FINAL ORDER AFTER REMAND

On September 8, 1997, an Administrative Law Judge (“ALJ”) for the Division of Administrative Hearings submitted her Recommended Order on Remand to the Commission on Ethics and the parties to the proceeding, Respondent Gary Latham and the Commission’s Advocate. A copy of the Recommended Order on Remand is attached is Exhibit “A.”

The Respondent timely filed Exceptions to the Recommended Order on Remand, a copy of which is attached as Exhibit “B.” The Advocate filed a Motion to Strike Respondent’s Exceptions and a Motion to Toll Time for the filing of her Response to Respondent’s Exceptions. The Advocate’s Motion to Strike was denied by Order dated October 22, 1997, but she was given until November 7, 1997 to file a response to Respondent’s Exceptions. The Advocate thereafter timely filed her Response to Exceptions, a copy of which is attached as Exhibit “C.” The matter is now before the Commission for final agency action.

I. BACKGROUND

This case has a lengthy background. On January 5, 1996, the Hearing Officer^[1] submitted her first Recommended Order in this case to the Commission and all parties. A copy of the first Recommended Order is published at 18 F.A.L.R. 2141 (1996). The Hearing Officer’s first Recommended Order recommended that the Commission find that the Respondent had violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and recommended that a $4,000 civil penalty be imposed and that he be publicly censured and reprimanded.

The Respondent then sought, by Motion for Rehearing, to supplement the record with additional evidence. The Advocate filed a response to that Motion, and the Respondent also timely filed exceptions to the Recommended Order. The matter came before the Commission on March 12, 1996, when the Commission entered its Final Order and Public Report denying the Respondent’s Motion for Rehearing and his exceptions, and adopting the Hearing Officer’s Findings of Fact and Conclusions of Law. However, as to the recommended penalty, the Commission recommended that a civil penalty be imposed upon the Respondent in the amount of $2,500 and that he receive a public censure and reprimand.

The Respondent appealed the Final Order and Public Report to the First District Court of Appeal, which reversed and remanded the case on grounds that the standard of proof of clear and convincing evidence, not preponderance of the evidence, should have been applied. Latham v. Commission on Ethics, 694 So.2d 83 (Fla. 1st DCA 1997). The Commission then remanded the case back to the Division of Administrative Hearings for reevaluation of the evidence in light of the more rigorous standard of proof. By order dated July 18, 1997, the ALJ ruled that a new evidentiary hearing would not be held and allowed the parties to file proposed recommended orders addressing whether the Advocate had established the violation by clear and convincing evidence. On September 8, 1997, the ALJ issued a Recommended Order on Remand, which was virtually identical to her original Recommended Order except that rather than applying the preponderance of the evidence standard of proof, she applied the clear and convincing evidence standard.

Concomitantly, on September 2, 1997, the Respondent petitioned the First District Court of Appeal for a Writ of Mandamus requesting that a new evidentiary hearing be held. He later moved the Court to supplement the record with the various documents that had been filed with the Commission subsequent to his petitioning the Court for a Writ of Mandamus. Although the Court granted the Respondent’s Motion to Supplement the Record, it denied his Petition for a Writ of Mandamus by order dated October 28, 1997.

II. STANDARD OF REVIEW

Section 120.57(1)(j), Florida Statutes (1996 Supp.), proclaims the standard of review that governs the Commission’s final action on the Recommended Order on Remand. It states:

The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusion of law and interpretation of administrative rules over which it has substantive jurisdiction. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.

III. RULINGS ON EXCEPTIONS

Initially, we note that many of Respondent’s exceptions are identical to the exceptions he filed to the first Recommended Order. However, rather than reject them summarily by referring to our earlier Final Order and Public Report, we will address and rule on them sequentially in this second Final Order.

Respondent’s first exception, although neither labeled nor numbered as such, complains that the ALJ erred in not conducting a de novo proceeding after the District Court reversed and remanded the Commission’s first Final Order and Public Report. As noted by the Advocate in her Response, the Court found no error in the evidentiary proceedings, only in the application of the law. Accordingly, Respondent’s first exception is denied.

Next, in what is labeled Exception Number 1, the Respondent asserts that the ALJ’s Statement of the Issues does not comply with the essential requirements of law. Apparently, the Respondent contends that Section 110.1221, F.S., requires that the federal definition of what constitutes sexual harassment should have been used to frame the issue before the ALJ. As pointed out by the Advocate in her Response, violations of Section 112.313(6), F.S., do not hinge on definitions of “sexual harassment” found in other regulatory schemes. Accordingly, Respondent’s Exception Number 1 is denied.

