STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GEORGE HANNS,
vs.
Petitioner,
Case No. 16-5248FE
DENNIS MCDONALD,
Respondent.
/
RECOMMENDED ORDER
A duly noticed final hearing was held in this matter on May 16, 2017, at the Division of Administrative Hearings in Tallahassee, Florida, before Administrative Law Judge Suzanne Van Wyk.
APPEARANCES
For Petitioner: Albert T. Gimbel, Esquire
Mark Herron, Esquire Messer Caparello, P.A. 2618 Centennial Place Post Office Box 15579
Tallahassee, Florida 32317
Albert J. Hadeed, Esquire Flagler County Board of
County Commissioners
1769 East Moody Boulevard, Building 2
Bunnell, Florida 32110 For Respondent: No Appearance
STATEMENT OF THE ISSUES
Whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to section 112.313(7), Florida Statutes, and Florida Administrative Code Rule 34-5.0291; and, if so, in what amount.
PRELIMINARY STATEMENT
On September 13, 2016, the Florida Commission on Ethics (“Commission”) referred five separate petitions seeking costs and attorneys’ fees pursuant to section 112.313(7) and rule 34-5.0291, requesting the Division of Administrative Hearings (“Division”) assign an Administrative Law Judge to conduct a formal administrative hearing and to prepare a recommended
order. Upon receipt of the referrals from the Commission, the Division opened five separate cases which were referred to the undersigned. After reviewing the records forwarded by the Commission, the undersigned, sua sponte, entered an Order consolidating the five cases.1/
Counsel for Petitioners filed responses to the Initial Order on behalf of each Petitioner and suggested that the hearing be held in Tallahassee.2/ Following is a procedural history of the consolidated cases.
Respondent Mark Richter, Jr. (“Richter Jr.”), did not file a response to the Initial Order.3/ In their response to Case Nos. 16-5244FE and 16-5246FE, counsel for Petitioners outlined
their unsuccessful attempts to contact Richter Jr. Counsel for Petitioners indicated contact was made by telephone with Richter Jr.’s father, Mark Richter, Sr. (“Richter Sr.”). When asked to provide contact information for his son, Richter Sr. advised that he had none. When then asked to forward the materials to his son, as this was an important matter, Richter Sr. reiterated that he had no contact information on his son and abruptly ended the phone call.
Respondent Kimberle Weeks (“Weeks”) filed a response to the Initial Order in Case Nos. 16-5246FE and 16-5247FE, in which she requested that the hearing take place in Orlando, Florida, but otherwise indicated that she would be “unavailable for any dates and times until a pending legal matter is resolved or until authorized by her legal counsel[.]”
Respondent Dennis McDonald (“McDonald”) filed a response to the Initial Order in Case No. 16-5248FE, in which he suggested the hearing be held in Central Florida and that he would be available for hearing on various dates, including December 1, 2016 through December 19, 2016.
Following a telephonic status conference on October 5, 2016, at which counsel for Petitioners and McDonald participated and discussed scheduling issues, the undersigned entered a Notice of Hearing on October 6, 2016, which set the final hearing for December 12 through 16, 2016, in Tallahassee.4/
On October 27, 2016, Petitioners served initial discovery requests on Respondents. On December 2, 2016, Petitioners filed a motion to continue the hearing because Respondents failed to respond to Petitioners’ discovery. Counsel for Petitioners indicated that he had been unable to contact Richter Jr., Weeks, or McDonald to determine the status of their responses to the discovery. By Order entered December 7, 2016, after finding good cause existed to continue the hearing, the undersigned cancelled the hearing scheduled for December 12 through 16, 2016, and rescheduled the final hearing for March 6 through 9, 2017.
On December 22, 2016, counsel for Petitioners filed a motion to compel responses to the unanswered interrogatories and requests to produce which were propounded on October 27, 2016.
On January 6, 2017, the undersigned scheduled a telephonic hearing on Petitioners’ motion to compel for January 20, 2017. Counsel for Petitioners and Respondents Weeks and McDonald participated in the telephonic hearing during which the undersigned informed the participating Respondents of the consequences and implications of failure to respond to Petitioners’ discovery requests. By Order dated January 20, 2017, the undersigned granted Petitioners’ motion to compel and ordered Respondents to serve answers to Petitioners’ First Set of Interrogatories, and to produce documents in response to
Petitioners’ First Request for Production of Documents on or before January 30, 2017.5/
Petitioners filed a second motion for continuance on February 8, 2017. The motion was based on the failure of Richter Jr. and Weeks to provide responses to Petitioners’ pending discovery, despite the prior Order granting the motion to compel, and on the failure of McDonald to provide sufficient responses to the pending discovery. In that motion, Petitioners noted that they had served requests for admissions on each of the Respondents on February 2, 2017, and that they intended to depose each of the Respondents before the final hearing.6/
By Order entered February 16, 2017, the undersigned cancelled the hearing scheduled for March 6 through 9, 2017, and ordered each party to advise, in writing, no later than March 3, 2017, of all dates on which they were available for rescheduling the final hearing in April 2017. Richter Jr. filed no response. Weeks filed a response stating that because of other obligations for “April 2017 through May 27, 2017, [she] will not be available until May 28th through May 31st 2017.” McDonald indicated that he was available for several days in both April and May of 2017. Petitioners likewise indicated they were available for several days in both April and May of 2017.
