State Com'n on Ethics v. Sullivan
| Decision Date | 19 April 1983 |
| Docket Number | No. AL-13,AL-13 |
| Citation | 430 So.2d 928 |
| Parties | STATE of Florida COMMISSION ON ETHICS, et al., Appellant, v. John SULLIVAN and Wilma Sullivan, Appellees. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Patricia R. Gleason, Asst. Atty. Gen., and Philip C. Claypool, Staff Atty., Com'n on Ethics, Tallahassee, for appellant.
Stephen Marc Slepin of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellees.
REVISED OPINION *
This case presents the primary issues of whether the Commission on Ethics has authority to receive and investigate sworn complaints of violations of Sections 99.012(7) and 116.111, Florida Statutes, by public officers or employees, and of whether this Court's earlier per curiam affirmance (PCA) of a Commission order denying appellees' motion to dismiss for lack of jurisdiction was res judicata, so as to preclude a contrary ruling by the trial court. For the reasons set forth below, we hold that the trial court erred in proceeding to judgment after this court's PCA, that the Commission does have such authority, and that this Court's earlier PCA on an interlocutory appeal was res judicata on the issue of the Commission's jurisdiction to continue with the administrative proceeding.
A statement of the convoluted procedural history of this case is critical to an understanding of the issue posed here: Wilma Sullivan was the Leon County Supervisor of Elections from 1965 until January, 1981. She did not seek reelection. Her son, John Sullivan, was her Deputy Supervisor of Elections during the later years. John filed for and was elected as the Leon County Supervisor of Elections in the 1980 elections, succeeding his mother in January, 1981. Cliff Mason was an unsuccessful write-in candidate for the Leon County Supervisor's office in the 1980 elections. In late January, 1981, Cliff filed complaints with the Commission alleging that Wilma and John Sullivan had committed breaches of the public trust in violation of Article II, Section 8(f), Florida Constitution. Wilma was alleged to have violated the antinepotism law, Section 116.111, Florida Statutes (1977), by appointing, employing, promoting or advancing son John in his position as Deputy Supervisor of Elections. John was alleged to have violated Section 99.012(7), Florida Statutes (Supp.1980), by failing to take a leave of absence from his position as Deputy Supervisor of Elections after filing for the office of Supervisor of Elections.
On 23 March 1981, Wilma and John each moved the Commission to dismiss the complaint against them for lack of jurisdiction, arguing that Wilma was no longer a public officer or public employee and was not so when the complaint was filed; that the Commission did not have jurisdiction under either Article II, Section 8(f), Florida Constitution, or Chapter 112, part III, Florida Statutes, to hear complaints of violations under Sections 99.012(7) and 116.111, Florida Statutes; that the Commission did not have authority to define "breach of public trust" on an ad hoc, case-by-case basis; and that the Commission did not have the authority under subsection 8(f) to adopt rules expanding its authority beyond that specifically provided by Chapter 112, part III.
The Sullivans' motions were argued before the Commission on 1 April 1981 and 13 May 1981. The Commission denied the motions to dismiss at the conclusion of the May 13 hearing and issued written orders on 15 May 1981 denying the Sullivans' motions and setting the complaints for public hearing.
On 22 May 1981, Wilma Sullivan petitioned this Court for a writ of prohibition, arguing that the Commission had departed from the essential requirements of law by attempting to exercise jurisdiction over her as a non-public officer and non-public employee and over matters embraced by Section 116.111. On 25 June 1981, after receiving the Commission's response to a show cause order and considering the petition on the merits, this Court issued an order denying Wilma's petition for writ of prohibition.
On 27 May 1981, Wilma and John filed individual complaints against the Commission in Circuit Court, Leon County, for declaratory judgment and injunctive relief pursuant to Chapter 86, Florida Statutes (1979). The issues posed by Wilma (briefly, restated) were: (1) whether the Commission was subject to Chapter 120, Florida Statutes (1979), (2) whether she was entitled to and afforded a probable cause hearing before the ordering of an evidentiary proceeding on the merits of the complaint against her, (3) whether Commission rule 34-5.015 was invalid, or invalid as applied to her, and whether the Commission had authority to adopt rules creating or defining offenses cognizable by it; (4) whether the Commission could define a "breach of public trust" on a case-by-case basis, (5) whether the Commission has jurisdiction to hear alleged violations of Section 116.111, and (6) whether the Commission has jurisdiction over a former public official or public officer. John posed five issues for declaratory judgment: the first four were the same as those presented by Wilma; his fifth issue was whether the Commission had jurisdiction to hear alleged violations of Section 99.012(7).
