STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: MARY MCCARTY, )

) CASE NO. 92-5168EC

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on April 29, 1993, in West Palm Beach, Florida.

APPEARANCES

For Mary McCarty: Kenneth D. Stern, Esquire

Post Office Box 3878

Boca Raton, Florida 33427-3878

For Leslie F.

McDermott: James K. Green, Esquire

One Clearlake Centre

250 South Australian Avenue West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The issue for disposition is whether Mary McCarty, Respondent in a complaint to the Florida Commissions on Ethics, is entitled to costs and reasonable attorney's fees from the complainant, Leslie F. McDermott, pursuant to Section 112.317(8), F.S.

PRELIMINARY STATEMENT

On June 10, 1992, the Florida Commission on Ethics issued its Public Report finding no probable cause to believe that Mary McCarty violated Section 112.3148, F.S., as was alleged in a complaint filed by Leslie F. McDermott.

On June 30, 1992, Ms. McCarty timely filed her petition for costs and attorney's fees from the complainant. The case was referred by the Commission on Ethics to the Division of Administrative Hearings as provided in commission rule 34-5.029, F.A.C.

The case was set for hearing after consultation with the parties, and was continued once for good cause.

At the hearing, Mary McCarty testified in her own behalf and presented testimony of the following: Leslie F. McDermott, Jeanette (Jay) Slavin and Bob Romani. Four exhibits were received in evidence, including, without objection, the deposition testimony of Ben Director.

Leslie F. McDermott testified in his own behalf, examined each of the above witnesses, and presented the testimony of Malcolm Byrd. He offered no exhibits.

After the hearing, a partial transcript was filed. Each party submitted proposed recommended orders. These have been considered, and specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

1. Mary McCarty has resided in Delray Beach, Florida for approximately twenty years. She is politically active as a Republican; she served as a Delray Beach city commissioner from 1987 until 1990, and now currently serves as chairperson of the Palm Beach County Commission.

   
   

2. William (Bill) Andrews, also a Republican, was elected to the Delray Beach City Commission approximately one year after Ms. McCarty. The two worked together on certain issues, including an issue regarding the firing of the city manager, and more often than not, they voted on the same side.

   
   

3. Leslie F. McDermott lives in Lake Worth, Palm Beach County, Florida. He has never resided in Delray Beach. He is employed as an engineer for a computer company and is well known and respected in the community as an active member of the NAACP. He served as president of the south county branch of the NAACP for seven or eight years until recently, and now serves on the executive board of that local branch.

   
   

4. Jeanette (Jay) Slavin is a "grass roots" political activist in the south county area. As a Democrat she has been very involved in political campaigns and has openly supported candidates and issues in heated opposition to Mary McCarty.

   
   

5. Malcolm Byrd, a Republican, served on the Delray Beach City Commission from 1979 until 1987, and was city manager from 1989-90. At first he supported Mary McCarty, but as city manager he had differing views of how the city should proceed and how the city manager should function.

   
   

6. In early 1990, Malcolm Byrd learned that Bill Andrews had attended a Republican fund-raiser in Orlando, with transportation by chartered jet and limousine provided by a third party. Bill Andrews openly discussed the trip and how lavish it was. Andrews displayed a photograph of himself at the event with President Reagan or other noted Republicans.

   
   

7. Malcolm Byrd became aware that Andrews had not reported that trip on his financial disclosure form, and shared that information with Jay Slavin. There was also some talk that Mary McCarty had attended the fund-raiser, as Andrews referred to "we" when discussing the trip. Mary McCarty's financial disclosure form for 1990 did not reflect the alleged gifts related to the trip.

   
   

8. Jay Slavin had lunch with Leslie McDermott and urged him to file ethics complaints against both Andrews and McCarty. Ms. Slavin had obtained the requisite forms from the commission. She felt that Leslie McDermott's complaint would have more credibility as she, Slavin, was known to be politically opposed to Andrews and McCarty.

   
   

9. Leslie McDermott was reluctant at first to file the complaint against McCarty, as the only basis that Jay Slavin gave him was that Bill Andrews said "we" went on the trip, and everyone knew that Mary McCarty frequently attended fund-raisers and political events.

10. Leslie McDermott drafted the complaint based on information from Jay Slavin, and Ms. Slavin typed it for his signature, as he has a visual handicap. Before sending the complaint, McDermott spoke with Malcolm Byrd, who told him that he did not have the evidence on McCarty that he had on Andrews and that he could not encourage him to file on McCarty. McDermott heard rumors from other people who believed she had attended the function, but no one told him they had personal knowledge of the trip or had actually seen McCarty. At the hearing, and during the investigation by the commission, Leslie McDermott refused to divulge the names of those other persons who told him they believed Mary McCarty took the trip.

    
    

11. After sending the complaints, McDermott gave Jay Slavin permission to give them to three newspapers which he specified: the Palm Beach Post, the Sun Times and the Fort Lauderdale Sentinel. He personally called the papers and told them that the matters in the complaints needed to be investigated. He also told the reporters that the complaints had no official connection with the NAACP. He considered the three papers to be responsible, non-sensational publications and he had experience in the past with issuing press releases.

