BEFORE THE
STATE OF
FLORIDA
COMMISSION
ON ETHICS
In re RON D. BAKER, )
) Complaint No. 97-103
Respondent. )
DOAH Case No. 99-3250FE
)
) Final Order No. 00-054
________________________)
This
matter came before the State of Florida Commission on Ethics, meeting in public
session on Friday, November 17, 2000, pursuant to the Recommended Order of the
Division of Administrative Hearings' Administrative Law Judge rendered in this
matter on June 29, 2000 [a copy of which is attached and incorporated by
reference]. The Administrative Law
Judge (“ALJ”) recommends that the Commission enter a final order and public report
finding that the Respondent [in this fee petition proceeding], JAMES E.
CHANDLER, is not liable for attorney's fees and costs and dismissing the
Petition for Attorney's fees.
This
matter began with the filing of a complaint on July 1, 1997, and an amended
complaint on January 28, 1998 by James A. Chandler, as Indian River County
Administrator, alleging that the Petitioner, RON D. BAKER, as Personnel
Director of Indian River County, violated various provisions of the Code of
Ethics for Public Officers and Employees (Part III, Chapter 112, Florida
Statutes). The Executive Director of
the Commission on Ethics determined that, based on the information provided in
the complaint and amended complaint, the allegations were sufficient to warrant
a preliminary investigation under Sections 112.313(2), (4), (6), (7)(a), and
112.3148(4), Florida Statutes.
Commission staff undertook a preliminary investigation of these matters
to aid in the Commission's determination of probable cause. The findings of the investigation were
summarized in a Report of Investigation (ROI) issued on March 8, 1999. On June 3, 1999, after considering the ROI
and the Commission Advocate's Recommendation, and after hearing from the
Advocate and the Petitioner, the Commission found that no probable cause
existed to believe that the Petitioner violated Sections 112.313(2), (4), (6),
(7)(a), and 112.3148(4), as alleged.
Thereafter, Petitioner timely filed a Petition for Attorney's Fees and
Costs.
The matter
was forwarded by the Commission on Ethics to the Division of Administrative
Hearings for assignment of an ALJ to conduct the final hearing and prepare a
recommended order. A formal evidentiary
hearing was held before the ALJ on December 6, 1999 and February 22 and 23,
2000. A transcript of the hearing was
filed and the parties then filed proposed recommended orders with the ALJ. The ALJ”s Recommended Order was transmitted
to the Commission and to the parties on June 29, 2000, and the parties were
notified of their right to file exceptions to the Recommended Order with the
Commission within 15 days from the date that the Recommended Order was rendered
(by July 14, 2000). Thereafter, both Petitioner and the Respondent timely
filed exceptions to the ALJ’s
Recommended Order. The Respondent also
filed a “Response to Petitioner Baker’s Exceptions to Recommended Order”
(“Respondent’s Response”).
Under
Section 120.57(1)(l), 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 ALJ 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 ALJ, the Commission is bound by that
finding.
Under the
Section 120.57(1)(l), Florida Statutes, an agency may reject or modify the
conclusions of law over which it has substantive jurisdiction and
interpretations of administrative rules over which it has substantive
jurisdiction. When rejecting or
modifying such conclusion of law or interpretation of administrative rule the
agency must state with particularity its reasons for rejecting or modifying
such conclusion of law or interpretation of administrative rule and must make a
finding that its substituted conclusion of law or interpretation of
administrative rule is as or more reasonable than that which was rejected or
modified.
Having
reviewed the Recommended Order and listened to the arguments of the parties,
the Commission makes the following findings, conclusions, rulings and
recommendations.
RULINGS ON
PETITIONER'S EXCEPTIONS TO THE
ALJ’S
FINDINGS OF FACT
1. The Petitioner excepts to paragraph 35 of the
ALJ's Recommended Order which he claims demonstrates her misunderstanding of
the law and her apparent "prejudicial bias" towards him. The ALJ notes that Petitioner's case focused
mainly on his assertion that the alleged violations in Respondent's complaint
against him were not proven. She finds
that that issue has already been determined by the Ethics Commission, as
indicated by its dismissal of his complaint and amended complaint. She then distinguishes that issue from the
issue in this case, which she correctly notes is whether the Respondent filed
the complaint and amended complaint with a malicious intent to injure the
reputation of Petitioner by filing the complaint and amended complaint with
knowledge that they contained one or more false allegations, or with reckless
disregard for whether they contained false allegations of fact material to a
violation of the Ethics Code.
