BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

In re ILENE LIEBERMAN, )

)

Respondent. ) Complaint No. 92-157

) DOAH Case No. 93-1180EC

) Final Order No. COE 95-__

__________________________)

FINAL ORDER DENYING ATTORNEY'S FEES

On December 9, 1994, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to the Commission and all parties her Recommended Order, a copy of which is attached hereto. On December 27, 1994, Respondent/Petitioner Ilene Lieberman filed Exceptions to the Recommended Order. On January 3, 1995, Complainant/Respondent Lorenzar Brown filed his Response to Respondent's Exceptions. The matter thereafter came before the Commission for final agency action.

BACKGROUND

This matter began with Lorenzar Brown filing a complaint with the Commission on Ethics alleging that Ilene Lieberman had violated the Code of Ethics for Public Officers and Employees. That complaint was dismissed by the Commission for legal insufficiency on February 2, 1993.

Thereafter, the Respondent timely petitioned for an award of attorney's fees and costs against Complainant pursuant to Section 112.317(8), Florida Statutes. That petition was referred to the Division of Administrative Hearings, and a formal hearing was held on December 7 and 8, 1993. After post-hearing submissions were filed with the Hearing Officer, including the deposition of an expert witness, and proposed recommended orders by both parties, the Hearing Officer's Recommended Order was then transmitted to the Commission and the parties on December 6, 1994. The parties were notified of their right to file exceptions to the Recommended Order in accordance with Rule 34-5.404, Florida Administrative Code. Petitioner/Respondent's exceptions were timely received on December 27, 1994, and the Complainant/Respondent thereafter submitted a response to the exceptions on January 3, 1995.

STANDARDS FOR REVIEW

The Respondent/Petitioner filed exceptions to the Hearing Officer's findings of fact, conclusions of law, the recommendation that a final order be entered denying Respondent/Petitioner's request for attorney's fees, and the rulings made by the Hearing Officer on the Respondent/Petitioner's proposed findings of fact and 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 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.

RULINGS ON EXCEPTIONS

1. The Respondent/Petitioner's first 16 exceptions are directed not to the facts found by the Hearing Officer but, instead, are directed to the proposed findings of fact submitted by the Respondent/Petitioner and rejected by the Hearing Officer. In the first of these, regarding proposed finding of fact 26, Respondent/Petitioner argues that the Hearing Officer erroneously rejected it as "subordinate to the facts actually found" because "it was an admission made by Mr. Brown at the final hearing and, as a matter of law, it must be accepted due to the fact that there is no contrary evidence in the record." The case of Rodriguez v. Sheraton Bal Harbour Hotel, 509 So.2d 369 (Fla. 1st DCA 1987), is then cited for the proposition that where testimony is uncontradicted, a finding contrary to the weight of that evidence is not supported by competent substantial evidence.

Complainant/Respondent's response to Respondent/Petitioner's exceptions does not address each individual exception. Instead, it makes a cumulative argument that the burden of proof was on the Respondent/Petitioner, citing Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987), and North Dade Security Limited Corp. v. Department of State, Division of Licensing, 530 So.2d 1040 (Fla. 1st DCA 1988); that the Hearing Officer properly fulfilled her function in deciding the case one way or the other when the evidence presented supports two inconsistent findings, citing Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985); and that the Respondent/Petitioner failed to satisfy her burden of proof under Rule 34-5.029(3), Florida Administrative Code.

Section 120.59(2), Florida Statutes, requires of the Hearing Officer "a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request." See also Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 476 So.2d 1350 (Fla. 1st DCA 1985), appeal after remand, 495 So.2d 209, review denied, 503 So.2d 327. With regard to proposed finding of fact 26, the Hearing Officer complied with the requirements of Section 120.59(2). Further, as noted by the First District Court of Appeal in Heifetz v. Department of Business Regulation, supra:

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 upon competent substantial evidence. Id. at 1281.

