BEFORE
THE
STATE
OF FLORIDA
COMMISSION
ON ETHICS
In re
FRANK RYSAVY, )
Respondent. ) Complaint No. 91-72
) DOAH Case No. 93-6539EC
) Final Order No. COE ____
___________________________)
This matter came before the Commission on
Ethics on the Recommended Order rendered in this matter on September 28, 1994
by the Division of Administrative Hearings' Hearing Officer (a copy of which is
attached and incorporated herein by reference). The Hearing Officer recommends that the Commission issue its
public report and final order finding that Respondent violated Section
112.313(6), Florida Statutes, by arranging for the employment of his son by the
Hillsboro Inlet Improvement and Maintenance District ("District") in
Broward County, and did not violate Section 112.313(6), Florida Statutes, by
pressuring the District's Dredge Captain and members of the District to rehire
his son and to make payments to his son.
She also recommends a civil penalty of $1,000 be imposed, as well as the
issuance of a public censure and reprimand.
The Respondent filed his exceptions on October 17, 1994. The Commission Advocate filed his Response
to Respondent's Exceptions on October 18 and his Amended Response on October
19, 1994. Thereafter, Respondent filed
his Motion to Strike the Advocate's Response because it does not contain any
exceptions and was not filed within the requisite fifteen (15) day period
within which to file exceptions.
Having reviewed the Recommended Order, the
Respondent's Exceptions, the Commission Advocate's Response and Amended
Response, the Respondent's Motion to Strike the Advocate's Response, and the
record of the public hearing of this complaint, and having heard arguments of
counsel for the Respondent and the Commission Advocate, the Commission makes
the following findings, conclusions, rulings, and recommendations:
STANDARDS FOR
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.
RULING ON THE RESPONDENT'S MOTION TO STRIKE COMMISSION
ADVOCATE'S RESPONSE TO RESPONDENT'S EXCEPTIONS
Commission Rule 34-5.022(2), F.A.C.,
permits the Respondent and the Commission Advocate 15 days after receipt of the
Recommended Public Report to file exceptions.
However, the rules are silent as to the filing of responses to the
exceptions. While they are not
specifically authorized, they also are not prohibited either.
Accordingly, after considering the
pleadings and arguments of the Commission Advocate and the Respondent, we
hereby deny the Respondent's Motion to Strike the Commission Advocate's
Response and Amended Response to Respondent's Exceptions.
1. Respondent
excepts to the Hearing Officer's use of Section 116.111, Florida Statutes
(Supp. 1987), to find that he violated Section 112.313(6), Florida
Statutes. He claims that such use
abrogated his due process rights.
Respondent writes that in finding that his
actions were inconsistent with the proper performance of his duties as Chairman
of the District, the Hearing Officer found that he violated Section 116.111,
which prohibited a public officer from advocating the appointment or employment
of a relative "to a position in the agency in which he is serving or over
which he exercises jurisdiction or control. . . ." Respondent argues that because Section
116.111 was not within the jurisdiction of the Commission until June 19, 1989, one year after he allegedly used
his position to secure a job for his son, the Hearing officer improperly
utilized this provision to find that his actions were inconsistent with the
proper performance of his public duties.
Respondent argues further that Section
116.111 did not provide for the imposition of any civil or criminal penalties
upon a finding of violation. Therefore,
a public official employing or advocating the employment of a relative in
violation of Section 116.111 is not subject to the penalty provisions of
Section 112.317, Florida Statues. He
also contends that "the Hearing Officer improperly 'bootstrapped' the anti-nepotism law into the Code of Ethics, thereby denying
him his right to procedural due process.
Finally, Respondent charges, in our
probable cause finding, which for all intents and purposes forms the
"charging document," we found probable cause to believe that the
Respondent violated Section 112.313(6), Florida Statutes, not Section 116.111. Furthermore, during the course of the
hearing, there was no indication that Section 116.111 would play any role in
the disposition of the case. Therefore,
in utilizing Section 116.111 to reach her decision, the Hearing Officer
essentially permitted an amendment to the charging document after the hearing
had concluded. He claims that even if
it is assumed that Section 116.111 (1987) could somehow form the basis of the
charge against him, the Hearing Officer improperly denied him an opportunity to
investigate the charge and prepare a defense.
Respondent's exceptions are rejected.
