BEFORE
THE
STATE
OF FLORIDA
COMMISSION
ON ETHICS
In re JOHN KEENE, Complaint
No .94-09
DOAH
Case No. 94-1907 FE
Respondent. Final Order No.
COE 95-30
___________________/
FINAL
ORDER DENYING ATTORNEY'S FEES
On September 15, 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. On October 5, 1995, Respondent/Petitioner
John Keene filed Exceptions to the Recommended Order. On October 26, 1995, Complainant/Respondent Ronald Stotler filed
his Response to Petitioner Keene's Exceptions to Recommended Order. The matter thereafter came before the
Commission for final agency action.
BACKGROUND
This matter began with Ronald Stotler (Stotler) filing a complaint with
the Commission on Ethics alleging that John Keene (Keene) had violated the Code
of Ethics for Public Officers and Employees.
That complaint was dismissed by the Commission for legal insufficiency
on March 10, 1994.
Thereafter, Keene timely petitioned for an award of attorney's fees and
costs against Stotler pursuant to Section 112.317(8), Florida Statutes. That petition was referred to the Division
of Administrative Hearings and a final hearing was held on March 8, 9, 10, 16,
and 17, 1995. The transcript of the
hearing was filed with the Hearing Officer on May 30, 1995, and the parties
then filed proposed recommended orders.
The Hearing Officer's Recommended Order was transmitted to the
Commission and the parties on September 15, 1995. The parties were notified of their right to file exceptions to
the Recommended Order in accordance with Rule 34-5.023, Florida Administrative
Code. Keene's exceptions were timely
received on October 5, 1995, and Stotler thereafter submitted a response to
Keene's exceptions on October 26, 1995.
STANDARDS
FOR 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 EXCEPTIONS
1. Keene first excepts to the
third and fourth sentences of Finding of Fact 31. Initially, Keene notes that the Hearing Officer mistakenly wrote
that the October 7, 1993 letter to the Joint Legislative Auditing Committee was
sent by Keene when, in fact, it was Stotler who wrote that letter.
In this first exception, Keene argues that the Hearing Officer erred in
considering an August 12, 1994 letter sent by the director of the Joint
Legislative Auditing Committee to Stotler as support for Stotler's contention
that his February 4, 1994 ethics complaint was the proper course of
conduct. Keene argues that due to the
date of the correspondence, Stotler could not have relied on the letter as a
basis for formulating his intent in filing the complaint and that it is
therefore irrelevant. Keene also argues
that the director's alleged statements to Stotler during previous telephone
conversations were inadmissible hearsay since the director did not testify, the
correspondence did not reference any prior telephone conversations, and no
other evidence corroborated the existence of any alleged conversations.
In his Response, Stotler agrees with Keene that the Hearing Officer
inadvertently attributed Keene, not Stotler, with sending the October 7, 1993 letter
to the Joint Legislative Auditing Committee.
Stotler responds to the remainder of the exception by arguing that the
August 12, 1994 letter from the director was offered to demonstrate and
corroborate the existence of prior oral communications between Stotler and the
Joint Legislative Auditing Committee, and that the substance of those
communications went to prove Stotler's intent and state of mind when filing the
ethics complaint in February 1994.
To the extent the parties both agree and the record so reflects that
Stotler sent the October 7, 1993 letter to the Joint Legislative Auditing
Committee, Finding of Fact 31 is modified to make that correction. However, the remainder of Keene's first
exception is denied.
Section 90.801(1)(c), Florida Statutes, defines "hearsay" as
a statement, other than one made by the
declarant while testifying at the trial or
hearing, offered in evidence to prove the
truth of the matter asserted.
Section 120.58( 1)(a), Florida Statutes, provides:
Irrelevant, immaterial, or unduly repetitious
evidence shall be excluded, but all other
evidence of a type commonly relied upon by
reasonably prudent persons in the conduct of
their affairs shall be admissible, whether or
not such evidence would be admissible in a
trial in the courts of Florida.
Any part of
the evidence may be received in written form,
and all testimony of parties and witnesses
shall be made under oath.
