STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILMA SULLLIVAN and JOHN SULLIVAN, )
)
Petitioners, )
)
vs. ) CASE NO. 83-2786RX
) THE FLORIDA COMMISSION ON ETHICS, )
)
Respondent. )
)
FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER
This rule-challenge proceeding was submitted to the undersigned Hearing Officer on a stipulated set of issues, a stipulated record and legal memoranda. While the matter between the Sullivans and the Commission on Ethics has had a long judicial and administrative history, the issues in the instant proceeding are narrow. The first issue is whether the Division of Administrative Hearings has jurisdiction to determine the validity of Chapter 34-5, Florida Administrative Code. The second issue is whether the rules contained in Chapter 34-5 are valid. The two issues are intertwined, primarily because the respondent Florida Commission on Ethics (the "Commission") claims as its authority to adopt the challenged rules the Florida Constitution, Article II, Section 8, commonly referred to as the "Sunshine Amendment."
Relying primarily on the case of Osborne v. Florida Game and Fresh Water Fish Commission, 3 F.A.L.R. 1483-A, (DOAH Case No. 81-062R) affirmed, 404 So.2d 870 (Fla. 1st DCA, 1981), the Commission contends that its rules are not subject to challenge under the Administrative Procedure Act because they emanate from a constitutional, as opposed to a legislative, grant of authority. The Commission correctly notes that the Osborne case stands for the proposition that a rule-challenge proceeding initiated pursuant to Section 120.56, Florida Statutes, is not appropriate when an agency is exercising a constitutional grant of authority. However, a simple claim by the agency that it is exercising a constitutional grant of authority is not alone sufficient to oust the Division of Administrative Hearings of its jurisdiction to determine the validity of agency rules. Indeed, initial jurisdiction was found in the Osborne case. That case simply concluded, after examining the Game and Fresh Water Fish Commission's constitutional authority, that any determination regarding the validity of the existing challenged rules would necessarily require a determination of their constitutionality. This is what the Division of Administrative Hearings is without jurisdiction to do.
The constitutional provision with which the Hearing Officer in the Osborne case was confronted reads as follows:
"There shall be a game and fresh water fish commission, composed of five members appointed by the governor subject to confirmation by the senate for staggered terms of five years. The commission shall
exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute. The legislature may enact laws in aid of the commission, not inconsistent with this section. The commission's exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law.
Revenue derived from such license fees shall be appropriated to the commission by the legislature for the purpose of management, protection and conservation of wild animal life and fresh water aquatic life." Article IV, Section 9, Florida Constitution.
The Hearing Officer held that the challenged rules were promulgated by the Game and Fresh Water Fish Commission pursuant to authority granted by Article IV, Section 9 of the Constitution, and thus were not subject to attack in a Section 120.56, Florida Statutes, proceeding.
In order to prevail in its jurisdictional argument, the Ethics Commission must demonstrate that the challenged rules are of constitutional origin. It is suggested that the Division of Administrative Hearings is without jurisdiction to even consider a question which requires an analysis of the existence of constitutional authority for actions taken by an agency.
Certainly, the Division of Administrative Hearings has jurisdiction to initially consider whether it has jurisdiction. If the Commission's suggestion were correct, any agency could claim constitutional, as opposed to legislative authority for its actions, thus immunizing itself from the requirements and procedures of the Administrative Procedure Act. It is concluded that the Division of Administrative Hearings has jurisdiction to initially examine an agency's claim of authority to adopt rules or take other action. If that analysis leads to the conclusion that the action taken emanates solely from a constitutional grant of authority, and thus that a determination of validity would necessarily involve constitutional interpretations, jurisdiction under the Administrative Procedure Act ceases and the issues can be adjudicated only by the judiciary.
