STATE OF FLORIDA
COMMISSION ON ETHICS
In re WILLIAM HARRISON, )
Respondent. ) Complaint No. 92-148
) Final Order No. COE ____
FINAL ORDER AND PUBLIC REPORT
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on December 7, 1994 by the Division of Administrative Hearings (DOAH) [a copy of which is attached and incorporated by reference]. The Hearing Officer recommends that the Commission enter a final order and public report finding that the Respondent violated Section 112.313(6), Florida Statutes, by requesting and receiving reimbursement for travel expenses which he did not incur in the performance of his duties as a City Council member. In addition, the Hearing Officer recommends a civil penalty of $2,000, restitution of $52.12, and public censure and reprimand.
The Respondent filed exceptions to the Recommended Order and the Advocate filed a response to the Respondent's exceptions.
The following abbreviations will be used herein in referring to record items: "T," followed by page numbers, for the transcript of the DOAH hearing; "RO," followed by page numbers, for the Hearing Officer's Recommended Order.
Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer 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 hearing officer. 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 Hearing Officer, the Commission is bound by that finding.
Having reviewed the Recommended Order, the Respondent's exceptions, the Advocate's response to the Respondent's exceptions, and the record of the public hearing of this matter that has been placed before the Commission, and having considered the arguments of the Respondent and the Advocate made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and recommendations:
Rulings on Respondent's Exceptions
The Respondent's exceptions are not numbered and consist of various statements and characterizations concerning the Hearing Officer's Recommended Order and the underlying evidential record of the DOAH proceeding which produced the Recommended Order. Therefore, in the paragraphs below, this order will treat and deal with what appear to be the various particular arguments made by the Respondent in his exceptions. Generally, it appears that the Respondent takes exception to the Hearing Officer's not weighing and viewing the evidence in a manner favorable to him.
1. The Respondent takes exception to paragraph 11 of the Hearing Officer's Recommended Order (designated by the Hearing Officer as a finding of fact). Further, in a footnote, the Respondent argues that he was not charged with misrepresenting facts to the Commission's Investigator, that he only is charged with not making a public purpose trip to Pensacola on February 28, 1990, and that a finding that the Respondent misrepresented facts to the Investigator cannot be evidence to support the charge and cannot be used as a basis for punishment, citing In re P. Kevin Davey, 19 Fla. L. Weekly S514 (Fla. 1994).
There is competent substantial record evidence to support the Hearing Officer's finding that the Respondent told Commission Investigator Hill that he went to the FDLE office in Pensacola. See Advocate's Exhibits 18 and 13; T, 85. Further, there is also competent substantial evidence to support the Hearing Officer's determination that the Respondent in fact did not go to the FDLE office and that he thus claimed and received reimbursement for a trip that he did not make. See T, 137; Advocate's Exhibits 15, 16, 17. Davey, a disciplinary case concerning a circuit judge, which held in part that lack of candor [as a substantive violation] may only be used as a basis for removal or reprimand of a judge where it is formally charged and proven, is not analogous to or useful in the disposition of the instant matter before this Commission. Here, misuse of public position to obtain travel reimbursement has been charged against the Respondent. See RO, 1 (Preliminary Statement portion). Further, any lack of candor on the part of the Respondent in making statements to the Commission's investigator concerning the charges, in making other statements about the charges, or in testifying about the charges is not, per se, a separate substantive charge as that which was attempted in Davey. Rather, any issue of candor in the instant matter involves the Hearing Officer's determination of the Respondent's credibility, or lack thereof, as a witness and goes to the issue of whether the Respondent made a claim for reimbursement for a trip to the FDLE office in Pensacola knowing that he had in fact not gone there.
Therefore, this exception is rejected.
2. The Respondent takes exception to the Hearing Officer's finding in paragraph 16 of the Recommended Order that "[h]aving observed the demeanor of [the Respondent] and having judged [the Respondent's] credibility, I find that his testimony concerning doing research at the University of West Florida Resource Library not to be credible." In taking exception, the Respondent goes on to assert that the Commission's Investigator testified that he discovered that the Respondent had in fact made numerous trips to libraries to study issues related to the Respondent's public duties, and generally asserts that the Hearing Officer overlooked testimony showing that the Respondent researched City issues and was an active, enthusiastic member of the City Council.
It is well settled that it is for the hearing officer to judge credibility, weigh evidence, and resolve conflicts in the evidence. See, for example, Heifetz, supra. In addition, whether the Respondent went to libraries for public purposes at various times and was an active, enthusiastic member of the Council is not controlling on the Hearing Officer's determination that the Respondent obtained reimbursement for travel expenses for particular trips in issue which were not incurred in the performance of his duties as a Council member. Further, contrary to the representations made by the Respondent in his exceptions, Commission Investigator Hill did not testify that the Respondent had in fact made numerous trips to various libraries but, rather, he testified that the Respondent submitted travel vouchers indicating that he went to libraries or that persons testified that the Respondent submitted vouchers for trips to area libraries. See T, 93, 98, 99, 100.
