STATE OF FLORIDA
COMMISSION ON ETHICS
In re JOHN KEENE, Complaint No .94-09
DOAH Case No. 94-1907 FE
Respondent. Final Order No. COE 95-30
FINAL ORDER DENYING ATTORNEY'S FEES
On September 15, 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. On October 5, 1995, Respondent/Petitioner John Keene filed Exceptions to the Recommended Order. On October 26, 1995, Complainant/Respondent Ronald Stotler filed his Response to Petitioner Keene's Exceptions to Recommended Order. The matter thereafter came before the Commission for final agency action.
This matter began with Ronald Stotler (Stotler) filing a complaint with the Commission on Ethics alleging that John Keene (Keene) had violated the Code of Ethics for Public Officers and Employees. That complaint was dismissed by the Commission for legal insufficiency on March 10, 1994.
Thereafter, Keene timely petitioned for an award of attorney's fees and costs against Stotler pursuant to Section 112.317(8), Florida Statutes. That petition was referred to the Division of Administrative Hearings and a final hearing was held on March 8, 9, 10, 16, and 17, 1995. The transcript of the hearing was filed with the Hearing Officer on May 30, 1995, and the parties then filed proposed recommended orders. The Hearing Officer's Recommended Order was transmitted to the Commission and the parties on September 15, 1995. The parties were notified of their right to file exceptions to the Recommended Order in accordance with Rule 34-5.023, Florida Administrative Code. Keene's exceptions were timely received on October 5, 1995, and Stotler thereafter submitted a response to Keene's exceptions on October 26, 1995.
STANDARDS FOR REVIEW
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.
RULINGS ON EXCEPTIONS
1. Keene first excepts to the third and fourth sentences of Finding of Fact 31. Initially, Keene notes that the Hearing Officer mistakenly wrote that the October 7, 1993 letter to the Joint Legislative Auditing Committee was sent by Keene when, in fact, it was Stotler who wrote that letter.
In this first exception, Keene argues that the Hearing Officer erred in considering an August 12, 1994 letter sent by the director of the Joint Legislative Auditing Committee to Stotler as support for Stotler's contention that his February 4, 1994 ethics complaint was the proper course of conduct. Keene argues that due to the date of the correspondence, Stotler could not have relied on the letter as a basis for formulating his intent in filing the complaint and that it is therefore irrelevant. Keene also argues that the director's alleged statements to Stotler during previous telephone conversations were inadmissible hearsay since the director did not testify, the correspondence did not reference any prior telephone conversations, and no other evidence corroborated the existence of any alleged conversations.
In his Response, Stotler agrees with Keene that the Hearing Officer inadvertently attributed Keene, not Stotler, with sending the October 7, 1993 letter to the Joint Legislative Auditing Committee. Stotler responds to the remainder of the exception by arguing that the August 12, 1994 letter from the director was offered to demonstrate and corroborate the existence of prior oral communications between Stotler and the Joint Legislative Auditing Committee, and that the substance of those communications went to prove Stotler's intent and state of mind when filing the ethics complaint in February 1994.
To the extent the parties both agree and the record so reflects that Stotler sent the October 7, 1993 letter to the Joint Legislative Auditing Committee, Finding of Fact 31 is modified to make that correction. However, the remainder of Keene's first exception is denied.
Section 90.801(1)(c), Florida Statutes, defines "hearsay" as
a statement, other than one made by the
declarant while testifying at the trial or
hearing, offered in evidence to prove the
truth of the matter asserted.
Section 120.58( 1)(a), Florida Statutes, provides:
Irrelevant, immaterial, or unduly repetitious
evidence shall be excluded, but all other
evidence of a type commonly relied upon by
reasonably prudent persons in the conduct of
their affairs shall be admissible, whether or
not such evidence would be admissible in a
trial in the courts of Florida. Any part of
the evidence may be received in written form,
and all testimony of parties and witnesses
shall be made under oath. Hearsay evidence
may be used for the purpose of supplementing
or explaining other evidence, but it shall
not be sufficient in itself to support a
finding unless it would be admissible over
objection in civil actions. [e.s.]