    
    

12. On February 6, 1992 the Sun-Sentinel published a story with the headline, "ETHICS COMPLAINTS FILED", stating that an NAACP official filed ethics complaints alleging that Mary McCarty and Bill Andrews attended a $1000 a plate fund-raiser paid for by a group of bond brokers, and failed to disclose the gifts.

    
    

13. Mary McCarty contacted the NAACP, and Leslie McDermott was chastised for involving the organization. He did not call the newspaper to demand a corrective article as he did not want to "add fuel to the fire". He avowed distress, however, that people associated the issue with the NAACP.

    
    

14. Meanwhile, the Ethics Commission conducted its investigation and found that, indeed, Mary McCarty did not attend the event.

    
    

15. That was a conclusion that should have been reached by Mr. McDermott prior to his filing the complaint. Instead, on the complaint form, he signed the following statement under oath:

    
    

    COMPLAINT

    
    

    THAT THE COMMISSIONER NAMED ABOVE, THEN A DELRAY BEACH CITY COMMISSIONER DID VIOLATE FLORIDA STATUTE 112 IN THAT THE COMMISSIONER ACCEPTED GIFTS VALUED IN EXCESS OF $100.00 AND FAILED TO REPORT SAME IN ACCORDANCE WITH STATE LAW. THE GIFTS WERE PROVIDED BY MEMBERS OF A BOND UNDERWRITING GROUP HEADED BY SMITH BARNEY. THEY INCLUDED: ROUND TRIP TRANSPORTATION ON A CORPORATE JET FROM WEST PALM BEACH TO ORLANDO AND BACK; AND, ROUND TRIP LIMOUSINE SERVICE FROM THE ORLANDO AIRPORT TO THE ORANGE COUNTY CONVENTION AND CIVIC CENTER AND RETURN TO THE AIRPORT; AND, A TICKET TO ATTEND THE $1000 PER PERSON FUND RAISER DINNER BENEFITING GOV. MARTINEZ AND FEATURING PRESIDENT GEORGE BUSH.

    THE FOREGOING GIFTS HAVE AN ESTIMATED VALUE OF $1350 TO 1500 WELL IN EXCESS OF THE REPORTING REQUIREMENTS.

    
    

    THE COMMISSIONERS FINANCIAL DISCLOSURE FORM FOR THE CALENDAR YEAR 1990 WHICH COVERS THE DATE OF THE SUBJECT EVENT ON FRIDAY APRIL 20 1990 SHOWS NO GIFTS RECEIVED.

    
    

    IN ADDITION TO COMMENTS MADE TO VARIOUS INDIVIDUALS ABOUT THE DETAILS OF THE TRIP, INCLUDING THE FACT THAT ALL EXPENSES HAD BEEN PAID BY THE BOND BROKERS, THE COMMISSIONER WAS OBSERVED AT THE EVENT BY NUMEROUS LOCAL OFFICIALS AND RESIDENTS.

    (Exhibit 1, Complaint dated February 2, 1992)

    
    

16. Leslie McDermott did not ask Bill Andrews or Mary McCarty whether she attended the function. He did not contact anyone, including the sponsor of the event, who would likely have personal knowledge of her attendance. Instead, he relied on rumors and indirect reports, all which he knew were based on these tenuous connections:

    
    

    1. Bill Andrews used the term "we" in bragging about the trip.

    2. Mary McCarty frequently attended political events and was politically active.

    3. Mary McCarty and Bill Andrews, both Republicans (but not the only Republicans on the city council), often voted alike.

    4. Some unnamed persons overheard conversations which made them believe that Bill Andrews and Mary McCarty were on the trip together.

       
       

17. Leslie McDermott's explanation that he released the complaint to the press so that an investigation could be conducted is simply not persuasive. He is an educated, articulate and experienced individual. He knew or should have known that public exposure of his complaint would injure the reputation of Ms. McCarty. Despite his own initial misgivings, Mr. McDermott allowed himself to be used by individuals who could only benefit from that injury. His failure, due to hubris or extraordinarily bad judgment, to make a reasonable attempt to check the veracity of the rumors, constitutes the reckless disregard by which malicious intent may be proven.

    
    

18. In defending against the complaint and in pursuing relief in this proceeding, Mary McCarty has incurred costs and attorneys fees in the total amount of $12,876.55. Exhibit #4a), b), and c) appropriately itemizes the 50.9 hours and $2696.55 costs incurred.

    
    

    The hourly rate of $200.00 was stipulated as reasonable. Leslie McDermott contests the reasonableness of any time spent and costs incurred after the commission's order finding no probable cause was issued. Based upon the unrefuted testimony of Robert V. Romani, Esquire, an experienced litigator, past-president of the Palm Beach County Bar Association and member of the Board of Governors of the Florida Bar; and after considering relevant case law

    discussed below, I find that the hours and costs both before and after dismissal of the complaint are reasonable.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S. and rule 34-5.029, F.A.C.

