STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: JOHN KEENE CASE NO. 94-1907FE

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on March 8, 9, 10, 16, and 17, 1995, in Green Cove Springs, Florida.

APPEARANCES

For Respondent, Jeptha F. Barbour, Esquire Keene: Marks, Gray, Conroy, Gibbs, P.A.

1200 Riverplace Boulevard, Suite 800

Jacksonville, Florida 32207

For Complainant, Robert L. McLeod, II, Esquire Stotler: McLeod & Canan

Post Office Box 1918

St. Augustine, Florida 32085 STATEMENT OF THE ISSUES

Whether the Complainant, Ronald Stotler, should be required to pay attorney's fees and costs to the Respondent, John Keene, pursuant to Section 112.317(8), Florida Statutes, and Rule 34-10.29, Florida Administrative Code, and if so, the amount of the attorney's fees and costs to be awarded.

PRELIMINARY STATEMENT

On or about February 4, 1994, Complainant, Ronald Stotler, filed Complaint No. 94-09 (Complaint) with the Florida Commission on Ethics (Commission) against Respondent, John Keene. After a review of the Complaint and a Recommendation of Legal Insufficiency by Bonnie J. Williams, Executive Director of the Commission, the Commission dismissed the Complaint on March 10, 1994.

On or about April 12, 1994, Mr. Keene filed a Petition for Attorney's Fees and Costs with the Commission relating to Complaint No. 94-09.

On April 12, 1994, the Commission referred this matter to the Division of Administrative Hearings for assignment to a Hearing Officer. The final hearing was scheduled for June 16, 1994. On May 20, 1994, Respondent Keene filed a Motion for Continuance. The motion was granted, and the final hearing was rescheduled for October 19, 1994. On September 30, 1994, the parties filed a Joint Motion for Continuance, which was granted. The final hearing was rescheduled to commence on March 8, 1995.

At the final hearing, Mr. Keene testified in his own behalf and called the following witnesses: Ronald L. Stotler, Patricia G. Surman, Mae M. Byers, Eugene Alphonse, Thomas S. Edwards, William J. Conroy, Donald W. Moore, and Steven J. Duval by live testimony and presented the testimony of Terry Jones,

Bill Thompson, Jeptha Barbour, Ronald Stotler, and James Jett by deposition. Keene's Exhibits 1-48 were admitted in evidence.

At the final hearing, Mr. Stotler testified in his own behalf and called the following witnesses: Harold H. Rymer, Jr. and Lloyd Green by live testimony, and Terry Jones, James Jett, and John Keene by deposition. Stotler's Exhibits 1-17 were admitted in evidence.

The transcript was filed on May 30, 1995. Mr. Keene filed his Proposed Recommended Order on June 29, 1995. Mr. Stotler filed his Proposed Recommended Order on July 3, 1995. The parties' findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. John Keene was elected Clerk of the Court for Clay County, Florida, in November, 1988, and was reelected in 1992. He has served as Clerk of the Court at all times relevant to this proceeding.

   
   

2. Ronald Stotler served on the Board of County Commissioners for Clay County (Board) from 1982 to 1992, and served as Chairman of the Board from approximately November, 1991 to November, 1992. Based on his experience as a County Commissioner, he is familiar with the preparation and implementation of the Clay County budget. After going off the Board, he remained interested and active in Clay County politics.

   
   

3. As Clerk of the Court, Mr. Keene is the chief financial officer of Clay County. With the assistance of his financial director, he prepares the tentative budget to be presented to the Board. The Clerk's revenue projections are based on various factors including advalorem tax assessments, fine and foreiture and license funds, and State funding. Preparation of the budget requires projection of revenues and expenditures six to eight months prior to realization of those revenues or expenditures. The Board must approve the budget and can make changes to the budget presented by the Clerk.

   
   

4. The budget estimates for the 1992-1993 fiscal year, which included estimates of cash carried forward, were prepared by the Finance Director at that time, Arnold Herwick, who had served as Finance Director since 1975.

   
   

5. The budget for the 1992-1993 fiscal year was approved by the Board, chaired then by Commissioner Stotler.

   
   

6. In the fall of 1992, Arnold Herwick became ill and was unable to remain with the County as Finance Director. Sometime in October, 1992, Donald Moore contacted Mr. Keene to apply for the vacant position. Mr. Moore was the managing partner of a local CPA firm, Jones, Moore, Johnston, and Williams (Jones-Moore). His firm specialized in governmental accounting and auditing, tax, and write-up work. In the summer of 1992, the Jones-Moore firm had been awarded a four-year contract to do audit work for the Board beginning September 30, 1992. Mr. Moore's partner, Walter Johnston, did the actual work on the audit, not Mr. Moore.

   
   

7. Mr. Keene notified Mr. Moore in November, 1992, that he would be hired as Finance Director. Beginning, December 1, 1992, Mr. Moore began working part- time as the Finance Director in order to assist the County with the purchase of a local utility. On December 8, 1992, Mr. Keene introduced Mr. Moore as the new finance director at a public meeting of the Board.

8. In mid December, 1992, Mr. Moore sold his practice to the accounting firm of Magers, Nichols. Walter Johnston joined the Magers, Nichols firm and continued working on the Board's audit. On December 15, 1992, the Jones-Moore firm ceased all billable activities and started the process of collecting and paying on its accounts.

   
   

9. As part of the sale of the Jones-Moore firm, Mr. Moore was to continue to receive a portion of the collections on his client list, which included governmental clients. Mr. Moore and the Magers, Nichols firm agreed that Mr. Moore would not receive any compensation related to the audit contract with Clay County; however, this portion of the agreement was not memorialized until approximately a year after the original agreement.

   
   

10. In January, 1993, the Magers, Nichols firm was renamed Magers, Nichols, Moore, and Johnston. The "Moore" in the firm name referred to Donald Moore. The Magers, Nichols, Moore and Johnston firm had unilaterally and temporarily issued one share of the firm in Mr. Moore's name in order to be able use Mr. Moore's name in the firm name. Mr. Moore did not sign for the share and was unaware that he had been issued a share. However, Mr. Moore did concede the original agreement called for him to purchase a share in the newly formed Magers, Nichols firm. Mr. Moore was listed in the State Board of Accountancy Records as a partner or shareholder in the Magers, Nichols, Moore and Johnston firm.