Exception Number 2 is directed to Finding of Fact 5, which the Respondent claims is not based on competent substantial evidence and is “based on a negative inference.” The only grounds for excepting to findings of fact are that the finding is not based on competent substantial evidence, or that the proceedings did not comply with the essential requirements of law. Section 120.57(1)(j), F.S. The record reveals competent substantial evidence to support the finding. T.25. Based upon the holding of Heifetz v. Department of Business Regulation, Div. of Alcoholic Beverages & Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985), we are not at liberty to reweigh the evidence or substitute our opinions as to credibility over those made the ALJ. Therefore, Respondent’s Exception Number 2 is denied.

Exception Number 3 is directed to Finding of Fact 6, which the Respondent claims is not based on competent substantial evidence. The Advocate’s Response lists the record support for this finding: T.56-57, 92-93,106,118, 120-21. We therefore deny Respondent’s Exception Number 3.

In his Exception Number 4, the Respondent objects to Finding of Fact 9 as not based upon competent substantial evidence. The Advocate’s Response cites the record evidence which supports this finding: T.86,91. Therefore, Respondent’s Exception Number 4 is denied.

Exception Number 5 objects to Finding of Fact 10 on the basis of, Respondent claims, a lack of competent substantial evidence to support the finding. Notwithstanding, his record citations are, in part, the same as those cited by the Advocate as the basis for the challenged finding. T.25-26,31. As Heifetz, supra, teaches us, weight and credibility determinations are the province of the ALJ, not the Commission. We therefore deny Respondent’s Exception Number 5.

Exception Number 6 is directed at Finding of Fact 11, and a lack of competent substantial evidence is the basis for Respondent’s objection. The record support for this finding is found at T.26-27. Respondent’s Exception Number 6 is denied.

In his Exception Number 7, the Respondent objects to Finding of Fact 12 as not based upon competent substantial evidence. The record evinces support for this finding at T.26,31. We therefore are compelled to deny Exception Number 7.

Objecting to Finding of Fact 13 in Exception Number 8, the Respondent asserts that it is not based upon competent substantial evidence and that it is irrelevant. A finding’s relevance is for the ALJ to determine, and characterizations about its relevance or lack thereof are not an appropriate basis for excepting to it. Section 120.57(1)(j), F.S. Moreover, there is record support for the finding: T.27-28,78-80. We therefore deny Respondent’s Exception Number 8.

Exception Number 9 excepts to Finding of Fact 15, on the purported basis that it is “irrelevant and [has] no rational probative value.” Neither of these are valid grounds for rejecting a finding of fact. Section 120.57(1)(j), F.S. The record contains competent substantial evidence to support the finding: T.28-29,66. Thus, the Respondent’s Exception Number 9 is denied.

Exception Number 10 challenges Finding of Fact 16. The stated ground for the exception is that it is not based upon competent substantial evidence. Contrary to Respondent’s assertion, our review of the record does reveal competent substantial evidence to support this finding. T.31-35. Therefore, we deny Respondent’s Exception Number 10.

In what is twice labeled Exception Number 11, the Respondent objects to Finding of Fact 17 on the basis that it is not based on competent substantial evidence and that it does not comply with Section 112.313(6). The Commission cannot reject the findings of fact made by the ALJ where they are based upon competent substantial evidence, and the record suggests are. T.70-71. The Commission therefore denies Respondent’s first Exception Number 11.

The next exception objects to Finding of Fact 18 because it, the Respondent asserts, is not based upon competent substantial evidence and because it is irrelevant. Upon closer examination this exception is merely an attempt to dispute Ms. Billingslea’s credibility. Although it has already been stated, it bears repeating--we are not at liberty to reweigh the evidence or reassess credibility determinations made by the ALJ. There being competent substantial evidence to support Finding of Fact 18 at T.31-35, Respondent’s Exception to Finding of Fact 18 is denied.

In Exception Number 12, the Respondent excepts to Finding of Fact 19 as not based upon competent substantial evidence. The Advocate cites to record evidence to support the finding, and our review of the record confirms its existence. T.34,86,91. Accordingly, Respondent’s Exception Number 12 is denied.

