COMMISSION ON ETHICS
In re RUDOLPH "RUDY" BRADLEY, )
Respondent. ) Complaint No. 04-162
) DOAH Case No. 07-0321EC
) COE Final Order No. 07-067
On June 11, 2007, the Division of Administrative Hearings (“DOAH”) submitted a Recommended Order (“RO”) to the Florida Commission on Ethics (“COE”) in this administrative proceeding, a copy of which is attached hereto as Exhibit A. Copies of the RO were furnished to Rudolph "Rudy" Bradley ("Respondent") and to the Commission's Advocate. The Respondent filed Exceptions to the RO on June 26, 2007. The Commission's Advocate filed a Response to Respondent's Exceptions on July 2, 2007. The matter is now before the Commission for final agency action.
This matter began with the filing of a complaint on August 10, 2004 by James H. Monroe alleging that the Respondent, Rudolph "Rudy" Bradley, as a member of the Public Service Commission, violated Section 350.042, Florida Statutes. The allegations were found to be legally sufficient to allege a possible violation of this provision and Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On April 26, 2006, the Commission on Ethics issued an order finding probable cause to believe that the Respondent had violated Section 350.042, Florida Statutes, by receiving an ex parte communication from a utility company regarding a matter that was being considered in a PSC proceeding, and failing to place the communication on the record within 15 days of its receipt. The matter was then forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge (ALJ) to conduct the formal hearing and prepare a recommended order, and a formal evidentiary hearing was held before the ALJ on April 5, 2007.
After the filings of the final hearing transcript and the Respondent's and the Advocate's post-hearing submittals, the ALJ entered the RO now on agency review.
THE RECOMMENDED ORDER
In the RO the ALJ concluded that the Respondent, while a Public Service Commissioner, violated Section 350.042, Florida Statutes, by knowingly receiving an ex parte communication relative to the merits of an issue in a proceeding to which he was assigned; and knowingly failing to place on the record that communication within 15 days of the date of his receipt of such communication. The ALJ recommended a civil penalty of $5,000 for Respondent's violation of Section 350.042, Florida Statutes.
STANDARDS OF ADMINISTRATIVE REVIEW
Under Section 120.57(1)(l), Florida Statutes, an 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
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 only the conclusions of law over which it has substantive jurisdiction and the interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusions of law or interpretations of its administrative rules, the agency must state with particularity its reasons for rejecting or modifying such conclusions of law or interpretations of administrative rules 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 RO, the record of the proceeding, the exceptions filed by Respondent and the Advocate's responses thereto, and having heard the arguments of counsel, the Commission makes the following findings, conclusions, rulings and recommendations.
RESPONDENT'S EXCEPTIONS TO FINDINGS OF FACT
Exception No. 1
In his Exception to Findings of Fact 14, 17, 24, and 25, Respondent contends that there is no evidence in the record which shows that he knowingly received an ex parte communication from a utility company. He then urges the Commission to reject these Findings of Fact and enter a new Finding of Fact that reaches the opposite conclusion.
The Advocate, in response, cites to the considerable record evidence that supports Findings of Fact 14, 17, 24, and 25.
Without reiterating the Advocate's lengthy and detailed cites to the record in support of the challenged Findings, we conclude that there is competent and substantial evidence in the record to support Findings of Fact 14, 17, 24, and 25.
Exception No. 2
The Respondent takes exception to Conclusion of Law 31, claiming that there is no evidence in the record which shows that he knowingly received an ex parte communication from a utility company. He urges the Commission to reject Conclusion of Law 31 and, in its place, substitute a contrary conclusion that Respondent did not violate Section 350.042, Florida Statutes.
In his Response, the Advocate discusses the limitations on an agency's ability to reject or modify conclusions of law, and cites to Goin v. Commission on Ethics, 658 So.2d 1131, 1138 (Fla. 1st DCA 1995), where the Commission was reversed for rejecting a finding of fact by characterizing it as a conclusion of law.
Conclusion of Law 31 is a question of ultimate fact and, based upon our review of the record, we conclude that not only is there competent substantial evidence to support it, it is legally correct. Therefore, the Respondent's Exception to Conclusion of Law 31 is denied.
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 a member of the Public Service Commission, violated Section 350.042, Florida Statutes, by knowingly receiving an ex parte communication relative to the merits of an issue in a proceeding to which he was assigned; and failing to place on the record that communication within 15 days of the date of his receipt of such communication.
The ALJ's recommendation of $5,000 as a civil penalty for Respondent's violation of Section 350.042, Florida Statutes, is accepted.
In consideration of the foregoing and pursuant to Section 350.042(7)(a), Florida Statutes, which imposes a duty on the Commission to receive and investigate sworn complaints alleging violations of Section 350.042, Florida Statutes, in accordance with the procedures set forth in Sections 112.322--112.3241, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, RUDOLPH "RUDY" BRADLEY, in the total amount of $5,000.
DONE and ORDERED
by the State of
Albert P. Massey, III
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. Wilson Jerry Foster, Attorney for Respondent
Mr. James H. Monroe, Complainant
The Honorable Don W.
Division of Administrative Hearings