By Order dated March 23, 2017, the undersigned rescheduled the final hearing for May 15 through 19, 2017, noting:
On March 2, 2017, Respondent Weeks filed a response indicating her unavailability the entire month of April 2017, and through May 27, 2017. Respondent Weeks’ notice of unavailability for almost two months is
unacceptable. On March 3 and March 6, 2017, Petitioner and Respondent McDonald, respectively, filed notices of available dates in April and May 2017. Only one set of dates, April 4 through 7, 2017, were common to both Petitioners and Respondent McDonald.
The undersigned has made numerous attempts to reach the parties to schedule a telephone conference to coordinate a mutually- agreeable date to reschedule the hearing in this matter. Telephone messages to Respondent McDonald have not been returned, and the telephone number provided by Respondent Weeks (which was confirmed by her on a previous telephone conference), rings incessantly but remains unanswered. No voice mail or other message service is provided.
With much effort on behalf of Division staff, the undersigned has identified dates on which the Petitioners are available and which overlap with dates identified as available for Respondent McDonald.
On February 14, 2017, counsel for Petitioners informed the undersigned of the death of Petitioner Frank Meeker and moved to substitute his wife, Debra Meeker, as surviving spouse and sole beneficiary, in these proceedings. By Order entered February 28, 2017, the undersigned granted the motion and ordered that the style of this cause be amended to substitute Debra R. Meeker for Frank J. Meeker, deceased.
On March 2, 2017, McDonald filed a motion to dismiss, asserting that he was not afforded due process by the action of the Commission in its referral of the matter to the Division.
By Orders entered March 7, 2017, and March 8, 2017 (“Amended Order”), the undersigned denied McDonald’s motion to dismiss.
On March 27, 2017, Petitioners filed a motion to permit, post hoc, Petitioners’ filing of Requests for Admission on February 2, 2017, which exceeded the number permitted by the Florida Rules of Civil Procedure, and to deem all unanswered Request for Admissions as having been admitted. In support of the motion, Petitioners stated that Requests for Admissions were served by U.S. Mail to: (1) mailing addresses that were confirmed on the record by Respondents Weeks and McDonald during prior proceedings held in this matter; (2) addresses shown and sworn to as true and correct by each of the Respondents on the original complaint filed with the Commission in this matter; and
via e-mail addresses confirmed by Respondents Weeks and McDonald during prior hearings in this matter. By Order dated April 11, 2017, the undersigned granted the motion, noting:
In the Motion, Petitioners request the undersigned to deem admitted the statements in Petitioners’ Request for Admissions served Respondents on February 2, 2017 (Request), to which no response has been filed.
Pursuant to Florida Rule of Civil Procedure 1.370(a), Respondents were under an
obligation to serve written responses or objections to the Request within 30 days of service, or by March 6, 2017. By operation of the rule, Respondents’ failure to timely respond to the Request renders the statements admitted. The undersigned is mindful that Respondents are unrepresented and the penalty is harsh. However, the undersigned has previously instructed Respondents Weeks and McDonald of the duty to respond to discovery and the penalties for failure to comply. [endnote omitted]
In the Motion, Petitioners also request the undersigned approved [sic], post hoc, Request for Admissions that exceed the number set forth in the rule. The rule authorizes the undersigned to allow a party to exceed the limit on number of requests “on motion and notice and for good cause.” Fla. R. Civ. P. 1.370(a). Petitioners served the motion on March 27, 2017, and Respondents have had notice of same since that date, but not filed any objection.
Good cause for exceeding the limit has been established by Respondents’ failure to cooperate in discovery in this matter, which has resulted in significant delays and hampered Petitioners’ efforts to establish their case by other means.
On May 2, 2017, Petitioners filed a motion in limine or, alternatively, a motion for sanctions restricting Respondents from introducing testimony and evidence at trial not previously disclosed to Petitioners. In support of the motion, Petitioners set forth (1) the failure of Respondents to respond to prior discovery requests; (2) the failure of Respondents to respond to the requests for admissions; and (3) the refusal of Respondents and others associated with them to participate in properly
noticed depositions.7/ By Order dated May 10, 2017, the undersigned granted the motion and ordered that:
Respondents are prohibited from presenting any testimony or documentary evidence at the final hearing which would have been disclosed, produced, discussed, or otherwise revealed in response to Petitioners’ discovery requests, or which would contradict any of the Requests for Admission which have been deemed admitted by the undersigned’s Order dated April 11, 2017.
On May 9, 2017, Weeks filed a motion to change venue of the final hearing from Tallahassee (Leon County) to Bunnell (Flagler County). By Order dated May 10, 2017, the undersigned denied Weeks motion to change venue.
