STATE OF FLORIDA
COMMISSION ON ETHICS
JERRY ATTERSON, MICHAEL J. MAHLER, ) Complaint Nos. 95-64, 95-66, and 95-68
and CHARLES L. SADDLER, III, )
Petitioners, ) DOAH Case Nos. 96-5214FE
vs. ) 96-5215FE
CARROLL G. ALLEN and )
WILLIS D. CONNER, ) COE Final Order No. 98-38
FINAL ORDER GRANTING PETITION
AWARDING ATTORNEY’S FEES AND COSTS
On October 12, 1998, an Administrative Law Judge (“ALJ”) for the Division of Administrative Hearings submitted her Recommended Order to the Commission on Ethics and the parties to the proceeding, Petitioners Atterson, Mahler, and Saddler, and Respondents Allen and Conner. A copy of the Recommended Order is incorporated herein by reference.
The parties were notified of their right to file exceptions, but no exceptions were filed. The matter is now before the Commission for final agency action.
Section 120.57(1)(j), Florida Statutes (1997), furnishes the standard of review that governs the Commission’s final action on the Recommended Order. It states:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order 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 on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.
We are also reminded of what the First District Court of Appeal said in Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985), when it wrote:
It is the hearing officer’s (now Administrative Law Judge’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. State Beverage Department v. Ernal, Inc., 115 So.2d 566 (Fla. 3d DCA 1959). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer’s role to decide the issue one way or the other. The agency may not reject the hearing officer’s finding unless there is no competent substantial evidence from which the finding could not be reasonably inferred. The agency is not authorized to weigh the evidence presented, judge the credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.
Heifetz, at 1281.
1. 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 concludes that the reasonable amount of attorney’s fees incurred by the Polk County Board of County Commissioners on behalf of Petitioners Atterson, Mahler, and Saddler is $9,012.50, and the reasonable amount of costs incurred is $604.
WHEREFORE, the Commission on Ethics finds that Complainants Carroll G. Allen and Willis D. Conner are liable for attorney’s fees and costs in the amount of $9,616.50, and hereby orders that Respondents pay such fees and costs to the Polk County Board of County Commissioners.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1998, in Tallahassee, Florida.
Charles A. Stampelos
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: Ms. Karla Foreman Wright, Attorney for Petitioners
Mr. Joseph N. Baron, Attorney for Respondents
Division of Administrative Hearings