91-120 Final Order and Public Report, In re PAUL MELOY, SR.

The Respondent filed exceptions to the Recommended Order, arguing that the Hearing Officer determined in paragraphs 10 and 29 of the Recommended Order that because the Respondent had in fact not completed the 280-hour firefighter course that was required for certification pursuant to Section 633.35, Florida Statutes, the Respondent filled out the special risk retirement application falsely. In addition, the Respondent argues that the Hearing Officer's determination, as characterized in the Respondent's exceptions, is erroneous because the application form signed by the Respondent (both in his capacity as employee/applicant and in his capacity as employer) conveyed, in both its employee and employer sections, an alternative representation that the applicant was "required to be certified." Apparently, the Respondent is arguing that his representations on the application were not untruthful because he was merely stating that he knew that an applicant was required to be certified (to have completed certain specific firefighter training) in order to enroll in the special risk retirement section of the Florida Retirement System, not that he was providing information that he was in fact so certified or was in fact the holder of a position that required its holder to be so certified or trained.

The Advocate for the Commission filed a response to the Respondent's exceptions and the Respondent filed a reply to the Advocate's response.

Because some of the Advocate's exhibits introduced at the DOAH hearing appear to be indexed or referred to in the transcript differently than they are labeled on their face, this final order will refer to three of the record items as follows: "G" for the deposition of Ira Gaines of the Division of Retirement; "M" for the deposition of the Respondent, Paul Meloy, Sr.; "App." for the special risk retirement membership application submitted by the Respondent. The remainder of the record will be referred to as designated by the Advocate or in a similar manner.

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.

Having reviewed the Recommended Order, the Respondent's exceptions, and the record of the public hearing of this matter that has been placed before the Commission, and having considered the arguments of the Respondent and the Advocate made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and recommendations:

Rulings on Respondent's Exceptions

The Respondent's exceptions do not accurately characterize the determinations of the Hearing Officer. The Hearing Officer did not determine that the Respondent misused his public position merely because he executed an application for special risk retirement membership and submitted the same to the Division of Retirement, and the Hearing Officer did not determine that the Respondent filled out the application falsely solely because he had not in fact completed the firefighter course that was required for certification pursuant to Section 633.35, Florida Statutes.

The Hearing Officer actually found, contrary to the Respondent's assertions in his exceptions, that the Respondent knowingly filed a false application because he knew that he did not qualify for special risk retirement either: (1) as a firefighter possessing a certain training certification or holding a position requiring a certain training certification and whose duties actually included firefighting as a rank and file firefighter, or (2) as the holder of such a firefighter position (a position requiring such training certification) whose duties included supervision or command of in-line firefighters rather than actual firefighting. See paragraphs 10 and 29 of the Recommended Order.

There is no dispute that the Respondent did not qualify for membership in the special risk section of the Florida Retirement System. See Joint Prehearing Stipulations filed by the parties, section E, 4, and paragraph 16 of the Recommended Order. Further, while the Hearing Officer did not find within the body of her Recommended Order that the Respondent did in fact supervise or command firefighters (special risk members) whose duties included on the scene fighting of fires, she did, in the Appendix to the Recommended Order, reject a proposed finding by the Advocate to the contrary, stating in the Appendix under number "6" that "[i]n practice both Mr. Tiner and [the Respondent] supervised the firefighters during on-the-scene fighting of fires." In addition, the applicable law provides that in order to participate in special risk retirement one must be certified as having received 280 hours of firefighter training or hold a position which requires the holder to have been so certified/trained and one's duties must include on-the-scene fighting of fires or supervision or command of special risk members whose duties include on-the-scene fighting of fires. (Sections 121.0515 and 633.35, Florida Statutes.)

Therefore, the central issue concerning the Respondent's exceptions is whether the Hearing Officer's determination that the Respondent's application for special risk retirement membership constituted a factual representation regarding the nature or status of his position of employment which he knew to be false (see RO, paragraphs 10, 11, 17, and 29), and her rejection of the contrary view that it constituted a representation by the Respondent conveying the Respondent's understanding that one had to possess certain firefighter training or certification in order to participate in special risk retirement (see RO, paragraph 11) are supported by competent substantial evidence. See Section 120.57(1)(b)10, Florida Statutes.

There is competent substantial evidence supporting the Hearing Officer's determination that the Respondent knowingly made false factual representations regarding the position he held in applying for special risk retirement. This evidence includes: App.; T, 25, 26, 27, 28, 29, 33, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 50, 51, 71, 72, 74, 75, 89, 90, 91, 94, 95, 96, 100, 101, 102, 105, 118, 119; G, 44-47, 20-22, 28-30, 49-50, 60-61; stip.; M, 10, 11, 12, 20-21, 23-24, 26, 65, 33-34, 15-16; Advocate's Exhibit 4; Advocate's Exhibit 7; admissions of Respondent incorporated into his deposition; Stipulation, E,4.

The Hearing Officer thus was correct and within her role as the judge of the credibility of witnesses to reject the Respondent's testimony as to his understanding of the representations made upon his special risk retirement application and to find, based upon competent substantial evidence, that the Respondent intentionally made factual representations in his application for special risk retirement membership which he knew were not true.

Therefore, the exceptions are rejected.

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. The Commission finds that the Respondent, Paul Meloy, Sr., violated Section 112.313(6), Florida Statutes, by attempting to use his position as Volunteer Fire Chief of the Alva Fire Protection and Rescue Service District to obtain for himself a special benefit (special risk membership in the Florida Retirement System).

3. The Commission finds that the Respondent did not violate Section 112.313(6), Florida Statutes, regarding retirement benefits for the Assistant Fire Chief.

RECOMMENDED PENALTY

Pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission on Ethics hereby recommends that a civil penalty of $500.00 (five hundred dollars) be imposed upon the Respondent and that he be publicly censured and reprimanded. The civil penalty is reduced from the amount recommended by the Hearing Officer because the record reveals that the Respondent served as an unpaid volunteer who only received expenses rather than salary for many years and never received any State retirement benefit payments.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, September 1, 1994.

____________________________

Date Rendered

_______________________________

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, 2822 REMINGTON GREEN CIRCLE, SUITE 101, TALLAHASSEE, FLORIDA 32308; OR P. O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF 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. John H. Shearer, Jr., Attorney for Respondent

Ms. Virlindia Doss, Commission Advocate

Mr. George A. Henderson III, Complainant

Division of Administrative Hearings