Petitioner's
exception is rejected. We do not find
that the ALJ demonstrated any bias or prejudice towards the Petitioner in these
proceedings, nor do we find that she mischaracterizes Petitioner's arguments or
the issue in this case.
2. Petitioner next excepts to the ALJ's finding
of fact No. 36 wherein she finds that, rather than filing his complaint and
amended complaint against the Petitioner in order to injure his reputation, he
filed the complaint in order to carry out the responsibilities of his job as
appointed County Administrator. She
found that, as County Administrator, the Respondent could not reasonably nor
justifiably ignore the serious allegations of impropriety made against Petitioner
merely because Petitioner denied or disputed the allegations.
As noted
above, and 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 inferences 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.
The ALJ
properly fulfilled her function here.
It is not our function to reweigh the evidence or attempt to draw
different inferences from the evidence as long as there is competent
substantial evidence to support the ALJ’s findings, as there is here. We also are not free to reevaluate the
quantity and quality of the evidence beyond determining whether the evidence is
competent and substantial. Because
there is competent substantial evidence of record to support the ALJ’s finding,
Petitioner's exception is rejected.
Moreover,
contrary to Petitioner's argument[1]
that, before he filed his complaint with the Commission on Ethics, Respondent
had a duty to read the statutes that he was claiming that Petitioner violated
in order to determine whether the information available to him was sufficient
to prove each element of the statutes allegedly violated by the Petitioner,
Rule 34-5.002(1), F.A.C., specifically states
Complaints
need not be as precise as would be required by the rules of civil procedure in
a court of law and shall be deemed sufficient if the complainant under oath upon
knowledge or belief alleges matters which, if true, may constitute a breach
of the public trust. A complaint shall
not be insufficient because it is based upon evidence which would be hearsay
evidence in a court of law. . .
. [E.S.]
Nor did
Respondent have a duty, as Petitioner claims, to investigate in order to
determine whether the actions he was accusing the Petitioner of violating were
in fact true. The duty that the
Respondent had with respect to the filing of his complaint is set forth in
Section 112.317(8), Florida Statutes, that is, not to file a complaint with a
malicious intent to injure Petitioner’s reputation by filing the complaint with
knowledge that it contained one or more false allegations or with reckless
disregard for whether the complaint contained false allegations of fact
material to Part III of Chapter 112, Florida Statutes.
3. Petitioner excepts to the ALJ’s Finding of Fact
No. 37 wherein she finds that the
allegations in Respondent’s complaint and amended complaint were based upon
sworn testimony, interviews, and documents obtained during investigations by
trained investigators and confirmed by documentary evidence and sworn testimony
presented at official proceedings. He
argues that many of the allegations were not based on sworn testimony,
interviews or documents which were before the Respondent when he filed his
complaint. Petitioner also argues that
the recommendations that the Commission Advocate made to the Commission and the
Commission’s findings of no probable cause indicate that Respondent’s
allegations did not satisfy all of the elements required by the Code of Ethics
statutes alleged to have been violated by the Petitioner.
Because
there is competent substantial evidence of record to support the ALJ’s finding,
as noted in Respondent’s Response at p. 6, and for the reasons stated in
paragraph 2 above, Petitioner’s exception is rejected.
Moreover,
Petitioner has not excepted to the ALJ’s finding that Detective Beckerdite
conducted interviews, took sworn statements and obtained documents supporting
the allegations [Finding of Fact No. 12].
Nor did he except to her finding that Investigator Von Buelow took sworn
statements and/or interviewed several individuals and reviewed documents which
appeared to substantiate the claims or allegations made in the complaint and
amended complaint [Finding of Fact No. 22].
He also did not except to the ALJ’s
finding that Respondent’s complaint included a copy of Detective
Beckerdite’s report and the attachments thereto [Finding of Fact No. 17] and
that the allegations of the amended complaint were based on the “testimony or
statements of individuals given during the pre-determination or post-determination
hearing, depositions, or Investigator Von Buelow’s investigation and on
documents received during the aforementioned proceedings or investigations.”
