BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

 

 

In re JOHN L. CARTER,†††† ††††††††††† )

††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††† )†††††††††††††††††††††††††††††††††††††††††††††† Complaint No. 02-018

††††††††††† Respondent.††† ††††††††††††††††††††††† )†††††††††††††††††††††††††††††††††††††††††††††† DOAH Case No. 03-2963EC

††††††††††††††††††††††††††††††††††† ††††††††††† ††††††††††† )

††††††††††††††††††††††††††††††††††† ††††††††††† ††††††††††† )†††††††††††††††††††††††††††††††††††††††††††††† Final Order No. 04-058

______________________________)

 

 

FINAL ORDER AND PUBLIC REPORT

 

 

††††††††††† This matter came before the State of Florida Commission on Ethics, meeting in public session on Friday, April 23, 2004, to consider the Recommended Order rendered by the Division of Administrative Hearings' Administrative Law Judge on March 2, 2004.

BACKGROUND

††††††††††† This matter began with the filing of a complaint on February 13, 2002, by Eugene Danaher alleging that the Respondent, John L. Carter, Director of TalTran for the City of Tallahassee, had failed to file financial disclosure for a number of years as required by Section 112.3145, Florida Statutes.† The allegations were found to be legally sufficient to allege a possible violation of the Code of Ethics and Commission staff undertook a preliminary investigation to aid in the determination of probable cause.† On October 30, 2002, the Commission on Ethics issued an order finding probable cause to believe that the Respondent had violated Section 112.3145, Florida Statutes, by failing to file a CE Form 1 for the calendar years 1996, 1997, and 1998. The matter was then forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge (ALJ) to conduct a hearing and prepare a recommended order.† The formal hearing was held on November 4, 2003.† A transcript was filed with the ALJ and both parties timely filed proposed recommended orders.† The ALJís Recommended Order was transmitted to the Commission and to the parties on March 3, 2004, and the parties were notified of their right to file exceptions to the Recommended Order.† Thereafter, the Respondent filed exceptions to the ALJís Recommended Order and the Advocate filed a Response to the Respondentís exceptions. ††

††††††††††† The matter is now before the Commission for final agency action.

STANDARDS FOR REVIEW

††††††††††† Under Section 120.57(1)(l), 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 ALJ 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 ALJ.† 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 ALJ, the Commission is bound by that finding.

††††††††††† Under Section 120.57(1)(l), Florida Statutes, an agency 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.

††††††††††† Having reviewed the Recommended Order and the entire record of the proceeding, the Respondentís exceptions and the Advocate's response thereto, and having heard the arguments of counsel, the Commission makes the following findings, conclusions, rulings and recommendations.

RULINGS ON EXCEPTIONS

††††††††††† The Respondent took exception to the ALJ's findings imposing liability upon the Respondent for his failure to file the CE Form 1 for the years 1996, 1997, and 1998, as well as all findings supporting the conclusion of law in Paragraph 24.† If this is to be construed as a "general exception" as suggested by the Advocate in his response, it is rejected for its failure to state with particularity any basis for rejecting the ALJ's findings of fact and conclusions of law.

††††††††††† The Respondent's more detailed exceptions then challenge Findings of Fact 2 and 7, claiming they are not based upon competent substantial evidence.† Our review of the record reveals competent substantial evidence to support these findings.† Therefore, the Respondent's exceptions "1A" and "1B" are rejected.

††††††††††† Respondent's conclusory exception to Conclusions of Law 24, 25, and 26 are rejected, for the same reason we rejected his "general exception" to all findings of fact supporting Conclusion of Law 24.

††††††††††† Respondent's exceptions denoted "2A" and "2B" except to Findings of Fact 5 and 8, suggesting that neither is based upon competent substantial evidence.† Again, the Advocate in his Response provides ample record support for the ALJ's findings in this regard.† Accordingly, we reject the Respondent's exceptions to Findings of Fact 5 and 8.†

The remainder of the exceptions appears to be the Respondent's view of the evidence and how he would re-write the Recommended Order if he had the latitude to do so.† Notwithstanding Respondent's wishful thinking, Heifetz, supra, precludes the Commission from even entertaining the thought of doing what Respondent suggests.† †Thus, Respondent's invitation to the Commission to reweigh the evidence and make findings contrary to those made by the ALJ is rejected.† ††††††

FINDINGS OF FACT

††††††††††† The Findings of Fact as set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

CONCLUSIONS OF LAW

††††††††††† 1.†††††††† The Conclusions of Law as set forth in the Recommended Order are approved, adopted, and incorporated by reference.

2.†††††††† Accordingly, the Commission on Ethics concludes that the Respondent, as Director of the City of Tallahassee's Transportation Department (Taltran), violated Section 112.3145, Florida Statutes, by failing to file his CE Form 1, Statement of Financial Interests, for calendar years 1996, 1997, and 1998.

††††††††††††††††††††††††††††††††††††††††††††††††††† RECOMMENDED PENALTY

The ALJ=s recommendation of $1,500 as a civil penalty for Respondent=s violation of Section 112.3145, Florida Statutes, is accepted.†

In consideration of the foregoing and pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, John L. Carter, in the total amount of $1,500.

DONE and ORDERED by the State of Florida Commission on Ethics meeting in public session on April 23, 2004.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Date Rendered

 

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Richard L. Spears

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Chair

 

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, 3600 Maclay Boulevard South, Suite 201, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; 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. Bruce Minnick, Attorney for Respondent

††††††††††† Mr. James H. Peterson, III, Commission Advocate

††††††††††† Mr. Eugene Danaher, Complainant

††††††††††† The Honorable Jeff B. Clark, Administrative Law Judge

††††††††††† Division of Administrative Hearings