The Issue Whether Petitioner is entitled to recover attorney's fees and costs against Respondent and, if so, in what amount.
Findings Of Fact At all times relevant to this proceeding, Petitioner, Ron D. Baker (Petitioner), was the personnel director for Indian River County (County or Indian River County). Petitioner was hired to this position by Respondent, James E. Chandler (Respondent), the administrator for Indian River County, on March 18, 1996. As personnel director for Indian River County, Petitioner is a public employee and, thus, subject to the Code of Ethics. Prior to Petitioner's being hired as personnel director for Indian River County, he had served as personnel director for the City of Melbourne from 1989 to 1996. On May 15, 1997, Respondent was contacted by a reporter of the Vero Beach Press Journal and asked to comment on allegations of impropriety that had surfaced with respect to Petitioner. The allegations were that improper procedures had been followed in the County's awarding a contract to Brevard Drug Screening; that Petitioner had requested that the owner of Brevard Drug Screening, Jon Peterson, hire Petitioner's son; and that Petitioner had directed a subordinate to call the City of Melbourne to obtain personal information about the director of aviation of the Melbourne International Airport. With one exception, Respondent was unfamiliar with the allegations. The one allegation raised by the newspaper reporter that had previously been brought to Respondent's attention involved Petitioner's utilizing the services of his subordinate, Colleen Peterson, to make inquiries to the City of Melbourne for personal information about the aviation director for the Melbourne International Airport. The day after the news reporter met with Respondent, in the May 16, 1997, edition of the Press Journal, Indian River County's local newspaper, an article was published that made allegations of impropriety against Petitioner. The allegations included in the newspaper article were the same ones the newspaper reporter discussed with Respondent the preceding day. Because the allegations appeared to relate to Petitioner's employment with Indian River County, after Respondent received information regarding alleged improprieties by Petitioner from the newspaper reporter, he immediately conferred with Assistant County Attorney Terry O'Brien. Later that same day, because of the seriousness of the allegations, O'Brien set up a meeting for Respondent with Indian River County Assistant State Attorney Lynn Park, to review the information that had been provided. Thereafter, Respondent met with both Assistant State Attorney Park and Assistant County Attorney O'Brien concerning the allegations raised by the newspaper reporter. After Respondent conferred with Assistant County Attorney O'Brien and Assistant State Attorney Park, a recommendation was made that the allegations against Petitioner be investigated by the Indian River County Sheriff's Office because of potential criminal violations. On May 22, 1997, Detective Lewis Beckerdite of the Indian River County Sheriff's Office was assigned to investigate the allegations involving Petitioner. Prior to commencing the investigation, Detective Beckerdite requested that Respondent Chandler prepare a memorandum summarizing the information and allegations relative to the matter. In response to Detective Beckerdite's request, Respondent prepared a memorandum detailing the information and allegations that had been presented to him regarding Petitioner and other parties. The memorandum stated that on May 15, 1997, a newspaper reporter raised three issues of alleged impropriety by Petitioner. First, the memorandum noted that the reporter advised Respondent that according to Jon Peterson, Petitioner had requested that Peterson hire Petitioner's son. This was possibly significant because Peterson was owner of Brevard Drug Screening Services, Inc., a firm that had a contract with Indian River County. A second issue raised by the newspaper reporter and addressed in the memorandum was whether proper purchasing procedures were followed in issuance of the Brevard Drug Screening contract. Third, Respondent's memorandum noted that the reporter had made an inquiry concerning Petitioner's directing Colleen Peterson, the County's personnel assistant and his subordinate, to call the City of Melbourne's personnel office to obtain personal information about the director of aviation at the Melbourne International Airport for potential litigation involving Petitioner's wife. With regard to the issuance of the contract to Brevard Drug Screening, Respondent's May 22, 1997, memorandum indicated that he had previously looked into the matter and determined that there was no violation of County policies. Further, the memorandum noted that Respondent had spoken to Petitioner about the call made to the City of Melbourne seeking personal information about the aviation director. According to the memorandum, during that discussion, Petitioner had agreed that it was improper to use County personnel for personal matters and had said it would not happen again. In addition to information described in paragraph 10 above, Respondent's memorandum indicated that on May 16, 1997, he received a call from a County employee who said that he had heard that Jon Peterson had either sold Human Resource Health Care Group or his client list to Mackie Branham of O'Neil, Lee, and Wood, the County's health insurance firm, and that Petitioner was allegedly involved and may have received some monetary gain. The County employee also told Respondent he had heard that Petitioner had made a trip to North Carolina and stayed at a cabin or condominium either paid for or owned by Markie Branham. After receiving Respondent's May 22, 1997, memorandum, Detective Beckerdite commenced an investigation which included his interviewing and taking sworn statements from various persons, including Petitioner, Colleen Peterson, and her husband, Jon Peterson. In addition to giving sworn statements, the Petersons provided Detective Beckerdite with documents to support the allegations that they made against Petitioner. Detective Beckerdite also interviewed James "Jaime" Carraway and County employees, Beth Jordan, Tobi Erts, and Joe Baird. Detective Beckerdite presented his preliminary investigative report, including the documents obtained during the course of the investigation, to the Indian River County State Attorney's Office. The report was reviewed by State Attorney Bruce Colton and Assistant State Attorney Park, who determined that there was insufficient evidence to charge Petitioner with any criminal violation. In light of this determination, Detective Beckerdite concluded his investigation and finalized the investigative report, which included attached documents. The Beckerdite report recommended that Indian River County conduct either an internal investigation of the allegations involving Petitioner or refer the matter to the Ethics Commission. After consulting with legal counsel for the County, Respondent determined that the matter should be referred to the Ethics Commission. The primary reason for this decision was that the Ethics Commission, unlike Indian River County, had the power to subpoena witnesses and documents. Respondent believed that by having subpoena power, the Ethics Commission could address the contradictory and conflicting testimony and statements of individuals by compelling the testimony of witnesses and the production of documents that might support or refute the allegations. Respondent prepared a formal ethics complaint on the form required by and obtained from the Ethics Commission. A narrative was prepared by Respondent and a specification of charges, based upon the Code of Ethics, was prepared by Deputy County Attorney Will Collins. These two parts were combined into one document titled, "Narrative Addendum to Sworn Statement." The narrative portion prepared by Respondent detailed the events that resulted in the decision to file the complaint with the Ethics Commission and expressly stated the basis upon which the allegations against Petitioner were made. In the "Narrative Addendum to Sworn Statement," Respondent stated: On May 15, 1997, I received information regarding allegations concerning Personnel Director Ron D. Baker. The information is reflected in the attached investigative report generated by Indian River County Sheriff's Department. * * * The