[Finding of Fact No. 31]. Therefore,
Petitioner, in effect, conceded that these findings are supported by
substantial competent evidence of record.
The ALJ’s finding here is nothing more than her making an ultimate
finding of fact based on the competent substantial evidence of record and on
her prior findings of fact. Inasmuch as
the ALJ fulfilled her function of weighing the evidence, judging the
credibility of witnesses, and drawing permissible inferences from the evidence,
Respondent’s exception must be rejected.
4. Petitioner excepts to the ALJ’s Finding of
Fact No. 38 wherein she finds that, although Petitioner denied Respondent’s
allegation concerning James Carraway, who had an ownership interest in a
company providing contractual services to the County, providing Petitioner’s
daughter with an airline ticket to travel from Colorado to Florida, the
allegation was based on Jon Peterson’s sworn statement to Detective
Beckerdite. Petitioner argues that
there was no evidence that James Carraway provided Petitioner’s adult daughter
with airline tickets, as the ALJ finds, and that the allegations, if true,
would not constitute violations of the Code of Ethics, since all of the
elements of the statutes alleged to have been violated were not “satisfied.”
Apart from
Petitioner’s misreading of the ALJ’s finding,[2]
which warrants our rejection of his argument that there was no evidence that
James Carraway provided Petitioner’s daughter with an airline ticket, we find
that there is competent substantial evidence of record, as noted at p. 6 of the
Respondent’s Response, to support the
ALJ’s finding. We also find that the
proceedings on which the findings are based complied with the essential
requirements of law. Therefore,
Petitioner’s exception is rejected.
5. Petitioner excepts to the ALJ’s Finding of
Fact No. 39 relative to the allegation in Respondent’s complaint concerning
Petitioner’s daughter’s receipt of an airline ticket from James Carraway and,
specifically, her finding that Catherine Wendt, James Carraway’s secretary, advised
the Commission on Ethics’ investigator under oath that she had arranged a trip
for Petitioner’s daughter using Mr. Carraway’s frequent flyer miles, and that
this fact was significant when viewed together with Respondent’s allegation
that Petitioner may have violated the Code of Ethics because the provision of
the airline ticket to Petitioner’s daughter allegedly occurred at or near the
time that Respondent had contacted Jon Peterson to request that he submit a bid
for the Indian River County drug screening contract. The ALJ found that it also was significant because Mr. Peterson
was a partner with James Carraway in Brevard Drug Screening which was awarded
the contract. The ALJ found that
Peterson’s allegation regarding the airline ticket, which was included in
Respondent’s complaint was not false.
Because we
find that the ALJ’s finding is supported by competent substantial evidence of
record, as noted in Respondent’s Response at p. 6, and because we find that the
proceedings on which the ALJ’s findings are based complied with the essential
requirements of law, Petitioner’s exception is rejected.
6. Petitioner next excepts to the ALJ’s Finding
of Fact No. 40 wherein she finds that with respect to Respondent’s allegation
concerning Petitioner’s use of a cabin, chalet or condominium owned by James
Carraway and located in North Carolina, Jon Peterson gave a sworn statement to Detective Beckerdite and
testified at the pre-determination hearing that arrangements had been made for
Petitioner to use the Carraway cabin or chalet. While noting that Petitioner denied the allegation, the ALJ found
that evidence existed to support the allegation. Such evidence was Commission on Ethics Investigator Reaves’
determination that Mr. Carraway, in fact, owned a cabin, chalet, or condominium
in North Carolina that was available for use by friends and associates, and
that a request was made for Petitioner to use it. Petitioner argues that the ALJ’s “incredibly naive and legally
erroneous” conclusion of law which “assumes that just because James Carraway
sometimes let people use his cabin and that someone may have requested the
cabin for Baker that, ipso facto, this was evidence that Baker did, in
fact use Carraway’s cabin. He argues
that the finding that Petitioner actually used Mr. Carraway’s cabin is not
supported by competent substantial evidence and does not comply with the
essential requirements of law.