Section 8, Article II of the Florida Constitution is known as the "Sunshine Amendment," and reads as follows:
"SECTION 8. Ethics in government. A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right:
All elected constitutional officers and candidates for such offices and, as may be determined by law, other public officers, candidates, and employees shall file full and public disclosure of their financial interests.
All elected public officers and candidates for such offices shall file full and public disclosure of their campaign finances.
Any public officer or employee who breaches the public trust for private gain and any person or entity inducing such breach shall be liable to the state for all financial benefits obtained by such actions.
The manner of recovery and additional damages may be provided by law.
Any public officer or employee who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law.
No member of the legislature or statewide elected officer shall personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of two years following vacation of office. No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals. Similar restrictions on other public officers and employees may be established by law.
There shall be an independent commission to conduct investigations and make public reports on all complaints concerning breach of public trust by public officers or employees not within the jurisdiction of the judicial qualifications commission.
This section shall not be construed to limit disclosures and prohibitions which may be established by law to preserve the public trust and avoid conflicts between public duties and private interests.
Schedule--On the effective date of the amendment and until changed by law:
Full and public disclosure of financial interests shall mean filing with the secretary of state by July 1 of each year a sworn statement showing net worth and
identifying each asset and liability in excess of $1,000 and its value together with one of the following:
A copy of the person's most recent federal income tax return; or
A sworn statement which identifies each separate source and amount of income which exceeds $1,000. The forms for such source disclosure and the rules under which
they are to be filed shall be prescribed by the independent commission established in subsection (f), and such rules shall include disclosure of secondary sources of income.
Persons holding statewide elective offices shall also file disclosure of their financial interests pursuant to subsection (h)(1).
The independent commission provided for in subsection (f) shall mean the Florida Commission on Ethics.
In its claim that the above language vests authority in the Commission on Ethics to adopt rules, substantive and procedural, the Commission relies primarily on language contained in the cases of Myers v. Hawkins, 362 So.2d 926 (Fla. 1978), and Florida Commission on Ethics v. Plante, 369 So.2d 332 (Fla. 1979). The Myers case involved the initial issue of whether the Public Service Commission, through the guise of a Section 120.565 declaratory statement proceeding, could determine the meaning of "ambiguous constitutional terms" contained in the Sunshine Amendment. The Court noted that only the Ethics Commission could initially make such determinations. The Plante case simply held that the Commission had authority to reach a conclusion at the end of its investigation of a complaint involving a breach of the public trust and to include such conclusion in its public report. Neither Myers nor Plante held that the Sunshine Amendment vested the Ethics Commission with rule-making authority.
Indeed, in describing the authority granted by Article II, Section 8(f), the Supreme Court in Plante, stated that the Commission on Ethics may
"receive complaints, conduct investigations, issue public reports, and reach conclusions based upon the proof presented on whether persons covered by the act have breached the public trust. Finally, we hold that any conclusion reached by the Commission on Ethics is not binding upon any other official body or officer." (Emphasis supplied) 369 So.2d 332, at 339 (Fla. 1979).
The Plante case does not stand for the proposition that the Commission has authority to adopt substantive rules outside the confines of a particular matter before it.
Two further judicial opinions bear mention. Concerned only with the provisions of Article II, Section 8(d), the Supreme Court in Williams v. Smith,
360 So.2d 417 (Fla. 1978) held that Section 8(d) was not self-executing and that the Legislature was expected and required to enact implementing laws to make that provision workable. The Court held that particular portion of the Sunshine Amendment:
"requires so much in the way of definition, delineation of time and procedural requirements, that the intent of the people cannot be carried out without the aid of legislative enactment." 360 So.2d 417, at 420.
In footnote 8, the Court specifically notes that "there is a need for a definition of `a felony involving a breach of public trust.'"
