BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

GREG BROWN,      Petitioner, vs. HILTON KELLY,      Respondent.

) ) ) ) ) ) ) ) )

Complaint No. 04-084 DOAH Case No. 04-2867FE Case No. 04-2867FE

FINAL ORDER DENYING ATTORNEY'S FEES AND COSTS

            On July 14, 2006, an Administrative Law Judge ("ALJ") from the Division of Administrative Hearings ("DOAH") submitted to the Commission and all parties her Amended Recommended Order, a copy of which is attached hereto, recommending that the Commission enter a Final Order denying Greg Brown's Petition for attorney's fees and costs against Hilton Kelly.  The matter is now before the Commission for final agency action.

PROCEDURAL BACKGROUND

The initial proceeding began with the filing of a complaint by Hilton Kelly on April 14, 2004, alleging that Greg Brown, Santa Rosa County Property Appraiser, had violated the Code of Ethics for Public Officers and Employees.  After being found legally sufficient, an investigation was undertaken.   On July 27, 2004, the Commission on Ethics entered an order finding no probable cause to believe that the Respondent had violated Section 112.313(6), Florida Statutes, thereby dismissing the complaint.  Thereafter, Brown timely filed a Fee Petition against Kelly pursuant to Section 112.317(8), Florida Statutes, and the matter was forwarded to DOAH for assignment of an ALJ to conduct a formal hearing and prepare a recommended order.  In lieu of a formal administrative hearing, the parties agreed to submit the case for determination on the record, and both parties timely filed proposed recommended orders. 

            On January 31, 2006, a Recommended Order was transmitted to the Commission and to the parties recommending that the Commission enter a Final Order finding that Brown was entitled to fees and costs against Kelly in the amount of $17,619.79.  The parties were notified of their right to file exceptions, and both parties timely filed exceptions and responses to the other party's exceptions.  At the request of the Commission's staff, the parties also agreed to waive the 90-day time period imposed by Section 120.569(1)(l), Florida Statutes.

On June 14, 2006, the Commission entered an Order of Remand to DOAH, which accepted Kelly's exceptions to the Conclusions of Law on the applicability of the "actual malice" standard from New York Times v. Sullivan, 376 U.S. 254 (1964), and requested that the ALJ conform the Conclusions of Law to the legal standards adopted in In re MICHAEL ADDICOTT, COE Final Order No. 05-207 (2005); reconsider the evidence of record in light of the revised Conclusions of Law to the extent necessary; and enter an Amended Recommended Order.

On July 14, 2006, DOAH transmitted an Amended Recommended Order to the Commission.  Once again, the parties were notified of their right to file exceptions.  Brown timely filed exceptions to which Kelly filed a response.

STANDARDS FOR REVIEW

            Under Section 120.57(1)(l), Florida Statutes, an 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 ALJ.  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 Section 120.57(1)(l), Florida Statutes, an agency 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 conclusions of law or interpretations of administrative rules, the agency must state with particularity its reasons for rejecting or modifying such conclusions of law or interpretations of administrative rules 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 Amended Recommended Order and the entire record of the proceeding, the exceptions filed by Brown and Kelly's response, and having heard the arguments of counsel, the Commission makes the following rulings, findings, and conclusions.

RULINGS ON EXCEPTIONS

1.         Brown's first exception is to the remand of the case to DOAH and the issuance of an Amended Recommended Order.  He asserts that in doing so, the Commission violated the standard of review set forth in Section 120.569(1)(l), Florida Statutes.

Kelly, in his response, notes that Brown's argument is without merit and that remand was necessitated by counsel for Brown persuading the original ALJ to ignore the Commission's precedent and not apply the correct standard for awarding attorney's fees and costs under Section 112.317(8), Florida Statutes.

Brown's first exception is denied.  The Commission's decision to remand the matter to DOAH was legally correct and necessary.  See, e.g., Department of Environmental Protection v. Dept. of Management Services, Div. of Adm. Hearings, 667 So.2d 369 (Fla. 1st DCA 1995); Collier Development Corporation v. State, Dept. of Environmental Regulation, 592 So.2d 1107 (Fla. 2d DCA 1991); Dept. of Professional Regulation v. Wise, 575 So.2d 713 (Fla. 1st DCA 1991); Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989); Miller v. State, Dept. of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987).   Moreover, by remanding the matter to DOAH, the Commission could not and did not violate the standard of review set forth in Section 120.569(1)(l), Florida Statutes.