report summarizes the statements taken by the Sheriff's Department. I believe the report is self-explanatory. In essence there are strong allegations with respect to Mr. Baker and various individuals or firms doing business with Indian River County. As reflected in the report Mr. Baker denies the allegations. The report draws no conclusions other than it is being transmitted to me to determine whether to handle this matter internally or to contact the Florida Commission on Ethics. After a thorough review of the report, it is my opinion and our attorney's office that the allegations are very serious and, if true, would be a violation of [the Code of Ethics]. * * * As a result, as County Administrator, I am requesting an investigation by the State of Florida Commission on Ethics. The Complaint consisted of the complaint form, the "Narrative Addendum to Sworn Statement," a copy of the Beckerdite report and attachments thereto, and a copy of a May 16, 1997, article from the Press Journal. The Complaint form and these attachments were filed with the Ethics Commission on June 30, 1997. Respondent did not publicize the filing of the Ethics Complaint or desseminate it to anyone other than County employees involved in its preparation and to County commissioners. Since no criminal prosecution was to ensue and the Sheriff's Department's investigation was complete, the Beckerdite report became a public record. In light thereof, a copy of the Beckerdite report was provided to Petitioner and to a newspaper reporter. Although the newspaper reporter was provided with a copy of the Beckerdite report, Respondent did not discuss the Beckerdite report with any reporter. After Petitioner received a copy of the Beckerdite report, he requested and was granted an administrative leave of absence with pay. Several weeks after filing the Complaint, Respondent contacted the Ethics Commission Office and asked about the status of resolution of the Complaint. Respondent was advised that it would be a matter of months before a determination would be made as to whether an investigation would proceed. Because Petitioner's administrative leave with pay was scheduled to end in August 1997, Respondent believed immediate action needed to be taken to resolve the issues before that time. To accomplish this, Respondent enlisted the assistance of Robert Von Buelow, a fire investigator employed by the County, to pursue further investigation of the allegations and charges against Petitioner. Investigator Von Buelow immediately commenced his investigation by conferring with Detective Beckerdite and reviewing the Beckerdite report. As a part of his investigation, Investigator Von Buelow took sworn statements and/or interviewed several individuals and reviewed documents. Investigator Von Buelow took sworn statements from both Colleen Peterson and her husband, Jon Peterson. The Petersons also provided Investigator Von Buelow with numerous documents which appeared to substantiate their claims or allegations. However, Von Buelow's investigation was limited because of his inability to compel statements of individuals who did not want to provide statements or produce documents. On or about August 1, 1997, the results of Investigator Von Buelow's investigation were presented to Respondent for review. Based upon the investigations of Investigator Von Buelow and Detective Beckerdite and the evidence collected, Petitioner was notified of Respondent's intent to terminate his employment with the County. Petitioner was also provided with all information collected as of that date. After receiving the notice regarding the County's intent to terminate his employment, Petitioner requested a pre- determination hearing. On August 13, 1997, a nine-hour pre- determination was held during which sworn testimony and documentation pertinent to the allegations were presented. This included the sworn testimony of Petitioner, Investigator Von Buelow, Detective Beckerdite, Jon Peterson, Colleen Peterson, Lea Keller, Zander Carraway, and Ron Baker, Jr. Also, a number of evidentiary documents were received into evidence at the proceeding. On August 15, 1997, Respondent determined to terminate the employment of Petitioner based upon the evidence, the documents and sworn testimony, received and reviewed at the pre- termination hearing. However, in his decision on termination, Respondent found that there was insufficient evidence to sustain several of the charges against Petitioner and thus, those charges were not the basis of Petitioner's being terminated. After the decision to terminate Petitioner was rendered, pursuant to County personnel procedures, Petitioner requested a post-termination hearing. The post-termination hearing was held on October 16, 1997, before an appointed hearing officer. At this hearing, sworn testimony was taken from Petitioner, Mackie Branham, James Carraway, Douglas Wright, Elizabeth Jordan, Deborah Archer, Colleen Peterson, and Jon Peterson. The deposition testimony of Dr. Leo Bradman was submitted and a number of exhibits were introduced and received into evidence, including documentary evidence that had been obtained between the pre-termination hearing and post-termination hearing. On November 17, 1997, the hearing officer who presided at the post-termination hearing issued his opinion in which he found that there was insufficient evidence to terminate Petitioner. The Indian River County Commission appealed this decision to the Circuit Court of Indian River County. In November 1997, after the post-termination hearing, Thomas Reaves, the investigator with the Ethics Commission assigned to investigate the Complaint, requested that Respondent provide him with a list of potential witnesses and any documentation relevant to the Complaint. In response to this request, on December 22, 1997, County representatives delivered to Investigator Reaves all the information generated since the Complaint was filed in June 1997. This information included the Von Buelow investigative report and attached documents, transcripts of the pre-determination and the post-termination hearings, depositions, and documentary evidence presented at those hearings or other legal proceedings. Additionally, copies of the hearing officers' decisions in both the pre-determination hearing and the post-determination hearing were provided to Investigator Reaves. Some of the information provided to Investigator Reaves on December 22, 1997, contained information that had not been developed or known at the time the initial complaint was filed. Accordingly, that information was not included in the initial Complaint. After the records had been delivered to Tallahassee, Florida, Respondent spoke to Investigator Reaves by telephone and was advised that allegations or information not included in the original complaint could not be investigated unless an amended complaint was filed. Respondent informed one of the assistant County attorneys of his conversation with Investigator Reaves and discussed the apparent necessity of filing an amendment to the Complaint. Following his discussion with one of the County's assistant attorneys, Respondent prepared an amendment to the Complaint. The Amended Complaint, filed on January 28, 1998, included additional allegations and information based on Investigator Von Buelow's report, depositions, and transcripts of the pre-termination and post-termination hearings. The Amended Complaint included a completed Ethics Commission complaint form and a letter to Investigator Reaves, both which were prepared and signed by Respondent. The letter listed several additional allegations not included in the Complaint that represented potential violations of the Ethics Code. Each of the allegations was based on the testimony or statements of individuals given during the pre-determination or post-determination hearings, depositions, or Investigator Von Buelow's investigation and on documents received during the aforementioned proceedings or investigation. Prior to listing the allegations and the basis thereof, the letter stated: By letter dated November 7, 1997, you advised that the complaint had been forwarded to the Investigative Section. Additionally, a list of potential witnesses and any relevant documentation was requested. Since the original June 30, 1997, transmittal to the Commission, a substantial amount of information and documentation has been developed. This information was presented to you by