Exception Number 14^[2] is directed at Finding of Fact 20. The Respondent asserts that this finding is not based upon competent substantial evidence and is irrelevant. The Advocate counters by pointing out that not only is there record support for the finding, T.35-36, the Respondent stipulated to it in the Joint Prehearing Stipulation. Our review of the record verifies the Advocate’s assertion. The Respondent’s Exception Number 14 is therefore denied.

Finding of Fact 21 is excepted to in Respondent’s Exception Number 15, which he claims is not supported by competent substantial evidence. From the record that was before the ALJ and is now before us, there appears to be competent substantial evidence. T.37-39. We must therefore deny Respondent’s Exception Number 15.

Respondent excepts to Finding of Fact 22 in Exception Number 16. The basis for his exception is that he claims there is no competent substantial evidence to support the finding, and that it is irrelevant. The weight to be given the evidence was the ALJ’s prerogative. There being competent substantial evidence in the record on which the finding was based, T.37-39,44-45, Respondent’s Exception Number 16 is denied.

In Exception Number 17, the Respondent excepts to Finding of Fact Number 23 on the basis that it lacks competent substantial evidence. Our record review reveals otherwise. T.38-39,135. Accordingly, Respondent’s Exception Number 17 is denied.

Exception Number 18, directed to Finding of Fact 28, asserts that there is no competent substantial evidence to support the finding, and, that it is irrelevant. There is competent substantial evidence in the record to support the ALJ’s finding. T.97-98,111,114,270. The ALJ had the opportunity to hear the witnesses, judge their credibility, sift through the evidence, and make the findings that she made. Because there is competent substantial evidence in the record to support the challenged finding, Respondent’s Exception Number 18 is denied.

In excepting to Finding of Fact 26, Respondent’s Exception Number 19 claims that there is no competent substantial evidence to support the finding. As pointed out by the Advocate in her response and verified by us, the record reveals the opposite to be true. T.42-43,95. We therefore deny Exception Number 19.

In Exception Number 20, the Respondent contends that Finding of Fact 30 is deficient because it is not based upon competent substantial evidence, and because it is irrelevant. The record contains evidence to support this finding, and it is competent and substantial. T.138; Advocate’s Exhibit 4, pp.94-95. Respondent’s Exception Number 20 is denied.

In Exception Number 21, the Respondent excepts to Finding of Fact 32. Although he claims that there is no competent substantial evidence to support the finding, clearly there is. T.123-125. Respondent’s Exception Number 21 is denied.

Exception Number 22 excepts to Finding of Fact 33 which, Respondent asserts, does not comply with law and is not relevant. We find that the proceedings did comply with the essential requirements of law. Further, the record reveals by the Respondent’s own testimony that there is competent substantial evidence to support the finding. AE 4, p.31. We therefore deny Respondent’s Exception Number 22.

The Respondent excepts to Finding of Fact 34 in his Exception Number 23. He contends that there is no competent substantial evidence to support the challenged finding. The Advocate asserts that the Respondent is seeking to repudiate his own prehearing stipulation with evidence that was never admitted into evidence before the ALJ. Because there is competent substantial evidence to support the finding, Exception Number 23 is denied.

The next eight exceptions are directed at conclusions of law, and the basis for each exception is the same--they purportedly do not comply with the law. Beginning with Exception Number 24, the Respondent submits that Conclusion of Law 36 does not comply with law because violations of Florida’s ethics laws does not include “sexual harassment.” The ALJ’s recitation of the Commission’s procedural statutes and rules in Conclusion of Law 36 is correct; hence, Respondent’s Exception Number 24 is denied.

With Exception Number 25, the Respondent appears to be arguing that the clear and convincing evidence standard required more evidence to prove a violation than that contained in the record before the ALJ. Because objected-to Conclusion of Law 37 merely recites the applicable standard of proof, Respondent’s Exception Number 25 is denied.

Exception Number 27^[3] assails Conclusion of Law 39 because, it is asserted, the law is too vague to cover conduct such as Respondent’s. As noted by the Advocate, a similar claim was considered and rejected in Garner v. Commission on Ethics, 415 So.2d 68 (Fla. 1st DCA 1982). Respondent’s Exception Number 27 is denied.

Exception Number 28, directed at Conclusion of Law 40, is essentially the same argument as the proceeding exception. Conclusion of Law 40 correctly lists the elements for establishing a violation of Section 112.313(6), Florida Statutes. Moreover, vagueness arguments were disposed of by the court in Garner, supra. Respondent’s Exception Number 28 is denied.

