The Issue The issue is whether Respondent should be required to pay attorney's fees and costs to Petitioner to compensate her for the defense of an ethics complaint Respondent filed against her with the Florida Commission on Ethics.
Findings Of Fact Respondent J. Curtis Boyd ("Respondent" or "Mr. Boyd") owns property located at 111 Boston Avenue, Fort Pierce, Florida, that he bought in 2002 or 2003. The house on the property was once owned by the late Florida Governor Dan McCarty. Mr. Boyd testified that he has been offered $650,000 to sell the property with the house on it and $1.2 million to sell the land without the house. Mr. Boyd requested and received permission to demolish the house by a 5-to-1 vote of the Historic Preservation Board. That decision was apparently revoked by vote of the City Commission, including that of Petitioner Christine Coke ("Petitioner" or "Ms. Coke"). A complaint filed by Mr. Boyd with the State Attorney accusing Ms. Coke of "misuse of authority" was dismissed on July 6, 2009. Complaint No. 09-087, filed with the Florida Commission on Ethics ("Ethics Commission") on June 25, 2009, was dismissed on July 29, 2009. Mr. Boyd testified that, after the vote of the Historic Preservation Board, he believed Ms. Coke found some unnamed person to appeal the decision to the City Commission. He also testified that, some time later, he found out that the house was not in the historic district and that he did not need permission to demolish it. Mr. Boyd testified that he had overdue property taxes, but that he paid the back taxes and had the assessed value of the property reduced to lower his taxes because of the poor condition of the house. The City of Fort Pierce has waived approximately $70,000 in code enforcement fines on the property, and offered to pay $5,000 for a design fee, but Mr. Boyd noted that the design fee will not go to him but to an architect. Mr. Boyd alleges, with no supporting evidence, that the actions taken by Ms. Coke and others are intended to force him to sell the property to a friend of hers. Based on Mr. Boyd's testimony it is impossible to conclude, as he alleged, that Ms. Coke persuaded some one to appeal the decision of the Historic Preservation Board to the City Commission. There is also no evidence to support or refute Mr. Boyd's allegation that Ms. Coke was motivated by trying to force him to sell his property to a friend of hers. Related to costs and fees, Petitioner's counsel proffered an affidavit of an attorney, filed with the Division of Administrative Hearings on September 23, 2009, representing that the attorney had reviewed the files of Petitioner's counsel and agreed that fees of $1,447.50 for one billing period and of $1,765.00 for another billing period were reasonable. In the absence of supporting testimony and after Petitioner rested her case, the objection to the admission of the affidavit as being untimely filed and unsupported hearsay was sustained. There is no competent substantial evidence that Respondent either made or did not make a complaint against Petitioner with knowledge that the allegations were false or with reckless disregard for whether the complaint contained false allegations. There is also no competent substantial evidence of the amount of fees and costs incurred by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Florida Commission on Ethics dismiss the Petition for Attorney's Fees and Costs filed by Christine Coke. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 22nd day of October, 2009. COPIES FURNISHED: Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Richard E. Coates, Esquire 200 West College Avenue, Suite 311B Tallahassee, Florida 32301 Patrick Farrell, Esquire c/o J. Curtis Boyd 120 Orange Avenue Fort Pierce, Florida 34950 Philip C. Claypool, Esquire Executive Director and General Counsel Florida Commission on Ethics 3600 Macclay Boulevard, South Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Advocates for the Commission Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue Whether Petitioners are entitled to recover costs and attorney's fees against Respondent and, if so, in what amount.
Findings Of Fact At all times relevant to this proceeding, Petitioner, Marsha Strange, was the Mayor of McIntosh, Florida, having served in that position for approximately ten years. The Town of McIntosh (Town or Town of McIntosh) has a population of approximately 400 and has only three paid employees on its staff. The Town of McIntosh has a weak mayoral form of government. Under this system of government, the mayor does not have the power to appoint, promote, or dismiss Town employees or to appoint members to the Town's various committees or boards. Rather, these decisions are made by the elected five-member Town Council. The mayor is not a member of the Town Council and has no power to vote on issues coming before that governing body. Moreover, the mayor of the Town of McIntosh is not paid. On March 5, 1998, Respondent, Mary Lueders Burnett (Respondent), filed a verified ethics complaint against Mayor Marsha Strange, alleging Mayor Strange had violated Section 112.3135, Florida Statutes, regarding the appointment of relatives. In the complaint, Respondent stated that the mayor's brother-in-law, Thurman Kingsley, was appointed as the only person authorized to sign building permits. The complaint stated: I believe that this appointment to a position involving the approval of the Mayor by virtue of her management responsibilities mandated in the Town Charter, constitutes a violation of Section 112.3135, Florida Statutes, regarding the appointing of relatives. While our municipality is less than 35,000, our population is 413. I believe the function involves land planning or zoning as stated in the statute. Within a month of filing the initial complaint against Mayor Strange, Respondent separately filed three additional verified complaints against Mayor Strange. On March 20, 1998, Respondent filed a second complaint against Mayor Strange which alleged that the Town of McIntosh failed to comply