2. Brown's next two exceptions are to wording in the ALJ's Preliminary Statement, which summarized Kelly's ethics complaint against Brown and described the heretofore procedural history of the case.  As noted by Kelly, Brown is essentially rearguing the Commission's decision to remand the matter to DOAH.

Brown's Exception Nos. 2 and No. 3 are denied.  The Commission's decision to remand the case was not based upon a desire that the matter be assigned to a different ALJ or that by remanding it, a contrary result could be effected.  Instead, because of the limitations Section 120.569(1)(l), Florida Statutes, places upon agencies, the Commission could not simply correct the erroneous legal conclusions in the original Recommended Order without also making new ultimate findings, actions which are prohibited.  Goin v. Commission on Ethics, 658 So.2d 1131 (Fla. 1^st DCA 1995).  Accordingly, Brown's second and third exceptions are denied.

3.         Brown's Exception Nos. 4, 5, and 6 are directed to Findings of Fact Paragraphs 8, 10, and 12, although, as Kelly points out, Brown's basis for excepting is not that the findings are not based upon competent substantial evidence in the record.  Nor does he suggest that they fail to comply with the essential requirements of law.  Instead, Exception Nos. 4, 5, and 6 are concerned with the weight the ALJ placed on the findings and the inferences she drew therefrom, all of which are permissible and within her sole province.  Heifetz, supra.  Accordingly, Exception Nos. 4, 5, and 6 are denied.

4.         Exception No. 7 is directed to Conclusions of Law Paragraphs 19 through 24.  In this Exception, counsel for Brown continues to argue that the Commission's interpretation of Section 112.317(8), Florida Statutes, is incorrect and that the New York Times v. Sullivan standard for "actual malice" does not apply to attorney's fee proceedings arising from ethics complaints.  The remainder of Brown's Exception No. 7 consists of Brown reweighing the evidence and substituting his findings of fact and conclusions of law to support his position that he is entitled to attorney's fees and costs under Section 112.317(8), Florida Statutes. 

Kelly contends in his response that further argument is neither necessary nor appropriate, that Brown mischaracterizes the significance of the no probable cause finding, and that Brown's vigorous attempts to collect attorney's fees from Kelly (not the underlying ethics complaint itself) is what has cost the taxpayers of Santa Rosa County significant sums of money.

Brown's Exception No. 7 is denied.  The Conclusions of Law in the Amended Recommended Order, including the ones excepted to by Brown, are legally correct and without error.  If our decision to remand this case to DOAH stands for anything, it stands for the proposition that the Commission will not violate the standards of review set forth in Section 120.569(1)(l), Florida Statutes, by engaging in additional fact-finding to reach a contrary result where the record, as here, contains competent substantial evidence to support the findings of fact, where the proceedings complied with the essential requirements of law, and where the conclusions of law are, as here, legally correct.

FINDINGS OF FACT

            The Findings of Fact as set forth in the Amended Recommended Order are approved, adopted, and incorporated herein by reference.

CONCLUSIONS OF LAW

            1.         The Conclusions of Law as set forth in the Amended Recommended Order are approved, adopted, and incorporated by reference.

            2.         The petition for attorney's fees and costs filed by Respondent/Petitioner Greg Brown against Complainant/Respondent Hilton Kelly is hereby DENIED.  

            DONE and ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, October 20, 2006.

                                                                        _______________________________

                                                                        Date Rendered

                                                                        _______________________________

Norman M. Ostrau

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, 3600 Maclay Boulevard South, Suite 201, 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. E. Gary Early, Attorney for Respondent/Petitioner Greg Brown

            Mr. Joseph L. Hammons, Attorney for Complainant/Respondent Hilton Kelly

            The Honorable Lisa Shearer Nelson, Administrative Law Judge

            Division of Administrative Hearings