We reject
Petitioner’s exception. First, we note
that findings of fact form the basis for conclusions of law, not vice versa. Next we note that Petitioner again misreads
the ALJ’s finding. The ALJ does not
find that Petitioner, in fact, used James Carraway’s cabin; rather, she finds
that there was evidence to support the Respondent’s allegation. Finally, we
find that there is competent substantial evidence of record, as noted at p. 6
of Respondent’s Response, to support the ALJ’s finding of fact, and that the
proceedings upon which the ALJ’s findings are based complied with the essential
requirements of law.
7.
Finding of Fact No. 41 also is excepted to by the petitioner. There, the ALJ found that evidence existed
to support the allegation in Respondent’s complaint relative to Petitioner’s
allegedly receiving stock car race tickets from James Carraway. The ALJ found that such evidence included
Jon Peterson’s giving sworn statements to Detective Beckerdite, his testifying
under oath that he had received stock car race tickets from James Carraway and
had given the tickets to the Petitioner, and James Carraway’s admitting to the
Commission on Ethics Investigator that he had given stock car race tickets to
Mr. Peterson and that such tickets may have been given to the Petitioner.
Again, we
note that the Petitioner misreads the ALJ’s finding here. Inasmuch as there is competent substantial
evidence of record to support the ALJ’s finding, as noted in Respondent’s
Response at p. 6, Petitioner’s exception is rejected. Although throughout his exceptions, as in this exception,
Petitioner continuously claims that the ALJ’s findings of fact, do not comply
with the essential requirements of law, he neglects to indicate how the
proceedings upon which the findings are based fail to comply with the
“essential requirements of law.”
Because we find that the
proceedings upon which the ALJ’s findings of fact are based do comply with the
“essential requirements of law,” we reject this claim as well.
8. Petitioner excepts to the ALJ’s Findings of
Fact Nos. 42 and 43 which relate to the allegations in Respondent’s complaint
concerning the hiring of Petitioner’s son by James and Zander Carraway and Jon
Peterson. The ALJ finds that,
notwithstanding Petitioner’s statement that he gave to Detective Beckerdite
indicating that he had asked James Carraway to “help” his son “get on his feet”
and denying that he ever asked Jon Peterson to hire his son, the statements of
Colleen and Jon Peterson and the documents that they also gave to Detective
Beckerdite provide some support for the allegation.
For the
reasons stated in paragraph 2 above, Respondent’s exception is rejected. We find that competent substantial evidence
of record, as noted in Respondent’s Response at p. 6, existed to support the
ALJ’s finding, and the proceedings on which the ALJ’s findings of fact are
based complied with the essential requirements of law. In addition, we find that Petitioner’s
reliance of CEO 85-35 is misplaced. In
CEO 85-35, we found that no conflict of interest existed under Section
112.313(3), Florida Statutes, where the sons of a Director of the Division of
Purchasing, Department of General Services (now Department of Management
Services), were employed as salesmen by corporations doing business with the
Division and other State agencies because his sons were employees rather than
officers or owners of the corporations.
This opinion was not based on the same or a similar set of facts or
circumstances as alleged in this complaint nor did it discuss Sections
112.313(2), (4), (6), and 112.3148(4), Florida Statutes, the provisions of the
Code of Ethics that were alleged to have been violated by the Petitioner.
9. Petitioner excepts to the ALJ’s Finding of
Fact No. 44 which relates to the allegation in Respondent’s complaint
concerning “Petitioner’s potential involvement in a joint venture with James
Carraway, owner of a County vendor, and his son, Zander Carraway, and Dr. Leo
Bradman. Petitioner argues that the
ALJ’s findings are not supported by competent substantial evidence and do not
comply with the essential requirements of law, and the evidence to support each
and every element of the Ethics Code provisions which the Respondent claimed
that Petitioner violated did not exist.
For the
reasons stated in paragraph 2 above, and because we find both that there exists
substantial competent evidence of record, as noted in Respondent’s Response at
p. 7, to support the ALJ’s findings, and the proceedings upon which the ALJ’s
findings are based complied with the essential requirements of the law,
Petitioner’s exception is rejected.
