In re GORDON SANDS, Complaint No. 99-32
DOAH Case No. 00-0268FE
This matter was considered by the Commission on Ethics following receipt and consideration of the Recommended Order issued by the Administrative Law Judge (ALJ) from the Division of Administrative Hearings (DOAH), a copy of which is attached hereto.
This matter began with Caron Speas (Speas) filing a complaint and an amended complaint with the Commission on Ethics alleging that Gordon Sands (Sands) had violated the Code of Ethics for Public Officers and Employees. The complaints were dismissed by the Commission for lack of probable cause on December 2, 1999.
Thereafter, Sands timely petitioned for an award of attorney's fees and costs against Speas pursuant to Section 112.317(8), Florida Statutes. That petition was referred to DOAH and a formal hearing was held on May 2, 2000. The transcript of the hearing was filed with the ALJ on May 30, 2000, and the parties then filed proposed recommended orders. The ALJ's Recommended Order was transmitted to the Commission and the parties on September 7, 2000. The parties were notified of their right to file exceptions to the Recommended Order in accordance with Rule 28-106.217, Florida Administrative Code. Speas= exceptions were timely received on September 18, 2000. Sands= response to Speas= exceptions was filed sixteen days late.
The Administrative Procedures Act--Chapter 120, Florida Statutes--requires agencies to accept the ALJ=s findings of fact and conclusions of law, except under certain limited circumstances.
Section 120.57(1)(l), Florida Statutes (1999), provides the standard of review for findings of fact in the Recommended Order. It provides, in relevant part:
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 Commission cannot reweigh the evidence considered by the ALJ. The Commission cannot reject findings of fact made by the ALJ unless there is no competent substantial evidence in the record to support the findings. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); and Bay County School Board v. Bryan, 679 So.2d 1246 (Fla. 1st DCA 1996), construing a provision substantially similar to Section 120.57(1)(l), Florida Statutes (1998 Supp.)
The Commission also has limited authority to reject or modify the ALJ=s conclusions of law. Section 120.57(1)(l), Florida Statutes (1999), provides that:
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 over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.
The label assigned to a statement is not dispositive as to whether that statement is a conclusion of law or a finding of fact. Sapp v. Florida State Board of Nursing, 384 So.2d 254 (Fla.2d DCA 1980); Leapley v. Board of Regents, 423 So.2d 431 (Fla 1st DCA 1982); Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987). The obligation of the agency to honor the ALJ=s findings of fact may not be avoided by categorizing a contrary finding a Aconclusion of law.@ Goin v. Commission on Ethics, 658 So.2d 1131 (Fla. 1st DCA 1995).
1. Speas= first exception seems to be directed to the ALJ=s findings of fact (Paragraph 32) and conclusions of law (Paragraph 46) that Speas filed the complaint against Sands with a malicious intent to injure his reputation. Speas proceeds to argue for the next seven pages that she did not have a malicious intent and that this was proved by the fact that she did not publicly disclose that she had filed a complaint against Sands. In essence, Speas is asking the Commission to reweigh the evidence. Heifetz, supra, reminds us:
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.
As we have already noted, Section 120.57(1)(l), Florida Statutes, constrains our ability to reject or modify an ALJ=s findings of fact. Absent any argument that a finding is not supported by competent substantial evidence or that the proceedings did not comply with the essential requirements of law, the Commission cannot disturb the ALJ=s findings. Accordingly, Speas= exceptions on the findings of malicious intent are denied.
2. Speas= next group of exceptions attack the ALJ=s finding that Sands incurred attorney=s fees in the underlying complaint proceeding initiated by Speas. The ALJ found, in Paragraph 34, that Sand=s attorney had expended 43 hours on Sands= case and the related case involving Eileen McGuire and that one-half of that time was attributable to Sands= case. This finding is supported by competent substantial evidence. (T.169; Petitioner=s exhibit 5). We are not at liberty to reweigh the evidence as to the reasonableness of the fee or the portion of the fee that was attributable to the Sands case. Therefore, Speas= exceptions concerning the fee are denied.
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 are approved, adopted, and incorporated herein by reference.
2. In Paragraph 47 of her Recommended Order, the ALJ noted that the holding in Kaminsky v. Lieberman, 675 So.2d 261 (Fla. 4th DCA 1996), entitled the Petitioner to an award of fees and costs incurred to bring the matter to a conclusion before the Commission, not just the amount incurred up to the date of the formal administrative hearing before the ALJ, which then totaled $3050. However, the parties have not been able to stipulate to what that amount should be and, as the ALJ recognized, if they are not able to agree, an additional hearing must be conducted. Although we believe that this issue could have been resolved before the ALJ during the initial hearing had the parties produced evidence of the number of hours reasonably anticipated to be expended bringing this matter to a conclusion, under the holding of Kaminsky v. Lieberman, supra, we are required to remand this matter to the Division of Administrative Hearings because there remain disputed issues of material fact.
WHEREFORE, the Commission remands this case to the Division of Administrative Hearings for further evidentiary proceedings.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, November 17, 2000.
Howard S. Marks
cc: Mr. Allen C. D. Scott, II, Attorney for Respondent/Petitioner
Mr. Peter Ticktin, Attorney for Complainant/Respondent
Division of Administrative Hearings
The Honorable Carolyn S. Holifield, ALJ