BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re ILENE LIEBERMAN, )
)
Respondent. ) Complaint No. 92-2
) DOAH
Case No. 93-1181EC
) Final
Order No. COE 95-10
__________________________)
AMENDED FINAL ORDER AWARDING ATTORNEY'S FEES AND COSTS
On January 18, 1995, 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. After seeking an enlargement
of time in which to file exceptions and waiving the 90-day period in which the
Commission must take final action pursuant to Section 120.59, Florida Statutes,
both Respondent/Petitioner Ilene Lieberman and Complainant/Respondent David
Kaminsky filed Exceptions to the Recommended Order on February 27, 1995. The matter thereafter came before the
Commission for final agency action.
This matter began with David
Kaminsky filing a complaint with the Commission on Ethics alleging that Ilene
Lieberman had violated the Code of Ethics for Public Officers and
Employees. The complaint, together with
four amendments, essentially set forth four allegations, three of which were
determined to be legally insufficient to indicate a possible violation of the
Code of Ethics and one of which was determined to be legally sufficient. An investigation of this one allegation was
undertaken by Commission staff to aid in the determination of probable
cause. Thereafter, the Report of
Investigation dated November 20, 1992 was reviewed and considered by the
Commission, and it entered its Public Report dismissing the complaint for lack
of probable cause on February 2, 1993.
On February 19, 1993, 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 April 6, 7, 8, and
13, and June 14, 1994. The Hearing
Officer entered her Recommended Order on January 18, 1995, recommending that
Respondent be awarded attorney's fees and costs in the amount of
$37,280.89. The Hearing Officer further
recommended that jurisdiction not be retained by the Division of Administrative
Hearings to determine fees incurred after March 8, 1993.
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.
Complainant/Respondent David
Kaminsky, through his attorney, excepts to the Hearing Officer's findings of
fact on four grounds: 1) that the
Recommended Order rejected certain of Complainant/Respondent's proposed
findings; 2) that the Recommended Order failed to include certain proposed findings
even though they were accepted by the Hearing Officer; that the Recommended
Order overlooked undisputed material facts showing that the complaint was not
"frivolous"; and 4) that the Recommended Order overlooked undisputed
material facts and controlling case law supporting Complainant/Respondent's
advice of counsel defense. Complainant/Respondent then excepts to the
Hearing Officer's conclusions of law, specifically paragraphs 67, 68, 69, and
70.
1. Complainant/Respondent's
first group of 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 Complainant/Respondent and
rejected by the Hearing Officer. In the
first of these, regarding proposed finding of fact 7, Complainant/Respondent
argues that the Hearing Officer's reason for rejecting it--"to the extent
that Mr. Stracher's opinion is based on competent substantial evidence"--was
totally incorrect and not supported by the record and existing case law.
It is evident from our review
of the record and the Recommended Order that the Hearing Officer afforded very
little weight to Mr. Stracher's testimony.
That is the Hearing Officer's prerogative. Heifetz, supra.
Further, it appears that the Hearing Officer legally satisfied the
requirements of Section 120.59(2), Florida Statutes, which 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. Therefore, Complainant/Respondent's first
exception is denied.
2. Complainant/Respondent
next excepts to the Hearing Officer's rejection of his proposed finding of fact
9. This proposed finding was rejected
by the Hearing Officer based upon her assessment of Kaminsky's
credibility. As previously noted, the
First District Court of Appeal in Heifetz v. Department of Business
Regulation, supra, stated:
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.
This function having been fulfilled by the Hearing Officer,
Complainant/Respondent's second exception is denied.
3. Complainant/Respondent's
third exception focuses upon his proposed finding of fact 11. Kaminsky argues that it is impossible to
ascertain why or how the Hearing Officer rejected this proposed finding of
fact, yet the Appendix to the Recommended Order states: "Rejected as not supported by the
greater weight of the evidence."
The weight to be given to the evidence heard is within the Hearing
Officer's sole province. Accordingly,
Complainant/Respondent's third exception is denied.