with its Comprehensive Plan. Specifically, Respondent claimed that the official zoning map, Public Works Manual, and Land Development Regulations, documents required by the Town's Comprehensive Plan, did not exist. Respondent asserted that this alleged act "constitutes malfeasance and is a gross misuse of public position in violation of Florida Statutes." Notwithstanding Respondent's allegation that the Town had no land development regulations, in a letter dated March 13, 1998, signed by Respondent and attached to this ethics complaint, Respondent cites extensively from the Town's Land Development Code. On April 3, 1998, Respondent filed a third complaint against Mayor Strange alleging that the mayor had (1) improperly determined that the terms of members of the Town's Code Enforcement Board had expired; (2) failed to post notice of vacancies on that board; and (3) failed to adopt rules for the recruitment and appointment of board members. In this complaint, Respondent contended that the alleged acts were a breach of public trust in violation of Sections 112.311(6) and 286.011, Florida Statutes. On April 5, 1998, Respondent filed a fourth ethics complaint against Mayor Strange alleging that on certain property in the Town, land development by a former Town official was taking place without proper permits. In this ethics complaint, Respondent indicated that on March 4, 1998, she had filed a Notice of Complaint with the Town regarding this issue but that the Town's Code Enforcement Officer had determined that the complaint was unfounded. In the ethics complaint, Respondent stated that: It is my belief that the code enforcement officer as well as the mayor and the members of the McIntosh Town Council, under whose pleasure the code enforcement officer is appointed, have violated Section 112.313(6), Florida Statutes, for allowing this unpermitted land development by a former town official. Respondent's second, third, and fourth ethics complaints against Mayor Strange were found to be without merit and dismissed by the Ethics Commission without the necessity of an investigation. The Ethics Commission authorized an investigation of the allegations contained in Respondent's initial complaint, Complaint No. 98-37, alleging a nepotism violation against Mayor Strange. Larry Hill, a senior investigator, investigated the allegations in Respondent's Complaint No. 98-37 on behalf of the Ethics Commission. As a part of his investigation, Mr. Hill interviewed Respondent and Mayor Strange. Following the investigation, Mr. Hill incorporated his factual findings in a Report of Investigation dated June 19, 1998. After considering the Report of Investigation and the Advocate’s recommendation, the Ethics Commission determined that there was no evidence that Mayor Strange advocated, recommended, or otherwise played any role in having Mr. Kingsley appointed to the municipal position. Thereafter, the Ethics Commission issued an Order finding that there was no probable cause to believe that Mayor Strange violated Section 112.3135, Florida Statutes, regarding her brother-in-law's appointment to a Town position as alleged in Respondent's complaint. According to the Report of Investigation, Thurman Kingsley was Mayor Strange’s brother-in-law. However, Respondent admitted she had no evidence that Mayor Strange had advocated or was in any way involved in Mr. Kingsley's appointment to his municipal position as a building official. Furthermore, according to the report, Respondent acknowledged that she knew that Mayor Strange did not have a vote on any official Town matters. During Mr. Hill's interview with her, Mayor Strange indicated that she had taken no action to appoint or promote Thurman Kingsley as the building official for the Town of McIntosh. Also, at hearing, Mayor Strange provided credible testimony that she did not take part in the Town's hiring of Thurman Kingsley and did not have the power to do so. Thurman Kingsley was appointed as building permit official for the Town of McIntosh approximately four years prior to Respondent's filing the complaint of a violation of the nepotism law by Mayor Strange. The minutes of the Town Council meeting at which Mr. Kingsley was approved as a building permit official reflect that Mayor Strange played no role in his appointment to the building committee. At the time Respondent filed the verified complaint against Mayor Strange, she was aware that the mayor had no power to appoint any town official. Moreover, Respondent had no first-hand knowledge of the alleged violations nor had the factual allegations been provided to her by reliable sources. Although Respondent had no knowledge or reliable information to support the allegations, she filed a verified complaint against Mayor Strange. In light of the foregoing, the statements and allegations contained in the Respondent's complaint against Mayor Strange were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On October 9, 1997, Petitioner, Maxine Holst, was appointed on a temporary basis as Town Clerk for the Town of McIntosh. Six months later, on April 9, 1998, Ms. Holst was appointed to the position as permanent Town Clerk. In both instances, Ms. Holst was appointed by the Town Council and served at the pleasure of and answered to that body. On March 3, 1998, Respondent filed a complaint with the Ethics Commission against Maxine Holst. The complaint alleged that "the issuing clerk" misused her public office by issuing a building permit to the relative of a Town Council member. The complaint further alleged that the permit was issued contrary to applicable issuance criteria and in spite of the fact that the permit had been denied by the former Town Clerk because the necessary requirements had not been met. In Respondent's complaint against Ms. Holst, Respondent, wrote: The issuing clerk was aware of the previous denial of permit. I believe this act represents a direct violation of the Florida Statutes, Section 112.313(6) as misuse of public position. The building permit referred to in Respondent's complaint was