Here, the Commission would reserve to itself, without any claim of legislative authority, the power to implement the Constitution by the adoption of substantive rules. Such a reservation of power was specifically rejected in the latest case involving these same parties. In State, Commission on Ethics v. Sullivan, 449 So.2d 315 (Fla. 1st DCA, 1984), the Court specifically held that the Commission on Ethics, when fulfilling its constitutional function of investigating and making public reports on complaints regarding a breach of public trust, is subject to the provisions of Chapter 120, Florida Statutes, and may not proceed under its own set of rules. It is noted that, unlike the Judicial Qualification Commission's constitutional grant of authority to adopt rules regulating its procedures (Article V, Section 12(d)), no such authority is found in Article II, Section 8 with regard to the Commission on Ethics. The Court further found that
"The Commission has not demonstrated that the 'Sunshine Amendment' was intended to elevate it to a `constitutional status' identical to the judicial nominating commissions." 449 So.2d 315, at 317.
In summary, then, on the jurisdictional issue, it is concluded that there is no apparent constitutional grant of authority to the Commission to adopt rules, procedural or substantive, except as the rules might relate to financial disclosure statements. Therefore, the Division of Administrative Hearings has jurisdictions pursuant to Section 120.56, Florida Statutes, to determine whether the rules contained in Chapter 34-5, Florida Administrative Coded, constitute an invalid exercise of delegated legislative authority.
The Commission on Ethics is an "agency" as defined in Section 120.52(1), Florida Statutes. No agency has inherent rule-making authority, Section 120.54(14), Florida Statutes, and may exercise only those powers specifically granted by statute. A search of Chapter 112, Part III, Florida Statutes, pursuant to which the Commission on Ethics was created quickly reveals that the Commission was not delegated any legislative authority to adopt rules. The Commission was created "to serve as a guardian of the standards of conduct for the officers and employees of the state...." Section 112.320, Florida Statutes. It was not granted authority to enact standards of conduct. Its duties and powers were legislatively limited to such functions as receiving and investigating sworn complaints of violations of the code of ethics established in Chapter 112, holding hearings, making findings and a public report, recommending action, rendering advisory opinions, and making recommendations to the Legislature for legislation deemed necessary to improve the code of ethics and its enforcement. Section 112.322, Florida Statutes. The following section, Section 112.324, sets forth the procedures to be followed on complaints of violation. Nowhere in Chapter 112 can there be found a delegation of authority to the Commission to adopt rules of substance or procedure. Nor can such authority be found, as discussed above, in the Constitution's "Sunshine Amendment," except as a rule might be related to the filing of financial disclosure statements.
There being no authority in either the enabling legislation or the Constitution to adopt rules, it is necessary to look elsewhere for some such grant of authority to the Commission. That grant can be found in the Administrative Procedure Act. Section 120.53(1), Florida Statutes, authorizes, indeed requires, each agency to adopt rules of practice, rules of procedure and a description of its organization. Thus, the Commission on Ethics has been
granted legislative authority to adopt rules of practice and procedure, but has no authority to promulgate rules of substance.
The prime focus of this rule-challenge proceeding is Rule 34-5.015, Florida Administrative Code. That rule reads as follows:
34-5.015 Jurisdiction of the Commission. Article II, Section 8(f) Florida Constitution, requires the Commission on Ethics "to conduct investigations and make public reports on all complaints concerning breach of public trust by public officers or employees not within the jurisdiction of the judicial qualifications commission." The rules of this chapter have been promulgated by the Commission to provide the practices and procedures under which the Commission shall exercise this constitutional function. A complaint concerning breach of public trust is any complaint, filed with the Commission in accordance with the rules of this chapter, which alleges that a public officer or employee has engaged in unethical conduct. A breach of public trust includes any violation of any provision in the Florida Constitution or any provision of Florida law which provides a standard of ethical conduct for the general class of public officers or employees relating to a conflict of interest, including, but not limited to, the following provisions:
Article II, Section 8 of the Florida constitution;
(2) Section 112.313, 112.3141; 112.3143,
or 112.3145 of Chapter 112, Part III, Florida Statutes, the Code of Ethics for Public Officers and Employees; and
(3) Subsection (a) of Article II, Section
5 of the Florida Constitution, relating to dual office holding.