On May 11, 2017, McDonald filed a motion to dismiss the petition against him in Case No. 16-5248FE on the basis that the issues regarding costs and attorneys’ fees in this case have already been decided by the First District Court of Appeal in Hadeed et al. v. Commission on Ethics, 208 So. 3d 782 (Fla.
1st DCA 2016). By Order dated May 11, 2017, the undersigned denied McDonald’s motion to dismiss.
On May 11, 2017, Weeks filed a motion to dismiss the petitions filed against her asserting “qualified immunity.”8/ By Order entered May 16, 2017, the undersigned denied Weeks’ motion to dismiss based on “qualified immunity.”
On Friday, May 12, 2017, Weeks filed a motion to appear telephonically at the hearing scheduled to commence the
following Monday, May 15, 2017. By Order dated May 15, 2017, the undersigned denied Weeks motion to appear telephonically.
The final hearing commenced as scheduled. None of the Respondents appeared at the hearing. Petitioners presented the testimony of the following witnesses: Debra Meeker, the widow of former Flagler County Commissioner Frank Meeker (“Meeker”) and Petitioner in Case No. 16-5245FE; Albert J. Hadeed, Flagler County Attorney and Petitioner in Case No. 16-5247FE; Charles Ericksen, Jr., Flagler County Commissioner and Petitioner in Case No. 16-5246FE; Nate McLaughlin, Flagler County Commissioner and Petitioner in Case No. 16-5244FE; and George Hanns, former Flagler County Commissioner and Petitioner in Case No. 16-5248FE. With respect to costs and attorneys’ fees, Petitioners presented the testimony of Mr. Hadeed; Mark Herron, counsel for Petitioners; and Michael P. Donaldson as an expert witness on attorneys’ fees. Petitioners’ Exhibits P-1
through P-97 were admitted into evidence.
After the conclusion of the formal hearing, Petitioners filed a motion to re-open the record to permit submission of two additional exhibits regarding the underlying facts relative to McDonald’s motion to dismiss the petition for costs and attorneys’ fees in Case No. 16-5248FE. No objection or other response was filed by McDonald. By Order dated June 1, 2017,
the undersigned granted the motion to re-open the record and Petitioners’ Exhibits P-98 and P-99 were admitted.
On July 31, 2017, Petitioner moved to introduce supplemental exhibits on costs and attorneys’ fees incurred in pursuing this matter after conclusion of the final hearing.
No objection or other response was filed by any of the Respondents. The motions were granted and Petitioner’s Exhibits P-100E, P-101, and P-102 were admitted in evidence.
Counsel for Petitioners asked to submit a proposed recommended order within 30 days of the transcript being filed with the Division. A two-volume Transcript was filed with the Division on June 30, 2017. Petitioner timely filed a Proposed Recommended Order, which has been taken into consideration in preparing this Recommended Order.
Counsel for Petitioners filed, with the concurrence of the Commission, a motion on July 12, 2017, requesting that separate proposed recommended orders be filed so that separate recommended orders can be issued. By Order dated July 13, 2017, the undersigned severed these cases. Accordingly, separate Recommended Orders have been rendered in each case.
FINDINGS OF FACT
Ethics Complaint 15-174
On August 17, 2015, the Commission received a complaint against George Hanns (“Hanns”) filed by McDonald
which alleged that Hanns, as a member of the Flagler County Commission (“County Commission”) and the Flagler County Canvassing Board (“Canvassing Board”), violated Florida’s election laws, the Government-in-the-Sunshine Law (“Sunshine Law”), and Florida’s Code of Ethics for Public Officers and Employees (“Code of Ethics”).
Specific allegations in the complaint included that:
A Special Canvassing Board meeting was
held on September 12, 2014 in the Supervisor of Elections office bringing in a record crowd of voters. Commissioner Hanns and other county commissioner's behaviors and actions towards the Supervisor of Elections were criticized by Joe Kubusky. George Hanns became argumentative, stood up
(in a threatening manner) and very unprofessionally verbally lashed back yelling at the public in a threatening manner. Many of the individuals present recorded the meeting, as did the Supervisor of Elections. Following the September 12, 2014 Special Canvassing Board meeting a scheduled County Commission meeting was held. It was at this time County Commission Chair/Canvassing Board member George Hanns brought up at the end of the County Commission meeting issues faced during Canvassing Board meetings. The alternate canvassing board member Barbara Revels and county attorney/canvassing board attorney Albert Hadeed were present. A discussion then took place at the County Commission meeting about the appointment of a canvassing board attorney along with other election related topics; all which were captured on audio by the staff member of the Clerk of the Court. It is believed that none of the election related topics were reflected on the meeting agenda, advertised to the public or reflected in the Board of
County Commission meeting minutes. Furthermore, the other canvassing board members (including the Supervisor of Elections) were not noticed and provided the opportunity to be present to participate in the discussions. It would not be expected that election Canvassing Board issues be discussed at a Board of County Commission Meeting with only a canvassing board member and canvassing board alternates present.