for construction of a carport on property owned by Wilshire Walkup, a family member of Howard Walkup. According to Respondent's complaint, when the subject permit was issued, Howard Walkup was a member of the Town Council. On March 9, 1998, Respondent filed a second ethics complaint against Ms. Holst, alleging that she (1) failed to file applicable financial disclosure after being appointed to her public position; and (2) refused to return the former Town Clerk's notary seal left through oversight at the clerk's office. In regard to the first allegation, Respondent stated: A Town Clerk was appointed in October 1997. This was on a temporary basis but later became a permanent appointment. As of this date, according to the [O]ffice of the Marion County Supervisor of Elections, the town clerk has not filed Form 1, Limited Financial Disclosure. This is a violation of the Sunshine Amendment. In regard to the allegation concerning the notary seal, Respondent stated in her complaint: A Town Clerk was appointed in October of 1997. The former Town Clerk, by oversight, left her notary seal at the office. The newly appointed town clerk, M. Maxine Holst, refused, upon the former clerk's three requests to give the notary seal to it's [sic] owner." The letter acknowledged that the notary seal was returned to the former Town Clerk but noted that the act of refusing to return the notary stamp constituted a misdemeanor according to Section 117.05(9), Florida Statutes. Finally, Respondent's letter stated that the alleged act "constituted misuse of public position in violation of Section 112.313(6) of Florida Statutes." On April 3, 1998, Respondent filed a third ethics complaint against Ms. Holst. The allegations in this complaint were identical to those made in the ethics complaint filed by Respondent against Mayor Strange on the same date and described above in paragraph 7. In fact, a copy of the same letter was attached to the complaints filed on April 3, 1999, against Mayor Strange and Ms. Holst. In the third complaint filed against Ms. Holst, Respondent alleged that the terms of members of the Code Enforcement Board had been determined without documentation and concluded that the new members appointed to the Board were chosen without public notice and search. In this complaint, Respondent alleged that: The Town Clerk, Maxine Holst, Mayor Marsha Strange, and Council Members Stott, Smith, McCollum and Walkup determined without documentation that the [Code Enforcement Board] Chairman's and another member's terms had expired. Although the Chairman and the other members wished to be considered for reappointment, the Town Council recruited, without posting a notice that interested residents might apply for the position, and appointed their replacements. I believe that the bogus expirations and the reappointments of hand-picked replacements without notice to board members or the public posting of the vacancies represents a breach of public trust in violation of Florida Statute 112.313(6). The Ethics Commission authorized a preliminary investigation of the complaints filed by Respondent against Maxine Holst. The investigation was conducted by Larry D. Hill, a senior investigator with the Ethics Commission. The results of Mr. Hill’s findings were recorded in a Report of Investigation dated June 19, 1998. Based on the Report of Investigation and the Advocate’s recommendation, the Ethics Commission issued an Order finding that there was no probable cause to believe that Maxine Holst was guilty of the violations alleged in the three complaints filed by Respondent. The initial ethics complaint filed by Respondent against Ms. Holst alleged that Ms. Holst (1) improperly issued a building permit although the application had been previously denied; (2) was aware, when she issued the permit, that the permit had been denied; and (3) issued the permit only because the applicant was related to a member of the Town Council. These allegations were not true. Moreover, at the time the complaint was filed, there was no basis in fact for the allegations made by Respondent. When Margaret Walkup, wife of Wilshire Walkup, first submitted the permit application, it was accepted by the Town Clerk, Barbara Bessent. At the direction of June Glass, the chairperson of the Town's Historic Preservation Board, Ms. Bessent told Mrs. Walkup that the application must also include a site plan. Mrs. Walkup drew a diagram of a carport that was to be constructed and re-submitted the application. Ms. Bessent accepted the application. When a permit application involved a request for construction in the Town’s historic district, the Town's Historic Preservation Board would typically be required to review and approve the application. In this case, Ms. Glass believed that Mrs. Walkup’s application was incomplete in that the diagram drawn on the application did not, in Ms. Glass' opinion, constitute a site plan. In light of her belief, Ms. Glass told Ms. Bessent to send a letter to Mrs. Walkup notifying her that the application was incomplete and/or that it was denied. The letter was never written and no official action was taken on the application. Ms. Holst’s immediate predecessor, Ms. Bessent, never approved or denied the permit application nor did she create a file or in any way document the status of the application. Rather, she put the application in the correspondence file. This failure to document would make it impossible for anyone to know or determine what action, if any, had been taken on the application. On or about October 13, 1999, Margaret Walkup went to the Town Clerk's office and inquired about the status of the previously-filed building permit application. When the inquiry was made, Ms. Holst had been in the position of Town Clerk less than a week, was unfamiliar with the permitting process, and had no knowledge of the permit application in question. Therefore, prior to responding to Mrs. Walkup’s inquiry, Ms. Holst sought the advice of Town Council member Eunice Smith, who was in the office training Ms. Holst. Ms. Smith was