County Representatives at the December 22, 1997, meeting at your office in Tallahassee. The entire file was presented including additional investigative reports, transcripts, depositions, etc. The files include information that was not known or confirmed at the time the original complaint was filed. This information and documentation appear to represent potential violation of F.S. 112.313(2), (4), (6), (7), and (8). . . . The Ethics Commission determined that the Complaint and Amended Complaint were legally sufficient. On September 29, 1997, Bonnie Williams, Executive Director of the Ethics Commission, entered a Determination of Investigative Jurisdiction and Order to Investigate which authorized Investigator Reaves to investigate allegations in the Complaint. Thereafter, on February 9, 1998, an Amended Determination of Investigative Jurisdiction and Order to Investigate was entered authorizing Investigator Reaves to investigate the allegations in the Amended Complaint. In conducting the investigation, Investigator Reaves took sworn statements from witnesses who had not been questioned during the pre-determination and post-termination proceedings, including Catherine Wendt and Christopher Matteson. He also reviewed and considered the investigative reports of Detective Beckerdite and Investigator Von Buelow; the pertinent transcribed testimony and evidence presented in the nine-hour pre- determination hearing conducted on August 13, 1997; the testimony presented in the ten-hour post-termination hearing on October 16, 1997; the sworn deposition testimony given by Petitioner in a civil action between Jon Peterson and James Carraway; and a sworn statement that Investigator Reaves obtained from Petitioner. Investigator Reaves' findings were summarized in a single-spaced typed, 60-page Report of Investigation which included numerous attached exhibits. At its June 3, 1999, meeting, the Ethics Commission concluded that there was no probable cause found that Petitioner had violated the Code of Ethics. The Ethics Commission's public report memorializing its decision was rendered on June 8, 1999. In this proceeding, the presentation of Petitioner's case centered mainly on the assertion that the alleged violations of the Ethics Code were not proven. However, the standard for this proceeding is not whether a violation of the Ethics Code has been proven. That issue has already been determined by the Ethics Commission in its dismissal of the Complaint and Amended Complaint. Rather, the issue is whether Respondent filed the Complaint and Amended Complaint with a malicious intent to injure the reputation of Petitioner by filing the Complaint and Amended Complaint with knowledge that they contained one or more false allegations, or with reckless disregard for whether they contained false allegations of fact material to a violation of the Ethics Code. Respondent did not file the Complaint or Amended Complaint to injure the reputation of Petitioner, but to carry out the responsibilities of the job as appointed County administrator. As County administrator, Respondent could not reasonably nor justifiably ignore the serious allegations of impropriety made against Petitioner merely because Petitioner denied or disputed the allegations. As described below, the allegations included in the Complaint and Amended Complaint were based upon sworn testimony, interviews, and documents obtained during investigations by trained investigators and confirmed by documentary evidence and sworn testimony presented at official proceedings. One of the allegations in the Complaint was that James Carraway, who had an ownership interest in a company providing contractual services to the County, provided Petitioner's daughter with an airline ticket to travel from Colorado to Florida. Although Baker initially denied that this occurred, in a sworn statement to Detective Beckerdite, Jon Peterson swore that this occurred. During Investigator Reaves' investigation and in this proceeding, Catherine Wendt, secretary to James Carraway, stated under oath that she arranged such a trip in the spring of 1996 using Carraway's frequent flyer miles. This fact was significant because Petitioner admitted that at or near this time, he had contacted Jon Peterson and requested that he submit a bid for the Indian River County drug screening contract and that Peterson, who was a partner with James Carraway in Brevard Drug Screening, was awarded the contract. Thus, the allegation that Peterson made and included in the Complaint, was not false, but was corroborated by Wendt. A second allegation in the Complaint was that Petitioner used a cabin, chalet, or condominium in North Carolina owned by James Carraway. In a sworn statement to Beckerdite and at the pre-determination hearing, Jon Peterson testified that arrangements had been made for Petitioner to use the Carraway cabin or chalet in North Carolina. Although, Petitioner denied that this occurred, Investigator Reaves determined that Carraway owned a cabin, chalet, or condominium in North Carolina that was available for use by friends and associates and that a request was made for Petitioner to use it. Thus, there was evidence to support this allegation. The Complaint also alleged that Petitioner received stock car race tickets from James Carraway. Jon Peterson gave sworn statements to Detective Beckerdite and testified under oath that he had received stock car race tickets from James Carraway and had given the tickets to Petitioner. James Carraway admitted to Investigator Reaves that he had given stock car race tickets to Peterson and that such tickets may have been given to Petitioner. Thus, there was evidence to support this allegation. The Complaint contained an allegation related to the hiring of Petitioner's son, Ron Baker, Jr., by James and Zander Carraway and Jon Peterson. This allegation was based on sworn statements made by Colleen and Jon Peterson and supporting documentation provided by the Petersons, both of which were included in the Beckerdite report. According to the sworn statements given by the Petersons, Petitioner asked Jon Peterson to hire Baker, Jr. and Peterson had agreed to do so. Furthermore, Jon and Colleen Peterson told Beckerdite that they hired Baker, Jr., to work for Brevard Drug Screening. However, the Petersons admitted that in lieu of paying Baker, Jr., a salary for his services, they paid the rent on his apartment, his utility bills and phone bill, and provided him with spending change. The Petersons provided cancelled checks to substantiate these statements. Petitioner's statement to Detective Beckerdite conflicted with the statements given by the Petersons. Contrary to the Petersons' statements, Petitioner denied that he ever asked Peterson to hire Baker, Jr., but indicated that he had asked James Carraway to "help" his son so he could "get on his feet." Notwithstanding Petitioner's denying that he asked Jon Peterson to hire his son, the statements of the Petersons, and the documents they furnished provided some evidence to support the allegation concerning the hiring of Petitioner's son. Another allegation in the Complaint related to Petitioner's potential involvement in a joint venture with James Carraway, owner of a County vendor, and his son, Zander Carraway, and Dr. Leo Bradman. Based on Jon Petersons's statements to Detective Beckerdite and documents Jon Peterson gave to Investigator Beckerdite, it appeared that the joint venture between the aforementioned parties contemplated and would result in their taking over the County's Employee Assistance Program (EAP) contract. The allegation involving the possible joint venture was based on the Beckerdite report, which included Peterson's sworn statement relative to that matter and the substantiating documentation provided by Peterson. Moreover, as noted in the Amended Complaint, the allegation concerning the possible joint venture appeared to be confirmed by the testimony of Dr. Leo Bradman taken on October 13, 1997, and a letter from Zander Carraway to Dr. Bradman. There was evidence to support this allegation at the time the Complaint was filed, as well as additional evidence that appeared to substantiate the allegation at the time the Amended Complaint was filed. The Amended Complaint alleged that, in a deposition taken in a civil action on September 5, 1997, Petitioner admitted that while serving as Personnel Director for Indian River County, he negotiated for