93-75 Final Order and Public Report, In re LAWRENCE R. HAWKINS

BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

In re LAWRENCE R. HAWKINS, Complaint No. 93-75

DOAH Case No. 94-4715EC

Respondent. Final Order No. 95-28

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FINAL ORDER AND PUBLIC REPORT

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on September 28, 1995 by the Division of Administrative Hearings (DOAH) [a copy of which is attached hereto and incorporated herein by reference] . The Hearing Officer recommends that the Commission enter a final order and public report finding that the Respondent violated Section 112.3148(2)(a), Florida Statutes, by failing to report, as a gift, a trip to New Orleans provided by Mr. Dunn, and Section 112.313(6), Florida Statutes, relative to Respondent's use of Dade County employees and equipment for Seitlin business and his harassment of three female County employees. As to these violations, the hearing Officer recommended that a civil penalty of $8,1000.00 be imposed upon the Respondent, and that he be publicly censured and reprimanded. She also recommends that the Commission find that Respondent did not violate Section 112.313(6) , as it relates to the CHI and the Easter Seals allegations, and dismiss the Complaint as to these allegations.

BACKGROUND

This matter began with the filing of a complaint by Joseph M. Centorino, alleging that Respondent, as a member of the Dade County Commission, had violated the Code of Ethics for Public Officers and Employees. The allegations were found to be legally sufficient to allege a possible violations of Sections 112.313(4), 112.3148(2)(a), 112.313(6), and 112.3143(3), Florida Statutes, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On June 7, 1994, the Commission on Ethics issued an order finding probable cause to believe that the Respondent had violated Section 112.3143(2)(a) by failing to report a trip to New Orleans on his 1990 financial disclosure; Section 112.313(6) by using his position to try to generate business for Seitlin and Company, an insurance company which employed him as a paid consultant; Section 112.313(6) by using public resources in furtherance of his work for Seitlin; Section 112.313(6) by using his position to secure a special benefit for the Dade County Easter Seals Society; and Section 112.313(6) by using his position to sexually harass his subordinate female employees. The formal hearing before the Hearing Officer was scheduled for May 22-26, 1995. The Recommended Order was transmitted to the Commission and the parties on September 28, 1995, and the parties were notified of their right to file exceptions to the recommended order with the Commission by October 18, 1995, in accordance with Rule 34-5.023(1), Florida Administrative Code. Respondent's exceptions, which limited themselves to the amount of the recommended penalties, were filed with the Commission on October 17, 1995. However, the complete record of this matter under Section 120.57(1)(b)6, Florida Statutes, was not placed before the Commission. The Respondent did not appear at the Commission's final consideration of this matter to argue the Commission's penalty recommendation.

Having reviewed the Recommended Order, Respondent's exceptions, and having considered the arguments of the Advocate made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and recommendations:

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.

Similarly, Section 120.57(1)(b)10 prohibits the Commission from increasing or decreasing the recommended penalty without reviewing the complete record and stating with particularity its reasons therefor in the order, by citing to the record to justify its action.

RULINGS ON RESPONDENT'S EXCEPTIONS

1. The Respondent excepts to the $100 civil penalty recommended by the Hearing Officer for violating Section 112.3148(2)(a), Florida Statutes, which required him to timely report a free trip to New Orleans in 1990. Respondent argues that the Commission generally has imposed light fines for failure to report, especially where the Respondent relied on the advice of others in doing so. He relies upon In re Hildreth, 16 F.A.L.R. 4085 (Ethics 1994) to support his argument.

Respondent's exception is rejected. Apart from the fact that the Commission, pursuant to Section 112.324(7)(d), Florida Statutes, will make its recommendation to the Governor for his imposition of the recommended penalty, and the mitigation of the penalty in Hildreth resulted from Hildreth's reliance on the advice of the City Attorney, not on that of his mother, as to whether his acceptance of the country club membership had to be disclosed, because the Respondent did not provide the Commission with a complete record of the hearing before the Hearing Officer, the Commission is without the authority to modify the recommended penalty as to Respondent's violation of Section 112.3148(2)(a).

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 also has previously adopted this position. In re George Costage, 15 F.A.L.R. 1201, 1202 (Commission on Ethics Final Order entered December 8, 1992) _Moreover, the Commission has adopted Rule 34-5.023(3,) F.A.C., which provides as follows:

It is the burden of the person filing the

exception to insure that the entire record has

been received by the Commission at least three

weeks prior to the date of the Commission's

final hearing.

