STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY ATTERSON, MICHAEL J. ) MAHLER, and CHARLES L. )

SADDLER, III, )

)

Petitioners, )

)

vs. ) Case Nos. 96-5214FE

) 96-5215FE

CARROLL G. ALLEN and ) 96-5216FE

WILLIS D. CONNER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Carolyn S. Holifield, held a formal hearing on August 10, 1998, in Bartow, Florida.

APPEARANCES

For Petitioners: Barbara W. Coleman, Esquire

Office of Polk County Attorney Post Office Box 9005

Drawer AT01

Bartow, Florida 33831-9005

For Respondents: Joseph N. Baron, Esquire

Post Office Box 1088 Lakeland, Florida 33802

STATEMENT OF THE ISSUE

Whether Petitioners are entitled to recover costs and attorney's fees against Respondents and, if so, in what amount.

PRELIMINARY STATEMENT

On or about June 8, 1995, Respondents filed separate

Complaints with the State of Florida Commission on Ethics (Ethics Commission) against Petitioners, Gary Atterson, Michael J. Mahler, and Charles L. Saddler (Petitioners), alleging numerous violations of the Code of Ethics for Public Employees and Officers (Code of Ethics). On September 4, 1996, the Ethics Commission issued a Public Report in each of the cases, finding there was no probable cause to believe that the Petitioners violated the Code of Ethics and dismissing the Complaints.

Thereafter, Petitioners timely filed a Petition for Attorney's Fees based on the aforementioned Complaints and requested a formal hearing.

On November 5, 1996, the Ethics Commission separately forwarded the three cases to the Division of Administration Hearings for assignment of an Administrative Law Judge. By Order issued December 26, 1996, the three cases were consolidated. A Notice of Hearing issued December 26, 1996, set the final hearing for February 6, 1997. Subsequently, several unopposed motions to continue the final hearing filed by the parties were granted.

Thereafter, the final hearing was conducted as noticed in the Amended Notice issued on July 13, 1998.

On August 7, 1998, Petitioner filed a Motion to Quash Subpoenas of Witnesses. Subsequently, Petitioner filed an Amended Motion to Quash Subpoenas of Witnesses (Amended Motion). At commencement of the final hearing and after argument of counsel, the Amended Motion was granted. Prior to presentation

of evidence, the parties stipulated to the reasonableness of the attorney's fees as set forth in the affidavits filed herein. At the conclusion of Petitioners' case, Respondents' counsel made an ore tenus Motion to Dismiss, a ruling on which was reserved.

That Motion to Dismiss is hereby denied.

At the final hearing, Petitioners called one witness, Allen Keith Powell, Investigator for the Commission on Ethics, and Petitioner Saddler testified on his own behalf. Petitioners offered and had ten exhibits admitted into evidence. Respondent, Carrol G. Allen, testified on his own behalf, but called no other witnesses. Respondent, Willis D. Conner, was represented by counsel, but was not present at the hearing.

A copy of the transcript was filed on August 14, 1998.

Petitioners timely filed their Proposed Recommended Order and Memorandum of Law. On August 27, 1998, Respondents' filed a post hearing submittal, which Petitioners moved to strike as untimely. By Order issued September 10, 1998, the Motion to Strike was denied.

FINDINGS OF FACT

1. Respondents, Carrol G. Allen and Willis D. Conner, former employees of Polk County (County), filed verified Complaints on June 8, 1995, with the Ethics Commission against Petitioners, Jerry Atterson, Michael J. Mahler, and Charles L. Saddler, III. At the time the Complaints were filed, Petitioner were public employees and subject to the Code of Ethics.

2. The Complaints against the Petitioners were substantially similar and alleged that Petitioners violated Section 112.313(6), Florida Statutes. Specifically, Respondents alleged that Petitioners committed the following acts:

   1. Started and encouraged baseless rumors and allegations.

      
      

   2. Encouraged subordinates to fabricate false reports of misconduct involving pilots.

      
      

   3. Rewarded subordinate employees monetarily who assisted the Respondents with the agenda against the pilots.

      
      

   4. Encouraged subordinates to supply false and misleading information to assist in the eventual dissolution of the entire flight department on the pretext of economic downsizing.