Since the Commission has procedural rule-making authority, but no substantive rule-making authority, the issue for determination is whether Rule 34-5.015 is a rule of procedure or a rule of substance.
While aptly describing the distinction between substance and procedure as a "twilight zone," the Florida Supreme Court has identified substantive law as including "those rules and principles which fix and declare the primary rights of individuals..." In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla. 1972). A "substantive law is that which declares what acts are crimes...while [a] procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished." State v. Garcia, 229 So.2d 236 (Fla. 1969). Practice and procedure pertains to the legal machinery by which the substantive law is made effective. In re Florida Rules of Criminal Procedure, supra.
Challenged Rule 34-5.015 states that the purpose of the entire chapter is to provide the "practice and procedures" under which the Commission will exercise its constitutional functions concerning breach of public trust by public officers or employees. However, that rule goes on to declare that a "breach of public trust" is any violation of any provision of the Florida Constitution or any provision of Florida law which provides a standard of ethical conduct relating to a conflict of interest. A more basic statement of substantive law can hardly be envisioned. That statement declares and fixes what act may constitute an offense over which the Commission has jurisdiction. It is argued by the Commission that the challenged "interpretation" of "breach of public trust" is useful, appropriate, and necessary to carry into effect the powers and purposes of Article II, Section 8(f), Florida Constitution. That a rule on a particular subject may be beneficial or otherwise meritorious is not determinative of its validity. The issue is whether there is authority for the rule, for the Commission has no inherent authority. Department of Health and Rehabilitative Services v. The Florida Psychiatric Society, Inc., et al., 382 So.2d 1280 (Fla. 1st DCA, 1980). There being no authority delegated to the Commission to promulgate rules of substance, that portion of Rule 34-5.015 purporting to define a "breach of public trust" is clearly invalid.
The petitioner has argued that eight additional rules in Chapter 34-5, Florida Administrative Code, are substantive, as opposed to procedural, and/or are otherwise beyond the authority of the Commission to promulgate. The undersigned has carefully examined these rules, the arguments of counsel relating to each rule and the authority delegated to the Commission pursuant to Chapter 112, Part III, and Chapter 120, Florida Statutes, and the Florida Constitution.
Both the statutes and the Constitution authorize the Commission to conduct investigations on all complaints. Sections 112.322(1) and 112.324, Florida Statutes, Article II, Section 8(f), Florida Constitution. Indeed, Section 112.322(1) mandates the Commission to "receive and investigate sworn complaints...including investigations of all facts and parties materially related to the complaint at issue." The Commission relies upon this language to support Rule 34-5.042, which purports to allow the Commission not only to investigate the facts and parties involved in the complaint "at issue," but also to investigate and initiate proceedings involving other parties and other incidents beyond the scope of the sworn complaint filed with the Commission.
The authority to create new cases and prosecute them in the manner suggested by Rule 34-5.042 cannot be found. The challenged rule is not, as urged by the Commission, merely interpretive of the statutory language which allows "investigations of all facts and parties materially related to the complaint at issue." Instead, the rule purports to vest in the Commission a form of self- starting mechanism to create separate complaints and prosecute them. The statutes (as well as the Constitution) only authorize the Commission to be responsive to complaints, and not to initiate complaints or other proceedings. Agency rules must be consistent with the statutes under which they are promulgated, and they may not amend, add to or repeal the statute. HRS v. The Florida Psychiatric Society, Inc., et al, supra. Accordingly, Rule 34-5.042 constitutes an invalid exercise of delegated legislative authority.
To the extent that challenged Rule 34-5.075 purports to allow the Commission to substantively amend a sworn complaint with additional factual allegations, it suffers from the same infirmities as does Rule 34-5.042 discussed above.