4. Complainant/Respondent's
fourth exception attacks the Hearing Officer's rejection of his proposed
findings of fact 12 through 14. With
regard to these proposed findings, the Hearing Officer rejected them altogether
as "not supported by competent, substantial and credible
evidence." The proposed findings
themselves were directed to the ultimate issues to be determined under Section
112.317(8), Florida Statutes. A review
of the record together with the Recommended Order leads us to conclude that the
Hearing Officer's treatment of Complainant/Respondent's proposed findings of
fact 12, 13, and 14 was properly within her discretion. Accordingly, Kaminsky's fourth exception is
denied.
5. Kaminsky's next
group of exceptions assails the Hearing Officer's acceptance of certain of his
proposed findings of fact but, he complains, the Hearing Officer failed to
include them in the Recommended Order.
Specifically, he claims his proposed findings of fact 1, 2, 3, 4, 5, 8,
and 10 were deemed accepted in substance or part by the Hearing Officer, but
none were actually included verbatim in the Recommended Order. Proposed finding of fact 6 was accepted in
part and rejected in part, as was proposed findings of fact 1, 3, 5, and
8. As Kaminsky recognizes, his proposed
findings went to the "heart" of the matter, which clearly, the
Hearing Officer decided contrary to the result urged by Kaminsky. However, we can find no fault with the
Hearing Officer's treatment of the referenced proposed findings, as all appear
to be based upon competent, substantial evidence contained in the record. Therefore, Complainant/Respondent's fifth
exception is denied.
6. In
Complainant/Respondent's next exception, which he has identified as no. 3, he
takes exception to what he claims are undisputed material facts the Recommended
Order overlooked which clearly show that Kaminsky's complaint was not
frivolous. The "undisputed
material facts" which Kaminsky sets forth in his exceptions are not
included in the Recommended Order. Nor
do they appear in Kaminsky's proposed findings of fact and conclusions of law
he filed with the Hearing Officer.
Notwithstanding their origin, at best they appear to be a marshalling by
Kaminsky of those facts which, in his view, support his contention that his
complaint against Lieberman was not frivolous.
We are reminded of Heifetz and its progeny which instruct us
about our proper role in this proceeding.
Where the Hearing Officer's findings of fact are supported by competent,
substantial evidence, we are not at liberty to second-guess the Hearing Officer
or supplant her findings of fact with those suggested by the
Complainant/Respondent. Accordingly,
this exception is denied.
7. In what he has
identified as Exception No. 4, Complainant/Respondent contends that the
Recommended Order entirely overlooked undisputed material facts and controlling
case law which support Kaminsky's defense that he relied upon advice of counsel
prior to filing his ethics complaint against Lieberman. Neither Section 112.317(8), Florida
Statutes, nor Rule 34-5.029(3), Florida Administrative Code, suggest that where
a complainant has consulted with an attorney prior to filing his ethics
complaint, he will subsequently be shielded from a finding that he acted with a
"malicious intent," or that the complaint was "frivolous and
without basis in law or fact." Nor
have any prior decisions of this Commission recognized such a defense. Whether a complainant consulted with an
attorney prior to filing his complaint with this Commission will not, in and of
itself, excuse a finding that a complaint was filed with a malicious intent to
injure the reputation of a public officer or employee, or a finding that the
complaint itself was frivolous and without a basis in law or fact. However, such evidence may tend to affect
the ultimate findings of fact, particularly as they relate to malicious
intent. Those ultimate factual
findings are, as here, properly determined by the Hearing Officer after hearing
all of the evidence, judging the credibility of witnesses, resolving conflicts
in the testimony, and deciding the issues one way or another. Here, because there appears to be competent
substantial evidence to support the Hearing Officer's findings, they will not
be disturbed. Thus, Kaminsky's
exception in this regard is denied.
