those findings are not the subject of any exceptions before the Commission for its consideration. Therefore, not having been alerted to any perceived defects in the Hearing Officer's findings as to the elements discussed above, the Commission cannot reweigh the evidence presented to the Hearing Officer and must accept her findings as to these elements. See Bradley, supra.
However, Section 112.317(8) also requires that any award be shown to be reasonable. What constitutes a reasonable award and the proof necessary to make a showing of reasonableness were set forth by the Supreme Court of Florida in Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). The Court adopted the criteria set forth in Disciplinary Rule 2-106(b) of The Florida Bar Code of Professional Responsibility (now found at Rule 4-1.5 of the Rules Regulating The Florida Bar). These are the same criteria utilized by the Hearing Officer in arriving at her decision that the Respondent did not demonstrate that he was entitled to an award of attorney fees in the amount of $325.00. See pages 7 and 8 of the Hearing Officer's Recommended Order.
Section 112.317(8) requires that any attorney fees awarded be "reasonable." Rowe establishes the criteria and methods of proof for establishing a reasonable fee. The Hearing Officer cannot be faulted for adhering to controlling caselaw and thus finding that a Respondent who produced no testimony or other evidence that legal services were rendered in defense of an ethics complaint against him, that a specific number of hours of legal services were rendered, that the number of hours were reasonably expended on the services, and that the hourly rate charged was reasonable is not entitled to an award. Unlike the Bar's rules of professional conduct, the Rowe decision does not serve primarily to regulate attorneys but rather establishes proofs which must be made in all cases seeking the award of reasonable attorney fees.
Entitlement to costs, as opposed to attorney fees, was not even at issue in the petition for fees or the amended petition for fees, both of which were transmitted to DOAH and which jointly formed the pleadings upon which this matter was heard at DOAH. The Respondent cannot now plead or prove before the Commission, via his exceptions or their attachments, his entitlement to costs or fees which he failed to allege and prove at the hearing before DOAH previously held in this matter. See, e.g., Henderson Signs v. Florida Department of Transportation, 397 So. 2d 769 (Fla. 1st DCA 1981).
Findings of Fact
The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference except as modified above.
Conclusions of Law
1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference except as modified above.
2. Accordingly, the Commission on Ethics determines that the Complainant, Jerry Anders, filed an ethics complaint which was frivolous and without basis in law or fact, against the Respondent, Jimmy Bilbo, a public officer or employee, with a malicious intent to injure the reputation of the Respondent, but that the Complainant is not therefore liable for any attorney fees or costs incurred in defending said ethics complaint because, as found by the Hearing Officer, the Respondent did not prove, under applicable standards and criteria, that a particular attorney performed a reasonable amount of legal services at a reasonable rate in defense of the ethics complaint, and because the record before the Commission does not contain substantial competent evidence that such particular, reasonable services were performed or whether they were performed for a reasonable charge.
WHEREFORE, pursuant to Section 112.317(8), Florida Statutes, the Commission on Ethics determines that the Complainant, Jerry Anders, is not liable to the Respondent, Jimmy Bilbo, for attorney fees and costs in this matter.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, June 2, 1994.
Joel K. Gustafson
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, 2822 REMINGTON GREEN CIRCLE, SUITE 101, TALLAHASSEE, FLORIDA 32308; OR P. O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF 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. Jimmy Bilbo, Respondent
Mr. Jerry Anders, Complainant
Division of Administrative Hearings