The Issue Whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to section 112.313(7), Florida Statutes, and Florida Administrative Code Rule 34-5.0291; and, if so, in what amount.
Findings Of Fact Ethics Complaint 15-174 On August 17, 2015, the Commission received a complaint against George Hanns (“Hanns”) filed by McDonald which alleged that Hanns, as a member of the Flagler County Commission (“County Commission”) and the Flagler County Canvassing Board (“Canvassing Board”), violated Florida’s election laws, the Government-in-the-Sunshine Law (“Sunshine Law”), and Florida’s Code of Ethics for Public Officers and Employees (“Code of Ethics”). Specific allegations in the complaint included that: A Special Canvassing Board meeting was held on September 12, 2014 in the Supervisor of Elections office bringing in a record crowd of voters. Commissioner Hanns and other county commissioner's behaviors and actions towards the Supervisor of Elections were criticized by Joe Kubusky. George Hanns became argumentative, stood up (in a threatening manner) and very unprofessionally verbally lashed back yelling at the public in a threatening manner. Many of the individuals present recorded the meeting, as did the Supervisor of Elections. Following the September 12, 2014 Special Canvassing Board meeting a scheduled County Commission meeting was held. It was at this time County Commission Chair/Canvassing Board member George Hanns brought up at the end of the County Commission meeting issues faced during Canvassing Board meetings. The alternate canvassing board member Barbara Revels and county attorney/canvassing board attorney Albert Hadeed were present. A discussion then took place at the County Commission meeting about the appointment of a canvassing board attorney along with other election related topics; all which were captured on audio by the staff member of the Clerk of the Court. It is believed that none of the election related topics were reflected on the meeting agenda, advertised to the public or reflected in the Board of County Commission meeting minutes. Furthermore, the other canvassing board members (including the Supervisor of Elections) were not noticed and provided the opportunity to be present to participate in the discussions. It would not be expected that election Canvassing Board issues be discussed at a Board of County Commission Meeting with only a canvassing board member and canvassing board alternates present. During the Board of County Commission meeting it was stated that action was to take place at the next scheduled election canvassing board meeting (October 17, 2014) for the county attorney Albert Hadeed (the board of county commissioners attorney) to be appointed the official canvassing board attorney, which in fact did occur during the October 17, 2014 Canvassing Board meeting as had been stated at the County Commission meeting and Commissioner George Hanns was the one to make the motion on the matter. From my perspective and other public attendees it seemed that this voting in of Hadeed had been prearranged! No such topic was discussed during the September 12th Special Canvassing Board meeting or at any other prior Canvassing Board meetings, therefore, it is believed a violation of the Florida Sunshine Law occurred. It was unknown by the Canvassing Board Agenda that a vote was going to take place at the October 17, 2014 canvassing board meeting as to who the canvassing board attorney would be. This September 12, 2014 Board of County Commission meeting appeared to be the prime opportunity for collaboration between commissioners (canvassing board member and alternates) and their staff to poll support from one another to manipulate and conquer the events of election canvassing board meetings to their advantage and liking, and to undermine and attack the supervisor of elections who is a constitutional elected officer who is independently elected by the people to preserve the integrity of the elections process.[9/] The complaint also alleged that: The County Commission also discussed election related issues on or about October 20, 2014 at a regularly scheduled Board of County Commission meeting, which too is believed to be a violation of the Sunshine Law as it was not advertised, was not on the meeting agenda, nor were other canvassing board members noticed or provided the opportunity to participate in the discussions. These occurrences of discussing the Canvassing Boards business take place with Commissioner George Hanns, Chair of the County Commission leading the meetings, and are done at the end of Board of County Commission meetings where the public would not expect such events. All discussions are captured on meeting audio though they may not be reflected in the Board of County Commission meeting minutes. The complaint further alleged that: The actions of George Hanns, the other county commissioners, and their staff have been done willingly, intentionally and with knowledge. They have used their position for personal gain- to remain in office, and to benefit other fellow commissioners to get re-re-elected so they too could remain in office to carry out agendas collectively. In the last two election cycles four of these commissioners have been narrowly elected. Hanns was a five term incumbent but won by 318 votes to a first time candidate, that was less than 1% but more than the .5% required to recount. Ericksen won by 120 votes and Meeker survived by 209 votes. They together retaliated against the supervisor of elections by conspiring together to harm the Supervisor of Elections reputation and their actions impacted our elections. Chair Commissioner George