Inasmuch as the Respondent has failed to provide the entire record of the proceedings before the Division of Administrative Hearings to the Commission, the Commission has no authority to consider decreasing the amount of the penalty recommended.

2. Respondent also excepts to the Hearing Officer's recommendation of a $7,500 civil penalty and public censure and reprimand for his violating Section 112.313(6) by subjecting three employees to repeated and continuous lewd and sexually oriented remarks and behavior. He argues that the Hearing Officer's recommendation was based on her understanding that the maximum statutory monetary penalty was $10,000. He argues that inasmuch as the alleged conduct concerning the sexual harassment occurred between 1988 and 1992, when the maximum statutory fine was $5,000, and Section 112.317(1)(a)(6) was amended in 1994 to raise the maximum penalty to $10,000, the maximum monetary penalty that the Commission can recommend for the alleged violation of Section 112.313(6) is $5,000. In support of his assertion, Respondent cites Willner v. Department of Professional Regulation, Board of Medicine, 563 So.2d 805, 806 (Fla. 1st DCA 1990), review denied, 576 So.2d 295 (Fla. 1990) in which the Court, in part, held-that a 1986 amendment that increased the amount of the maximum fine which could be assessed by the Board of Medicine for violation of Section 458.331, Florida Statutes, could not be utilized since all the violations for which the physician was found guilty occurred prior to the effective date of the amendment. The maximum fine which lawfully could be imposed in that case was $1,000 per violation, the maximum amount allowable before the effective date of the amendment. See, also, Kurachek v. Department of Professional Regulation, Board of Dentistry, 588 So.2d 3 (Fla. 2d DCA 1991). Therefore, the Commission accepts Respondent's exception only to the extent that the Commission concludes that the maximum amount that the Hearing Officer could recommend imposing against the Respondent under Section 112.317, Florida Statutes (1991), was $5,000, rather than the $10,000 found by the Hearing Officer. However, the Commission does not accept Respondent's further contention that because the Hearing Officer recommended a fine of $7,500, she intended that the Respondent be fined 3/4 of the maximum, which, using $5,000 as the maximum, would be $3,750.

Because the maximum penalty that the Commission can recommend that the Governor impose against the Respondent is $5,000 and because the Respondent has not provided a complete record of the proceedings for the Commission's consideration which would permit the Commission to reduce the recommended penalty further, the Commission determines, as a matter of law, it must reduce the recommended penalty for Respondent's violation of Section 112.313 (6), Florida Statutes, as it relates to his harassment of three female County employees, to $5,000, the maximum penalty permitted under Section 112.317, Florida Statutes (1991)

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 concludes that the Respondent, as a member of the Dade County Commission, violated Section 112.3148(2)(a), Florida Statutes, by failing to report, as a gift, a trip to New Orleans provided by Mr. Dunn, and Section 112.313(6), as alleged, relative to Respondent's use of Dade County employees and equipment for Seitlin business and harassment of three female County employees. Furthermore, the Commission concludes that Respondent did not violate Section 112.313(6), as alleged, relative to CHI and Easter Seals, and dismisses the complaint as to these allegations.

RECOMMENDED PENALTY

The Hearing Officer's recommendation of $100.00 as a civil penalty for Respondent's violation of Section 112.3148(2)(a) and $500.00 for his violation of Section 112.313(6) as it relates to his use of County personnel and equipment to perform Seitlin business is accepted. However, for the reasons noted in the Commission's rulings on Respondent's exception No. 2 above, the Hearing Officer's recommendation of a $7,500.00 civil penalty is reduced to $5,000.00.

In consideration of the foregoing and pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, Lawrence R. Hawkins, in the total amount of $5,600, and that he receive a public censure and reprimand relative to the allegations of sexual harassment of three County employees.

ORDERED by the state of Florida Commission on Ethics this 30th day of November, 1995.

December 5, 1995

Date Rendered

________________________

William J. Rish

Chairman

CC: Mr. Raoul G. Cantero, III, Attorney for Respondent

Ms. Virlindia Doss, Advocate for the Commission

Honorable Susan B. Kirkland, Hearing Officer

Division of Administrative Hearings

Mr. Joseph M. Centorino, Complainant