STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREG BROWN,

Petitioner,

vs.

ROBERT BURGESS,

Respondent.

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) Case No. 04-3007FE

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AMENDED RECOMMENDED ORDER

This case was originally assigned to Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings. Upon remand by the Florida Commission on Ethics, it was assigned to Administrative Law Judge Lisa Shearer Nelson in light of Judge Dean's retirement. In lieu of a live hearing, the parties agreed to submit the case on the official record, by pre-hearing stipulation, and deposition testimony, a list of which is contained in Appendix A to this order.

APPEARANCES

For Petitioner: Albert T. Gimbel, Esquire

Mark Herron, Esquire

Messer, Caparello & Self, P.A.

215 South Monroe Street, Suite 701 Tallahassee, Florida 32301

For Respondent: Joseph Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The question presented in this case is whether Petitioner is entitled to an award of costs and attorney's fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291.

PRELIMINARY STATEMENT

Respondent, Robert Burgess (Burgess), is a resident of Santa Rosa County, Florida, was the Santa Rosa County Property Appraiser from 1984 to December 31, 2000. On April 12, 2004, Burgess signed and filed a sworn ethics complaint with the Florida Commission on Ethics (Commission). The complaint alleged that on November 14, 2003, Petitioner, Greg Brown (Brown), the Santa Rosa County Property Appraiser, improperly reinstated a religious tax exemption for the Spiritual Life and Healing Waters Church, and deleted taxes assessed against the church for prior tax years 2000 through 2003. The complaint further alleged that Brown committed these actions in exchange for the political support of Ms. Lovie Grimes, whose family owned the church, as well as for Grimes’ support to terminate Leon Cooper (Cooper), Brown’s opponent in the election, as an employee of the Florida Department of Revenue.

The Commission fully investigated the allegations of the complaint, and, on June 7, 2004, the Commission issued a final Report of Investigation, which concluded that Burgess’

allegations against Brown lacked merit. On June 11, 2004, the Commission’s Advocate recommended a finding of no probable cause that Brown violated Florida law as alleged in the complaint.

Accordingly, on July 27, 2004, the Commission dismissed Burgess’ ethics complaint.

On August 11, 2004, Brown filed a Petition for Costs and Attorney’s Fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291, alleging that Burgess filed the ethics complaint with malicious intent to injure Brown’s reputation, by filing the complaint with knowledge that the complaint contained one or more false allegations, or with reckless disregard for whether the complaint contained one or more false allegations. That Petition was forwarded to the Division of Administrative Hearings to conduct the formal hearing.

Ultimately, the parties agreed to submit this case on the official record, to include motions, responses to motions and exhibits thereto, through documents and answers exchanged in discovery, by pre-hearing stipulation, and deposition testimony and exhibits. See Appendix A to this Order. The Pre-Hearing Stipulation was filed on October 21, 2005.

On January 31, 2006, Judge Dean issued a Recommended Order recommending that Petitioner be awarded attorney's fees and costs pursuant to section 112.317(8), Florida Statutes.

Exceptions to the Recommended Order were filed by both parties. On June 15, 2006, the Division received an Order of Remand from the Florida Commission on Ethics, requesting that the administrative law judge conform the conclusions of law in the Recommended Order to the standard enunciated by Administrative Law Judge Parrish in Addicott v. Nieman, DOAH No. 04-0043FE/ COE Final Order No. 05-207 (2005); reconsider the evidence of record in light of the revised conclusions of law, to the extent necessary; and enter an Amended Recommended Order.

Upon remand, the case was assigned to the undersigned and the parties were afforded until July 9, 2006, the opportunity to submit further argument. Because the original Recommended Order was issued without benefit of a hearing, the entire record has been considered on remand.

Respondent timely submitted a Final Memorandum. On

July 11, 2006, Petitioner filed an Unopposed Motion for Leave to File Additional Argument, asserting that he had inadvertently miss-calendared the date for filing a response. Florida Administrative Code Rule 28-106.204(5) requires that motions for extension of time shall be filed prior to the expiration of the deadline sought to be extended and shall state good cause.

Nonetheless, inasmuch as Petitioner's Motion is unopposed, both Petitioner's and Respondent's submissions have been considered.

FINDINGS OF FACT

1. Robert Burgess (Burgess) was the Santa Rosa County Property Appraiser from 1984 until December 31, 2000. He continues to reside in Santa Rosa County.

2. Leon Cooper (Cooper) is a former employee of Robert Burgess, and qualified as a candidate for the Property Appraiser of Santa Rosa County on April 12, 2004, to run against the incumbent, Greg Brown (Brown), the Petitioner in this case.

