BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

In re WALTON NEEDHAM SEILER, )

)

Respondent. ) Complaint No. 86-71

) DOAH Case No. 94-1511EC

) Final Order No. COE 95-

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FINAL ORDER AND PUBLIC REPORT

On March 2, 1995, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to the Commission and the parties her Recommended Order, a copy of which is attached hereto. On March 30, 1995, the Commission received a copy of the Respondent Walton Needham Seiler's exceptions to the Recommended Order. No response to Respondent's exceptions was submitted by the Commission's Advocate. Thereafter, the matter came before the Commission for final agency action.

BACKGROUND

This matter began with the filing of a complaint by James W. Phillips, alleging that Walter Needham Seiler had violated the Code of Ethics for Public Officers and Employees. The allegations were found to be legally sufficient to allege possible violations of Sections 112.313(6), 112.313(7)(a), and 112.3145, Florida Statutes, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On April 21, 1991, the Commission on Ethics issued an order finding probable cause, and thereafter forwarded this matter to the Division of Administrative Hearings for conduct of a formal hearing and entry of a recommended order. The formal hearing before the Hearing Officer was held on December 27, 1994, and the parties timely filed proposed recommended orders with the Hearing Officer. The recommended order was transmitted to the Commission and the parties on March 2, 1995, and the parties were notified of their right to file exceptions to the recommended order with the Commission by March 23, 1995 in accordance with Rule 34-5.023, Florida Administrative Code. On March 30, 1995, the Respondent, pro se, filed exceptions to the Recommended Order but did not furnish the Commission with a transcript of the formal hearing before the DOAH Hearing Officer. The Commission's Advocate elected not to file a response to the Respondent's Exceptions. The matter is now before the Commission on Ethics for final agency action.

STANDARDS OF REVIEW

Under Section 120.57(1)(b)10, 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 Hearing Officer 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 hearing officer. 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 Hearing Officer, the Commission is bound by that finding.

RULINGS ON RESPONDENT'S EXCEPTIONS

Respondent's exceptions are denied as untimely. All parties were notified of their right to file exceptions with the Commission by March 23, 1995. A copy of Respondent's exceptions were received in the Commission's office on March 30, 1995, seven days late. Respondent neither sought an enlargement of the period in which to file exceptions, nor sought to demonstrate any good cause why late-filed exceptions should be considered. Therefore, Respondent's exceptions are denied as untimely. Redfern v. Department of Professional Regulation, 498 So. 2d 1313 (Fla. 1st DCA 1986); and In re Ingram, Kelley, and Whitt, 15 F.A.L.R. 1177, 1178 (Commission on Ethics Final Order entered December 8, 1992).

FINDINGS OF FACT

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 finds that the Respondent, Walton Needham Seiler, violated Sections 112.313(6), 112.313(7)(a), and 112.3145, Florida Statutes, as described herein.

RECOMMENDED PENALTY

In consideration of the foregoing, pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, Walton Needham Seiler, in the total amount of $5,500, and that he receive a public censure and reprimand for each violation.

ORDERED by the State of Florida Commission on Ethics meeting

in public session on Thursday, April 20, 1995.

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Date

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R. Terry Rigsby

Chairman

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.