STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT J. BARNAS,
vs.
Petitioner,
Case No. 13-4759F
SHARON L. YEAGO,1/
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings Administrative Law Judge Diane Cleavinger on February 25, 2014, and April 24, 2014, in Gainesville, Florida.
APPEARANCES
For Petitioner: Joseph W. Little, Esquire
3731 Northwest 13th Place Gainesville, Florida 32605
For Respondent: Paul R. Regensdorf, Esquire
Holland and Knight LLP
50 North Laura Street Jacksonville, Florida 32202
STATEMENT OF THE ISSUE
The issue in this proceeding is whether Respondent is entitled to attorney’s fees and costs pursuant to section 106.265(6), Florida Statutes (2012), and Florida Administrative Code Rule 2B-1.0045.
PRELIMINARY STATEMENT
On April 1, 2013, Complainant, Robert J. Barnas, filed an ethics complaint with the Florida Elections Commission (FEC) against Respondent, Sharon L. Yeago, as the spokesman of an organization known as Concerned Citizens for a Better High Springs (Concerned Citizens). In the Complaint, Mr. Barnas alleged that Ms. Yeago and others had formed Concerned Citizens to oppose a High Springs charter amendment referendum and to support certain High Springs city commission candidates in the November 6, 2012, general election. The Complaint further alleged that such activity had violated various provisions of chapter 106, Florida Statutes, since Concerned Citizens failed to register as a political committee, failed to appoint a treasurer, failed to appoint a registered agent, failed to file reports of financial expenditures, and failed to keep records. Ms. Yeago filed a response to the complaint. After review, FEC ultimately dismissed the underlying complaint.
At the hearing in this matter, Mr. Barnas claimed that procedural flaws regarding notice had occurred during the underlying proceeding. However, the decision of the FEC in the underlying action was not appealed by Mr. Barnas and is now final. Therefore, such alleged procedural flaws have not been addressed in this Recommended Order.
After the FEC decision, Ms. Yeago filed a Petition for Costs and Attorney’s Fees pursuant to section 106.265(6) and Florida Administrative Code Rule 2B-1.0045. The Petition alleged that Mr. Barnas filed the ethics Complaint with malicious intent to injure her reputation, by filing the Complaint with knowledge that it contained one or more false allegations, or with reckless disregard for whether the Complaint contained one or more false allegations. Mr. Barnas disputed the Petition for Fees and the matter was forwarded to the Division of Administrative Hearings (DOAH) for formal hearing.
At the hearing, Complainant, Mr. Barnas, testified in his own behalf and presented the testimony of two witnesses.
Complainant also offered 12 exhibits into evidence. Respondent, Ms. Yeago, testified in her own behalf and presented the testimony of three witnesses. Additionally, Respondent offered
19 exhibits into evidence.
After the hearing, Petitioner/Complainant filed a Proposed Recommended Order on June 27, 2014. Respondent filed a Proposed Recommended Order on June 30, 2014.
FINDINGS OF FACT
Robert Barnas was an elected member to the City Commission of the City of High Springs, Florida. At the time relative to this proceeding, the City of High Springs was having
serious financial difficulty, had cut salaries and staff and was having difficulty meeting its obligations.
Mr. Barnas was a sponsor and supporter of a referendum to amend the City of High Springs charter. In general, the proposed amendment sought to limit the power of the City of High Springs to borrow money without a super majority vote of the City Commission and an approving vote of the electorate.
The charter amendment was passed by the City Commission without following proper procedures and was slated to appear on the November 6, 2012, general election ballot. The restrictive nature of the referendum and the manner of the referendum’s passage angered many voters who campaigned against it. Further, a legal action by opponents of the referendum was filed in Circuit Court to invalidate the passage of the referendum. Due to that legal action, the Circuit Court preliminarily voided the impending vote on the charter amendment but did not remove the question from the ballot.
