BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re EILEEN McGUIRE, )
Complaint No.
99-31
)
DOAH Case No.
00-0267FE
Respondent. )
COE Final
Order No.: 00-055
________________________)
FINAL ORDER DENYING ATTORNEY'S FEES AND COSTS
This matter was considered by the Commission on Ethics following
receipt and consideration of the Recommended Order issued by the Administrative
Law Judge (ALJ) from the Division of Administrative Hearings (DOAH), a copy of
which is attached hereto.
This matter began with Caron Speas (Speas) filing a complaint
with the Commission on Ethics alleging that Eileen McGuire (McGuire) had
violated the Code of Ethics for Public Officers and Employees. That complaint was dismissed by the
Commission for lack of probable cause on December 2, 1999.
Thereafter, McGuire timely petitioned for an award of attorney's
fees and costs against Speas pursuant to Section 112.317(8), Florida
Statutes. That petition was referred to
DOAH and a formal hearing was held on May 2, 2000. The transcript of the hearing was filed with the ALJ on May 30,
2000, and the parties then filed proposed recommended orders. The ALJ's Recommended Order was transmitted
to the Commission and the parties on August 24, 2000. The parties were notified of their right to file exceptions to
the Recommended Order in accordance with Rule 28-106.217, Florida
Administrative Code. McGuire's
exceptions were timely received on September 8, 2000, and Speas thereafter
submitted a response to McGuire's exceptions on September 18, 2000.
The Administrative Procedures Act--Chapter 120, Florida Statutes--requires
agencies to accept the ALJ’s findings of fact and conclusions of law, except
under certain limited circumstances.
Section 120.57(1)(l), Florida Statutes (1999), provides the
standard of review for findings of fact in the Recommended Order. It states, in relevant part:
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
Commission cannot reweigh the evidence considered by the ALJ. The Commission cannot reject findings of
fact made by the ALJ unless there is no competent substantial evidence in the
record to support the findings. Heifetz
v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985);
and Bay County School Board v. Bryan, 679 So.2d 1246 (Fla. 1st DCA
1996), construing a provision substantially similar to Section 120.57(1)(l),
Florida Statutes (1998 Supp.)
The Commission also has limited authority to reject or modify
the ALJ’s conclusions of law. Section
120.57(1)(l), Florida Statutes (1999), provides that:
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 over which it has substantive jurisdiction and
interpretation 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.
The label assigned to a statement is not
dispositive as to whether that statement is a conclusion of law or a finding of
fact. Sapp v. Florida State Board of
Nursing, 384 So.2d 254 (Fla.2d DCA 1980); Leapley v. Board of Regents,
423 So.2d 431 (Fla 1st DCA 1982); Heifetz v. Department of Business
Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Kinney v. Department of
State, 501 So.2d 129 (Fla. 5th DCA 1987).
The obligation of the agency to honor the ALJ’s findings of fact may not
be avoided by categorizing a contrary finding a “conclusion of law.” Goin v. Commission on Ethics, 658
So.2d 1131 (Fla. 1st DCA 1995).
1. McGuire’s
first two exceptions are that the ALJ’s recommended order does not incorporate
each and every finding of fact and conclusion of law proposed by McGuire. Chapter 120, Florida Statutes, contains no
requirement that an ALJ adopt the proposed recommended order submitted by one
of the litigants. Therefore, the ALJ’s
purported failure to adopt McGuire’s proposed recommended order as her own is
not erroneous and McGuire’s first two exceptions are denied.
2. The
thrust of McGuire’s remaining exceptions are to the ultimate finding--that
Speas did not file the complaint against McGuire with a malicious intent to
injure her reputation. McGuire does not
point to any lack of competent substantial evidence supporting this finding but
invites the Commission to side with her view of the evidence over the
ALJ’s. However, Heifetz, supra,
reminds us:
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 upon competent substantial evidence. Id. at 1281.
The
ALJ apparently concluded that Speas genuinely believed, and persisted in her
belief, that McGuire had directed the Town employees to remove only her
brother’s and the other candidate’s signs.
There is evidence in the record that Speas’ belief was not entirely
unreasonable, given the fact that Speas testified that she observed the
employees go onto what she thought was private property and remove her
brother’s and Virgil Pacetti’s signs (R.81,86,108); that other candidates’
nearby signs were not removed (R.105,108); that she saw only her brother’s and
Virgil Pacetti’s signs in the employees’ trunk and at the maintenance yard
(R.105,108); and that the signs were later replaced in the same exact locations
and were left undisturbed (R.103-105,211).
We therefore reject McGuire's request that we engage in a re-weighing of
the evidence to reach a contrary conclusion.
Accordingly, McGuire’s exceptions are denied.
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 are approved, adopted, and incorporated
herein by reference.
2. The petition for
attorney's fees and costs filed by Respondent/Petitioner Eileen McGuire against
Complainant/Respondent Caron Speas is hereby DENIED.
ORDERED by the State of Florida Commission on Ethics meeting in
public session on Friday, November 17, 2000.
_____________________________
Date
______________________________
Howard
S. 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, 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.
Allen C. D. Scott, II, Attorney for Respondent/Petitioner
Mr. Peter Ticktin,
Attorney for Complainant/Respondent
Division of
Administrative Hearings
The Honorable
Carolyn S. Holifield, ALJ