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
The Issue The issue in this case is whether Petitioner is of good moral character, which must be affirmatively determined by Respondent before Petitioner can be issued a license to operate as a community association manager.
Findings Of Fact The Parties Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction to regulate the practice of community association management. In June 2008, Petitioner Teddy Nadel ("Nadel") submitted to the Department an application for licensure as a community association manager. In August 2008, the Department notified Nadel that it intended to deny his application on the ground that he had failed to demonstrate good moral character. Nadel's Relevant Personal History For decades, from the mid-1960s through 2005, Nadel was a certified general contractor in the state of Florida. During most of this period, Nadel apparently engaged in the business of contracting without incident. In recent years, however, Nadel on several occasions was disciplined administratively for alleged misconduct in connection with his contracting business. The first disciplinary proceeding arose from Nadel's alleged failure timely to pay a civil judgment. In August 2001, the Department issued an Administrative Complaint accusing Nadel of having failed "to satisfy[,] within a reasonable time, the terms of a civil judgment obtained against the licensee . . . relating to the practice of the licensee's profession," which is an offense under Section 489.129(1)(q), Florida Statutes. Without admitting or denying the allegations, Nadel agreed to entry of a Final Order, in August 2002, whereby he was directed to satisfy the judgment, pay a fine of $500, and reimburse the Department $333.37 in costs. In March 2003, the Department again issued an Administrative Complaint against Nadel. The multiple charges included failure timely to satisfy a civil judgment, mismanagement,1 incompetence,2 and helping an unlicensed person engage in the business of contracting.3 In December 2003, pursuant to a stipulation under which Nadel elected not to dispute (or admit) the charges, the Construction Industry Licensing Board ("Board") entered a Final Order requiring Nadel to pay a fine and costs totaling approximately $4,000, satisfy the final judgment against him, and serve two years' probation. On March 7, 2005, the Board entered a Final Order Approving Voluntary Relinquishment of Licensure, which permanently stripped Nadel of his general contractor license. This action brought to an end certain disciplinary proceedings which were then pending against Nadel, who had been charged with helping four separate unlicensed individuals engage unlawfully in the business of contracting. Nadel neither admitted nor denied the allegations. At the final hearing, Nadel was afforded a full opportunity to explain the circumstances surrounding the multiple disciplinary actions that had been brought against him. To the rather limited extent Nadel testified about the facts underlying the numerous administrative charges described above, he failed persuasively and credibly to rebut the reasonable inference that naturally arises from the undisputed facts concerning his willingness repeatedly to accept punishment (including, ultimately, the loss of his license) without a contest in the respective disciplinary cases: namely that he had committed the unlawful acts as alleged. The undersigned therefore infers that, in the relatively recent past, Nadel exhibited a troubling pattern of behavior demonstrating a disregard of the laws regulating the business of contracting. On January 4, 2007, Nadel was convicted in the Circuit Court for the Seventeenth Judicial Circuit on charges of engaging in the unlicensed practice of contracting during a state of emergency, which is a third degree felony4; and grand theft in the third degree, which is also a felony of the third degree.5 (Nadel had pleaded no contest to these charges, and the court had withheld adjudication.) Following this conviction, the court sentenced Nadel to 18 months' probation, imposed some small fines, and assessed costs. In his application for licensure as a community association manager, Nadel disclosed his criminal conviction and the fact that he had voluntarily relinquished his general contractor license. He denied, however, having been "involved in any civil lawsuits or administrative actions in this or any other state . . . ." This denial was false, as Nadel must have known. After all, in the previous six years at least two administrative actions had been brought against Nadel in whole or in part because of his failure to pay two separate civil judgments. Ultimate Factual Determination Based on the foregoing findings of fact, the evidence in support of which is clear and convincing, it is determined that Nadel does not possess the good moral character required for issuance of a community association manager license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Nadel's application for licensure as a community association manager. DONE AND ENTERED this 18th day of March, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 18th day of March, 2009.
The Issue The issue in this case is whether Respondent, Florida A & M University Board of Trustees (“Board of Trustees”), improperly reassigned Petitioner, Dale Cassidy, to an alternative position at Florida A & M University (“FAMU” or the “University”); and, if so, whether Petitioner is entitled to damages or other relief.