    
    

20. Section 112.317(8), F.S. provides:

(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 and in which such complaint is found to be frivolous and without basis in law or fact, the complainant shall be liable for costs plus reasonable attorney's fees incurred by the person complained against. If the complainant fails to pay such costs voluntarily within

30 days following such finding and dismissal of the complaint by the commission, the commission shall forward such information

to the Department of Legal Affairs, which

shall bring a civil action to recover such costs.

21. Rule 34-5.029(3), F.A.C., provides:

(3) The respondent has the burden of proving the grounds for an award of costs and attorney's fees by a preponderance of the evidence presented at the hearing. "Malicious intent to injure the reputation" may be proven by evidence showing ill will or hostility as well as by evidence showing that the complainant intended to bring discredit upon the name or character of the respondent by filing such complaint with knowledge that the complaint contained one or more false allegations or with reckless

disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics for Public Officers and Employees. Such reckless disregard exists where the complainant entertained serious doubts as to the truth

or falsity of the 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.

1. The complaint was frivolous and without basis in law or fact. It was grounded on a false premise that the respondent took the trip at issue.

2. Nothing in Chapter 112, F.S. places the burden on a complainant to conduct an elaborate investigation and there is no requirement that a complaint be based upon personal knowledge of the complainant. Yet the language cited above, describing "reckless disregard", amply warns of the hazard of reliance on rumors.

   
   

3. There was nothing complicated about the facts or the law in this case, no arcane theories, no covert alliances. There was nothing in the result of the Ethics Commission investigation that could not have been discovered with a few telephone calls by Leslie McDermott or his cohorts. Instead, he was drawn into the partisan grapevine and, after expressing some concern about the validity of the charge as to Mary McCarty, plunged ahead with a sworn complaint which on its face reflects no equivocation whatsoever.

   
   

4. Malicious intent, more manifest than simple recklessness, is inferred from the complainant's release of his statement to the press. This action belies any credible argument that Leslie McDermott sought only to have proper authorities perform an investigation.

   
   

5. The simplicity of this case distinguishes it from Taunton v. Tapper,

   396 So.2d 843 (Fla. 1st DCA 1981) cited by the complainant, in which the court reversed the commission's award of fees. In Taunton, as here, the finding of no probable cause was made after a factual investigation when the complaint on its face was sufficient. The finding of no probable cause in Taunton, however, was made only after factual and legal research and after the commission adopted a novel construction of the statute defining the alleged violation. There, unlike here, a substantial justiciable question could be spelled out. See Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883 (Fla. 1935), cited id, at 484.

   
   

6. A complaint may still be frivolous, even if legally sufficient on its face, when the underlying facts are utterly baseless. See, In Re: Steven B. Feren, #92-2458EC (Order of Remand, on other basis, entered 4/30/93). Respondent, Mary McCarty met her burden of proof described in Rule 34-5.029, F.A.C., above.

   
   

7. Leslie McDermott argues that, assuming entitlement, no fees should be allowed for any hours spent after dismissal of the complaint, because the time was not "reasonably spent." (p. 10, Complainant's proposed findings of fact and conclusions of law) As found above, those hours after the order finding no probable cause were reasonably incurred in the pursuit of fees in this attendant proceeding.

   
   

8. The prevailing view in Florida is that attorney's fees are recoverable for the time spent litigating entitlement to the fees, as long as those fees are incurred. State Farm Fire and Casualty Co. v. Palma, 585 So.2d 329, (Fla. 4th DCA 1991), and the authorities cited at p. 333. To conclude otherwise would render the relief offered in section 112.317(8), F.S. utterly meaningless. As McDermott recognizes, the time spent prior to dismissal was negligible in comparison to the time properly and necessarily expended in pursuing fees. This fees case, of course, presented substantial, justiciable issues of law and fact, as reflected by the day-long hearing and the thorough and competent presentations by counsel for both parties. The language of section 112.317(8), F.S., cited above, is interpreted as embracing all the costs and fees incurred by the person complained of, including the costs and fees for the proceeding contemplated in that section.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Commission on Ethics issue its final order awarding fees and costs in the total amount $12,876.55 to Mary McCarty from Leslie McDermott.

DONE AND RECOMMENDED this 23rd day of August, 1993, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5168EC

The findings of fact proposed by both parties are substantially adopted here, with the exception of the following findings proposed by Leslie McDermott.

Paragraph 13. The "reasonable" appearance or belief as to Ms. McCarty's guilt is rejected as unsupported by the weight of evidence.

Paragraph 15. The reason Mr. McDermott presents for signing the complaint is rejected as not credible, in the face of his inconsistent action in presenting the complaint to the press.

Paragraphs 16-18 are rejected as contrary to the weight of evidence.