During the Board of County Commission meeting it was stated that action was to take place at the next scheduled election canvassing board meeting (October 17, 2014) for the county attorney Albert Hadeed (the board of county commissioners attorney) to be appointed the official canvassing board attorney, which in fact did occur during the October 17, 2014 Canvassing Board meeting as had been stated at the County Commission meeting and Commissioner George Hanns was the one to make the motion on the matter.
From my perspective and other public attendees it seemed that this voting in of Hadeed had been prearranged! No such topic was discussed during the September 12th Special Canvassing Board meeting or at any other prior Canvassing Board meetings, therefore, it is believed a violation of the Florida Sunshine Law occurred. It was unknown by the Canvassing Board Agenda that a vote was going to take place at the October 17, 2014 canvassing board meeting as to who the canvassing board attorney would be. This September 12, 2014 Board of County Commission meeting appeared to be the prime opportunity for collaboration between commissioners (canvassing board member and alternates) and their staff to poll support from one another to manipulate and conquer the events of election canvassing board meetings to their advantage and liking, and to undermine and attack the supervisor of elections who is a constitutional elected officer who is independently elected by the people to preserve the integrity of the elections process.[9/]
The complaint also alleged that:
The County Commission also discussed election related issues on or about October 20, 2014 at a regularly scheduled Board of County Commission meeting, which too is believed to be a violation of the Sunshine Law as it was not advertised, was not on the meeting agenda, nor were other
canvassing board members noticed or provided the opportunity to participate in the discussions. These occurrences of discussing the Canvassing Boards business take place with Commissioner George Hanns, Chair of the County Commission leading the meetings, and are done at the end of Board of County Commission meetings where the public would not expect such events. All discussions are captured on meeting audio though they may not be reflected in the Board of County Commission meeting minutes.
The complaint further alleged that:
The actions of George Hanns, the other county commissioners, and their staff have been done willingly, intentionally and with knowledge. They have used their position for personal gain- to remain in office, and to benefit other fellow commissioners to get re-re-elected so they too could remain in office to carry out agendas collectively.
In the last two election cycles four of these commissioners have been narrowly elected. Hanns was a five term incumbent but won by 318 votes to a first time candidate, that was less than 1% but more than the .5% required to recount. Ericksen won by 120 votes and Meeker survived by 209 votes. They together retaliated against the supervisor of elections by conspiring together to harm the Supervisor of Elections reputation and their actions impacted our elections. Chair Commissioner George Hanns used his county employees to carry out his agenda relating to unethical practice and attacking the Supervisor of Elections for
exposing his wrong doing and his dislike for being requested to remove himself from the county canvassing board. Commissioner Hanns and his fellow Commissioners are responsible for the actions and behaviors of the county administrator Craig Coffey and County Attorney Albert Hadeed. The removal of Commissioner George Hanns from the Canvassing Board left him powerless in the canvassing process and an embarrassment to our County.
Discussions regarding the canvassing board took place at least twice at board of county commissioner meetings following the September 12, 2014 special canvassing board meeting and again on October 20, 2014. It is believed that both times canvassing board member and others have violated the Sunshine Law, and it is believed that those involved that are not canvassing board members or alternates were being a conduit to certain canvassing board members who were present.
The complaint was reviewed by the Executive Director of the Commission who found the complaint to be legally sufficient to warrant an investigation:
The complaint alleges that the [Hanns] and other members of the Board [of County Commissioners] or members of the canvassing board were involved in discussions which may not have been in compliance with the Sunshine Law, in order to manipulate canvassing board members or canvassing board conduct, that the Respondent was involved in placement of the County Attorney as attorney for the canvassing board (a placement objected to by the Supervisor of Elections), and that the Respondent was involved in other or related conduct, including retaliation against the Supervisor of Elections, apparently for the benefit of a particular candidate the Respondent had endorsed, or for the benefit of others.
This indicates possible violation of Section 112.313(6), Florida Statutes.
As a result, the complaint was determined to be legally sufficient and the investigative staff of the Commission was directed to “conduct a preliminary investigation of this complaint for a probable cause determination of whether [Hanns] has violated section 112.313(6), Florida Statutes, as set forth above.”
The Commission’s Investigation
The complaint was investigated by Commission Investigator K. Travis Wade. On February 19, 2016, the Commission issued its Report of Investigation, which found, as follows:
Florida law provides that a county canvassing board shall be comprised of the Supervisor of Elections, a County Court Judge, and the Chair of the County Commission. Additionally, an alternate member must be appointed by the Chair of the County Commission. The Canvassing Board for the
2014 Election was made up of Hanns (then-County Commission Chair), Judge Melissa Moore-Stens, and then-Supervisor of Elections Weeks. Initially, the alternate member of the Canvassing Board was County Commission member
Charles Ericksen, Jr.