Findings Of Fact Petitioner is a former employee of the University. He was hired in 2014 as vice president of Finance and Administration/Chief Financial Officer (“vice president of Finance/CFO”). He assumed the position at a starting annual salary of $195,000. In August 2015, he assumed additional duties and his salary was increased to $220,000 in recognition of the additional responsibilities. Petitioner served as vice president of Finance/CFO until March 14, 2017. Respondent is the Board of Trustees for FAMU, a university within the State University System. FAMU is a nationally known, historically black college located in Tallahassee, Florida. On Friday, March 11, 2016, Petitioner was visited in his office at FAMU by two individuals: Jimmy Miller and Santoras Gamble. The two came into his office as emissaries of the then-President of FAMU, Elmira Mangum. Miller was President Mangum’s chief of staff; Gamble was a “special assistant” to the President. The purpose of Miller and Gamble’s visit was to hand-deliver to Petitioner a letter signed by the President notifying Petitioner of a “change-in-assignment.” Specifically, Petitioner was being removed from his position as vice president of Finance/CFO and reassigned to the newly created position of Chief External Compliance and Ethics Officer (referred to herein as the “Ethics Officer”). His annual salary in that position would be reduced to $176,000 and he would receive normal (as opposed to enhanced) fringe benefits.1/ He would no longer be eligible to participate in the Executive Service pay plan which existed for certain high-level administrative and professional (“A&P”) staff. Petitioner’s change in assignment was to take effect the following Monday, March 14, 2016. Petitioner read the letter from President Mangum and dropped it on his desk. The two emissaries asked if he had any questions about the letter. He either told them he did not have any questions or he told them, “[no questions] that you can answer.” Either way, that was the end of the discussion between Petitioner and the two representatives of President Mangum. Miller, Gamble, and Petitioner then left Petitioner’s office and toured Lee Hall, purportedly looking for a new office for Petitioner once he assumed his new role. President Mangum’s office is also located in Lee Hall. Petitioner was ultimately moved to an office in the Foote-Hilyer building. On the day after the reassignment took effect, Jimmy Miller, as President Mangum’s chief of staff, issued a memorandum to the Board of Trustees. The memorandum outlined the changes in senior leadership assignments, including Petitioner’s reassignment to the position of Ethics Officer.2/ Over the next couple of weeks, Petitioner made his displeasure with the reassignment made known to a number of people. He was, however, especially unhappy that news of his reassignment (and presumptive demotion) was reported in the Tallahassee Democrat, the local newspaper. Petitioner moved into his new office on the fourth floor of the Foote-Hilyer building, in a suite of offices occupied by the vice president of Research, within two weeks of receiving the job change notice. On the day before he moved into his new office, Petitioner drafted a memorandum to his personnel file concerning his reassignment. The memo included the statement, “I accept this new role and pledge to perform the related duties . . . to the best of my ability.” On the day he assumed the new position, Petitioner wrote another memo that he asked to be placed in his personnel file. In the memo, Petitioner essentially complained that he had not been given any specific reason for the reassignment from the position of vice president of Finance/CFO. The memo did not mention that President Mangum’s emissaries had asked him if he had questions about the letter or that he had no questions for them. Petitioner did not point to any requirement in University regulations (or otherwise) that the President was required to give him a specific reason for the transfer. In fact, all A&P employees serve at the pleasure of the President and could have their employment terminated at any time, with or without cause. Petitioner received a request from President Mangum for him to meet with her concerning the change in assignment. The meeting was held (albeit on a day other than proposed by the President, pursuant to Petitioner’s request). At the meeting, ultimately held on March 21, 2016, Petitioner was presented with his new employment contract for the Ethics Officer position. He refused to sign the contract, citing his reasons, to wit: 1) He had not been told specific reasons why he could no longer serve as vice president of Finance/CFO; and 2) the President had not shared with him her vision of how she expected him to perform his duties in the new role. By not signing the employment contract, he knew that President Mangum would be within her rights to terminate his employment altogether. Petitioner seems to acknowledged that President Mangum “consulted” him about the new job classification at the meeting. He maintains, however, that it was too late to hold the consultation at that time. He provided no support or rationale for his stance. Petitioner then attempted to negotiate a different job description for the position to which he had been assigned. He asked for more salary, that the position be “interim” in nature, and that he retain his Executive Service benefits. President Mangum informed him that the University’s human relations department had “market priced” the salary and that it would not be changed. There is no evidence the other issues he raised were discussed at that time (or later, for that matter). As noted, Petitioner moved into his new office space on March 14, 2016, and by all appearances, assumed his duties as the Ethics Officer. He nevertheless maintains he did not believe he had ever formally served in that capacity. This testimony contravenes a memo he wrote on the day of his meeting with President Mangum. The memo, written to his personnel file, said, “I currently plan to accept the role [of Ethics Officer].” On June 21, 2016, Petitioner