In addition, politics in High Springs had too many people become shockingly contentious, mean-spirited and discourteous. The referendum and its questionable passage added to the negative political atmosphere. As a consequence, around September 28, 2012, an informal, unincorporated organization was formed in the City of High Springs called Concerned Citizens for a Better High Springs (Concerned Citizens). It was formed for a
variety of “good government” concerns regarding government and politics in High Springs.
Throughout the period of time between its organization and the election in November of 2012, four people were responsible for Concerned Citizens and constituted its Steering Committee. Those four people were Becky Johnson, John Manley, Bob Jones, and Linda Jones.
The group was a volunteer organization and did not have dues or a bank account. The evidence was not clear if Concerned Citizens had official members in its organization or less official supporters since to “join” the organization a person could email Concerned Citizens or “like” the group on Facebook and thereby be listed as a supporter.
Ms. Yeago was affiliated with or a supporter of Concerned Citizens and served from time to time as a volunteer spokesperson for that organization. She also assembled from other supporters ideas, and/or typed up the mission statement and other documents that will be discussed later in this order. She did draft the group’s description/solicitation for support which will also be discussed later in this order.
Ms. Yeago lived in the county where High Springs is located, but did not live in High Springs. She, therefore, was not a voter in High Springs city elections. Her political stance on any High Springs city commission candidates or on the charter
amendment was not known and not demonstrated by the evidence. Further, no effort was made by Mr. Barnas to ascertain Ms. Yeago’s position on these issues and there was a complete lack of evidence demonstrating that Ms. Yeago campaigned for or against any candidate for the City’s commission or advocated for or against the charter amendment on the ballot.
Ms. Yeago supported Concerned Citizens and helped the group because she was genuinely concerned with fostering a better political atmosphere in High Springs. She was not on the steering committee and not responsible for guiding the group. Further, due to her professional work with various local governments and people of all political persuasions it was of primary concern to her that Concerned Citizens or any group she was associated with be non- political and nonpartisan.
On the other hand, some of Concerned Citizens’ publicly identified supporters, in their private capacity, actively and publicly opposed adoption of the proposed charter amendment and actively and publicly supported election of particular candidates for seats on the High Springs city commission whose election
Mr. Barnas opposed.
Two of the candidates opposed by Mr. Barnas were Bryan Williams and Scott Jamieson. Mr. Williams’ opponent was Patrick Rush. Mr. Jamieson’s opponent was Edward Reiss.
Concerned Citizens created a Facebook identity and started a Facebook page on September 28, 2012, the official day of its formation. The group posted under the name “Concerned Citizens for a Better High Springs.” Individuals posted under whatever Facebook name they used. The group did not control who posted to its Facebook page or the contents of such posts.
On September 28, 2012, the official day of formation of Concerned Citizens, Gene Levine posted a comment on Concerned Citizens’ Facebook page. The evidence was not clear if Mr. Levine was then a supporter of Concerned Citizens. However, by
November 1, 2012, he was listed as a supporter by the organization in an advertisement it ran in the local newspaper offering rides to the polls.
Mr. Levine’s comment read:
As of Friday night 9/28/2102 [sic], if the information is correct, it appears that Edward Reiss has thrown in the towel leaving Scott Jamison [sic] to retain Seat 5 unopposed.
That leaves Patrick Rush to run against Bryan Williams for Seat 4, the seat now held by Dean Davis who is all too friendly with Rush.
Dean’s close friend Robyn Rush instructed Davis to support Pat Rush and Davis is going around town putting up “Vote For Rush” signs.
We must remember Pat Rush as the owner of “Pat’s Place,” a coffee shop on Main Street that went out of business. He couldn’t blame anyone else for his businesses’ demise because he made all the decisions. How can any citizen of High Springs even think of voting
for someone who couldn’t successfully run his own business to run our City’s big business?
Everyone should send the present triumvirate a clear message that we the people, who this trio works for, can’t take their lack of professionalism anymore. We will vote for Bryan Williams because he has nothing to hide about his past and wants the chance to do damage control and better position High Springs to thrive once again by bringing in much needed jobs.
