FINAL ORDER AND PUBLIC REPORT

On December 24, 1996, an Administrative Law Judge from the Division of Administrative Hearings (DOAH) submitted to the parties and the Commission her Recommended Order, a copy of which is attached hereto. On January 13, 1997, the Respondent filed exceptions to the Recommended Order, with the Commission’s Advocate subsequently responding to those exceptions on January 27, 1997. On January 31, 1997 the Respondent withdrew his exceptions. The matter thereafter came before the Commission on Ethics for final agency action.

BACKGROUND

These proceedings were initiated by the filing of three separate sworn complaints alleging that the Respondent, while serving as President of Central Florida Community College, violated the Code of Ethics for Public Officers and Employees. The complaints were found to be legally sufficient to indicate possible violations of Sections 112.313(2), 112.313(6), and 112.313(7)(a), Florida Statutes, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On June 4, 1996, the Commission on Ethics issued an order finding probable cause to believe that the Respondent violated Section 112.313(6), Florida Statutes, and thereafter forwarded this matter to the Division of Administrative Hearings for conduct of a formal hearing and entry of a recommended order. A formal, evidentiary hearing was held before the Administrative Law Judge, a transcript of the hearing was filed, and the parties then filed proposed recommended orders with the Administrative Law Judge. The Recommended Order was transmitted to the Commission and the parties on December 24, 1996, and the parties were notified of their right to file exceptions to the Recommended Order in accordance with Rule 34-5.023(1), Florida Administrative Code. The Respondent timely filed an exception, which the Advocate responded to, but he subsequently withdrew his exception.

STANDARD OF REVIEW

Under Section 120.57(1)(j), Florida Statutes (1996 Supp.), an agency may reject or modify the conclusions of law and interpretations of administrative rules over which it has substantive jurisdiction. However, the agency may not reject or modify findings of fact made by the Administrative Law Judge 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 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 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.

FINDINGS OF FACT

The findings of fact set forth in the Recommended Order 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. Accordingly, the Commission on Ethics finds that the Respondent did not violate Section 112.313(6), Florida Statutes.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, March 6, 1997.

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Date

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Mary Alice Phelan

Chairman

YOU ARE NOTIFIED THAT YOU ARE ENTITLED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

cc: Mr. Mark Herron, Attorney for Respondent

Ms. Virlindia Doss, Commission's Advocate

Mr. Dory Funk, Jr., Complainant

Mr. J. Michael Horan, Complainant

Mr. Harry L. Parker, Complainant

Division of Administrative Hearings