attended a seminar in Orlando relating to ethics and compliance officer regulations. In his travel request form, Petitioner identifies himself as “Officer, Compliance” and affirmed that the seminar constituted official business. His travel was approved and he attended the seminar. At final hearing, Petitioner said he attended the seminar as “an employee of the university” but not as the Ethics Officer. There is no evidentiary support for that contention and it seems unlikely in light of his travel documents. From March 14, 2016, until his resignation from employment, effective December 29, 2016, Petitioner was considered by the University to be its Ethics Officer. He performed duties associated with that position, operated out of the office assigned to that position, and accepted compensation for serving in that position. The University human resources officer (who was called as a witness by Petitioner at final hearing) opined that Petitioner’s actions clearly confirmed that he had accepted the position. A further example: On August 19, 2016, Petitioner issued a report on matters relating to his position as Ethics Officer. He signed the report, noting his position as “Acting Chief Compliance & Ethics Officer.” Petitioner said he signed the report that way because FAMU did not have “acting” administrative employees; they were either permanent or interim. However, Regulation 10.106(1)(b) states, “A&P employees who are appointed to established positions with an appointment status modifier or type, other than Regular (for example, Acting, Temporary or Visiting) are not entitled to a notice of non- reappointment.” Granted that section is referring to non- reappointment and addresses established positions, neither of which is relevant to the instant matter, but it does show that “Acting” is a nomenclature used by FAMU for A&P employees. Petitioner is seeking the difference in pay and benefits he received as Ethics Officer versus what he had been making as vice president of Finance/CFO, for the time period March 14 through December 29, 2016. He asserts that since he never signed the contract to be Ethics Officer, he never officially served in that position. The Personnel Action Request (“PAR”) in Petitioner’s personnel file was signed by President Mangum, the appropriate vice president (Ronica Mathis), and the HR Officer; and it clearly reassigns Petitioner to the position of Ethics Officer, effective March 14, 2017. The PAR, which sets out the employee’s current position, proposed new position, salary and other information, need not be signed by the employee. He or she would only be provided a copy of the PAR if they requested to review their personnel file. When asked what services he performed during his tenure as Ethics Officer, Petitioner responded, “Whatever the President, as my supervisor, asked me to do, which was largely nothing.” Petitioner did not provide further elucidation as to how doing “largely nothing” warranted additional payment from the University. Petitioner maintains he was not properly advised of his proposed reassignment pursuant to relevant University regulations. He cites to Regulation 10.209, Change-In- Assignment of Faculty and Administrative and Professional Employees, which states in pertinent part: The President or President’s designee may for the best interest of the University, at any time, assign a Faculty or Administrative and Professional (A&P) employee to other institutional assignments only after consultation with the employee and the departments or other units affected. Regardless of the change-in-assignment, however, the University is committed to compensate the employee. Despite being asked by the President’s designees (Miller and Gamble) on March 11, 2016, whether he had any questions about the reassignment, Petitioner maintains he had no “consultation” as required by the regulation. Rather, he posits, all he received was “notice” of the reassignment. Petitioner points out that the dictionary definitions of consultation and notice are different and they do not share the same synonyms. From Petitioner’s perspective, consultation would involve some degree of give and take between the President and the employee. Or, as he stated in his PRO filed in this case, the synonym for consultation is “asked to discuss or exchange views” of a matter. Petitioner says that Miller and Gamble asking him if he had any questions was not sufficient “consultation” on the matter. Petitioner provided no other support for his position. Further, Petitioner points out that Richard Givens, vice president of Audit and Compliance, was not notified about Petitioner’s reassignment. Petitioner maintains that Givens’ office was affected by the reassignment and thus should have been consulted as well. Givens stated at final hearing that his office “could have been affected” by the reassignment, but ultimately it had not been affected. Timothy Moore, vice president of Research, maintains that consultation means nothing more than a letter, email, phone call or other means of transmitting the fact to an employee. Clearly, Petitioner was provided notice of the reassignment and had opportunity to consult with the President’s representatives, but he refused to do so. Givens received notice of the reassignment when he read about it in the local newspaper. He does not remember being advised by anyone at FAMU concerning the change before it occurred, but received written notice on the day Petitioner started his new position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Florida A & M University Board of Trustees, upholding the employment action as to Petitioner, Dale Cassidy, and denying Petitioner’s claim for damages or other relief. DONE AND ENTERED this 13th day of April, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 13th day of April, 2017.
The Issue Whether Petitioner, following his conviction for driving under the influence of alcohol, was properly terminated from his employment by Respondent on January 29, 1999,. Whether Petitioner's termination was an unreasonable and too severe disciplinary action under the facts and circumstances of this case.
