STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EILEEN MCGUIRE, )

)

Petitioner, )

)

vs. ) Case No. 00-0267FE

)

CARON SPEAS, )

)

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 in this case on May 2, 2000, in St. Augustine, Florida.

APPEARANCES

For Petitioner: Allen C. D. Scott, II, Esquire Scott & Scott

101 Orange Street

St. Augustine, Florida 32084

For Respondent: Peter Ticktin, Esquire

Scholl, Ticktin, Rosenberg, Glatter & Litz, P.A.

Net First Plaza

5295 Town Center Road, Third Floor Boca Raton, Florida 33486-1080

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 March 22, 1999, Respondent, Caron Speas, filed a complaint with the State of Florida, Commission on Ethics (Ethics Commission) against Petitioner, Eileen McGuire. The matters alleged in the complaint were investigated and the findings of the investigation were summarized in a Report of Investigation issued on October 8, 1999. On December 2, 1999, the Ethics Commission filed a Public Report which found no probable cause to believe that Petitioner violated the Code of Ethics for Public Employees and Officers (Code of Ethics) and dismissed the Complaint. Thereafter, on January 3, 2000, Petitioner filed a Petition for Costs and Attorney's Fees.

On or about January 13, 2000, the Ethics Commission forwarded the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the hearing and prepare a recommended order. A Notice of Hearing was issued on February 18, 2000, and the final hearing was conducted as noticed.

At commencement of the public hearing, the undersigned permitted argument of counsel on Respondent's Motion to Strike Petitioner's Pretrial Statement (Motion) filed on April 27, 2000. Upon consideration of the Motion and argument of counsel, the motion was denied. Also, upon the request of Petitioner, the undersigned took official notice of the Public Report issued in

this cause and filed by the Ethics Commission on December 2, 1999.

During the evidentiary part of the public hearing, Petitioner testified on her own behalf and presented the testimony of five witnesses: Judith Ginn, Esquire, an expert witness as to the attorney's fees; Respondent, Caron Speas; Allen Scott, II, Esquire; Charles Henderson, the wastewater treatment caretaker for the Town of Welaka; and Charlie Yarbrough, the maintenance man for the Town of Welaka. Petitioner's Exhibits numbered 1 and 5 were received into evidence and Petitioner's Exhibit numbered 3 was rejected. Respondent testified on her own behalf and called one witness, her brother, Rand Speas.

Respondent offered no exhibits into evidence.

At the conclusion of the hearing, the time for filing the transcript was set for ten days after the hearing. A transcript of the proceeding was filed on May 30, 2000. Subsequently, both parties requested and were granted extensions of time in which to file proposed recommended orders. Petitioner and Respondent timely filed proposed findings of facts and conclusions of law under the extended time frames.

After the hearing, motions were filed by both parties.

Respondent filed a Motion to Permit Respondent to Submit Additional Materials. That motion was denied. Petitioner filed two motions, a Motion for Hearing to Tax Additional Costs and Attorney's Fees and a Motion to Tax Costs. In view of the

findings and conclusions made in this Recommended Order, the matters raised in Petitioner's motions are moot and, thus, no rulings have been made on those motions.

FINDINGS OF FACT

1. Petitioner, Eileen McGuire (Petitioner), is now and at all times material to this proceeding has been a member of the Town Council (Town Council or Council) of the Town of Welaka, Florida (Town or Town of Welaka). Petitioner was appointed to the Town Council in 1994, ran for election in 1995, and has continued on the Council since that time. Currently, Petitioner is president of the Town Council.

2. Respondent, Caron Speas (Respondent), is and has been a resident of the Town of Welaka for two years. Respondent, who has practiced law since 1981, considers herself a "watchdog" of the actions of the Town's local government. She is chair of and has been active in a local "political committee" known as Concerned Citizens for Public Integrity, Inc.

3. Respondent's brother, Rand Speas, is also a resident of the Town of Welaka. During January to March 1999, Mr. Speas was running for a position on the Town Council. Rand Speas lost his election campaign on March 3, 1999.

4. During Mr. Speas' unsuccessfu1 1999 election campaign, Gordon Sands was the Mayor of Welaka and Petitioner was a member of the Town Council. Petitioner was not running for re-election

   in 1999, but she supported Mayor Sands who was running for re- election at that time.

5. Respondent was opposed to Mayor Sands' re-election bid and had actively opposed many of the official actions taken by both Petitioner and Mayor Sands. Moreover, Respondent had expressed her dislike and dissatisfaction with the manner in which the Town of Welaka was governed and her opposition to the administration of Petitioner and Mayor Sands.

6. During the 1999 election campaign, Petitioner received complaints from the code enforcement officer of the Town of Welaka regarding political signs that were on Town property. At the time Petitioner received the complaints, she also served as maintenance supervisor, having been appointed to that position by the Town Council. As maintenance supervisor, Petitioner was responsible for directing the day-to-day activities of Town employees, Charles Henderson and Charlie Yarbrough. Henderson was the wastewater treatment caretaker for the Town and Yarbrough was the Town's maintenance man.