    
    

11. The Jones-Moore firm received the following payments related to the audit for the Board: (a) $2,000 by check dated 10-13-92 for work performed through 9-30-92; (b) $1,200 by check dated 11-10-92 for work performed through 10-31-92; (c) $15,000 by check dated 12-22-92 for work performed through 11-30- 92; and (d) $2,780 by check dated 1-26-92 for work performed through 12-31-92. According to Mr. Moore, the Jones-Moore firm stopped performing actual work by December 15, 1992; thus, the January check would have been for work performed prior to December 15. The Magers, Nichols, Moore and Johnston firm received the following payments related to the audit contract for the Board which had been awarded to the Jones-Moore firm: $3,000 by check dated February 23, 1993 and

    $2,475 by check dated April 13, 1993. Mr. Moore did not receive any compensation for work performed after December 15, 1992, relating to the Board audit.

    
    

12. Mr. Moore was officially sworn in as Finance Director on January 5, 1993, at which time he began his full-time duties as Finance Director.

    
    

13. In February 1993, Mr. Moore determined that the audit work for the Board previously provided by the Jones-Moore firm should be assigned to a firm with which he had no prior relationship. He identified Duval & Company as the accounting firm rated highest by the Board during the summer of 1992 that was still in existence in 1993. When the Jones-Moore firm was awarded the contract in the summer of 1992, the Board had ranked three CPA firms, with the Jones- Moore being first and the Duval firm being third. The second firm dissolved after the award. Mr. Moore discussed the matter with Mr. Keene, who instructed him to contact the Duval firm to determine if the firm would be willing to accept an assignment of the contract. On February 4, 1993, Mr. Moore wrote a memorandum to Mr. Keene indicating that because of public perception that the audit contract should be assigned and that the Duval firm had agreed to finish the audit at no cost to the County. On February 9, 1993, at a regular public meeting, the Board approved the transfer and assignment of the audit contract to Duval & Company.

14. The audit was completed and delivered to the Board in March, 1993. The cover letter to the audit was dated January 23, 1993, which represented the last date that substantial field work was done.

    
    

15. In January, 1993, Mr. Keene reviewed a cash fund balance report for the 1991-1992 fiscal year and detected account balances that were lower than expected. He compared the last check run of the 1991-1992 fiscal year with the previous year and found the check run was 1.2 million dollars greater in the 1991-1992 fiscal year.

    
    

16. In February, 1993, Mr. Keene notified the Board of the possible 1.2 million dollar difference. In March, 1993, Mr. Keene received the audit of the 1991-1992 fiscal year and compared the adopted budget to the actual budget. The comparison revealed that revenue in the form of cash carried forward was overestimated by Mr. Herwick in the amount of 7.6 million dollars.

    
    

17. Mr. Keene prepared a proposal for the Board in which he recommended, among other things, that the County reduce its expenditures by 2.9 million dollars in order to balance the budget. He presented his proposal to each Board member individually and to the Board's Budget and Finance Committee as a group on April 21, 1993.

    
    

18. On or about April 22, 1993, Mr. Keene referred the budget matter to the State Attorney's Office to determine whether Mr. Herwick's errors resulted from malicious intent.

    
    

19. On April 27, and May 11, 1993, the Board held public meetings and discussed, among other things, the Budget and Finance Committee's recommendation concerning handling the budget shortfall.

    
    

20. On June 10 and 17, 1993, concerned citizens met at the office of attorney Terry Jones to discuss the budget issues and to prepare statements to be presented at the June 22 meeting of the Board. Mae Byers and Eugene Alphonse were among the persons at the meetings. Mr.Stotler did not attend the meetings.

    
    

21. On June 18, 1993, the accounting firm of Purvis & Gray, at Mr.Keene's request, verified the legality and appropriateness of the proposals offered by Mr.Keene to resolve the budget shortfall.

    
    

22. On June 22, 1993, at a regular public meeting, the Board considered and approved Mr.Keene's recommendations to cure the budget shortfall by a vote of 4-1, with Commissioner Jett voting in opposition. Mrs. Byers, Mr. Alphonse and others made presentations at the meeting in opposition to Mr. Keene's recommendations.

    
    

23. At Board meetings on July 13 and August 12, 1993, the Board, Mr. Keene and citizens discussed the 1992-1993 budget shortfall and ways to avoid future shortfalls.

    
    

24. On September 3, 1993, Mr. Keene wrote the State Attorney, Harry Shorestein, a letter offering support for any investigation and encouraging a grand jury inquiry if such an inquiry was found to be necessary.

    
    

25. In the fall of 1993, Mr. Stotler called Patricia Surman, who was a CPA and had been employed as an internal auditor for the Clerk's Office prior to her dismissal. Mr. Stotler was inquiring about the budget shortfall and the hiring

    of Donald Moore. Ms. Surman informed Mr. Stotler that her understanding was that the budget error resulted from the revenues collected falling short of the estimates and that Mr. Moore had handled the transfer of the county audit correctly under accounting practices.

    
    

26. On September 20, 1993, Mrs. Byers invited Mr. Stotler to a private meeting to discuss a presentation to State Attorney Harry Shorestein concerning the budget issues. Mr. Alphonse and others also attended the meeting. During the meeting the issue of media coverage was discussed. Mr. Stotler stated that he did not want to make the visit to the State Attorney a media event. After the September 20 meeting but prior to the actual meeting with the State Attorney, Mr. Stotler and Mrs. Byers prepared an addendum to the presentation to the State Attorney.

    
    

27. Mr. Stotler discussed the budget issue with Mrs. Byers and Commissioner Jett on several occasions. Mr. Stotler, Mrs. Byers, and Mr. Jett are friends and political allies.

    
    

28. On September 30, 1993, a group of citizens, including Mr. Stotler, Mr. Alphonse, and Mrs. Byers, met with Harry Shorestein to discuss the budget issues and to request an audit. Unbeknownst to Mr. Stotler at the time, Mrs. Byers had contacted several television stations and newspapers concerning the meeting, resulting in extensive media coverage of the meeting.

    
    

29. After the September 30 meeting, Mr. Shorestein advised Mr. Stotler that he would refer the matter to either the Governor's office or the Joint Legislative Auditing Committee. Within one or two weeks, Mr. Shorestein did convey the citizen group's concerns to Terry Shoffstall, Staff Director for the Joint Legislative Auditing Committee.

    
    

30. On October 4, 1993, Mr. Keene sent a letter to the Auditor General of the State of Florida explaining the circumstances of the budget shortfall and investigations surrounding it. Further the letter encouraged an audit by the Auditor General's Office, if it found one necessary.

    
    

31. On October 7, 1993, Mr. Keene sent a letter to the Joint Legislative Auditing Committee along with a packet of information concerning the budget issues. He requested that the Auditor General's Office perform an audit of Clay County's financial records and procedures, stating, "[t]he purpose of this audit should not be to lay the blame, but to restore public confidence in Clay County government by a factual statement of financial conditions and procedural review." Shortly thereafter, Mr. Stotler spoke to Mr. Shoffstall, who advised Mr. Stotler that he may wish to consider contacting the Commission on Ethics.