Petitioners contend that challenged Rules 34-5.10, 34-5.14, and 34-
5.22 are invalid because they allow hearings to be conducted and recommended orders to be entered by a panel of three Commissioners or by a single Commission member, as opposed to the nine-member Commission as a whole. These rules are procedural in nature and appear to be consistent with Section 120.57(1)(a), Florida Statutes, which allows hearings to be conducted by "agency heads or a member thereof other than an agency head...." While the constitutional and statutory provisions require the "Commission" to make the final public reports on complaints, the procedure for conducting hearings is not statutorily specified. The petitioner has failed to demonstrate that Rules 34-5.10, 34- 5.14, and 34-5.22 constitute an invalid exercise of delegated legislative authority.
The gravamen of petitioners' challenge to Rule 34-5.19(4)(d), relating to hearsay evidence, has been cured by an amendment. The rule now tracks the language contained in Section 120.58(1)(a), Florida Statutes, and has not otherwise been demonstrated to be invalid.
Insofar as challenged Rule 34-5.21(3) again attempts to declare and fix the offense of "breach of public trust," it is substantive in nature and suffers the same defect as Rule 34-5.015, as discussed above. The Commission's reliance on Plante, supra, to support the additional language in Rule 34-5.21(3) that "it is the constitutional duty of the Commission, in the First instance, to determine the meaning of `breach of the public trust'" is misplaced. As recognized earlier in this Order, that case simply held that common sense dictates that the Commission would "reach some conclusion at the end of an investigation." This case cannot be cited as authority for the Commission to enact a rule declaring the substance of an offense.
Petitioners' final attack on the Commission's rules pertains to Rule 34-5.26, which specifies the content of the record in all cases. Insofar as the rule includes, in subsection (1), "memoranda" and "letters," in addition to "evidence received and considered," the rule conflicts with the statutory requirements of Section 120.57(1)(b)(5), Florida Statutes. To that extent, Rule 34-5.26(1) exceeds delegated legislative authority and is invalid.
The burden of proof is upon one who challenges an agency's rules to demonstrate that the rules constitute an invalid exercise of delegated legislative authority. Agrico Chemical Company v. State, etc., 365 So.2d 759 (Fla. 1st DCA, 1978). While initially challenging all of Chapter 34-5, Florida Administrative Coded petitioners' Supplemental Memorandum filed on April 12, 1985, specifically challenges only the nine rules, or portions thereof, as discussed in this Order. Accordingly, no determination is made regarding the validity of the remaining rules contained in Chapter 34-5, Florida Administrative Code.
In summary, IT IS ORDERED THAT:
(1) Rules 34-5.015, 34-5.042, 34-5.075, 34-5.21(3) and that portion of Rule 34-5.26(1) containing the words "memoranda" and "letters" constitute invalid exercises of delegated legislative authority; and
Petitioners' challenge to Rules 34-5.10, 34-5.14, 34-5.22, and 34- 5.19(4)(d) is DISMISSED.
ORDERED and ENTERED this 22nd day of May, 1985, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1985.
COPIES FURNISHED:
Philip C. Claypool Staff Attorney Commission on Ethics Post Office Box 6 Tallahassee, FL 32302
Arden M. Siegendorf Assistant Attorney General The Capitol
Tallahassee, FL 32301
Stephen Marc Slepin, Esquire 1114 East Park Avenue Tallahassee, FL 32301
Carroll Webb Executive Director
Joint Administrative Procedures Committee
Room 120, Holland Building Tallahassee, FL 32301
Liz Cloud Bureau Chief
Administrative Code Section Department of State
1802 Capitol
Tallahassee, FL 32301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
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 filling 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.
| Issue Date | Proceedings |
|---|---|
| May 22, 1985 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| May 22, 1985 | DOAH Final Order | Certain proposed rules constitute invalid exercise of delegated legislative authority while other challenged rules are not an invalid exercise. |
