STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re: JIMMY BILBO )

) CASE NO. 94-0337FE

Respondent. )

)

FINAL 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 February 28, 1994, in Tallahassee, Florida.

APPEARANCES

For Respondent: James "Jimmy" Bilbo, Pro Se

Route 1, Box 80

Bristol, Florida 32321

For Complainant: Jeremiah "Jerry" Anders, Pro Se

Route 1, Box 151

Bristol, Florida 32321 STATEMENT OF THE ISSUES

Whether Respondent is entitled to costs and attorney's fees related to Ethics Complaint No. 93-98, filed by Complainant, and, if so, what amount.

PRELIMINARY STATEMENT

On July 22, 1993, Complainant, Jerry Anders, filed Complaint No. 93-98 with the State of Florida Commission on Ethics (Commission) against Jimmy Bilbo, alleging a violation of Section 112.313(6), Florida Statutes. On December 7, 1993, the Commission issued a Public Report, finding there was no probable cause to believe Respondent violated Section 112.313(6) and dismissing the complaint. On December 28, 1993, Respondent filed a Petition for Costs/Attorney's Fees and, on January 13, 1994, filed an Amended Petition for Costs and Attorney's Fees and Request for Hearing. The Commission forwarded the case to the Division of Administrative Hearings for assignment of a hearing officer on January 18, 1994.

At the final hearing the following Respondent's exhibits 1-4 were admitted into evidence: Exhibit 1 - letter dated August 3, 1993, from James Bilbo to Bonnie Williams, Exhibit 2 - Complaint Number 93-98, Exhibit 3 - letter dated August 3, 1993, from Lester Bramlett to Bonnie Williams, and Exhibit 4 - Affidavit of Clay Evans dated August 3, 1993. Respondent testified on his own behalf and presented the testimony of the following witnesses: George Austin Sanders, Lester Bramlett, and Darrell Clay Evans. Complainant's Exhibit 1, tapes of the December 11, 1990 Liberty County School Board Meeting, were admitted into evidence. Complainant testified on his own behalf and presented the testimony of the following witnesses: Herbert Whitaker, Diane Lindsey, and Edward Kevin Williams.

No transcript was filed. The parties agreed that proposed recommended orders would be filed by March 10, 1994. Respondent filed a proposed recommended order on March 10, 1994. Complainant did not file a proposed recommended order. Respondent's proposed findings of fact are ruled on in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, James "Jimmy" Bilbo (Bilbo) was at all times material to this proceeding a member of the Liberty County School Board.

   
   

2. On July 22, 1993, Complainant, Jeremiah "Jerry" Anders (Anders), a former employee of the Liberty County School Board, filed Complaint No. 93-98 with the State of Florida Commission on Ethics (Commission) against Bilbo.

   
   

3. Specifically Anders alleged the following:

   
   

   I feel Jimmy Bilbo has violated Sec. 112.313(6) of the Florida Statutes. Please see the attached descriptions of possible violations.

   * * * *

   During the spring of 1993 Jimmy Bilbo instructed the following work be done on his friend, Laban Bontrager's bulldozer at the bus shop:

   Grease job

   Rake installed

   Filled with county diesel

   This was done on school time with school materials. Clay Evans and Lester Bramblett witnessed this.

   
   

4. The Commission ordered a preliminary investigation. On December 7, 1993, the Commission filed a Public Report, finding there was no probable cause to believe Bilbo violated Section 112.313(6), Florida Statutes and dismissing the complaint.

   
   

5. On January 13, 1994, Bilbo filed his Amended Petition for Costs and Attorney's Fees and Request for Hearing.

   
   

6. Shortly after Bilbo was elected, the school board, on Bilbo's motion, voted to refer some allegations of impropriety at the school bus barn to the state attorney's office for investigation. Some ethics complaints were also filed relating to the same incidents, but Bilbo played no part in the initiation of the ethics complaints. During these investigations Mr. Anders had been questioned. Anders harbored some resentment towards Bilbo for his part in the referral of the matter to the state attorney's office.

   
   

7. Mr. Anders was employed with the Liberty County School System until June 30, 1993, when his contract was not renewed.

   
   

8. In April, 1993, Bilbo loaned a tractor (bulldozer) to the school system for use in filling in holes at the school maintenance garage that resulted from the removal of fuel tanks at the maintenance garage and in spreading dirt for a parking area. The tractor was also to be used to clear out and dress up a holding pond adjacent to the garage in order to accommodate runoff water. Although the tractor was owned by Laban Bontrager, a friend of Bilbo's, Bilbo had authorization to loan the tractor.

9. Bilbo and Lester Bramlett, the school maintenance foreman, went to Bilbo's home, loaded the tractor which had a root rake attached to the front end and a full tank of gas, and carried the tractor to the maintenance garage for Mr. Bramblett to use for county work. In order for the tractor to be used to spread dirt for the parking area, Mr. Bramlett and Bilbo removed the root rake.