7. Soon after Petitioner received the complaints from the Town's code enforcement officer, she met Henderson and Yarbrough at Town Hall one morning when they reported for work. Petitioner gave Henderson and Yarbrough copies of the Town's applicable sign ordinance (ordinance). The ordinance prohibited the placement of signs in the Town's rights-of-way and on utility poles.

8. Consistent with the provisions of the ordinance, Petitioner instructed Henderson and Yarbrough to remove non- conforming political signs from public rights-of-way. Moreover, Petitioner stressed that enforcement of the ordinance should apply to the signs of all candidates, including those of the mayor.

9. Henderson and Yarbrough complied with McGuire's instructions concerning the removal of illegally placed political signs. The men drove around the Town of Welaka in a Town vehicle and began removing signs which they perceived to be in the public rights-of-way and those which were on utility poles. After Henderson and Yarbrough removed the signs, they placed them in the Town vehicle. Some of the signs retrieved by Henderson and Yarbrough were placed in the Town's maintenance yard.

10. Respondent observed Henderson and Yarbrough as they were removing Rand Speas' political signs from what she perceived to be private property. Respondent became very upset and immediately proceeded to her brother's, Mr. Speas', place of business. Once there, Respondent told Mr. Speas that she had observed the Town employees remove his political signs and those of Virgil Posetti, a political opponent of Mayor Gordon Sands. Mr. Speas and Respondent then got in her car, located Henderson and Yarbrough who were still driving the Town vehicle and removing political signs, and began following them.

11. Based on Respondent's observation, she believed that Henderson and Yarbrough were "stealing" political signs.

12. Respondent eventually flagged down Henderson and Yarbrough and asked what they were doing. Henderson explained that they were taking down signs that were in the Town's rights- of-way. Because Respondent was not satisfied with Henderson's explanation, he told her to follow them to Petitioner's house. Respondent and Mr. Speas then followed Henderson and Yarbrough to McGuire's home (also her place of business, a beauty shop).

13. When Henderson, Yarbrough, Mr. Speas, and Respondent arrived at Petitioner's house and place of business, Petitioner went outside to see what they wanted. By this time, Respondent was visibly angry and upset. Respondent began yelling and screaming at Petitioner and threatened to have the her arrested by the "federal marshal." Initially, Petitioner did not know why Respondent was so upset; however, after Petitioner understood Respondent's complaint, she gave Respondent a copy of the Town's political sign ordinance and explained that Rand Speas' political signs should not have been put in the Town's rights-of-way. Petitioner also talked to Rand Speas and gave him the same explanation.

14. After Petitioner's explanation, she allowed Respondent and Mr. Speas to retrieve Rand Speas' signs from the trunk of the Town vehicle and from the Town's maintenance yard. However, Petitioner warned Respondent and her brother that if any of Mr.

    Speas' signs were found in the Town's rights-of-way, the signs would be removed again.

15. When Respondent and Rand Speas retrieved the political signs of Mr. Speas, the only signs that they saw were those belonging to Mr. Speas and those of Virgil Posetti, the political opponent of Mayor Gordon Sands.

16. Petitioner never indicated to Rand Speas or Respondent that she had told Henderson and Yarbrough to remove anything other than signs that were in the Town's rights-of-way or on utility poles. Moreover, the credible testimony of Rand Speas was that Henderson and Yarbrough told him that their instructions from Petitioner were only to remove signs that were in the way of traffic or placed illegally.

17. Notwithstanding the explanation of Petitioner and that of the Town employees, Respondent remained convinced that Petitioner had instructed Henderson and Yarbrough to remove only the political signs of Rand Speas and Virgil Posetti. Respondent based her belief on her own observations. First, when Respondent observed Henderson and Yarbrough, they were removing only the political signs of Rand Speas and Posetti. Second, when Respondent and her brother were retrieving the political signs of Rand Speas, the only signs she saw in the trunk of the Town vehicle and at the Town storage yard were those of Rand Speas and Posetti.

18. At some point after Henderson and Yarbrough removed the political signs, Rand Speas filed a complaint concerning the incident with the State Attorney's Office. After an investigation and/or review of the matter, the State Attorney's Office advised Mr. Speas that it would take no action on the complaint. Enclosed in the correspondence from the State Attorney's Office to Mr. Speas, advising him of its decision, was an Ethics Complaint form. Mr. Speas gave the Ethics Complaint form to Respondent.

19. Several weeks after the incident involving removal of political signs and approximately two weeks after the 1999 election, Respondent signed an Ethics Commission Complaint (Complaint) against Petitioner on March 18, 1999. In the Complaint made against Petitioner, Respondent stated in pertinent part as follows:

    Eileen McGuire is a member of the town council for the Town of Welaka and a political supporter of the Mayor, Gordon Sands. Ms. McGuire used her position as town council member to obtain political benefit for the re-election efforts of Mayor Sands by directing two employees of the town to remove the political signs of Mayor Sands' political opponents in violation of Florida Statute 112.313(6).