Hearsay evidence
may be used for the purpose of supplementing
or explaining other evidence, but it shall
not be sufficient in itself to support a
finding unless it would be admissible over
objection in civil actions.
[e.s.]
Here, the issue is whether Stotler's
testimony of what he was told by staff with the Joint Legislative Auditing
Committee was inadmissible hearsay.
When evidence of an out-of-court statement is offered to prove the state
of mind of a person who heard the statement, the statement is not hearsay
because it is not being offered to prove the truth of the statement's
contents. Ehrhardt, Florida Evidence, s
801.6 (1994 Edition). Stated another
way, where it is relevant whether a person was induced to take some action on
the basis of a conversation with another person, evidence of that conversation
is relevant nonhearsay. 23 Fla. Jur.
2d, Evidence and Witnesses s 286, citing Hooper v. Barnett Bank of West
Florida, 474 So.2d 1253 (Fla. 1st DCA 1985), approved, 498 So.2d 923 (Fla.
1986). Based upon the foregoing, we
conclude that the Hearing Officer did not err in considering Stotler's
testimony of his telephone conversations with Committee staff. Further, the relevance and weight to be
given to Shofstall's August 12, 1994 letter to Stotler was for the Hearing
Officer to decide. Heifetz, supra. Therefore, to the extent that the August 12,
1994 letter corroborated Stotler's testimony and that of others as to the
existence of his prior discussions with Shofstall, it was admissible at
hearing. Accordingly, Keene's first
exception is denied.
2. Keene's second exception is
directed to the Hearing Officer's "Finding of Fact 39." However,
Keene's arguments appear to be directed to Finding of Fact 29 involving State
Attorney Harry Shorestein. Therein,
Keene argues that the finding is based upon inadmissible hearsay evidence and
that it was never corroborated by other evidence.
In his Response, Stotler reiterates his previous argument, that
Shorestein's statements were offered to prove Stotler's state of mind and,
also, that Stotler's testimony concerning Shorstein's statements were corroborated
by other evidence.
Keene's second exception is denied.
As previously discussed in our treatment of Keene's exception to Finding
of Fact 31, where such evidence is offered to prove the declarant's state of
mind, it is not hearsay. Further, as pointed
out by Stotler, his testimony about Shorestein's statements was subsequently
corroborated by Shorestein's affidavit (Respondent's Exhibit 12). We find no error in the Hearing Officer's
Finding of Fact 29, as it is based upon competent substantial evidence. Therefore, Keene's second exception is
denied.
3. In his third exception, Keene
excepts to Finding of Fact 40, arguing that it relies upon improperly admitted
hearsay evidence. Finding of Fact 40
addresses Stotler's consultation with his attorney prior to filing his
complaint, and Keene argues that since Stotler's lawyer did not testify at
hearing, no other evidence exists to corroborate Stotler's testimony about what
his attorney advised him.
In response, Stotler reiterates his previous two responses, i.e., that
the testimony was not offered to prove the truth of the matter asserted but,
instead, went to establish Stotler' s state of mind at the time of filing his
complaint. Additionally, Stotler
contends that Keene was permitted to depose Stotler's attorney but chose not to
offer the deposition into evidence and that legal arguments made to the Hearing
Officer by the parties were neither transcribed nor made a part of the record
before us.
Keene's third exception is denied for the reasons previously stated in
our denial of the first and second exceptions.
Evidence offered to prove a declarant's state of mind does not
constitute inadmissible hearsay.
Because there is competent substantial evidence supporting Finding of
Fact 40, Keene's third exception is denied.
4. In his fourth exception,
Keene excepts to the second sentence contained in Finding of Fact 41, arguing
that there is no competent substantial evidence to support the statement: "Mr. Alphonse had some concerns about
the accounting ethics concerning the hiring of Mr. Moore." Keene argues that Stotler and Alphonse only
discussed DBPR conflict of interest issues and that there were never
discussions involving the ethics complaint filed under Chapter 112, Part III,
Florida Statutes.
