STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA CHAPIN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7002EC

) COMPLAINT NO. 91-63

MARVIN COUCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 11, 1992, in Orlando, Florida.

APPEARANCES

For Petitioner: Joseph L. Passiatore

Assistant Orange County Attorney Orange County Administration Center Post Office Box 1393

Orlando, Florida 32802-1393

For Respondent: William J. McLeod, Esquire

McLeod, McLeod & McLeod, P.A. Post Office Drawer 950

48 E. Main Street Apopka, Florida 32703

STATEMENT OF THE ISSUES

Whether Marvin Couch, the Respondent, should be required to pay attorney's fees and costs to Linda Chapin, the Petitioner, pursuant to Section 112.317(8), Florida Statutes?

PRELIMINARY STATEMENT

On or about May 13, 1991, a Complaint was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). The Complaint was filed by the Respondent, Marvin Couch, and contained allegations of misconduct by Linda Chapin, the Petitioner in this case. After a review of the Complaint against Ms. Chapin, the Commission dismissed the Complaint.

On or about October 15, 1991, Ms. Chapin filed a pleading titled "Respondent Linda W. Chapin's Petition for Attorney's Fees and Costs" with the Commission. A copy of the Petition was sent to Mr. Couch by letter dated October 16, 1991.

By letter dated October 31, 1991, the Commission referred this matter to the Division of Administrative Hearings and, in accordance with Rule 34-5.029, Florida Administrative Code, requested that a hearing be conducted by the Division of Administrative Hearings.

Prior to the final hearing the parties each filed a Prehearing Statement. The parties stipulated to certain facts set out in their Prehearing Statements. Those facts have been accepted in this Recommended Order and have been identified as "Stipulated Facts".

At the formal hearing Ms. Chapin presented the testimony of Joseph A. Berenis, Mr. Couch, Douglas Guetzloe, Thomas J. Wilkes, Joseph Passiatore and Harry Stewart. Ms. Chapin also offered thirteen exhibits which were accepted into evidence. Mr. Couch testified on his own behalf. Mr. Couch offered no exhibits.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

In Mr. Couch's proposed recommended order it has been suggested that Mr.

Couch is entitled to an award of attorney's fees in this matter pursuant to Section 57.105(2), Florida Statutes. Section 57.105(2), Florida Statutes, has no application in this proceeding.

FINDINGS OF FACT

1. Linda Chapin's Public Office.

   
   

   1. Linda Chapin was elected to the Orange County Commission in November, 1990.

      
      

   2. Ms. Chapin ran for office as a Democrat.

      
      

   3. At all times relevant to this proceeding, Ms. Chapin served as Chairman of the Orange County Commission.

      
      

   4. Ms. Chapin was sworn in as a member of the Orlando-Orange County Expressway Authority (hereinafter referred to as the "Authority") on December 19, 1990.

      
      

   5. Ms. Chapin was automatically considered to be an ex-officio member of the Authority due to her position as Chairman of the Orange County Commission.

      
      

2. Ms. Chapin's Treatment of Her Son's Employment with Greiner Engineering.

   
   

   1. In a letter dated December 18, 1990, Ms. Chapin informed the Chairman of the Authority that her son, Andrew Chapin, was employed by Greiner Engineering (hereinafter referred to as "Greiner"), as a project coordinator on the "Central Connector Interchange at I-4", a project of the Authority.

      
      

   2. In the December 18, 1990, letter to the Chairman of the Authority Ms. Chapin informed the Chairman that she had requested an opinion of the Orange County Attorney as to whether her son's employment and her public office might create any conflict of interest. A copy of an opinion from Harry A. Stewart,

      then Orange County Attorney, indicating no conflict of interest, was attached to the letter.

      
      

   3. The December 18, 1990, letter and the opinion of the Orange County Attorney were provided to the Authority at the meeting of the Authority held on December 19, 1990.

      
      

   4. Approval of Greiner for the project referenced by Ms. Chapin in her December 18, 1990, letter to the Chairman of the Authority had been approved by the Authority at an August 22, 1990, meeting of the Authority. Greiner was therefore approved by the Authority before Ms. Chapin was elected to the Orange County Commission and before she became an ex-officio member of the Authority. (Stipulated Fact).

      
      

   5. Ms. Chapin did not vote to retain the services of Greiner while sitting as a member of the Authority between December 19, 1990, and May 22, 1991 or at any other time. (Stipulated Fact).

      
      

   6. Ms. Chapin has voted on the payment of invoices submitted by Greiner to the Authority. (Stipulated Fact).

      
      

   7. Andrew Chapin was an employee of Greiner. Andrew Chapin did not, however, hold any position of control of Greiner. Nor did he own a material interest in Greiner.