In rejecting proposed finding of fact 26 as subordinate to the facts actually found, the Hearing Officer did not make a finding contrary to the weight of that evidence. Instead, the weight to be placed on Mr. Brown's statement was solely within the Hearing Officer's province. Thus, the holding in Rodriguez has no applicability, and Respondent/Petitioner's first exception is denied.

2. The second exception is directed at the Hearing Officer's rejection of Petitioner/Respondent's proposed finding of fact 30. Here again, the Hearing Officer rejected the proposed finding as "subordinate to the facts actually found." The weight to be placed on Mr. Brown's statement is within the Hearing Officer's province. Accordingly, Respondent/Petitioner's second exception is denied.

3. The third and fourth exceptions are directed at the Hearing Officer's rejection of Petitioner/Respondent's proposed findings of fact 34 and 35. The Hearing Officer rejected these proposed findings together as "constituting argument." While we might have given a different reason for rejecting these proposed findings, the reason given by the Hearing Officer in her Appendix is not legally incorrect. Moreover, the weight to be placed on Mr. Brown's statements was within the Hearing Officer's province. Thus, the Respondent/Petitioner's third and fourth exceptions are denied.

4. Respondent/Petitioner's fifth exception deals with proposed finding of fact 38. This proposed finding was rejected by the Hearing Officer as constituting argument. It is the Hearing Officer's function to consider the evidence, resolve conflicts, judge credibility of witnesses, draw permissible inferences, and reach findings of fact based upon competent substantial evidence. The Hearing Officer properly fulfilled this function. Respondent/Petitioner's fifth exception is, therefore, denied.

5. Respondent/Petitioner's proposed findings of fact 39 and 40 were rejected by the Hearing Officer as "constituting recitation of testimony." Thus, the sixth and seventh exceptions are directed to the Hearing Officer's failure to include these findings in her Recommended Order. The weight to be placed upon Mr. Brown's testimony is within the Hearing Officer's province. Therefore, the sixth and seventh exceptions are denied.

6. Respondent/Petitioner's proposed finding of fact 42 was rejected by the Hearing Officer as "subordinate to the facts actually found." The weight to be placed upon Mr. Brown's testimony is within the Hearing Officer's province. Therefore, the eighth exception is denied.

7. Respondent/Petitioner's proposed finding of fact 45 was rejected by the Hearing Officer as "subordinate to the facts actually found." The weight to be placed upon Mr. Brown's testimony is within the Hearing Officer's province. Therefore, the ninth exception is denied.

8. With the tenth exception, directed to the Hearing Officer's rejection of proposed finding of fact 49, the Respondent/Petitioner writes that the Hearing Officer erroneously rejected that proposed finding as "subordinate to the facts actually found." However, our review of the Appendix to the Recommended Order indicates that the Hearing Officer rejected proposed finding of fact 49 because it was "not supported by the greater weight of the evidence," and that it was the second sentence in proposed finding of fact 49 that she rejected as "subordinate to the facts actually found." The weight to be placed upon Mr. Brown's testimony is within the Hearing Officer's province. Accordingly, the Respondent/Petitioner's tenth exception is denied.

9. The eleventh and twelfth exceptions are directed to proposed findings of fact 50 and 51. The Hearing Officer rejected both of these together as "subordinate to the facts actually found." The weight to be placed upon Mr. Brown's testimony is within the Hearing Officer's province. Accordingly, the Respondent/Petitioner's eleventh and twelfth exceptions are denied.

10. Respondent/Petitioner's thirteenth exception focuses on the Hearing Officer's rejection of proposed finding of fact 58, which she rejected as "cumulative." The weight of Mr. Brown's admission that he never asked the Mayor about the July 1992 expenditure status report as evidence of malice was for the Hearing Officer to determine. The Recommended Order suggests that the Hearing Officer may have inferred from the evidence presented that the way the Mayor made Mr. Brown feel--belittled and embarrassed--explained his not confronting her. (Recommended Order, paragraph 15.) Notwithstanding, the Respondent's proposed finding of fact 58 was "cumulative" to the Recommended Order in the sense that the essential finding of that paragraph--that Brown did not ask the Mayor about the report--is included in the Recommended Order. Our review of the record fails to reveal any error committed by the Hearing Officer in rejecting proposed finding of fact 58. Accordingly, Respondent/Petitioner's thirteenth exception is denied.