Minutes from the September 15, 2014 Flagler County Commission (“County Commission”) meeting indicate that during the “Commission Reports/Comments” portion of the meeting there was a discussion regarding who had the authority to appoint the Canvassing Board attorney, but no official action was taken at that time. The minutes indicate that County Attorney Albert Hadeed advised that it would be the Canvassing Board's decision as to who its legal counsel should be; and that County Administrator Craig Coffey suggested that the Canvassing Board resolve the issue at its next meeting.
Current Flagler County Supervisor of Elections Kaiti Lenhart advised that her records indicate that either the County Attorney or an attorney from the County Attorney's Office has served as the Canvassing Board Attorney since 1998. Records preceding the 1998 election are not available. County Attorney Hadeed indicated that the County Attorney, or someone from the County Attorney’s Office, had served as the Canvassing Board Attorney for the past 25 years.
Minutes from the October 17, 2014 Canvassing Board meeting indicate that Weeks made a motion that she be given authority to select the Canvassing Board attorney and that her motion died for lack of a second.
The issue of Commissioner Ericksen's contribution to a candidate in the subject election was raised at the October 17,
2014 Canvassing Board meeting by Weeks. Commissioner Ericksen was not present at the meeting. Hanns indicated at the meeting that he would bring the issue to the attention of the County Commission at its next regular meeting, which was scheduled for October 20, 2014, thus alerting the members of the Canvassing Board that the issue would be publicly discussed by the County Commission.
Minutes from the October 20, 2014 County Commission meeting indicate that there was a discussion regarding Commissioner Ericksen’s contribution to Meeker, who had opposition in his upcoming reelection, and that Commissioner Ericksen resigned as an alternate member of the Canvassing Board at that time. The Commission then voted to appoint Commissioner Barbara Revels as the alternate Canvassing Board member.
All discussions by the County Commission regarding the Canvassing Board took place during the “Commissioner Reports/Comments” or “Commission Action” portion of duly noticed County Commission meetings.
The only members of the Canvassing Board present at the October 20, 2014 County Commission meeting were Hanns and alternate member Commissioner Ericksen.
The minutes from the October 20, 2014 County Commission meeting indicate that the County Commission reached a “consensus” to authorize the County Administrator to request the
observer for the remainder of the election cycle. This request resulted from Hanns’ observations, while a member of the Canvassing Board, regarding the handling of absentee ballots by Weeks, whom he believed had close connections to at least one candidate in the election.
County Administrator Coffey raised these concerns at the October 20, 2014 Commission meeting and requested County Commission permission to request an observer from the Division of Elections. County Administrator Coffey's October 21, 2014 letter to the Secretary of State, requesting an observer, indicates that the County Commission voted unanimously to authorize him to pursue the request. County Administrator Coffey stated in the letter that the community's confidence in the elections process is low due to both recent and past events involving the Supervisor of Elections.
When asked about his allegation that Hanns was involved in other or related conduct, apparently for the benefit of particular candidates or others, McDonald indicated that he had no information regarding that allegation.
Commission on Ethics Advocate’s Recommendation
On March 7, 2016, Commission Advocate Elizabeth L. Miller recommended that there was no probable cause to believe that Hanns violated section 112.313(6) by participating in discussions which may have been in violation of the Sunshine
Law, or other related conduct regarding appointment of the County Attorney as attorney for the Canvassing Board in order to manipulate Canvassing Board members or to carry out a planned agenda for the benefit of particular candidates or others. In addition, the Commission Advocate recommended that there was no probable cause to believe that Hanns violated section 112.313(6) by retaliating against the then-Supervisor of Elections for her efforts to remove two County Commissioners from the Canvassing Board.
On April 20, 2016, the Commission issued its Public Report dismissing McDonald’s complaint against Hanns for lack of probable cause.
McDonald’s Knowledge of the Falsity of His Sworn Allegations
McDonald filed a sworn complaint against Hanns. When he signed the complaint, McDonald executed an oath that “the facts set forth in the complaint were true and correct ”
When he filed his complaint against Hanns, McDonald had access to the video of the County Commission meeting of September 15, 2014, posted on the County’s website and the published minutes of that meeting, also available online or by request.
Video of the 2014 meetings of the County Commission are archived for public viewing on the Flagler County website. Minutes of all County Commission meetings are public record
available to the public on the Flagler Clerk of Court’s website and upon request.
Neither the posted video nor the minutes of the September 15, 2014 meeting of the Flagler County Commission indicate that any action was taken by consensus vote or by any other vote regarding who had the authority to appoint the attorney for the Canvassing Board.
No vote was taken by the County Commission to designate the County Attorney as the attorney for the Canvassing Board.
To the contrary, the County Commission determined that it was a matter for the Canvassing Board to select its own attorney.
All meetings of the Canvassing Board are publicly noticed and open to the public and its records are open for public inspection.
When asked by the Commission’s investigator whether Hanns was involved in other or related conduct, for the benefit of particular candidates or others, McDonald indicated he had no information regarding that allegation.