      
      

3. The May 9, 1991, Newspaper Article.

   
   

   1. On May 9, 1991, an article was printed in The Orlando Sentinel (hereinafter referred to as the "May 9th Article"). (Stipulated Fact). The article was printed under the title "Pignone's interest in connector questioned." The article, as the title suggests, discussed whether another member of the Orange County Commission, Fran Pignone, had a conflict of interest with an Orange County road project.

      
      

   2. The May 9th Article included the following statement concerning Ms. Chapin:

      
      

      And Chapin noted in her letter that she tries to "tread very carefully" because she sits on the agency proposing to build the road and her son Andrew works for an engineering firm that is designing one of the interchanges.

      
      

   3. Mr. Couch read the May 9th Article. Based upon the May 9th Article, Mr. Couch believed that Ms. Chapin may have been involved in some impropriety as a member of the Authority. (Stipulated Fact).

      
      

4. Mr. Couch's Ethics Complaint.

   
   

   1. After reading the May 9th Article, Mr. Couch telephoned the Florida Commission on Ethics and requested complaint forms.

      
      

   2. On May 13, 1991, Mr. Couch filed a Complaint against Ms. Chapin (hereinafter referred to as the "Complaint") with the Florida Commission on Ethics. (Stipulated Fact). The Complaint contained the following allegations:

      Chairman Chapin violated Part III, Chapter 112, Florida Statutes by serving on the Orlando/Orange County Expressway Authority and voting to retain the services of an engineering company that employs her son as

      admitted by Chairman Chapin in Orlando Sentinel dated week of May 6-10th.

      
      

   3. The allegations in the Complaint were based solely upon the information contained in the May 9th Article. In particular, Mr. Couch relied upon the paragraph of the May 9th Article quoted in finding of fact 14.

      
      

   4. The May 9th Article does not support the allegations contained in the Complaint. The May 9th Article does not indicate that Ms. Chapin voted to retain Greiner. The May 9th Article suggests just the opposite. It is stated in the article that Ms. Chapin "tries to 'tread very carefully' . . ." because of her son's work for Greiner.

      
      

   5. At the time the Complaint was filed, Mr. Couch did not know when Ms. Chapin had become a member of the Authority or when Greiner was retained by the Authority. (Stipulated Fact).

      
      

   6. Although Mr. Couch was aware generally of when Ms. Chapin was elected to the Orange County Commission, Mr. Couch was unaware at the time he filed the Complaint when Greiner had been retained by the Authority.

      
      

   7. Mr. Couch made no effort to obtain information to substantiate his Complaint other than the May 9th Article. (Stipulated Fact).

      
      

5. Mr. Couch's Press Release.

   
   

   1. Simultaneously with the filing of the Complaint, a document (hereinafter referred to as the "Press Release") was provided to several radio and television stations in Orange County, weekly newspapers and The Orlando Sentinel:

      
      

      1. At the top of the Press Release, the following heading appeared: "Orange County Republican Executive Committee". The heading was followed by an address and telephone number.

         
         

      2. It was indicated that Mr. Couch should be contacted "for further information" and his telephone number was listed.

         
         

      3. The Press Release was titled "Republican Party Files Ethics Complaints Against Chapin/Pignone."

         
         

      4. The Press Release indicated that Mr. Couch had filed complaints with the Florida Commission on Ethics against Ms. Chapin (and Ms. Pignone) and indicated:

         Orange County Chairman Linda Chapin is being charged with violating the Government in the Sunshine law by meeting with fellow Commissioner Fran Pignone privately and allegedly

         discussing county business and by serving on the Orlando/Orange County Expressway Authority and voting to retain the services of an engineering company that employs her son.

         
         

      5. The Press Release contained the following quoted statements from Mr. Couch:

      
      

      "These commissioners have betrayed the public trust by meeting behind closed doors without the benefit of their having either the public or the press present to protect our interests," stated Couch. "Linda Chapin voting for the firm that employs her son represents the very worst type of backroom, financial impropriety I have seen in some time," Couch continued.

      "We need a full and public investigation of these activities," Couch concluded.

      
      

   2. Although Mr. Couch appeared to have a difficult time during the final hearing remembering how the Press Release came into being, his deposition testimony and other evidence during the final hearing indicates that he created the first draft of the Press Release on a personal computer.

      
      

   3. The Press Release was then provided to a public relations consultant and political ally, Douglas M. Guetzloe, of Advantage Consultants, Inc. Mr. Guetzloe finalized and ultimately distributed the Press Release.