Hanns used his county employees to carry out his agenda relating to unethical practice and attacking the Supervisor of Elections for exposing his wrong doing and his dislike for being requested to remove himself from the county canvassing board. Commissioner Hanns and his fellow Commissioners are responsible for the actions and behaviors of the county administrator Craig Coffey and County Attorney Albert Hadeed. The removal of Commissioner George Hanns from the Canvassing Board left him powerless in the canvassing process and an embarrassment to our County. Discussions regarding the canvassing board took place at least twice at board of county commissioner meetings following the September 12, 2014 special canvassing board meeting and again on October 20, 2014. It is believed that both times canvassing board member and others have violated the Sunshine Law, and it is believed that those involved that are not canvassing board members or alternates were being a conduit to certain canvassing board members who were present. The complaint was reviewed by the Executive Director of the Commission who found the complaint to be legally sufficient to warrant an investigation: The complaint alleges that the [Hanns] and other members of the Board [of County Commissioners] or members of the canvassing board were involved in discussions which may not have been in compliance with the Sunshine Law, in order to manipulate canvassing board members or canvassing board conduct, that the Respondent was involved in placement of the County Attorney as attorney for the canvassing board (a placement objected to by the Supervisor of Elections), and that the Respondent was involved in other or related conduct, including retaliation against the Supervisor of Elections, apparently for the benefit of a particular candidate the Respondent had endorsed, or for the benefit of others. This indicates possible violation of Section 112.313(6), Florida Statutes. As a result, the complaint was determined to be legally sufficient and the investigative staff of the Commission was directed to “conduct a preliminary investigation of this complaint for a probable cause determination of whether [Hanns] has violated section 112.313(6), Florida Statutes, as set forth above.” The Commission’s Investigation The complaint was investigated by Commission Investigator K. Travis Wade. On February 19, 2016, the Commission issued its Report of Investigation, which found, as follows: Florida law provides that a county canvassing board shall be comprised of the Supervisor of Elections, a County Court Judge, and the Chair of the County Commission. Additionally, an alternate member must be appointed by the Chair of the County Commission. The Canvassing Board for the 2014 Election was made up of Hanns (then-County Commission Chair), Judge Melissa Moore-Stens, and then-Supervisor of Elections Weeks. Initially, the alternate member of the Canvassing Board was County Commission member Charles Ericksen, Jr. Minutes from the September 15, 2014 Flagler County Commission (“County Commission”) meeting indicate that during the “Commission Reports/Comments” portion of the meeting there was a discussion regarding who had the authority to appoint the Canvassing Board attorney, but no official action was taken at that time. The minutes indicate that County Attorney Albert Hadeed advised that it would be the Canvassing Board's decision as to who its legal counsel should be; and that County Administrator Craig Coffey suggested that the Canvassing Board resolve the issue at its next meeting. Current Flagler County Supervisor of Elections Kaiti Lenhart advised that her records indicate that either the County Attorney or an attorney from the County Attorney's Office has served as the Canvassing Board Attorney since 1998. Records preceding the 1998 election are not available. County Attorney Hadeed indicated that the County Attorney, or someone from the County Attorney’s Office, had served as the Canvassing Board Attorney for the past 25 years. Minutes from the October 17, 2014 Canvassing Board meeting indicate that Weeks made a motion that she be given authority to select the Canvassing Board attorney and that her motion died for lack of a second. The issue of Commissioner Ericksen's contribution to a candidate in the subject election was raised at the October 17, 2014 Canvassing Board meeting by Weeks. Commissioner Ericksen was not present at the meeting. Hanns indicated at the meeting that he would bring the issue to the attention of the County Commission at its next regular meeting, which was scheduled for October 20, 2014, thus alerting the members of the Canvassing Board that the issue would be publicly discussed by the County Commission. Minutes from the October 20, 2014 County Commission meeting indicate that there was a discussion regarding Commissioner Ericksen’s contribution to Meeker, who had opposition in his upcoming reelection, and that Commissioner Ericksen resigned as an alternate member of the Canvassing Board at that time. The Commission then voted to appoint Commissioner Barbara Revels as the alternate Canvassing Board member. All discussions by the County Commission regarding the Canvassing Board took place during the “Commissioner Reports/Comments” or “Commission Action” portion of duly noticed County Commission meetings. The only members of the Canvassing Board present at the October 20, 2014 County Commission meeting were Hanns and alternate member Commissioner Ericksen. The minutes from the October 20, 2014 County Commission meeting indicate that the County Commission reached a “consensus” to authorize the County Administrator