    In a letter dated August 12, 1994, Mr. Shoffstall reiterated his previous comments and stated:

    
    

    Committee staff has reviewed your concerns, along with information contained in the 1993, as well as 1992, audit reports. Some of the concerns you raised address possible violations of the Code of Ethics for Public Officers and Employees, pertaining to the actions of the independent auditors and the Finance Director.

    The Commission on Ethics is statutorily charged with the responsibility of investigating alleged violations of the Code of Ethics, Part III, Chapter 112, Florida Statutes. I suggest that

    you contact the Commission if you would like to obtain information on how to initiate a formal complaint.

    
    

32. On October 5, 1993, Mr. Keene called a press conference during which he again made a presentation explaining the budget measures taken and confirming the soundness of the County's budget and financial condition.

    
    

33. On October 12, 1993, at a public meeting of the Board, Mr. Keene presented the fiscal budget for the prior eleven months and explained how he had corrected the prior overestimates made by the previous Finance Director.

    
    

34. In October of 1993, Mr. Keene discovered that an audit by the Auditor General would cost the County $40,000 to $50,000. At that time Mr. Keene approached the Clay County Legislative Delegation and requested that the Auditor General's audit be delayed until after the results of the County's regular, annual independent audit were made known in March of 1994. The Clay County delegation requested that the audit be delayed.

    
    

35. Mr. Stotler was unaware that Mr. Keene's reason for asking for the delay of the Auditor General's audit was based on the costs of the audit. Mr. Stotler was concerned about the delay and expressed his concern to others. In November, 1993, Mr. Stotler wrote to Representative Joseph Tedder of the Joint Legislative Auditing Committee requesting him to consider the citizen's concern over the need for an audit.

    
    

36. On December 2, 1993, Mr. Stotler wrote a letter to the Department of Business and Professional Regulation (DBPR), requesting an investigation of alleged inappropriate conduct on the part of Donald Moore. As a result a formal investigation was begun. Mr. Stotler also filed a similar complaint with DBPR against Steve Duval, the accountant who was performing the Board's 1991-1992 audit as a result of the assignment of the contract from the Jones-Moore firm. After their investigation, DBPR found no inappropriate conduct by Mr. Moore.

    
    

37. On February 3, 1994, Mr. Stotler and Mrs. Byers met with State Attorney Shorestein who did not commit to doing anything about the issues they raised.

    
    

38. On February 4, 1994, Mr. Stotler filed a Complaint with the Commission on Ethics (Commission) against Mr. Moore as Finance Director for Clay County, asserting independence and conflict of interest issues relating to Mr. Moore's hiring, the transfer of the independent audit responsibilities from the Jones- Moore firm to the Duval firm, and payments to Mr. Moore's former and successor CPA firms.

    
    

39. On February 4, 1993, Mr. Stotler filed an identical Complaint with the Commission against Mr. Keene as Clerk of the Court of Clay County.

    
    

40. Prior to filing the Complaint against Mr. Keene, Mr. Stotler's attorney reviewed the Complaint and advised Mr. Stotler that the Ethics Commission was the appropriate place to take his concerns, that Mr. Stotler's concerns were valid, and that his concerns were not frivolous.

    
    

41. Mr. Stotler had discussed the budget issues and the assigning of the audit contract from the Moore-Jones firm to the Duval firm with Eugene Alphonse, who is a Certified Public Accountant practicing in Clay County. Mr. Alphonse had some concerns about the accounting ethics concerning the hiring of Mr.

    Moore. Unbeknownst to Mr. Stotler at the time of their discussions and prior to his filing the Ethics Complaint against Mr. Keene, Mr. Alphonse had been employed by Mr. Moore and Mr. Duval and had been fired by both men. Mr. Stotler was also unaware that Mr. Alphonse had also filed complaints with the Department of Professional Regulation against Mr. Duval and those complaints had been dismissed.

    
    

42. Prior to the filing of the Complaint against Mr. Keene, Mrs. Byers told Mr. Stotler that she and Mr. Jett had discussed the payments to the Magers, Nichols firm with the Sheriff and that the Sheriff had indicated there could be possible criminal fraud involved.

    
    

43. Prior to filing the Complaint against Mr. Keene, Mr. Stotler did not discuss the issues with Mr. Keene, Mr. Moore, Steve Duval, anyone from the Jones-Moore firm, or anyone from the Magers, Nichols firm.

    
    

44. On February 22, 1994, the Executive Director of the Commission reviewed Mr. Stotler's Complaint against Mr. Keene and concluded that the allegations failed to indicate a possible ethics violation by Mr. Keene. As a result, the Executive Director recommended that the Complaint be dismissed as legally insufficient without investigation.

    
    

45. On March 10, 1994, the Commission adopted the recommendation of the Executive Director and dismissed the Complaint for failure of legal sufficiency.

    
    

46. The Commission also dismissed the Complaint filed by Mr. Stotler against Mr. Moore.

    
    

47. In March, 1994, the independent audit of the 1992-1993 fiscal year was completed by Duval & Company. The audit was an "unqualified report" which meant it was a clean audit with no reportable conditions, comments, or recommendations.

    
    

48. On March 15, 1995, the accounting firm of Purvis & Gray, at the request of Mr. Keene, reviewed and confirmed the findings of Duval & Company's audit of the 1992-1993 fiscal year.

    
    

49. Mr. Keene incurred legal fees and costs totaling $33, 264.21 relating to the Ethics Complaint filed by Mr. Stotler and in the prosecution of the fee petition. As of February 25, 1994, the legal costs relating to the Complaint and this proceeding totalled $3,155.21. The total amount for reasonable fees for legal services is $30,109.00.

    
    

50. Mr. Keene retained the firm of Marks, Gray, Conroy & Gibbs to represent him in this matter. Bill Thompson of that firm spent 45.8 hours representing Mr. Keene and Mr. Barbour spent 179 hours representing Mr. Keene. Law clerks spent 9 hours and paralegals spent 16.2 hours. The amount of time spent by the firm is reasonable.

    
    

51. A reasonable hourly rate for Mr. Thompson is $150, for Mr. Barbour is $130, for law clerks is $60, and for paralegals is $45.