COPIES FURNISHED:

Bonnie Williams, Executive Director Ethics Commission

Post Office Box 6

Tallahassee, Florida 32302-0006

Phil Claypool, General Counsel Ethics Commission

Post Office Box 6

Tallahassee, Florida 32302-0006

Kenneth D. Stern, Esquire Post Office Box 3878

Boca Raton, Florida 33427-3878

James K. Green, Esquire One Clearlake Centre

250 South Australian Avenue West Palm Beach, Florida 33401

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA

COMMISSION ON ETHICS

In re MARY MCCARTY, )

) Complaint No. 92-14 Respondent. ) Final Order No. COE 93-24

) 92-5168EC

)

FINAL ORDER AWARDING COSTS AND ATTORNEY FEES

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on August 23, 1993 by the Division of Administrative Hearings (DOAH) [a copy of which is attached and incorporated by reference].

The Hearing Officer recommends that the Commission enter a Final Order awarding attorney fees and costs in the total amount of $12,876.55 to Mary McCarty (Respondent) from Leslie McDermott (Complainant). Complainant timely filed exceptions and amended exceptions and Respondent filed a response to the exceptions and a response to the amended exceptions.

The complete record of this matter as defined in Section 120.57(1)(b)6, Florida Statutes, has not been placed before the Commission. The portions of the record which have been placed before the Commission are: Recommended Order of the Hearing Officer; proposed recommended order of the Respondent; proposed recommended order of the Complainant; Prehearing Stipulation of Respondent and Complainant which contains several areas of factual or legal agreement; partial transcript of the DOAH hearing containing opening statements by counsel for Respondent and counsel for Complainant, testimony of Jeannette Slavin, testimony of Malcolm Byrd (Byrd), and closing arguments of counsel for Respondent and counsel for Complainant; four exhibits of the Respondent (ethics complaint filed by Complainant against Respondent, newspaper articles concerning the complaint,

deposition of Ben Director, and attorney fees and costs statements sent to Respondent); and transcribed DOAH hearing testimony of Complainant. The portion of the record which does not appear, based upon a review of the items which have been placed before the Commission, to have been placed before the Commission consists of: testimony of the Respondent at the DOAH hearing; and testimony of Bob Romani at the DOAH hearing.

The record items will be designated herein as follows: "T" for citations to the partial transcript of the DOAH hearing, followed by the page number(s); "D" for the deposition of Ben Director, followed by the page number(s); "C" for the transcribed testimony of the Complainant, Leslie McDermott, followed by the page number(s); "E" for an exhibit admitted at the DOAH hearing, followed by the exhibit number; "S" for the Prehearing Stipulation, followed by the page number(s); and "RO" for the Recommended Order of the Hearing Officer, followed by the page number(s).

Having reviewed the Recommended Order, the exceptions, the response to exceptions, the amended exceptions, the response to amended exceptions, the portion of the record of the public hearing of this matter that has been placed before the Commission, and having considered the arguments of counsel for the Respondent and counsel for the Complainant made before the Commission at its final consideration of this matter, the Commission makes the following findings, conclusions, rulings, and determinations:

Rulings on Exceptions

1. The Complainant takes exception to a portion of the Hearing Officer's finding of fact numbered "2" which states that the Respondent and City Commissioner William (Bill) Andrews more often than not, voted on the same side. The Complainant argues that this portion of the finding of fact is "incomplete" in that it also should have stated that "Malcolm Byrd, a Republican, and past [C]ity [M]anager and [C]ity [C]ommissioner, stated that some persons perceived the [Respondent and William Andrews did not merely vote together on a majority of issues, but were a voting bloc."

   
   

   Under Section 120.57(1)(b)10, Florida Statutes, the Commission may not reject or modify findings of fact unless it determines from a review of the complete record that the challenged findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The responsibility for placing the complete record of the DOAH proceeding before the Commission for review is on the party making the exception and challenging the factual findings. See Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987), and North Dade Security Ltd. Corporation v. Department of State, Division of Licensing, 530 So.2d 1040 (Fla. 1st DCA 1988). The complete record has not been placed before the Commission and, thus, the Commission cannot disturb this factual finding of the Hearing Officer.

   
   

   In addition, this finding of the Hearing Officer is based upon competent substantial evidence based upon proceedings which did comply with essential requirements of law. (T, 90)

   
   

   Further, assuming that the Complainant proposes that the Commission modify this finding to reflect that the content of Mr. Byrd's purported testimony is true, rather than proposing merely that the finding reflect that Mr. Byrd testified as purported by the Complainant, a finding that Mr. Byrd testified that some persons perceived that the Respondent and Commissioner Andrews were a

   "voting bloc" is of questionable relevancy to a determination of the material issues before the Hearing Officer or the Commission on Ethics in this matter.

   
   

   We find no error; therefore, this exception is rejected.

   
   

2. The Complainant takes exception to a portion of the Hearing Officer's finding of fact numbered "10" which states that before sending the complaint, Mr. McDermott spoke with Malcolm Byrd, who told him that he did not have the evidence on McCarty that he had on Andrews and that he could not encourage him to file on McCarty. The Complainant argues that this portion of the finding is "incomplete" and that it also should have stated that "Mr. Byrd testified that he told Mr. McDermott: Mr. Andrews had in the past used the word `we' to refer to himself and Ms. McCarty; Mr. Andrews admitted to Mr. Byrd that he had attended the fundraiser in Orlando at a third party's expense; Mr. Andrews did not disclose his attendance at the fundraiser on his financial disclosure form; and Mr. Byrd heard Mr. Andrews say 'we' went to the fundraiser, which Mr. Byrd believed to constitute a referral to Ms. McCarty."