3. Brown was elected and took office on January 1, 2001, and in 2004 was running for re-election for the first time.

4. Burgess supported Cooper's candidacy and opposed Brown's re-election bid in 2004.

5. On April 12, 2004, Burgess signed an ethics complaint to the Florida Commission on Ethics alleging that Brown had reinstated a religious tax exemption for the Spiritual Life and Healing Waters church on November 14, 2003, and deleted taxes assessed against said church for the tax years 2000 through 2003. Burgess alleged that Brown did this in return for the political support of the owner of the church, Ms. Lovie Grimes in the 2004 election. He further alleged that Brown also did this to garner the support of Grimes to have Cooper terminated as an employee of the Florida Department of Revenue.

6. Burgess filed his complaint at the same time a separate ethics complaint was filed against Brown by Hilton Kelly. See

   Brown v. Kelly, DOAH Case No. 04-2867. Robert Burgess knew of the Hilton Kelly complaint and had assisted Kelly's sister, Miller McCombs, in obtaining some the documents relevant to the Kelly complaint. He also assisted her in writing one paragraph contained in the Kelly complaint. However, he never spoke to Hilton Kelly and did not discuss with Miller McCombs the timing of two complaints.

7. The Burgess complaint was fully investigated by the Commission. The investigation revealed that, while still Property Appraiser, Burgess eliminated the tax exemption for the Spiritual Life and Healing Waters Church because it did not appear that the premises were currently being used as a church. The investigation revealed that notice that the exemption was eliminated was not provided to the property owner, Lovie Grimes. The lack of proper notice occurred during Burgess' tenure in office. Taxes were assessed as a result of this action by Burgess and Brown, and after Brown came into office, Grimes was notified of the pending tax sale of tax liens against her property. Grimes called Brown and protested, stating that she had not received notice of the assessment of taxes.

8. Brown requested Chief Deputy Property Appraiser Lorenzo Law Drinkard (Drinkard) to investigate the issue. Drinkard determined that notice had not been given and visited the church where he found pews, religious materials, and a piano. Although

   services were not being conducted at the time he was there, Drinkard concluded that it was being used as a church. On November 14, 2003, Drinkard determined that the exemption should be reinstated because it was being used as a church and the taxes assessed be eliminated because notice had not been provided. He did not actually observe any services being conducted but observed the presence of church pews, a piano and some equipment related to repair of the building.

9. Burgess, as the former Property Appraiser, was aware of the legal requirements in granting and removing exemptions. No record could be found in the Property Appraiser's office to substantiate that the required notice to the owner had been sent regarding the elimination of the exemption for property used for religious purposes. Burgess had instructed that the exemption be removed and believed that it was done correctly, but did not follow up to ensure that this was the case.

10. During his tenure as Property Appraiser, Burgess had no direct contact with the Spiritual Life and Healing Waters Church regarding the factual basis for removal of the religious tax exemption.

11. The records reinstating the exemption for the church, which were attached to Burgess's complaint, indicated that the exemption had been removed due to "clerical error." Burgess

    knew that he had directed that the exemption be removed, and did not believe this representation to be accurate.

12. The Burgess complaint asserts that the motivation for granting the tax exemption is based in part on Greg Brown's desire to gain support from Lovie Grimes to have Leon Cooper terminated from his position with the Florida Department of Revenue. The record reflects that Brown first wrote to the Department of Revenue complaining about Leon Cooper's behavior on December 31, 2003. He refers to the possibility of Leon Cooper running against him in the next election, and states,

    Mr. Cooper raised other issues that can be brought up by any taxpayer or person desiring to run for office, as Mr. Cooper has told many that he is strongly considering. This is evidenced by his communication with staff members and visits he had with at least three businesspeople in our county. He has told them he is considering running and I surmise he is asking for their support should he run.

    
    

    While the events referred to in the letter clearly predate the letter itself, there is no way to accurately determine when these purported conversations took place. Mr. Cooper contacted Mrs. Grimes more than once to elicit campaign support: once sometime in late 2003 and again in January 2004. When he contacted her in January 2004, Mrs. Grimes told him everything related to the church property was okay. What is more important, and what cannot be determined on this record, is when

    Greg Brown first considered reporting what he believed to be Leon Cooper's inappropriate behavior to the Department.

13. Brown wrote to the Department again on February 13, 2004, complaining that Leon Cooper may be campaigning during work hours and while using state equipment. The letter refers specifically to a phone call received around January 15, 2004 from Lovie Grimes, in which Mrs. Grimes related conversations she had with Leon Cooper regarding Mr. Brown.

14. The Memorandum issued by the Department of Revenue's Inspector General's Office indicates that on March 4, 2004, Ms. Grimes stated that "approximately two to three months ago" Cooper had contacted her to discuss issues related to

    Mr. Brown's office. Mrs. Grimes' recollection of the dates she spoke with both Cooper and Brown is hazy at best. In any event, it appears that by the time Brown actually complained to the Department of Revenue about Cooper's conduct, the tax exemption for the Spiritual Life and Healing Waters Church had been reinstated.