Here, the issue is whether Stotler's testimony of what he was told by staff with the Joint Legislative Auditing Committee was inadmissible hearsay. When evidence of an out-of-court statement is offered to prove the state of mind of a person who heard the statement, the statement is not hearsay because it is not being offered to prove the truth of the statement's contents. Ehrhardt, Florida Evidence, s 801.6 (1994 Edition). Stated another way, where it is relevant whether a person was induced to take some action on the basis of a conversation with another person, evidence of that conversation is relevant nonhearsay. 23 Fla. Jur. 2d, Evidence and Witnesses s 286, citing Hooper v. Barnett Bank of West Florida, 474 So.2d 1253 (Fla. 1st DCA 1985), approved, 498 So.2d 923 (Fla. 1986). Based upon the foregoing, we conclude that the Hearing Officer did not err in considering Stotler's testimony of his telephone conversations with Committee staff. Further, the relevance and weight to be given to Shofstall's August 12, 1994 letter to Stotler was for the Hearing Officer to decide. Heifetz, supra. Therefore, to the extent that the August 12, 1994 letter corroborated Stotler's testimony and that of others as to the existence of his prior discussions with Shofstall, it was admissible at hearing. Accordingly, Keene's first exception is denied.
2. Keene's second exception is directed to the Hearing Officer's "Finding of Fact 39." However, Keene's arguments appear to be directed to Finding of Fact 29 involving State Attorney Harry Shorestein. Therein, Keene argues that the finding is based upon inadmissible hearsay evidence and that it was never corroborated by other evidence.
In his Response, Stotler reiterates his previous argument, that Shorestein's statements were offered to prove Stotler's state of mind and, also, that Stotler's testimony concerning Shorstein's statements were corroborated by other evidence.
Keene's second exception is denied. As previously discussed in our treatment of Keene's exception to Finding of Fact 31, where such evidence is offered to prove the declarant's state of mind, it is not hearsay. Further, as pointed out by Stotler, his testimony about Shorestein's statements was subsequently corroborated by Shorestein's affidavit (Respondent's Exhibit 12). We find no error in the Hearing Officer's Finding of Fact 29, as it is based upon competent substantial evidence. Therefore, Keene's second exception is denied.
3. In his third exception, Keene excepts to Finding of Fact 40, arguing that it relies upon improperly admitted hearsay evidence. Finding of Fact 40 addresses Stotler's consultation with his attorney prior to filing his complaint, and Keene argues that since Stotler's lawyer did not testify at hearing, no other evidence exists to corroborate Stotler's testimony about what his attorney advised him.
In response, Stotler reiterates his previous two responses, i.e., that the testimony was not offered to prove the truth of the matter asserted but, instead, went to establish Stotler' s state of mind at the time of filing his complaint. Additionally, Stotler contends that Keene was permitted to depose Stotler's attorney but chose not to offer the deposition into evidence and that legal arguments made to the Hearing Officer by the parties were neither transcribed nor made a part of the record before us.
Keene's third exception is denied for the reasons previously stated in our denial of the first and second exceptions. Evidence offered to prove a declarant's state of mind does not constitute inadmissible hearsay. Because there is competent substantial evidence supporting Finding of Fact 40, Keene's third exception is denied.
4. In his fourth exception, Keene excepts to the second sentence contained in Finding of Fact 41, arguing that there is no competent substantial evidence to support the statement: "Mr. Alphonse had some concerns about the accounting ethics concerning the hiring of Mr. Moore." Keene argues that Stotler and Alphonse only discussed DBPR conflict of interest issues and that there were never discussions involving the ethics complaint filed under Chapter 112, Part III, Florida Statutes.
Stotler filed no response to this exception.