    
    

    CONCLUSIONS OF LAW

    
    

52. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

53. Mr. Keene is seeking attorney's fees and costs pursuant to Section 112.317(8), Florida Statutes, which provides:

    
    

    In any case in which the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of the officer or employee and in which such complaint is found

    to be frivolous and without basis in law or fact, the complainant shall be liable for costs plus reasonable attorney's fees incurred by the

    person complained against. If the complainant fails to pay such costs voluntarily within 30 days following such finding and dismissal of the complaint by the commission, the commission

    shall forward such information to the Department of Legal Affairs, which shall bring a civil action to recover such costs.

    
    

54. The Commission has codified in Rule 34-5.029, Florida Administrative Code, the types of evidence which may be presented to establish "malicious intent to injure the reputation." The rule provides:

    
    

    The respondent has the burden of proving the grounds for an award of costs and attorney's

    fees by a preponderance of the evidence presented at the hearing. 'Malicious intent to injure the reputation' may be proven by evidence showing ill will or hostility as well as by evidence showing that the complainant intended to bring discredit upon the name or character of the respondent by filing such complaint with knowledge that the complaint contained one or more false allegations

    or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the code of Ethics for Public Officers and Employees. Such reckless disregard exists where the complainant entertained serious doubts as to the truth or falsity of the allegation, where the complainant imagined or fabricated the allegations, or where the complainant filed an unverified anonymous tip or where there are obvious reasons

    to doubt the veracity of the information or that of the source of the information.

    
    

55. Mr. Keene has failed to establish that Mr. Stotler filed Ethics Complaint No. 94-09 against Mr. Keene with the malicious intent to injure Mr. Keene's reputation. The evidence, taken as a whole, does not establish that Mr. Stotler had hostility or ill will toward Mr. Keene. The evidence does show that Mr. Stotler was a citizen concerned about the large budget shortfall and about the hiring of Donald Moore and the subsequent transfer of the Board audit contract from Mr. Moore's firm to the Duval firm.

    
    

56. Mr. Stotler did not become actively involved in the budget issue until September, 1993. At the meeting at Mr. Myers home, Mr. Stotler emphasized that he did not want the meeting with the State Attorney to become a media event.

    Unbeknownst to him, Mrs. Byers had contacted the newspapers and television stations and advised them about the meeting. Mr. Stotler did not seek out the media after the meeting with the State Attorney, but rather the media sought out Mr. Stotler.

    
    

57. Mr. Stotler's main thrust regarding the budget issue was to get an audit. In his letter to the Joint Legislative Auditing Committee, he stated that he was not looking for the audit to lay blame on anyone. The citizen group meeting with the State Attorney was to get an audit not to make criminal charges against Mr. Keene.

    
    

58. In his February 4, 1993 memorandum to Mr. Keene, Mr. Moore raised the issue of the perception the public may have concerning the firm in which Mr. Moore had been a partner maintaining the Board audit contract while Mr. Moore was employed as the Finance Director. Obviously Mr. Stotler's perception was that the arrangement could be a conflict of interest for Mr. Moore and that Mr. Keene as Clerk of the Court would have knowledge that the Jones-Moore firm still had the contract with the Board after Mr. Moore was hired. The situation became murkier when Magers, Nichols took over the performance of the Board audit without Board approval and at the same time issued one share of stock to Mr. Moore in the newly formed Magers, Nichols, Moore and Johnston firm and listed Mr. Moore as a partner in the records of the Board of Accountancy. Although Mr. Moore and the Magers, Nichols firm had an understanding that Mr. Moore was not to receive compensation from the Board contract after the Magers, Nichols firm took over, this agreement was not formally set out in writing until around the time that Mr. Stotler requested the DBPR to investigate Mr. Moore. After the audit contract was assigned to the Duval firm, the Magers, Nichols firm continued to receive payments for the contract. It was Mr. Keene's office's responsibility to preaudit the contract payments. Thus, it appeared to Mr. Stotler that some type of conflict could exist based on this scenario.

    
    

59. In Couch v. Commission on Ethics, 617 So.2d 1119, (Fla. 5th DCA 1993), the court upheld an award of attorney's fees and costs against the appellant who had filed an ethics complaint against a county official. The appellant had based his allegations solely on his erroneous interpretation of a newspaper article. The appellant did not confer with anyone about the complaint until after the complaint was filed. He did not check the public records to verify his allegations nor did he contact the reporter who wrote the article to determine if his interpretation of the article was correct.

    
    

60. Mr. Stotler, on the other hand, did consult with someone prior to filing the complaint. Mr. Stotler asked his attorney to review the complaint to determine whether it was appropriate or frivolous. After having been advised that the complaint was appropriate and not frivolous, Mr. Stotler filed the complaint. Prior to filing the complaint, Mr. Alphonse had advised Mr. Stotler that there may be come concerns relating to accounting ethics. Prior to filing the complaint, Mr. Stotler had been advised by the staff director for the Joint Legislative Auditing Committee that he may wish to consider taking his concerns about the finance director to the Commission. Prior to filing the complaint, Mrs. Byers advised Mr. Stotler that the Sheriff had opined that there could be possible criminal fraud in the payments made to the Magers, Nichols firm.

    
    

61. Additionally, unlike the appellant in Couch, Mr. Stotler relied on public records for the majority of the information upon which he based his complaint. Although Mrs. Byers may have gathered the documents rather than Mr. Stotler, it does not change the fact that the documents are public records.

62. Mr. Stotler had no reason to doubt the truth of the allegations. The Complaint was not based on an anonymous tip and Mr. Stotler did not fabricate or imagine the allegations. The Complaint was based on public records; therefore, Mr. Stotler did not have reason to doubt the veracity of the information or the source of the information.

    
    

63. The evidence does not establish that Mr. Stotler had a reckless disregard for whether the Complaint contained false allegations material to a violation of the Code of Ethics for Public Officers and Employees.

    
    

64. In Taunton v. Tapper, 396 So.2d 843, 845 (Fla. 1st DCA 1981), the court discussed what constitutes frivolous in law and fact as those terms are used in Section 112.317(8), Florida Statutes.

    
    

    In determining whether the complaint was frivolous in law or fact, we find the definition of 'frivolous appeal' helpful. Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883

    (Fla. 1935), defined a frivolous appeal as follows:

    
    

    A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is

    so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed. [Citation omitted.] It must be one so clearly untenable , or the insufficiency of which is so manifest on a bare inspection of the record and assignments of error, that its character may be determined without argument or research. An appeal is not frivolous where a substantial justiciable question can be spelled out of it,

    or from any part of it, even though such question is unlikely to be decided other than as the lower court decided it, i.e., against appellant or plaintiff in error.

