BEFORE THE
STATE
OF FLORIDA
COMMISSION
ON ETHICS
In re HUGH HARLING, )
) DOAH
Case No. 92-4941 EC
Respondent.) Complaint No. 90-150
) COE
Final Order No. 93-__
___________________________)
On September 24, 1993, a Hearing Officer
from the Division of Administrative Hearings (DOAH) submitted to the parties
and the Commission her Recommended Order, a copy of which is attached hereto as
Exhibit "A". Neither the
Commission's Advocate nor the Respondent filed exceptions to the Recommended
Order. The matter thereafter came
before the Commission on Ethics for final agency action.
This matter began with the filing of a
complaint by Lawrence M. Furlong, alleging that Hugh Harling 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 112.3143(2)(b) and 112.3143(3), Florida
Statutes, and Commission staff undertook preliminary investigations to aid in
the determination of probable cause. On
July 24, 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. Thereafter, a formal, evidentiary hearing
was held before the Hearing Officer, a transcript of the hearing was filed, and
the parties then filed proposed recommended orders with the Hearing
Officer. The Recommended Order was
transmitted to the Commission and the parties on September 24, 1993, and the
parties were notified of their right to file exceptions to the Recommended
Order in accordance with Rule 34-5.022(2), Florida Administrative Code. Neither the Respondent nor the Commission's
Advocate filed exceptions.
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.
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. Accordingly,
the Commission on Ethics finds that the Respondent did not violate Sections
112.3143(2)(b) and 112.3143(3), Florida Statutes, and hereby dismisses this
complaint.
ORDERED by the State of Florida Commission
on Ethics meeting in public session on Thursday, December 2, 1993.
______________________________
Date
______________________________
Joel
K. Gustafson
Chairman
YOU ARE
NOTIFIED THAT YOU ARE ENTITLED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO
JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A
NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL,
AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE
PROCEDURE. THE NOTICE OF ADMINISTRATIVE
APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
cc: Mr. Michael L. Gore, Attorney for Respondent
Mr. Ken Wright, Attorney for Respondent
Mr. Bruce Minnick, Attorney for Respondent
Ms. Virlindia Doss, Commission's Advocate
Mr. Lawrence M. Furlong, Complainant
Division of Administrative Hearings