Keene's fourth exception is denied. Based upon our review of the record it is clear that Mr. Alphonse's advice, if you will, to Stotler concerned standards of conduct governing certified public accountants. The Hearing Officer's Finding of Fact 41 correctly perceived that Mr. Alphonse's involvement related to accounting ethics and not the Code of Ethics for Public Officers and Employees contained in Chapter 112, Part III, Florida Statutes. Therefore, we reject Keene's fourth exception.
5. Keene's fifth exception is directed to Finding of Fact 42, which he argues is based upon inadmissible hearsay evidence. This Finding of Fact addresses comments Mrs. Byers made to Stotler about her and Mr. Jett's discussion with Sheriff Lancaster concerning payments to the Magers, Nichols accounting firm.
Stotler's response to Keene's exception suggests that the Sheriff's deposition was taken and, Stotler's counsel assumed, had been filed with the Hearing Officer. He suggests that the deposition now be filed for the record since the parties stipulated to its admission.
Respondent's fifth exception is denied, and the suggestion that the Sheriff Lancaster's deposition now be filed is rejected. Based upon our review of the record, we believe that the Hearing Officer properly admitted Stotler's testimony in this regard. We reject Keene's contention that the statements were inadmissible hearsay, as it appears to us that the statements were offered to prove Stotler's state of mind and whether he had a malicious intent when he filed his complaint against Keene. Because there is competent substantial evidence to support the Hearing Officer's Finding of Fact 42, Keene's fifth exception is denied.
6. Although it is not clear, it appears that in his sixth exception Keene is excepting to the Hearing Officer's treatment of his proposed findings of fact, paragraphs 2, 4-8, 50-52, 57-62, 72, 85, and 87. These proposed findings, Keene argues, are highly material to inferring Stotler's true intent.
Stotler filed no response to this exception.
Keene's sixth exception is denied. Section 120.59(2), Florida Statutes, 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. The Appendix to the Recommended Order reveals that the Hearing Officer ruled on the referenced proposed findings, as she is required by law to do. Moreover, it is evident from our review of the proposed findings Keene submitted to the Hearing Officer that Keene is essentially inviting us to re-weigh the evidence and come to a different conclusion than that reached by the Hearing Officer. We are neither permitted by law, nor inclined, to accept that invitation. Heifetz, supra. Therefore, Keene's sixth exception is denied.
7. Keene's seventh through thirteenth exceptions are directed to the Hearing Officer's Conclusions of Law. Although under Section 120.57(1)(b)10, Florida Statutes, the Commission is free to reject or modify a hearing officer's conclusions of law and interpretations of administrative rules contained in a recommended order, in this case, the majority of the Hearing Officer's Conclusions of Law address Stotler's intent in filing the complaint against Keene. Proof of intent is a predominantly factual issue. Moreover, where, as here, we have accepted the Hearing Officer's findings of fact because they are based upon competent substantial evidence, we are bound to also accept the Hearing Officer's Conclusions of Law so predicated upon those factual findings.
Stotler collectively responds to Keene's Conclusion of Law exceptions, characterizing them as a rehashing of the arguments made by Keene in his proposed recommended order and going principally to the issue of malicious intent.
Specifically, in his seventh exception Keene assails Conclusion of Law 55, where the Hearing Officer concluded that Keene had failed to establish that Stotler filed the complaint against Keene with a malicious intent to injure Keene's reputation. Keene argues in his exception that Couch v. Commission on Ethics, 617 So.2d 1119 (Fla. 5th DCA 1993), imposes a higher standard of conduct on public officials when filing complaints against other public officers than that imposed on private citizens, and that their actions should be more closely scrutinized. With that stated, Keene then argues that applying this stricter standard to Stotler leads to the conclusion that the complaint was filed with a malicious intent.