Findings Of Fact Brevard Community College, Respondent, is a body politic operating as a political subdivision of the State of Florida and authorized as a public employer to employ personnel and otherwise carry out the mission of the college as prescribed by the Legislature. Brevard Community College participates in the State Retirement Program as a public employer, but Brevard Community College is not involved in the State Career Service System. Respondent approves each non-instructional employee's continued employment for the next fiscal year each June, which includes an annual salary and a daily rate of pay. The employment approval provides that should the employee not remain employed through the entire year, the employee's pay is to be adjusted based on the number of days actually worked. Lloyd Creel, Petitioner, was a full-time employee of Respondent beginning December 17, 1979, and his employment was renewed annually until his termination. Petitioner had been a full-time employee of the college for a period of approximately 19 years prior to his termination, advancing to the position of maintenance supervisor. Petitioner's evaluations were consistently satisfactory and above-average during his employment. Creel was never warned, demoted, placed on a probationary status, or given any other disciplinary action whatsoever during his employment by Respondent. Operating under Chapter 240, Florida Statutes, and based on the recommendation of the District president of the college, the District Board of Trustees of the Brevard Community College approved Petitioner's continued employment for the fiscal year ending June 30, 1999. Petitioner was notified of his employment approval in June 1998. Petitioner's rate of pay was $38,700.00 for the 1998- 1999 fiscal year, at Step No. 257 for an annualized salary for a period of 261 days. The daily rate of pay was $148.28. During his employment with the college, Petitioner accumulated approximately $26,000.00 in sick leave. Florida law provides sick leave is compensable only in the event of death or retirement from the college. On or about October 13, 1998, Petitioner was arrested and charged with Driving Under the Influence of Alcohol (DUI), after hours in his private vehicle. This matter was brought to the attention of officials at Brevard Community College soon thereafter. After Petitioner was charged with DUI, he discontinued utilizing a college vehicle on the job and used his own vehicle. Petitioner continued to perform his responsibilities as maintenance supervisor. These included scheduling work, ordering supplies, occasionally viewing work completed by his subordinates on the job site, and attending meetings. Petitioner's subordinates performed their responsibilities without his direct supervision most of the time. Petitioner had a temporary permit which allowed him to drive through December 1998. Thereafter, the permit expired. After Petitioner's driver's permit expired, he had his roommate take him to work and provide his transportation whenever necessary. Occasionally, when he was required to attend a meeting on another campus, he sought and received rides with other Brevard Community College employees. On January 13, 1999, Petitioner pled no contest to the charge of driving under the influence of alcohol before the County Court of Brevard County, Florida. The Court adjudicated Petitioner guilty of the charge and sentenced him, inter alia, to six months driver's license suspension. Petitioner was eligible to obtain a business purpose driver's license in March 1999. Petitioner continued to perform his job functions until January 29, 1999, when he was terminated by letter from Robert E. Lawton, Associate Vice President for Human Resources. Petitioner protested his termination by writing a letter dated February 9, 1999. He questioned both his termination and the denial of payment for his sick leave. Following the termination of Petitioner, Respondent immediately employed the services of a replacement for the position of maintenance supervisor. That replacement continues to serve and be employed by the college. Counsel for Respondent communicated to counsel for Petitioner in writing that the college was willing to submit this dispute to a hearing before an Administrative Law Judge of the Division of Administrative Hearings. Petitioner was given notice of his rights by the college, together with a summary of the factual and legal policy grounds for his termination on or about May 21, 1999. On or about June 15, 1999, Petitioner filed a Petition for Relief from the employment decision rendered herein. The employment of Petitioner as an air-conditioning and electrical maintenance supervisor required Petitioner to transport himself on a regular and periodic basis among the four campuses of Brevard Community College located in Titusville, Cocoa, Melbourne, and Palm Bay, respectively. The nature of the employment of Petitioner was such that he was required to have a driver's license in order to perform his job properly. The suspension of Petitioner's driver's license, as a result of his conviction for driving under the influence of alcohol, effectively prevented Respondent from performing his job as maintenance supervisor in that he was not able to travel between the college campuses which span a distance of approximately 50 miles in Brevard County, Florida. At that time, there did not exist a lateral position at the college to which Petitioner could be transferred pending the restoration of his driving privileges. A number of college employees, numbering at least three in the recent past, received DUI convictions and have had their licenses suspended. However, they did not suffer a loss of employment as did Petitioner. The following individuals were convicted of DUI during their employment with Brevard Community College. Robert A. Anderson was convicted of DUI on December 9, 1994, while he was Associate Vice President of Student