Stotler filed no response to this exception.
Keene's fourth exception is denied.
Based upon our review of the record it is clear that Mr. Alphonse's
advice, if you will, to Stotler concerned standards of conduct governing
certified public accountants. The
Hearing Officer's Finding of Fact 41 correctly perceived that Mr. Alphonse's
involvement related to accounting ethics and not the Code of Ethics for Public
Officers and Employees contained in Chapter 112, Part III, Florida
Statutes. Therefore, we reject Keene's
fourth exception.
5. Keene's fifth exception is
directed to Finding of Fact 42, which he argues is based upon inadmissible
hearsay evidence. This Finding of Fact
addresses comments Mrs. Byers made to Stotler about her and Mr. Jett's
discussion with Sheriff Lancaster concerning payments to the Magers, Nichols
accounting firm.
Stotler's response to Keene's exception suggests that the Sheriff's
deposition was taken and, Stotler's counsel assumed, had been filed with the
Hearing Officer. He suggests that the
deposition now be filed for the record since the parties stipulated to its
admission.
Respondent's fifth exception is denied, and the suggestion that the
Sheriff Lancaster's deposition now be filed is rejected. Based upon our review of the record, we
believe that the Hearing Officer properly admitted Stotler's testimony in this
regard. We reject Keene's contention
that the statements were inadmissible hearsay, as it appears to us that the
statements were offered to prove Stotler's state of mind and whether he had a
malicious intent when he filed his complaint against Keene. Because there is competent substantial
evidence to support the Hearing Officer's Finding of Fact 42, Keene's fifth
exception is denied.
6. Although it is not clear, it
appears that in his sixth exception Keene is excepting to the Hearing Officer's
treatment of his proposed findings of fact, paragraphs 2, 4-8, 50-52, 57-62,
72, 85, and 87. These proposed
findings, Keene argues, are highly material to inferring Stotler's true intent.
Stotler filed no response to this exception.
Keene's sixth exception is denied.
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. The
Appendix to the Recommended Order reveals that the Hearing Officer ruled on the
referenced proposed findings, as she is required by law to do. Moreover, it is evident from our review of
the proposed findings Keene submitted to the Hearing Officer that Keene is
essentially inviting us to re-weigh the evidence and come to a different
conclusion than that reached by the Hearing Officer. We are neither permitted by law, nor inclined, to accept that
invitation. Heifetz, supra. Therefore, Keene's sixth exception is
denied.
7. Keene's seventh through
thirteenth exceptions are directed to the Hearing Officer's Conclusions of
Law. Although under Section
120.57(1)(b)10, Florida Statutes, the Commission is free to reject or modify a
hearing officer's conclusions of law and interpretations of administrative
rules contained in a recommended order, in this case, the majority of the
Hearing Officer's Conclusions of Law address Stotler's intent in filing the
complaint against Keene. Proof of
intent is a predominantly factual issue.
Moreover, where, as here, we have accepted the Hearing Officer's
findings of fact because they are based upon competent substantial evidence, we
are bound to also accept the Hearing Officer's Conclusions of Law so predicated
upon those factual findings.
Stotler collectively responds to Keene's Conclusion of Law exceptions,
characterizing them as a rehashing of the arguments made by Keene in his
proposed recommended order and going principally to the issue of malicious
intent.
Specifically, in his seventh exception Keene assails Conclusion of Law
55, where the Hearing Officer concluded that Keene had failed to establish that
Stotler filed the complaint against Keene with a malicious intent to injure
Keene's reputation. Keene argues in his
exception that Couch v. Commission on Ethics, 617 So.2d 1119 (Fla. 5th DCA
1993), imposes a higher standard of conduct on public officials when filing
complaints against other public officers than that imposed on private citizens,
and that their actions should be more closely scrutinized. With that stated, Keene then argues that
applying this stricter standard to Stotler leads to the conclusion that the
complaint was filed with a malicious intent.
Keene's seventh exception is denied.