20. The statute cited by Respondent and the facts alleged in support of the charge made comprise a specific accusation by Respondent that Petitioner, a public officer of the Town of Welaka, corruptly used her official position to secure a special privilege or benefit for Mayor Sands by directing two employees

    of the Town to remove the political signs of the Mayor's political opponents.

21. At the time Respondent completed and filed the Complaint, she knew that the Town of Welaka had an ordinance prohibiting the posting of political signs on public

    rights-of-way. Moreover, on the day of the incident, Petitioner explained to Respondent that she had directed the Town employees to take down all signs in the rights-of-way. However, Respondent did not believe Petitioner. Instead, Respondent believed that Petitioner had "ordered town employees to go around and take political signs of the opponent of Mayor Sands", and that the Town employees "were stealing [signs] from private property."

22. Respondent's observations, standing alone, do not support her conclusion that Petitioner directed Town employees to "steal" the signs of Rand Speas and Virgil Posetti. However, the allegations set forth in the Complaint were based on Respondent's observations and perceptions and the inferences drawn therefrom.

23. Notwithstanding Respondent's beliefs to the contrary, the evidence supports the conclusion that Petitioner instructed Henderson and Yarbrough to remove any and all signs that were illegally placed in the Town's rights-of-way.

24. Henderson testified credibly that on the day of the alleged ethical violation, Petitioner gave him a copy of the Town ordinance prohibiting political signs in public rights-of-way and instructed him to remove all nonconforming political signs that

    were on public rights-of-way without preferential treatment for any candidate.

25. Yarbrough corroborated the testimony of Henderson and confirmed that Petitioner's instructions to enforce the political sign ordinance of the Town of Welaka were non-preferential and included instructions to remove any offending signs of Mayor Sands as well.

26. In defending herself against the allegations in the Complaint and in this proceeding, Petitioner has been represented by Allen C. D. Scott, II, Esquire. Mr. Scott's hourly rate is

    $125.00.

    
    

27. Prior to the final hearing, Mr. Scott expended forty- three hours on this matter and a related case, Sands v. Speas, DOAH Case No. 00-0268FE. One-half of that time is attributable to the instant case.

28. The hourly rate of $125.00 billed by Mr. Scott is reasonable. Likewise, the pretrial time of 21.80 hours expended in this matter is reasonable. Accordingly, the attorney fees of

    $2,725.00 incurred is reasonable.

    
    

29. Judith Ginn, Esquire, an attorney who has practiced law in the state of Florida since 1974, testified as an expert witness in this case. Ms. Ginn's hourly rate of $150.00 is reasonable. The reasonable cost of Ms. Ginn's expert witness services in this case is $650.00.

    CONCLUSIONS OF LAW

    
    

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

31. Petitioner is seeking attorney's fees and costs pursuant to Section 112.317(8), Florida Statutes, and Rule 34- 5.0291(1), Florida Administrative Code.

32. 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. . . .

    
    

33. 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.

       
       

34. According to Section 112.317(8), Florida Statutes, and Rule 34-5.0291(1), 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 contained one or more false allegations or with reckless disregard for whether the Complaint contained false allegations of fact material to a violation of Part III, Chapter 112, Florida Statutes, (Code of Ethics).

35. 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.

36. Petitioner has failed to meet her burden of proof in the case.

37. Notwithstanding Petitioner's assertions to the contrary, the evidence failed to establish that the Complaint was filed against her with a malicious intent to injure her 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.

38. In the instant case, the evidence established that Respondent filed the Complaint based on inferences drawn from her observations. The evidence clearly established that Respondent's inferences were erroneous. Nonetheless, the mere fact that Respondent was mistaken as to her beliefs and she did not accept as true the explanations of Petitioner, Henderson, and Yarbrough is not evidence that establishes Petitioner's entitlement to attorney's fees and costs within the parameters of Section 112.317(8), Florida Statutes.

39. Having failed to establish the threshold requirements prescribed by Section 112.317(8), Florida Statutes, and Rule 34-5.0291(1), Florida Administrative Code, 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, Caron Speas, is not liable for attorney's fees and costs and dismissing the Petition for Costs and Attorney's Fees.

DONE AND ENTERED this 24th day of August, 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 24th day of August, 2000.

COPIES FURNISHED:

Allen C. D. Scott, II, Esquire Scott & Scott

101 Orange Street

St. Augustine, Florida 32084

Peter Ticktin, Esquire Scholl, Ticktin, Rosenberg,

Glatter & Litz, P.A. Net First Plaza

5295 Town Center Road, Third Floor Boca Raton, Florida 33486-1080

Sheri L. Gerety, Complaint Coordinator and Clerk

Commission on Ethics

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Bonnie J. Williams, Executive Director Commission on Ethics

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Philip C. Claypool, General Counsel Commission on Ethics

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions 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: 00-000267FE

Orders for Case No: 00-000267FE