      
      

   5. Retaliated against the pilots because said plots had reported chemical spills, safety violations, aircraft tampering, and conflicts of interest to supervisors.

      
      

3. The Complaints were investigated by A. Keith Powell, Investigator for the Ethics Commissioner. Following completion of the investigation, that included an interview with Respondent Allen, Mr. Powell prepared a written report which was submitted to the Ethics Commission on or about June 17, 1996.

4. On July 26, 1996, Eric S. Scott, Advocate for the Ethics Commission, filed an Advocate's Recommendation regarding each of the Complaints. In all instances, Mr. Scott found that there was no probable cause to believe that Petitioners violated Section 112.313(6), Florida Statutes.

5. On September 4, 1996, the Ethics Commission entered a Public Report dismissing the Complaints against Petitioners and finding that there was no probable cause to believe that the Petitioners herein violated Section 112.313(6), Florida Statutes.

6. On June 22, 1994, Polk County's Office of Management and Budget completed review of flight operations and recommended that the County's pilot positions be eliminated and that the County instead contract for pilot services. This recommendation was based on a determination by the County's Office of Management and Budget that such plan would be more cost effective.

7. The Complainants were employees of Polk County and worked as pilots until April 11, 1995, when the Polk County Board of County Commissioners voted to eliminate the pilot positions and contract with a private provider for pilot services.

8. Respondent Allen admitted to Keith Powell, Investigator for the Ethics Commission, that Petitioner Saddler did not encourage the false reports as alleged in the Complaint against Petitioner Saddler. In fact, when asked whether Respondent Allen had knowledge of Petitioner Saddler actually encouraging the preparation of the memorandum in question, Respondent Allen responded, "Probably not. I don't think he had knowledge of it."

9. Regarding Petitioner Mahler, the only evidence that Respondent Allen had that Petitioner Mahler encouraged false reports was that Mr. Mahler had asked Iris Sibal to put her concerns in writing when she reported them to him. This is not

   the same as encouraging false reports. In fact, the Advocate for the Ethics Commission pointed out in his recommendation that under the circumstances which existed, the memorandum written by Iris Sibal was appropriate.

10. Respondent Allen had no basis for the allegations in the Complaints that Petitioners Saddler and Mahler encouraged false reports. Moreover, Respondent Conner was not mentioned in the memorandum, and had no basis whatsoever for this allegation.

11. In their complaint, the Respondents alleged that Petitioners Atterson and Mahler failed to report numerous chemical spills. This allegation was made notwithstanding the fact that it was the Respondents' responsibility to report the spills and then only in instances that resulted in environmental damage. Respondents either knew this to be false or recklessly disregarded whether such allegation was false.

12. Respondents also alleged that the Petitioners knowingly allowed subordinates to engage in outside employment involving conflicts of interest. This allegation was based on Respondent Allen's unfounded assertions that the EVM herbicides belonging to Polk County were being diluted and the subject subordinates were using county herbicides in their outside employment. However, Petitioner Allen acknowledged that he had no evidence to show that there was a theft of EVM herbicides. Furthermore, those

    employees who engaged in outside employment obtained permission from the County. Again, this allegation was made with a reckless disregard of whether the allegations were false.

13. Respondents further alleged that the Petitioners monetarily rewarded or gave pay raises to employees who assisted them with their "agenda" against Respondents. However, the only salary raises that Respondent Allen could point to were those given to employees who were given additional responsibilities as a result of a reorganization of the division in which they worked.