an appropriate person to train Ms. Holst for her new position because, several years ago and prior to being elected to the Town Council, Ms. Smith had worked as the Town Clerk. After Ms. Holst and/or Town Councilwoman Smith located the application, Councilwoman Smith advised Ms. Holst that the Town's Land Development Regulations required issuance of the permit because the permit had been pending for more than 45 days. Based on Town Councilwoman Smith's advice and directive, Ms. Holst issued the permit, which allowed the construction of an aluminum carport on the property owned by Wilshire Walkup. Respondent's statements in the March 3, 1999, complaint against Ms. Holst, that the subject permit application was initially denied and that Ms. Holst was "aware" of the denial, were false and had no basis in fact. Finally, Respondent alleged that Ms. Holst issued the permit to Wilshire Walkup because he was related to Howard Walkup, a member of the McIntosh Town Council. This allegation was false and was easily discernable as such. Although Howard Walkup was a member of the McIntosh Town Council when Respondent filed her complaint against Ms. Holst, he was not a member of the Town Council in October 1997 when the permit was issued by Ms. Holst as alleged by Respondent. Respondent offered no explanation of the basis of her belief that at the time she filed the complaint, these statements were true. Thus, the allegations contained in Respondent's first complaint against Ms. Holst were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. As noted in paragraphs 21 and 22, Respondent's second complaint alleged that Ms. Holst failed to file a financial disclosure and also refused to return the notary seal to its owner and the former Town Clerk, Barbara Bessent. The allegation concerning Ms. Holst's failing to file a financial disclosure form is true. As of March 9, 1998, Ms. Holst had not filed the required financial disclosure form. In fact, it was only after Respondent filed this complaint that Ms. Holst first learned that the filing was required. However, upon learning of the requirement, Ms. Holst immediately filed the required financial disclosure form. Respondent stated that the former Town Clerk, Ms. Bessent, left her notary seal in the Town Clerk's Office through "oversight" and, thereafter, requested on three occasions that Ms. Holst give her the seal. There is no indication that Respondent had first-hand knowledge of the facts surrounding the return of Ms. Bessent's notary seal nor was there any evidence that Respondent's allegations were based on information obtained from reliable sources. Moreover, these statements made by Respondent in the March 9, 1998, complaint against Ms. Holst are contradicted by the credible testimony of Ms. Bessent, the person most knowledgeable about the situation involving her notary seal. Respondent's statement that Ms. Bessent left her notary seal in the Town Clerk's office through an oversight is not true. On Ms. Bessent's last day as Town Clerk, she voluntarily and intentionally left her notary seal in the Town Clerk's office after being asked to do so by Town Council member McCullum. Councilman McCullum explained to Ms. Bessent that he wanted to "clear" her and indicated that it would "be safer" for her to leave the notary seal at the office. Ms. Bessent complied with Councilman McCullum's request and never expressed an unwillingness to temporarily leave the notary seal in the Town Clerk's office. The second allegation included in the second ethics complaint, that Ms. Holst refused to return a notary stamp to the former Town Clerk, is false. The former Town Clerk, Barbara Bessent, provided credible testimony that Ms. Holst never refused to return the notary seal on the one occasion that Ms. Bessent asked Ms. Holst for the notary seal. When Ms. Bessent made this request, Ms. Holst, who had been Town Clerk only a few days, told her that if the Town paid for the seal that it belonged to the Town and that she would have to check with the Town Council. Ms. Bessent was familiar with how the Town Council worked and knew and understood that Council members wanted to be consulted on most matters. Ms. Bessent did not believe that Ms. Holst was refusing to give her the seal and did not believe Ms. Holst intended to use the seal. In fact, Ms. Bessent had reason to believe that Ms. Holst was a notary. Several weeks after Ms. Bessent requested that Ms. Holst give her the notary seal, a Town Council member authorized Ms. Holst to give Ms. Bessent her notary seal. Upon receiving this authorization, Ms. Holst gave Ms. Bessent the notary seal. Prior to Ms. Holst's returning the notary seal to Ms. Bessent, and soon after Ms. Bessent resigned as Town Clerk, the Town maintenance man came to the Town Clerk's Office to retrieve Ms. Bessent's personal items that she had left in the office. A few weeks later, Ms. Glass wanted to have Ms. Bessent notarize something for her. After Ms. Bessent told Ms. Glass that her notary seal was in the Clerk's Office, Ms. Glass volunteered to go to the Clerk's Office and retrieve the seal. Ms. Glass went to the office and asked for Ms. Bessent's notary seal. Ms. Holst did not give Ms. Bessent's notary seal to either the maintenance man or to Ms. Glass because she believed that it was improper to give Ms. Bessent's notary seal to a third party. At the time Respondent made the statements regarding the notary seal in the March 9, 1998, complaint against Ms. Holst, she either knew they were false or made them with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. The allegation in Respondent's third ethics complaint against Ms. Holst was that she, the mayor, and Town Council members had improperly determined that the terms of the Town's Code Enforcement Board had expired. This allegation is false and has no basis in fact. When Respondent made the statements and allegations in the complaint, filed on April 3, 1998, she either knew they were false or made them with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On January 8, 1998, Petitioner