10. Petitioner excepts to the ALJ’s Findings of
Fact No. 45 which relate to the allegation in Respondent’s amended complaint
about Petitioner’s admission in a deposition taken in a civil action that while
serving as Personnel Director for Indian River County, he negotiated for the
purchase of the EAP business from James Carraway. The ALJ found that evidence
existed to support the allegation.
However, Petitioner argues that the ALJ’s findings are a “gross
mischaracterization of the facts, are not supported by competent substantial
evidence, and do not comply with the essential requirements of the law.
For the
reasons stated in paragraph 2 above, and because we find that there exists
substantial competent evidence of record, as noted in Respondent’s Response at
page 7, to support the ALJ’s findings, and that the proceedings upon which the
ALJ’s findings are based complied with the essential requirements of law,
Petitioner’s exception is rejected.
11. Petitioner excepts to the ALJ’s Findings of
Fact Nos. 46 and 47 relating to the allegation in Respondent’s complaint that
Petitioner co-signed a credit card application with Colleen Peterson, who is
Petitioner’s subordinate, the County’s personnel administrator and the wife of
Jon Peterson, owner of Brevard Drug Screening, an Indian River County
vendor. The ALJ found that the
allegation was based on sworn statements made by Colleen Peterson as well as
documents provided by the Petersons to Investigator Von Buelow. However, Petitioner again argues that
Respondent failed to allege facts sufficient to prove each element of the
statute that he was alleging that Petitioner had violated. He claims that because the Respondent knew
that no evidence existed to prove that by applying for a credit card with
Colleen Peterson, Petitioner violated a provision of the Ethics Code, Respondent must have maliciously included this
“false” allegation to injure Petitioner’s reputation.
For the
reasons stated in paragraph 2 above, and because we find both that there
exists substantial competent evidence
of record, as noted in Respondent’s Response at p. 7, to support the ALJ’s findings,
and that the proceedings on which the ALJ’s findings are based complied with
the essential requirements of law, Petitioner’s exception is rejected.
12. Petitioner excepts to the ALJ’s Findings of
Fact Nos. 48, 49 and 50 which relate to the circumstances surrounding
Petitioner’s hiring of Colleen Peterson as Personnel Assistant. The ALJ found that the allegations were
based on statements made by Colleen Peterson and documents provided to Investigator
Von Buelow during his investigation, and that a comparative review of Ms.
Peterson’s resume with her actual experience, as well as a review of the
applications of the other applicants for the same position, indicated that she
may not have met the advertised job requirements, education, or experience as a
grievance adjuster, which some of the other applicants possessed. Consequently, the ALJ found that evidence
existed to support this allegation in Respondent’s complaint.
In
addition to asking where the ALJ was when testimony and evidence was presented
during the hearing which “proved that the changes that Colleen Peterson made to
her resume were not untrue,” Petitioner
claims that because the Respondent knew that the allegation that he was making
was not being made “in good faith,” that it was a “maliciously false claim”
intended to injure Petitioner’s reputation, and that he did nothing wrong in
hiring Colleen Peterson, the ALJ’s finding was not supported by competent
substantial evidence, and does not comply with the essential requirements of
law.
For
the reasons stated in paragraph 2 above, and because we find both that there
exists substantial competent evidence of record, as noted in Respondent’s
Response at p. 7, to support the ALJ’s findings, and that the proceedings on
which the ALJ’s findings are based complied with the essential requirements of
law, Petitioner’s exception is rejected.
13. Petitioner excepts to the ALJ’s Findings of
Fact Nos. 51, 52 and 53 which relate to the allegation in Respondent’s amended
complaint concerning Petitioner’s directing an Indian River County employee
with a substance abuse problem to an in-patient treatment program at Heritage
Hospital which was owned by James Carraway or in which Mr. Carraway held a
financial interest. After discussing
the circumstances surrounding the referral, Mr. Carraway’s interest in the
Hospital, and the significance of the referral to the alleged Ethics Code
violation, the ALJ found that because the allegation was based on statements
that Jon Peterson had made to Investigator Von Buelow and on the deposition
testimony of Dr. Leo Bradman, evidence existed to support the allegation. However, Petitioner argues that it was Jon
Peterson, rather than he, who sent the employee to the Heritage Hospital, and,
if the Respondent had asked the employee, he would have known that Mr.
