FINAL ORDER AND PUBLIC REPORT

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on May 6, 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(2), Florida Statutes, as a Springfield City Commissioner by indicating in his meetings with Police Chief Sword and Officer Sumerall that his official actions or judgment with regard to the Springfield Police Department and Officer Rowswell would be influenced by Officer Rowswell’s refusal to reduce the charges made in a traffic ticket given to his son, and Section 112.313(6), Florida Statutes, by threatening to use his position as a Springfield City Commissioner to adversely impact the Springfield Police Department and/or Officer Rowswell’s job. As to these violations, the Administrative Law Judge recommends that a civil penalty of $5,000.00 be imposed upon the Respondent, and that he be publicly censured and reprimanded.

BACKGROUND

This matter began with the filing of a complaint by Chad Rowswell, alleging that Respondent, as a member of the Springfield City Commission, had violated the Code of Ethics for Public Officers and Employees. The allegations were found to be legally sufficient to allege possible violations of Sections 112.313(2), and 112.313(6), Florida Statutes, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On August 29, 1996, the Commission on Ethics issued an order finding probable cause to believe that the Respondent had violated Section 112.313(2) by soliciting the dismissal of a traffic citation against his son, based upon the understanding that his future actions as a City Commissioner with respect to the officer and/or the Police Department would be influenced thereby, and Section 112.313(6) by attempting to use his position, as a member of the City Commission, to have a traffic citation against his son dismissed. The formal hearing before the Administrative Law Judge was scheduled for March 13, 1997. The Recommended Order was transmitted to the Commission and the parties on May 6, 1997, and the parties were notified of their right to file exceptions to the recommended order with the Commission by May 27, 1997, in accordance with Rule 34-5.023(1), Florida Administrative Code. The Commission Advocate’s exception to the Administrative Law Judge’s application of the clear and convincing standard of proof was filed on May 9, 1997. He subsequently filed a motion to withdraw his exception in view of the First District Court of Appeal’s ruling in Latham v. Florida Commission on Ethics, 22 FLW 1041 (Fla 1st DCA May 2, 1997) and the Commission’s decision not to appeal that ruling to the Florida Supreme Court. The Commission Advocate’s motion is hereby granted. Respondent's exceptions were filed with the Commission on May 27, 1997. However, in view of the fact that the complete record of this matter under Section 120.57(1)(j), Florida Statutes, was not placed before the Commission until July 8, 1997, only seven (7) days before the Commission’s July 17, 1997 meeting at which final action was scheduled to be taken in this matter, Respondent’s request for a continuance of the Commission’s final action was granted until the Commission next meeting on September 4, 1997. Having reviewed the Recommended Order, Respondent's exceptions, the complete record, and having considered the arguments of the Respondent 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 RESPONDENT'S EXCEPTIONS

1. The Respondent excepts to paragraph 24 of the Administrative Law Judge’s Recommended order, which he claims is “at odds” with her earlier finding in paragraph 6. In paragraph 24, the Administrative Law Judge concludes as follows:

In this case, it was established by clear and convincing evidence that Respondent solicited a favor, the reduction of his son’s speeding ticket to a warning. The reduction of a ticket was important to Respondent because he was concerned that the ticket might cause his son to be in violation of his probation and result in his being sent to jail. Although Respondent never actually solicited Officer Rowswell, his solicitation of Chief Sword and Officer Sumerall instead of Officer Rowswell does not mean [that] a solicitation did not [take] place.

And in paragraph 6, the Administrative Law Judge finds as follows:

Officer Rowswell was the only person who could reduce the speeding ticket he had issued to the Respondent’s son. He had thirty days within which to make his decision.

Respondent argues that at best the evidence supports an inference of an “attempted solicitation” which is not addressed in Section 112.312(2), Florida Statutes.