   
   

   Under Section 120.57(1)(b)10, Florida Statutes, the Commission may not reject or modify findings of fact unless it determines from a review of the complete record that the challenged findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The responsibility for placing the complete record of the DOAH proceeding before the Commission for review is on the party making the exception/challenging the factual findings. See Bradley and North Dade, supra. The complete record has not been placed before the Commission and, thus, the Commission cannot disturb this factual finding of the Hearing Officer.

   
   

   In addition, this finding of the Hearing Officer is based upon competent substantial evidence based upon proceedings which did comply with essential requirements of law. (T, 96)

   
   

   Further, the modification of the finding proposed by the Complainant, assuming that the proposal goes to the truth of the substance of the witness' testimony rather than being merely a proposal as to what the witness testified to, is of questionable relevancy to a determination of the material issues before the Hearing Officer or the Commission on Ethics in this matter.

   
   

   Additionally, as the Respondent points out in her response to this exception, even had she attended the function, the Complainant's proposed addition to the finding does not provide any basis for the Complainant to have assumed that she had taken anything of value in connection with that attendance.

   
   

3. The Complainant takes exception to the Hearing Officer's finding of fact numbered "14" which states that the Ethics Commission conducted its investigation and found that, indeed, Mary McCarty did not attend the event. The Complainant argues that the Hearing Officer "misstated" this finding and should not have found "as an absolute" that the Respondent did not attend the

   fundraiser and argues that the "correct" finding for the Hearing Officer to have made would have stated that the Ethics Commission, after investigation, found that there did not appear to be any evidence that the Respondent attended the fundraiser in question.

   
   

   Under Section 120.57(1)(b)10, Florida Statutes, the Commission may not reject or modify findings of fact unless it determines from a review of the complete record that the challenged findings were not based upon competent

   substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The responsibility for insuring the placement of the complete record of the DOAH proceeding before the Commission for review is on the party making the exception/challenging the factual findings. See Bradley and North Dade, supra. The complete record has not been placed before the Commission and, thus, the Commission cannot disturb this factual finding of the Hearing Officer.

   
   

   In addition, the Advocate's Recommendation (Attachment "B" to Respondent's exceptions and apparently the support offered by the Complainant for this exception) does not appear to be a part of the DOAH record, apparently not having been admitted into evidence in the DOAH proceeding (see RO, 2 and E's "1," "2," "3," and "composite 4"). Further, as the Respondent indicates in her response to the exceptions, the Advocate's Recommendation and the Commission's Report of Investigation upon which the Recommendation is based could be construed as supporting the Hearing Officer's finding.

   
   

   We find no error; therefore, this exception is rejected.

   
   

4. The Complainant takes exception to a portion of the Hearing Officer's finding of fact numbered "15" which states that the Complainant should have reached the conclusion that the Ethics Commission did before he filed his complaint: that the Respondent did not attend the event in question. In addition, the Complainant argues that the Hearing Officer should have found that the Complainant had the requisite information to form the basis of an ethics complaint and that he was not expected to conduct the same investigation as the Ethics Commission conducted.

   
   

   Under Section 120.57(1)(b)10, Florida Statutes, the Commission may not reject or modify findings of fact unless it determines from a review of the complete record that the challenged findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The responsibility for insuring the placement of the complete record of the DOAH proceeding before the Commission for review is on the party making the exception/challenging the factual findings. See Bradley and North Dade, supra. The complete record has not been placed before the Commission and, thus, the Commission cannot disturb this factual finding of the Hearing Officer.

   
   

   In addition, see paragraph "3" above for our position regarding whether the Commission found that the Respondent actually did not attend the function as opposed to whether it found that there was no evidence to conclude that the Respondent attended the function.

   
   

   The essence of this finding by the Hearing Officer, when viewed in logical and necessary conjunction with her other factual findings, is that the Complainant entertained serious doubt about whether his allegations against the Respondent were true. Such doubt can be an evidential basis of a finding of malicious intent under Section 112.317(8). Northwest Fla. Home Health Agency v. Merrill, 469 So.2d 893 (Fla. 1st DCA 1985), a civil action for malicious prosecution based upon a complaint to the Board of Nursing concerning improper nursing practices by a licensee, to the extent it is applicable to an attorney fee proceeding under Section 112.317(8), nevertheless recognized that such nursing complaints are actionable, if malicious, notwithstanding its language concerning conducting of investigations by complainants under the nursing statute in question.

   The Complainant's argument concerning a chilling effect on would-be ethics complainants is of no merit since the very purpose of Section 112.317(8) and similar statutes is the chilling or deterrence of malicious, frivolous ethics complaints. See Couch v. Commission on Ethics, 18 F.L.W. D119O (Fla. 5th DCA, opinion filed May 7, 1993).

