STATE OF FLORIDA

COMMISSION ON ETHICS

In re GREG BROWN,                                 )

                                                                        )

            Respondent.                                    )           Complaint No. 04-087

                                                                        )           DOAH Case No. 04-3007FE

                                                                        )           COE Final Order No. 08-03

                                                                        )

FINAL ORDER AWARDING ATTORNEY'S FEES AND COSTS UPON

MANDATE OF THE DISTRICT COURT OF APPEAL

This matter came before the Commission on Ethics, meeting in public session on January 25, 2008, upon the mandate of the First District Court of Appeal issued in Greg Brown v. State of Florida, Commission on Ethics, Robert Burgess, and Hilton Kelly, Case Nos. 1D06-6070 and 1D06-6071 (November 30, 2007).  The Court's opinion concludes that Brown is entitled an award of costs and attorney's fees against Complainants Burgess and Kelly, and directs the Commission to enter a Final Order adopting ALJ Dean's original Recommended Order without taking any additional evidence.

PROCEDURAL BACKGROUND

The initial proceeding began with the filing of a complaint by Robert Burgess on April 16, 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, we 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 Burgess 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 Burgess in the amount of $22,446.06.  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, we entered an Order of Remand to DOAH, which accepted Burgess' 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 Burgess filed a response.  On October 25, 2006, we entered a Final Order Denying Attorney's Fees and Costs. 

Brown timely appealed the Final Order to the First District Court of Appeal, and on November 30, 2007, the Court reversed the Commission's Final Order, and directed the Commission to enter a final order adopting ALJ Dean's original recommendations.

On December 12, 2007 Brown filed a Supplemental Petition for Costs and Attorney's Fees, and on December 26, 2007, Burgess filed a Response.  The matter is now before us for final agency action.

Having reviewed the entire record of the proceeding, the documents filed with us regarding this matter (including the opinion and mandate of the First District Court of Appeal), Brown's Supplemental Petition for Costs and Attorney's Fees, the Response of Burgess, and having heard the arguments of Brown and of Burgess, we make the following rulings, findings, conclusions, determinations, and dispositions:

RULING ON BROWN'S SUPPLEMENTAL PETITION

                        Brown submitted a supplemental petition for costs and attorney's fees against Complainant Robert Burgess, requesting that, in addition to entering a Final Order awarding Brown $5,566.56 in costs and $17,079.50 in attorney's fees for a total of $22,646.06, we order a hearing before an ALJ assigned by DOAH on Brown's supplemental petition for costs and attorney's fees.  Burgess argues that we have no jurisdiction or authority to award any attorney's fees supplemental to those set forth in ALJ Dean's Recommended Order.

                        In its opinion dated November 30, 2007, the Court instructed the Commission to enter a final order awarding costs and fees by adopting ALJ Dean's original recommendations.  It said specifically:  "No additional evidence is required or permitted."  As it appears that our authority to act has been expressly limited by the Court, we deny Brown's Supplemental Petition for Costs and Attorney's Fees.

FINDINGS OF FACT

            The Findings of Fact as set forth in ALJ Dean's January 31, 2006   Recommended Order are approved, adopted, and incorporated herein by reference.

CONCLUSIONS OF LAW

            The Conclusions of Law as set forth in ALJ Dean's January 31, 2006   Recommended Order are approved, adopted, and incorporated by reference.

DISPOSITION

Accordingly, we accept the recommendation of ALJ Dean and award attorney's fees and costs in favor of Greg Brown against Robert Burgess in the amount of $22,646.06.

            DONE and ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, January 25, 2008.

                                                                        _______________________________

                                                                        Date Rendered

                                                                        _______________________________

Albert P. Massey, III

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. Mark Herron, Attorney for Brown

            Mr. Joseph L. Hammons, Attorney for Burgess

            Division of Administrative Hearings