to request the observer for the remainder of the election cycle. This request resulted from Hanns’ observations, while a member of the Canvassing Board, regarding the handling of absentee ballots by Weeks, whom he believed had close connections to at least one candidate in the election. County Administrator Coffey raised these concerns at the October 20, 2014 Commission meeting and requested County Commission permission to request an observer from the Division of Elections. County Administrator Coffey's October 21, 2014 letter to the Secretary of State, requesting an observer, indicates that the County Commission voted unanimously to authorize him to pursue the request. County Administrator Coffey stated in the letter that the community's confidence in the elections process is low due to both recent and past events involving the Supervisor of Elections. When asked about his allegation that Hanns was involved in other or related conduct, apparently for the benefit of particular candidates or others, McDonald indicated that he had no information regarding that allegation. Commission on Ethics Advocate’s Recommendation On March 7, 2016, Commission Advocate Elizabeth L. Miller recommended that there was no probable cause to believe that Hanns violated section 112.313(6) by participating in discussions which may have been in violation of the Sunshine Law, or other related conduct regarding appointment of the County Attorney as attorney for the Canvassing Board in order to manipulate Canvassing Board members or to carry out a planned agenda for the benefit of particular candidates or others. In addition, the Commission Advocate recommended that there was no probable cause to believe that Hanns violated section 112.313(6) by retaliating against the then-Supervisor of Elections for her efforts to remove two County Commissioners from the Canvassing Board. On April 20, 2016, the Commission issued its Public Report dismissing McDonald’s complaint against Hanns for lack of probable cause. McDonald’s Knowledge of the Falsity of His Sworn Allegations McDonald filed a sworn complaint against Hanns. When he signed the complaint, McDonald executed an oath that “the facts set forth in the complaint were true and correct ” When he filed his complaint against Hanns, McDonald had access to the video of the County Commission meeting of September 15, 2014, posted on the County’s website and the published minutes of that meeting, also available online or by request. Video of the 2014 meetings of the County Commission are archived for public viewing on the Flagler County website. Minutes of all County Commission meetings are public record available to the public on the Flagler Clerk of Court’s website and upon request. Neither the posted video nor the minutes of the September 15, 2014 meeting of the Flagler County Commission indicate that any action was taken by consensus vote or by any other vote regarding who had the authority to appoint the attorney for the Canvassing Board. No vote was taken by the County Commission to designate the County Attorney as the attorney for the Canvassing Board. To the contrary, the County Commission determined that it was a matter for the Canvassing Board to select its own attorney. All meetings of the Canvassing Board are publicly noticed and open to the public and its records are open for public inspection. When asked by the Commission’s investigator whether Hanns was involved in other or related conduct, for the benefit of particular candidates or others, McDonald indicated he had no information regarding that allegation. The allegations in the McDonald’s complaint against Hanns, which the Commission found material to investigate, were known by McDonald to be false, or filed by McDonald with reckless disregard for whether they were true or false. Malicious Intent to Injure Hanns Whether the claims against public officials were “motivated by the desire to [impugn character and injure reputation],” is a question of fact. Brown v. State, Comm’n on Ethics, 969 So. 2d 553, 555 (Fla. 1st DCA 2007). The evidence adduced at the hearing established that McDonald worked in concert with other individuals to maliciously injure the reputation of Hanns by filing complaints containing false allegations material to the Code of Ethics with the Commission on Ethics and other agencies. This group, formed in 2009 or 2010, was known formally as the Ronald Reagan Republican Association, informally as the “Triple Rs.” Members of the group included McDonald, Richter Sr., John Ruffalo, Carole Ruffalo, Ray Stephens, William McGuire, Bob Hamby, and Dan Bozza. The Triple Rs were trying to influence the outcome of elections in Flagler County. They did this by fielding candidates against incumbent members of the Flagler County Commission. McDonald ran against and lost to Meeker in the 2012 and 2014 elections. In 2014, Richter Sr. ran against and lost to Commissioner McLaughlin. The Triple Rs also tried to influence the results of the elections by filing complaints with multiple agencies against various elected and appointed Flagler County officials. McDonald was the de facto spokesperson of the Triple Rs. McDonald was such a frequent visitor to Weeks’ office between the 2012 and 2014 election cycles that Weeks’ husband expressed concern to Commissioner McLaughlin about McDonald’s influence over her. This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Hanns, all members of the 2014 County Commission, the County Attorney, and the County Administrator. The complaints were filed with the Commission on Ethics, the Florida Elections Commission, The Florida Bar, and the State Attorney for the