Prior to the transfer of the anti-nepotism
law (Section 116.111, Florida Statutes (1987)) into the Code of Ethics, the
Commission assumed investigative jurisdiction over alleged violations of
Section 116.111 under its constitutional authority to investigate complaints
relating to breach of the public trust.
[Article II, Section 8(f), Florida Constitution.] However, the Commission was divested of
jurisdiction over violations of law outside of Chapter 112, Florida Statutes,
allegedly committed by public officials by Chapter 91-85, Laws of Florida,
which limited the definition of "breach of the public trust" to
violation of a provision of the State Constitution or Part III of Chapter 112, Florida
Statutes. Therefore, the Commission has
no jurisdiction over the alleged charge of nepotism as a "breach of the
public trust" because the hiring of Charles Rysavy, Respondent's son, took
place prior to the transfer of Section 116.111 into Chapter 112, and the
Commission has been divested of jurisdiction over such charges of breaches of
the public trust that do not fall within either the State Constitution or
Chapter 112, Florida Statutes.
However, "breach of the public
trust" is not what is charged here.
Respondent is charged with misusing his position in violation of Section
112.313(6). In State Commission on
Ethics v. Sullivan, 430 So. 2d 928 (1st DCA 1983), the Court recognized the
propriety of the Commission determining that a violation of Section 116.111 may
be a violation of Section 112.313(6), Florida Statutes. The Court stated:
The "code of ethics as established in
[Chapter 112, Part III] refers to Section 112.313, which establishes standards
of conduct for public officers and employees of agencies. The operative question then becomes whether
violations of Sections 99.102 and 116.111 may be determined to be violations of
Section 112.313. We hold that they may
be.
. . . . . .
The prohibition against misuse of public
office sweeps widely. Generically, it
encompasses any misuse of office by a public officer or employee "to
secure a special privilege, benefit, or exemption for himself or
others." The prohibited misuse of
public position might or might not be a violation of another statute. See, for example, DeBusk v. Smith,
390 So. 2d 327 (Fla 1980), where the complaint involved the corrupt use of a
public office to secure a special privilege, benefit or exemption for another
by causing the alteration and falsification of copies of public documents in
violation of Section 112.313(4), Florida Statutes (Supp 1974), the predecessor
to Section 112.313(6), Florida Statutes (Supp. 1980).
Id. at 934.
Accordingly,
we find that the Hearing Officer properly utilizes Section 116.111 to find that
Respondent's action were inconsistent with the proper performance of his public
duties. Furthermore, because Respondent
was charged with a violation of Section 112.313(6), for which a penalty can be
imposed pursuant to Section 112.317, Florida Statutes, rather than with
violating Section 116.111, we find that there is nothing improper about the
Hearing Officer recommending the imposition of a penalty against the Respondent
upon finding that he violated Section 112.313(6), one of the elements of which is
that Respondent's actions were inconsistent with the proper performance of his
public duties. This element could and
was properly proven by the Commission Advocate's proving that Respondent
violated Section 116.111 (Supp. 1987).
Finally, we reject Respondent's contention
that he had no notice that Section 116.111 would form the basis of the charge
against him. Respondent was aware of
the factual allegations made in the initial complaint, as well as the statutory
violations alleged. He also was aware
that while the allegation that he violated Section 116.111 was found to be
insufficient to form a possible violation of the Code of Ethics, because such a
charge was no longer defined as a "breach of trust" over which the
Commission exercises jurisdiction, the same factual allegations were found to
be sufficient to allege a possible violation of Section 112.313(6). State Commission on Ethics v. Sullivan,
supra, was referenced.
Respondent also was aware that the Commission Advocate, in making her
recommendation that probable cause be found to believe that a violation of
Section 112.313(6) occurred, was relying on the same facts that were initially
alleged--that Respondent misused his office by "arranging for the
employment of his son, Charles Rysavy, by the HIIMD." Furthermore, we adopted this recommendation
in our Order Finding Probable Cause.
Accordingly, we find that Respondent had adequate notice of the charges
against him. Because these proceedings
complied with the essential requirements of law, Respondent's exception is
rejected.
Respondent's claim that he had absolutely
no indication that the employment of his son was prohibited, conflicts with the
Hearing Officer's conclusion in paragraph 26 of her Conclusions of Law that
Respondent used his position to secure a job for his son with wrongful
intent. Her conclusion apparently is
inferred from the following facts:
1. When Captain Decou told [Respondent]
that [he] should notify his son that he was being hired, [Respondent] told
DeCou that DeCou should tell Charles Rysavy that he was hired. (Finding of Fact No. 9.)
