BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re WILLIAM
HARRISON, )
)
Respondent. ) Complaint
No. 92-148
) Final
Order No. COE ____
)
__________________________)
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on
Ethics on the Recommended Order rendered in this matter on December 7, 1994 by
the Division of Administrative Hearings (DOAH) [a copy of which is attached and
incorporated by reference]. The Hearing
Officer recommends that the Commission enter a final order and public report
finding that the Respondent violated Section 112.313(6), Florida Statutes, by
requesting and receiving reimbursement for travel expenses which he did not
incur in the performance of his duties as a City Council member. In addition, the Hearing Officer recommends
a civil penalty of $2,000, restitution of $52.12, and public censure and
reprimand.
The Respondent filed exceptions to the
Recommended Order and the Advocate filed a response to the Respondent's
exceptions.
The following abbreviations will be used
herein in referring to record items:
"T," followed by page numbers, for the transcript of the DOAH
hearing; "RO," followed by page numbers, for the Hearing Officer's
Recommended Order.
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, the Advocate's response to 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 are not numbered
and consist of various statements and characterizations concerning the Hearing
Officer's Recommended Order and the underlying evidential record of the DOAH
proceeding which produced the Recommended Order. Therefore, in the paragraphs below, this order will treat and
deal with what appear to be the various particular arguments made by the
Respondent in his exceptions.
Generally, it appears that the Respondent takes exception to the Hearing
Officer's not weighing and viewing the evidence in a manner favorable to him.
1. The
Respondent takes exception to paragraph 11 of the Hearing Officer's Recommended
Order (designated by the Hearing Officer as a finding of fact). Further, in a footnote, the Respondent
argues that he was not charged with misrepresenting facts to the Commission's
Investigator, that he only is charged with not making a public purpose trip to
Pensacola on February 28, 1990, and that a finding that the Respondent
misrepresented facts to the Investigator cannot be evidence to support the
charge and cannot be used as a basis for punishment, citing In re P. Kevin
Davey, 19 Fla. L. Weekly S514 (Fla. 1994).
There is competent substantial record
evidence to support the Hearing Officer's finding that the Respondent told
Commission Investigator Hill that he went to the FDLE office in Pensacola. See Advocate's Exhibits 18 and 13; T,
85. Further, there is also competent
substantial evidence to support the Hearing Officer's determination that the
Respondent in fact did not go to the FDLE office and that he thus claimed and
received reimbursement for a trip that he did not make. See T, 137; Advocate's Exhibits 15, 16, 17. Davey, a disciplinary case concerning
a circuit judge, which held in part that lack of candor [as a substantive
violation] may only be used as a basis for removal or reprimand of a judge
where it is formally charged and proven, is not analogous to or useful in the
disposition of the instant matter before this Commission. Here, misuse of public position to obtain
travel reimbursement has been charged against the Respondent. See RO, 1 (Preliminary Statement portion). Further, any lack of candor on the part of
the Respondent in making statements to the Commission's investigator concerning
the charges, in making other statements about the charges, or in testifying
about the charges is not, per se, a separate substantive charge as that which
was attempted in Davey. Rather,
any issue of candor in the instant matter involves the Hearing Officer's
determination of the Respondent's credibility, or lack thereof, as a witness
and goes to the issue of whether the Respondent made a claim for reimbursement
for a trip to the FDLE office in Pensacola knowing that he had in fact not gone
there.
Therefore, this exception is rejected.
2. The
Respondent takes exception to the Hearing Officer's finding in paragraph 16 of
the Recommended Order that "[h]aving observed the demeanor of [the
Respondent] and having judged [the Respondent's] credibility, I find that his
testimony concerning doing research at the University of West Florida Resource
Library not to be credible." In
taking exception, the Respondent goes on to assert that the Commission's
Investigator testified that he discovered that the Respondent had in fact made
numerous trips to libraries to study issues related to the Respondent's public
duties, and generally asserts that the Hearing Officer overlooked testimony
showing that the Respondent researched City issues and was an active,
enthusiastic member of the City Council.
It is well settled that it is for the hearing
officer to judge credibility, weigh evidence, and resolve conflicts in the
evidence. See, for example, Heifetz,
supra. In addition, whether the
Respondent went to libraries for public purposes at various times and was an
active, enthusiastic member of the Council is not controlling on the Hearing
Officer's determination that the Respondent obtained reimbursement for travel
expenses for particular trips in issue which were not incurred in the
performance of his duties as a Council member.
Further, contrary to the representations made by the Respondent in his
exceptions, Commission Investigator Hill did not testify that the Respondent
had in fact made numerous trips to various libraries but, rather, he testified
that the Respondent submitted travel vouchers indicating that he went to
libraries or that persons testified that the Respondent submitted vouchers for
trips to area libraries. See T, 93, 98,
99, 100.
Therefore, this exception is rejected.