Respondent’s Exception Number 29 repeats his argument that for his behavior to constitute a violation of Section 112.313(6), Florida Statutes, it would have to meet the federal definition of “sexual harassment” purportedly mandated by Section 110.1221, Florida Statutes. See Exception Number 1. There is no such requirement, so Respondent’s Exception Number 29 is denied. Additionally, it appears that the Respondent is contending that compared to others who have been found by the Commission to have violated Section 112.313(6), Florida Statutes, his behavior is less egregious and cannot constitute a violation. The Advocate appropriately comments that the degree of wrongdoing goes to mitigation of the penalty, not the existence of a violation. Therefore, Respondent’s Exception Number 29 is denied.

Respondent’s Exception Number 30 is directed at Conclusion of Law 42, which does contain factual findings such that Respondent attempted to use his official position as a Florida Parole Commissioner to make sexually charged remarks to a subordinate employee for his own sexual gratification. Because this conclusion/finding is based upon competent substantial evidence, Respondent’s Exception Number 30 is denied. Moreover, the Commission denies the Respondent’s implied request for us to reweigh the evidence or declare Section 112.313(6), Florida Statutes, unconstitutional.

Exception Number 31 argues that Conclusion of Law 43 is incorrect. Conclusion of Law 43 contains the ultimate finding--that the Respondent violated Section 112.313(6), Florida Statutes, by corruptly using his position as a Florida Parole Commissioner to attempt to gain sexual favors from a subordinate employee, and that the violation was established by clear and convincing evidence. Respondent’s efforts to introduce non-record material into the case at this juncture is decidedly improper. Further, finding nothing improper or legally incorrect with Conclusion of Law 43, Respondent’s request that we reweigh the evidence and reach a contrary conclusion is denied.

Exception Number 32, Respondent’s final exception, is directed at the ALJ’s recommended penalty of $4,000 contained in Conclusion of Law 46. He contends that that amount is disproportionate to his actual conduct, that he was not reappointed to the Parole Commission and is no longer a public official, and that his present ability to pay should be considered by this Commission. The Advocate responds by noting that Section 112.317 allows for the imposition of a civil penalty of up to $5,000 per violation^[4], so that the ALJ’s recommendation is clearly within the bounds of the law. Moreover, the Advocate contends that the recommended penalty is not disproportionate in light of other Commission cases of a similar nature, and that deference should be given to the ALJ’s recommendation, given her familiarity with the issues, the law, and the evidence. The Advocate also challenges the Respondent’s suggestion that he lost his position on the Parole Commission as a result of these proceedings, that inability to pay the penalty is not a defense to the imposition of a fine or restitution, and that the Respondent’s previous unsworn, self-serving statements to the Commission on March 7, 1996 should not be considered as evidence of his inability to pay.

Because the ALJ’s penalty recommendation is legally correct, Respondent’s Exception Number 32 is denied.

IV. FINDINGS OF FACT

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

V. CONCLUSIONS OF LAW

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

2. Accordingly, the Commission on Ethics concludes that the Respondent, as a member of the Florida Parole Commission, violated Section 112.313(6), Florida Statutes, by attempting to gain sexual favors from a subordinate female employee.

RECOMMENDED PENALTY

The ALJ’s recommended civil penalty of $4,000 is hereby reduced to $2,500, but the remainder of that recommendation, which includes public censure and reprimand for Respondent’s violation of Section 112.313(6), Florida Statutes, is accepted by the Commission.

In consideration of the foregoing and pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, Gary D. Latham, in the amount of $2,500, and that he receive a public censure and reprimand.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, December 5, 1997.

_________________________

Date

_________________________

Kathy Chinoy

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 2822 Remington Green Circle, Suite 101); 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. Gary Latham, Respondent

Ms. Virlindia Doss, Commission Advocate

Division of Administrative Hearings

^[1]The title “Hearing Officer” was changed to “Administrative Law Judge” on October 1, 1996, when sweeping changes to Chapter 120, F.S., became effective.

^[2]There is not an Exception Number 13.

^[3]There is no Exception Number 26.

^[4]At the time Respondent violated Section 112.313(6), the maximum amount of a civil penalty that could be imposed was $5,000 per violation. Section 112.317 was subsequently amended to allow the imposition of a $10,000 civil penalty.