8. Complainant/Respondent
next takes issue with the Hearing Officer's conclusions of law, specifically
paragraphs 67, 68, 69, and 70. Those
conclusions of law essentially find that the complaint was frivolous and without
basis in law or fact; that Kaminsky filed his complaint with a malicious intent
to injure Lieberman's reputation; that his malicious intent was further
evidenced by his failure to investigate the allegations prior to filing the
complaint; and that in his consultation with his attorney brother-in-law prior
to filing the complaint he did not provide his brother-in-law with sufficient
information for the attorney to advise him regarding the merits of his
complaint. We note that each of these
conclusions are based upon competent, substantial evidence found by the Hearing
Officer. We also find that the
conclusions are legally correct.
Accordingly, Complainant/Respondent's exceptions to the Hearing
Officer's conclusions of law, paragraphs 67, 68, 69, and 70, are denied.
Ilene Lieberman, identified
herein as the Respondent/Petitioner, filed exceptions to the Hearing Officer's
Recommended Order. In summary, the
exceptions are directed to the Hearing Officer's rejection of certain proposed
findings of fact submitted by Respondent/Petitioner; to a proposed finding
submitted by Complainant/Respondent Kaminsky and accepted in substance by the
Hearing Officer; and to the Hearing Officer's recommendation that jurisdiction
not be retained by the Division of Administrative Hearings to determine fees
incurred after March 8, 1993.
1. With regard to
Respondent/Petitioner's proposed findings of fact 187 and 188, the Hearing
Officer rejected these proposed findings together as "subordinate to the
facts actually found."
Respondent/Petitioner argues that this was an error on the part of the
Hearing Officer, because the testimony underlying these two proposed findings
was uncontradicted, and where testimony is uncontradicted, a finding contrary
to the weight of that evidence is not supported by competent substantial
evidence, citing Rodriguez v. Sheraton Bal Harbour Hotel, 509 So.2d 369
(Fla. 1st DCA 1987). In rejecting
proposed findings of fact 187 and 188 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 she
placed on Mr. Kaminsky's and Mr. Pardo's testimony was solely within her
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 findings of fact 192, 193, 194, 195, 196, 197,
198, and 199, all of which were rejected by the Hearing Officer as
"subordinate to the facts actually found." The proposed findings themselves concern Complainant/Respondent's
consultation with his attorney brother-in-law, Mr. Pardo, prior to filing his
complaint against Respondent/Petitioner.
The weight to be given to the evidence on this issue was for the Hearing
Officer to determine. From our review
of the Recommended Order, particularly paragraphs 61 through 63, and from the
record itself, she already accorded very little weight to their testimony. Further, the proposed findings themselves
would not alter the Hearing Officer's findings or conclusions, all of which
appear to be based upon competent, substantial record evidence. For these reasons, the exceptions concerning
proposed findings of fact 192, 193, 194, 195, 196, 197, 198, and 199 are
denied.
3. The next group
of exceptions assails the Hearing Officer's rejection of
Respondent/Petitioner's proposed findings of fact 202, 203, 204, 205, 206, 207,
208, and 209, which the Hearing Officer rejected as "irrelevant." In these proposed findings, Respondent/Petitioner
attempted to show that Kaminsky did not consult with Mr. Pardo, and if he did,
it was not in good faith. Here,
however, the Hearing Officer did not recommend against an award of attorney's
fees because of any "advice of counsel" defense put forth by
Kaminsky. Instead, she found that
although Kaminsky had informally discussed the matter with his brother-in-law,
he did not provide Mr. Pardo with all that would have been necessary for Pardo
to give an informed opinion regarding the merits of his complaint against
Lieberman. The Hearing Officer's
findings and conclusions are supported by competent substantial evidence. Further, the weight to be placed upon Kaminsky's
and Pardo's testimony, any determinations as to their credibility, and permissible
inferences to draw therefrom were for the Hearing Officer to determine. Because we can find no error in the Hearing
Officer's rejection of proposed findings of fact 202, 203, 204, 205, 206, 207,
208, and 209, these exceptions are denied.
4. Proposed
findings of fact 210, 211, and 211 were rejected by the Hearing Officer as
"subordinate to the facts actually found." Respondent/Petitioner excepts to the rejection of these proposed
findings by the Hearing Officer, all of which dealt with how and when Kaminsky
allegedly consulted with Pardo. From
these proposed findings, Respondent/Petitioner evidently sought a conclusion
that no consultation ever took place.
