BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

 

 

In re GEORGE BLAKE,     )

                          )       Complaint No. 03-030

        Respondent.     )        DOAH Case No. 05-0571EC

                         )

                         )        Final Order No.06-025       

__________________________)

 

 

FINAL ORDER AND PUBLIC REPORT

 

This matter came before the State of Florida Commission on Ethics, meeting in public session on April 21, 2006, on the Recommended Order (RO) of an Administrative Law Judge (ALJ) of the Division of Administrative Hearings (DOAH) rendered on January 25, 2006.

Background

This matter began with the filing of an ethics complaint by Michael Christensen ("Complainant" or "Christensen"), on February 26, 2003, against George Blake ("Respondent" or "Blake"), alleging that the Respondent (as a member of the City Council of the City of Live Oak, Florida) violated Section 112.313(6), Florida Statutes, by virtue of his alleged conduct toward the Complainant (then the City's Building Official).  By order dated March 20, 2003, the Commission on Ethics' Executive Director determined that the allegations of the complaint were legally sufficient to indicate possible violations of the statute and ordered Commission staff to investigate the complaint, resulting in a Report Of Investigation dated August 28, 2003, and a Supplemental Report Of Investigation dated February 16, 2004.  By order dated April 28, 2004, the Commission found probable cause to believe the Respondent, as a member of the City Council, violated Section 112.313(6), Florida Statutes, by using or attempting to use his public position or property or resources within his trust, or by performing his official duties, in order to retaliate against, intimidate, or attempt to have fired the Complainant (the City's Building Official) because of the Complainant's rejection of construction plans for the Respondent's home, because of the Complainant's failure to approve via inspection work on the Respondent's home, or because of the Complainant's related official conduct.  Subsequently, the matter was forwarded to DOAH for assignment of an ALJ to conduct a formal hearing and prepare a recommended order (RO).  A formal evidentiary hearing was held before the ALJ on October 17, 21, and 24, 2005 (including the presentation of witnesses and the admission of exhibits); a transcript of the hearing was provided; and both the Respondent and the Advocate for the Commission on Ethics filed proposed recommended orders with the ALJ.  On January 25, 2006, the ALJ entered his Recommended Order (RO) recommending that the Commission issue a final order and public report finding that the Respondent did not violate Section 112.313(6), Florida Statutes, and recommending that the ethics complaint filed against the Respondent by the Complainant be dismissed.  On February 9, 2006, the Advocate timely filed (with the Commission) exceptions to the RO; and on February 20 the Respondent filed a response to the Advocate's exceptions.  Both the Respondent and the Advocate were notified of the date, time, and place of our final consideration of this matter; and both were given the opportunity to make argument during our consideration.

Standards of Review

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 a recommended order.  However, the agency may not reject or modify findings of fact made by an ALJ unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence ("CSE") or that the proceedings on which the findings were based did not comply with the essential requirements of law.  See, e.g., Freeze v. Department 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).  CSE 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, may not resolve conflicts in the evidence, and may not judge the credibility of witnesses, because such evidential matters are within the sole province of the ALJ.  Heifetz v. Department of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).  Consequently, if the record of the DOAH proceedings discloses any CSE to support a finding of fact made by the ALJ, the Commission on Ethics is bound by that finding.

Under Section 120.57(1)(l), Florida Statutes, an agency may reject or modify the conclusions of law over which it has substantive jurisdiction and the 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 or interpretation and must make a finding that its substituted conclusion or interpretation is as or more reasonable than that which was rejected or modified.

Having reviewed the RO and the entire record of the proceeding, the Advocate's exceptions, and the Respondent's response to the exceptions, and having heard the arguments of the Advocate and the Respondent, the Commission on Ethics makes the following rulings, findings, conclusions, and recommendations:

Rulings on Advocate's Exceptions

1.   The Advocate takes exception to paragraph 43 of the ALJ's Ro which states:

43.  With regard to element d(1), wrongful intent, Mr. Blake sought and received a City Attorney's Opinion prior to acting, which stated that his proposed course of action was lawful.  Advice of counsel, when based on a proper statement of the facts, as this was, is not necessarily a complete defense in this case.  Nevertheless, Mr. Sellers' opinion tends to prove a lack of wrongful intent on the part of Mr. Blake.  [citation omitted]

  

 

In taking exception, the Advocate argues, inter alia, that paragraph 43, if it remains unaltered by the Commission, will cast doubt on whether in future ethics complaints, as a matter of law, the Commission will be able to conclude that a public official's using of his public position to threaten a public employee's continued employment can constitute a misuse of public position in violation of Section 112.313(6); and argues that the Commission should replace paragraph 43 of the ALJ's RO with the following language:

Mr. Blake was a vociferous opponent of Mr. Christensen and had a personal desire to be rid of him.  The substantial credible evidence showed that Mr. Blake acted and spoke in a manner which evidenced his intent to misuse his official position.  Mr. Blake's February 18, 2003, act of threatening to use his official position to adversely impact Mr. Christensen's job was inconsistent with the proper performance of Mr. Blake's public duties.  Therefore, elements d(1) and d(2) are proved.

