STATE OF FLORIDA
COMMISSION ON ETHICS
) Complaint Nos. 96-171 & 96-243
WELLINGTON ROLLE, ) DOAH CASE Nos. 98-0370EC & 98-0371EC
) Complaint Nos. 96-169 & 96-242
JOHN RILEY, ) DOAH CASE Nos. 98-0372EC & 98-0373EC
_______________________) COE FINAL ORDER NO. 98-32
On October 8, 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, Respondents Wellington Rolle and John Riley, and the Commission’s Advocate, Virlindia Doss. A copy of the Recommended Order is incorporated herein by reference.
The Commission’s Advocate timely filed Exceptions to the Recommended Order, and no response was submitted by either Respondent. 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.
Although an agency has only limited authority to reject an ALJ’s findings of fact, the agency has greater latitude in modifying conclusions of law. However, we are mindful, as the First District Court of Appeal pointed out to us in Goin v. Commission on Ethics, 658 So.2d 1131 (Fla. 1st DCA 1995), that we are not permitted to characterize a finding of fact as a conclusion of law in order to circumvent the requirements of Section 120.57(1)(j), Florida Statutes. Notwithstanding, it is incumbent upon us to correct erroneous legal conclusions in matters over which we have jurisdiction.
1. The Advocate first excepts to the ALJ’s Conclusions of Law 44, 45, and 46. In that regard, the Advocate contends that in Conclusion of Law 44 the ALJ erred in concluding that “it must be shown that the Respondents acted with ‘specific intent’ to misuse their public position.” The Advocate’s exception to Conclusion of Law 44 is accepted. Although a violation of Section 112.313(6), Florida Statutes, requires a showing that the official acted “corruptly,” it does not require a showing that the official acted with specific intent to misuse his or her public position. Accordingly, the Advocate’s exception to Conclusion of Law 44 is accepted.
However, we find no error in the ALJ’s quote from the Blackburn decision, and therefore reject the Advocate’s suggestion that Conclusion of Law 45 be stricken from the Recommended Order.
Finally, with regard to the Advocate’s contention that the ALJ misconstrued the holding of Blackburn in Conclusion of Law 46, while we agree with the Advocate’s analysis of Section 112.313(6) as well as the Blackburn decision, we do not view the ALJ’s statements in Conclusion of Law 46 as erroneous or legally incorrect. Therefore, the Advocate’s exception to Conclusion of Law 46 is denied.
2. In her next exception, the Advocate excepts to the following statement in Conclusion of Law 47: “These appointments were never rescinded by City Manager Whitt while he continued in office.” The Advocate suggests that this finding, while true, has no legal significance. As the Advocate knows, no transcript of the hearing before the ALJ was prepared and we do not have the complete record before us. Moreover, our ability to go back and review the significance or relevance of the ALJ’s finding, although labeled a conclusion of law, is limited by Section 120.57(1)(j), Florida Statutes. For the foregoing reasons, the Advocate’s exception to Conclusion of Law 47 is denied.
3. Excepting to Conclusion of Law 49, the Advocate requests in her third exception that we strike wording that reads: “Therefore, there was no notice to Respondents that their acceptance of paychecks personally signed by their boss was improper and would violate the Code of Ethics.” The Advocate contends that a respondent does not have to be specifically advised that his contemplated actions will violate the Code of Ethics in order to be found in violation of Section 112.313(6). We agree with the Advocate’s contention and accept her exception to Conclusion of Law 49.
4. In her fourth exception, the Advocate requests that we make an additional legal conclusion addressing the relevance, or not, of actions taken by the State Attorney prior to the filing of the complaints herein or actions of this Commission in dismissing a related complaint against another respondent. Although we are reluctant to assign weight or significance to findings of fact made by the ALJ when we do not have the complete record before us, we agree with the Advocate that, notwithstanding any action by the State Attorney or by this Commission in a related proceeding, the decision to go forward with a complaint is entirely within the discretion of the State Attorney or this Commission acting in its prosecutorial role, and the decision not to prosecute is not probative of whether the acts alleged did or did not take place. However, rather than supplement the ALJ’s conclusions with an additional conclusion of law, we believe that it is sufficient to so hold in ruling on the Advocate’s exception. Therefore, the Advocate’s fourth exception is granted in part, and denied in part.
1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
1. The Conclusions of Law set forth in the Recommended Order, except as modified and explained herein, are approved, adopted, and incorporated by reference.
2. Accordingly, the Commission on Ethics finds that Respondent Wellington Rolle, as the former Director of Personnel for the City of Opa-Locka, and that Respondent John Riley, as the former Assistant City Manager for the City of Opa-Locka, did not violate Section 112.313(6), Florida Statutes, and hereby dismisses these complaints.
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: Mr. James H. Greason, Attorney for Respondents
Ms. Virlindia Doss, Commission Advocate
Mr. Earnie P. Neal, Complainant
Mr. Joseph Centorino, Esquire, Complainant
Division of Administrative Hearings