Seventh Judicial Circuit. Certain members of the Triple Rs formed a limited liability company--the “Flagler Palm Coast Watchdogs”--and also filed suit against the County Commission to block renovation of the old Flagler Hospital into the Sheriff’s Operation Center, alleging violations of the Code of Ethics. At least 12 of the complaints filed by the group specifically alleged or referenced the false allegations which are at issue in this case: that members of the County Commission discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, improperly selecting the Canvassing Board attorney, and advancing a hidden agenda. In addition to alleging that Hanns violated Florida’s ethics laws and Sunshine Law, the complaint filed with the Commission alleged that Hanns violated Florida’s campaign finance law in several respects. The allegations that Hanns discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, selected the Canvassing Board attorney, and advanced a hidden agenda were crucial to the ethics complaint which McDonald filed against Hanns. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient and order that it be investigated. Had Hanns been found to have violated Florida ethics and elections law, it would have damaged his reputation in the community. The totality of these findings, including the number of complaints, the collaboration among the various complainants, and the inclusion of similarly false allegations in complaints filed by different complainants with different agencies, lead to no reasonable conclusion other than Ethics Complaint 15-174 was filed with a “malicious intent” to injure the reputation of Hanns, and create political gain for the Triple Rs and Weeks. The totality of these findings constitutes clear and convincing evidence that McDonald’s complaint was filed with knowledge that, or with a conscious intent to ignore whether, it contained one or more false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that McDonald showed “reckless disregard” for whether his sworn complaint contained false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that the true motivation behind the underlying complaint was the political damage the complaint would cause Hanns, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Hanns. Attorneys’ Fees and Costs Upon receipt and review of the complaints filed against Hanns and others in late 2014, Flagler County informed its liability insurance carrier and requested that counsel experienced in ethics and elections law be retained to defend against those complaints. At the specific request of the County, Mark Herron of the Messer Caparello law firm was retained to defend these complaints. Mr. Herron is an experienced lawyer whose practice focuses almost exclusively on ethics and elections related matters. Mr. Herron was retained by Flagler County on the understanding that the Messer Caparello firm would be compensated by the County’s liability insurance carrier at a rate of $180 per hour and that the County would make up the difference between the $180 per hour that the insurance carrier was willing to pay and the reasonable hourly rate. The rate of $180 per hour paid by the County’s liability insurance carrier to the Messer Caparello firm is an unreasonably low hourly rate for an experienced practitioner in ethics and election matters. Expert testimony adduced at the hearing indicated that a reasonable hourly rate would range from $250 to $450 per hour. Accordingly, $350 per hour is a reasonable hourly rate to compensate the Messer Caparello firm in this proceeding. The total hours spent on this case by Messer Caparello attorneys is reasonable. The billable hourly records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 73.54 hours were spent in defending the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of Messer Caparello costs and attorneys’ fees records after May 14, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Messer Caparello law firm indicate that a total of 58.33 hours were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $1,919.21 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of $424.90 incurred by the Messer Caparello law firm after May 14, 2017, are reasonable. The total hours spent on this case by the Flagler County Attorney’s Office is reasonable. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 13.20 hours of attorney time were spent assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 22.20 hours of paralegal time were spent assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of costs and attorneys’ fees records after May 15, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Flagler County Attorney’s Office indicate that a total of 6.60 hours of attorney time, and a total of 2.10 hours of paralegal time were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $168.93 incurred by the Flagler County Attorney’s Office law through May 15, 2017, are reasonable. Costs of $292.00 incurred by the Flagler County Attorney’s Office after May 15, 2017, are reasonable. A reasonable hourly rate for the time of Flagler County Attorney in connection with this matter is $325 per hour. A reasonable hourly rate for the time of the paralegal in the Flagler County Attorney’s Office in connection with this matter is $150 per hour. Based on the findings herein, Hanns established that he incurred: (i) reasonable costs in the amount of $2,346.11 and reasonable attorneys’ fees in the amount of $46,154.50 for the services of the Messer Caparello law firm in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding; and (ii) reasonable costs in the amount of $461.92 and reasonable attorneys’ fees in the amount of $10,080.00 for the services of the Flagler County Attorney’s Office in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hanns’ Petition for Costs and Attorneys’ Fees relating to Complaint 15-174 in the total amount of $59,042.53. DONE AND ENTERED this 21st day of September, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2017.