Immediately following Mr. Levine’s comment, Concerned Citizens disclaimed Mr. Levine’s comment and posted:
This group will not be addressing political campaign issues. Those are for other groups. We are nonpartisan and nonpolitical and will only be focused on policy recommendations to move High Springs forward.
Concerned Citizens further advised people to “take a look at our Principles and Policy Recommendations under About.” Notably, through the time of filing the FEC complaint underlying this action and other than congratulating the election’s winner after the election and wishing him well, there were no other postings on the Concerned Citizens’ Facebook page or on its “About” page regarding any political candidates. Further, there were clearly no postings by Ms. Yeago regarding any political candidates.
Indeed, Mr. Jamieson’s race was uncontested and listed as such on the ballot in November. Mr. William’s race remained contested and most of the evidence in this hearing focused on
Mr. William’s race. However, Mr. Barnas misrepresented, to the point of falsification, that Concerned Citizens supported these two candidates when he cut and pasted into an attachment to his FEC complaint only Mr. Levine’s post on Facebook, deliberately leaving out the nonpartisan statement and position of Concerned Citizens which followed Mr. Levine’s post. Moreover, by April 1, 2013, when Mr. Barnas sent his complaint to the FEC, Mr. Barnas knew that Mr. Jamieson’s race was uncontested, but falsely represented that Concerned Citizens had expressly advocated for his election when no such advocacy occurred because the race was uncontested.
As indicated, Concerned Citizens published on its Facebook page and in a variety of documents its mission statement, its four guiding principles, and its five key areas of principal concern to effectuate its goals of greater civility in politics and better government in High Springs.
The Mission Statement read:
Concerned Citizens for a Better High Springs supports a local government with a commission and professional management that provide leadership, accountability and a vision for our future.
In addition to the mission statement that appeared on its Facebook page, there were two publications/statements created that included the group’s above-quoted mission statement. One publication contained the mission statement and listed the
group’s four “Guiding Principles.” Those guiding principles
were:
Principle One: There must be a commitment by the Commissioners and the citizens to restore professional, experienced, and accountable management to the City.
Principle Two: There must be a commitment to restore a comprehensive budgetary process that addresses both short and long term core needs and brings the City back to fiscal responsibility.
Principle Three: There must be a commitment to restore civility and fairness to the manner in which City government is conducted and to the manner in which its elected officials interact with City staff and with residents.
Principle Four: There must be a commitment to restore the reputation of High Springs City government as a responsible, caring and fair government. This commitment must encompass relations with government entities at all levels, with City staff, with business owners, with the public-at-large, with the media, and most of all with its own citizens. (Bold and italics in original.)
These four principles were followed by a variety of policy recommendations that Concerned Citizens felt were important considerations to implement its principles. Importantly, this publication did not mention Mr. Williams, Mr. Jamieson, or expressly advocate for their election, the defeat or passage of any candidate or charter amendment and could not be reasonably read to do so.
A second publication/statement by Concerned Citizens was created that included the group’s mission statement and listed “Five Key Areas of Principal Concern.” The Five areas were, in relevant part:
* * *
* * *
* * *
* * *
The amendment would prohibit the City Commission from incurring any debt beyond one million dollars unless first approved by a
2/3 vote (4 out of 5) of the Commission PLUS passage of a referendum by the voters approving the debt, before the loan could be made, ensuring that an immediate response to a major crisis is virtually impossible from a financial perspective.
If the amendment is approved, it has the potential to make debt consolidation and other financial planning tools less available for the City since governmental entities and financial institutions would have no organization with which they could deal to finish a transaction. Some say the cost of funds for the City could rise dramatically. Long-range planning concerns were not considered by the Commission in any detail, and they should be carefully explored by the citizens before election day when considering this amendment.
(Bold and italics in original.)
The Five Principals were posted on the group’s Facebook page and also distributed as a paper document at a candidate’s forum conducted in High Springs shortly prior to the November 6, 2012, election. Notably, concern 5 was a reasonable analysis of the charter amendment and only endeavored to explain the charter amendment, its potential effects and things that should be considered by a voter when voting on this amendment.