Services, College-Wide. He was not terminated, demoted, or otherwise disciplined as a result of his DUI conviction. Wayne Wilkening was convicted of DUI on November 6, 1995, March 4, 1996, August 19, 1997, and on August 21, 1997, was convicted of violating his probation. Prior to these convictions, Wilkening's driver's license was revoked for ten years. Wilkening's employment, as a groundskeeper, continued until September 7, 1999. Jay Matheny was convicted of DUI on March 15, 1995, while he was employed by the college as mail courier. He was transferred after his conviction to a position as Groundskeeper I, where he is still employed today. Respondent does not have a policy which requires termination in the event of a conviction of DUI and loss of driving privileges. Likewise, the college does not have a policy which requires an employee who is convicted of DUI and who loses driving privileges to be retained or laterally transferred and continued in employment at the college. Petitioner was terminated because he lost his driver's license for a period of six months, and was unable to satisfactorily perform his job. Petitioner contends that he could have performed his job using a surrogate driver to transport him from campus to campus. He further argues that termination was too severe and was inconsistent with past practices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the District Board of Trustees of Brevard Community College enter a final order, as follows: The Brevard Community College Board of Trustees is lawfully entitled to terminate Petitioner, Lloyd Creel, under the facts and circumstances of this case; however, the appropriate disciplinary action under the facts and circumstances of this case is suspension without pay for the period January 13, 1999, until the time Petitioner obtained a business purpose driver's license. Petitioner was a non-instructional employee of the college and the Board of Trustees had approved his employment for the fiscal year 1998/1999 and no rule, statute or policy gave Petitioner the expectancy of continued employment beyond the fiscal year ending June 30, 1999. Petitioner should be compensated at the daily rate of pay of $148.28 for the period March through June 30, 1999. Petitioner should be compensated for his accrued sick leave for his period of employment. Petitioner has not demonstrated a legal basis for an award of attorney's fees. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of April, 2000. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire Erlenbach & Erlenbach, P.A. 400 Julia Street Titusville, Florida 32796 Joe D. Matheny, Esquire 355 Indian River Avenue Titusville, Florida 32782-6526 Thomas E. Gamble, President Brevard Community College 1519 Clearlake Road Cocoa, Florida 32922 Eugene C. Johnson, Chairman District Board of Trustees Brevard Community College 1519 Clearlake Road Cocoa, Florida 32922
The Issue The issues are whether the Florida Commission on Ethics (Ethics Commission) has jurisdiction over Counts I and IV of the Advocate's Amended Recommendation, pursuant to section 122.322(1), Florida Statutes; if jurisdiction exists over Count IV, whether Respondent, while a commissioner and vice mayor of the City of Margate (City), violated section 112.313(7), Florida Statutes, by appearing before the City commission on behalf of his employer, which was seeking a beer and wine license for consumption on the premises (2COP); and whether Respondent is entitled to an award of attorneys' fees and costs, pursuant to section 57.105(5), Florida Statutes.
Findings Of Fact The Complaint is on a Ethics Commission form (Form 50) that asks the complainant for a full explanation of the complaint. The complaint form refers twice to documents. The complaint form asks the complainant not to attach copies of lengthy documents; the form assures that, "if they are relevant, your description of them will suffice." The oath printed on the complaint form states: "I . . . do depose on oath or affirmation . . . that the facts set forth in the foregoing complaint and attachments thereto are true and correct to the best of my knowledge and belief." The Complaint, which is signed and notarized, contains no explanation or narrative, but Complainant attached 11 pages of copies of documents, which are marked as pages 3 through 13. Page three of the Complaint is an article dated March 8, 2012, and posted on MargateNews.net.5/ This article reports that, by a 3-2 vote, the City commission reprimanded Respondent for abusing City credit card privileges, even though Respondent claimed to have repaid any unauthorized charges. The article reports that one commissioner expressed a belief that Respondent misused a City credit card and committed a "few other abuses." At page four of the Complaint is a copy of the City credit card agreement signed by Respondent. Handwritten notations add: "This (i.e., the credit card agreement) states that he (Respondent) cannot use card for personal use in which he did[.] [H]e bought beer and wine for his bar with cash advance. Says he paid it back in cash be has no repcit (sic) for it." All handwritten notes on documents attached to the Complaint and Amended Complaint were made by Complainant.6/ At page five, a MargateNews.net article dated August 16, 2010, reports alleged tax and purchasing violations by McLean's Bar & Grill, which was located at 2160 Mears Parkway. This article mentions other matters, including Respondent's voting a pay raise for City commissioners and a property-tax hike, Respondent's "history of financial instability . . . and fiduciary irresponsibility," and Respondent's two residential evictions from 1996-2006 for lease defaults. At page six is an unsigned, typewritten letter about Respondent. This letter twice charges that Respondent misused a City credit card and also alleges that he failed to repay $15,000 from "a Margate taxpayer"--Complainant--and violated unspecified tax and purchasing laws