2. When [Respondent] telephoned the two
Board members and told them that Captain DeCou had hired his son, he did not
mention that he had advised Captain DeCou to hire Charles Rysavy. (Finding of Fact No. 11.)
3. When
[Respondent] sent the Board members a memorandum telling them of the pending
employment of his son, he couched the memorandum so that it appeared that it
was Captain DeCou's idea to hire Charles Rysavy and not [his]. (Finding of Fact No. 12.)
We are
cognizant of the Court's admonition in Blackburn v. State Commission on
Ethics, 589 So. 2d 431 (Fla. 1st DCA 1991) that an essential element of
Section 112.313(6) is a finding that Respondent acted with reasonable notice
that his conduct was inconsistent with the proper performance of his public
duties and would be a violation of the law or the Code of Ethics. Additionally, the determination that
Respondent acted with corrupt intent essentially is a question of fact. See, Heifetz, supra, at 1282. ("Characteristically, whether one is
guilty of negligence is a question for the trier of fact" even where the
finding has been stated in terms of conclusion of law.) See also Dobry v. State, 211 So. 2d
603 (Fla. 3d DCA 1968). Intent is
seldom susceptible of direct proof but is usually shown by circumstantial
evidence. Busch v. State, 466
So. 2d 1075 (Fla. 3d DCA 1984), Williams v. State, 239 So. 2d 127 (Fla.
4th DCA 1970). Where the evidence will
support conflicting findings, it is the hearing officer's role to decide the
issue one way or the other (Heifetz, at 1281), as she did here. Thus, we find that it was entirely proper
and within the Hearing Officer's function to draw permissible inferences from
the evidence, such as the inference of deception on the part of the Respondent,
which is indicative of his knowledge that the hiring of his son was wrong. It is not our function to reweigh the
evidence or to rewrite the Hearing Officer's findings as long as there is
competent substantial evidence to support the findings, as there is here.
2. Respondent excepts to paragraph 9 of the Hearing
Officer's Findings of Fact, wherein she finds that Respondent directed the
hiring of Charles Rysavy. He argues
that this finding is not supported by competent substantial evidence. We disagree.
In support of his argument, Respondent
claims that Captain DeCou was the only witness who claimed that Respondent had
advocated the hiring of Charles Rysavy.
He also claims that Respondent and Charles Rysavy both denied that
Respondent was aware that Charles Rysavy was seeking a position on the
Dredge. Therefore, he insists, the
Hearing Officer's conclusions could not have been based on a preponderance of
the evidence in that the greater weight of the evidence does not support the
Hearing Officer's conclusion. However,
contrasted with Respondent's claims are Findings of Fact No. 13, wherein the
Hearing Officer found from Andrew Potter's testimony that although Mr. Potter
normally participated in hiring personnel for the dredge, he did not
participate in the hiring of Charles Rysavy, and Finding of Fact No. 12,
wherein the Hearing Officer found that Respondent notified the Board through a
September 3, 1988 memorandum that Captain DeCou planned to hire his son. These findings, along with Captain DeCou's
testimony, apparently persuaded the Hearing Officer that Respondent, in fact,
did know prior to Charles Rysavy being hired by the District that he was
seeking a position on the Dredge.
As stated by the court in Heifetz v.
Department of Business Regulation, Division of Alcoholic Beverages &
Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985):
It is the hearing officer's function to
consider all the evidence presented, resolve conflicts, judge credibility of
witnesses, draw permissible inferences from the evidence, and reach ultimate
findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc.,
115 So. 2d 566 (Fla. 3d DCA 1959). If,
as is often the case, the evidence presented supports two inconsistent
findings, it is the hearing officer's role to decide the issue one way or the
other.
It is not our function to reweigh the
evidence as long as there is competent substantial evidence to support the
Hearing Officer's findings as there is here.
Inasmuch as the Hearing Officer fulfilled her function of weighing the
evidence, judging the credibility of the witnesses, and drawing permissible
inferences from the evidence, we are not free to supplement her findings and we
decline to do so. As the Court also
stated in Manasota 88, Inc. v. Tremor, 545 So. 2d 439 (Fla. 2d DCA 1989):
Agency fact-finding independent of and
supplementary to D.O.A.H. proceedings has been specifically disapproved. See e.g. Friends of
Children v. Department of Health and Rehabilitative Services, 504 So. 2d
1345 (Fla. 1st DCA 1987).