Richard McGath, a retired Sarasota building inspection official and resident of the Town of McIntosh, was appointed as the Town's code enforcement officer. This is a voluntary position, and one for which Mr. McGath receives no compensation. Mr. McGath spends about two hours a week performing duties associated with his position as the Town's code enforcement officer. On March 3, 1998, less than two months after Mr. McGath agreed to accept the Town's position of code enforcement officer, Respondent filed a verified ethics complaint against him. In the complaint, Respondent alleged that Mr. McGath failed to act on a matter and that such failure was a misuse of his position. The alleged act giving rise to Respondent's complaint against Mr. McGath was that the Town Clerk had improperly issued a building permit to Town resident Wilshire Walkup for construction of a carport, although it failed to meet the requirements of the Town's Historic Preservation Board. Respondent felt that the permit was issued only because Wilshire Walkup was related to Town Council member Howard Walkup. On or about December 10, 1997, two months after the subject permit was issued, Respondent filed a Notice of Complaint with the Town Clerk, alleging that Mr. McGath refused to take action when he determined that Wilshire Walkup had constructed an aluminum carport. The position of code enforcement officer was vacant at or near the time Respondent's December 1997 Notice of Complaint was filed. Therefore, no immediate action was taken on the Respondent's complaint. However, soon after Mr. McGath's appointment as code enforcement officer, he investigated Respondent's complaint regarding the permit issued to Wilshire Walkup. During the course of his investigation, Mr. McGath determined that the building permit had been issued to Wilshire Walkup on October 13, 1997. Mr. McGath then went to Wilshire Walkup's property and observed that an aluminum carport had been constructed. Mr. McGath believed that the structure was in violation of Town ordinances. However, Mr. McGath issued a one-time waiver for the structure because the Town Clerk had issued the building permit on October 13, 1997, and by the time he assumed the position of code enforcement officer, the structure already had been constructed. Based on Respondent's December 1997 Notice of Complaint, the structure had likely been constructed as early as December 10, 1997. Mr. McGath explained to Mr. Walkup that any further modifications on the structure would have to comply fully with all applicable code requirements. These comments were noted on the response portion of Respondent's Notice of Complaint. Mr. McGath took the action he did with respect to Wilshire Walkup's carport because, prior to his investigation, the building permit had been issued and the carport had already been constructed. Both of these events occurred before Mr. McGath was appointed as the Town's code enforcement officer. Based on his experience and given the facts related to the Wilshire Walkup project, Mr. McGath believed that the course of action he chose was a prudent one. Respondent also alleged that Mr. McGath took no action against Wilshire Walkup because he was related to Howard Walkup, a member of the Town council. First, as stated in paragraph 33, Howard Walkup was not a member of the Town Council at the time the permit was issued. Second, after Howard Walkup was elected to the Town Council in November 1997, he never attempted to influence or even discuss the matter with Mr. McGath during his investigation of the matter. Finally, prior to his investigating Respondent's December 1997 Notice of Complaint, Mr. McGath had never met Wilshire Walkup and did not know that he was related to Town Councilman Howard Walkup. The action taken by Mr. McGath relative to Respondent's complaint regarding Wilshire Walkup's aluminum carport was not a misuse of his position as alleged by Respondent. Respondent had no evidence to base her claim that Richard McGath misused his public office for private gain. Yet, she filed a verified complaint with the Commission alleging that he had done so. Respondent offered no reasonable explanation or basis for her believing that when the statements in her ethics complaint were made, that they were true. In light of the foregoing, the statements and allegations contained in Respondent's complaint, filed on March 3, 1998, against Mr. McGath were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On April 14, 1998, Respondent filed a second ethics complaint against Mr. McGath. In that complaint, Respondent alleged that Mr. McGath had violated Section 112.313(6), Florida Statutes, by allowing unpermitted land development by a former Town official. In the complaint, Respondent noted that she had previously filed a Notice of Complaint with the Town regarding the alleged unpermitted land development and that the code enforcement officer, Mr. McGath, had determined that the complaint was unfounded. Respondent's Notice of Complaint regarding the alleged unpermitted land development was filed with the Town on March 4, 1998. Mr. McGath investigated the matter and determined that on the property in question, a culvert was being put in to replace another culvert that had been crushed. Based on his investigation, Mr. McGath did not find that there was unpermitted land development and thus concluded that Respondent's complaint was unfounded. This finding was made on March 12, 1998. Respondent learned of Mr. McGath's finding on April 1, 1998, but never questioned him regarding the reason for his finding. On April 14, 1998, without making any inquiry into the basis of Mr. McGath's finding, Respondent filed an ethics complaint alleging that Mr. McGath misused his public position by allowing alleged unpermitted land development. Respondent had no factual basis upon which to base the statements and allegations contained in the ethics complaint against Mr. McGath. In light of the foregoing, the statements and allegations contained in Respondent's complaint filed on April 14, 