The allegations in the McDonald’s complaint against Hanns, which the Commission found material to investigate, were known by McDonald to be false, or filed by McDonald with reckless disregard for whether they were true or false.
Malicious Intent to Injure Hanns
Whether the claims against public officials were “motivated by the desire to [impugn character and injure reputation],” is a question of fact. Brown v. State, Comm’n on Ethics, 969 So. 2d 553, 555 (Fla. 1st DCA 2007).
The evidence adduced at the hearing established that McDonald worked in concert with other individuals to maliciously injure the reputation of Hanns by filing complaints containing false allegations material to the Code of Ethics with the Commission on Ethics and other agencies.
This group, formed in 2009 or 2010, was known formally as the Ronald Reagan Republican Association, informally as the “Triple Rs.” Members of the group included McDonald, Richter Sr., John Ruffalo, Carole Ruffalo, Ray Stephens, William McGuire, Bob Hamby, and Dan Bozza.
The Triple Rs were trying to influence the outcome of elections in Flagler County. They did this by fielding candidates against incumbent members of the Flagler County Commission. McDonald ran against and lost to Meeker in the 2012 and 2014 elections. In 2014, Richter Sr. ran against and lost to Commissioner McLaughlin. The Triple Rs also tried to influence the results of the elections by filing complaints with multiple agencies against various elected and appointed Flagler County officials.
McDonald was the de facto spokesperson of the Triple Rs. McDonald was such a frequent visitor to Weeks’ office between the 2012 and 2014 election cycles that Weeks’ husband expressed concern to Commissioner McLaughlin about McDonald’s influence over her.
This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Hanns, all members of the 2014 County Commission, the County Attorney, and the County Administrator. The complaints were filed with the Commission on Ethics, the Florida Elections Commission, The Florida Bar, and the State Attorney for the Seventh Judicial Circuit. Certain members of the Triple Rs formed a limited liability company--the “Flagler Palm Coast Watchdogs”--and also filed suit against the County Commission to block renovation of the old Flagler Hospital into the Sheriff’s Operation Center, alleging violations of the Code of Ethics.
At least 12 of the complaints filed by the group specifically alleged or referenced the false allegations which are at issue in this case: that members of the County Commission discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, improperly selecting the Canvassing Board attorney, and advancing a hidden agenda.
In addition to alleging that Hanns violated Florida’s ethics laws and Sunshine Law, the complaint filed with the Commission alleged that Hanns violated Florida’s campaign finance law in several respects.
The allegations that Hanns discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, selected the Canvassing Board attorney, and advanced a hidden agenda were crucial to the ethics complaint which McDonald filed against Hanns. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient and order that it be investigated.
Had Hanns been found to have violated Florida ethics and elections law, it would have damaged his reputation in the community.
The totality of these findings, including the number of complaints, the collaboration among the various complainants, and the inclusion of similarly false allegations in complaints filed by different complainants with different agencies, lead to no reasonable conclusion other than Ethics Complaint 15-174 was filed with a “malicious intent” to injure the reputation of Hanns, and create political gain for the Triple Rs and Weeks.
The totality of these findings constitutes clear and convincing evidence that McDonald’s complaint was filed with
knowledge that, or with a conscious intent to ignore whether, it contained one or more false allegations of fact material to a violation of the Code of Ethics.
The totality of these findings constitutes clear and convincing evidence that McDonald showed “reckless disregard” for whether his sworn complaint contained false allegations of fact material to a violation of the Code of Ethics.
The totality of these findings constitutes clear and convincing evidence that the true motivation behind the underlying complaint was the political damage the complaint would cause Hanns, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Hanns.
Attorneys’ Fees and Costs
Upon receipt and review of the complaints filed against Hanns and others in late 2014, Flagler County informed its liability insurance carrier and requested that counsel experienced in ethics and elections law be retained to defend against those complaints. At the specific request of the County, Mark Herron of the Messer Caparello law firm was retained to defend these complaints. Mr. Herron is an experienced lawyer whose practice focuses almost exclusively on ethics and elections related matters.
Mr. Herron was retained by Flagler County on the understanding that the Messer Caparello firm would be compensated by the County’s liability insurance carrier at a rate of $180 per hour and that the County would make up the difference between the $180 per hour that the insurance carrier was willing to pay and the reasonable hourly rate.
The rate of $180 per hour paid by the County’s liability insurance carrier to the Messer Caparello firm is an unreasonably low hourly rate for an experienced practitioner in ethics and election matters. Expert testimony adduced at the hearing indicated that a reasonable hourly rate would range from $250 to $450 per hour. Accordingly, $350 per hour is a reasonable hourly rate to compensate the Messer Caparello firm in this proceeding.
The total hours spent on this case by Messer Caparello attorneys is reasonable. The billable hourly records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 73.54 hours were spent in defending the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding.
The record remained open for submission of Messer Caparello costs and attorneys’ fees records after May 14, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Messer Caparello law
firm indicate that a total of 58.33 hours were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order.