      
      

   4. The precise quotes from Mr. Couch contained in the Press Release were created by Mr. Guetzloe but were based upon general comments from Mr. Couch and were ultimately approved by Mr. Couch.

      
      

   5. The Press Release was prepared at the request, direction and with the approval of Mr. Couch.

      
      

   6. Mr. Couch was provided a copy of the Press Release for review before it was distributed. Mr. Couch approved the Press Release or it would not have been distributed.

      
      

   7. Mr. Couch directed that his name and telephone number be included on the Press Release.

      
      

   8. Mr. Couch also disclosed the filing of the Complaint with television stations (Channels 2, 6 and 9) in Orange County, radio station WDBO and The Orlando Sentinel.

      
      

6. Mr. Couch's Purpose in Filing the Complaint.

   
   

   1. Mr. Couch testified that he filed the Complaint against Ms. Chapin because he was a concerned citizen who just wanted the proper authorities to check out Ms. Chapin's actions with regard to Greiner and determine if there were any improprieties. This testimony is not credible.

   2. Mr. Couch is the Chairman of the Republican Executive Committee in Orange County. He was elected to that position in February, 1991. Mr. Couch has been a member of the Republican Executive Committee since 1988.

      
      

   3. As characterized by Mr. Guetzloe, Mr. Couch was playing "adversarial politics". Mr. Couch, a Republican, filed the Complaint and issued the Press Release in an effort to criticize a member of the opposition party, a Democrat. Mr. Couch used the Commission for his political purposes, charging Ms. Chapin had committed a violation of Florida law, when there was no basis for his allegations.

      
      

   4. Mr. Couch was motivated because of his belief that Ms. Chapin was "getting too big for her britches". He believed that "something had to be done about it."

      
      

   5. Mr. Couch's actions evidenced a malicious intent to injure the reputation of Ms. Chapin.

      
      

   6. The Complaint was frivolous and without basis in law or fact.

      
      

7. Legal Representation of Ms. Chapin and Disposition of the Complaint.

   
   

   1. The Orange County Attorney's office represented Ms. Chapin before the Commission. There was no written agreement between Ms. Chapin and Orange County concerning her representation by the Orange County Attorney.

      
      

   2. Mr. Wilkes, the Orange County Attorney at the time the Complaint was filed, determined that the charges against Ms. Chapin in the Complaint arose out of her position on the Orange County Commission. Mr. Wilkes made this determination based upon the fact that Ms. Chapin served on the Authority by virtue of Section 348.753, Florida Statutes, which provides that the Chairman of the Orange County Commission will serve as an ex officio member of the Authority. Mr. Wilkes also concluded that the actions complained of in the Complaint were actions which would have been taken in Ms. Chapin's official position.

      
      

   3. Based upon the conclusions described in finding of fact 38, Mr. Wilkes concluded that Ms. Chapin was entitled to representation by his office pursuant to Section 706 of the Orange County Code. Ms. Chapin made no request for this representation. Mr. Wilkes' conclusion was reasonable and, although Mr. Couch has questioned the propriety of Orange County providing representation for Ms. Chapin, the evidence on this question was unrefuted.

      
      

   4. On or about July 16, 1991, after Ms. Chapin received a copy of the Complaint, a Motion for Summary Judgment and Attorney Fees was prepared and filed with the Commission by the Orange County Attorney's Office.

      
      

   5. On September 18, 1991, the Commission entered a Public Report and Order Dismissing Complaint. Pursuant to this Order the Complaint was determined to be legally deficient and was dismissed.

      
      

   6. A Petition for Attorney's Fees and Costs dated October 14, 1991, was filed by the Orange County Attorney's Office on behalf of Ms. Chapin.

      
      

8. Cost and Attorney's Fees Incurred.

1. The Orange County Attorney at the time, Thomas J. Wilkes, and Joseph

   L. Passiatore, an Assistant Orange County Attorney, represented Ms. Chapin before the Commission.

   
   

2. Ms. Chapin's attorneys performed research (factual and legal), reviewed and initiated correspondence, reviewed orders of the Commission, took the deposition of Mr. Couch and prepared and participated in the final hearing of this matter.

   
   

3. Mr. Wilkes invested 22.9 hours through October 14, 1991, and 1 hour subsequent to October 14, 1991, representing Ms. Chapin in this matter.

   
   

4. Through September 20, 1991, the date the order dismissing the Complaint was received, Mr. Passiatore invested 25 hours representing Ms. Chapin in this matter.