The Issue The issue in this case is whether Respondent, Robert H. Sharkey ("Sharkey"), violated section 104.271(2), Florida Statutes (2010),1/ as alleged in Petitioner, Florida Elections Commission's ("Commission"), Order of Probable Cause dated February 21, 2011, and, if so, the amount of any fine that should be imposed against Sharkey. Specifically, did Sharkey act with actual malice in publishing a defamatory statement against an opponent during a political campaign?
Findings Of Fact Based upon the evidence presented, the following Findings of Fact are made in this matter: During the 2010 Florida general election period, Sharkey was a candidate for fire commissioner of the Bonita Springs Fire Control and Rescue District, Seat 1. His opponent in the political campaign was Edward Fitzgerald, the incumbent fire commissioner. Sharkey is not a career politician and had never run for public office prior to the 2010 general election. He had run for private offices, but had no experience in a general or primary public election process. Sharkey had properly applied to be a candidate in the election and had received all requisite materials from the supervisor of elections. The materials he received included a Candidate and Campaign Treasurer Handbook, a step-by-step guide to running a political campaign. The handbook included the following provision: A candidate may not, with actual malice, make any false statement about an opposing candidate. During the course of the campaign, Sharkey issued two emails to approximately 200 people he considered friends and supporters. The entire texts of the emails were as follows2/: Sunday, August 22, 2010 at 8:11 p.m. FISCAL RESPONSIBILITY; lets get you informed regarding this issue. 2008 without BSFCRD permission, Fitzgerald attends a three week class at Harvard University pertaining to Fire Education, you the "Citizen Tax Payer of Bonita Springs paid for Fitz's trip, including Air fare, Hotel, Meals, and Harvard's fee for schooling a 75 year old commissioner. Folks this is a flagrant Abuse, and the other Fire Commissioners did not know or approve of this, however they all caved in after the fact to fund Fitz. this opportunity. I wonder what this cost the Residents of Bonita. Better yet, Fitz. thought this was so good and easy he helped the Fire Chief Kinsey to also attend and cost the "CITIZEN TAX PAYERS TWICE". a few months later. Next Ed Fitz goes to Paris France with the Chief Kinsey and Asst Chief Kraft. Sunday, August 22, 2010 at 8:41 p.m. The "CITIZEN TAX PAYERS OF BONITA SPRINGS", WERE DUPED AGAIN!!! The three Amigos Ed Fitzgerald, Chief Kinsey, and Asst. Chief Kraft flew to Paris France to attend an International Fire Prevention Seminar. Can you imagine the gall, and the irresponsible decision of these three. Two of them are staff, the other is your fire commissioner, chairman. What a model for others! I could understand if Chicago, Miami, Atlanta, New York, Boston, Cleveland, Los Angeles was in attendance, but Fitz and company, this is outrageous, and complete Abuse of the "CITIZEN TAX PAYERS OF BONITA SPRINGS". Please Mr. Mayor, City Councilmen, pay attention to this. Lets address this abuse of our citizens. this is embarrassing.!! Airfare, Hotel, Meals, for Three days. for a seminar that should include major cities, not Fitz and company, but the "CITIZEN TAX PAYERS OF BONITA", get hosed again. That's enough!! Vote this clown out of office, Put Responsible People on the Fire Commission, people who will always represent the "CITIZEN TAX PAYERS OF BONITA SPRINGS". There is no other name for this ABUSE!! Why did the Current Fire Commissioners endorse this?? Fitz'z co commissioners, They need to leave as well!! Vote them all out, and maybe we can fix the future of the Bonita Springs Fire Control and Rescue District.!!!!!! Sharkey sent out these two emails in an effort to garner support from his voter base and to express his understanding of at least one of the issues in the campaign, i.e., financial responsibility by the fire commissioners. The emails went to over 200 people, but Sharkey does not know at this time exactly who received the emails. Sharkey reportedly got the information contained in his emails from a person he had known from church, Alex Grantt. Sharkey also knew Grantt because Sharkey was a customer of Grantt's pest control service. Sharkey described himself and Grantt as social friends, who had known each other for over 20 years. Grantt described Sharkey as someone he knew a little, but that they were not social friends. Sharkey believed Grantt was an exemplary person who would not intentionally tell a lie. Grantt often attended fire commission meetings, because he was interested in what the commission was doing. He would not always listen attentively when he was at a meeting. Grantt remembers discussing Fitzgerald's trip to Harvard with Sharkey at some point, perhaps in late July or early August. As to whether he talked to Sharkey before the emails were sent on August 22, 2010, Grantt said, "I think I did; I may have." Upon further questioning by Sharkey's attorney at final hearing, Grantt said, "Yes" [I did tell Sharkey that Fitzgerald had been reimbursed for the trip to Harvard before Sharkey sent his email]. Grantt had been in attendance at a fire commission