Importantly, this second publication does not expressly advocate
for or against any candidate or for or against the charter amendment. Moreover, paragraph 5 could not be reasonably read to expressly advocate for or against any candidate or the charter amendment. The italicized portion of paragraph 5 only describes the amendment’s method for limiting debt by subjecting such a decision to two votes and further stating the group’s belief that such restrictions limit the city commission’s ability to act.
Nowhere in this language does the group indicate how a person should vote regarding the ballot referendum on the charter amendment.
Unfortunately, Mr. Barnas read item 5 above and deemed it to be express advocacy opposing the pending referendum on the proposal to amend the City of High Springs charter. Mr. Barnas' complaint affirmatively accuses Ms. Yeago, on behalf of the Concerned Citizens group, with expressly advocating the defeat of the charter amendment. As indicated, this single reference by Concerned Citizens to the charter amendment in its many publications was fair comment on the amendment and did not expressly advocate for its passage or defeat.
The Concerned Citizens’ statement that included item 5 above also contained the following group description/request for
support:
Concerned Citizens for a Better High Springs is a nonpartisan, nonpolitical grassroots citizens’ group and, pursuant to Florida
Statute, section 106.011, does not qualify as either a political committee or an electioneering communications organization.
We encourage local residents, business owners and others invested in and supportive of our goals to sign on to show public support for this effort by email at hscitizens@gmail.com or “Liking” the group at http://tinyurl.com/bosiqm3.
As indicated earlier, Ms. Yeago drafted these statements in order to describe the group as nonpartisan and nonpolitical, seek support and make it clear that the group was not a political committee engaged in election activities. The language regarding section 106.011 was added to emphasize that the group was not formed to advocate for any campaign or on any election issue. More importantly, no part of these group descriptions/requests for support could reasonably be read as express advocacy regarding a candidate or election issue.
Again, Mr. Barnas, in his complaint, incorrectly asserted that the group’s description/request for support demonstrated its intention and that of Ms. Yeago to thwart the law regarding political committees. He also believed that Concerned Citizens had tried to hide its “advocacy” against the charter amendment by omitting the above mentioned paragaraph 5 from its four principles document. In fact, the paragraph had never been part of the group’s four principles and had only been contained in its “Five Key Areas of Principal Concern.”
Mr. Barnas did not inquire or make any investigation regarding these documents but assumed bad intent on the part of Concerned Citizens and, more specifically, Ms. Yeago. Such a failure to investigate these statements and documents constitutes reckless disregard for the truth of the allegations made by Mr. Barnas in his FEC complaint.
Concerned Citizens’ newspaper advertisement published on November 1, 2012, contained a list of its supporters including the names of Tom Hewlett and Linda Hewlett. During the run-up to the election, the Hewletts made two 4' by 4' posters stating “Vote No” in large letters which they prominently displayed at the High Springs voting precincts on election day, November 6, 2012. One of these posters was introduced into evidence but the other poster had been destroyed. The uncontested evidence demonstrated that the Hewletts created these signs in their
private capacity as voters in High Springs and without the assistance or cooperation of Concerned Citizens.
Mr. Barnas testified he saw a large “Vote No” sign that included Concerned Citizens’ identification affixed from holes in its corners to a fence at a High Springs voting precinct on Election Day November 6, 2012. Other than his testimony,
Mr. Barnas presented no evidence or witnesses that the signs he described had ever existed. However, the evidence demonstrated that the Hewlett signs were the only large “Vote No” signs at the precinct. Moreover, the signs, contrary to Mr. Barnas’ claim at hearing, bore no marking or legend that linked it to Concerned Citizens and his testimony to the contrary on this point was not credible.
In his complaint against Ms. Yeago, Mr. Barnas alleged that Concerned Citizens had endorsed or prepared two large, four- foot by four-foot signs which said “Vote No” and which signs contained the appropriate disclaimer at the bottom that would be required by a political committee if publishing such a statement or sign. Mr. Barnas did not make any inquiries regarding these signs and did not make any inquiries of Concerned Citizens,
Ms. Yeago or the Hewletts.