Respondent's exception
is rejected.
3. Respondent
excepts to the Hearing Officer's conclusion that Respondent violated Section
112.313(6). He claims that Charles
Rysavy was qualified for the position of deck hand and dredge operator. He argues that because Section 116.111,
Florida Statutes, can not be considered in determining that Respondent violated
Section 112.313(6), the Hearing Officer was required to find that, at the time
that Respondent spoke with Captain DeCou, he knew that Charles Rysavy did not
have the necessary qualifications for the position for which he was being
hired. He argues that without knowledge
of Charles Rysavy's lack of qualifications for the position, it cannot be shown
that Respondent intended to secure a special privilege or benefit for his son
or that he acted for the purpose of benefitting him. For the reasons stated in paragraph 1 above, Respondent's
exception is rejected.
Respondent also excepts to the Hearing
Officer's Findings of Fact Nos. 6 and 7.
For the reasons stated in paragraph 2 above, these exceptions are
rejected. As stated above, it is the
function of the hearing officer to resolve conflicts, to judge credibility of
witnesses, to draw permissible inferences from the evidence, and to reach
ultimate findings of fact based on competent substantial evidence, as she did
here. It is not our function to reweigh
the evidence as there is competent substantial evidence to support the Hearing
Officer's findings. Inasmuch as the
Hearing Officer fulfilled her function of weighing the evidence, judging the
credibility of witnesses, and drawing permissible inferences from the evidence,
Respondent's exceptions are rejected.
4. Respondent
excepts to the Hearing Officer's utilization of Section 116.111, Florida
Statutes (Supp. 1987), in concluding that he acted "corruptly" within
the meaning of Section 112.313(6), Florida Statutes. He argues that in order to sustain the Hearing Officer's
conclusion that Respondent's actions were inconsistent with the proper
performance of his public duties, we must find that Respondent acted in
contravention of accepted policy, and since the Hearing Officer found that the
District did not have a policy, even if Respondent did advocate the hiring of
his son, a violation of Section 112.313(6) cannot be found.
Initially, we note, contrary to
Respondent's assertion, that the Hearing Officer utilized Section 116.111 to
find that Respondent's actions were inconsistent with the proper performance of
his public duties, not that he acted "corruptly.". Her conclusion that he acted with
"wrongful intent" and thereby "corruptly" was inferred from
his lack of candor, and forthrightness in having Captain DeCou inform Charles
that he was being hired, and with respect to his telephone conversations with
two of the Board members, and in his memorandum to the Board members.
For the reasons stated in paragraph 1
above, Respondent's exception is rejected.
Upon review of the record before us, we
conclude that the findings of the Hearing Officer are based upon competent
substantial evidence and that the D.O.A.H proceedings complied with the
essential requirements of law.
Therefore, the Findings of Fact set forth in the Recommended Order are
approved, adopted, and incorporated herein by reference.
The Conclusions of Law set forth in the
Recommended Order are approved, adopted, and incorporated herein by reference.
Accordingly, the Commission on Ethics finds
that the Respondent violated Section 112.313(6), Florida Statutes, by arranging
for the employment of his son with the District, and did not violate Section
112.313(6), Florida Statutes, by pressuring Captain DeCou and members of the
District to rehire his son and to make payments to him.
The Hearing
Officer recommended that Respondent be required to pay a civil penalty of
$1,000.00 restitution and that he be publicly censured and reprimanded. We find her recommendation to be
appropriate.
Pursuant to
Sections 112.317(1) and 112.324(4), Florida Statutes, it is the recommendation
of the Commission on Ethics that the Respondent be publicly censured and
reprimanded and that a civil penalty in the amount of $1,000 be imposed against
him.
ORDERED by the
State of Florida Commission on Ethics meeting in public session on Thursday,
December 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, 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.
cc: Mr. Andrew B. Potter, Complainant
Mr. Sam Goren and Mr. Leonard Rubin,
Attorneys for Respondent
Mr. Marty Moore, Commission Advocate
Honorable Susan B. Kirkland, Hearing
Officer
Division of Administrative Hearings