STATE OF FLORIDA
COMMISSION ON ETHICS
In re EILEEN McGUIRE, ) Complaint No. 99-31
) DOAH Case No. 00-0267FE
Respondent. ) COE Final Order No.: 00-055
FINAL ORDER DENYING ATTORNEY'S FEES AND COSTS
This matter was considered by the Commission on Ethics following receipt and consideration of the Recommended Order issued by the Administrative Law Judge (ALJ) from the Division of Administrative Hearings (DOAH), a copy of which is attached hereto.
This matter began with Caron Speas (Speas) filing a complaint with the Commission on Ethics alleging that Eileen McGuire (McGuire) had violated the Code of Ethics for Public Officers and Employees. That complaint was dismissed by the Commission for lack of probable cause on December 2, 1999.
Thereafter, McGuire timely petitioned for an award of attorney's fees and costs against Speas pursuant to Section 112.317(8), Florida Statutes. That petition was referred to DOAH and a formal hearing was held on May 2, 2000. The transcript of the hearing was filed with the ALJ on May 30, 2000, and the parties then filed proposed recommended orders. The ALJ's Recommended Order was transmitted to the Commission and the parties on August 24, 2000. The parties were notified of their right to file exceptions to the Recommended Order in accordance with Rule 28-106.217, Florida Administrative Code. McGuire's exceptions were timely received on September 8, 2000, and Speas thereafter submitted a response to McGuire's exceptions on September 18, 2000.
The Administrative Procedures Act--Chapter 120, Florida Statutes--requires agencies to accept the ALJ’s findings of fact and conclusions of law, except under certain limited circumstances.
Section 120.57(1)(l), Florida Statutes (1999), provides the standard of review for findings of fact in the Recommended Order. It states, in relevant part:
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 Commission cannot reweigh the evidence considered by the ALJ. The Commission cannot reject findings of fact made by the ALJ unless there is no competent substantial evidence in the record to support the findings. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); and Bay County School Board v. Bryan, 679 So.2d 1246 (Fla. 1st DCA 1996), construing a provision substantially similar to Section 120.57(1)(l), Florida Statutes (1998 Supp.)
The Commission also has limited authority to reject or modify the ALJ’s conclusions of law. Section 120.57(1)(l), Florida Statutes (1999), provides that:
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 conclusions of law over which it has substantive jurisdiction and interpretation 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 of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.
The label assigned to a statement is not dispositive as to whether that statement is a conclusion of law or a finding of fact. Sapp v. Florida State Board of Nursing, 384 So.2d 254 (Fla.2d DCA 1980); Leapley v. Board of Regents, 423 So.2d 431 (Fla 1st DCA 1982); Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987). The obligation of the agency to honor the ALJ’s findings of fact may not be avoided by categorizing a contrary finding a “conclusion of law.” Goin v. Commission on Ethics, 658 So.2d 1131 (Fla. 1st DCA 1995).
1. McGuire’s first two exceptions are that the ALJ’s recommended order does not incorporate each and every finding of fact and conclusion of law proposed by McGuire. Chapter 120, Florida Statutes, contains no requirement that an ALJ adopt the proposed recommended order submitted by one of the litigants. Therefore, the ALJ’s purported failure to adopt McGuire’s proposed recommended order as her own is not erroneous and McGuire’s first two exceptions are denied.
2. The thrust of McGuire’s remaining exceptions are to the ultimate finding--that Speas did not file the complaint against McGuire with a malicious intent to injure her reputation. McGuire does not point to any lack of competent substantial evidence supporting this finding but invites the Commission to side with her view of the evidence over the ALJ’s. However, Heifetz, supra, reminds us:
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based upon competent substantial evidence. Id. at 1281.
The ALJ apparently concluded that Speas genuinely believed, and persisted in her belief, that McGuire had directed the Town employees to remove only her brother’s and the other candidate’s signs. There is evidence in the record that Speas’ belief was not entirely unreasonable, given the fact that Speas testified that she observed the employees go onto what she thought was private property and remove her brother’s and Virgil Pacetti’s signs (R.81,86,108); that other candidates’ nearby signs were not removed (R.105,108); that she saw only her brother’s and Virgil Pacetti’s signs in the employees’ trunk and at the maintenance yard (R.105,108); and that the signs were later replaced in the same exact locations and were left undisturbed (R.103-105,211). We therefore reject McGuire's request that we engage in a re-weighing of the evidence to reach a contrary conclusion. Accordingly, McGuire’s exceptions are denied.
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. The petition for attorney's fees and costs filed by Respondent/Petitioner Eileen McGuire against Complainant/Respondent Caron Speas is hereby DENIED.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, November 17, 2000.
Howard S. Marks
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. Allen C. D. Scott, II, Attorney for Respondent/Petitioner
Mr. Peter Ticktin, Attorney for Complainant/Respondent
Division of Administrative Hearings
The Honorable Carolyn S. Holifield, ALJ