3. The
Respondent takes exception to paragraph 33 of the Recommended Order, arguing
that the testimony of various witnesses established various matters, arguing
that the Hearing Officer "misconstrued the weight of the evidence in this
case," arguing that several items of correspondence from the Respondent to
the Commission (apparently Advocate's Exhibits 14-17) placed into evidence by
the Advocate support the Respondent's version of his February 28, 1990 trip to
Pensacola, and arguing that there is "no evidence to support the
Advocate's position."
As stated previously, our review of a hearing
officer's recommended order does not involve judging witness credibility,
weighing evidence, or resolving conflicts in the evidence; those are matters
for the trier of fact (the hearing officer) alone. Our review concerning factual matters, regardless of whether they
are labeled as findings of fact or as conclusions of law, is limited to whether
the findings are supported by competent substantial evidence. All factual findings of paragraph 33 of the
Recommended Order are supported by competent substantial evidence. Further, the determination of the Hearing
Officer that the Respondent corruptly used his position as a member of the City
Council to get reimbursement for travel expenses which he did not incur is supported
by competent substantial evidence and is a proper conclusion to draw in light
of that evidence under Section 112.313(6), Florida Statutes.
Advocate's Exhibits 14, 15, 16, and 17
(correspondence or written statements from the Respondent to the Commission
and/or the Commission's Advocate) are merely a portion of the evidence
considered by the Hearing Officer in this matter and, as such, are to be
weighed and considered by the Hearing Officer in conjunction with the balance
of the evidence in this matter.
However, those exhibits do not lock the Hearing Officer into a
determination in favor of the Respondent.
They are merely a part of an evidential record which contains competent
substantial evidence to support the Hearing Officer's determinations. Therefore, this exception is rejected.
4. The
Respondent takes exception to the Hearing Officer's determination that the
Respondent misrepresented the nature of the Pensacola/FDLE trip to Commission
Investigator Hill (apparently the Hearing Officer's determination in paragraph
33 of the Recommended Order that "[the Respondent] lied to Investigator
Hill under oath when he indicated that he had gone to the FDLE office"),
arguing that the evidence shows that the Respondent did not make an intentional
misrepresentation to Investigator Hill but, rather, that any inaccuracies in
his representations to Investigator Hill resulted from confusion and lack of
memory occasioned by the Respondent's being called upon to explain numerous
trips.
Again, it is not our role to reweigh the
evidence, resolve conflicts in the evidence, or judge the credibility of
witnesses. The record contains
competent substantial evidence that the Respondent misrepresented facts, or "lied,"
to Investigator Hill.
Therefore, this exception is rejected.
5. The
Respondent takes exception to the Hearing Officer's determination (contained in
paragraph 36 of the Recommended Order) that the Respondent did not make the
trips to Crestview (the April 1991 and May 1991 trips) for a public purpose,
arguing that evidence, including the Respondent's testimony and his
correspondence with the Commission/its Advocate (Advocate's Exhibits 14-17),
shows that the Respondent likely was engaged in public business in conjunction
with those trips.
Once again, we must note that it is not our
role, but rather that of the Hearing Officer, to weigh evidence, judge
credibility, and resolve conflicts in the evidence. The record contains competent substantial evidence to support the
Hearing Officer's determination that the April and May trips to Crestview made
by the Respondent were not for a public purpose but, rather, were for the
purpose of filing campaign documents personal to the Respondent.
Therefore, this exception is rejected.
In summary, the thread of the Respondent's
exceptions addressed thus far amounts to disagreement with the Hearing Officer
over how she viewed the witnesses and other evidence and an expression of the
Respondent's view that the witnesses and other evidence should have been seen
differently by the Hearing Officer with a result and determinations more to the
liking of the Respondent. However, we
cannot substitute ourselves for the Hearing Officer.
6. The Respondent takes exception to the penalty recommended by the
Hearing Officer, arguing that the Commission has imposed civil penalties in
many cases for much smaller amounts and has often imposed only civil penalties
and not imposed public censure and reprimand.
This exception is rejected. The penalties recommended by the Hearing
Officer fit the circumstances of this case and the Commission is not bound by
its actions in previous matters involving different circumstances.
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, William Harrison, as a member of the City
Council of the City of Laurel Hill, violated Section 112.313(6), Florida
Statutes, by using his public position to obtain reimbursement for travel
expenses not incurred for a public purpose.
RECOMMENDED PENALTY
Pursuant to Sections 112.317 and 112.324,
Florida Statutes, the Commission on Ethics hereby recommends that a civil
penalty of $2,000 (two thousand
dollars) be imposed upon the Respondent, that he be required to pay restitution
of $52.12 (fifty-two dollars and twelve cents), and that he be publicly
censured and reprimanded.
ORDERED by the State of Florida Commission on
Ethics meeting in public session on Thursday, March 9, 1995.
____________________________
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 C. Cooper, Attorney for Respondent
Mr. Marty E. Moore, Commission Advocate
Mr. A. P. Day, Complainant
Division of Administrative Hearings