BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

In re GREG BROWN,                       )

                                                            )                                               Complaint No. 04-087

            Respondent.                             )                                               DOAH Case No. 04-3007FE

                                                            )                                              

______________________________)

ORDER OF REMAND TO D.O.A.H.

            On January 31, 2006, the Administrative Law Judge with the Division of Administrative Hearings (DOAH) transmitted his Recommended Order to the Commission and to the parties, and the parties were notified of their right to file exceptions to the Recommended Order.  Thereafter, both parties timely filed exceptions and responses to the other's exceptions and, at Commission staff's request, agreed to waive the 90-day time period imposed by Section 120.569(1)(l), Florida Statutes.

BACKGROUND

The initial proceeding began with the filing of a complaint on April 16, 2004, by Robert Burgess 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 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, the ALJ entered his Recommended Order finding that Brown was entitled to fees and costs in the amount of $22,446.06.  However, the ALJ's order fails to clearly articulate the basis for his recommendation.  The ALJ concluded that the standard for proving "actual malice" was inappropriate because the act of filing an ethics complaint was not constitutionally protected speech; that unlike news reporters, complainants were required to "tell the truth;" that "malicious intent" meant "intending to harm without legal justification or excuse;" and that the plain language of Section 112.317(8), Florida Statutes, did not reflect a legislative intent to establish a higher standard of proof of wrongdoing for a fee petitioner.  We surmise from our review of the record that counsel for Brown succeeded in convincing the ALJ that the "actual malice" standard from N.Y. Times v. Sullivan, 376 U.S. 254 (1964) and its progeny were not applicable to proving entitlement to fees and costs under Section 112.317(8), Florida Statutes, notwithstanding our recent decision in In re MICHAEL ADDICOTT, COE Final Order No. 05-207 (April 2005). 

AUTHORITY AND NECESSITY FOR REMAND

Both parties have filed exceptions relating to the ALJ's failure to apply this standard of law.  Respondent Burgess' exceptions argue that many of the ALJ's findings are not supported by competent, substantial evidence, argue that the standard is statutorily and constitutionally required, and argue that if the ALJ had applied the N.Y. Times standard and applied it properly, he would have concluded that Burgess did not file the complaint knowing that allegations were false or with reckless disregard for their truth or falsity.  Petitioner Brown argues that the record is sufficient to justify a finding of malice sufficient to meet this legal standard, and asks us to modify a "conclusion of law" to find that the statutory standard has been met.  However, this finding amounts to an "ultimate finding of fact" and we are not allowed by Chapter 120, Florida Statutes, to make additional findings of fact.

            It is clear that fees can only be awarded if the statutory grounds are met.  However, the Recommended Order makes no finding—one way or the other—on the statutory elements that would entitle Petitioner Brown to an award of attorney's fees:  that Burgess filed the complaint with a malicious intent to injure Brown's reputation by filing it with knowledge that the complaint contained false allegations of material fact or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. 

The inherent authority of a state agency to remand an administrative case back to DOAH for further proceedings where the reasons for the ALJ's findings are not apparent from the record or where erroneous conclusions of law render it impossible for the agency to enter a coherent final order is well-established by the controlling case law of Florida.  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). 

Here, where the ALJ ignored the Commission's prior interpretation of Section 112.317(8), Florida Statutes, and did not apply the "actual malice" standard enunciated by the United States Supreme Court in N.Y. Times v. Sullivan, and where the ALJ's factual findings are so dependent upon the ALJ's legal conclusions that it is impossible to simply correct the ALJ on the law without additional fact-finding, remand is necessary.  Accordingly, we accept Burgess’s exceptions to the Conclusions of Law on the applicability of N.Y. Times v. Sullivan and its progeny to attorney's fee proceedings brought pursuant to Section 112.317(8), Florida Statutes, and remand this case to DOAH, requesting that the ALJ:

            A.        Conform his Conclusions of Law to the legal standard articulated by his fellow Judge in the Addicott v. Nieman Recommended Order, adopted by the Commission in In re MICHAEL ADDICOTT, COE Final Order No. 05-207 (2005);

B.         Reconsider the evidence of record in light of the revised Conclusions of Law, to the extent necessary; and 

C.        Enter an amended Recommended Order.

DONE and ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, June 9, 2006.

                                                                        _______________________________

                                                                        Date Rendered

                                                                        _______________________________

Kurt D. Jones

Vice Chair

cc:        Mr. Albert T. Gimbel, Attorney for Respondent Greg Brown

            Mr. Joseph Hammons, Attorney for Complainant Robert Burgess

            The Honorable Stephen F. Dean, Administrative Law Judge

            Division of Administrative Hearings