15. While it is clear that Robert Burgess knew that the tax exemption had been reinstated, knew of the conversations between Lovie Grimes and Leon Cooper, and knew of Greg Brown's letters to the Department of Revenue, it is not clear that he knew the order in which these events occurred. He acknowledged the existence of the February 13, 2004, letter, but believed

    there was more than one letter to the Department of Revenue regarding Mr. Brown, which there was. All occurred prior to Burgess' filing the ethics complaint against Greg Brown. It appears and the Ethics Commission concluded that the tax exemption had been reinstated before Brown first complained to the Department of Revenue about Cooper, so gaining Mrs. Grimes' support could not have been a motivation for reinstating the exemption.

16. Nonetheless, there is no evidence in the record upon which it can be found that Mr. Burgess ever entertained serious doubts as to the truth of the allegations in his complaint. He stated, "If it's in the letter I believe it." Burgess was upset that his successor had reinstated a tax exemption that he had terminated, and felt this action was like saying that he had not done his job correctly. Moreover, the reasons stated in the records for reinstating the exemption conflicted with what he knew to have happened. The record does not show that he ever doubted the allegations in his complaint.

    CONCLUSIONS OF LAW

    
    

17. The Division has jurisdiction over the subject matter and parties pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2004).

18. Section 112.317(8), Florida Statutes, provides:

    
    

    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 compliant contains one or more false allegations or with reckless disregard for whether the complaint contains 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 the costs and fees.

    
    

19. The Ethics Commission has determined that awards for fees are governed by the "actual malice" standard enunciated in New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964) and its progeny. See In re Michael Addicott, DOAH Case No. 04- 0043FE (COE Final Order April 26, 2005). Unless an agency's construction of a statute leads to an unreasonable or erroneous result, the agency's interpretation of a state it is charged with enforcing is entitled to great deference. Level 3 Communications, LLC v. Jacobs, 841 So. 2d 447 (Fla. 2003); Osorio v. Board of Professional Surveyors and Mappers, 898 So. 2d 188 (Fla. 5th DCA 2005).

20. Accordingly, the Sullivan standard controls the outcome of this petition for fees and costs pursuant to section 112.317(8), Florida Statutes. Petitioner must demonstrate that the Respondent filed the complaint against him with a malicious intent to injure his reputation, with the knowledge that the complaint contained one or more false allegations or with reckless disregard for whether it contained false allegations of facts material to a violation of the Code of Ethics. In order to show that Respondent acted with reckless disregard as to the truth or falsity of statements made, Petitioner must present evidence "sufficient to permit the conclusion that the [Respondent] in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731,

    88 S. Ct. 1323, 1325 (1968). If this rather stringent standard is met, then Petitioner must establish the amount of costs and attorney's fees based on the criteria set forth in Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). The burden of proof is one of clear and convincing evidence. New York Times v. Sullivan, 376 U.S. at 285-86, 84

    S. Ct. at 729.

    
    

21. The Petition for Costs and Attorney's Fees asserts the following statements in support of its claim that Robert Burgess made false statements in his ethics complaint and acted with malicious intent:

    5. Robert Burgess knew at the time he filed the complaint that the allegations relating to Greg Brown [sic] motivations concerning the tax-exempt status of the property were false. As the complaint states, the action taken to reinstate the exemption was taken on November 14, 2003. In correspondence dated February 13, 2004 to David Beggs, of which Robert Burgess was aware at the time he filed the complaint, states that Lovie Grimes called him on January 15, 2004. . . .

    Robert Burgess knew at the time he filed the complaint that Lovie Grimes did not contact Greg Brown concerning the conduct of Leon Cooper until January 15, 2004, some two months after the tax exempt status of the property had been reinstated.

    
    

22. The Petition for Costs and Attorneys Fees also alleges at paragraphs 6-10 facts related to the complaint filed by Hilton Kelly. These allegations cannot form the basis for an award of attorney's fees and costs against Robert Burgess, because Section 112.317(8) only authorizes such an award where a person has actually filed a complaint against a public officer or employee. Inasmuch as Robert Burgess did not file the Hilton Kelly complaint, any actions he took to assist in its preparation do not support an award for fees and costs under the statute.

23. With respect to the allegations in paragraph five of the Petition, the evidence does not support the assertion that Robert Burgess knew the allegations regarding Brown's motivation for reinstating the tax exemption were false at the time he made them. Burgess knew that the tax exemption had been removed

    under his watch and that it had been reinstated by his successor. He also knew that the statement on the records reinstating the exemption, that it had been removed as a result of "clerical error," was inaccurate. Although a reasonable man standard would require Burgess to investigate the basis for his conclusion that the exemption was reinstated for political motivations, the Supreme Court in New York Times expressly rejected such a standard. As stated by the Supreme Court in St. Amant, "reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." 390 U.S. at 731, 88 S. Ct. at 1325.