   
   

5. Subsequent to September 20, 1991, Mr. Passiatore spent 20.5 hours through January 6, 1992, representing Ms. Chapin in this matter (preparing a draft of the Petition, conducting discovery and preparing for the final hearing of this case).

   
   

6. Between January 6, 1992, and the date of the final hearing of this case, Mr. Passiatore spent 20 hours preparing for the final hearing.

   
   

7. Ms. Chapin is seeking reimbursement for 22.9 hours of Mr. Wilkes' services and 45.5 hours of Mr. Passiatore's services. The 22.9 hours spent by Mr. Wilkes and the 45.5 hours spent by Mr. Passiatore in the defense of Ms. Chapin constituted reasonable amounts of time.

   
   

8. Motions for summary judgement are neither specifically authorized by the Commission's rules nor prohibited. The filing of the motion for summary judgement was, however, prudent and reasonable in light of the frivolous nature of the Complaint and the potential harm to Ms. Chapin's reputation caused by the issuance of the Press Release.

   
   

9. A reasonable hourly rate for Mr. Wilkes' and Mr. Passiatore's services to Ms. Chapin is $175.00 per hour.

   
   

10. Based upon an hourly rate of $175.00 per hour, the 22.9 hours invested by Mr. Wilkes and the 45.5 hours invested by Mr. Passiatore would result in total attorney's fees of $11,970.00.

    
    

11. Mr. Wilkes and Mr. Passiatore were not paid $175.00 an hour for their services. They received their normal salaries as the Orange County Attorney and an Assistant Orange County Attorney, respectively.

    
    

12. Mr. Wilkes and Mr. Passiatore were paid their salaries during the time that they represented Ms. Chapin, and all costs associated with this matter were paid, out of the Orange County General Fund. Any recovery of attorney's fees and costs in this case will deposited in the Orange County General Fund.

    
    

13. The evidence failed to prove what Mr. Wilkes' and Mr. Passiatore's salaries were.

    
    

14. As of February 11, 1992, reasonable costs of $661.90 had been incurred by the Orange County Attorney's Office in defense of Ms. Chapin.

15. If Ms. Chapin had been determined to have violated the law as alleged in the Complaint, she would have been required to reimburse Orange County for the cost incurred by Orange County in defending her.

    
    

16. The evidence failed to prove that, at the time of the final hearing of this matter, Ms. Chapin was liable for or subject to any amount of attorney's fees or costs.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

17. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).

    
    

    1. Burden of Proof.

       
       

18. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino V. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977). In this proceeding it is Ms. Chapin that is asserting the affirmative. Therefore, the burden of proving that Mr. Couch should be required to pay attorney's fees and costs, and the amount thereof, was on Ms. Chapin. See Rule 34-5.029(3), Florida Administrative Code.

    
    

    1. Constitutional Issues.

       
       

19. The Respondent has cited several constitutional provisions in a pleading titled "Respondent's Closing Argument." It does not appear that the Respondent is asserting that imposition of attorney's fees and costs pursuant to Section 112.317(8), Florida Statutes, would violate these constitutional provisions. It is noted, however, that if the Respondent is asserting that imposition of attorney's fees and costs may constitute any constitutional violation, the undersigned has no jurisdiction over such an issue. Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund,

    427 So.2d 153 (Fla. 1982); Long v. Department of Administration, 428 So.2d 688 (Fla. 1st DCA 1983); and Cook v. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

    
    

    1. The Requirements of Section 112.317(8), Florida Statutes.

    
    

20. Section 112.317(8), Florida Statutes, authorizes the Commission to award attorney's fees and costs to any person complained against:

    
    

    (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 or such officer or employee and in which such complaint is found to be frivolous and without basis in law or fact, the complainant shall

    be liable for costs plus reasonable attorney's fees incurred by the person complained against

    . . . .

    
    

    See also Rule 34-5.029, Florida Administrative Code. In order to be entitled to payment for attorney's fees and costs it must be proved: (1) that the complaint was made with a malicious intent to injure the reputation of the public officer or employee; and (2) that the complaint was frivolous and without basis in law or fact. If these two facts are proved to exist, an award of reasonable attorney's fees and costs "incurred by the person complained against" is to be ordered.

    
    

21. The Complaint was made with a malicious intent to injure Ms. Chapin's reputation. In determining whether a complaint has been filed with malicious intent, Rule 34-5.029(3), Florida Administrative Code, provides the following:

    
    

    . . . . "Malicious intent to injure the reputation" may be proven by evidence showing ill will or hostility as well as by evidence showing that the complainant intended to bring discredit upon the name or character of the respondent by filing such complaint with knowledge that the complaint contained one

    or more false allegations or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics for Public Officers and Employees. Such reckless disregard exists where the complainant entertained serious doubts as to the truth or falsity of the allegations, where the complainant imagined or fabricated the allegations, or where the complainant filed an unverified anonymous tip or where there are obvious reasons to doubt the veracity of the information or that of the source of the information. [Emphasis added].