   
   

10. The tractor remained on county property until approximately mid-May, 1993. During this time the tractor was used only for county work. While Mr. Bramblett was using the tractor, he added fuel as necessary and kept the blade and tracks greased for effective operation of the machine. After Mr. Bramblett finished using the tractor, he put fuel in the tank. When Bilbo came for the return of the tractor, Bilbo mounted the root rake on the tractor and loaded the tractor on his trailer.

    
    

11. Bilbo did not charge anyone for the use of the tractor.

    
    

12. In his complaint, Anders listed Clay Evans and Lester Bramlett as witnessing the work being done on the tractor on school time and with school materials in violation of Section 112.313(6), Florida Statutes. Mr. Anders was not present at the alleged incident. Bramblett denied that Bilbo instructed him to grease the tractor, put a rake on it, and fill it with fuel. Both Messrs Bramblett and Evans testified that the tractor was used for county work at no charge to the county.

    
    

13. Diane Lindsey testified that she heard Bramblett say that Bilbo told him to gas and service the tractor and put the root rake on it. Having judged the credibility of the witnesses, I find that Bilbo did not instruct Mr. Bramblett to gas, service, or attach the root rake to the tractor. The tractor was loaned to the school system containing a full tank of gas and it was returned to Bilbo with a full tank of gas. It was necessary to grease the tractor while in use to keep it running properly, and Bilbo put the rake on the tractor prior to loading the tractor for the return trip to Bilbo's house. There was no personal benefit to Bilbo or to Mr. Bontrager.

    
    

14. After Anders' contract was not renewed, Anders told George Sanders, a friend of Anders and Bilbo, to tell three friends, Mr. Johnson, Mr. Wilbanks and Bilbo, that "he [Anders] had him [Bilbo] and was going to get him."

    
    

15. Anders told Mr. Bramblett after the investigation by the Commission of Anders' complaint, that he wanted "Bilbo to feel the same kind of pain that he had."

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 112.317(8), Florida Statutes, 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.

    
    

18. Rule 34-5.029(3), Florida Administrative Code 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.

    
    

19. Bilbo has proved by a preponderance of the evidence that Anders filed the ethics complaint with malicious intent to injure the reputation of Bilbo. Anders' request to Mr. Sanders to advise Bilbo that he had him and was going to get him coupled with Anders' remarks to Mr. Bramblett that he wanted Bilbo to feel the same kind of pain that he had is evidence to show that the complaint was filed with ill will and hostility toward Bilbo. Additionally, Anders was not present when the alleged incident happened, and the two witnesses Anders listed in the complaint as having witnessed the incident do not support Anders' allegations. Thus, had Anders inquired of Mr. Bramblett and Mr. Evans, he would have learned that there was no reason to believe that Bilbo violated Section 112.313(6).

    
    

20. The complaint is frivolous and without basis in fact or law. Essentially the facts are that Bilbo loaned the school system a tractor with a full tank of gas and a root rake attached to be used only for county work. The tractor was used only for county work and was returned to Bilbo in the same condition as it was when it was loaned. There is no evidence that either Bilbo or the owner of the tractor derived any personal benefit from the fueling and service of the tractor. No school system personnel were used to mount the root rake back on the tractor.

    
    

21. Bilbo is asking for $325 for attorney's fees. Rule 4-1.5 of the Florida Bar Rules of Professional Conduct lists several factors which can be used in determining a reasonable fee. These factors include, among other

things, the time and labor required, the skill requisite to perform the service properly, the fee customarily charged in the locality for similar services, and the experience, reputation, and ability of the lawyer performing the service.

Bilbo has failed to prove what legal service was actually performed, who performed the service, how many hours of service were performed, or the fee customarily charged in the locality for similar services. Bilbo has not met the burden of proof necessary to determine the amount of attorney's fees and, therefore, is not entitled to an award of attorney's fees.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying James "Jimmy" Bilbo's

Amended Petition for Attorney's Fees and Costs.

DONE AND ENTERED this 28th day of March, 1994, 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 28th day of March, 1994.

APPENDIX TO FINAL ORDER, CASE NO. 94-337FE

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

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-5: Accepted in substance.

2. Paragraph 6: Accepted in substance except the Report on Investigation was not entered into evidence.

3. Paragraphs 7-8: Accepted in substance.

4. Paragraph 9: Accepted in substance.

5. Paragraphs 10-14: Rejected as unnecessary detail.

6. Paragraph 15: Accepted in substance.

7. Paragraph 16: The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence.

8. Paragraph 17: Accepted in substance except the portion "to teach him a lesson" which is rejected as not supported by the evidence.

9. Paragraph 18: Rejected as not supported by competent substantial evidence.

COPIES FURNISHED:

James W. Bilbo Route One, Box 80

Bristol, Florida 32321

Jerry Anders Route 1, Box 151

Bristol, Florida 32321

Carrie Stillman Complaint Coordinator Post Office Box 15709

Tallahassee, Florida 32317-5709

Bonnie Williams Executive Director

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

Tallahasee, 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.

Docket for Case No: 94-000337FE

Orders for Case No: 94-000337FE