11. The fourteenth exception concerns the Hearing Officer's rejection of proposed finding of fact 84. The Hearing Officer rejected this proposed finding as "constituting argument." First, our reading of the proposed finding suggests that it was couched in argumentative language. More importantly, the proposed finding appears to be inconsistent with what the Hearing Officer actually found by the greater weight of the evidence. (Recommended Order, paragraphs 37 and 38.) Therefore, Respondent/Petitioner's fourteenth exception is denied.

12. The fifteenth exception criticizes the Hearing Officer's rejection of proposed finding of fact 91. This proposed finding was rejected by the Hearing Officer as "constituting argument." It was the Hearing Officer's role to decide the issue one way or another, and her ultimate finding, that the Complainant/Respondent did not act with a "malicious intent," is based upon competent substantial evidence in the record. Therefore, the Respondent/Petitioner's fifteenth exception is denied.

13. The sixteenth and final exception in this category of exceptions is directed to proposed finding of fact 99. The Hearing Officer rejected this proposed finding as "subordinate to the facts actually found." The weight to be placed upon Mr. Brown's testimony and permissible inferences to be drawn therefrom is within the Hearing Officer's province. Accordingly, the Respondent/Petitioner's sixteenth exception is denied.

14. The next group of exceptions concerns proposed findings of fact which the Hearing Officer accepted, but which the Respondent/Petitioner argues were not included in the Recommended Order. Proposed finding of fact 56 was "accepted in substance to the extent that Brown never told Lieberman personally that the expenditure report showed money going to the City Attorney, but rejected to the extent that he never referenced the expenditure report in her presence because he did at the August 31, 1992 City Commission meeting," according to the Hearing Officer's rulings in the Appendix to the Recommended Order. This finding is contained in Finding of Fact 7. Coupled with Finding of Fact 15, the Hearing Officer has not "missed the point" as argued by Respondent/Petitioner, but has heard the evidence and decided the issue against Respondent/Petitioner. This is the Hearing Officer's prerogative where the findings are supported by competent substantial evidence. Therefore, Respondent/Petitioner's seventeenth exception is rejected.

15. With regard to Respondent/Petitioner's exceptions encompassing proposed findings of fact 59 through 66, all of these proposed findings were "accepted in substance" by the Hearing Officer. These proposed findings all relate to the amount of time attorneys representing the Respondent/Petitioner expended on her behalf and are included in the Recommended Order's findings 25 through 31. Respondent/Petitioner has failed to establish how the Hearing Officer's findings are inconsistent with the proposed findings submitted by the Respondent/Petitioner or that the Hearing Officer's findings are not supported by competent substantial evidence. Further, since the Hearing Officer concluded that the Respondent/Petitioner had not met her burden in proving that the complaint was filed against her with a malicious intent to injure her reputation, additional findings addressing Respondent/Petitioner's fees and costs are unnecessary. Therefore, Respondent/Petitioner's exceptions 18 through 25 are denied.

16. In her final exception to the Hearing Officer's findings of fact, the Respondent/Petitioner argues that the Recommended Order "entirely overlooks undisputed material facts which clearly controvert the conclusion that there was no malice on Brown's part." This exception is essentially an invitation to the Commission to reweigh the Complainant/Respondent's testimony to reach the opposite conclusion of that reached by the Hearing Officer. Heifetz and its progeny remind us that it is inappropriate and unnecessary for us to accept Respondent/Petitioner's invitation. Therefore, exception 26 is denied.

