STATE OF FLORIDA
COMMISSION ON ETHICS
In re ROBERT LEE THOMAS,††††† )
††††††††††††††††††††††††††††† )††††††††††††††††††††† DOAH Case No. 96-3811
†††† Respondent.††††††††††††† )††††††††††††††††††††† Complaint No. 95-117
††††††††††††††††††††††††††††† )††††††††††††††††††††† COE Final Order No. 97-05
On January 10, 1997, an Administrative Law Judge from the Division of Administrative Hearings (DOAH) submitted to the parties and the Commission her Recommended Order, a copy of which is attached hereto.† The Commission's Advocate filed an exception to the Recommended Order on January 30, 1997, and the matter thereafter came before the Commission on Ethics for final agency action.
These proceedings were initiated by the filing of a sworn complaint alleging that the Respondent, while serving as Mayor of the City of Glen St. Mary, violated the Code of Ethics for Public Officers and Employees.† The complaint was found to be legally sufficient to indicate possible violations of Sections 112.313(6), 112.313(7)(a), and 112.313(8), Florida Statutes, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause.† On March 12, 1996, the Commission on Ethics issued an order finding probable cause to believe that the Respondent violated Sections 112.313(6), 112.313(7)(a), and 112.313(8), Florida Statutes, and the matter was† forwarded to the Division of Administrative Hearings for conduct of a formal hearing and entry of a recommended order.† Thereafter, a formal evidentiary hearing was held before the Administrative Law Judge, the proceeding was recorded but not transcribed, and the Commissionís Advocate timely filed a proposed recommended order.† The Recommended Order was transmitted to the Commission and the parties on January 10, 1997, and the parties were notified of their right to file exceptions to the Recommended Order in accordance with Rule 34-5.023(1), Florida Administrative Code.† The Commission's Advocate filed an exception to the penalty recommendation.
Under Section 120.57(1)(j), Florida Statutes (1996 Supp.), an agency may reject or modify the conclusions of law and interpretations of administrative rules over which it has substantive jurisdiction.† However, the agency may not reject or modify findings of fact made by the Administrative Law Judge 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 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 Administrative Law Judge.† 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 Administrative Law Judge, the Commission is bound by that finding.
In his exception, the Advocate points out that Administrative Law Judge recommended that the Respondent be ordered to make restitution of the $10,000 profit he made on the land deal to the City of St. Mary.† However, as the Advocate correctly notes, the proper recipient of the $10,000 restitution penalty would be the State of Florida, not the City of Glen St. Mary, citing In re Michael W. Kenton, 13 F.A.L.R. 1295 (1989).† Therefore, the Advocateís exception is granted.
The findings of fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
1.† The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
2.† Accordingly, the Commission on Ethics finds that the Respondent did violate Section 112.313(6), 112.313(7)(a), and 112.313(8), Florida Statutes.
In consideration of the foregoing, pursuant to Sections 112.317 and 112.324, Florida Statutes, the Commission recommends that the Governor impose a civil penalty upon the Respondent, Robert Lee Thomas, in the amount of $3,000 ($1,000 per violation), that he be ordered to pay a $10,000 restitution penalty to the State of Florida, and that he be publicly censured and reprimanded.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, March 6, 1997.
Mary Alice Phelan
YOU ARE NOTIFIED THAT YOU ARE ENTITLED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU.† REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE.† THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
cc:† Mr. Robert Lee Thomas, Respondent
Mr. Eric S. Scott, Commission's Advocate
Ms. Claudia S. Clary, Complainant†††
Division of Administrative Hearings