board meeting at some point in time and remembered Fitzgerald asking for reimbursement for the Harvard class. He mistakenly remembered that Fitzgerald had been reimbursed for the class when, in fact, he had not. Grantt also remembered mentioning something about the Paris trip to Sharkey. Grantt had heard discussion about the trip during another board meeting and is certain that the trip was discussed. He mentioned to Sharkey at some point in time that the matter had come up during a commission meeting. There is no persuasive evidence that Grantt told Sharkey, prior to the two emails being sent, that Fitzgerald had, in fact, gone to Paris. Grantt could only say that there had been mention of the trip during a meeting. Grantt was, as of the date of final hearing, very sure that Fitzgerald and the fire chief made the trip to Paris. His belief is based on a review, after the emails had been sent, of some past minutes from commission meetings. There is absolutely no competent evidence to support his contention, but Grantt is still sure Fitzgerald made the trip at taxpayer's expense.3/ Fitzgerald testified that he had never been to France at taxpayer expense or otherwise. His testimony in that regard is credible. Grantt, on the other hand, seems very confused as to the facts. There was also another alleged source relied upon by Sharkey concerning the statements in his emails. At around the time he sent out the emails, Sharkey spoke with Wayne Edsall, another fire commissioner. Neither Sharkey, nor Edsall, can pin down the exact dates and times they talked, but it was on or near the date of the emails. Sharkey remembers it being after the emails were sent; Edsall thinks it might have been before, but that it could have been after. Edsall remembers meeting Sharkey only once for a moment, just long enough for introductions. Edsall remembers talking to Sharkey on the telephone other times and exchanging at least one email. Sharkey does not remember any telephone conversations with Edsall. Edsall apparently provided Sharkey with some hints or advice about running a political campaign. As for the subject matter of the emails, Edsall was aware of the Harvard class that Fitzgerald had taken, but remembers telling Sharkey that Fitzgerald paid for the class out of his own pocket. Edsall has a vague memory of the Paris trip, but cannot affirm that he had ever heard more than rumors about such a trip. He would have been very surprised if any commissioner had been allowed to take such a trip. It is impossible to ascertain from the evidence whether Edsall and Sharkey had any meaningful or substantive conversations concerning the alleged Fitzgerald trips, and, if so, when such conversations may have occurred. After posting his emails on August 22, 2010, Sharkey asked Grantt to do some further investigation so as to verify the statements that had been made. Sharkey also purportedly had a later conversation with Edsall concerning the veracity of the allegations he had levied against Fitzgerald. Upon further consideration and investigation, Sharkey came to the conclusion that the statements he had made about Fitzgerald were false. Sharkey was contacted by an attorney representing Fitzgerald who demanded a retraction of the statements. The demand was set forth in a letter dated August 30, 2010. On September 3, 2010, Sharkey issued a retraction, acknowledging that the statements he had made in his emails were not true. The retraction was sent to local newspapers for distribution. The retraction was not addressed to anyone in particular and did not mention Fitzgerald or the fire chief by name. Later, Sharkey coincidentally encountered Fitzgerald at a restaurant and apologized in person for the erroneous statements he had made. Nonetheless, Fitzgerald was hurt and embarrassed by the emails and was not willing to accept Sharkey's apology. It is clear that Sharkey did not independently attempt to verify the information he received from Grantt prior to publishing his emails. Sharkey relied entirely on Grantt's statements, nothing more. Sharkey knew, or should have known, that the allegations were serious and would potentially inflict egregious harm on Fitzgerald's reputation if published.
Findings Of Fact Ethics Complaint 14-233 On December 4, 2014, the Commission received a complaint against Hadeed filed by Weeks which alleged that Hadeed violated Florida’s election laws, the Sunshine Law, and the Code of Ethics. Specific allegations in the complaint referenced a “whispered” conversation between Albert Hadeed (“Hadeed”), the County Attorney, and alternate Canvassing Board member and County Commissioner Ericksen, Jr. (“Erickson”), outside of a Canvassing Board meeting. The complaint alleged: The actions and behaviors of some county commissioners and their staff demonstrate some may have used their position for their personal gain and for the personal gain of their co-commissioners and employers. Such activities as described herein could allow voters to also believe some persons who are privy to information, change the outcome of elections when information is prematurely revealed, and that attorney Hadeed is the canvassing board attorney because he allows the laws to be bent or broken. As Supervisor of Elections I oppose and have objected to the county attorney being the canvassing board attorney. The public should be able to trust those who are responsible for canvassing our elections and at no time should how a voter voted be released, and never should election results be release [sic] prior to 7 p.m. election night. Because attorney Hadeed and county commissioners remained hushed on behavior that has