24. While Burgess' assertion may have been irresponsible, there is no evidence that he doubted the truth of what he said. The Supreme Court has acknowledged that the standard for reckless conduct is a high one:

It may be said that such a test puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant's testimony that he published the statement in good faith and unaware of its probable falsity. Concededly the reckless

disregard standard may permit recovery in fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher.

But New York Times and succeeding cases have emphasized that the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self- censorship and this adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones. We adhere to this view and to the line which our cases have drawn between false communications which are protected and those which are not.

St. Amant, 390 U.S. at 731-32, 88 S. Ct. at 1326. When measured against this standard, Petitioner has not demonstrated that Respondent acted with reckless disregard when he filed the ethics complaint in this case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Commission enter a final order denying Petitioner's Petition for Fees and Costs.

DONE AND ENTERED this 14th day of July, 2006, in Tallahassee, Leon County, Florida.

S

Lisa Shearer Nelson Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2006.

COPIES FURNISHED:

Albert T. Gimbel, Esquire Mark Herron, Esquire

Messer, Caparello & Self, P.A.

215 South Monroe Street, Suite 701 Tallahassee, Florida 32301

Joseph Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

Kaye Starling, Agency Clerk Commission of Ethics

3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Philip C. Claypool, General Counsel Commission of Ethics

3600 Macclay Boulevard, South, Suite 201 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.

APPENDIX A (EXHIBITS)

By Pre-Hearing Stipulation, the parties agreed that the following exhibits were admitted into evidence:

1. Ethics Complaint 04-084, sworn to by Hilton Kelly on April 12, 2004, against Greg Brown, and received by the Florida Commission on Ethics on April 14, 2004.

   
   

2. Report of Investigation, prepared by A. Keith Powell, Investigator, issued on June 7, 2004 by the Florida Commission on Ethics.

   
   

3. Advocate’s Recommendation, dated June 11, 2004 prepared by James H. Peterson, III, Advocate for the Florida Commission on Ethics.

   
   

4. Public Report, dated July 27, 2004 dismissing the complaint as rendered by the Florida Commission on Ethics.

   
   

5. Deposition Transcript of Donald W. Moore dated April 22, 2005.

   
   

6. Deposition Transcript of Lorenzo Law Drinkard dated April 27, 2005, with Exhibits 1-3.

   
   

7. Deposition Transcript of Hilton Kelly dated April 28, 2005, with Exhibits 4-6.

   
   

8. Deposition Transcript of Robert Burgess dated April 28, 2005, with Exhibits 7-12.

   
   

9. Deposition Transcript of Gregory Stephen Brown dated April 29, 2005, with Exhibits 13-20.

   
   

10. Deposition Transcript of Miller McCombs dated April 28, 2005.

    
    

11. Deposition Transcript of Leon Cooper dated September 21, 2005.

    
    

12. Deposition Transcript of Keith Hodges dated September 21, 2005.

    
    

13. Deposition Transcript of Chris Haughee dated September 21, 2005.

14. All pleadings, motions, and the responses and exhibits thereto filed by the parties.

    
    

15. All discovery responses to Interrogatories, Requests for Production of Documents, and Request for Admissions filed by the parties.

    
    

16. Documents produced in discovery by the parties, identified as follows:

    
    

    Brown documents numbered [K]-1 through [K]-89.

    
    

    Kelly documents (unnumbered) in response to requests for production of documents Nos. 9, 10, and 12.

    
    

17. DVD of photographs taken of the Donald Moore property.

    
    

18. Affidavit of Attorneys Fees filed by Albert T. Gimbel.

    
    

19. Affidavit of Costs filed by Albert T. Gimbel.

    
    

20. Affidavit of Attorneys Fees filed by Mark Herron.

    
    

21. Affidavit of Costs filed by Mark Herron.

    
    

22. Affidavit of Reasonable Attorneys Fees and Costs filed by Michael E. Dutko.

    
    

23. Deposition Transcript of Michael E. Dutko dated October 13, 2005.

    
    

24. Affidavits, depositions, records, and other documents to be submitted additional to those already of record, in support of or in opposition to the attorney’s fees claimed.

Citations to the deposition transcripts shall be designated by the name of the deponent, followed by the page and line of the transcript. For example, a citation to page 5, line 20 of Greg Brown’s deposition transcript will appear as “Brown depo.

5:20.”

Docket for Case No: 04-003007FE

Orders for Case No: 04-003007FE