Based on private political activities of people who were also supporters of Concerned Citizens, Mr. Barnas inferred, without evidence, that Concerned Citizens was expressly
advocating defeat of the charter amendment and had spent in excess of $500 in doing so. As such, he failed to distinguish between private activities of individuals who also are members or supporters of various other political and nonpolitical organizations. Mr. Barnas did not inquire of these people if they were speaking for Concerned Citizens or any other organization when they campaigned against the charter amendment. He simply, without evidence, concluded that they spoke for Concerned Citizens and in so doing made false allegations in his complaint against Ms. Yeago. Based on these facts, such failure to investigate the facts surrounding these private political actions constitutes reckless disregard for the truth of the allegations he made against Ms. Yeago in his FEC complaint by attributing the private political activities of others to her or Concerned Citizens.
Mr. Barnas was determined to file a complaint with FEC against Concerned Citizens as an organization because he believed it should comply with chapter 106, Florida Statutes, to assure a “fair playing field” in future elections. It was unclear what “unfairness” he saw in Concerned Citizens’ activities. His intent was to file against Concerned Citizens as a group and silence its activities.
However, after inquiry of FEC staff about how to make a complaint against Concerned Citizens, he concluded that
complaints must be made against responsible persons in an unincorporated organization and not the organization itself. He believed that he must identify at least two responsible persons in the complaint; and therefore, filed the complaint against Sharon Yeago as the “Person Against Whom Complaint is Brought” and naming Linda Jones as her co-conspirator, as well as listing Concerned Citizens’ failure to register as a political committee, to name a registered agent and registered treasurer, and to file required reports as the violations.
The Barnas’ complaint stated, in part:
The complaint is that a group of many individual [sic] formed an organization/PC, to defeat the ballot issue and also support and support [sic] the election of Byran Williams and Scott Jamison [sic]. They set up a “steering committee” (please note they do use the word committee) to write their goals and positions and called them “principles.” I feel this organization used the term “steering committee’, [sic] but was actually a PC that would conform to Florida Statute [sic] as defined in 106.011(a)(1)(c).
Mr. Barnas claimed in testimony that Linda Jones publicly identified herself as a member of the Concerned Citizens’ steering committee in a High Springs City Commission meeting conducted in March 2013, and thereby provided him with a second person to name in his FEC complaint. However, the evidence demonstrated that Mr. Barnas was aware of whom, including Ms. Jones, the members of the Concerned Citizens’
steering committee were before the November election in 2012, and well before the meeting in 2013. In fact, the evidence showed that the likely motive for filing the underlying FEC complaint was that Mr. Barnas was called a “fool” by someone he thought was a member of Concerned Citizens and thereby decided to file an FEC complaint against the offending group, selecting April Fools’ Day as the date to mail his complaint to the FEC.
Ms. Yeago was simply a means to an end, enabling
Mr. Barnas to file an FEC complaint against an organization who he felt opposed something he favored. However, by Mr. Barnas using Ms. Yeago as a means to an end in his FEC complaint, Ms. Yeago was compelled to hire counsel and vigorously defend against the complaint’s allegations in order to protect her professional reputation as an ethical person. Towards that end, Ms. Yeago hired Mr. Regensdorf under an agreement for an hourly fee capped at $505.00 which he would receive only if awarded such fees and costs for defending the underlying FEC complaint and consequent litigation establishing entitlement to such fees and costs.
Unknown to Mr. Barnas, Ms. Yeago’s lawyer filed a notice of appearance in the underlying action with FEC on April 26, 2013, but did not serve a copy on Mr. Barnas.
Ms. Yeago, through her attorney, filed a response to the complaint in the underlying action. For reasons that are not clear in the record, Mr. Barnas did not know that Ms. Yeago had
filed a response to his complaint until October 28, 2013.