been identified, it is unknown what else may have transpired that has been kept hushed, and if such occurrences will happen again knowing they will be kept hidden and unaddressed. It is also unknown how many other people attorney Hadeed and county commissioners have told about such incidents which may give the public opinion that the Supervisor of Elections condones this type of activity, and that such activity is common. It is believed candidates may receive voter's support if it is expected that when they serve on the canvassing board they will continue such practices to allow elections to be manipulated and give some candidates an advantage. The complaint also alleged that: On October 17th, 2014, I requested that alternate canvassing board member Charles Ericksen Jr step down as an alternate canvassing board member because it became known he contributed $50 to the re-election campaign of county commissioner Frank Meeker. Ericksen refused to do so at that time, but did resign on October 20th, 2014 at a Board of County Commission meeting. It was at that time alternate canvassing board member Barbara Revels was chosen to replace Ericksen. Though commissioner Revels has been under an ethics investigation for the past several months, it did not make her ineligible to serve as an alternate canvassing board member. Attorney Hadeed was responsible for representing the canvassing board and the board of county commission [sic] and failed to provide advice indicating what should be done to prevent the appearance of impropriety when serving as a canvassing board member, and what would disqualify one from being eligible to serve on the canvassing board. He therefore knowingly and willingly allowed Ericksen to remain as an alternate canvassing board member without providing any guidance to prevent the appearance of impropriety or possible violation of Florida election code. The complaint also alleged: Attorney Hadeed also failed to guide commissioner Ericksen and encourage him to step down from the canvassing board on October 17, 2014 due to his involvement in fellow Commissioner Frank Meeker's re- election campaign. Attorney Hadeed also failed to seek and disclose to the canvassing board the degree of commissioner Ericksen's involvement in fellow commissioner/candidate Frank Meeker's campaign before or after the issues was {sic] raised before the board. Attorney Hadeed had a responsibility to ethically and legally guide the canvassing board and county commissioners to prevent one from violating the Florida election code. Attorney Hadeed did nothing to prevent or stop commissioner Ericksen's involvement on the canvassing board after it was learned of his involvement in candidate Meeker's campaign. Therefore he failed those he was representing, and did not protect the integrity of the electoral process. The complaint further alleged that: The board of county commissioners is the employer of county attorney Hadeed. It is believed to be a conflict of interest for attorney Hadeed to represent both the board of county commissioner [sic] and the canvassing board. By representing both of these boards, attorney Hadeed may provide advice and guidance to his employers who are responsible for canvassing elections, and additional employers are on the ballot. The composition of the canvassing board/alternate normally consists of at least two of the county attorney's employers (county commissioners). It may have been in attorney Hadeed's best interest for commissioner Ericksen to remain as a canvassing board alternate when it was believed he was ineligible. The complaint further alleged that: County commissioner/canvassing board member George Hanns was also asked to step down from the canvassing board on November 3, 2014 because he too was involved in a fellow commissioner Frank Meeker's re-election campaign and he too refused. Attorney Hadeed did nothing again to protect the integrity of the electoral process and ensure election code was not violated. He was made aware, if he didn't already know, that an advertisement was released by fellow county commissioner Frank Meeker stating he was endorsed by county commissioner/canvassing board member George Hanns. George Hanns stated it was not an endorsement because he didn't put it in writing. Attorney Hadeed again failed to encourage commissioner Hanns to voluntarily step down from his position on the canvassing board after the endorsement was exposed and made public on November 3, 2014. Again, attorney Hadeed failed to properly represent the canvassing board. On November 4, 2014 Commissioner George Hanns was again asked to stop [sic] down from the canvassing board for the same reason, and he again refused. Attorney Hadeed still did not encourage the commissioner to voluntarily step down, and he did not provide anything on the matter to support why he should not be required to step down. Attorney Roberta Walton produced an opinion on the matter to support why he should step down. It was at that time when attorney Hadeed attempted to discredit attorney Walton's findings, but again produced nothing to prove otherwise. The county judge (canvassing board chair) reviewed the opinion attorney Walton provided and it was then when she supported the motion made by the supervisor of elections to remove commissioner George Hanns from the county canvassing board. Again, attorney Hadeed made no attempt to uphold the law, and again failed to properly represent the canvassing board and county commissioners as he failed to provide proper guidance. Guidance that would have spared tension on the canvassing board, prevented embarrassment to a county commissioner and