    
    

65. In Taunton the court emphasized that the Commission made a prelimary investigation of the complaint prior to finding no probable cause to believe that an ethical violation had occurred. Thus, the Commission did not make a finding of legal insufficiency based on a facial examination of the complaint. In the instant case the Commission did make a finding of legal insufficiency based on the four corners of the Complaint without further investigation.

    
    

66. Mr. Stotler did not cite in the Complaint any specific provision of Chapter 112, which he thought that Mr. Keene had violated. As stated in the Commission Executive Director's Recommendation of Legal Insufficiency, which was adopted by the Commission, Section 112.313(6), Florida Statutes, is the only provision which could apply to the allegations in the Complaint. The allegations do not support a finding that Mr. Keene used his position as Clerk of the Court and Comptroller to secure a special benefit for himself or anyone else. The allegations do not support a finding that his actions were undertaken with a wrongful intent for the purpose of obtaining some benefit resulting from actions which are inconsistent with the proper performance of his public duties.

67. Although the Complaint may have no basis in law or fact, the finding that Mr. Stotler had no malicious intent to injure the reputation of Mr. Keene by filing the Complaint prohibits the award of attorney's fees and costs. See Malfregeot v. Mobile Home Park Owners, 388 So.2d 341 (Fla. 4th DCA 1980).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying John Keene's petition for

attorney's fees and costs against Ronald Stotler.

DONE AND ENTERED this 15th day of September, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1907FE

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Keene's Proposed Findings of Fact.

1. Paragraph 1: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary.

2. Paragraph 2: Rejected as unnecessary.

3. Paragraph 3: Accepted in substance.

4. Paragraph 4: The first sentence is accepted. The remainder is rejected as unnecessary.

5. Paragraph 5: The first sentence is accepted in substance. The remainder is rejected as unnecessary.

6. Paragraph 6: The first two sentences are accepted in substance. The remainder is rejected as unnecessary.

7. Paragraph 7: The first sentence is accepted in substance. The remainder is rejected as unnecessary.

8. Paragraph 8: The first sentence is accepted in substance. The remainder is rejected as unnecessary.

9. Paragraph 9: Accepted in substance.

10. Paragraph 10: The first two sentences are accepted in substances. The remainder is rejected as unnecessary.

11. Paragraphs 11-17: Accepted in substance.

12. Paragraph 18: Accepted in substance except as to being

    dissolved. The firm was not legally dissolved.

13. Paragraphs 19-22: Accepted in substance.

14. Paragraph 23: The last sentence is rejected as constituting a conclusion of law. The remainder is accepted in substance.

15. Paragraphs 24-25: Accepted in substance.

16. Paragraph 26: Rejected as constituting argument.

17. Paragraphs 27-41: Accepted in substance.

18. Paragraph 42: Rejected as unnecessary.

19. Paragraphs 43-49: Accepted in substance.

20. Paragraphs 50-52: Rejected as subordinate to the facts found.

21. Paragraph 53: Accepted in substance.

22. Paragraphs 54-55: Rejected as subordinate to the facts found.

23. Paragraph 56: Accepted in substance.

24. Paragraphs 57-62: Rejected as subordinate to the facts found.

25. Paragraphs 63-64: Accepted in substance.

26. Paragraph 65: Accepted in substance except as to the purpose of the meeting. The purpose of the meeting was to discuss the budget issues.

27. Paragraph 66: The last sentence is accepted in substance. The remainder is rejected as not supported by the evidence if it refers to the original packet of information discussed at the meeting at Mr. Myers home.

28. Paragraph 67: The first sentence is accepted in substance. The remainder is rejected as not supported by the evidence. Mr. Stotler testified that he reviewed and considered documents that were presented to him and to which he had access.

29. Paragraph 68: Accepted that that was Mr. Conroy's testimony but rejected as to the truth of the testimony based on the greater weight of the evidence.

30. Paragraph 69: Accepted in substance to the extent that Stotler, Byers, and Alphonse were part of a group that went to the State Attorney's office to discuss the budget issues. Rejected as not supported by the greater weight of the evidence that Stotler led the group. The last sentence is accepted in substance.

1. Paragraph 70: Rejected as constituting argument.

2. Paragraph 71: Accepted in substance.

3. Paragraphs 72: Rejected as subordinate to the facts found.

4. Paragraph 73-76: Accepted in substance.

5. Paragraph 77: Rejected as unnecessary.

6. Paragraph 78: The first two sentences are accepted in substance. The remainder is rejected as not supported by the greater weight of the evidence. Mr. Stotler was unaware of Mr. Alphonse's employments and the filing of the complaints when Mr. Stotler filed the Ethics Complaint.

7. Paragraph 79: Accepted in substance that they met with the State Attorney but rejected that the State Attorney confirmed that an investigation was still under consideration. The State Attorney did not commit to do anything.

8. Paragraph 80: Rejected as subordinate to the facts found.

9. Paragraphs 81-82: Accepted in substance.

10. Paragraphs 83: The first portion of the paragraph is accepted in substance. The remainder is rejected as not supported by the evidence because Mr. Stotler did have his attorney review the compliant before it was filed.

11. Paragraph 84: Rejected. Mr. Stotler consulted his attorney.

12. Paragraph 85: Rejected as subordinate to the facts found.

13. Paragraph 86: Accepted in substance.

14. Paragraph 87: Rejected as subordinate to the facts found.

15. Paragraph 88: The first part of the paragraph is rejected as not supported by the evidence. Mr. Stotler did scan Chapter 119 prior to filing the complaint.

    The remainder is subordinate to the facts found.

16. Paragraphs 90-92: Accepted in substance.

17. Paragraphs 93-94: Rejected as constituting argument.

18. Paragraph 95: Accepted in substance.

19. Paragraph 96: Rejected as constituting argument.

20. Paragraph 97: Rejected that any negative media attention resulted from the efforts of Mr. Jett, Mrs. Byers, Mr. Alphonse or Mr. Stotler. The last sentence is rejected as subordinate to the facts found.

21. Paragraphs 98-99: Rejected as not supported by the greater weight of the evidence.

22. Paragraph 100: Rejected as constituting argument.

23. Paragraph 101: Accepted in substance.

24. Paragraph 102: Accepted in substance that the discussion concerned the checks to the Magers, Nichols firm but rejected that it was an investigation of Mr. Keene.

25. Paragraphs 103-105: Accepted in substance.

26. Paragraph 106: Rejected as constituting argument.

27. Paragraph 107: Rejected as not supported by the greater weight of the evidence.

28. Paragraphs 108-115: Accepted in substance.

Stotler's Proposed Findings of Fact. (Stotler's Findings of Fact are not numbered; however, they are addressed in the order that they appear.)