On June 10, 2013, FEC’s executive director issued a notice that Mr. Barnas’ complaint was facially insufficient because the allegations did not establish that Concerned Citizens had expended in excess of $500 in express advocacy during the election. FEC’s notice informed Mr. Barnas that he was entitled to supply additional information to support his complaint.
On June 28, 2013, FEC issued a statement that the case was closed.
On July 10, 2013, Ms. Yeago filed the petition for fees and costs that is the subject of this proceeding, but did not serve a copy on Mr. Barnas. Again, for reasons that are not clear in the record, prior to October 28, 2013, Mr. Barnas did not know that Ms. Yeago had filed a petition for fees and costs..
By notice dated October 24, 2013, FEC notified Ms. Yeago and Mr. Barnas that a hearing on Ms. Yeago’s fee
petition had been set for November 13, 2013. Mr. Barnas received this notice on October 28, 2013, and elected not to ask for a continuance of the hearing date. As indicated, on the same date, FEC supplied Mr. Barnas copies of Ms. Yeago’s filings in the case.2/
Mr. Barnas filed a response to Ms. Yeago’s fee and cost petition. Mr. Barnas was also afforded an opportunity to present all his evidence regarding a reasonable basis for filing his FEC
complaint at both the FEC hearing and the evidentiary hearing in this case.3/
The billable records for Ms. Yeago’s attorney listed
110.9 hours of time spent on this matter for which Ms. Yeago’s attorney admits 102.8 hours of attorney time were reasonably attributable towards defending both the underlying FEC complaint and seeking fees for that defense. A review of those records confirms that 102.8 hours of time is a reasonable amount of hours to expend on this action. Additionally, a second partial day of hearing, consisting of 3.1 hours, was held in this cause, resulting in total hours of 105.9. However, other than the 3.1 hours spent in hearing on the second day, there was no evidence regarding the amount of time Ms. Yeago’s attorney spent on preparation of later filings in this action. Therefore, no award for that time is made in this matter. Further, the expert evidence demonstrated that an hourly fee for an experienced litigator who is not a practitioner before the FEC of $400.00 was reasonable for litigation of this type. Finally, the evidence demonstrated that reasonable costs in the amount of $4,516.95 were incurred by Ms. Yeago in defending the underlying action and in litigating this fee action. Therefore, Ms. Yeago is entitled to a total of $42,360.00 in attorney’s fees and $4,516.95 in costs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See §§ 120.569 and 120.57(1) Fla. Stat. (2013).
Section 106.265(6), Florida Statutes (2012) and Florida Administrative Code Rule 2B-1.0045 provide for an award of attorney’s fees and costs in certain FEC actions. Section 106.265(6) provides in part:
(6) In any case in which the commission determines that a person has filed a complaint against another person with a malicious intent to injure the reputation of the person complained against 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 chapter or chapter 104, the complainant shall be liable for costs and 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.
Further, Florida Administrative Code Rule 2B-1.0045(1) provides:
(1) If the Commission determines that a complainant has filed a complaint against a respondent with a malicious intent to injure the reputation of such respondent 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 chapter 104 or 106, F.S., the complainant shall be liable for costs and reasonable attorney's fees incurred in the defense of the complaint, including the costs and reasonable attorney's fees incurred in proving entitlement to and the amount of costs and fees.
As the party asserting entitlement, Respondent has the burden to prove “by clear and convincing evidence” that an award of attorney’s fees and costs is appropriate pursuant to section 106.265(6) and rule 2B-1.0045(4). See Dep’t of Banking & Fin. v.
Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996); Dep’t of
Transp. v. J.W.C. Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).
In Brown v. Fla. Commission on Ethics, 969 So. 2d 553,
560 (Fla. 1st DCA 2007), the court determined that the actual malice standard of New York Times Co. v. Sullivan, 376 U.S. 254,
84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) does not apply to fees sought pursuant to section 112.317, now 106.265. The court established that the elements of a claim by a public official for attorney’s fees are: (a) the complaint was made with a malicious intent to injure the official’s reputation; (b) the person filing the complaint knew that the statements about the official were false or made the statements about the official with reckless disregard for the truth; and (c) the statements were material. The Brown court emphasized that even without the Sullivan standard, “[t]he statute sets a very high bar for recovery of fees.” Id. at 560. However, that bar is met where, as here, the
person filing an ethics complaint acts with conscious indifference to the truth of that complaint. Id.