1998, against Mr. McGath were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. The Ethics Commission authorized a preliminary investigation of the complaints filed by Respondent against Mr. McGath. The investigation was conducted by Larry Hill, a senior investigator with the Ethics Commission. Thereafter, the Ethics Commission issued an Order finding no probable cause to believe that Mr. McGath was guilty of the violations alleged in the two complaints filed by Respondent. Respondent frequently attends the Town Council meetings and is knowledgeable of the workings of the Town of McIntosh. Moreover, Respondent knows how to obtain public documents through public records requests and has made such requests on a regular basis. The record reveals that for many years Respondent attended many Town Council meetings, made numerous public record requests to the Town of McIntosh, and wrote numerous letters to the Town Council, various governmental agencies, and officials. In many of those letters, Respondent complained of alleged violations by Town officials, cited statutes, codes, and ordinances, and quoted liberally from Town ordinances, Town council minutes, and other documents. Many of the letters prepared by Respondent reflect that she had extensively researched selective issues contained therein. In fact, Respondent indicated in one letter that based on her research, she had determined that certain conduct constituted a misdemeanor offense. However, in the instant case, Respondent not only failed to research the facts alleged in the complaints, but apparently never made even a cursory review of the Town records prior to leveling her complaints against Petitioners. Where allegations are made under oath, as in this case, it is appropriate for a complainant to at least make a cursory review of the facts before filing a complaint alleging officials have violated Florida Statutes. In the instant case, between March 3, 1998, and April 5, 1998, Respondent filed a total of nine verified ethics complaints against Petitioners. Three of the complaints were dismissed by the Ethics Commission without an investigation. In the remaining six complaints which are the subject of this proceeding, Respondent made numerous unsubstantiated allegations and statements of fact to which she had no personal knowledge. Respondent also failed to check the accuracy and veracity of statements before she filed these complaints. Based on the foregoing, it is clear that Respondent filed the ethics complaints against Petitioners with a malicious intent to injure the reputations of Petitioners because they were filed with the 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. In defending themselves against the allegations in the subject complaints and in this proceeding, Petitioners have been represented by S. Scott Walker, Esquire, and Gary Printy, Esquire. The normal hourly rate for S. Scott Walker and Gary Printy, counsel for Petitioners, is $175.00 per hour. This is a reasonable hourly rate. However, in this case, the hourly rate assessed to Petitioners was $75.00. The hourly rate of $75.00 is also reasonable. S. Scott Walker expended 47.70 hours on this matter, including time spent in this proceeding. Mr. Printy expended four hours on this matter. The total attorney time expended on this matter, 51.70 hours, is reasonable. The attorney's fee of $4,109.47 incurred by Petitioners as a result of Mr. Walker's representation is reasonable. Also, the attorney's fee of $400.00 incurred by Petitioners as a result of Mr. Printy's representation is reasonable. Reasonable costs of $231.98 were incurred in connection with defense of the ethics complaints against Petitioners and in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that a final order be entered finding that Respondent, Mary Lueders Burnett, is liable for attorney's fees of $4,509.47 and costs of $231.98. RECOMMENDED this 15th day of September, 1999, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1999. COPIES FURNISHED: S. Scott Walker, Esquire Post Office Box 1070 Gainesville, Florida 32602-1070 Mary Lueders Burnett Post Office Box 381 McIntosh, Florida 32664-0381 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for disposition is whether Mary McCarty, Respondent in a complaint to the Florida Commissions on Ethics, is entitled to costs and reasonable attorney's fees from the complainant, Leslie F. McDermott, pursuant to Section 112.317(8), F.S.
Findings Of Fact Mary McCarty has resided in Delray Beach, Florida for approximately twenty years. She is politically active as a Republican; she served as a Delray Beach city commissioner from 1987 until 1990, and now currently serves as chairperson of the Palm Beach County Commission. William (Bill) Andrews, also a Republican, was elected to the Delray Beach City Commission approximately one year after Ms. McCarty. The two worked together on certain issues, including an issue regarding the firing of the city manager, and more often than not, they voted on the same side. Leslie F. McDermott lives in Lake Worth, Palm Beach County, Florida. He has never resided in Delray Beach. He is employed as an engineer for a computer company and is well known and respected in the community as an active member of the NAACP. He served as president of the south county branch of the NAACP for seven or eight years until recently, and now serves on the executive board of that local branch. Jeanette (Jay) Slavin is a "grass roots" political activist in the south county area. As a Democrat she has been very involved in political campaigns and has openly supported candidates and issues in heated opposition to Mary McCarty. Malcolm Byrd, a Republican, served on the Delray Beach City Commission from 1979 until 1987, and was city manager from 1989-90. At first he supported Mary McCarty, but as city manager he had differing views of how the city should proceed and how the city manager should function. In early 1990, Malcolm Byrd learned that Bill Andrews had attended a Republican fund-raiser in Orlando, with transportation by