1. Paragraph 1: Accepted in substance.

2. Paragraph 2: The first sentence is rejected as constituting argument. The remainder is accepted in substance.

3. Paragraph 3: Rejected as unnecessary.

4. Paragraph 4: Rejected as constituting argument.

5. Paragraph 5: The last sentence is rejected to the extent that the Clerk's office calculated all the revenue projections. Some of the information was provided by the State. The remainder is accepted in substance.

6. Paragraph 6: Accepted in substance.

7. Paragraph 7: The last sentence is rejected as unnecessary. The remainder is accepted in substance.

8. Paragraph 8: Sentences 5 and 6 are accepted in substance. The fourth sentence is rejected as constituting argument. The remainder is rejected as unnecessary.

9. Paragraph 9: Sentences 1, 2, 4 are accepted in substance. Sentence 5 is rejected as constituting argument. Sentence

   3 is rejected as unnecessary.

10. Paragraph 10: Rejected as constituting argument.

11. Paragraph 11: Rejected as subordinate to the facts found.

12. Paragraph 12: The first part of the first sentence is accepted in substance. The second part of the first sentence is rejected to the extent that it implies that legally the last day of existence was December 31, 1992. The second sentence is accepted in substance. The third sentence is rejected as not supported by the evidence to the extent that it implies that Mr. Moore received compensation relating to the Board audit for work performed after December 15, 1992.

13. Paragraph 13: Accepted in substance to the extent that in January, 1993, he did receive payment for audit work for the Board performed by the Jones-Moore firm through December 15, 1992 and that he was working part time for Clerk in December, 1992. He did not continue to receive payment for the Board audit work performed after December 15, 1992.

14. Paragraph 14: Accepted in substance.

15. Paragraph 15: Rejected as unnecessary.

16. Paragraph 16: The first sentence is accepted in substance. The second sentence is accepted in substance except as to the last portion which is rejected as unnecessary. The third, fourth, and sixth sentences are accepted in substance. The fifth and

    seventh sentences are rejected as constituting argument.

17. Paragraph 17: The first sentence is accepted in substance. The remainder is rejected as constituting argument.

18. Paragraph 18: The first sentence is subordinate to the facts found. The remainder is rejected as constituting argument.

19. Paragraph 19: The first sentence is rejected to the extent that it implies there was a conflict. The second sentence is rejected as constituting argument.

20. Paragraph 20: The first and fourth sentences are accepted in substance. The quotation is rejected as unnecessary. The third sentence is rejected as constituting argument. The fifth sentence is rejected as constituting argument.

21. Paragraph 21: The first sentence is accepted in substance. The remainder is rejected as constituting argument.

22. Paragraph 22: The first sentence is accepted in substance. The remainder is rejected as constituting argument.

23. Paragraph 23: The fourth sentence is accepted in substance. The remainder is rejected as constituting argument.

24. Paragraph 24: Accepted to the extent that the audit report reflects the last date of the field work; the remainder is rejected as constituting argument.

25. Paragraph 25-28: Rejected as constituting argument.

26. Paragraph 29: The last sentence is accepted in substance. The remainder is rejected as constituting argument.

27. Paragraph 30: The first sentence is rejected as constituting argument. The remainder is accepted in substance.

28. Paragraphs 31-37: Rejected as constituting argument.

29. Paragraphs 38-41: Accepted in substance.

30. Paragraph 42: The first sentence is rejected as constituting argument. The remainder is rejected as unnecessary.

31. Paragraph 43: The last is rejected. Sheriff Lancaster's deposition was not filed. The remainder is accepted in substance.

32. Paragraph 44: Accepted in substance.

33. Paragraph 45: Rejected as constituting argument.

COPIES FURNISHED:

Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709

Tallahassee, Florida 32317-5709

William L. Thompson, Jr. Esquire Jeptha F. Barbour, Esquire

Post Office Box 447 Jacksonville, Florida 32201

Robert L. McLeod, II, Esquire First Union Bank Building

24 Cathedral Place, Suite 500 St. Augustine, Florida 32084

Bonnie Williams Executive Director

Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Phil Claypool, Esquire General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA COMMISSION ON ETHICS

In re JOHN KEENE, Complaint No .94-09

DOAH Case No. 94-1907 FE

Respondent. Final Order No. COE 95-30

/

FINAL ORDER DENYING ATTORNEY'S FEES

On September 15, 1995, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to the Commission and all parties her Recommended Order, a copy of which is attached hereto. On October 5, 1995, Respondent/Petitioner John Keene filed Exceptions to the Recommended Order. On October 26, 1995, Complainant/Respondent Ronald Stotler filed his Response to Petitioner Keene's Exceptions to Recommended Order. The matter thereafter came before the Commission for final agency action.

BACKGROUND

This matter began with Ronald Stotler (Stotler) filing a complaint with the Commission on Ethics alleging that John Keene (Keene) had violated the Code of Ethics for Public Officers and Employees. That complaint was dismissed by the Commission for legal insufficiency on March 10, 1994.

Thereafter, Keene timely petitioned for an award of attorney's fees and costs against Stotler pursuant to Section 112.317(8), Florida Statutes. That petition was referred to the Division of Administrative Hearings and a final hearing was held on March 8, 9, 10, 16, and 17, 1995. The transcript of the hearing was filed with the Hearing Officer on May 30, 1995, and the parties then filed proposed recommended orders. The Hearing Officer's Recommended Order was transmitted to the Commission and the parties on September 15, 1995. The parties were notified of their right to file exceptions to the Recommended Order in accordance with Rule 34-5.023, Florida Administrative Code. Keene's exceptions were timely received on October 5, 1995, and Stotler thereafter submitted a response to Keene's exceptions on October 26, 1995.

STANDARDS FOR REVIEW

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.

RULINGS ON EXCEPTIONS

1. Keene first excepts to the third and fourth sentences of Finding of Fact 31. Initially, Keene notes that the Hearing Officer mistakenly wrote that the October 7, 1993 letter to the Joint Legislative Auditing Committee was sent by Keene when, in fact, it was Stotler who wrote that letter.

   
   

   In this first exception, Keene argues that the Hearing Officer erred in considering an August 12, 1994 letter sent by the director of the Joint Legislative Auditing Committee to Stotler as support for Stotler's contention that his February 4, 1994 ethics complaint was the proper course of conduct. Keene argues that due to the date of the correspondence, Stotler could not have relied on the letter as a basis for formulating his intent in filing the complaint and that it is therefore irrelevant. Keene also argues that the director's alleged statements to Stotler during previous telephone conversations were inadmissible hearsay since the director did not testify, the correspondence did not reference any prior telephone conversations, and no other evidence corroborated the existence of any alleged conversations.