as to alcoholic beverages. A handwritten note adds: "I read this at the commissioner meeting." Below this note is printed Complainant's name. At pages seven and eight, a MargateNews.net article dated October 30, 2011, states that Complainant had lent Respondent $15,000 for a kitchen addition at McLean's Bar & Grill, but Respondent had failed to repay the loan after the business closed. This article alludes to some bad debts and judgments against Respondent or his businesses, but portions of the article are illegible, and the meaning of these portions of the article is unclear. The same article reports that Respondent was now operating Dave's Tiki Bar, which was located at 238 North State Road 7. Part of this portion of the article is also illegible, but seems to report that Jean LeBlanc, a co-owner with Respondent of a "former Tiki Bar," cancelled the bar's 2COP beer and wine license, effectively closing the bar. To reopen the Tiki Bar, according to the article, Respondent convinced his fellow City commissioners to hold a special meeting of the City commission in August 2011 to grant a 2COP license to "Tiki bar petitioner, Kenneth Suhandron," whom the article describes as Respondent's "partner." The article notes that Respondent abstained from voting due to a conflict of interest. The article states that Respondent acquired the corporate owner of the bar days after the special meeting, so Respondent now holds the temporary 2COP license, even though he had not paid for it. An online update indicates that Respondent paid for the 2COP license on November 1, 2011. At page nine, a MargateNews.net article dated August 20, 2011, describes a special meeting of the City commission on August 15. This article states that Respondent had been managing the Tiki Bar when a disagreement between him and his partner, Mr. LeBlanc, resulted in the cancellation of the bar's 2COP beer and wine license. According to the article, Respondent found a new investor, Mr. Suhandron, to apply for a new 2COP license and called for a special meeting of the City commission to provide the necessary City approval for the applicant to obtain a 2COP license. The article notes that Respondent appeared at the meeting to represent the listed applicant, Mr. Suhandron, but abstained from voting due to a conflict of interest. At pages 10 through 12 are a final summary judgment against Respondent and McLean's Bar & Grill, Inc., for $29,638.60 and a final judgment against Respondent for $20,073.63. At page 13 is an email from Complainant that pertains to the charge of Respondent's misuse of a City credit card. Redacted from the email is reportedly an email that another City commissioner had sent to Complainant, who added a handwritten note to this effect. The Amended Complaint is on the same form as the Complaint and is also notarized.7/ Like the Complaint, the Amended Complaint contains no explanation or narration of the charges, but it contains 41 pages of copies of documents, which are attached as pages A-3 through A-43. At pages A-3 through A-4, a letter dated May 16, 2012, from the Ethics Commission to Complainant focuses on Respondent's alleged failure to repay the $15,000 loan from Complainant and Respondent's misuse of a City credit card. To this letter, Complainant added a handwritten note stating: I cannot prove he use[d] [a City credit card for cash advances] for alcohol. . . for bar but just the cash advance alone is breaking the law over [sentence abruptly ends]. Just last week he got fined again for selling illigiel [sic] beer that he bought from a gas station in his bar[.] It will be in margate news.net next week[. I]f you want I can email you a copy. This man is a con artist. Pages A-5 through A-8 comprise a promissory note evidencing the $15,000 loan from Complainant. Complainant handwrote on the note: "He never gave me 1 payment or any interest payments." Pages A-9 through A-14 are the minutes of a meeting of the City commission on March 7, 2012. The sole handwritten addition to these minutes is at the top of the first page: "Each one of the following [commissioners?] has info on it[. A]ll are highlighted or outlined for your use." According to the minutes, one commissioner stated that she believed that Respondent had misused a City credit card and wanted him to resign, but he refused to respond to her statement or, clearly, to resign. This commissioner asked the City attorney to identify the options available to the City commission. The City attorney informed the commission that there had not been a determination that Respondent had violated the standards of conduct or code of ethics in his use of a City credit card and advised that the City commission could order an investigation, prospectively clarify the restrictions on the use of City credit cards and provide for forfeiture of office for a violation of these restrictions, publicly censure or reprimand a City commissioner, or prohibit a City commissioner from using a City credit card. According to the minutes, another commissioner--the mayor--then stated that what Respondent had done was wrong. The commissioner who had called for Respondent's resignation then asked for an investigation to be conducted by the county Board of Ethics or the Ethics Commission. The mayor responded that either this commissioner or a resident would need to file such a request because the City commission was not in a position to do so itself. A motion to censure Respondent, revoke his City credit card, and order an investigation then failed for the lack of a second. A motion followed to censure Respondent and revoke his City credit card. This motion was amended to add a directive to the City attorney to add restrictions to the use of City credit cards and provide for forfeiture of office for their violation. Prior to a vote on this amended motion, someone made a motion to table the amended motion, but the motion to table failed by a 2-3 vote. The commission then considered