    
    

22. The evidence in this case proved that the allegations against Ms. Chapin written in the Complaint by Mr. Couch were not supported by anything other than Mr. Couch's imagination and conjecture. There was no information in the May 9th Article, the sole basis for filing the Complaint, that supports Mr. Couch's assertion that Ms. Chapin was guilty of "voting to retain the services of an engineering company that employs her son . . . ." Nor was there any basis for Mr. Couch's allegation that this violation had been "admitted by Chairman Chapin in Orlando Sentinel dated week of May 6-10th." These allegations were mere speculation on the part of Mr. Couch. Mr. Couch made no effort to determine if there was any truth to his conjecture.

    
    

23. Mr. Couch also had no information which would support his conclusion that, had Ms. Chapin in fact voted to retain Greiner, her action constituted a violation of the Ethics Code or any other Florida law. In fact, Mr. Couch had no knowledge of Andrew Chapin's position with Greiner or whether a law existed which prohibited Ms. Chapin from voting on matters concerning Greiner because of her son's position with Greiner.

    
    

24. Mr. Couch's actions in causing the Press Release to be distributed support a conclusion that Mr. Couch was interested in damaging Ms. Chapin's reputation. Mr. Couch's actions were not the actions of a person merely trying

    to get the appropriate authorities to look into the matter to determine whether a violation occurred. If that were Mr. Couch's only intent, the filing of the Complaint would have been sufficient to accomplish his alleged goal. Reporting the false violations of law of Ms. Chapin to the press could only serve to damage Ms. Chapin's reputation. Mr. Couch wanted to discredit Ms. Chapin's political reputation and to embarrass her. That was his motive in this matter and constituted malicious intent.

    
    

25. The Complaint was frivolous and without basis in law or fact. The evidence proved that the specific acts alleged by Mr. Couch did not occur. Ms. Chapin did not vote to retain the services of Greiner. The evidence also proved that there was nothing upon which Mr. Couch could have relied to support his allegations against Ms. Chapin. Finally, the evidence proved that Andrew Chapin's position at Greiner was not such that Ms. Chapin would have violated Chapter 112, Florida Statutes, even if she had voted to retain Greiner's services. Therefore, the allegations raised by Mr. Couch were frivolous and without any basis in law or fact.

    
    

    Mr. Couch's Arguments.

    
    

26. Mr. Couch has suggested that no fees or costs should be assessed against him for a number of reasons. First, it has been argued that a finding that Mr. Couch's actions were malicious would:

    
    

    . . . establish a very dangerous precedent that would operate to dilute and chill one of the citizens' most fundamental rights, to petition the government for redress of grievances. A citizen would have to go to great expense in time and money and making himself familiar with Time v. Sullivan (citations omitted) before filing his complaint. Such a requirement would be an impermissible restriction on the citizens' right to petition their government for redress and would be highly dangerous to our representative form of government.

    
    

    A similar argument was made and rejected in Wright v. Acierno, 437 So.2d 242 (Fla. 5th DCA). In Wright the court responded to this type of argument as follows:

    
    

    Appellees contend that an allowance of fees to the city officials here would inhibit actions by citizens against their public officials when the citizens have a valid cause to pursue in court. Appellees' logic

    fails, however, and their fears are misplaced, because it is not the intent of the statute to punish valid causes (or even invalid causes where there is at least an arguable issue).

    The statute intends only to impose a penalty on those who bring completely frivolous and baseless actions and thereby abuse both their opponents and the judicial system.

    Wright, 437 So.2d at 244. These conclusions apply equally in this case.

    
    

27. Mr. Couch as also argued that there was no need to incur any attorney's fees or costs on behalf of Ms. Chapin because the Complaint was determined to be legally insufficient. Mr. Couch suggest, therefore, that Ms. Chapin had no reason to defend herself. The evidence failed to support this assertion. Ms. Chapin was served a copy of the Complaint and informed that it had been filed with the Commission for consideration. Ms. Chapin, as a result of Mr. Couch's actions, was also accused of violating the laws of the State of Florida in the media. To accept Mr. Couch's position would require a conclusion that Ms. Chapin should have ignored these allegations and done nothing until the Commission decided what action to take on the Complaint. Such a conclusion would defy logic. The testimony of Mr. Wilkes and Mr. Stewart supports the conclusion that the actions taken by counsel for Ms. Chapin were reasonable and necessary.