Costs of $1,919.21 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of
$424.90 incurred by the Messer Caparello law firm after May 14, 2017, are reasonable.
The total hours spent on this case by the Flagler County Attorney’s Office is reasonable. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 13.20 hours of attorney time were spent assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of
22.20 hours of paralegal time were spent assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding.
The record remained open for submission of costs and attorneys’ fees records after May 15, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Flagler County Attorney’s Office indicate that a total of 6.60 hours of attorney time, and a total of 2.10 hours
of paralegal time were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order.
Costs of $168.93 incurred by the Flagler County Attorney’s Office law through May 15, 2017, are reasonable. Costs of $292.00 incurred by the Flagler County Attorney’s Office after May 15, 2017, are reasonable.
A reasonable hourly rate for the time of Flagler County Attorney in connection with this matter is $325 per hour. A reasonable hourly rate for the time of the paralegal in the Flagler County Attorney’s Office in connection with this matter is $150 per hour.
Based on the findings herein, Hanns established that he incurred: (i) reasonable costs in the amount of $2,346.11 and reasonable attorneys’ fees in the amount of $46,154.50 for the services of the Messer Caparello law firm in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding; and
(ii) reasonable costs in the amount of $461.92 and reasonable attorneys’ fees in the amount of $10,080.00 for the services of the Flagler County Attorney’s Office in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See §§ 120.569 and 120.57(1), Fla. Stat.
Section 112.313(7) provides for an award of attorney’s fees and costs in the following circumstances:
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 fees incurred in the defense of the person complained against, including the costs and reasonable attorney fees incurred in proving entitlement to and the amount of costs and fees. If the complainant fails to pay such costs and fees voluntarily within 30 days following such finding by the commission, the commission shall forward such information to the Department of Legal Affairs, which shall bring a civil action in a court of competent jurisdiction to recover the amount of such costs and fees awarded by the commission.
Rule 34-5.0291(3) provides for the Commission to review a petition seeking costs and attorneys’ fees and:
If the Commission determines that the facts and grounds are sufficient, the Chair after considering the Commission’s workload, shall direct that the hearing of the petition be held before the Division of Administrative
Hearings, the full Commission, or a single Commission member serving as hearing officer. Commission hearing officers shall be appointed by the Chair. The hearing shall be a formal proceeding under Chapter 120, F.S., and the Uniform Rules of the Administration Commission, Chapter 28-106,
F.A.C. All discovery and hearing procedures shall be governed by the applicable provisions of Chapter 120, F.S. and Chapter 28-106, F.A.C. The parties to the hearing shall be the petitioner (i.e., the public officer or employee who was the respondent in the complaint proceeding) and the complainant(s), who may be represented by legal counsel.
Further, rule 34-5.0291(1) provides:
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, including the costs and reasonable attorney’s fees incurred in proving entitlement to and the amount of costs and fees.
Hanns has the burden of proving the grounds for an award of costs and attorneys’ fees pursuant to section 112.317(7). See Fla. Admin. Code R. 34-5.0291(4). As the party seeking entitlement, Hanns has the burden to prove “by clear and convincing evidence” that the award of costs and attorneys’ fees
is appropriate pursuant to section 112.317(7), and rule 34- 5.0291(1). See Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996); Dep’t of Transp. v. J.W.C. Co.,
396 So. 2d 778, 787 (Fla. 1st DCA 1981). Hanns has proven “by clear and convincing evidence” that the award of costs and attorneys’ fees is appropriate in this case.
In Brown v. Florida Commission on Ethics, 969 So. 2d
553, 560 (Fla. 1st DCA 2007), the court established the following elements of a claim by a public official for costs and attorneys’ fees: (a) the complaint was made with a malicious intent to injure the official’s reputation; (b) the person filing the complaint knew that the statements about the official were false or made the statements about the official with reckless disregard for the truth; and (c) the statements were material to a violation of the Code of Ethics.
Section 112.317(7) does not require a public official, who was falsely accused of ethics violations in complaints submitted to the Florida Commission on Ethics, to prove “actual malice” when attempting to prove malicious intent to injure the official’s reputation. Brown, 969 So. 2d at 554. By employing a textual analysis of the statute, the Court in Brown found that
section 112.317(7) is satisfied by the “ordinary sense of malice,” i.e. feelings of ill will. Id. at 557.
“Such proof may be established indirectly, i.e., ‘by proving a series of acts which, in their context or in light of the totality of surrounding circumstances, are inconsistent with the premise of a reasonable man pursuing a lawful objective, but rather indicate a plan or course of conduct motivated by spite, ill-will, or other bad motive.’” McCurdy v. Collins, 508 So. 2d 380, 382 (Fla. 1st DCA 1987) (quoting S. Bell Tel. & Tel. Co. v.
Roper, 482 So. 2d 538, 539 (Fla. 3d DCA 1986)).