the purchase of the EAP business from James Carraway. At the time of these negotiations, Petitioner knew that James Carraway and Jon Peterson were owners of Human Resource Health Care Group, the County's EAP provider, and Brevard Drug Screening, the County's drug screening contractor. Although Petitioner initially claimed to have been a mediator in the negotiations, Peterson testified that if Carraway agreed to sell his interest in the business to Peterson, Peterson and Petitioner would be partners in the EAP. In light of Petitioner's admission and Peterson's sworn statement that Petitioner was, in fact, negotiating a deal involving the purchase of the vendor providing the EAP to Indian River County, there was evidence to support this allegation. The Amended Complaint also alleged that Petitioner co- signed on a credit card application with Colleen Peterson, Petitioner's subordinate and the County's personnel administrator and wife of Jon Peterson, owner of Brevard Drug Screening, a Indian River County vendor. This allegation was based on sworn statements made by Colleen Peterson as well as documents provided by the Petersons to Investigator Von Buelow reflecting that such an application was completed. One of the documents provided by the Petersons was a copy of the completed credit card application. The application appeared to be signed by Petitioner and listed Petitioner's address as the business address of Florida Occupational Health Group in Melbourne, Florida, the entity owned by the Petersons that was vying for the Indian River County EAP contract. According to sworn statements made by the Petersons to Investigator Von Buelow, the application for the credit card was made to fund a joint venture between Petitioner and the Petersons to obtain employee assistance provider contracts, including the one for Indian River County. Notwithstanding Petitioner's testimony at this proceeding that the credit card was never issued, the statements of the Petersons and the substantiating documents they provided to Investigator Von Buelow provided a reasonable basis for Respondent's including this allegation in the Amended Complaint. The Amended Complaint alleged that Petitioner hired Colleen Peterson as personnel assistant and advised her not to disclose that she was married to Jon Peterson, a County vendor. Furthermore, it was alleged that prior to hiring Colleen Peterson to this position, Petitioner directed her to change her resume knowing that she had insufficient experience to meet the advertised job requirements and hired her without interviewing other applicants who had substantial education, qualifications, and experience. These allegations were based on statements made by Colleen Peterson and documents provided to Investigator Von Buelow during his investigation. According to Mrs. Peterson, after Petitioner became personnel director for Indian River County, he invited her to apply for the position of personnel administrator for Indian River County. In her statement, Colleen Peterson indicated that she later met with Petitioner and asked him to review her cover letter and resume; that he reviewed her resume and cover letter; and upon such review, he directed her to change her resume and/or cover letter to be misleading as to her qualifications. Petitioner was aware of Mrs. Peterson's professional experience because she had worked for Petitioner when he was personnel director for the City of Melbourne. In addition to Mrs. Peterson's statements, a review of Mrs. Peterson's resume compared to her actual experience indicated she may not have met the advertised job requirements, education, or experience as a grievance adjudicator. Also, a review of the applications of other applicants for the position of personnel assistant reflected that some of those individuals, none of whom were interviewed, had the required education and experience. Based on the findings in paragraphs 48 and 49, there was evidence to support the allegation relative to Petitioner's hiring of Colleen Peterson. The Amended Complaint further alleged that Petitioner directed an Indian River County employee with a substance abuse problem to Heritage Hospital for an in-patient treatment program at a cost of $12,930.61. This allegation was based on statements Jon Peterson made to Investigator Von Buelow. According to Jon Peterson, when a County employee required an in-patient treatment program for substance abuse, the employee was given three facilities from which to select. However, in this instance, Peterson stated that his job was to convince the employee to go to Heritage Hospital, even though that facility was not pre- certified by Blue Cross/Blue Shield, the County's insurance company; was not on the County's preferred provider list; and was approximately 200 miles from Vero Beach. A facility not on the preferred provider list was allowed to charge 20 percent more than a facility on the list. At the time the County employee was referred to Heritage Hospital, James Carraway was owner of and had a financial interest in Heritage Hospital and Petitioner was aware of Mr. Carraway's ownership interest in that facility. The apparent significance of the referral was that, as noted above, it had been alleged that Petitioner had been negotiating with James Carraway about a possible joint venture involving an EAP and the purchase of an EAP which may have served Indian River County. The allegation in the Amended Complaint relative to Petitioner's referring a County employer to Heritage Hospital was based on statements Jon Peterson made to Investigator Von Buelow and the deposition testimony of Dr. Leo Bradman. Accordingly, there was evidence to support this allegation. Additional allegations in the Amended Complaint concerned Petitioner's requesting that Peterson and the Carraways, both County vendors, make certain payments to Petitioner or Petitioner's relatives. First, it was alleged that Petitioner was paid to perform certain construction work on a bathroom at the Brevard Drug Screening Office. Second, it was alleged that Peterson's company, Brevard Drug Screening, paid medical expenses for Petitioner's wife. These allegations were based on statements Jon Peterson made to Investigator Von Buelow and on substantiating documents that Peterson provided, both of which were included in Investigator Von Buelow's investigative report. Although it was later determined that the alleged payments were not improperly made, at the time the Amended Complaint was prepared and filed, there was evidence to support these allegations. The Amended Complaint alleged that the Carraways, County vendors, had advanced Petitioner's son, Baker, Jr., $2,000 to move from Jacksonville to Melbourne. This allegation was based on statements made by Jon Peterson during the Von Buelow investigation and during the August 1997 pre-determination hearing. Thus, there was evidence to support this allegation. The Amended Complaint alleged that Jon Peterson, a County vendor, paid the cellular telephone bill for Petitioner and expressly noted that this allegation was based on "testimony" of Colleen Peterson. In addition to Mrs. Peterson's statement, this allegation was supported by Jon Peterson's testimony at the August 13, 1997, pre-determination hearing and by a copy of a canceled check given to Detective Beckerdite by the Petersons. At hearing, Petitioner testified that Jon Peterson had, in fact, paid his cellular bill as indicated by the cancelled check provided by the Petersons. However, Petitioner explained that Jon Peterson asked to borrow Petitioner's cellular phone and that he had allowed Peterson to do so on the condition that Peterson pay the bill for the time period that he had the telephone in his possession. Notwithstanding Petitioner's testimony explaining the reason for the payment, at the time Respondent completed the Amended Complaint, there was evidence to support this allegation. Another allegation in the Amended Complaint was that Petitioner directed Colleen Peterson, a County employee, to prepare personal letters for him during business hours using County equipment. This allegation was based on statements Colleen Peterson made to Investigator Von Buelow and on supporting documentation, copies of the letters, that Mrs. Peterson gave to Investigator Von Buelow. In view of Mrs. Peterson's statements and the substantiating documentation, there was evidence to support this allegation at the time the Amended