BEFORE THE
STATE OF
FLORIDA
COMMISSION
ON ETHICS
JERRY ATTERSON, MICHAEL J. MAHLER, ) Complaint
Nos. 95-64, 95-66, and 95-68
and CHARLES L. SADDLER, III, )
Petitioners, ) DOAH Case Nos. 96-5214FE
vs. ) 96-5215FE
) 96-5216FE
CARROLL G. ALLEN and )
WILLIS D. CONNER, ) COE
Final Order No. 98-38
Respondents. )
)
__________________________________________)
FINAL
ORDER GRANTING PETITION
AWARDING
ATTORNEY’S FEES AND COSTS
On October
12, 1998, an Administrative Law Judge (“ALJ”) for the Division of
Administrative Hearings submitted her Recommended Order to the Commission on
Ethics and the parties to the proceeding, Petitioners Atterson, Mahler, and
Saddler, and Respondents Allen and Conner.
A copy of the Recommended Order is incorporated herein by reference.
The
parties were notified of their right to file exceptions, but no exceptions were
filed. The matter is now before the
Commission for final agency action.
Section
120.57(1)(j), Florida Statutes (1997), furnishes the standard of review that
governs the Commission’s final action on the Recommended Order. It states:
The agency may adopt the recommended order
as the final order of the agency. The
agency in its final order may reject or modify the conclusions of law and
interpretation of administrative rules over which it has substantive
jurisdiction. Rejection or modification
of conclusions of law may not form the basis for rejection or modification of
findings of fact. The agency may not
reject or modify the findings of fact 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 essential
requirements of law. The agency may
accept the recommended penalty in a recommended order, but may not reduce or
increase it without a review of the complete record and without stating with
particularity its reasons therefor in the order, by citing to the record in
justifying the action.
We are
also reminded of what the First District Court of Appeal said in Heifetz v.
Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985), when
it wrote:
It is the hearing officer’s (now
Administrative Law Judge’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. 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. The agency may not reject the
hearing officer’s finding unless there is no competent substantial evidence
from which the finding could not be reasonably inferred. The agency is not authorized to weigh the
evidence presented, judge the credibility of witnesses, or otherwise interpret
the evidence to fit its desired ultimate conclusion.
Heifetz, at 1281.
1. The Findings of Fact
set forth in the Recommended Order 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. Accordingly, the Commission on Ethics
concludes that the reasonable amount of attorney’s fees incurred by the Polk
County Board of County Commissioners on behalf of Petitioners Atterson, Mahler,
and Saddler is $9,012.50, and the reasonable amount of costs incurred is $604.
WHEREFORE,
the Commission on Ethics finds that Complainants Carroll G. Allen and Willis D.
Conner are liable for attorney’s fees and costs in the amount of $9,616.50, and
hereby orders that Respondents pay such fees and costs to the Polk County Board
of County Commissioners.
ORDERED by
the State of Florida Commission on Ethics meeting in public session on December
3, 1998, in Tallahassee, Florida.
______________________________
Date
______________________________
Charles A. Stampelos
Chair
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: Ms.
Karla Foreman Wright, Attorney for Petitioners
Mr. Joseph
N. Baron, Attorney for Respondents
Division
of Administrative Hearings