BEFORE THE
STATE OF FLORIDA
COMMISSION ON
ETHICS
In
re JOHN POLLET, )
) DOAH Case No. 96-2925
Respondent. ) Complaint
No. 95-132
) COE Final Order No. 97-1
______________________________)
On November 1,
1996, 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.
Although neither the Commission's Advocate nor the Respondent filed exceptions to the Recommended Order,
at the January 23, 1997 meeting of the Commission, counsel for Respondent
moved, ore tenus, that the Commission grant an extension of time to file
exceptions and to postpone final action until Respondent’s exceptions could be
considered. Respondent’s motion was
denied. 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 Kissimmee, 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(7)(a), 112.3148(3), (4), and (8), Florida Statutes, and Commission
staff undertook a preliminary investigation to aid in the determination of
probable cause. On June 4, 1996, the
Commission on Ethics issued an order finding probable cause to believe that the
Respondent violated Section 112.3148(3), Florida Statutes, and thereafter
forwarded this matter 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, a transcript of the hearing was filed, and the
parties then filed proposed recommended orders with the Administrative Law
Judge. The Recommended Order was transmitted
to the Commission and the parties on November 1, 1996, 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. Neither the Respondent nor the Commission's
Advocate filed exceptions.
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.
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 112.3148(3), Florida Statutes, in two
separate instances.
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, John Pollet, in the amount of $2,000 ($1,000 per violation), and
that he be publicly censured and reprimanded.
ORDERED by the
State of Florida Commission on Ethics meeting in public session on Thursday,
January 23, 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. Mark Herron, Attorney for Respondent
Mr.
Eric S. Scott, Commission's Advocate
Mr.
Wendell L. Perdue, Complainant
Division
of Administrative Hearings