FINAL ORDER AND PUBLIC REPORT

 

On March 6, 2013, an Administrative Law Judge (ALJ) from the Division of Administrative Hearings (DOAH) submitted to the parties and the Commission his Recommended Order, a copy of which is attached hereto.  Neither the Respondent nor the Commission's Advocate filed exceptions to the Recommended Order.  The matter thereafter came before the Commission on Ethics for final agency action.

Background

This matter began with the filing of an ethics complaint by Kimberlee Zander (Complainant), on January 17, 2012, against Malcom Thompson (Respondent), and an amendment to the complaint on February 2, 2012, alleging that the Respondent, as Clerk of Courts for Osceola County, violated Section 112.313(6), Florida Statutes, by intimidating employees in the Clerk of Courts office to enhance his personal power and political standing.  By order dated February 13, 2012, the Commission on Ethics' Executive Director determined that the allegations of the complaint were legally sufficient to indicate a possible violation of the statute and ordered Commission staff to investigate the complaint, resulting in a Report Of Investigation dated June 7, 2012.  Thereafter, by order dated September 12, 2012, the Commission found probable cause to believe the Respondent may have violated Section 112.313(6), Florida Statutes.  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 January 8, 2013 (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 March 6, 2013, the ALJ entered his 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.  Neither the Advocate nor the Respondent filed exceptions to the RO, but both were notified of the date, time, and place of our final consideration of this matter. 

Standards of Review of a DOAH Recommended Order

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 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. 5^th DCA 1990), and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1^st 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, 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. 1^st 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 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 Commission on Ethics makes the following findings, conclusions, and disposition:  

Findings of Fact

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

Conclusions of Law

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

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, Malcom Thompson, 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 26, 2013.

                                                                          ____________________________________

                                                                          Date Rendered

 

 

                                                                          ____________________________________

                                                                          Susan Horowitz Maurer

                                                                          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. Mark Herron and Mr. Brennan Donnelly, Attorneys for Respondent

Ms. Melody Hadley, Commission Advocate

Ms. Kimberlee Zander, Complainant

The Honorable Thomas P. Crapps,

            Division of Administrative Hearings