BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re JIMMY BILBO, )
)
Respondent. )
Complaint
No. 93-98
) Final
Order No. COE ____
)
_________________________)
FINAL ORDER DENYING COSTS AND ATTORNEY FEES
This matter came before the Commission on
Ethics on the Recommended Order rendered in this matter on March 28, 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 denying the
Respondent's Amended Petition for Attorney's Fees and Costs.
The Respondent filed exceptions to various
portions of the recommended order.
While the "exceptions" contain much commentary and tracking of
the history of the matter that really do not amount to a substantive exception,
the exceptions do specifically take issue with paragraph "21" of the
Recommended Order (identified by the Hearing Officer as a conclusion of
law). Paragraph "21" of the
Recommended Order provides:
Bilbo is asking for $325 for attorney's
fees. Rule 4-1.5 of the Florida Bar
Rules of Professional Conduct lists several factors which can be used in
determining a reasonable fee. These factors
include, among other things, the time and labor required, the skill requisite
to perform the service properly, the fee customarily charged in the locality
for similar services, and the experience, reputation, and ability of the lawyer
performing the service. Bilbo has
failed to prove what legal service was actually performed, who performed the
service, how many hours of service were performed, or the fee customarily
charged in the locality for similar services.
Bilbo has not met the burden of proof necessary to determine the amount
of attorney's fees and, therefore, is not entitled to an award of attorney's
fees.
In
substance, the totality of the Respondent's exceptions amounts to his assertion
that since the Hearing Officer found that the Complainant filed the ethics
complaint with malicious intent to injure the reputation of the Respondent and
found that the complaint was frivolous and without basis in fact or law
(paragraphs "19" and "20" of the Recommended Order) and
since he is not an attorney subject to the Florida Bar Rules of Professional
Conduct, that he has complied with all of the requisites and proofs necessary
to substantiate an award of attorney fees.
Further, via his exceptions, the Respondent
seeks to submit for the Commission's evidential consideration three items not
admitted into evidence at the DOAH hearing on the matter, not tendered for
admission at the hearing, and apparently not in existence at the time of the
hearing. The three items submitted with
the exceptions are: STATEMENT, on
letterhead of Gwendolyn Spivey, Attorney at Law, to the Respondent, dated April
7, 1994, listing a total fee of $325.00; AFFIDAVIT AS TO ATTORNEY'S FEES,
signed by Robert L. Hinkle, Esquire, stating his opinion that $325.00 is a
reasonable fee to be paid to the attorney for the Respondent for the services
rendered in Commission Case No. 93-98; INVOICE, from Accurate Stenotype
Reporters, Inc. to the Respondent, in the amount of $414.00, for preparing a
transcript of the DOAH hearing in this matter.
In the conclusion portion of his exceptions,
the Respondent reasserts his arguments noted above and asserts that the Recommended
Order of the Hearing Officer should be rejected and instead a Final Order
granting Respondent an award of attorney fees in the amount of $325.00 and
costs in the amount of $414.00 should be issued by the Commission.
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.
The Complainant filed no exceptions to the
Recommended Order nor any response to the Respondent's exceptions.
Having reviewed the Recommended Order, the
exceptions, 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 Complainant made before the Commission at its final consideration
of this matter, the Commission makes the following findings, conclusions,
rulings, and determinations:
Rulings on Exceptions
In order to be entitled to an award of costs
or attorney fees under Section 112.317(8), Florida Statutes, an ethics
Respondent must show by a preponderance of the evidence that the Complainant
filed the ethics complaint with malicious intent to injure the reputation of
the Respondent and that the complaint is frivolous and without basis in law or
fact. The Hearing Officer found that
these elements were proven by the Respondent and those findings are not the
subject of any exceptions before the Commission for its consideration. Therefore, not having been alerted to any
perceived defects in the Hearing Officer's findings as to the elements
discussed above, the Commission cannot reweigh the evidence presented to the
Hearing Officer and must accept her findings as to these elements. See Bradley, supra.
However, Section 112.317(8) also requires
that any award be shown to be reasonable. What constitutes a reasonable award and the proof necessary to
make a showing of reasonableness were set forth by the Supreme Court of Florida
in Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.
1985). The Court adopted the criteria
set forth in Disciplinary Rule 2-106(b) of The Florida Bar Code of Professional
Responsibility (now found at Rule 4-1.5 of the Rules Regulating The Florida
Bar). These are the same criteria
utilized by the Hearing Officer in arriving at her decision that the Respondent
did not demonstrate that he was entitled to an award of attorney fees in the
amount of $325.00. See pages 7 and 8 of
the Hearing Officer's Recommended Order.
Section 112.317(8) requires that any attorney
fees awarded be "reasonable."
Rowe establishes the criteria and methods of proof for
establishing a reasonable fee. The
Hearing Officer cannot be faulted for adhering to controlling caselaw and thus
finding that a Respondent who produced no testimony or other evidence that
legal services were rendered in defense of an ethics complaint against him,
that a specific number of hours of legal services were rendered, that the
number of hours were reasonably expended on the services, and that the hourly
rate charged was reasonable is not entitled to an award. Unlike the Bar's rules of professional
conduct, the Rowe decision does not serve primarily to regulate
attorneys but rather establishes proofs which must be made in all cases seeking
the award of reasonable attorney fees.
Entitlement to costs, as opposed to attorney
fees, was not even at issue in the petition for fees or the amended petition
for fees, both of which were transmitted to DOAH and which jointly formed the
pleadings upon which this matter was heard at DOAH. The Respondent cannot now plead or prove before the Commission,
via his exceptions or their attachments, his entitlement to costs or fees which
he failed to allege and prove at the hearing before DOAH previously held in
this matter. See, e.g., Henderson
Signs v. Florida Department of Transportation, 397 So. 2d 769 (Fla. 1st DCA
1981).
Findings of Fact
The Findings of Fact set forth in the
Recommended Order are approved, adopted, and incorporated herein by reference
except as modified above.
Conclusions of Law
1. The
Conclusions of Law set forth in the Recommended Order are approved, adopted,
and incorporated herein by reference except as modified above.
2. Accordingly,
the Commission on Ethics determines that the Complainant, Jerry Anders, filed
an ethics complaint which was frivolous and without basis in law or fact,
against the Respondent, Jimmy Bilbo, a public officer or employee, with a
malicious intent to injure the reputation of the Respondent, but that the
Complainant is not therefore liable for any attorney fees or costs incurred in
defending said ethics complaint because, as found by the Hearing Officer, the
Respondent did not prove, under applicable standards and criteria, that a
particular attorney performed a reasonable amount of legal services at a
reasonable rate in defense of the ethics complaint, and because the record
before the Commission does not contain substantial competent evidence that such
particular, reasonable services were performed or whether they were performed
for a reasonable charge.
WHEREFORE, pursuant to Section 112.317(8),
Florida Statutes, the Commission on Ethics determines that the Complainant,
Jerry Anders, is not liable to the Respondent, Jimmy Bilbo, for attorney fees
and costs in this matter.
ORDERED by the State of Florida Commission on
Ethics meeting in public session on Thursday, June 2, 1994.
____________________________
Date Rendered
_______________________________
Joel K. Gustafson
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. Jimmy Bilbo, Respondent
Mr. Jerry Anders, Complainant
Division of Administrative Hearings