chartered jet and limousine provided by a third party. Bill Andrews openly discussed the trip and how lavish it was. Andrews displayed a photograph of himself at the event with President Reagan or other noted Republicans. Malcolm Byrd became aware that Andrews had not reported that trip on his financial disclosure form, and shared that information with Jay Slavin. There was also some talk that Mary McCarty had attended the fund-raiser, as Andrews referred to "we" when discussing the trip. Mary McCarty's financial disclosure form for 1990 did not reflect the alleged gifts related to the trip. Jay Slavin had lunch with Leslie McDermott and urged him to file ethics complaints against both Andrews and McCarty. Ms. Slavin had obtained the requisite forms from the commission. She felt that Leslie McDermott's complaint would have more credibility as she, Slavin, was known to be politically opposed to Andrews and McCarty. Leslie McDermott was reluctant at first to file the complaint against McCarty, as the only basis that Jay Slavin gave him was that Bill Andrews said "we" went on the trip, and everyone knew that Mary McCarty frequently attended fund-raisers and political events. Leslie McDermott drafted the complaint based on information from Jay Slavin, and Ms. Slavin typed it for his signature, as he has a visual handicap. Before sending the complaint, McDermott spoke with Malcolm Byrd, who told him that he did not have the evidence on McCarty that he had on Andrews and that he could not encourage him to file on McCarty. McDermott heard rumors from other people who believed she had attended the function, but no one told him they had personal knowledge of the trip or had actually seen McCarty. At the hearing, and during the investigation by the commission, Leslie McDermott refused to divulge the names of those other persons who told him they believed Mary McCarty took the trip. After sending the complaints, McDermott gave Jay Slavin permission to give them to three newspapers which he specified: the Palm Beach Post, the Sun Times and the Fort Lauderdale Sentinel. He personally called the papers and told them that the matters in the complaints needed to be investigated. He also told the reporters that the complaints had no official connection with the NAACP. He considered the three papers to be responsible, non-sensational publications and he had experience in the past with issuing press releases. On February 6, 1992 the Sun-Sentinel published a story with the headline, "ETHICS COMPLAINTS FILED", stating that an NAACP official filed ethics complaints alleging that Mary McCarty and Bill Andrews attended a $1000 a plate fund-raiser paid for by a group of bond brokers, and failed to disclose the gifts. Mary McCarty contacted the NAACP, and Leslie McDermott was chastised for involving the organization. He did not call the newspaper to demand a corrective article as he did not want to "add fuel to the fire". He avowed distress, however, that people associated the issue with the NAACP. Meanwhile, the Ethics Commission conducted its investigation and found that, indeed, Mary McCarty did not attend the event. That was a conclusion that should have been reached by Mr. McDermott prior to his filing the complaint. Instead, on the complaint form, he signed the following statement under oath: COMPLAINT THAT THE COMMISSIONER NAMED ABOVE, THEN A DELRAY BEACH CITY COMMISSIONER DID VIOLATE FLORIDA STATUTE 112 IN THAT THE COMMISSIONER ACCEPTED GIFTS VALUED IN EXCESS OF $100.00 AND FAILED TO REPORT SAME IN ACCORDANCE WITH STATE LAW. THE GIFTS WERE PROVIDED BY MEMBERS OF A BOND UNDERWRITING GROUP HEADED BY SMITH BARNEY. THEY INCLUDED: ROUND TRIP TRANSPORTATION ON A CORPORATE JET FROM WEST PALM BEACH TO ORLANDO AND BACK; AND, ROUND TRIP LIMOUSINE SERVICE FROM THE ORLANDO AIRPORT TO THE ORANGE COUNTY CONVENTION AND CIVIC CENTER AND RETURN TO THE AIRPORT; AND, A TICKET TO ATTEND THE $1000 PER PERSON FUND RAISER DINNER BENEFITING GOV. MARTINEZ AND FEATURING PRESIDENT GEORGE BUSH. THE FOREGOING GIFTS HAVE AN ESTIMATED VALUE OF $1350 TO 1500 WELL IN EXCESS OF THE REPORTING REQUIREMENTS. THE COMMISSIONERS FINANCIAL DISCLOSURE FORM FOR THE CALENDAR YEAR 1990 WHICH COVERS THE DATE OF THE SUBJECT EVENT ON FRIDAY APRIL 20 1990 SHOWS NO GIFTS RECEIVED. IN ADDITION TO COMMENTS MADE TO VARIOUS INDIVIDUALS ABOUT THE DETAILS OF THE TRIP, INCLUDING THE FACT THAT ALL EXPENSES HAD BEEN PAID BY THE BOND BROKERS, THE COMMISSIONER WAS OBSERVED AT THE EVENT BY NUMEROUS LOCAL OFFICIALS AND RESIDENTS. (Exhibit 1, Complaint dated February 2, 1992) Leslie McDermott did not ask Bill Andrews or Mary McCarty whether she attended the function. He did not contact anyone, including the sponsor of the event, who would likely have personal knowledge of her attendance. Instead, he relied on rumors and indirect reports, all which he knew were based on these tenuous connections: Bill Andrews used the term "we" in bragging about the trip. Mary McCarty frequently attended political events and was politically active. Mary McCarty and Bill Andrews, both Republicans (but not the only Republicans on the city council), often voted alike. Some unnamed persons overheard conversations which made them believe that Bill Andrews and Mary McCarty were on the trip together. Leslie McDermott's explanation that he released the complaint to the press so that an investigation could be conducted is simply not persuasive. He is an educated, articulate and experienced individual. He knew or should have known that public exposure of his complaint would injure the reputation of Ms. McCarty. Despite his own initial misgivings, Mr. McDermott allowed himself to be used by individuals who could only benefit from that injury. His failure, due to hubris or extraordinarily bad judgment, to make a reasonable attempt to check the veracity of the rumors, constitutes the reckless disregard by which malicious intent may be proven. In defending against the complaint and in pursuing relief in this proceeding, Mary McCarty has incurred costs and attorneys fees in the total amount of $12,876.55. Exhibit #4a), b), and c) appropriately itemizes the 50.9 hours and $2696.55 costs incurred. The hourly rate of $200.00 was stipulated as reasonable. Leslie McDermott contests the reasonableness of any time spent and costs incurred after the commission's order finding no probable cause was issued. Based upon the unrefuted testimony of Robert V. Romani, Esquire, an experienced litigator, past-president of the Palm Beach County Bar Association and member of the Board of Governors of the Florida Bar; and after considering relevant case law discussed below, I find that the hours and costs both before and after dismissal of the complaint are reasonable.