In this case, the evidence, by a clear and convincing margin, indicates that McDonald maliciously filed Ethics Complaint 15-174 against Hanns in order to damage Hanns’ reputation and to advance the political aims of the Triple Rs and Weeks. In addition, the evidence showed that, despite stating under oath that “the facts set forth in the complaint were true and correct,” McDonald either knew the matters alleged in the complaint were false, or he was consciously indifferent to the truth or falsity of his allegations when he failed to review the public records which would have indicated that his allegations were false. Finally, the false statements in his complaint were material to violations of the Code of Ethics, in that they formed the basis for the Commission’s investigation of the complaint.
Hanns is entitled to a total award of $48,500.61 in costs and attorneys’ fees in connection with legal services provided by Messer Caparello in this matter.
Hanns is entitled to a total award of costs and attorneys’ fees in an amount of $10,541.92 in connection with legal services provided by the Flagler County Attorney’s Office in this matter.
Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hanns’ Petition for Costs and Attorneys’ Fees relating to Complaint 15-174 in the total amount of $59,042.53.
DONE AND ENTERED this 21st day of September, 2017, in Tallahassee, Leon County, Florida.
S
SUZANNE VAN WYK
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2017.
ENDNOTES
1/ The cases referred and consolidated by the undersigned were Nate McLaughlin v. Mark Richter, DOAH Case No. 16-5244FE;
Frank J. Meeker v. Mark Richter, DOAH Case No. 16-5245FE; Charles Ericksen, Jr. v. Kimberle Weeks, DOAH Case No. 16-5246FE;
Albert J. Hadeed v. Kimberle Weeks, DOAH Case No. 16-5247FE; and George Hanns v. Dennis McDonald, Case No. 16-5248FE.
2/ Although, for reasons set forth herein, the consolidated cases have been severed and, therefore, subject to separate recommended orders, each applicable to a particular Petitioner, the facts applicable to each are substantially similar. Despite this Order applying only to a single Petitioner, the plural term “Petitioners” will be used, for the purposes of this and the other consolidated cases, unless the context indicates otherwise.
3/ The record reflects that Richter Jr. has refused to participate in this case, has avoided service, and has ignored all efforts by both the Division and Petitioners to contact him.
4/ On December 6, 2016, Weeks filed a letter with the undersigned stating that she was unable to attend the October 5 status conference because she did not receive notice of the status conference until after it occurred.
5/ After the ruling on the motion to compel, and on the day her discovery responses were due, Weeks, on January 30, 2017, moved to dismiss the motion to compel against her based on what appeared to be a claim of “qualified immunity.”
6/ On February 17, 2017, Weeks filed a motion to strike Petitioners’ Second Motion for Continuance, essentially alleging that it was filed for purposes of delay. By Order dated February 28, 2017, the undersigned denied Weeks’ motion to strike Petitioners’ Second Motion for Continuance. The record revealed that requests for continuances were necessitated by the failure of Respondents to respond to discovery.
7/ On April 11, 2017, pursuant to properly served Notices of Depositions, Petitioners attempted to depose Richter Jr., Weeks, and McDonald. Richter Jr. did not appear. Weeks did not answer any questions and asserted her right against self- incrimination because of her pending criminal matter. McDonald refused to answer on the ground that his testimony might impact Weeks’ pending criminal proceeding. On April 18, 2017, Petitioners attempted to depose John Ruffalo, who was disclosed
as a potential witness by Respondent McDonald. Mr. Ruffalo made a brief appearance and announced that he was also going to refuse to answer any questions.
8/ On January 30, 2017, Weeks filed a motion to dismiss the petitions filed against her asserting “qualified immunity.” At that same time, as noted herein, she moved to dismiss the motion to compel against her based on what appears to be a claim of “qualified immunity.”
9/ All excerpts from the complaint are reproduced verbatim in this Recommended Order. Spelling and grammatical errors are in the original complaint, which were too numerous to be designated individually with the [sic] signal.
COPIES FURNISHED:
Millie Wells Fulford, Agency Clerk Florida Commission on Ethics
Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
Albert J. Hadeed, Esquire Flagler County Board of
County Commissioners
1769 East Moody Boulevard, Building 2
Bunnell, Florida 32110 (eServed)
Mark Herron, Esquire Messer, Caparello, P.A. 2618 Centennial Place Post Office Box 15579
Tallahassee, Florida 32317 (eServed)
Dennis McDonald Post Office Box 1232
Flagler Beach, Florida 32136
Albert T. Gimbel, Esquire Messer Caparello, P.A.
2618 Centennial Place Post Office Box 15579
Tallahassee, Florida 32308 (eServed)
Virlindia Doss, Executive Director Florida Commission on Ethics
Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
C. Christopher Anderson, III, General Counsel Florida Commission on Ethics
Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
Advocates for the Commission Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 13, 2017 | Agency Final Order | |
| Sep. 21, 2017 | Recommended Order | Petitioner proved by clear and convincing evidence that Respondent's complaint was filed against Petitioner with a malicious intent to injure Petitioner's reputation by filing a complaint with false allegations which were material. |