Complaint was filed. Finally, the Amended Complaint alleged that Petitioner utilized the research resources of the Indian River County Attorney's Office to obtain information and materials for his son for a project unrelated to Indian River County business. This allegation was based on statements Jon Peterson gave to Investigator Von Buelow and documents Peterson provided to Investigator Von Buelow. The documents that Petitioner provided were WestLaw documents and research materials which Peterson stated were found in Petitioner's son's office at Brevard Drug Screening after he was no longer employed there. Investigator Von Buelow interviewed a legal assistant in the County Attorney's Office who confirmed that she had conducted the subject research for and at Petitioner's request. The allegations in the Complaint and Amended Complaint could not be substantiated and/or did not constitute violations of the Code of Ethics. Nonetheless, the inclusion of those allegations were reasonably based on information that Respondent obtained from reliable sources, including the Beckerdite and Von Buelow's investigative reports, the records of the pre- determination and the post-termination hearings; and depositions from other legal proceedings. On or about July 9, 1997, Respondent retained Jack B. Nichols, Esquire, to represent him in the defense of the Ethics Complaint and Amended Complaint 97-103. Mr. Nichols' regular hourly rate is $225. However, trial time is billed at $450 an hour and travel time is billed at one-half of the hourly rate or $112.50 an hour. For the period July 9, 1997, through March 23, 2000, Mr. Nichols has expended 233.70 hours on this matter. As a result of Mr. Nichols' representation, Petitioner has incurred total attorney's fees and costs of $55,576.25 and $10,296.83, respectively. These attorney's fees and costs are reasonable. However, based on the foregoing findings, it is clear that Respondent did not file the Complaint and the Amended Complaint against Petitioner with a malicious intent to injure the reputation of Petitioner by filing such complaints with knowledge that the complaints contained one or more false allegation or with reckless disregard for whether the complaints contained false allegations of fact material to a violation of the Ethics Code. Therefore, Petitioner is not entitled to an award of attorney's fees and costs from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that a Final Order be entered finding that Respondent, James E. Chandler, is not liable for attorney's fees and costs and dismissing the Petition for Attorney's Fees. DONE AND ENTERED this 29th day of June, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2000. COPIES FURNISHED: Jack B. Nichols, Esquire 801 North Magnolia Avenue Suite 414 Orlando, Florida 32803 George P. Roberts, Jr., Esquire Roberts and Reynolds, P.A. 470 Columbia Drive Suite 101C West Palm Beach, Florida 33409 Sheri L. Gerety, Complaint Coordinator and Clerk Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The amount of attorneys fees and costs, if any, that should be awarded Petitioners pursuant to the Final Order issued on March 4, 1997, in Division of Administrative Hearings Case No. 96-1418RU, et al., finding Petitioners entitled to attorneys fees and costs pursuant to the provisions of Section 120.595, Florida Statutes (Supp. 1996) and retaining jurisdiction to determine the "reasonable amounts" of such fees and costs
Findings Of Fact By Joint Prehearing Stipulation and without waiving objections to applicability of Section 120.595, Florida Statutes, the Agency For Health Care Administration (AHCA), has stipulated with all parties as to the "reasonable amounts" of requested fees and costs to be awarded Petitioners in the event that such an award is determined to be applicable. All parties have also stipulated to the lack of liability of Intervenor Citizens of the State of Florida for payment of any award of fees and costs in this proceeding. That stipulation in its entirety is incorporated by this reference within these findings of fact and attached to this Final Order as Exhibit "A." The amendments to Chapter 120, Florida Statutes, were adopted as part of a major rewrite of the APA. See, Chapter 96-159, Laws of Florida. The amendments were effective October 1, 1996, and were effective prior to the hearing related to the rule challenge cases. All parties requesting attorneys’ fees and costs rely upon Section 120.595(4), Florida Statutes (Supp. 1996) as authority for an award of fees. Provisions of Section 120.595(4), Florida Statutes (Supp. 1996), are applicable to the facts of this case. See, Final Order issued on March 4, 1997, in Division of Administrative Hearings Case No. 96-1418RU, et al.
The Issue After investigation, an order was issued by the Commission on Ethics on January 24, 1992, finding probable cause that Respondent, Rubin DeLeon, violated Section 112.3145, F.S. by failing to file a statement of financial interests for the year 1989. The issue in this public hearing, therefore, is whether the violation occurred, and if so, what penalty should be recommended.
Findings Of Fact In a list submitted to Shirley Taylor, Financial Disclosure Coordinator for the Florida Commission on Ethics, the City of Lantana, Florida, identified Rubin DeLeon as a member of the Lantana Civil Service Board. In a list submitted to the Ethics Commission on October 3, 1990, Rubin DeLeon was identified as an officer who failed to file a statement of financial disclosure for the year 1989. To date, Rubin DeLeon has still failed to file the required disclosure, to the best of the knowledge and belief of Shirley Taylor.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission on Ethics enter its Final Order and Public Report finding insufficient evidence to conclude that the Respondent, Rubin DeLeon, violated Section 112.3145, F.S. and dismissing the complaint. DONE AND RECOMMENDED this 8th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 8th day of January, 1993. COPIES FURNISHED: Laura Rush Asst. Atty. General Acting Advocate for the Commission on Ethics Dept. of Legal Affairs The Capitol Tallahassee, FL 32399-1050 Rubin DeLeon 310 West Palm Street Lantana, FL 33462 Bonnie Williams, Executive Director Ethics Commission P.O. Box 6 Tallahassee, FL 32302-0006 Phil Claypool, General Counsel Ethics Commission P.O. Box 6 Tallahassee, FL 32302-0006
Recommendation In view of my finding that the Petitioner has engaged in a pattern of careless conduct, I recommend that the Board issue a written reprimand to her for having engaged in the conduct as found herein. in all other respects I recommend that the complaint be dismissed in its entirety. DONE and ORDERED this 29th day of July, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Both parties filed proposed findings of fact. Except as noted below, I have incorporated the substance of these proposed findings into my findings of fact. Rejected DOT Proposed Findings of Fact The following proposed findings are rejected because they are not facts but only recitations of testimony: Rule 22I-6.006 - proposed finding 1 - second and third sentence. Rule 22I-6.037 - proposed finding 1 - second sentence. proposed finding 2 - first and second sentence. The following proposed findings are irrelevant to the resolution of this case: Rule 22I-6.006 - proposed finding 4 and 5 because the proposed rule applies to other agencies than DOT. proposed finding 6 because whether another method of notifying all bidders is more efficient is not the standard to determine validity of the rule. Rule 22I-6.037 - proposed finding 3, 5, and 7. Rejected DOAH Proposed Finding of Fact The following proposed finding of fact are rejected because these are more in the nature of legal argument or conclusions of law rather than findings of fact: Proposed finding 5 - sentences 5 and 6. Proposed finding 6 - second paragraph, sentences 1 and 2; third paragraph, sentence 4 and 5; and fourth paragraph Proposed finding 7 - second paragraph; third paragraph; and fourth paragraph, fifth sentence Proposed finding 8 - fourth paragraph; fifth paragraph; and sixth paragraph The follow proposed findings are rejected as being irrelevant to the resolution of the issues presented in this case. Proposed finding 1 - fourth sentence Proposed finding 6 - second paragraph, sentence 5 and 6 Proposed finding 7 - fourth paragraph, sentence 1 through 4 The following proposed finding is rejected as not supported by the record evidence: Proposed finding 6 - fourth paragraph, sentence 4 fifth paragraph, sentence 4 ANALYSIS Standing The first issue that must be addressed is DOT's standing. DOAH asserts that Dot lacks standing to challenge Proposed Rules 22I-6.035 and 22I-6.037. DOT has the burden to establish that it would be substantially affected by the proposed rules should they be adopted by DOAH. Section 120.54(5)(b), Fla. Stat. (1985); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979). In order to resolve whether DOT has met its burden, a review of the pertinent decisions on standing is appropriate. 