On 12 June 1981, pursuant to Section 120.68(1), Florida Statutes, Wilma and John filed notices of appeal with this Court seeking review of the Commission's orders of 15 May 1981 denying their motions to dismiss and ordering evidentiary hearings on the merits. These appeals were consolidated, and, on 28 August 1981, this Court denied the Commission's motion to dismiss the appeals as being appeals of non-final orders contrary to Rule 9.110, Florida Rules of Appellate Procedure, holding that the appeals would be considered as petitions to review non-final administrative action under Rule 9.100, Florida Rules of Appellate Procedure. The Sullivans presented four issues to this Court: (1) whether they were entitled to and received a probable cause hearing before the Commission, (2) whether the Commission had subject matter jurisdiction over complaints of violations of Sections 116.111 and 99.012(7), (3) whether Commission Rule 34-5.015 was valid, and (4) whether the Commission had [personal] jurisdiction of a non-officer, Wilma Sullivan. This Court was not informed of any action then pending in circuit court seeking a declaration of the Commission's jurisdiction. On 23 October 1981, we per curiam affirmed the Commission's action denying the Sullivans' motions for dismissal for lack of jurisdiction and on 13 November 1981 denied a motion for rehearing. Sullivan v. Florida Commission on Ethics, 407 So.2d 1110 (Fla. 1st DCA 1981). Thereafter, the Sullivans pursued their consolidated complaints seeking declaratory judgment in Leon County Circuit Court. The court issued a final declaratory judgment on 4 March 1982 ordering and adjudging that the Commission had no authority to investigate complaints alleging conduct which may violate provisions of Florida Statutes or the Constitution other than Chapter 112, part III, Florida Statutes, and Article II, Section 8, Florida Constitution; that the Commission lacked subject matter jurisdiction over the complaints alleging conduct by John Sullivan in violation of Section 116.111 [sic], and by Wilma Sullivan in violation of Section 99.012(7) [sic], and that the foregoing being dispositive of the matters before the court, no ruling was made with respect to other issues posed in the petitions.
In arguing their case on this appeal, and apparently in the circuit court below, the Commission appears to have avoided taking the position that Chapter 112, part III, provides Commission jurisdiction for an investigation of complaints of Sections 99.012(7) and 116.111, and instead has focused its arguments on Article II, Section 8, Florida Constitution, as the basis for Commission authority. We find that Chapter 112, part III, provides jurisdiction and decline the urgings of the parties to engage in what we view as unnecessary constitutional pronouncements. For the edification of the parties, we will now make clear what our earlier PCA did not.
Appellant urges three points on appeal:
(1) The trial court erred in not finding this Court's per curiam affirmance (Sullivan v. Florida Commission on Ethics, 407 So.2d 1110 (Fla. 1st DCA 1981)) of the Commission's denial of the Sullivans' motion to dismiss for lack of jurisdiction to be res judicata.
(2) The trial court erred in holding that the Commission had no subject matter jurisdiction over the complaints against the Sullivans, and
(3) The trial court erred in rendering a declaratory judgment when the Sullivans' had an adequate remedy to challenge the Commission's jurisdiction by seeking appellate review in this court.
The three issues are inextricably interwoven. We must consider the exhaustion of remedies issue (issue (3)), and the res judicata issue (issue (1)). The resolution of both (or either) of these issues in the Commission's favor would ordinarily dictate that we refrain from considering the Circuit Court's ruling on the merits (issue (2)). However, because of the unusual posture of this case as it appears before us on this appeal, we consider that a more definitive resolution of the merits of the jurisdictional controversy underlying this litigation is called for.
Issue (3), exhaustion of remedies, has two aspects: First, whether the trial court was in error in accepting jurisdiction of the case initially, in view of the availability of a Section 120.68(1) remedy by appeal of the Commission's actions to this court; and second, even if the trial court properly exercised jurisdiction in entertaining the case in its early stages, whether it was improper for it to do so after this court rendered its decision in the Sullivans' Section 120.68(1) appeal.
The Commission's motions to dismiss the complaints for failure to exhaust chapter 120, filed June 17, 1981, were apparently meritorious,...
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