BEFORE THE
STATE OF FLORIDA
COMMISSION ON
ETHICS
In
re ROBERT LEE THOMAS, )
) DOAH Case No. 96-3811
Respondent. ) Complaint
No. 95-117
) COE Final Order No. 97-05
______________________________)
On January 10,
1997, an Administrative Law Judge from the Division of Administrative Hearings
(DOAH) submitted to the parties and the Commission her Recommended Order, a
copy of which is attached hereto. The
Commission's Advocate filed an exception to the Recommended Order on January
30, 1997, and the matter thereafter came before the Commission on Ethics for
final agency action.
These proceedings
were initiated by the filing of a sworn complaint alleging that the Respondent,
while serving as Mayor of the City of Glen St. Mary, violated the Code of
Ethics for Public Officers and Employees.
The complaint was found to be legally sufficient to indicate possible
violations of Sections 112.313(6), 112.313(7)(a), and 112.313(8), Florida
Statutes, and Commission staff undertook a preliminary investigation to aid in
the determination of probable cause. On
March 12, 1996, the Commission on Ethics issued an order finding probable cause
to believe that the Respondent violated Sections 112.313(6), 112.313(7)(a), and
112.313(8), Florida Statutes, and the matter was forwarded to the Division of Administrative Hearings for conduct
of a formal hearing and entry of a recommended order. Thereafter, a formal evidentiary hearing was held before the
Administrative Law Judge, the proceeding was recorded but not transcribed, and
the Commission’s Advocate timely filed a proposed recommended order. The Recommended Order was transmitted to the
Commission and the parties on January 10, 1997, and the parties were notified
of their right to file exceptions to the Recommended Order in accordance with
Rule 34-5.023(1), Florida Administrative Code.
The Commission's Advocate filed an exception to the penalty
recommendation.
Under Section
120.57(1)(j), Florida Statutes (1996 Supp.), an agency may reject or modify the
conclusions of law and interpretations of administrative rules over which it
has substantive jurisdiction. However,
the agency may not reject or modify findings of fact made by the
Administrative Law Judge unless the agency first determines from a review of
the entire 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. 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
Administrative Law Judge. 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 Administrative Law Judge, the Commission
is bound by that finding.
In his exception,
the Advocate points out that Administrative Law Judge recommended that the
Respondent be ordered to make restitution of the $10,000 profit he made on the
land deal to the City of St. Mary.
However, as the Advocate correctly notes, the proper recipient of the $10,000
restitution penalty would be the State of Florida, not the City of Glen St.
Mary, citing In re Michael W. Kenton, 13 F.A.L.R. 1295 (1989). Therefore, the Advocate’s exception is
granted.
The findings of
fact set forth in the Recommended Order are approved, adopted, and incorporated
herein by reference.
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 did violate Section 112.313(6), 112.313(7)(a), and
112.313(8), Florida Statutes.
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, Robert Lee Thomas, in the amount of $3,000 ($1,000 per violation),
that he be ordered to pay a $10,000 restitution penalty to the State of
Florida, and that he be publicly censured and reprimanded.
ORDERED by the
State of Florida Commission on Ethics meeting in public session on Thursday,
March 6, 1997.
______________________________
Date
______________________________
Mary Alice Phelan
Chairman
YOU ARE NOTIFIED
THAT YOU ARE ENTITLED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL
REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF
ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE
CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE
FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
cc: Mr.
Robert Lee Thomas, Respondent
Mr. Eric S. Scott,
Commission's Advocate
Ms. Claudia S.
Clary, Complainant
Division of
Administrative Hearings