   
   

   Further, the portion of the DOAH record before the Commission is replete with evidence showing malicious intent on the part of the Complainant toward the Respondent in filing the ethics complaint in question; it is devoid of evidence showing that the Complainant had the requisite information to form the basis of a non-malicious ethics complaint.

   
   

   We find no error; therefore, this exception is rejected.

   
   

5. The Complainant takes exception to the Hearing Officer's finding of fact numbered "16," arguing that the finding erroneously asserts that the Complainant should have conducted an Ethics Commission-like investigation before filing the complaint.

   
   

   Under Section 120.57(1)(b)1O, Florida Statutes, the Commission may not reject or modify findings of fact unless it determines from a review of the complete record that the challenged findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The burden/responsibility for insuring the placement of the complete record of the DOAH proceeding before the Commission for review is on the party making the exception/challenging the factual findings. See Bradley and North Dade, supra. The complete record has not been placed before the Commission and, thus, the Commission cannot disturb this factual finding of the Hearing Officer.

   
   

   In addition, this finding of the Hearing Officer is based upon competent substantial evidence based upon proceedings which did comply with essential requirements of law, including T, 37, 39, 61-65, 67-69, 93, 94, and 96 and Complainant's transcribed hearing testimony.

   
   

   Further, this finding does not state that the Complainant "should" have done anything but, rather, points out various factors tending to show "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."

   Indeed, the Hearing Officer determined in paragraph "23" of the Recommended Order that "[n]othing in Chapter 112, F. S.[,] places the burden on a complainant to conduct an elaborate investigation. "

   
   

   We find no error; therefore, this exception is rejected.

   
   

6. The Complainant takes exception to the Hearing Officer's finding of fact numbered "16," arguing that the finding is "incomplete" and that the finding should have included various references (based upon the testimony of Mr. Byrd) to Mr. Andrews' use of the word "we" in reference to himself and the Respondent, to Mr. Andrews' admission that he (Mr. Andrews) had attended the fundraiser in question, to Mr. Andrews' non-disclosure on his financial disclosure form of his attendance at the fundraiser, and to Mr. Byrd's hearing from "various sources" that the Respondent had attended the function. In addition, the Complainant argues that "[t]he Hearing Office[r] also refused to consider the fact that Mr. McDermott was given the names of sources that could provide information on the McCarty trip; several of these sources [being] employees at Delray Beach City Hall."

   Under Section 120.57(1)(b)10, Florida Statutes, the Commission may not reject or modify findings of fact unless it determines from a review of the complete record that the challenged findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The burden/responsibility for insuring the placement of the complete record of the DOAH proceeding before the Commission for review is on the party making the exception/challenging the factual findings. See Bradley and North Dade, supra. The complete record has not been placed before the Commission and, thus, the Commission cannot disturb this factual finding of the Hearing Officer.

   
   

   In addition, this finding of the Hearing Officer is based upon competent substantial evidence based upon proceedings which did comply with essential requirements of law, including the record citations listed under paragraph 5 of this final order.

   
   

   Further, the Complainant's suggested modification of this finding ("Mr.

   Byrd heard Mr. Andrews say `we' went to that fundraiser, which Mr. Byrd believed to constitute a referral to Ms. McCarty.") is not a correct characterization of Mr. Byrd's testimony. In any event, that suggested modification, along with the suggested modification that "Mr. Byrd had heard from various sources that Ms.

   McCarty had attended the political function at issue," would not negate the malicious intent exhibited by the Complainant in filing the ethics complaint in question.

   
   

   We find no error; therefore, this exception is rejected.

   
   

7. The Complainant takes exception to the Hearing Officer's finding of fact numbered "17" regarding the malicious intent of the Complainant, arguing that the case of Doe v. Gonzalez, 723 F. Supp. 690 (S.D. Fla. 1988), somehow bars consideration of a complainant's publication or dissemination of a complaint in determining whether a complainant exhibited malice in filing the complaint. In addition, the Complainant, in his amended exceptions, takes exception to finding of fact "17" via the argument that "[t]here was no evidence that [R]espondent's reputation was injured and that Mr. McDermott intended to do so" and that "[h]is sole intention was to make sure public officials are held accountable for their actions."

   
   

   Doe v. Gonzalez does not stand for that proposition at all; its holding only goes to the issue of whether criminal penalties are valid against ethics complainants who breach the confidentiality provisions of Part III, Chapter 112, Florida Statutes. Further, Doe v. Gonzalez recognizes the appropriateness of civil remedies to prevent the damage of one's reputation through use of the proceedings of a state agency.

   
   

   In addition, under Section 120.57(1)(b)10, Florida Statutes, the Commission may not reject or modify findings of fact unless it determines from a review of the complete record that the challenged findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The responsibility for insuring the placement of the complete record of the DOAH proceeding before the Commission for review is on the party making the exception/challenging the factual findings. See Bradley and North Dade, supra. This is particularly true regarding the Complainant's amended exception argument concerning injury to the Respondent's reputation when the Respondent's testimony is not before the

   Commission. The complete record has not been placed before the Commission and, thus, the Commission cannot disturb this factual finding of the Hearing Officer.