Keene's seventh exception is denied. We find no error in the Hearing Officer's conclusion, i.e., that Stotler did not act with a malicious intent to injure Keene's reputation when he filed the complaint. This conclusion is an ultimate finding of fact and is supported by competent substantial evidence in the record. Nor do we agree with Keene that Couch imposes a higher standard of scrutiny on the actions of public (or former public) officials. Accordingly, Keene's seventh exception is denied.
8. Keene's eighth exception is directed to the third and fourth sentences of Conclusion of Law 56. There, the Hearing Officer concluded that Mrs. Byers had contacted the media about the impending meeting with the State Attorney and that Stotler did not seek out the media after that meeting.
We find no error in the excepted-to sentences of Conclusion of Law 56. They are essentially findings of fact that go to the ultimate issue of malicious intent. Further, there is competent, substantial record evidence supporting the findings. Accordingly, Keene's eighth exception is denied.
9. Next, Keene excepts to Conclusion of Law 57, where the Hearing Officer concluded that the main thrust of Stotler's efforts was to obtain an audit. Keene argues that the conclusion is irrelevant and inconsistent with Stotler's testimony.
We deny Keene's ninth exception. Based upon our review of the record we find no error in the Hearing Officer's conclusion. The findings of fact underlying this conclusion are based upon competent substantial evidence and we therefore decline to reweigh the evidence and reach a different conclusion than that reached by the Hearing Officer.
10. In excepting to Conclusion of Law 58, Keene argues that the Hearing Officer failed to distinguish facts which supported Stotler's concerns about Moore from those which supported concerns about Keene.
We deny Keene's tenth exception. We have reviewed the record and find no error in the Hearing Officer's conclusion. The factual findings upon which this conclusion is predicated are based upon competent substantial evidence. Therefore, Keene's tenth exception is denied.
11. Keene excepts to Conclusions of Law 60 and 63, arguing that the findings supporting these conclusions were based upon improperly admitted hearsay evidence. Further, Keene argues that the Hearing Officer erred by concluding that Stotler's investigation of Moore's conduct justified his complaint against Keene.
We have previously ruled on Keene's exceptions to the Findings of Fact upon which this Conclusion of Law is based. Because we view the Hearing Officer's evidentiary rulings as proper, and because the findings themselves are based upon competent substantial evidence discerned from our review of the record, we deny Keene's eleventh exception.
12. In his twelfth exception, Keene excepts to Conclusions of Law 61 and 62 on the stated ground that the Conclusions fail to distinguish between the contents of the public records and the actual allegations made by Stotler.
We find no error in the Hearing Officer's Conclusions of Law 61 and 62. In our view, the Hearing Officer was merely distinguishing the facts in Couch from those presented here. Inasmuch as the factual findings contained in the Conclusions are based upon competent substantial evidence, Keene's twelfth exception is denied.
13. In his thirteenth and final exception, Keene excepts to Conclusion of Law 67 where the Hearing Officer concluded that Stotler lacked a malicious intent. Keene argues that although Stotler did not admit to having a malicious intent, such an intent can be inferred.
We deny Keene's thirteenth exception. Heifetz, supra, reminds us that:
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.
The Hearing Officer ably carried out this function. Thus, we reject Keene's request to abandon this principal and engage in a re-weighing of the evidence to reach a contrary conclusion. Accordingly, Keene's thirteenth exception is denied.
FINDINGS OF FACT
The Findings of Fact set forth in the Recommended Order, as modified by the correction to Finding of Fact 31 to indicate that Stotler, not Keene, sent the subject letter, are approved, adopted, and incorporated herein by reference.
CONCLUSIONS OF LAW
1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
2. The petition for attorney's fees and costs filed by Respondent/Petitioner John Keene against Complainant/Respondent Ronald Stotler is hereby DENIED.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, November 30, 1995.
December 5, 1995
William J. Rish
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. Jeptha F. Barbour, Attorney for Respondent/Petitioner
Mr. Robert L. McLeod, II, Attorney for
Division of Administrative Hearings