Respondent’s exception is rejected. We find nothing inconsistent between paragraph 24 and paragraph 6. The fact that Officer Rowswell may have been the only one who could reduce the traffic citation against Respondent’s son has no bearing on whether Respondent violated Section 112.313(2). The fact that Respondent was mistaken about who he was “soliciting” the reduction of charges from does not mean that a solicitation did not occur.

2. Respondent next excepts to paragraphs 25, 26, and 27 of the Recommended Order. Respondent claims that in those paragraphs the Administrative Law Judge concludes that

the testimony adduced at [the] hearing by the Advocate established by clear and convincing evidence that Respondent’s official vote, action or judgment would be influenced by the failure of Officer Rowswell to reduce the ticket to a warning.

Initially, we note that in paragraph 25 the Administrative Law Judge merely indicated what must be proven to establish a violation of Section 112.313(2), Florida Statutes. It has nothing to do with her evaluation of the evidence. Furthermore, Respondent misstates the Administrative Law judge’s conclusion. Rather than the Administrative Law Judge concluding that Respondent’s official vote, action, or judgment would be influenced by the failure of Officer Rowswell to reduce the ticket to a warning, she concludes that “Respondent’s solicitation was based on an understanding that Respondent’s votes, official actions or judgments with regard to the Springfield Police Department and Officer Rowswell would be influenced by whether Officer Rowswell reduced the speeding ticket to a warning.” In other words, that was the threat that he was making in order to obtain the reduction in his son’s ticket. It is not relevant to whether Respondent violated Section 112.313(2) whether Respondent had any intention of carrying out his threat.

Respondent then argues that he strongly denied the allegation and argues against the existence any evidence indicating that Respondent was influenced by Officer Rowswell to reduce the ticket.

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, drawing permissible inferences from the evidence, and reaching ultimate findings of fact based on competent substantial evidence.

3. Lastly, Respondent takes exception to the Administrative Law Judge’s Conclusions of Law, paragraphs 33, 34, 35, and 36. Specifically, Respondent excepts to the finding that Respondent must have acted with specific intent to secure a special privilege, the reduction of his son’s speeding ticket, and that Respondent acted corruptly through some act that was inconsistent with the proper performance of his public duties. Again, Respondent appears to have misread the Administrative Law Judge’s findings. It was not Respondent’s seeking the reduction of his son’s ticket that created the violation; it was the Administrative Law Judge’s finding that Respondent had threatened to use his official position to adversely impact the Police Department and/or Officer Rowswell’s job which created the violation. For the reasons cited in paragraph 2 above with respect to the existence of competent substantial evidence to support the finding in these mixed findings of fact and conclusions of law, as there is here, Respondent’s exception is rejected.

FINDINGS OF FACT

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 Respondent, as a member of the Springfield City Commission, violated Section 112.313(2), Florida Statutes, by soliciting the dismissal of a traffic citation against his son, based upon the understanding that his future actions as a City commissioner with respect to the police officer and/or the police department would be influenced thereby, and Section 112.313(6), Florida Statutes, by threatening to use his official position as a City Commissioner to adversely impact the Police Department and/or Officer Rowswell’s job.

RECOMMENDED PENALTY

The Administrative Law Judge’s recommendation of $5,000.00 as a civil penalty for Respondent's violation of Sections 112.313(2) and 112.313(6), Florida Statutes, is accepted. Likewise, her recommendation that the Commission recommend that a public censure and reprimand be issued to the Respondent also is accepted.

In consideration of the foregoing and pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, Jimmy Whaley in the total amount of $5,000, and that he receive a public censure and reprimand.

ORDERED by the State of Florida Commission on Ethics this 4th day of September, 1997.

____________________________

Date Rendered

_______________________________

Kathy Chinoy

Chair

cc: Mr. Gary L. Printy, Attorney for Respondent

Mr. Eric S. Scott, Advocate for the Commission

Mr. Chad Rowswell, Complainant

Honorable Carolyn S. Holifield, 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.