Under Brown, it is clear that ethics complaints which
allege facts insufficient to prove the elements of a violation of an ethics statute will not automatically render a complaint baseless or wholly untenable. Moreover, it is clear that an award of attorney’s fees is not warranted in every situation wherein an ethics complaint is dismissed for lack of probable cause.
However, in this case, the evidence demonstrated that Mr. Barnas maliciously filed the complaint in order to silence those whom he perceived as opposing him and the issues that were important to him. Additionally, the evidence showed that
Mr. Barnas maintained a conscious indifference to the truth or falsity of his allegations when he failed to reasonably investigate or inquire about Concerned Citizens, Ms. Yeago’s relationship to Concerned Citizens, the private actions of supporters of Concerned Citizens or any of the various documents/statements attributable to Concerned Citizens. More importantly, such indifference was demonstrated when he cut and pasted portions of a Facebook page/blog from a person advocating for a candidate while leaving out Concerned Citizens’ response to the post which clearly demonstrated the groups’ intention not to
be a political committee. As such Ms. Yeago is entitled to an award of attorney’s fees and costs pursuant to section 106.265.
Based on the expert evidence, a fee of $400 per hour is a reasonable hourly fee for the services of Mr. Paul R. Regensdorf, the attorney who represented Ms. Yeago in this matter. Further the amount of 105.9 hours of time expended by Mr. Regensdorf in this matter is reasonable. Finally, the evidence demonstrated that reasonable costs in the amount of
$4,516.95 were incurred by Ms. Yeago in defending the underlying action and in litigating this fee action. Therefore, Ms. Yeago is entitled to an award of $42,360.00 in attorney’s fees and
$4,516.95 in costs that were incurred in this matter.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order granting the Petition for fees and costs and awarding the amounts established above to Ms. Yeago.
DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida.
S
DIANE CLEAVINGER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2014.
ENDNOTES
1/ The parties are identified as required by Florida Administrative Code Rule 2B-1.0045(4): “(4) The parties to the claim shall be the respondent and the complainant.”
2/ Rule 2B-1.0045(2) provides that service of the petition for fees shall be accomplished by the Commission and provides, “The Commission clerk shall forward a copy of the petition to the complainant by certified mail . . . .” Although such service was extremely slow, service was accomplished by the FEC on
October 28, 2013, with no prejudice to Mr. Barnas demonstrated by the evidence.
3/ Mr. Barnas’ evidence remained largely the same as when he filed his complaint. However, Mr. Barnas presented one additional witness who, in very vague testimony testified that an unknown man “with gorgeous eyes” gave her literature regarding Concerned Citizens and that he told her Concerned Citizens opposed the charter amendment. At the time of the complaint, this information was not known to Mr. Barnas. However, the testimony regarding this person are both vague and hearsay and not reliable to establish any facts regarding the legitimacy of Mr. Barnas’ claims in his underlying FEC complaint.
COPIES FURNISHED:
Paul R. Regensdorf, Esquire Holland and Knight LLP
50 North Laura Street Jacksonville, Florida 32202 (eServed)
Amy McKeever Toman, Esquire Florida Elections Commission Collins Building, Suite 224
107 West Gaines Street Tallahassee, Florida 32399-1050
Joseph W. Little, Esquire 3731 Northwest 13th Place Gainesville, Florida 32605 (eServed)
Donna Malphurs, Agency Clerk Florida Elections Commission Collins Building, Suite 224
107 West Gaines Street Tallahassee, Florida 32399-1050 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 24, 2015 | Agency Final Order | |
| Aug. 28, 2014 | Recommended Order | Evidence showed Petitioner failed to inquire about allegations in FEC complaint and attributed private political activities to Respondent and group to which she supported. Fees and cost awarded. |
