BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

In re EMIL DANCIU, )

)

Respondent. ) Complaint No. 93-14

) DOAH Case No. 94-002641 EC

) Final Order No. COE 95-2

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FINAL ORDER AND PUBLIC REPORT

On November 18, 1994, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to the Commission and the parties her Recommended Order, a copy of which is attached hereto. On December 15, 1994, the Commission received a copy of the Respondent Emil Danciu's Exceptions to the Recommended Order. No response to Respondent's exceptions was submitted by the Commission's Advocate. Thereafter, the matter came before the Commission for final agency action.

BACKGROUND

This matter began with the filing of a complaint by Albert J. Travasos, alleging that Emil Danciu had violated the Code of Ethics for Public Officers and Employees. The allegations were found to be legally sufficient to allege a possible violation of Section 112.3148(4), Florida Statutes, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On September 8, 1993, the Commission on Ethics issued an order finding probable cause, and thereafter forwarded this matter to the Division of Administrative Hearings for conduct of a formal hearing and entry of a recommended order. The formal hearing before the Hearing Officer was held on August 16, 1994, and the parties timely filed proposed recommended orders with the Hearing Officer. The recommended order was transmitted to the Commission and the parties on November 18, 1994, and the parties were notified of their right to file exceptions to the recommended order with the Commission by December 7, 1994 in accordance with Rule 34-5.022(2), Florida Administrative Code. On December 15, 1994, the Respondent, pro se, filed exceptions to the Recommended Order but did not furnish the Commission with a transcript of the formal hearing before the DOAH Hearing Officer. The Commission's Advocate elected not to file a response to the Respondent's Exceptions. Also on December 15, 1994, the Commission received a document from the Respondent requesting that the Commission bear the cost of having the formal hearing before the Hearing Officer transcribed. There being no authority for or requirement that the Commission order and pay for the transcript, the request was denied by Order dated January 4, 1995. On December 19, 1994, counsel for Respondent filed with the Commission a Motion to Withdraw. This Motion was granted by Order dated January 4, 1995. The matter is now before the Commission on Ethics for final agency action.

STANDARDS OF 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.

RULINGS ON RESPONDENT'S EXCEPTIONS

1. Respondent's exceptions are denied as untimely. All parties were notified of their right to file exceptions with the Commission by December 7, 1994. A copy of Respondent's exceptions were received in the Commission's office on December 15, 1994, eight days late. Respondent neither sought an enlargement of the period in which to file exceptions, nor sought to demonstrate any good cause why late-filed exceptions should be considered. Therefore, Respondent's exceptions are denied as untimely. Redfern v. Department of Professional Regulation, 498 So.2d 1313 (Fla. 1st DCA 1986); and In re Ingram, Kelley, and Whitt, 15 F.A.L.R. 1177, 1178 (Commission on Ethics Final Order entered December 8, 1992).

2. Neither the Respondent nor the Commission's Advocate ordered a transcript of the formal hearing before the Hearing Officer. It has been held that the burden of furnishing a transcript is on the party seeking review and, if the party does not, exceptions to findings of fact can be dismissed solely on that basis. See, e.g., Rabren v. Department of Professional Regulation, 568 So.2d 1283 (Fla. 1st DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); and Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982). The Commission has also previously adopted this position. In re George Costage, 15 F.A.L.R. 1201, 1202 (Commission on Ethics Final Order entered December 8, 1992).

3. The Commission recognizes that it is equally difficult to overrule a conclusion of law if that conclusion depends upon facts which are not completely before it, as is the case with the Respondent's first exception. There, the Respondent excepts to the Hearing Officer's conclusion of law (Recommended Order, paragraph no. 26), that Mr. Sweetapple met the definition of "lobbyist" contained in Section 112.3148(2)(b), Florida Statutes. The Respondent argues:

[T]he law defining 'lobbyist' demands that a 'Lobbyist' must make application and obtain approvals. Mr. Sweetapple has made no effort to apply for or be registered as a 'Lobbyist.'

Here, the ultimate finding that Mr. Sweetapple was a lobbyist who lobbied the Respondent's agency is based upon the Hearing Officer's findings of fact contained in Paragraph 19 of the Recommended Order. Since no transcript of the hearing was provided by the Respondent, the Commission is unable to review the testimony that provided the basis for this finding. Nonetheless, the Respondent apparently misconstrued the language contained in Section 112.3148(2)(b) concerning registration of lobbyists by those agencies who have established such a process. The Recommended Order contains no findings which would suggest that the City of Boca Raton or the Boca Raton Community Development Agency had instituted any type of registration process for persons who appeared before those entities to influence their governmental decisionmaking. In the absence of such a registration process, any natural person who meets the definition of a "lobbyist" contained in Section 112.3148(2)(b) would be considered to be one. The Hearing Officer, based upon the record before her, evidently found that Mr. Sweetapple met that definition. For the foregoing reasons, the Respondent's first exception is denied.

4. Next, the Respondent argues that the essential requirements of law were violated during the probable cause hearing before the Commission on September 2, 1993, because the Commission's Chairman at that time, Commissioner Joel Gustafson, declared a "conflict of interest" as a result of his association with the Complainant and offered to "step down."

With regard to the remainder of the Respondent's second exception, he alleges that the tape of that hearing shows that the Chairman returned to his position and continued to chair the meeting, although he did not vote. It also is alleged that the Chairman "participated in the discussions and was influential in the resulting findings of the Board." Finally, the Respondent alleges that the Commission's acquiescence in the Chairman's actions make it "culpable" as well, and that the Chairman failed to file a conflict of interest form as required by law.

Initially, we note that Section 120.57(1)(b)10, Florida Statutes, states in pertinent part:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency may not reject or modify the findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. . . . .

Here, the formal hearing before the Hearing Officer held in Boca Raton on August 16, 1994 constituted the proceedings upon which the Hearing Officer's findings were based. There is no suggestion by the Respondent that that hearing in any way deviated from the essential requirements of law, or that his rights to due process were somehow impinged upon during that proceeding. Moreover, the Respondent has failed to cite any case law, statutes, or rules which would support his contention that the proceedings did not comply with the essential requirements of law. We also note from our review of the Recommended Order that there is no indication that this issue was raised before the Hearing Officer. Nor is there any indication that the Respondent, or his counsel at the time of the probable cause hearing, raised any objection to the proceedings before the Commission. We are further constrained by the Respondent's failure to provide any transcript or record of that proceeding, as we are not at liberty to go outside the record in reviewing Respondent's allegations. For the foregoing reasons, Respondent's second exception 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. Accordingly, the Commission on Ethics finds that the Respondent, Emil Danciu, violated Section 112.3148(4), Florida Statutes, as described herein.

RECOMMENDED PENALTY

In consideration of the foregoing, pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, Emil Danciu, in the amount of $1000.

ORDERED by the State of Florida Commission on Ethics meeting

in public session on Thursday, January 26, 1995.

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Date

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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.