   
   

   In his Response, Stotler agrees with Keene that the Hearing Officer inadvertently attributed Keene, not Stotler, with sending the October 7, 1993 letter to the Joint Legislative Auditing Committee. Stotler responds to the remainder of the exception by arguing that the August 12, 1994 letter from the director was offered to demonstrate and corroborate the existence of prior oral communications between Stotler and the Joint Legislative Auditing Committee, and that the substance of those communications went to prove Stotler's intent and state of mind when filing the ethics complaint in February 1994.

   
   

   To the extent the parties both agree and the record so reflects that Stotler sent the October 7, 1993 letter to the Joint Legislative Auditing Committee, Finding of Fact 31 is modified to make that correction. However, the remainder of Keene's first exception is denied.

   Section 90.801(1)(c), Florida Statutes, defines "hearsay" as a statement, other than one made by the

   declarant while testifying at the trial or

   hearing, offered in evidence to prove the truth of the matter asserted.

   
   

   Section 120.58( 1)(a), Florida Statutes, provides:

   
   

   Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by

   reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. [e.s.]

   
   

   Here, the issue is whether Stotler's testimony of what he was told by staff with the Joint Legislative Auditing Committee was inadmissible hearsay. When evidence of an out-of-court statement is offered to prove the state of mind of a person who heard the statement, the statement is not hearsay because it is not being offered to prove the truth of the statement's contents. Ehrhardt, Florida Evidence, s 801.6 (1994 Edition). Stated another way, where it is relevant whether a person was induced to take some action on the basis of a conversation with another person, evidence of that conversation is relevant nonhearsay. 23 Fla. Jur. 2d, Evidence and Witnesses s 286, citing Hooper v. Barnett Bank of West Florida, 474 So.2d 1253 (Fla. 1st DCA 1985), approved, 498 So.2d 923 (Fla. 1986). Based upon the foregoing, we conclude that the Hearing Officer did not err in considering Stotler's testimony of his telephone conversations with Committee staff. Further, the relevance and weight to be given to Shofstall's August 12, 1994 letter to Stotler was for the Hearing Officer to decide.

   Heifetz, supra. Therefore, to the extent that the August 12, 1994 letter corroborated Stotler's testimony and that of others as to the existence of his prior discussions with Shofstall, it was admissible at hearing. Accordingly, Keene's first exception is denied.

   
   

2. Keene's second exception is directed to the Hearing Officer's "Finding of Fact 39." However, Keene's arguments appear to be directed to Finding of Fact

   29 involving State Attorney Harry Shorestein. Therein, Keene argues that the finding is based upon inadmissible hearsay evidence and that it was never corroborated by other evidence.

   
   

   In his Response, Stotler reiterates his previous argument, that Shorestein's statements were offered to prove Stotler's state of mind and, also, that Stotler's testimony concerning Shorstein's statements were corroborated by other evidence.

   
   

   Keene's second exception is denied. As previously discussed in our treatment of Keene's exception to Finding of Fact 31, where such evidence is offered to prove the declarant's state of mind, it is not hearsay. Further, as pointed out by Stotler, his testimony about Shorestein's statements was subsequently corroborated by Shorestein's affidavit (Respondent's Exhibit 12). We find no error in the Hearing Officer's Finding of Fact 29, as it is based upon competent substantial evidence. Therefore, Keene's second exception is denied.

   
   

3. In his third exception, Keene excepts to Finding of Fact 40, arguing that it relies upon improperly admitted hearsay evidence. Finding of Fact 40 addresses Stotler's consultation with his attorney prior to filing his complaint, and Keene argues that since Stotler's lawyer did not testify at

   hearing, no other evidence exists to corroborate Stotler's testimony about what his attorney advised him.

   
   

   In response, Stotler reiterates his previous two responses, i.e., that the testimony was not offered to prove the truth of the matter asserted but, instead, went to establish Stotler' s state of mind at the time of filing his complaint. Additionally, Stotler contends that Keene was permitted to depose Stotler's attorney but chose not to offer the deposition into evidence and that legal arguments made to the Hearing Officer by the parties were neither transcribed nor made a part of the record before us.

   
   

   Keene's third exception is denied for the reasons previously stated in our denial of the first and second exceptions. Evidence offered to prove a declarant's state of mind does not constitute inadmissible hearsay. Because there is competent substantial evidence supporting Finding of Fact 40, Keene's third exception is denied.

   
   

4. In his fourth exception, Keene excepts to the second sentence contained in Finding of Fact 41, arguing that there is no competent substantial evidence to support the statement: "Mr. Alphonse had some concerns about the accounting ethics concerning the hiring of Mr. Moore." Keene argues that Stotler and Alphonse only discussed DBPR conflict of interest issues and that there were never discussions involving the ethics complaint filed under Chapter 112, Part III, Florida Statutes.

   
   

   Stotler filed no response to this exception.

   
   

   Keene's fourth exception is denied. Based upon our review of the record it is clear that Mr. Alphonse's advice, if you will, to Stotler concerned standards of conduct governing certified public accountants. The Hearing Officer's Finding of Fact 41 correctly perceived that Mr. Alphonse's involvement related to accounting ethics and not the Code of Ethics for Public Officers and Employees contained in Chapter 112, Part III, Florida Statutes. Therefore, we reject Keene's fourth exception.

   
   

5. Keene's fifth exception is directed to Finding of Fact 42, which he argues is based upon inadmissible hearsay evidence. This Finding of Fact addresses comments Mrs. Byers made to Stotler about her and Mr. Jett's discussion with Sheriff Lancaster concerning payments to the Magers, Nichols accounting firm.

   
   

   Stotler's response to Keene's exception suggests that the Sheriff's deposition was taken and, Stotler's counsel assumed, had been filed with the Hearing Officer. He suggests that the deposition now be filed for the record since the parties stipulated to its admission.

   
   

   Respondent's fifth exception is denied, and the suggestion that the Sheriff Lancaster's deposition now be filed is rejected. Based upon our review of the record, we believe that the Hearing Officer properly admitted Stotler's testimony in this regard. We reject Keene's contention that the statements were inadmissible hearsay, as it appears to us that the statements were offered to prove Stotler's state of mind and whether he had a malicious intent when he filed his complaint against Keene. Because there is competent substantial evidence to support the Hearing Officer's Finding of Fact 42, Keene's fifth exception is denied.