Therefore, this exception is rejected.
3. The Respondent takes exception to paragraph 33 of the Recommended Order, arguing that the testimony of various witnesses established various matters, arguing that the Hearing Officer "misconstrued the weight of the evidence in this case," arguing that several items of correspondence from the Respondent to the Commission (apparently Advocate's Exhibits 14-17) placed into evidence by the Advocate support the Respondent's version of his February 28, 1990 trip to Pensacola, and arguing that there is "no evidence to support the Advocate's position."
As stated previously, our review of a hearing officer's recommended order does not involve judging witness credibility, weighing evidence, or resolving conflicts in the evidence; those are matters for the trier of fact (the hearing officer) alone. Our review concerning factual matters, regardless of whether they are labeled as findings of fact or as conclusions of law, is limited to whether the findings are supported by competent substantial evidence. All factual findings of paragraph 33 of the Recommended Order are supported by competent substantial evidence. Further, the determination of the Hearing Officer that the Respondent corruptly used his position as a member of the City Council to get reimbursement for travel expenses which he did not incur is supported by competent substantial evidence and is a proper conclusion to draw in light of that evidence under Section 112.313(6), Florida Statutes.
Advocate's Exhibits 14, 15, 16, and 17 (correspondence or written statements from the Respondent to the Commission and/or the Commission's Advocate) are merely a portion of the evidence considered by the Hearing Officer in this matter and, as such, are to be weighed and considered by the Hearing Officer in conjunction with the balance of the evidence in this matter. However, those exhibits do not lock the Hearing Officer into a determination in favor of the Respondent. They are merely a part of an evidential record which contains competent substantial evidence to support the Hearing Officer's determinations. Therefore, this exception is rejected.
4. The Respondent takes exception to the Hearing Officer's determination that the Respondent misrepresented the nature of the Pensacola/FDLE trip to Commission Investigator Hill (apparently the Hearing Officer's determination in paragraph 33 of the Recommended Order that "[the Respondent] lied to Investigator Hill under oath when he indicated that he had gone to the FDLE office"), arguing that the evidence shows that the Respondent did not make an intentional misrepresentation to Investigator Hill but, rather, that any inaccuracies in his representations to Investigator Hill resulted from confusion and lack of memory occasioned by the Respondent's being called upon to explain numerous trips.
Again, it is not our role to reweigh the evidence, resolve conflicts in the evidence, or judge the credibility of witnesses. The record contains competent substantial evidence that the Respondent misrepresented facts, or "lied," to Investigator Hill.
Therefore, this exception is rejected.
5. The Respondent takes exception to the Hearing Officer's determination (contained in paragraph 36 of the Recommended Order) that the Respondent did not make the trips to Crestview (the April 1991 and May 1991 trips) for a public purpose, arguing that evidence, including the Respondent's testimony and his correspondence with the Commission/its Advocate (Advocate's Exhibits 14-17), shows that the Respondent likely was engaged in public business in conjunction with those trips.
Once again, we must note that it is not our role, but rather that of the Hearing Officer, to weigh evidence, judge credibility, and resolve conflicts in the evidence. The record contains competent substantial evidence to support the Hearing Officer's determination that the April and May trips to Crestview made by the Respondent were not for a public purpose but, rather, were for the purpose of filing campaign documents personal to the Respondent.
Therefore, this exception is rejected.
In summary, the thread of the Respondent's exceptions addressed thus far amounts to disagreement with the Hearing Officer over how she viewed the witnesses and other evidence and an expression of the Respondent's view that the witnesses and other evidence should have been seen differently by the Hearing Officer with a result and determinations more to the liking of the Respondent. However, we cannot substitute ourselves for the Hearing Officer.
6. The Respondent takes exception to the penalty recommended by the Hearing Officer, arguing that the Commission has imposed civil penalties in many cases for much smaller amounts and has often imposed only civil penalties and not imposed public censure and reprimand.
This exception is rejected. The penalties recommended by the Hearing Officer fit the circumstances of this case and the Commission is not bound by its actions in previous matters involving different circumstances.
Findings of Fact
The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
Conclusions of Law
1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
2. The Commission finds that the Respondent, William Harrison, as a member of the City Council of the City of Laurel Hill, violated Section 112.313(6), Florida Statutes, by using his public position to obtain reimbursement for travel expenses not incurred for a public purpose.
Pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission on Ethics hereby recommends that a civil penalty of $2,000 (two thousand dollars) be imposed upon the Respondent, that he be required to pay restitution of $52.12 (fifty-two dollars and twelve cents), and that he be publicly censured and reprimanded.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, March 9, 1995.
R. Terry Rigsby
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, 2822 REMINGTON GREEN CIRCLE, SUITE 101, TALLAHASSEE, FLORIDA 32308; OR P. O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF 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. John C. Cooper, Attorney for Respondent
Mr. Marty E. Moore, Commission Advocate
Mr. A. P. Day, Complainant
Division of Administrative Hearings