17. Respondent/Petitioner has filed four exceptions to the Hearing Officer's Conclusions of Law. The first takes exception to the Hearing Officer's failure to conclude that Brown filed his complaint against Lieberman with malice. As pointed out by the Complainant/Respondent in his response, the Respondent/Petitioner had the burden of proving by a preponderance of the evidence pursuant to Rule 34-5.029(3), Florida Administrative Code, that the Complainant/Respondent acted with malice. The findings that support the Hearing Officer's ultimate conclusion--that the complaint was not filed with a malicious intent to injure the Respondent/Petitioner's reputation--are supported by competent substantial evidence and are legally correct. Contrary to Respondent/Petitioner's assertion, Brown's failure to verify his allegations about Lieberman's breach of public trust does not establish a prima facie showing of malice on Brown's part. The facts in this case are distinguishable from those found in In re Mary McCarty, 15 F.A.L.R. 4284 (1993), and In re Linda Chapin, 15 F.A.L.R. 331 (1992), where the preponderance of the evidence led to the conclusions that those complainants had acted with malice. In both McCarty and Chapin, those complainants provided copies of their complaints to the media. Further, as discussed in McCarty, nothing in Chapter 112, F.S., places the burden on the complainant to conduct an elaborate investigation and there is no requirement that a complaint be based upon personal knowledge of the complainant. Supra, at 4298. We are unable to reweigh the evidence and reach the conclusion urged by Respondent/Petitioner. Accordingly, Respondent/Petitioner's first exception to the Hearing Officer's conclusions of law is denied.

18. Respondent's second exception to the Hearing Officer's conclusions of law takes issue with the Hearing Officer's "failure to conclude that Brown's ethics complaint was frivolous." As stated previously, Section 112.317(8), Florida Statutes, requires a determination that a person

filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee and in which such complaint is found to be frivolous and without basis in law or fact . . . .

This two-part test is not met, as here, where the Respondent/Petitioner fails to prove that a complaint was filed with a malicious intent. Malfregeot v. Mobile Home Park Owners, 388 So.2d 341 (Fla. 4th DCA 1980). Therefore, it is unnecessary to make the conclusion urged by Respondent/Petitioner--that Brown's ethics complaint was "frivolous." Further, the Hearing Officer's conclusion that Brown's complaint was without basis in law or fact (Recommended Order, paragraph 35), is the equivalent of a conclusion that it was "frivolous." Taunton v. Tapper, 396 So.2d 843 (Fla. 1st DCA 1981). Therefore, Respondent/Petitioner's second exception to the Hearing Officer's conclusions of law is denied.

19. Respondent/Petitioner's third exception to the Hearing Officer's conclusions of law suggests that the Hearing Officer erred in not determining that Respondent/Petitioner was entitled to attorney's fees, and that she should be awarded attorney's fees in the amount of $9,464.38, and $272.50 for law clerk time. The Hearing Officer's ultimate finding, that Brown's complaint was not filed with a malicious intent, is based upon competent substantial evidence, and will not be disturbed by the Commission. Accordingly, Respondent/Petitioner's third exception to the Hearing Officer's conclusions of law is denied.

20. Respondent/Petitioner's fourth and final exception to the Hearing Officer's conclusion of law 41 basically asks the Commission to reweigh the evidence and conclude that Brown's comment that Lieberman was "a liar" in September 1992 proves that he acted with a malicious intent in October 1992 when he filed his initial complaint against Lieberman. It was the Hearing Officer's function to hear the evidence, give it its proper weight, draw permissible inferences from it, and reach ultimate findings of fact based thereon. This was her function and she properly fulfilled it. She concluded that Brown's comments were not sufficient to demonstrate by a preponderance of the evidence that Brown had a malicious intent. (Recommended Order, paragraph 41.) Therefore, Respondent/Petitioner's fourth exception to the Hearing Officer's conclusions of law is denied.

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 petition for attorney's fees and costs filed by Respondent/Petitioner Ilene Lieberman against Complainant/Respondent Lorenzar Brown is hereby DENIED.

ORDERED by the State of Florida Commission on Ethics meeting

in public session on Thursday, March 9, 1995.

______________________________

Date

______________________________

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.