Peterson’s statement was not credible.
Petitioner argues further that, even if he had referred the employee to
Heritage Hospital, this fact alone would not support a charge that he had
violated the Ethics Code and that the Respondent knew that his allegation did
not constitute a violation of the Ethics Code when he made it.
It is
not our function to reweigh the evidence or to rewrite the ALJ’s finding as
long as there is competent substantial evidence to support the finding, as
there is here. (See Respondent’s Response at p. 8) Here, it appears that the ALJ 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. Therefore,
Petitioner’s exception is rejected.
14. Petitioner excepts to the ALJ’s Finding of
Fact No. 54 which concerned allegations in Respondent’s amended complaint
concerning Petitioner’s allegedly requesting that Jon Peterson and the
Carraways, both County vendors, make certain payments to Petitioner or
Petitioner’s relatives. Specifically,
an allegation was made that payment was made by Brevard Drug Screening to
Petitioner for construction work he did on a bathroom at the Brevard Drug
Screening Office and of medical expenses incurred by Petitioner’s wife. The ALJ found that the allegations were
based on statements that Jon Peterson had made to Investigator Von Beulow and
on “substantiating” documents that the Petersons provided, both of which were
included in or along with Von Beulow’s investigative report. The ALJ also found that, notwithstanding the
later determination that the alleged payments were not improperly made, at the
time that the amended complaint was prepared and filed by the Respondent,
evidence existed which supported the allegations.
In
addition to summarily claiming that the ALJ’s finding was not supported by
competent substantial evidence and did not comply with the essential
requirements of law, Petitioner argues that because the Respondent did not
personally investigate to determine whether the allegations that Peterson made
to Investigator Von Beulow were “credible and trustworthy,” as was his duty,
Respondent acted with malice.
For
the reasons stated in paragraph 2 above, and because we find both that there
exists substantial competent evidence of record, as noted in Respondent’s
Response at p. 8, to support the ALJ’s findings, and that the proceedings on
which the ALJ’s findings are based complied with the essential requirements of
law, Petitioner’s exception is rejected.
15. Petitioner excepts to the ALJ’s Finding of
Fact No. 55 which he mistakenly labels as No. 54. There, the ALJ finds that, because the allegation concerning the
Carraways advancing Petitioner’s son the sum of $2,000 was based on statements
made by Jon Peterson during the Von Buelow investigation and during the August
1997 pre-determination hearing, evidence existed to support the allegation.
For
the reasons stated in paragraph 2 and 8 above, and because there exists
substantial competent evidence of record, as noted in Respondent’s Response at
pp. 8 and 9, to support the ALJ’s findings, and the proceedings on which the
ALJ’s findings are based complied with the essential requirements of the law,
Petitioner’s exception is rejected.
16. Petitioner excepts to the ALJ’s Finding of
Fact No. 56 which relates to the allegation in Respondent’s amended complaint concerning
Jon Peterson’s allegedly paying Petitioner’s cellular telephone bill. The ALJ found that this allegation was
supported by the testimony of Colleen Peterson, by Jon Peterson’s testimony at
the August 13, 1997 predetermination hearing, and by a copy of a canceled check
given by the Peterson’s to Detective Beckerdite. The ALJ found further that, notwithstanding Petitioner’s
testimony explaining the reason for the payment, at the time that Respondent
“completed” his amended complaint, evidence existed to support the allegations.
Petitioner
argues that, apart from the allegation being false and malicious, there was no
evidence to support it and Respondent knew that he had no evidence to prove all
of the necessary elements required for a violation of the statute that he
claimed that the Petitioner had violated to exist. Therefore, the ALJ’s finding was not supported by competent
substantial evidence and does not comply with the essential requirements of
law, Petitioner asserts.
For the reasons
stated in paragraph 2 above, and because we find both that there exists
substantial competent evidence of record, as noted in Respondent’s Response p.
8, to support the ALJ’s findings, and the proceedings on which the ALJ’s
findings are based complied with the essential requirements of the law,
Petitioner’s exception is rejected.
17. Petitioner excepts to the ALJ’s Finding of
Fact No. 57 wherein she found that the allegation in Respondent’s amended
complaint concerning Petitioner’s directing Colleen Peterson, a County
employee, to prepare personal letters for him during business hours using
County equipment was based on Colleen Peterson’s statements to Investigator Von
Beulow and on supporting documentary evidence.