14. Another allegation made by Respondents was that Petit4oners gathered and presented false evidence to facilitate discrediting and dissolving the flight program. This was found to be completely without basis. As stated in paragraph 6 above, the Polk County's Office of Management and Budgeting considered the total costs to the County in relation to the total amount of time that the pilots were flying. The pilots' flight time had been substantially reduced mainly because the County eliminated its Midge Treatment Program. As a result, the Office of Management and Budget recommended that the County contract for pilot services from an outside source and eliminate the in-house flight program. At the time this matter was being considered, Petition Saddler presented Respondent Conner with an opportunity to respond to the Office of Management and Budget recommendation. Although he was given an opportunity to make comments regarding

    the report, Respondent Conner responded only by stating that he had no comment.

15. The Respondents alleged that the Petitioners retaliated against them for reporting chemicals spills, conflicts of interest, and safety violations by eliminating their positions as pilots with the County. This allegation is addressed above regarding dissolution of the flight program.

16. Finally, in their Complaints, Respondents alleged that Petitioner Mahler discriminated against other employees on the basis of race, gender, and personal preference. There was no basis for this allegation. All three of the employees Respondent Allen named denied any misconduct by Petitioner Mahler. With regard to the allegations, Respondent Allen either knew this to be false or recklessly disregarded whether such allegations were false.

17. Respondent Allen admitted that he was hostile toward the Petitioners. In the instant case, Respondents not only filed Complaints with the Ethics Commission that contained unfounded allegations, but also directed that letters be sent to Petitioner Saddler's boss and to counties in which Petitioner Saddler had potential job opportunities.

18. In a letter dated April 25, 1995, to Richard Hedrick, Petitioner Saddler's supervisor, Respondents, through their attorney, refer to Petitioner Saddler as the "chief offender" in the pretextural dismissal of Respondents Allen and Conner. Also,

    the letter stated that Respondents intended to release media disclosures regarding the case. Respondent Allen admitted that following this letter, such media disclosures took place with articles appearing on the front page of the local newspaper, the Lakeland Ledger.

19. In May 1995, at Respondents' direction, two letters were written and sent to counties where Petitioner had applied for jobs. One such letter dated May 18, 1995, was sent to the Chairperson of the Marion County Board of Commissioners. Another letter dated May 9, 1995, was sent to the Chairperson of the Lake County Board of County Commissioners. The contents of both letters were identical. First, the letters stated that "it is my understanding that Mr. Charles Saddler, III, is an applicant for a high post in your county government." Next, the letters stated that Respondents are not disgruntled employees but are men of "high professional and personal ethics who will be under oath, filing formal detailed complaints with the Ethics Commission shortly." Third, the letters referred to an attachment that "generally outlines the nature of the charges" against Petitioner Saddler. Finally, the letter advised that, "Should you wish to interview [him] as to the details, I believe it would be in the public interest to do so."

20. As a result of the aforementioned letters, Respondents injured Petitioner Saddler's ability to compete for the position of County Manager at Lake City. Petitioner Saddler first learned

    of the existence of the letter when questioned about it during his job interview in Lake County. In sending or directing that this letter be sent to the Lake County Commission, Respondents knew that it could have an adverse impact on Petitioner Saddler's application. Respondent Allen admitted as much at hearing.

21. Petitioner Saddler never interviewed for any position with Marion County. However, the letter sent to the Marion County Board of County Commissioners was sent with the same intent to injure Mr. Saddler's reputation or credibility and thus frustrate his ability to compete for the job.

22. These actions by Respondents reflect that such actions were done maliciously, and were aimed at discrediting Petitioner Saddler. Notifying other counties of their "intention" to file complaints with the Ethics Commission and providing a self- serving list of "charges," and then filing the complaint against Petitioner Saddler evidence Respondents' hostility and malicious intent toward Petitioner Saddler.

23. Based on the foregoing, it is clear that Respondents filed the complaints against Petitioners with a malicious intent to injure the reputations of Petitioners. Furthermore, the Complaints were filed with knowledge that the Complaints 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.