6. Although it is not clear, it appears that in his sixth exception Keene is excepting to the Hearing Officer's treatment of his proposed findings of fact, paragraphs 2, 4-8, 50-52, 57-62, 72, 85, and 87. These proposed findings, Keene argues, are highly material to inferring Stotler's true intent.

   
   

   Stotler filed no response to this exception.

   
   

   Keene's sixth exception is denied. Section 120.59(2), Florida Statutes, requires of the Hearing Officer "a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request." See also Island Harbor Beach Club Ltd. v. Department of Natural Resources, 476 So.2d 1350 (Fla. 1st DCA 1985), appeal after remand, 495 So.2d 209, review denied, 503 So.2d 327. The Appendix to the Recommended Order reveals that the Hearing Officer ruled on the referenced proposed findings, as she is required by law to do. Moreover, it is evident from our review of the proposed findings Keene submitted to the Hearing Officer that Keene is essentially inviting us to re- weigh the evidence and come to a different conclusion than that reached by the Hearing Officer. We are neither permitted by law, nor inclined, to accept that invitation. Heifetz, supra. Therefore, Keene's sixth exception is denied.

   
   

7. Keene's seventh through thirteenth exceptions are directed to the Hearing Officer's Conclusions of Law. Although under Section 120.57(1)(b)10, Florida Statutes, the Commission is free to reject or modify a hearing officer's conclusions of law and interpretations of administrative rules contained in a recommended order, in this case, the majority of the Hearing Officer's Conclusions of Law address Stotler's intent in filing the complaint against Keene. Proof of intent is a predominantly factual issue. Moreover, where, as here, we have accepted the Hearing Officer's findings of fact because they are based upon competent substantial evidence, we are bound to also accept the Hearing Officer's Conclusions of Law so predicated upon those factual findings.

   
   

   Stotler collectively responds to Keene's Conclusion of Law exceptions, characterizing them as a rehashing of the arguments made by Keene in his proposed recommended order and going principally to the issue of malicious intent.

   
   

   Specifically, in his seventh exception Keene assails Conclusion of Law 55, where the Hearing Officer concluded that Keene had failed to establish that Stotler filed the complaint against Keene with a malicious intent to injure Keene's reputation. Keene argues in his exception that Couch v. Commission on Ethics, 617 So.2d 1119 (Fla. 5th DCA 1993), imposes a higher standard of conduct on public officials when filing complaints against other public officers than that imposed on private citizens, and that their actions should be more closely scrutinized. With that stated, Keene then argues that applying this stricter standard to Stotler leads to the conclusion that the complaint was filed with a malicious intent.

   
   

   Keene's seventh exception is denied. We find no error in the Hearing Officer's conclusion, i.e., that Stotler did not act with a malicious intent to injure Keene's reputation when he filed the complaint. This conclusion is an ultimate finding of fact and is supported by competent substantial evidence in the record. Nor do we agree with Keene that Couch imposes a higher standard of scrutiny on the actions of public (or former public) officials. Accordingly, Keene's seventh exception is denied.

   
   

8. Keene's eighth exception is directed to the third and fourth sentences of Conclusion of Law 56. There, the Hearing Officer concluded that Mrs. Byers

   had contacted the media about the impending meeting with the State Attorney and that Stotler did not seek out the media after that meeting.

   
   

   We find no error in the excepted-to sentences of Conclusion of Law 56.

   They are essentially findings of fact that go to the ultimate issue of malicious intent. Further, there is competent, substantial record evidence supporting the findings. Accordingly, Keene's eighth exception is denied.

   
   

9. Next, Keene excepts to Conclusion of Law 57, where the Hearing Officer concluded that the main thrust of Stotler's efforts was to obtain an audit. Keene argues that the conclusion is irrelevant and inconsistent with Stotler's testimony.

   
   

   We deny Keene's ninth exception. Based upon our review of the record we find no error in the Hearing Officer's conclusion. The findings of fact underlying this conclusion are based upon competent substantial evidence and we therefore decline to reweigh the evidence and reach a different conclusion than that reached by the Hearing Officer.

   
   

10. In excepting to Conclusion of Law 58, Keene argues that the Hearing Officer failed to distinguish facts which supported Stotler's concerns about Moore from those which supported concerns about Keene.

    
    

    We deny Keene's tenth exception. We have reviewed the record and find no error in the Hearing Officer's conclusion. The factual findings upon which this conclusion is predicated are based upon competent substantial evidence.

    Therefore, Keene's tenth exception is denied.

    
    

11. Keene excepts to Conclusions of Law 60 and 63, arguing that the findings supporting these conclusions were based upon improperly admitted hearsay evidence. Further, Keene argues that the Hearing Officer erred by concluding that Stotler's investigation of Moore's conduct justified his complaint against Keene.

    
    

    We have previously ruled on Keene's exceptions to the Findings of Fact upon which this Conclusion of Law is based. Because we view the Hearing Officer's evidentiary rulings as proper, and because the findings themselves are based upon competent substantial evidence discerned from our review of the record, we deny Keene's eleventh exception.

    
    

12. In his twelfth exception, Keene excepts to Conclusions of Law 61 and

    62 on the stated ground that the Conclusions fail to distinguish between the contents of the public records and the actual allegations made by Stotler.

    
    

    We find no error in the Hearing Officer's Conclusions of Law 61 and 62. In our view, the Hearing Officer was merely distinguishing the facts in Couch from those presented here. Inasmuch as the factual findings contained in the Conclusions are based upon competent substantial evidence, Keene's twelfth exception is denied.

    
    

13. In his thirteenth and final exception, Keene excepts to Conclusion of Law 67 where the Hearing Officer concluded that Stotler lacked a malicious intent. Keene argues that although Stotler did not admit to having a malicious intent, such an intent can be inferred.

We deny Keene's thirteenth exception. Heifetz, supra, reminds us that:

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 Hearing Officer ably carried out this function. Thus, we reject Keene's request to abandon this principal and engage in a re-weighing of the evidence to reach a contrary conclusion. Accordingly, Keene's thirteenth exception is denied.

FINDINGS OF FACT

The Findings of Fact set forth in the Recommended Order, as modified by the correction to Finding of Fact 31 to indicate that Stotler, not Keene, sent the subject letter, 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 petition for attorney's fees and costs filed by Respondent/Petitioner John Keene against Complainant/Respondent Ronald Stotler is hereby DENIED.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, November 30, 1995.

December 5, 1995 Date

William J. Rish Chairman

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. Jeptha F. Barbour, Attorney for Respondent/Petitioner

Mr. Robert L. McLeod, II, Attorney for Complainant/Respondent

Division of Administrative Hearings

Docket for Case No: 94-001907FE

Orders for Case No: 94-001907FE