the amended motion, which passed 3-2. Respondent voted to table the amended motion and against the amended motion. At pages A-15 through A-21, the minutes of a meeting of the City commission on March 21, 2012, state that Respondent asked the City manager to cancel his City credit card "in light of the recent inquiries on his use of the card." (It appears, though, that the adoption of the March 7 amended motion should already have resulted in the cancellation of Respondent's City credit card.) According to the minutes, Respondent then "apologized for the mistrust the matter had caused" and added that "he did not intentionally misuse his position to mistrust anyone." Reverting to more conventional syntax, Respondent concluded: "He could not change what happened, but he had made it right and said it would not happen again." Complainant drew a box around this paragraph of the minutes, and he drew an arrow pointing to a corner of the box. Later in the meeting, the City commission unanimously agreed to advertise an ordinance restricting the use of City credit cards and providing for the dismissal of any employee violating these restrictions. A handwritten note states that Respondent should nonetheless be removed from office for his misuse of a City credit card because "[h]e used card for cash advances and said he paid city back in cash, but no one has a record of him doing that." Pages A-22 through A-37 are the minutes of a meeting of the City commission on April 18, 2012, and four executed memoranda of voting conflict that appear to have been attached to the minutes. These minutes describe City commission votes on alcoholic beverage licenses as to which Respondent abstained from voting due to his employment, but the establishments seeking City commission approvals appear to have been unrelated to Respondent. As indicated in the joint factual stipulation, at all material times, Respondent served as a commissioner and vice mayor of the City commission, and, as such, Respondent was subject to part III, chapter 112, Florida Statutes. As indicated in the joint factual stipulation, Respondent misused a City credit card. As indicated in the joint factual stipulation, while serving as a commissioner and vice mayor of the City, Respondent represented his employer before the City commission in the employer's application for a license from the City commission. Respondent timely disclosed his employment relationship to the City commission, abstained from voting on the issue, and timely filed a Memorandum of Voting Conflict. Under the circumstances, the appearance of Respondent, as an employee of the Tiki Bar, at the August 15, 2011, special meeting of the City commission did not constitute, or serve as a precursor to, a continuing or frequently recurring conflict between Respondent's private interests and public duties, nor did this appearance impede the full and faithful discharge of Respondent's public duties. The key facts are the lack of significant regulatory jurisdiction of the City commission over the issuance and use of 2COP licenses, the one-time nature of the Tiki Bar's need for City commission approval for its request for a 2COP license, the employment relationship that existed between Respondent and the Tiki Bar, and the absence of any responsibilities imposed on Respondent due to his employment with the Tiki Bar to represent other parties in requests before the City commission.
Recommendation It is RECOMMENDED that the Ethics Commission enter a final order dismissing Counts II and IV, determining that Respondent violated section 112.313(6) as alleged in Count I, and imposing an administrative fine of $3000, censure, and a reprimand against Respondent. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 28th day of August, 2014. 1/ Available at
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
The Issue The issue is whether Respondent should pay Petitioner's attorney's fees and costs, and, if so, the amount.
Findings Of Fact Mayor Osborne was the Mayor of Beverly Beach, Florida, during 1999 through 2001. Dr. Milanick was a dentist who owned property immediately north of Beverly Beach, Florida. Dr. Milanick desired that the property be annexed into the town and initiated annexation proceedings before the City of Beverly Beach. Mayor Osborne did not facilitate the requested annexation during the time he served as Mayor of Beverly Beach. Dr. Milanick alleged to the Commission that Mayor Osborne opposed the annexation for personal, financial gain. In order to defend himself against these false allegations, Mayor Osborne retained Robert J. Riggio, Esquire, of the Riggio and Mitchell firm of Daytona Beach. The Original Award of Attorney's Fees An award of attorney's fees and costs in favor of Mayor Osborne was recommended in Division of Administrative Hearings Case No. 04-4110E. The Recommended Order stated that the amount of attorney's fees and costs for Mayor Osborne to defend against Dr. Milanick's allegations was $4,976.00. The Commission did not address the amount of attorney's fees and costs in its Final Order, but instead held that Mayor Osborne was not entitled to any award. Subsequently, the Fifth District Court of Appeal found the Commission's Final Order to be erroneous and remanded the matter ". . . for entry of an order making the awards recommended by the ALJ." A Mandate with regard to the Fifth District Court of Appeal issued April 11, 2007. The award recommended by the ALJ was, as stated above, $4,976.00, and that amount should be awarded by the Commission in a Final Order. Appellate Attorney's Fees Mayor Osborne filed a Motion for Petitioner's Appellate Attorneys' Fees and Costs before the Commission on May 10, 2007, noting the Fifth District Court of Appeal, in its Order dated February 16, 2007, stated that, "Appellant's Motion For Attorney's Fees, filed May 16, 2006, is granted and the above- styled cause is hereby remanded to the Commission . . . to determine