    
    

28. Mr. Couch has also argued that a complaint filed before the Commission "is more analogous to a request to investigate a perceived situation or impropriety than a complaint in a lawsuit." Mr. Couch has cited no authority to support such a conclusion. Mr. Couch also ignores the fact that he did more than merely request an investigation. Mr. Couch suggested in his Complaint and before the media that Ms. Chapin had in fact violated the law and alleged specific unfounded acts in support of his allegation.

    
    

29. Mr. Couch has also attempted to characterize Ms. Chapin's and the Orange County Attorney's actions as an attempt to "not only crush Marvin Couch, but quell future public protests." The evidence in this case fails to support such an allegation. Mr. Couch was not merely a "concerned citizen who happens to be the president of the Orange County Republican Executive Committee" as asserted by Mr. Couch. The evidence proved just the opposite. Mr. Couch's actions in accusing Ms. Chapin of specific unfounded illegal acts and the release of those charges to the media were without justification and intended to discredit a political opponent.

    
    

30. Finally, Mr. Couch has suggested that "Linda Chapin has improperly caused expenditure of public funds for her own personal benefit in that the County Attorney's office represented her in this proceeding." This issue is not properly before the undersigned. Nor did the evidence in this case support such a conclusion.

    
    

    D. Attorney's Fees and Costs Incurred by Ms. Chapin.

    
    

31. The evidence in this case proved that the time spent on Ms. Chapin's behalf by Mr. Wilkins and Mr. Passiatore was reasonable. The evidence also proved that $175.00 is a reasonable hourly rate for such representation. The amount of the attorney's fees sought in this case total $11,970.00. This amount is reasonable. Finally, the evidence proved that the costs incurred on Ms. Chapin's behalf were reasonable. These conclusions, however, do not resolve the issue of whether attorney's fees and costs should be awarded in this matter.

    
    

32. Although not raised by Mr. Couch, there is a question as to whether an award of attorney's fees and costs in this matter is limited to the actual amount expended by Ms. Chapin or for which Ms. Chapin was liable. If so, no attorney's fees or costs should be awarded because the evidence failed to prove that Ms. Chapin has paid any amount for her representation or that she was liable for the payment of any amount at the time of the final hearing of this matter. If it is concluded that Ms. Chapin may be entitled to an award even

    though she may not have paid any attorney's fees or costs, it must also be decided whether the amount of attorney's fees should be limited to the actual costs of the services of the attorneys who represented Ms. Chapin: their salaries for the hours invested.

    
    

33. The foregoing questions have been answered negatively by the courts in awarding reasonable attorney's fees pursuant to Section 57.105, Florida Statutes. In Wright, supra, the court reversed a lower court decision that city officials who were provided with legal counsel by the City of Winter Park, Florida were not entitled to an award of attorney's fees because they had not actually paid for the services. In Wright it was recognized that the purpose of the statutory provision for an award of attorney's fees under Section 57.105, Florida Statutes, was to "discourage baseless claims, stonewall defenses and sham appeals . . . " and noted that the "legislature had decided to place a price tag on unwarranted and frivolous litigation "

    
    

34. It was also concluded in Wright that the use of the term "shall" in Section 57.105, Florida Statutes (1987):

    
    

    . . . evidences the legislative intention to impose a mandatory penalty in the form of a reasonable attorney's fee once the determination has been made that there was a complete absence of a justiciable issue raised by the losing party. If we are to implement the legislative intent to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney's fees awards on losing parties who engage in these activities, Whitten, supra, the award must be based only on the reasonable value of the services, not on whether or how much the prevailing party has actually paid, or why, in fact, no fee was paid.

    
    

    Wright, 437 So.2d at 244. See also, Couch v. Drew, 554 So.2d 1185 (Fla. 1st DCA 1990).

    
    

35. The difficulty with applying the rationale of the decision in Wright to this matter is that Section 112.317(8), Florida Statutes, the authority for awarding fees and costs in this case, specifically states that the award is for reasonable attorney's fees "incurred by the person complained against." In this matter, it is Ms. Chapin who was the "person complained against" and not Orange County. The statute involved in Wright, Section 57.105, Florida Statutes (1987), provided for an award of "reasonable attorney's fees" and did not specify that the attorney's fees had to be "incurred." Neither of the parties has addressed this issue. Nor has the undersigned found any case directly on point. The undersigned was only able to find two cases involving Section 112.317(8), Florida Statutes: Taunton v. Tapper, 396 So.2d 843 (Fla. 1st DCA 1981); and Malfregeot v. Mobile Home Park Owners and Dealers of Martin County, Inc., 388 So.2d 341 (Fla. 4th DCA 1980). Neither of these cases involved the issue before the undersigned. In both cases, the person against whom the complaint was made apparently represented by retained counsel and not a city or county attorney.

