FINAL ORDER AND PUBLIC REPORT

On October 9, 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, Respondent Michael Jones and the Commission’s Advocate. A copy of the Recommended Order is incorporated herein by reference.

The Advocate and the Respondent both timely filed Exceptions to the Recommended Order, and the Advocate also filed a Response as well as a Motion to Strike. The matter is now before the Commission for final agency action.

I. STANDARD OF REVIEW

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.

II. RULING ON MOTION TO STRIKE

On November 2, 1998, the Advocate filed a Motion to Strike a document that Respondent included as Attachment 6 in his Appendix to his Exceptions. No response to the Motion was filed by Respondent. The document at issue is not the same document that was entered into evidence at the formal hearing before the ALJ as Advocate’s Exhibit 2. Instead, the objected-to document contains several hand-written notations and is not notarized. Because the record before us is limited by Section 120.57(1)(f)2, Florida Statutes, to evidence admitted at the hearing, the Advocate’s Motion to Strike is granted, and Attachment 6 to Respondent’s Exceptions is stricken and will not be considered by the Commission.

III. RULING ON EXCEPTIONS

1. The Advocate excepts to a statement in the Preliminary Statement section of the Recommended Order concerning the parties’ agreement to extend the filing date of their proposed recommended orders. Apparently, they ultimately agreed to file them on September 25, 1998, not September 23 as reflected in the Recommended Order, and the Advocate complied with that deadline. However, the Respondent’s was not filed until October 5, 1998. Notwithstanding, the ALJ apparently took both parties’ proposed recommended orders into consideration when she entered her Recommended Order. Therefore, the Advocate’s correction to the Recommended Order is so noted.

2 The Respondent’s Exceptions do not assail any particular finding of fact. Instead, they contend that notwithstanding the findings of fact as found by the ALJ, those findings do not support the conclusion that the Respondent violated Section 112.313(6), Florida Statutes. In Goin v. Commission on Ethics, 658 So.2d 1131, 1138 (Fla. 1st DCA 1995), the First District Court of Appeal noted that 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, citing Langston v. Jamerson, 653 So.2d 489 (Fla. 1st DCA 1995). Here, we see no basis to disturb the ALJ’s findings and, in our view, the conclusions are legally correct. Accordingly, Respondent’s Exceptions are denied.

FINDINGS OF FACT

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 finds that the Respondent, as Assistant to the City Manager of the City of Opa-Locka, violated Section 112.313(6), Florida Statutes.

RECOMMENDED PENALTY

The ALJ recommended a $1,000 civil penalty in addition to a public censure and reprimand. However, after a review of the complete record as required by Section 120.57(1)(j), Florida Statutes, we believe that there is justification in the record for reducing that amount to $200, given the relatively de minimis nature of the public resources involved. (T.27,34,94,99,103). Therefore, we reject that part of the ALJ’s penalty recommendation.

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 Respondent Michael Jones in the amount of $200 and that he receive a public censure and reprimand.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 28, 1999, in Tallahassee, Florida.

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Date

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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: Mr. David Nevel, Attorney for Respondent

Ms. Virlindia Doss, Commission Advocate

Division of Administrative Hearings