However, as recognized previously, the Hearing Officer found that Kaminsky
informally discussed the complaint with his brother-in-law prior to filing
it. [Recommended Order, paragraphs 61,
62, 63, and 70.] The Hearing Officer's
findings of fact and conclusions of law in this regard are supported by competent
substantial evidence. We find no error
in the Hearing Officer's rejection of proposed findings of fact 210, 211, and
212; thus, these exceptions are denied.
5. Respondent/Petitioner
next excepts to the Hearing Officer's rejection of proposed finding of fact 218
for its being "argumentative."
Respondent/Petitioner contends that this is not a basis in law for the
Hearing Officer to reject the proposed finding, which again dealt with
Kaminsky's consultation with his brother-in-law, Pardo. As the fact-finder in this proceeding, it
was the Hearing Officer's responsibility to decide the issues presented one way
or another. The Hearing Officer
satisfied that function, and after reviewing the record, we can find no error
in the Hearing Officer's rejection of proposed finding of fact 218. Therefore, this exception is denied.
6. In her next
exception, Respondent/Petitioner assails Kaminsky's proposed finding of fact
10, which the Hearing Officer "accepted in substance," according to
the Appendix to the Recommended Order.
The proposed finding itself suggests that Kaminsky did not entertain
serious doubts as to the truth or falsity of the allegations contained in his
complaint. Respondent/Petitioner
submits that the proposed finding is entirely nonsensical, and that the Hearing
Officer erred by either not rejecting or striking Kaminsky's proposed finding
of fact 10. In reviewing our Rule 34-5.029(3),
Florida Administrative Code, it appears that Kaminsky's proposed finding merely
tracked language from that rule which describes different ways to prove
"malicious intent to injure the reputation." Here, the Hearing Officer found, based upon
competent substantial evidence, that Kaminsky had ill will and hostility toward
Lieberman, and her findings in that regard led to the ultimate finding--that
Kaminsky filed the complaint against Lieberman with a malicious intent to
injure her reputation. Thus, it is
immaterial whether Kaminsky proposed a finding of fact suggesting that he had
not acted with a "reckless disregard," because the preponderance of
the evidence established--and the Hearing Officer concluded--that he had a
malicious intent. Therefore, this
exception is denied.
7. Taking
Respondent/Petitioner's first exception last, Lieberman excepts to the Hearing
Officer's recommendation that jurisdiction not be retained by the Division of
Administrative Hearings to determine fees incurred after March 8, 1993.
Initially, we note that as
Lieberman suggests, this March 8, 1993 date contains a scrivener's error; the
correct date should be March 8, 1994, as the record indicates
that Lieberman's attorney of record billed for his time through this date
[Respondent's Exhibit 26, and Recommended Order, paragraph 53].
Respondent/Petitioner next
complains that although the Hearing Officer's fee calculation includes a
recommendation that Respondent/Petitioner's attorney be compensated for his
actual time spent at hearing--37.5 hours (in addition to fees incurred through
March 8, 1994), she does not address any pre- or post-hearing effort he
expended; nor does she award, other than what was established at hearing, any
other costs Lieberman incurred in this proceeding. Lieberman argues that she could not present evidence as to the
costs and fees incurred during the hearing itself or for the extensive amount
of work that had to be done immediately prior to and subsequent to the
hearing. Although Lieberman requested
that the Division of Administrative Hearings retain jurisdiction over this
matter to tax further fees and costs through the conclusion of these
proceedings [Respondent/Petitioner's proposed recommended order, paragraph 32],
the Hearing Officer recommended against retaining jurisdiction by the Division. We further note that this issue was
apparently argued to the Hearing Officer during closing arguments, but those
arguments were neither transcribed nor made a part of the record before
us. We also note that this issue
received only cursory mention in Respondent/Petitioner's proposed recommended
order, and almost no discussion by the Hearing Officer in her Recommended
Order.
