BEFORE
THE
STATE
OF FLORIDA
COMMISSION
ON ETHICS
In re GEORGE STUART, )
)
DOAH Case No. 93-0044EC
Respondent. ) Complaint No. 90-250
) COE Final Order No. 94-01
)
_________________________)
FINAL
ORDER AND PUBLIC REPORT
On August 10, 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. On August 27, 1993, Respondent timely filed
exceptions to the Recommended Order.
The Commission's Advocate submitted her Response to Exceptions on
September 23, 1993. The matter
thereafter came before the Commission on Ethics for final agency action.
This matter began with the filing of a
complaint by Ken Muszynski and James Muszynski, alleging that George Stuart had
violated Article II, Section 8(e), Florida Constitution, by personally
representing his private employer for compensation before the Orlando-Orange
County Expressway Authority while serving as a State Senator. The allegations were found to be legally
sufficient to allege a possible violation of Article II, Section 8(e), Florida
Constitution, and Commission staff undertook a preliminary investigation to aid
in the determination of probable cause.
On June 10, 1992, 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 hearing was held
on April 19, 1993, and the parties then filed proposed recommended orders with
the Hearing Officer. The Recommended
Order was transmitted to the Commission and the parties on August 10, 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. Respondent timely filed exceptions on August
27, 1993, and the Commission's Advocate submitted her Response to Exceptions on
September 23, 1993.
The Respondent filed exceptions to the
Hearing Officer's conclusions of law.
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 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. Respondent
takes exception to the Hearing Officer's legal conclusion that the
Orlando-Orange County Expressway Authority is a "state agency" for
purposes of Article II, Section 8(e), Florida Constitution. Because we believe that the Hearing
Officer's conclusion is legally correct, Respondent's exception is denied.
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 violated Article II, Section
8(e), Florida Constitution.
The Hearing Officer recommended no penalty
be imposed because there is no authority for a penalty. The Hearing Officer is legally correct. The Commission is without statutory
authority to recommend a penalty against the Respondent. Thus, the Commission finds that the
Respondent, George Stuart, as a member of the Florida Senate, violated Article
II, Section 8(e), Florida Constitution, as described herein, and hereby issues
its Public Report and Final Order.
ORDERED by the State of Florida Commission
on Ethics meeting in public session on Thursday, January 27, 1994.
______________________________
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. W. Dexter Douglass, Attorney for
Respondent
Ms. Virlindia Doss, Commission's Advocate
Mr. Ken Muszynski, Complainant
Mr. James Muszynski, Complainant
Division of Adminstrative Hearings