   
   

   Moreover, the portion of the Hearing Officer's finding of fact which states that "Leslie McDermott's explanation that he released the complaint to the press so that an investigation could be conducted is simply not persuasive" is a finding related to the credibility and weight to be given Mr. McDermott's testimony and, as such, is certainly a portion of the province of the Hearing Officer as trier of fact that we are ill-equipped in our post-hearing review of this matter to disturb.

   
   

   We find no error; therefore, this exception is rejected.

   
   

8. The Complainant takes exception to the Hearing Officer's finding of fact numbered "17," arguing that the Hearing Officer's finding that "[the Complainant's] failure to make a reasonable attempt to check the veracity of the rumors about the Respondent's attending the fundraiser constituted reckless disregard by which malicious intent may be proven" is not a type of reckless disregard recognized in Commission Rule 34-5.029(3), arguing that "[a]s discussed above, there was substantial competent evidence, including Ms. McCarty's previous conduct, Mr. Andrews' referral to `we,' and Mr. Byrd's information, why Mr. McDermott had reason to believe that Ms. McCarty attended the fundraiser at issue," and arguing (in his amended exception) that "[t]here was no evidence that Mr. McDermott entertained serious doubts, had any ill-will or animosity towards respondent, or intended to maliciously harm her," and that "[h]is sole motivation was to have the Ethics Commission look into a possible breach of the public trust."

   
   

   Assuming that the portion of this finding to which the Complainant takes exception is in substance a finding of fact, as opposed to a conclusion of law, under Section 120.57(1)(b)10, Florida Statutes, the Commission may not reject or modify findings of fact unless it determines from a review of the complete record that the challenged findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The responsibility for insuring the placement of the complete record of the DOAH proceeding before the Commission for review is on the party making the exception/challenging the factual findings. See Bradley and North Dade, supra. The complete record has not been placed before the Commission and, thus, the Commission cannot disturb this factual finding of the Hearing Officer.

   
   

   In addition, this finding of the Hearing Officer is based upon competent substantial evidence based upon proceedings which did comply with essential requirements of law.

   
   

   Further, the Recommended Order is replete with factual findings, based upon competent substantial evidence based upon proceedings which did comply with essential requirements of law, which support findings of ultimate fact or conclusions of law that the Complainant exhibited the reckless disregard and malicious intent contemplated by Section 112.317(8), Florida Statutes, and Commission Rule 34-5.029(3), including findings of fact 9, 10, 11, 15, 16, and

   17.

   
   

   We find no error; therefore, this exception is rejected.

   
   

9. The Complainant, in his amended exceptions, takes exception to the portion of the Hearing Officer's finding of fact numbered "18" which finds that

   the number of hours spent by the Respondent's attorney after the Commission's dismissal of the ethics complaint were reasonable. The Complainant argues that "[the Hearing Officer] should have found that the time spent on what is merely designated as `research' is unreasonable," and that "[R]espondent's expert was unpersuasive as to the reasonableness of the hours claimed."

   
   

   Under Section 120.57(1)(b)10, Florida Statutes, the Commission may not reject or modify findings of fact unless it determines from a review of the complete record that the challenged findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The responsibility for insuring the placement of the complete record of the DOAH proceeding before the Commission for review is on the party making the exception/challenging the factual findings. See Bradley and North Dade, supra. The complete record has not been placed before the Commission and, thus, the Commission cannot disturb this factual finding of the Hearing Officer. Section 120.57(1)(b)10 is particularly applicable to this exception since the portion of the record containing the testimony of Bob Romani (apparently the Respondent's expert witness on attorney fees) has not been placed before the Commission.

   
   

   We find no error; therefore, this exception is rejected.

   
   

10. The Complainant takes exception to the Hearing Officer's conclusion of law numbered "21," arguing that the conclusion [a recitation of Commission Rule 34-5.029(3)] recognizes an inappropriate standard of proof (that of a preponderance of the evidence) for an attorney fees proceeding necessitating proof of malicious intent and cites New York Times Co. v. Sullivan, 376 U.S. 254 (1964), in arguing that the appropriate standard of proof in such a proceeding is one of "convincing clarity."

    
    

    We presume Rule 34-5.029(3) to be valid unless instructed otherwise by a court of competent jurisdiction. In addition, we do not believe that Sullivan, a case in which the Florida Commission on Ethics obviously was not a participant, mandates a more stringent standard of proof than preponderance of the evidence in the evidential hearing before DOAH under Section 112.317(8).

    
    

    We find no error; therefore, this exception is rejected.

    
    

11. The Complainant takes exception to the Hearing Officer's conclusion of law numbered "22" ("The complaint was frivolous and without basis in law or fact. It was grounded on a false premise that the respondent took the trip at issue."), arguing that "there may not have been substantial evidence to indicate that Ms. McCarty went to the event in question but it is error to conclude as an absolute that this is a false premise," and arguing that "the Hearing Officer's definition of a frivolous complaint is incorrect." In support of his argument, the Complainant cites Taunton v. Tapper, 396 So.2d 843 (Fla. 1st DCA 1981).