36. Statutes providing for attorney's fees are to be strictly construed. DeRosa v. Shands Teaching Hospital and clinics, Inc., 549 So.2d 1039 (Fla. 1st DCA 1989). Construing Section 112.317(8), Florida Statutes, strictly, it must be concluded that it was Orange County and not Ms. Chapin that "incurred" attorney's fees and costs in this case. To "incur" is "[t]o become liable or subject to." Black's Law Dictionary (Fifth Edition, 1979). Ms. Chapin was contingently liable to Orange County for attorney's fees and costs: had she been found to have violated the Ethics Code as alleged by Mr. Couch she would have been required to reimburse Orange County for her representation. This contingency was no longer a possibility at the time of the final hearing. Therefore, it cannot be said that Ms. Chapin "incurred" any attorney's fee or costs in this matter for which she may be reimbursed.

    
    

37. The same justification for imposing an award of attorney's fees in Wright applies in this case: Mr. Couch's allegations against Ms. Chapin were frivolous and maliciously made in an effort to discredit Ms. Chapin. It cannot be ignored, however, that Section 112.317(8), Florida Statutes, unlike the statutory provision dealt with in Wright, specifically requires that the award of fees and costs be limited to amounts "incurred by the person complained against."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order dismissing

the Petition for Attorney's Fees and Costs be DISMISSED.

DONE and ENTERED this 11th day of May, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1992.

APPENDIX TO RECOMMENDED ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Ms. Chapin's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Mr. Couch's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 2.

2 4.

3 17.

4 41.

5 42.

1. Not relevant to this proceeding.

2. Not supported by the weight of the evidence.

8 37.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101

Tallahassee, Florida 32399-1050

Joseph L. Passiatore

Assistant Orange County Attorney Orange County Administration Center Post Office Box 1393

Orlando, Florida 32802-1393

Marvin Couch

974 Pinelli Street

Orlando, Florida 32803

Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6

Tallahassee, Florida 32302-0006

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AGENCY FINAL ORDER

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BEFORE THE STATE OF FLORIDA

COMMISSION ON ETHICS

In re LINDA CHAPIN,

DOAH Case No. 91-7002EC

Respondent. Complaint No. 91-63 Final Order No. COE 92-13

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FINAL ORDER AWARDING ATTORNEY'S FEES

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on May 11, 1992 by the Division of Administrative Hearings (a copy of which is attached and incorporated by reference). The Hearing Officer recommends that the Commission enter a Final Order dismissing the petition for attorney's fees and costs. Respondent/Petitioner, Linda Chapin, filed exceptions. At the Commission's final consideration of this matter, the Respondent/Petitioner requested that any award be for attorney's fees in the amount of $7,980.

Having reviewed the Recommended Order, the exceptions, and the record of the public hearing of this petition, having considered the arguments of counsel for the Respondent/Petitioner, the arguments of Respondent/Petitioner, and the arguments of the Complainant/Respondent, Marvin Couch, the Commission makes the following findings, conclusions, rulings, and determinations:

Rulings on Exceptions

1. The Respondent/Petitioner excepts to a portion of the Hearing Officer's finding of fact numbered "39" which states that the Respondent/Petitioner made no request for representation of her by the Orange County Attorney's Office regarding the ethics complaint filed against her by the Complainant/Respondent, arguing that such finding is not supported by the evidence. In addition, the Respondent/Petitioner submits that such finding should be rejected and that the Commission make a finding of fact to the effect that the Respondent/Petitioner did request such representation.

   
   

   The exception is granted in part and the finding by the Hearing Officer that the Respondent/Petitioner made no request for representation of her by the Orange County Attorney's Office on the ethics complaint is stricken, because the record does not contain competent substantial evidence to support that finding. The exception is rejected in part and the proposed finding that the Respondent/Petitioner did request such representation is rejected, because the record does not contain competent substantial evidence to support such a finding; the record citations offered by the Respondent/Petitioner to support her proposed finding are hearsay not within any exception to the hearsay rule.

   Further, neither the portion of the Hearing Officer's finding to which the Respondent/Petitioner excepts nor the proposed finding of the Respondent/Petitioner are relevant to the material issues presented in this matter.