We find no error in the Hearing Officer's conclusion, i.e., that Stotler
did not act with a malicious intent to injure Keene's reputation when he filed
the complaint. This conclusion is an
ultimate finding of fact and is supported by competent substantial evidence in
the record. Nor do we agree with Keene
that Couch imposes a higher standard of scrutiny on the actions of public (or
former public) officials. Accordingly,
Keene's seventh exception is denied.
8. Keene's eighth exception is
directed to the third and fourth sentences of Conclusion of Law 56. There, the Hearing Officer concluded that
Mrs. Byers had contacted the media about the impending meeting with the State
Attorney and that Stotler did not seek out the media after that meeting.
We find no error in the excepted-to sentences of Conclusion of Law
56. They are essentially findings of
fact that go to the ultimate issue of malicious intent. Further, there is competent, substantial
record evidence supporting the findings.
Accordingly, Keene's eighth exception is denied.
9. Next, Keene excepts to
Conclusion of Law 57, where the Hearing Officer concluded that the main thrust
of Stotler's efforts was to obtain an audit.
Keene argues that the conclusion is irrelevant and inconsistent with
Stotler's testimony.
We deny Keene's ninth exception.
Based upon our review of the record we find no error in the Hearing
Officer's conclusion. The findings of
fact underlying this conclusion are based upon competent substantial evidence
and we therefore decline to reweigh the evidence and reach a different conclusion
than that reached by the Hearing Officer.
10. In excepting to Conclusion
of Law 58, Keene argues that the Hearing Officer failed to distinguish facts
which supported Stotler's concerns about Moore from those which supported
concerns about Keene.
We deny Keene's tenth exception.
We have reviewed the record and find no error in the Hearing Officer's
conclusion. The factual findings upon
which this conclusion is predicated are based upon competent substantial
evidence. Therefore, Keene's tenth
exception is denied.
11. Keene excepts to Conclusions
of Law 60 and 63, arguing that the findings supporting these conclusions were
based upon improperly admitted hearsay evidence. Further, Keene argues that the Hearing Officer erred by concluding
that Stotler's investigation of Moore's conduct justified his complaint against
Keene.
We have previously ruled on Keene's exceptions to the Findings of Fact
upon which this Conclusion of Law is based.
Because we view the Hearing Officer's evidentiary rulings as proper, and
because the findings themselves are based upon competent substantial evidence
discerned from our review of the record, we deny Keene's eleventh exception.
12. In his twelfth exception,
Keene excepts to Conclusions of Law 61 and 62 on the stated ground that the
Conclusions fail to distinguish between the contents of the public records and
the actual allegations made by Stotler.
We find no error in the Hearing Officer's Conclusions of Law 61 and
62. In our view, the Hearing Officer
was merely distinguishing the facts in Couch from those presented here. Inasmuch as the factual findings contained
in the Conclusions are based upon competent substantial evidence, Keene's
twelfth exception is denied.
13. In his thirteenth and final
exception, Keene excepts to Conclusion of Law 67 where the Hearing Officer
concluded that Stotler lacked a malicious intent. Keene argues that although Stotler did not admit to having a
malicious intent, such an intent can be inferred.
We deny Keene's thirteenth exception.
Heifetz, supra, reminds us that:
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.
The Hearing Officer ably carried out this
function. Thus, we reject Keene's
request to abandon this principal and engage in a re-weighing of the evidence
to reach a contrary conclusion.
Accordingly, Keene's thirteenth exception is denied.
FINDINGS
OF FACT
The Findings of Fact set forth in the Recommended Order, as modified by
the correction to Finding of Fact 31 to indicate that Stotler, not Keene, sent
the subject letter, 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 John Keene against Complainant/Respondent
Ronald Stotler is hereby DENIED.
ORDERED by the State of Florida Commission on Ethics meeting in public
session on Thursday, November 30, 1995.
____________________
December 5, 1995
Date
____________________
William J. Rish
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.
cc:
Mr. Jeptha F. Barbour, Attorney for Respondent/Petitioner
Mr. Robert L. McLeod, II, Attorney for
Complainant/Respondent
Division of Administrative Hearings