    
    

    In this exception, the Complainant appears to be arguing that since the contents of his ethics complaint, no matter how malicious, triggered an investigation by the Commission, the complaint was therefore not frivolous and not lacking a basis in law or in fact.

    
    

    To adopt the Complainant's argument would make a mockery of Section 112.317(8) and work an absurd result by denying its application in situations arguably most deserving of its deterrent and remedial effects--situations in which a complainant has sufficiently lied or been sufficiently reckless within the four corners of a complaint document such that the State is conscripted, at

    least for a time, into the defamatory service of the complainant. We are not prepared to adopt such a construction of Section 112.317(8).

    
    

    We find no error; therefore, this exception is rejected.

    
    

12. The Complainant takes exception to the Hearing Officer's conclusion of law numbered "24," arguing that the conclusion "is essentially a tirade about Mr. McDermott's being drawn into the "partisan grapevine" and his failure to mimic the Ethics Commission investigation through "a few telephone calls by Leslie McDermott and his cohorts," arguing that the conclusion amounts to inappropriate and unnecessary factual statements, and arguing that "complainants should not be expected to have to communicate with the alleged wrongdoers and ask them whether they are innocent or guilty."

    
    

    To the extent that this paragraph includes findings of fact, the exception is rejected because the findings are based upon competent, substantial evidence. To the extent that paragraph 24 of the Recommended Order includes conclusions of law, it in essence makes the legal conclusions that malicious intent and reckless disregard can be proven by showing that a complainant who entertained doubts about the validity of allegations nevertheless plunged ahead and filed those allegations without bothering to employ even the most basic standards of care or safeguards, such as those inherent in inquiring of those likely to have knowledge about an event.

    
    

    We find no error; therefore, this exception is rejected.

    
    

13. The Complainant takes exception to the Hearing Officer's conclusion of law numbered "25" ("Malicious intent, more manifest than simple recklessness, is inferred from the complainant's release of his statement to the press. This action belies any credible argument that Leslie McDermott sought only to have proper authorities perform an investigation."), arguing that the Complainant's actions in releasing the ethics complaint to the press were within his First Amendment rights and apparently arguing that the Hearing Officer should have concluded that the release to the press was not for the purpose of maliciously injuring the reputation of the Respondent but, rather, was merely to inform the press that an investigation by the Commission had been requested. In addition, the Complainant takes exception, in his amended exceptions, to the Hearing Officer's conclusion of law in paragraph 25 of the Recommended order by arguing that "[n]o evidence indicates that Mr. McDermott had a malicious intent."

    
    

    As discussed earlier, the inability to exact a criminal penalty from a complainant who breaches a confidentiality provision of Part III, Chapter 112, does not mean that civil remedies for filing malicious complaints are not available or appropriate or that release to the press of a malicious complaint cannot be evidence of intent to injure the reputation of the person complained against.

    
    

    Further, to the extent, if any, that this exception suggests a modification of factual findings of the Hearing Officer, under Section 120.57(1)(b)10, Florida Statutes, the Commission may not reject or modify findings of fact unless it determines from a review of the complete record that the challenged findings were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The responsibility for insuring the placement of the complete record of the DOAH proceeding before the Commission for review is on the party making the exception/challenging the factual findings. See Bradley

    and North Dade, supra. The complete record has not been placed before the Commission and, thus, the Commission cannot disturb any factual findings of the Hearing Officer.

    
    

    We find no error; therefore, this exception is rejected.

    
    

14. The Complainant takes exception to the Hearing Officer's conclusion of law numbered "26," arguing that the Hearing Officer misread the case of Taunton, supra, and arguing that the complaint was not "frivolous in fact" because" it required further factual investigation."

In distinguishing Taunton from the instant case, the Hearing Officer is not in error. Further, as stated above, to construe Section 112.317(8) as being inapplicable in situations where an investigation by the Commission is triggered by a defamatory ethics complaint would be absurd.

We find no error; therefore, this exception is rejected.

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, Leslie McDermott, filed an ethics complaint which was frivolous and without basis in law or fact, against the Respondent, Mary McCarty, a public officer or employee, with a malicious intent to injure the reputation of the Respondent, and that the Complainant is therefore liable for attorney fees and costs incurred, as described herein.

WHEREFORE, pursuant to Section 112.317(8), Florida Statutes, the Commission on Ethics determines that the Complainant, Leslie McDermott, is liable to the Respondent, Mary McCarty, for attorney fees and costs in the total amount of

$12,876.55.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, October 14, 1993.

October 19, 1993 Date Rendered

Joel K. Gustafson Chairman

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, TALLAHASSEE, FLORIDA 32308; OR

P. O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

cc: Mr. Kenneth D. Stern, Attorney for Respondent

Mr. James K. Green and Mr. Ken Muszynski, Attorneys for Complainant

Division of Administrative Hearings

Docket for Case No: 92-005168EC

Orders for Case No: 92-005168EC