Notwithstanding, we basically
agree with Respondent/Petitioner's contention that Section 112.317(8), Florida
Statutes, allows for an award of attorney's fees to compensate for time spent
in litigating both the entitlement to and the amount of fees. However, we do not view our decision in In
re Steven B. Feren, (Final Order entered October 18, 1994), as mandating an
additional proceeding before the Division of Administrative Hearings to assess
fees and costs for matters not proven at the initial hearing. We have not previously addressed this issue
in a proceeding under Section 112.317(8), Florida Statutes. However, we can find no support in any
administrative decisions or caselaw which would suggest that supplemental
proceedings be had. On the contrary, it
would appear that there is substantial authority to support a denial of
additional fact-finding for the purpose of introducing evidence that could have,
in the exercise of due diligence, been offered at the original hearing. Henderson Signs v. Fla. Dept. of
Transportation, 397 So. 2d 769 (Fla. 1st DCA 1981); School Board of Leon
County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990).
We further note that in the Feren
case, our Final Order (and the Hearing Officer's recommended order) reflect an
award of attorney's fees for the "total number of attorney and paralegal
hours reasonably spent and expected to be spent on these proceedings to
bring them to a final conclusion."
That award was based upon competent substantial evidence in the
record. Here, the Hearing Officer found
and awarded as reasonable Mr. Stuart Michaelson's 141.8 hours X $125 per hour
for a total fee due him of $17,725, and that determination, based upon our
review of the record, is based upon competent substantial evidence. There is no evidence in the record that
would support the award of additional fees beyond this amount, nor entitlement
to any costs not proven at the initial hearing. Thus, this situation is not unlike the situation we faced in
another Section 112.317(8) proceeding, In re Jimmy Bilbo, (Final Order
entered June 7, 1994), where that respondent/petitioner proved that the
complaint filed against him was filed with a malicious intent to injure his
reputation and was without a basis in law or fact, but failed to prove at the
hearing before the Hearing Officer that he had actually incurred any attorney's
fees or costs in defense of that complaint, or that said fees and costs were
reasonable under the standards enunciated in Florida Patient's Compensation
Fund v. Rowe, 473 So. 2d 1145 (Fla. 1985).
Citing Henderson Signs v. Fla. Dept. of Transportation, supra,
we declined Bilbo's supplemental offer of proof; nor did we order additional
proceedings.
Because eventually
proceedings must come to an end, we are not inclined to order supplemental
proceedings to hear additional evidence as to supplementary attorney's fees and
costs, when it was, or should have been, reasonably foreseeable to
Respondent/Petitioner's counsel that additional effort would be expended in
bringing this matter to its conclusion, as was the case in Feren. Nor can we find that the Hearing Officer
erred by not retaining jurisdiction.
Therefore, Respondent/Petitioner's exception on this issue is denied.
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
finds that the Complainant, David Kaminsky, filed an ethics complaint which was
frivolous and without basis in law and fact against the Respondent, Ilene
Lieberman, a public officer, with a malicious intent to injure the reputation
of Ms. Lieberman and that Mr. Kaminsky is therefore liable for attorney's fees
and costs incurred, as described herein.
WHEREFORE, pursuant to
Section 112.317(8), Florida Statutes, the Commission on Ethics determines that
the Complainant, David Kaminsky, is liable to the Respondent, Ilene Lieberman,
for attorney's fees and costs in the total amount of $37,280.89.
ORDERED by the State of
Florida Commission on Ethics meeting
in public session on Thursday, April 20, 1995.
______________________________
Date
______________________________
R. Terry Rigsby
Chairman
THIS AMENDED ORDER CONSTITUTES FINAL AGENCY ACTION. ANY
PARTY WHO IS ADVERSELY AFFECTED BY THIS AMENDED 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 AMENDED ORDER (including the Recommended
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 AMENDED
ORDER IS RENDERED.
cc: Mr. Stuart R. Michelson,
Attorney for Respondent/Petitioner
Mr. Anthony J. Titone,
Attorney for Complainant/Respondent
Division of Administrative
Hearings