STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RON D. BAKER, )

)

Petitioner, )

)

vs. ) Case No. 99-3250FE

)

JAMES E. CHANDLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Carolyn S. Holifield, held a formal hearing on December 6, 1999, and on February 22 and 23, 2000, in Vero Beach, Florida.

APPEARANCES

For Petitioner: Jack B. Nichols, Esquire

801 North Magnolia Avenue Suite 414

Orlando, Florida 32803

For Respondent: George P. Roberts, Jr., Esquire

Roberts and Reynolds, P.A.

470 Columbia Drive Suite 101C

West Palm Beach, Florida 33409 STATEMENT OF THE ISSUES

Whether Petitioner is entitled to recover attorney's fees and costs against Respondent and, if so, in what amount.

PRELIMINARY STATEMENT

On or about June 30, 1997, Respondent, James E. Chandler, filed a Complaint with the State of Florida, Commission on Ethics

(Ethics Commission) against Petitioner, Ron D. Baker, alleging numerous violations of the Code of Ethics for Public Employees and Officers (Code of Ethics). Respondent filed an amendment (Amended Complaint) to the Complaint on January 28, 1998. The matters alleged in the Complaint and the Amended Complaint were investigated and the findings of the investigation were summarized in a Report of Investigation issued on March 8, 1999. On June 3, 1999, the Ethics Commission issued a Public Report which found no probable cause to believe that Petitioner violated the Code of Ethics and dismissed the Complaint and Amended Complaint. Thereafter, Petitioner timely filed a Petition for Attorney's Fees and Costs and requested a formal hearing.

On August 2, 1999, the Ethics Commission forwarded the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the final hearing and prepare a recommended order. A Notice of Hearing was issued on October 12, 1999, and the hearing commenced on December 6, 1999, as noticed. After a full day of testimony, the matter was continued until December 22, 1999. However, prior to that date, upon motion by Respondent, the hearing was continued and rescheduled for February 22 and 23, 2000.

At hearing, Petitioner testified on his own behalf and presented the testimony of James Chandler; William Frates, Esquire; Will Collins, Esquire; Lea Keller; Charles Vitunac, Esquire; and Jack Nichols, Esquire. Respondent testified on his

own behalf and presented the testimony of James Barry, Esquire; Detective Lieutenant Lewis Beckerdite; Investigator Robert Von Buelow; Chris Matteson; Catherine Wendt; Elizabeth Jordan; and Colleen Peterson. Petitioner offered and had ten exhibits received into evidence. Respondent offered and had 29 exhibits received into evidence, including the deposition of Investigator Thomas Reaves and the sworn hearing testimony of Jon Peterson.

At the conclusion of the hearing, by agreement of the parties, the time for filing post-hearing submissions was set for more than ten days after the Transcript was filed. A copy of the Transcript was filed on March 9, 2000. Thereafter, both parties timely filed Proposed Recommended Orders under the extended time frame.

FINDINGS OF FACT

1. 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.

2. As personnel director for Indian River County, Petitioner is a public employee and, thus, subject to the Code of Ethics.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. After Petitioner received a copy of the Beckerdite report, he requested and was granted an administrative leave of absence with pay.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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). . . .

    
    

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. Based on the findings in paragraphs 48 and 49, there was evidence to support the allegation relative to Petitioner's hiring of Colleen Peterson.

51. 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.

52. 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.

53. 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.

54. 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.

55. 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.

56. 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.

57. 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.

58. 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.

59. 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.

60. 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.

    
    

61. 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.

62. 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.

    CONCLUSIONS OF LAW

    
    

63. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.

64. Petitioner is seeking attorney's fees and costs pursuant to Section 112.317(8), Florida Statutes, and Rule 34- 5.0291, Florida Administrative Code.

65. Section 112.317(8), provides in pertinent part:

    
    

    (8) 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 such officer or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part, the complainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against, including the costs and reasonable attorney's fees incurred in proving entitlement to and the amount of costs and fees. . . .

66. Rule 34-5.0291(1), Florida Administrative Code, provides:

    1. If 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 such officer or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of the Code of Ethics, the complainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against.

67. According to Section 112.317(8), Florida Statutes, and Rule 34-5.0291, Florida Administrative Code, the award of attorney's fees requires that Petitioner show that the Complaint

    was filed with a malicious intent to injure the reputation of such officers or employees with knowledge that the Complaint contains one or more false allegations or with reckless disregard for whether the Complaint contains false allegations of fact material to a violation of Code of Ethics.

68. In this proceeding, Petitioner 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. Rule 34-5.0291(4), Florida Administrative Code.

69. Petitioner has failed to meet his burden of proof in the case.

70. Here, Petitioner has failed to establish that the Complaint was filed against him with a malicious intent to injure his reputation by filing the Complaint with knowledge that the Complaint contained one of 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. Thus, Petitioner is not entitled to an award of attorney's fees and costs.

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-003250FE

Orders for Case No: 99-003250FE