Therefore, she found that evidence existed to support the allegation at
the time that Respondent filed his amended complaint. However, Petitioner argues to the contrary by claiming that no
evidence existed to support either Respondent’s allegation or the elements of
the Ethics Code provisions that Respondent was “falsely and maliciously”
accusing Petitioner of violating.
Petitioner asserts that if Colleen Peterson typed letters while she was
on duty at her job with Indian River County indicates, she may have violated the
Ethics Code -- not the Petitioner.
For the
reasons stated in paragraph 2 above, and because we find both that substantial
competent evidence of record, as noted in Respondent’s Response at p. 9,
existed to support the ALJ’s findings, and the proceedings on which the ALJ’s
findings are based complied with the essential requirements of law,
Petitioner’s exception is rejected.
18. Petitioner excepts to the ALJ’s Findings of
Fact Nos. 58 and 59 regarding the allegation in Respondent’s amended complaint
pertaining to Petitioner’s alleged use of the research resources of the County
Attorney’s office to obtain information and materials for his son for a project
unrelated to County business.
Notwithstanding the fact that the allegations could not be substantiated
and/or did not constitute violations of the Code of Ethics, the ALJ found that
their inclusion in the allegations was reasonably based on information that the
Respondent had obtained from reliable sources, including the Beckerdite and Von
Beulow’s investigative reports, the records of the predetermination and the
post-determination hearings, and depositions from other legal proceedings. Nevertheless, Petitioner argues that the
ALJ’s findings of fact are not supported by competent substantial evidence and
do not comply with the essential requirements of law.
For the
reasons stated in paragraph 2 above, and because we find both that competent
substantial evidence of record, as noted in Respondent’s Response at pp. 9 and
10, existed to support the ALJ’s findings, and the proceedings on which the
ALJ’s findings are based complied with the essential requirements of the law,
Petitioner’s exception is rejected.
19. In her Finding of Fact No. 60, the ALJ finds that Petitioner’s Attorney’s regular
hourly rate is $225. She also finds
that trial time is billed by the Attorney at $450 per hour and his travel time
is billed at half of his regular hourly rate or $112.50 an hour. Next, in her Finding of Fact No. 61, the
ALJ finds that for the period July 9, 1997, when Petitioner’s Attorney was
retained, through March 23, 2000, when Petitioner’s proposed recommended order
was filed with the ALJ, Petitioner’s Attorney expended 233.70 hours working on
his case. Consequently, she finds that Petitioner
has incurred total attorney’s fees and costs of $55,576.25 and $10,296.83,
respectively. The ALJ concludes that
these fees and costs are reasonable.
However, the Petitioner argues that the ALJ “ignored, misapprehended,
and overlooked, or failed to consider that the contract between the Petitioner
and his attorney” contemplated that the Attorney’s rates were minimum fees and
that the price for services would be adjusted upward based on a number of
factors or a multiplier applied based
on a number of factors when billing or claiming against third parties. He also excepts to the ALJ’s failure to
consider his costs and attorney’s fees for work performed after the conclusion
of the DOAH evidentiary hearing, including this proceeding.
Because
there is competent substantial evidence of record to support the ALJ’s failure
to adjust Petitioner’s Attorney’s fee upward or to include a multiplier when
considering the amount of reasonable Attorney’s fees, Petitioner’s exception to
this part of the ALJ’s finding is rejected.
However, we grant Petitioner’s exception regarding the ALJ’s failure to
include a reasonable amount of costs and attorney’s fees for work performed
after the conclusion of the DOAH evidentiary hearing, including this
proceeding. Nevertheless, because we
agree with the ALJ’s finding and conclusion that the Petitioner is not entitled
to an award of attorney’s fees and costs from the Respondent, we decline to
remand this matter back to the DOAH for further findings.
20. Petitioner excepts to the ALJ’s Finding of
Fact No. 62 in which she makes an ultimate finding based on her prior
findings. She finds that the Respondent
did not file his complaint and amended complaint with a malicious intent to injure
the reputation of Petitioner by filing his complaints with knowledge that the
complaints contained one or more false allegation[s] or with reckless disregard
for whether the complaints contained false allegations of fact material to a
violation of the Ethics Code.