5/ The case cited most often on standing is the First District Court of Appeal's decision in Florida Department of Corrections v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla. 1978). The court held that an inmate who had been confined for committing an assault while in prison lacked standing to challenge an existing rule concerning disciplinary confinement and forfeiture of gain-time. Because the inmate was no longer confined under the rule and had not lost any gain-time when he filed the rule challenge, the court reasoned that the inmate had not suffered an injury in fact at the time of the challenge, end therefore, was not substantially affected by the existing rule. Whether the inmate would be subject to the rule again depended on the likelihood he would commit another infraction. The court deemed this too speculative and subject to conjecture to grant standing. 353 So.2d at 1236. In a later case, the Florida Supreme Court overruled Jerry to the extent it required associations to demonstrate a specific injury to the organization itself rather then to some of its members. Florida Home Builders' Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982). In reaching its decision, the court warned against an overly restrictive application of the concept of standing in the rule challenge cases by noting: "Expansion of public access to activities of governmentally agencies was one of the major legislative purposes of the new Administrative Procedure Act." 412 So.2d at 352-53. Standing to challenge proposed agency rules was addressed in Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). There, the court held that all women of child bearing age who received medicaid benefits were not substantially affected by a proposed rule denying medicaid payments for abortions except under limited circumstances. In denying standing to a woman who was not pregnant at the time of the rule challenge, the court specifically rejected the argument that standing to challenge a proposed rule under Section 120.54(4), Florida Statutes (1985), is less restrictive than standing to challenge an existing rule under Section 120.56, Florida Statutes (1985), by stating: There is no difference between the immediacy and reality necessary to confer standing whether the proceeding is to challenge an existing rule or a proposed rule. 367 So.2d at 1052. In Professional Fire Fighters of Florida v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981), the court held that a group of paramedics had standing to challenge rules establishing additional requirements for renewal of a paramedical certification. There was no showing on any of the individual paramedics had attempted to comply with the new rules or that anything in the new rules would disqualify them from retaining their certification. In rejecting the hearing officer's ruling that these individuals could not claim an injury because they had not yet applied for certification under the new rules, the court stated: The order below would preclude a challenge by anyone who had not first complied with a rule and suffered injury, no matter how clear the rule's applicability to, or substantial its effect on, the challengers... The APA permits prospective challenges to agency rulemaking and does not require that an affected party comply with the rule at his peril in order to obtain standing to chal- lenge the rule. A party may demonstrate standing by showing that a rule has a real and immediate effect upon his case as well as by proving injury in fact. 396 So.2d at 1195-96 (citations omitted) see also 4245 Corp., Mother's Lounge Inc. v. Department of Beverage, 345 So.2d 934 (Fla. 1st DCA 1977). The court distinguished Jerry and Alice P. on the grounds that the petitioners in the case before it were immediately subject to the rule which rendered their continued employment as paramedics unlawful without compliance with the rule. The individuals were presently affected by the rule because they worked in the area to be regulated. 396 So.2d at 1196. In Village Park Mobile Home Association v. Department of Business Regulation, 506 So.2d 426, 412 (Fla. 1st DCA 1987), the court on rehearing emphasized under the test for standing set forth in Fire Fighters that a party may show "that a rule has a real and immediate effect upon his case, as well as injury in fact." Standing was not found in Village Park for certain mobile home owners to challenge agency approval of the prospectus for a mobile home park because the prospectus only disclosed the method for raising rents and reducing services in the future. It was up to the landlord to implement the prospectus at some unspecified date in the future. 6/ Thus, no standing was found because the alleged injury was contingent upon the future actions of a third party. 506 So.2d at 433-34; see also Boca Raton Mausoleum v. Department of Banking, 511 So.2d 1060 (Fla. 1st DCA 1987). In this case, DOT has not alleged that it has suffered an injury in fact by Proposed Rules 22I-6.035 and 22I-6.037. That is not surprising with respect to Proposed Rule 22I-6.037 since it is a new rule that has not been implemented. However, with respect to the proposed amendments to Rule 22I-6.035, dealing with attorney's fees and costs, most of DOT's challenges concern portions of the rule that were not substantially changed in the proposed rule. For example, DOT objects to the provisions requiring an agency to file a response or affidavit and the provisions which allow for a waiver of the right to an evidentiary hearing when one is not affirmatively requested by either party. Rule 22I-6.035 presently contains such provisions. Therefore, the injury in fact test would be applicable. However, DOT has not presented any facts indicating that a prevailing small business party has ever filed a petition seeking costs and attorney's fees from DOT under Florida Equal Access to Justice Act. Consequently, no injury exists. The alternative test for standing is whether the proposed rules would have a "real and immediate effect" upon DOT. With respect to Proposed Rule 22I- 6.035, DOT has not met this test merely by demonstrating that it is a party to pending cases involving small business parties. In order for DOT to be affected by Proposed Rule 22I-6.035, a small business party would first have to prevail against DOT and then file a petition for costs and attorney's fees based upon its belief that DOT was not "substantially justified" in bringing the administrative action. Whether these contingencies, which are controlled by a third party, will occur in the future is open to conjecture and speculation. The type of immediacy envisioned by the court in the Fire Fighters case does not appear to be present with respect to Proposed Rule 22I-6.035. Therefore, DOT does not have standing to challenge this proposed rule. On the other hand, I conclude that DOT has standing to challenge Proposed Rule 22I-6.037. DOT presently has at least nine pending cases involving administrative complaints. The proposed rule on voluntary dismissals would be immediately applicable to DOT's ability to take a voluntary dismissal on those cases without being contingent upon the acts of a third party. Such a real and immediate effect on pending cases involving DOT is sufficient to provide DOT with the requisite standing. DOT does not have to invoke the rule by seeking a voluntary dismissal in order to have standing to challenge the rule as suggested by DOAH. See Professional Fire Fighters of Florida, 396 So.2d at 1195. Invalidity of Proposed Rules 22I-6.006 and 22I-6.037 The Florida Legislature has recently defined what constitutes an invalid exercise of Legislative authority. Section 120.52(8), Florida Statutes, as amended by Chapter 87-385, Section 2, Laws of Florida, provides: (8) "Invalid exercise of delegated legisla- tive