 

This exception is rejected to the extent that it seeks to replace or modify findings of fact made by the ALJ in paragraph 43 of the RO.  Notwithstanding that paragraph 43 of the RO appears in the portion of the RO nominally labeled "CONCLUSIONS OF LAW," its substance primarily is factual[1] (as is the substance of the language offered by the Advocate for a Commission rewrite of the paragraph).  And, as stated above, our ability as a reviewing agency to disturb or displace factual findings of an ALJ is constrained by Section 120.57(1)(l), Florida Statutes.  A reviewing agency cannot evade statutory restrictions on its ability to reject an ALJ's findings of fact by denominating such findings conclusions of law.  Roche Surety and Casualty Company, Inc. v. Department of Financial Services, Office of Insurance Regulation, 895 So. 2d 1139 (Fla. 2d DCA 2005).  However, to the extent that the exception argues that the ALJ's RO construes Section 112.313(6), Florida Statutes, to mean that it can never be violated by a public official's use of public position to threaten a public employee's continued employment, or to mean that it can never be violated by a public official's use of public position to threaten a public employee's continued employment when the official has obtained advice of counsel that such threatening use is lawful, this exception is granted.  It is the province of this Commission (not that of an ALJ) to determine the meaning of a law [i.e., Section 112.313(6)] within its substantive jurisdiction; and the Commission's determination is not subject to being disturbed by an appellate court unless clearly erroneous.  Velez v. Commission on Ethics, 739 So. 2d 686 (Fla. 5th DCA 1999).  Couch v. Commission on Ethics, 617 So. 2d 1119 (Fla. 5th DCA 1993).      

2.                                      The Advocate takes exception to the first sentence of paragraph 44 of the ALJ's RO which states in its entirety, with the first sentence emboldened:

44.  Moreover, the advice of counsel negates the assertion that Respondent acted with reasonable notice that his conduct was inconsistent with the proper performance of his public duties.  Having been advised that his conduct was not inconsistent tends to negate a claim that he had reasonable notice that his conduct was impermissible.  In fact, the notice he received from the City Attorney was that his actions were consistent with the proper performance of his public duties.  [citations omitted]

 

In taking exception, the Advocate argues that paragraph 44 of the RO, if adopted unaltered by the Commission, "ignores precedent [of the Commission] and could lead the public to erroneously conclude that a public official is incapable of forming the requisite wrongful intent necessary to violate Section 112.313(6), Florida Statutes[,] when the public official acts pursuant to the advice of counsel"; and argues that the Commission should modify or replace[2] paragraph 44 of the ALJ's RO with the following language:

With regard to element d(1), wrongful intent, Mr. Blake sought and received a City Attorney's Opinion prior to voting to abolish the City's buildings inspection department and voting to require Mr. Christensen to work five days a week.  Advice of counsel, when based on a proper statement of the facts, as this was, is not necessarily a complete defense in this case.  Nevertheless, Mr. Sellers' opinion tends to prove a lack of wrongful intent on the part of Mr. Blake.  [citation omitted]  Having been advised that his conduct was not inconsistent tends to negate a claim that he had reasonable notice that his conduct was impermissible.  In fact, the notice he received from the City Attorney was that his actions were consistent with the proper performance of his public duties.  [citations omitted]

 

This exception is rejected to the extent that it seeks to replace or modify findings of fact of the ALJ contained in paragraphs 44, 45, and 46 of the RO.  However, to the extent that the exception argues that the ALJ's RO construes Section 112.313(6), Florida Statutes, to mean that it can never be violated when a public official relies on advice of counsel, this exception is granted.  It is the province of this Commission (not that of an ALJ) to determine the meaning of the law; and the Commission's determination is not subject to being disturbed by an appellate court unless clearly erroneous.  Velez and Couch, supra. 

     3.   Nevertheless, in sum, it is inescapable that the ALJ's determination that the Respondent did not violate Section 112.313(6), Florida Statutes, in this particular matter is a determination grounded in his factual findings.[3]  And under Section 120.57(1)(l), Florida Statutes, our ability to affect factual findings (including ultimate factual findings) is severely constrained.[4]   

                     Findings of Fact

     Except to the extent that the findings of fact of the ALJ substantively constitute conclusions of law rejected or modified above, the Commission on Ethics accepts and incorporates into this Final Order And Public Report the findings of fact in the Recommended Order from the Division of Administrative Hearings.

Conclusions of Law

     Except to the extent rejected or modified above, the Commission on Ethics accepts and incorporates into this Final Order And Public Report the conclusions of law in the Recommended Order from the Division of Administrative Hearings.        

Disposition

     Accordingly, the Commission on Ethics accepts the recommendation of the Administrative Law Judge that it enter a final order and public report finding that the Respondent, George Blake, did not violate Section 112.313(6), Florida Statutes, as alleged in the ethics complaint, and hereby dismisses the complaint.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 21, 2006.

 

 

                           ____________________________________

                          Date Rendered

 

 

 

                          ____________________________________

                          Thomas P. Scarritt, Jr.

                          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 3600 MACLAY BLVD., SOUTH, SUITE 201, TALLAHASSEE, FLORIDA); 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. George W. Blow III, Attorney for Respondent

Ms. Felicia Threm, Attorney for Respondent

Mr. Linzie F. Bogan, Commission Advocate

Mr. Michael Christensen, Complainant

The Honorable Harry L. Hooper

     Division of Administrative Hearings


[1] See Goin v. Commission on Ethics, 658 So. 2d 1131, 1138 (Fla. 1st DCA 1995).

[2] In addition, the Advocate requests that the Commission modify paragraphs 45 and 46 of the ALJ's RO "to reconcile them with the changes [the Advocate proposes] in Paragraph 44."

[3] The Advocate does not argue in his exceptions that the ALJ's factual findings in the RO are not based on CSE.

[4] The ALJ's determination in paragraph 46 of the RO ("Taking the evidence as a whole, it cannot be found that Mr. Blake's actions were corrupt.") clearly is factual.  See Goin, supra, at 1138.