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Ethics issue its final order awarding fees and costs in the total amount $12,876.55 to Mary McCarty from Leslie McDermott. DONE AND RECOMMENDED this 23rd day of August, 1993, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5168EC The findings of fact proposed by both parties are substantially adopted here, with the exception of the following findings proposed by Leslie McDermott. Paragraph 13. The "reasonable" appearance or belief as to Ms. McCarty's guilt is rejected as unsupported by the weight of evidence. Paragraph 15. The reason Mr. McDermott presents for signing the complaint is rejected as not credible, in the face of his inconsistent action in presenting the complaint to the press. Paragraphs 16-18 are rejected as contrary to the weight of evidence. COPIES FURNISHED: Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Kenneth D. Stern, Esquire Post Office Box 3878 Boca Raton, Florida 33427-3878 James K. Green, Esquire One Clearlake Centre 250 South Australian Avenue West Palm Beach, Florida 33401
Findings Of Fact Donald B. Parker was elected to the Gulf County Board of County Commission in November 1988, and served until April 1991. In 1990, Gulf County undertook improvements to county road C-30. It advertised for bids and awarded the contract to C.W. Roberts Contracting, Inc., the lowest bidder. The contract was entered in October 1990, and included resurfacing the road, replacement of culverts, installation of some guardrails and reworking the shoulders on the highway. Respondent Parker and the other commissioners reviewed the contract. C.W. Roberts Contracting, Inc., subcontracted with Capital Asphalt, Inc., to produce the asphalt and place it on the roadway. The subcontract is dated October 1990. On February 22, 1991, Respondent, Donald Parker, was hired by Capital Asphalt, Inc. to help get the company's operation set up in Gulf County. His tasks included answering the telephone, running errands, issuing chits for gas for the trucks, sending in company timesheets, and similar activities. He was a friend of Al Cross, the company owner's husband. Parker knew that the company was working on county road C-30 and was selling asphalt to C.W. Roberts. The company also had other customers for its asphalt. Payments to C.W. Roberts by Gulf County on the C-30 project and other projects were made after tasks were completed and draws were approved by the road inspector. The commissioners approved payments to the contractor after reviewing the invoices. Invoice or application for payment #8 for $14,158.88 was reviewed and approved by the Board of County Commissioners, upon motion of Respondent Parker, in the commission's regular session on March 12, 1991. This was one of several payments to C.W. Roberts approved on the county road and various other projects at the March 12th meeting. Attached to application for payment #8 is a detailed breakout of the items for payment, including a request for $2,180.88 for 83.88 tons of FDOT SAHM CSE. This was material provided by Capital Asphalt to C.W. Roberts for the resurfacing of C-30. This fact can only be determined, however, from a review of the invoice, the contract with C.W. Roberts, and the subcontract with Capital Asphalt. Those three documents reveal that all of the material, FDOT SAHM CSE, 13,475 tons, required for the C.W. Roberts job on C-30, came from Capital Asphalt. Respondent Parker testified credibly that he never saw the Capital Asphalt subcontract. He knew, of course, of the Gulf County contract with C.W. Roberts, and he knew that his temporary employer was providing material and work on that contract. He did not know that under the subcontract, payment by C.W. Roberts to Capital Asphalt was contingent upon C.W. Roberts being paid by the county. And, he did not know that the vote he took at the March 12th meeting was a vote for payment that would be passed on to Capital Asphalt. Although Donald Parker had experience in finance, having been a loan officer in a finance company for twenty-eight years, his duties for Capital Asphalt described in this proceeding did not necessarily expose him to the financial dealings between this subcontractor and the county's contractor, C.W. Roberts. He was employed by Capital Asphalt for only two or three months, just long enough to include his vote at the March 12 commission session, but not long enough to become involved in the affairs of the company.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics issue its final order and public report dismissing the complaint in this case. DONE AND RECOMMENDED this 25th day of August, 1993, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0314EC The following constitute specific rulings on the findings of fact proposed by the Advocate: 1. Adopted in paragraph 1. 2.-5. Adopted in paragraph 2. 6. Adopted in paragraph 3. 7. Adopted in paragraph 5. 8.-9. Adopted in substance in paragraph 8. 10.-13. Adopted in paragraph 4. 14. Adopted in paragraph 9. 15. Adopted in paragraph 6. 16.-20. Adopted in paragraph 7. 21. Rejected as based on an assumption unsupported by the weight of evidence. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Advocate for the Commission on Ethics The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 Donald Parker HCO 1, Box 97 Port St. Joe, Florida 32456 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