   
   

2. The Respondent/Petitioner excepts to the Hearing Officer's conclusion of law which begins with the first full paragraph on page 21 of the Recommended Order and excepts to the balance of the Recommended Order appearing thereafter, arguing that the Hearing Officer erred in concluding that Section 112.317(8), Florida Statutes, only provides for an award of attorney's fees in situations where the person complained against personally contracts for representation with a private attorney or actually pays fees from his or her own pocket. This exception is granted in that the conclusion of law of the Hearing Officer which begins with the first full paragraph on page 21 of the Recommended Order and which ends with last full paragraph on page 22 of the Recommended Order is rejected, and, in substitution therefor, the Commission concludes that Section 112.317(8) does provide for an award of attorney's fees against a complainant

when the respondent was represented by counsel of her public agency, as was Respondent/Petitioner, and is not limited to situations in which a respondent contracts personally and directly with a private attorney for representation or pays fees from her own pocket.

The Legislature intended, in enacting Chapter 75-208, Laws of Florida, which is codified at Section 112.317(8), Florida Statutes (the costs and attorney's fee provision at issue here), to punish persons who make malicious and baseless ethics complaints, such as that found by the Hearing Officer and this Commission to have been made by Mr. Couch against Ms. Chapin, and thereby intended to deter similar conduct. The Hearing Officer adheres unduly to what he considers to be the strict language of the provision and focuses on the phrase "incurred by the person complained against" in coming to his conclusion and recommendation that costs and attorney's fees should not be awarded.

However, it is a fundamental rule of statutory construction that legislative intent is the polestar by which a body must be guided in determining the meaning of a statute, and this intent must be given effect even though it may contradict the strict letter of the statute. Furthermore, construction of a statute which would lead to an absurd or unreasonable result or would render a statute purposeless should be avoided. To determine legislative intent, the act as a whole--the evil to be corrected, the language of the act, including its title, the history of its enactment, and the state of the law already in existence bearing on the subject--must be considered. The Florida Supreme Court said as much in State v. Webb, a 1981 case found at 398 So.2d 820, wherein the Court, in reviewing a criminal conviction, construed the Florida Stop and Frisk Law to require that a law enforcement officer have only "reasonable suspicion" to detain a suspect, in spite of the Law requiring by its express terms that the officer possess "probable cause" (a stricter standard than reasonable suspicion) in order to validly effect such a detention. Similarly, the origins and purposes of the attorney's fee provision at issue point toward a construction of the provision contrary to the one placed upon it by the Hearing Officer and one which would fulfill the purposes of the provision--to punish and deter those who would abuse the Code of Ethics.

In addition, since the right of a public officer or employee to be represented by agency counsel in situations such as that encountered by the Respondent/Petitioner, Linda Chapin, pursuant to the filing of the ethics complaint against her had not been clearly established by Florida caselaw at the time of the enactment of the attorney's fee provision at issue, it is reasonable to conclude that the phrase "incurred by the person complained against" was not chosen in order to limit the award to only those cases in which an official personally paid funds from his or her own pocket, rather than where the agency was providing the representation.

Further, the meaning of the term "incur" encompasses situations such as that of the Respondent, Ms. Chapin, and is not limited to situations where a Respondent directly pays fees from his or her own pocket to an attorney.

Findings of Fact

The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference except as modified above.

Conclusions of Law

1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference except as modified above.

   
   

2. Accordingly, the Commission on Ethics determines that the Complainant/Respondent, Marvin Couch, filed an ethics complaint which was frivolous and without basis in law or fact, against the Respondent/Petitioner, Linda Chapin, a public officer or employee, with a malicious intent to injure the reputation of the Respondent/Petitioner, and that the Complainant/Respondent is therefore liable for attorneys' fees incurred, as described herein.

WHEREFORE, pursuant to Section 112.317(8), Florida Statutes, the Commission on Ethics determines that the Complainant/Respondent, Marvin Couch, is liable for attorney's fees in the amount of $7,980. Said fees in said amount to be paid to Orange County, Florida.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, July 17, 1992.

July 22, 1992

Date Rendered

Stephen N. Zack Chairman

YOU ARE NOTIFIED THAT YOU ARE ENTITLED, PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

cc: Mr. Marvin Couch, Complainant/Respondent Ms. Linda Chapin, Respondent/Petitioner Division of Administrative Hearings Joseph L. Passiatore, Esquire

Stuart R. Michelson,

Attorney for Steven B. Feren, Amicus Curiae

Docket for Case No: 91-007002EC

Orders for Case No: 91-007002EC