24. In defending themselves against the allegations in the subject Complaints and in this proceeding, Petitioners have been represented by Mary E. Harlan, Esquire, and Barbara W. Coleman, Esquire. Ms. Harlan rendered legal services to Petitioners during the period between June 3, 1995, and May 20, 1997, while she was employed by the Polk County Board of County Commissioners. Ms. Harlan's hourly rate is $150.00 and she expended 47 hours and 10 minutes in representing Petitioners in this matter. The hourly rate of $150.00 is a reasonable hourly rate. Likewise, the time expended on this matter, 47 hours and

    10 minutes, is reasonable. Therefore, the attorney's fee of

    
    

    $7,075.00 incurred is reasonable.

    
    

25. Barbara W. Coleman is an Assistant County Attorney for the Polk County Board of County Commissioners. Ms. Coleman's hourly rate is $75.00 and she has expended 25 hours and 50 minutes in representing Petitioners in this matter. The hourly rate of $75.00 is reasonable, as is the time, 25 hours and 50 minutes, expended on this matter. Therefore, the attorney's fees of $1,937.50 incurred as a result of Ms. Coleman's representation is reasonable.

26. Reasonable costs of $604.00 were incurred in connection with defense of the Complaints against Petitioners and in this proceeding.

27. The aforementioned costs and attorney's fees are reasonable and have been stipulated as such by the parties.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding Section 120.57, Florida Statutes.

29. Pertinent to this proceeding are Section 112.317(8), Florida Statutes, and Rule 34-5.0291, Florida Administrative Code. Section 112.317(8), Florida Statutes, provides in pertinent part:

    In any case in which the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part, the complainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against, including the costs and reasonable attorney's fees incurred in proving entitlement to and the amount of costs and fees. . . .

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

    (1) If the Commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of the Code of Ethics, the

    complainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against.

    
    

31. According to Section 112.317(8), Florida Statutes, and Rule 34-5.0291, Florida Administrative Code, the award of attorney's fees requires that the Petitioners show that the Complaints were filed with a malicious intent to injure the reputation of such officers or employees with knowledge that the complaints contain one or more false allegations or with reckless disregard for whether the complaints contain false allegations of fact material to a violation of the Part III, Chapter 112, Florida Statutes, (Code of Ethics).

32. In this proceeding, Petitioners have the burden of proving the grounds for a award of costs and attorney's fees by a preponderance of the evidence presented at hearing. Rule 34- 5.0291(4), Florida Administrative Code.

33. The evidence in this case clearly established that the allegations contained in the Complaints filed by Respondents against Petitioners had no factual basis and that Respondents filed the complaints with malicious intent to injure the reputation of Petitioners. Respondents' hostility toward Petitioners was due to Respondents' jobs being eliminated. Based on their hostility and malicious intent, Respondents filed the Complaints with knowledge that the Complaints contained one or more false allegations or with reckless disregard for whether the

    Complaints contained false allegations of fact material to a violation of the Code of Ethics.

34. Petitioners have proven by a preponderance of the evidence that Respondents filed the ethics complaints against Petitioners with malicious intent to injure their reputations. Furthermore, taken as a whole, or considering each allegation individually, it is clear that Respondents filed the Complaints with knowledge that such Complaints contained one or more false allegations material to a violation of Code of Ethics.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondents, Carrol G. Allen and Willis D. Conner, liable for attorney's fees of $9,012.50 and for costs of $604.00, and ordering that Respondents pay such fees and costs to the Polk County Board of County Commissioners.

DONE AND ENTERED this 12th day of October, 1998, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUMCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1998.

COPIES FURNISHED:

Barbara W. Coleman, Esquire Office of Polk County Attorney Post Office Box 9005

Drawer AT01

Bartow, Florida 33831-9005

Joseph N. Baron, Esquire Post Office Box 1088 Lakeland, Florida 33802

Kerrie Stillman, Complaint Coordinator Commission on Ethics

2822 Remington Green Circle, Suite 1 Post Office Box 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel Commission on Ethics

2822 Remington Green Circle Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Bonnie Williams, Executive Director Commission on Ethics

2822 Remington Green Circle, Suite 101 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-005214FE

Orders for Case No: 96-005214FE