authority" means action which goes beyond the powers, functions, duties delegated by the Legislature. A proposed existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a ) The agency has materially failed to follow the applicable rulemaking procedure set forth in s. 120.54; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); The rule enlarges, modifies, or con- travenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or The rule is arbitrary or capricious. These standards are similar to those used by the courts in Florida to test the validity of agency rules. See e.g., Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979); Humana Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). In Agrico Chemical Co., the First District Court of Appeal stated: [I]n a 120.54 hearing, the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule is encompassed within that grant. The burden is upon one who attacks the proposed rule to show that the agency, if it adopts the rule, would exceed its author- ity; that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious. A capricious action is one which is taken without though or reason or irration- ally. An arbitrary decision is one not supported by facts or logic, or is despotic. Administrative discretion must be reasoned and based upon competent substantial evi- dence. Competent substantial evidence has been described as such evidence as a reason- able person would accept as adequate to support a conclusion. The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one. 365 So.2d at 763. In this case DOT has the burden to demonstrate that adoption of Proposed Rules 22I-6.006 and 22I-6.037 would constitute an invalid exercise of legislative authority. Proposed Rule 22I-6.006 DOAH is statutorily authorized "to adopt reasonable rules to carry out the provisions of this act [Chapter 120]." Section 120.65(7), Fla. Stat. (1985). Regarding bid protests, an agency is required to forward a protest to DOAH for an evidentiary hearing in accordance with Section 120.57(1), Florida Statutes (1985), whenever there is a disputed issue a material fact. Section 120.53(5)(d)2, Fla. Stat. (1985). Section 120.57(1) sets forth certain procedures for conducting evidentiary hearings and proceedings where the substantial interests of a party are determined. In light of these statutory provisions, DOAH proposes to amend Rule 6.006 by requiring that an agency send a copy of the notice of hearing to all bidders, other than the protesting bidder, and attempt to telephonically notify these bidders of the date, time, and place the hearing. The purpose of this requirement is to give notice of the deadline to file a motion to intervene in the protest proceeding to the successful bidder, as well as all other bidders who had not filed a timely protest. Motions to intervene must be filed within five days prior to start of an evidentiary hearing. Fla. Admin. Code Rule 6.010. DOT persuasively argues that this portion of Proposed Rule 22I-6.006 requires an agency to do a useless act because any bidder that has not flied a timely protest is precluded from gaining party status in a bid protest proceeding by filing a motion to intervene. I agree. Section 120.53(5), Florida Statutes (1985), requires an agency to provide notice of its decision, or intended decision, concerning a bid solicitation. The notice must contain the following statement: "Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Paragraph (b) of Section 120.53(5), provides: Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120. The formal written protest shall state with particularity the facts and law upon which the protest is based. These statutory provisions are clear and unequivocal. An unsuccessful bidder must file a protest within the 72 hour limitations period in order to participate in further Chapter 120 proceedings. Xerox Corp. v. Florida Department of Professional Regulation, 489 So.2d 1230 (Fla. 1st DCA 1986); see also Capelletti Brothers v. Department of Transportation, 499 So.2d 555 (Fla. 1st DCA 1986)(72 hour deadline applies to protest challenging bid specifications). An adversely affected bidder cannot, and should not be allowed to, gain a back door point of entry to obtain party status in a bid protest proceeding by filing a motion to intervene when the bidder has already waived its right to participate in the proceeding. The only substantially effected entity that would be entitled to intervene in a bid protest proceeding is the successful bidder. Therefore, there would be a valid purpose in adopting a rule that required the successful bidder to receive the notice of hearing so that it would be aware of the deadline for filing a motion to intervene. However, as to all other non-protesting bidders, there is no statutory basis for providing the notice of hearing to them in light of what appears to be a clear prohibition against allowing those bidders to obtain party status after failing to file a timely protest pursuant to Section 120.53(5)(b), Florida Statutes (1985). DOAH argues that the need for subsection (2) of Proposed Rule 22I-6.006 is dramatized by the case of Spillis Candella and Partners, Inc. v. School Board of Dade County, No. 86-3002 Bid. There, the hearing officer determined that the agency never complied with the notice requirements triggering the 72 hour limitations period. Therefore, the protest filed in that case was determined to be timely since the 72 hour time limit had not expired. This single case does not provide justification for requiring agencies to give notice of the evidentiary hearing to all unsuccessful bidders in all bid protest cases. No evidence was adduced indicating that the failure to provide the requisite statutory notice issue raised in the Spillis Candella case had ever occurred in any other bid protest proceeding that had come before a DOAH hearing officer. Even if this had been a recurring problem, subsection (b) of the Proposed Rule 22I-6.006 could have been more closely tailored to remedy issues similar to that raised in Spillis Candella. The rule should have limited an agency's responsibility to provide a notice of hearing to all unsuccessful bidders if the agency had not previously complied with the notice requirements of Section 120.53(5), Florida Statutes (1985). 7/ In light of the foregoing, I conclude that subsection (2) of Proposed Rule 22I-6.006 is arbitrary because it requires agencies to provide notice of a bid protest hearing to bidders who have waived their right to become parties in the proceeding. The rule also contravenes Section 120.53(5)(b), Florida Statutes (1985), which contemplates that only timely protestors may participate as parties in a bid proceeding. 8/ Subsection (3) is also invalid because it requires that an agency provide to the hearing officer proof that it has complied with subsection (2). DOT's remaining objections to Proposed Rule 22I-6.006 are without merit. The fact that all agencies involved in bid protests must adopt rules end procedures for the resolution of such protests, and that the Administration Commission shall also adopt model rules on the same subject, does not indicate a legislative intent to preempt DOAH from adopting rules pertaining to the procedures for conducting bid protest hearings. Section 120.53(5)(a) and (f), Fla. Stat. (1955). In addition, Section 120.57(1)(b), Florida Statutes (1985), does not prohibit non-parties from receiving notice of an evidentiary hearing. Proposed Rule 22I-6.037 DOT advances numerous arguments in support of its contention that subsections (2) and (3) of Proposed Rule 22I-6.037 constitute an invalid exercise of legislative authority. I am persuaded by two of these arguments that DOT's position has merit. First, with respect to subsection (2), the proposed rule provides a hearing officer with the discretion to grant a motion for voluntary dismissal "upon such terms and conditions as the hearing officer deems just and proper." This language fails to provide any guidance to a hearing officer or to the parties in an administrative complaint proceeding as to what conditions a hearing officer could impose for allowing the agency to withdraw its complaint without prejudice. Instead, the rule gives the hearing officer unlimited discretion to impose any condition the hearing officer subjectively believes is "just and proper." These words cannot be construed as words of limitation because it must always be presumed that a hearing officer will rule in a manner that he or she believes is just and proper. Thus the elimination of the "just and proper" language from the rule would not give any more discretion to a hearing officer than is presently granted by the proposed rule. The fact that Florida Rule of Civil Procedure 1.420(2) provides that a trial court may grant a voluntary dismissal filed after submission of a case to the court "upon such terms and conditions as the court deems proper," does not provide a basis for concluding that subsection (2) of Proposed Rule 22I-6.037 is valid. The Rules of Civil Procedure were adopted pursuant to the inherent power of the courts, a power that administrative agencies do not possess. Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748, 753-54 (Fla. 2nd DCA 1985). Agency rules may not violate the standards set forth in Section 120.52(8), Florida Statutes, as amended by Chapter 57-325, Section 2, Laws of Florida. In this case, subsection (2) of Proposed Rule 22I- runs afoul of paragraph (d) of Section 120.52(8), Florida Statutes, as amended, which provides that a rule is invalid if [t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency." Therefore, subsection (2) of Proposed Rule 22I-6.037 is invalid. Subsection (3) of the proposed rule is also invalid but for a different reason. Unlike subsection (2), nothing is left to the parties' imagination as to the consequences an agency will encounter if it files a notice of voluntary dismissal of an administrative complaint containing nonjurisdictional allegations that were previously the subject of a voluntary dismissal. Those nonjurisdictional factual allegations contained in both complaints will be deemed dismissed with prejudice. The issue with regard to this rule provision is whether DOAH has the statutory authority to adopt a rule that requires dismissal of an administrative complaint with prejudice under these circumstances. Although no cases are directed on point, two district court of appeal decisions are instructive. In Great American Bank v. Division of Administrative Hearings, 412 So.2d 373 (Fla. 1st DCA 1981), the First District Court of Appeal revised a hearing officer's order imposing sanctions for a party's failure to make discovery and for a witness' failure to give responsive testimony. The court ruled that certain portions of the model rules, which purported to give such authority to a hearing officer, were invalid because they conflicted with the discovery enforcement provisions found in the Administrative Procedure Act. Section 120.58(3), Fla. Stat. (1981). The Legislature subsequently amended Section 120.58 to specifically grant hearing officers the authority to pose sanctions to effect discovery. Ch. 84-173, Laws of Florida. In Hillsborough County Hospital Authority v. Tampa Heart Institute, 472 So.2d 748 (Fla. 2d DCA 1985), the Second District Court of Appeal declared Model Rule 28-5.211 invalid to the extent the rule authorized a hearing officer to impose sanctions, including dismissal, to enforce procedural orders. The court rejected the argument that the same general rulemaking authority relied upon by DOAH as authority for Proposed Rule 22I-6.037, Sections 120.53 and 120.65(7), Florida Statutes (1985), authorized the model rule. Rather, any rule that provides a sanction in the form of a penalty must be based upon explicit statutory authority such as that found in Section 120.58(1)(b), Florida Statutes (1985), or Section 120.57(1)(b), Florida Statutes (Supp. 1986). 9/ 472 So.2d at 747-48. Subsection (3) of Proposed Rule 22I-6.037 imposes the sanction of dismissal with prejudice. However, in contrast to the specific saction authority granted to hearing officers in Sections 120.58(1)(b) and 120.57(1)(b)5, no provision in Chapter 120 specifically authorizes DOAH to impose a sanction under the circumstances set forth in subsection (3) of Proposed Rule 22I-6.037. Therefore, while I find the purpose of adopting subsection (3) of the proposed rule, to ensure failness, is laudable, this portion of the rule is invalid because DOAH does not possess the requisite legislative authority to adopt such a rule. Section 120.52(5)(b), Fla. Stat., as amended by Ch. 87-358, Section 2, Laws of Florida.
The Issue An administrative complaint filed January 19, 1994, alleges that Respondent, Rafael Feliu, violated various provisions of Chapter 475, F.S. by diverting commission funds to himself, by operating as a broker without a valid broker's license and by collecting money in a real estate brokerage transaction without the consent of his employer. The issue in this case is whether those violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Rafael Feliu (Feliu) is now and was at all times material a licensed real estate broker-salesperson in the State of Florida, having been issued license number 0538613 pursuant to Chapter 475, F.S. His most recent license was issued, effective 5/3/93, c/o Century 21 Progressive Realty, Inc., 11301 So. Orange Blossom Trail, Orlando, Florida. Between May 1990 and March 1993, Feliu was engaged as a broker- salesperson with Angel Gonzalez of Century 21 Nuestro Realty Co., in Orlando, Florida. The parties' independent contractor agreement, dated May 29, 1990, provides for a sixty percent sales commission to Feliu. On November 28, 1992, Feliu solicited and obtained a contract for the purchase of vacant land and the construction of a house. The real estate commission was to be paid in installments. The buyer under the contract was a friend of Feliu, Luis Rodriguez. Feliu and Rodriguez made an arrangement that Rodriguez would receive a rebate of the commission. While the broker, Angel Gonzalez, denies that he agreed to the arrangement, he does admit that he saw a break-down of disbursement of the commission provided by Feliu and that he signed a letter, prepared by Feliu, describing that break-down, including the rebate to Rodriguez. The first commission check, in the amount of $8,750.00 is made to Century 21 Nuestro and is dated June 4, 1993. Feliu delivered the check to Angel Gonzalez with a handwritten break-out of disbursement, including a $1000 rebate and a $2500 rebate (one-half the agreed $5000) to Luis Rodriguez. Gonzalez refused to disburse the commission as indicated on the break- out, but rather sent Feliu a check on June 8, 1993, for $4554.30, representing his usual share of the commission. The second installment of the commission was paid approximately ten days later. Feliu went to the contractor responsible for paying the commission and asked him to make the check to him, Rafael Feliu. Thus, the second check in the amount of $8750.00 is dated June 18, 1993 and is made out to Rafael Feliu. By this time Feliu had left Century 21 Nuestro and was working with another company. Feliu cashed the check and made the disbursements to Luis Rodriguez. He also retained his share of the balance along with sums of $449.93 and $128.00 that he claimed Nuestro Realty owed him on other sales. He sent the balance, $274.77, to Angel Gonzalez with a letter describing in detail the disbursement of the $8750.00 and explaining that he, Feliu, handled the disbursement because Gonzalez had not complied with regard to the first half of the commission.
Recommendation Based on the evidence presented and discussed above, it is hereby, RECOMMENDED: That the Florida Real Estate Commission enter its final order dismissing the allegations of violation of section 475.25(1)(b), F.S. (Count I), finding Respondent Rafael Feliu guilty of the remaining counts of the complaint, and issuing a reprimand. DONE AND RECOMMENDED this 18th day of August, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0856 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Rejected as unnecessary. & 3. Adopted in paragraph 1. Adopted in paragraph 2. & 6. Adopted in paragraph 3. Adopted in paragraphs 5 and 6. Rejected as contrary to the weight of evidence. Adopted in part in paragraph 4; otherwise rejected as unsupported by clear and convincing evidence. Respondent's Proposed Findings Adopted in substance in paragraph 4. Adopted in paragraph 6. Adopted in paragraph 8. Rejected as immaterial. Adopted in substance in paragraph 4. Rejected as contrary to the law (see paragraph 13). - 14. Rejected as unnecessary. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Rafael S. Feliu 2260 Whispering Maple Drive Orlando, Florida 32837 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
