FINAL ORDER AND PUBLIC REPORT

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on May 21, 1997 by the Division of Administrative Hearings (DOAH) [a copy of which is attached hereto and incorporated herein by reference]. The Administrative Law Judge recommends that the Commission enter a final order and public report finding that the Respondent violated Section 112.313(6), Florida Statutes, as Public Defender of the Thirteenth Judicial Circuit, by making cellular telephone calls to Claude Tanner, a former client, without timely reimbursing the County for the calls. For this violation, she recommends public censure and reprimand. The Administrative Law Judge also recommends that in its final order and public report the Commission find that the Respondent did not violate Section 112.313(6) in connection with Mr. Rodriguez’ representation of Ms. Didier in the appeal of her judgment of dissolution of marriage and in connection with her use of the County-issued cellular telephone to make calls to Ms. Barksdale-Wilson.

BACKGROUND

This matter began with the filing of a complaint by Linda Willis alleging that Respondent, as the Public Defender of the Thirteenth Judicial Circuit, violated the Code of Ethics for Public Officers and Employees. The allegations were found to be legally sufficient to allege possible violations of Section 112.313(6), 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 had violated Section 112.313(6) by asking or allowing one of her staff attorneys to represent Sylvia Didier, a former client of her prior law practice, in a private action. The Commission also found probable cause to believe that the Respondent violated Section 112.313(6), Florida Statutes, by making personal use of her County issued cellular telephone. A formal evidentiary hearing was held before the Administrative Law Judge on February 27, 1997. 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 May 21, 1997, and the parties were notified of their right to file exceptions to the Recommended Order with the Commission by June 10, 1997, in accordance with Rule 34-5.023(1), Florida Administrative Code. The Commission Advocate’s exceptions to the Recommended Order were filed on June 10, 1997. Respondent's exceptions were filed with the Commission on June 11, 1997 after having first been improperly filed with the Division of Administrative Hearings on June 10, 1997. The Advocate also filed her Response to Respondent’s Exceptions on June 23, 1997, and the Respondent filed her Response to the Advocates Exceptions and Reply to the Advocate’s Response on July 7, 1997.

Having reviewed the Recommended Order, Respondent's and the Commission Advocate’s exceptions, their respective responses to the exceptions, and the record in this matter, and having considered the arguments of the Respondent and the Commission 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)(j), 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)(j) 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 COMMISSION ADVOCATE’S EXCEPTIONS

1. The Commission Advocate excepts to paragraph 7 of the Recommended order wherein the Administrative Law Judge finds that “They [Sylvia Didier and Mark Rodriguez] settled on a fee of $1,000 for the work at the District Court level and an additional $1,000 should there be proceedings in the Florida Supreme Court.” The Commission Advocate argues that there is no non-hearsay evidence to support this finding and that while hearsay is admissible in administrative proceedings, it cannot serve as the sole basis for a finding of fact, citing Section 120.57(1)(c), Florida Statutes.

As stated by the court in Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985):

It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inference from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc., 115 So. 2d 566 (Fla. 3d DCA 1959). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other.

It is not our function to reweigh the evidence or to rewrite the Administrative Law Judge’s finding as long as there is competent substantial evidence to support the finding, as there is here. Here, it appears that the Administrative Law Judge fulfilled her function of resolving conflicts, judging the credibility of witnesses (although she did not specifically comment on their credibility or indicate that she was giving greater weight to the credibility of a witness who did not personally appear before her at the hearing), drawing permissible inferences from the evidence, and reaching ultimate findings of fact based on competent substantial evidence.

Although, as the Commission Advocate indicates, Mark Rodriguez testified that the initial discussion regarding fees was with the Respondent, not Ms. Didier, the Respondent testified to the contrary and Ms. Didier also testified that she discussed fees with Mr. Rodriguez. Mr. Rodriguez also could not be certain that he did not discuss fees directly with Ms. Didier. This testimony taken together with the $2,000 check that Ms. Didier wrote to Mark Rodriguez and Respondent’s returning $1,000 to Ms. Didier along with her July 11, 1994 note is sufficient for the Administrative Law Judge to draw an inference that the fee was $1,000 for the work at the District Court of Appeals level and the other $1,000 was for any work that would be required after the District Court proceedings were concluded.

Inasmuch as the Hearing Officer fulfilled her function of weighing the evidence, judging the credibility of witnesses, and drawing permissible inferences from the evidence, Respondent's exception is rejected. We note that permissible inferences do not necessarily have to be the most logical. They merely must be supported by competent substantial evidence, as they are here.

2. The Commission Advocate also excepts to paragraph 10 of the Recommended Order wherein the Administrative Law Judge finds that “Mr. Rodriguez did not want to commence writing the answer brief until he had received payment from Mrs. Didier.” She argues that inasmuch as Ms. Didier testified that the arrangement was that Mr. Rodriguez would be paid only after the appellate court rendered its decision, there is no non-hearsay evidence to support the Administrative Law Judge’s finding.