Therefore, she concludes that the Petitioner is not entitled to an award
of attorney’s fees and costs from the Respondent.
However,
Petitioner disputes this finding and claims that proof of Respondent’s malice
towards him is his [Petitioner’s] testimony regarding the occurrence of eleven
actions that the Respondent allegedly took against him. All of this, Petitioner
claims, indicates that the ALJ “overlooked or misapprehended and misconstrued
the controlling law,” and “misconceived, misconstrued, misapprehended, mistakenly
ignored or for some reason failed to recall” and apply to law to the evidence
that Petitioner presented during the seven hour hearing in December 1999 and
the 13 hour hearing in February 2000.
Petitioner asserts that the ALJ’s findings and conclusions are contrary
to the law and contrary to the “manifest weight of the evidence,” are not
“based on credible, competent and admissible evidence,” and “constitute an
about of her discretion.”
It is not
our function to reweigh the evidence or to rewrite the ALJ’s finding as long as
there is competent substantial evidence to support the finding, as there is
here. Here, it appears that the ALJ 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. For these
reasons, as well as the reasons stated by the Respondent in his Response at pp.
10 and 11, Petitioner’s exception is rejected.
RULINGS ON
PETITIONER’S EXCEPTIONS TO THE
ALJ’S
CONCLUSIONS OF LAW
21. Petitioner excepts to paragraph No. 70 of the
ALJ’s Conclusions of Law wherein she finds
Petitioner
has failed to establish that the complaint was filed against him with a
malicious intent to injure his reputation by filing the complaint with
knowledge that the complaint contained one or more false allegations or with
reckless disregard for whether the complaint contained false allegations of
fact material to a violation of the Code of Ethics. Thus, Petitioner is not entitled to an award of attorney’s fees
and costs.
As the
Court reiterated in Goin v. Commission on Ethics, 658 So 2d 1131 (Fla.
1st DCA 1995), and initially held in Langston v. Jamerson, 653 So. 2d
489 (Fla. 1st DCA 1995), the question of whether the facts, as found in the
recommended order, constitute a violation of a rule or statute, is a question
of ultimate fact which the agency may not reject without adequate explanation. Inasmuch as the ALJ’s conclusion flows from
the facts found and inasmuch as they are supported by competent substantial
evidence in the record, Petitioner’s exception is rejected.
RULINGS ON
RESPONDENT’S EXCEPTIONS TO
ALJ’S
FINDINGS OF FACT
22. Respondent also excepts to the ALJ’s Finding
of Fact No. 61 wherein she finds that Petitioner’s attorney’s fees and costs of
$55,576.25 and $10,296.83, respectively are reasonable. He disputes the reasonableness of the fees
as being excessive and the costs as including amounts that are not
taxable. However, he also writes that
should the Commission accept the ALJ’s recommended order as proposed, then his
exceptions may be overruled as moot.
Because we
agree with the ALJ’s finding and conclusion that the Petitioner is not entitled
to an award of attorney’s fees and costs, we find that Respondent’s exception
is moot and decline to rule on it at this time.
Accordingly,
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 also are approved, adopted, and incorporated herein by
reference; and
2. The Petition for attorney’s fees and costs
filed by Petitioner RON D. BAKER is hereby denied.
ORDERED by the State of Florida Commission
on Ethics meeting in public session on November 17, 2000.
____________________________
Date Rendered
_______________________________
Howard Marks
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, 2822 REMINGTON GREEN CIRCLE, SUITE 101, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; 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: Mr. Jack B. Nichols,
Attorney for Petitioner
Mr. George B.
Roberts, Jr., Attorney for Respondent
The Honorable Carolyn S. Holifield,
Administrative Law Judge
Division of Administrative Hearings
[1]No specific
authority is cited by the Petitioner to support his argument.
[2]The ALJ found
that the allegation was based on Jon Peterson’s sworn statement to Detective
Beckerdite that James Carraway had given an airline ticket to Petitioner’s
daughter, rather than on the actual giving of the ticket to Petitioner’s
daughter by James Carraway.