and assess reasonable attorney's fees for this appeal." The Fifth District Court of Appeal addressed only attorney's fees. However, because Mayor Osborne's Motion sought both attorney's fees and costs, and because the Commission sent that Motion without special directions to the Division of Administrative Hearings for resolution, it is found that the Administrative Law Judge has jurisdiction to recommend awards of both attorney's fees and costs expended in prosecuting the appeal. David C. Robinson, an attorney in Daytona Beach, Florida, testified as an expert on attorney's fees in Volusia County, Florida. He has practiced law in Daytona Beach for 26 years and has testified in other attorney's fees cases. He is familiar with the fees charged by attorneys in the Daytona Beach and Volusia County area. He knows Attorney Robert Riggio, of Daytona Beach, Volusia County, and Attorney Martin Pedata, of Deland, a town that is also located in Volusia County. Mr. Robinson is found to be an expert on the subject of reasonable attorney's fees and costs in Volusia County. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne as to the appellate filings made by Mr. Riggio. In doing so he considered the Lodestar approach as described in Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Mr. Robinson opined that the services performed by Mr. Riggio in the appellate proceeding were provided in a manner that an attorney would be reasonably expected to provide. He reviewed the hourly rate charged by Mr. Riggio and stated that the reasonable rate should be $250.00 per hour, but that Mr. Riggio only charged $150.00 per hour. Mr. Riggio's law firm, Riggio and Mitchell, billed Mayor Osborne for 95 hours. A small portion of the work was accomplished by his partner Jerome D. Mitchell. Other work in the amount of 9.4 hours was billed for paralegal work at $40.00 per hour. The 95 hours of attorney work was billed at $150.00 per hour for a total of $14,250.00, and the paralegal work totaled $376.00. Costs amounted to $859.70. This resulted in a total of $14,626.00 for fees and $859.70 in costs. Mayor Osborne paid these charges in full. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. As a result of Mr. Riggio's efforts, Mayor Osborne prevailed in the appeal. It is found that Dr. Milanick caused Mayor Osborne to pay attorney's fees and costs in the amount of $15,485.70. Proving Entitlement to Fees and Costs Subsequent to Dr. Milanick's allegations of misconduct before the Commission, and after an investigation, the Commission, in a Public Report dated September 8, 2004, dismissed the complaint on a finding of no probable cause in the case of Mayor Osborne. Pursuant to Subsection 112.317(8), Florida Statutes, Mayor Osborne was entitled to be reimbursed for the attorney's fees and costs associated with defending himself against Dr. Milanick's allegations. Because Dr. Milanick did not voluntarily remit the fees and costs expended, a hearing was required. A hearing was held in this matter in Daytona Beach, Florida, on May 11, 2005. The hearing in Division of Administrative Hearings Case No. 04-4110FE, lasted an entire day. Prior to the hearing, Mayor Osborne engaged the services of Attorney Martin Pedata in addition to those provided by Mr. Riggio. The agreement for representation by Mr. Pedata was reduced to writing on April 6, 2005. The agreement provided that Mayor Osborne would pay Mr. Pedata $250.00 per hour for his services and $75.00 per hour for paralegal services. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne for the preparation for and the conduct of the hearing of May 11, 2005. Mr. Robinson stated that the hourly rate of $250.00 was a reasonable one for the type of services provided by Mr. Pedata. He stated that the number of hours expended by Mr. Riggio and Mr. Pedata in connection with this hearing was reasonable. In analyzing this claim he used the Lodestar approach set forth in Rowe. Mr. Riggio and his partner Mr. Mitchell, expended 160.6 hours proving entitlement to fees and costs. Mr. Pedata, as lead attorney in the entitlement case, expended 107 hours. In addition, 54.2 paralegal hours were expended in proving the entitlement case. These hours include the time up to the filing of the appeal with the Fifth District Court of Appeal. These hours also include the time spent before the Commission. As a result of the efforts of Mr. Riggio and Mr. Pedata, Mayor Osborne prevailed in the entitlement hearing, which resulted in a Recommended Order in his favor. Mayor Osborne paid Mr. Riggio and Mr. Pedata a total of $50,840.00 for their services in proving entitlement to attorney's fees. He also paid $2,168.00 for paralegal services. Total costs amounted to $3,764.73, which Mayor Osborne paid. The total fees and costs to Mayor Osborne was $56,772.73. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. It is found that Dr. Milanick was responsible for Mayor Osborne having to pay attorney's fees and costs in the amount of $56,772.73. Additional fees and costs Mr. Riggio presented Mayor Osborne with an invoice in the amount of $2,370.00 for the cost of the current proceeding. However, the Administrative Law Judge is without jurisdiction to address this claim in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics award attorney's fees and costs as follows: The original award of attorney's fees in the amount of $4,976.00. Attorney's fees and costs for appellate attorney's fees and costs in the amount of $15,485.70. Attorney's fees and costs for proving entitlement to fees and costs in the amount of $56,772.73. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2007. COPIES FURNISHED: Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Kaye Starling Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Dr. Alexander J. Milanick 7250 A1A South St. Augustine Shores, Florida 32080 Phillip C. Claypool, Executive Director and General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