The Commission Advocate’s exception is granted. The only person who testified that Mr. Rodriguez did not want to commence writing the answer brief until after he had received payment from Mrs. Didier was the Respondent, presumably from a conversation that she had had with Mr. Rodriguez. Mr. Rodriguez did not testify as such and Ms. Didier testified to the contrary that the fee was due after the appellate proceedings had been concluded. Inasmuch as the Administrative Law Judge is using Mr. Rodriguez’s purported out-of-tribunal statement to support a specific finding, that is, the truth of the matter asserted, it is “hearsay.” Although hearsay evidence may be used for the purpose of supplementing or explaining other evidence, it is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. See Section 120.57(1)(c), Florida Statutes. Because it does not appear that the hearsay would otherwise be admissible in a civil proceeding, the Administrative Law Judge’s finding must be stricken. Accordingly, the Commission Advocate’s exception is granted.

RULING ON RESPONDENT’S EXCEPTION

Respondent excepts to paragraph 35 of the Recommended Order wherein the Administrative Law Judge concludes that the Respondent violated Section 112.313(6) when she failed to reimburse the County for five (5) cellular telephone calls to Claude Tanner, a client of her former private law practice. Respondent argues that the conclusion is not based upon competent substantial evidence because there is no evidence that the Respondent possessed the requisite corrupt intent to benefit from her actions when the calls were made. Furthermore, she claims that the legal conclusion is unsupported by the evidence, is incorrect as a matter of law, and is belied by the factual findings of the Recommended Order.

Respondent’s exception is rejected. Intent is a matter for the trier of fact to determine. Dobry v. State, 211 So. 2d 603 (Fla. 3d DCA 1968). It is seldom susceptible of direct proof but is usually shown by circumstantial evidence. Busch v. State, 466 So. 2d 1075 (Fla. 3d DCA 1984), Williams v. State, 239 So. 2d 127 (Fla. 4th DCA 1970). As both parties also acknowledge, “intent may be presumed from the facts and circumstances surrounding the act.” Board of Regents v. Videon, 313 So. 2d 433 (Fla. 1st DCA 1975). Here, the Administrative Law Judge apparently concluded that Respondent’s wrongful intent was determined in part from the fact that Respondent knew that any personal calls made on her cellular telephone had to be reimbursed to the County and that the calls to Mr. Tanner related to her prior private representation of Mr. Tanner and not to any business of the Public Defender’s Office. These facts raise the inference that the Respondent made calls for which she knew the County should be reimbursed, but simply chose not to make reimbursement for them.

An element of a Section 112.313(6) violation is that a public officer or employee “corruptly” used or attempted to use her official position or the resources of her office. “Corruptly” is defined at Section 112.312(9), Florida Statutes, to mean

done with wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.

We find that the Administrative Law Judge correctly concluded that the “wrongful intent” required for Respondent to have acted “corruptly” is determined from the above-noted circumstances.

Moreover, contrary to Respondent’s implied assertions, there is no evidence of honest mistake in the record, nor is there any evidence that Respondent’s communication using a County-issued cellular telephone with Mr. Tanner was necessitated by any ethical obligations under the Rules of Professional Conduct. In fact, notwithstanding Respondent’s assertion that a Public Defender must be a member in good standing in the Florida Bar, the Florida Bar claims to have no jurisdiction to discipline or even investigate the professional conduct of constitutional officers who are required to be members of the Florida Bar while they remain public officers.

FINDINGS OF FACT

With the exception of Finding of Fact No. 10, the Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference. With respect to Finding of Fact No. 10, the Recommended Order is hereby modified to strike the following statement, “Mr. Rodriguez did not want to commence writing the answer brief until he had received payment from Mrs. Didier.”

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 Public Defender of the Thirteenth Judicial Circuit, violated Section 112.313(6), Florida Statutes, by making cellular telephone calls to her former client, Claude Tanner, and not reimbursing the County in a timely manner, and did not violate Section 112.313(6) by asking or allowing one of her staff attorneys to represent Sylvia Didier, a former client of her private law practice, in an appeal of her judgment of dissolution of marriage or in connection with her use of the County-issued cellular telephone to make calls to Ms. Barksdale-Wilson.

RECOMMENDED PENALTY

The Administrative Law Judge’s recommendation of a public censure and reprimand for Respondent's violation of Section 112.313(6), Florida Statutes, is accepted.

In consideration of the foregoing and pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor publicly censure and reprimand the Respondent, Julianne Holt.

ORDERED by the State of Florida Commission on Ethics this ____ day of July, 1997.

____________________________

Date Rendered

________________________

Chair

cc: Mr. Scott K. Tozian, Attorney for Respondent

Ms. Virlindia Doss, Advocate for the Commission

Ms. Linda Willis, Complainant

Honorable Susan B. Kirkland, Administrative Law Judge

Division of Administrative Hearings

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.