preserved the integrity of the electoral process. The complaint also alleged: Per Florida Statute 102.141(6) the resignation of canvassing board member Charles Ericksen Jr was reflected in the Conduct of Election Report that is filed with the Florida Division of Elections following the certification of the election, as was the removal of the Chairman of the Board of County Commissioners, George Hanns. Commissioner/alternate canvassing board member Barbara Revels (Charles Ericksen's replacement) refused to sign the required Conduct of Election Report because it reflected the fact that 1 county commissioner was removed from the Canvassing Board. In fact, commissioner Revels wrote on the report "Refused to sign: Barbara Revels". Commissioner Revels stated she did not feel it was necessary that such information be reflected on the report; Supervisor Weeks disagreed as she found the matter to be material to the conduct of election. Two of the three canvassing board members (the Supervisor of Elections and County Judge) signed the report willingly. County/canvassing board attorney Hadeed failed to advise canvassing board member/ county commissioner Barbara Revels on completing the required report by placing her signature in the required area. Attorney Hadeed also failed to say whether the report would be considered incomplete due to the absence of a canvassing board members signature, and if the report lacking a signature would put the canvassing board at risk of being in violation of Florida election code. Because attorney Hadeed failed to properly guide the canvassing board members with prior issues, as well as with the issues of commissioner Revels resistance, it appeared he and county commissioners are in collusion. He never seems to address or provide guidance in areas as have been referenced, but quite often weighs in on influencing canvassing board members decisions and inserts his comments and opinions. Again, attorney Hadeed did not properly represent the canvassing board. Attorney Hadeed should have ensured and encouraged that the requirements of the canvassing board were being met. However, he spoke up on another matter regarding a voter's registration complaint and weighed in on that matter being noted on the conduct of election report. Perhaps attorney Hadeed spoke up at this time because Dennis and Janet McDonald whom the complaint was filed on are quite vocal and critical of attorney Hadeed, and his job performance. Finally, the complaint alleged: Attorney Hadeed demonstrated the same poor judgment in 2010 when he violated the Sunshine Law by being a conduit between some canvassing board members. He was successful in creating the same type of hostile environment at that time as he did in 2014 when he made great efforts to change meeting minutes from the August 6, 2010 canvassing board meeting by verbally communicating with canvassing board members, and then distributed e-mails to carry out his plan. Those meeting minutes reflected when he incorrectly advised the canvassing board as to whom the chair of the canvassing board shall by Florida Statue [sic] be when an alternate for the canvassing board chair is required to serve. Attorney Hadeed wanted the language that existed in the first paragraph of the meeting minutes to be replaced with new language; which would then remove language that reflected the incorrect advice he gave the board. The complaint was reviewed by the Executive Director of the Commission who found the complaint to be legally sufficient to warrant an investigation: The complaint alleges that [Hadeed] engaged in a "whispering" exchange at a canvassing board meeting or otherwise was involved in discussions which may not have been in compliance with the Sunshine Law, that he allowed an ineligible person to remain on the canvassing board or did not provide proper advice or legal service regarding the person's being on the canvassing board, that he failed to report a crime, that he was involved in other or related conduct, and that this may have been for the purpose of benefiting himself, particular candidates, or others. This indicates possible violation of Section 112.313(6), Florida Statutes. As a result, the complaint was determined to be legally sufficient and the investigative staff of the Commission was directed to “conduct a preliminary investigation of this complaint for a probable cause determination of whether [Hadeed] has violated section 112.313(6) as set forth above.” The Commission’s Investigation The complaint was investigated by Commission Investigator K. Travis Wade. On February 19, 2016, the Commission issued its Report of Investigation, which found, as follows: Florida law provides that a county canvassing board shall be comprised of the Supervisor of Elections, a County Court Judge, and the Chair of the County Commission. Additionally, an alternate member must be appointed by the Chair of the County Commission. The Flagler County Canvassing Board for the 2014 Election was made up of Judge Melissa Moore-Stens, County Commission Chairman George Hanns (Commissioner Hanns), and then-Supervisor of Elections Kimberle Weeks. Initially, the alternate member of the Canvassing Board was County Commission member Charles Ericksen, Jr. Weeks alleged that Hadeed used his position as the Canvassing Board Attorney to manipulate the process to benefit Commissioner Meeker's candidacy by failing to advise Commissioner Ericksen to resign from the Canvassing Board. Weeks alleged that Hadeed failed to advise Commissioner Hanns to resign from the Canvassing Board after a political advertisement was distributed which contained an endorsement of Commissioner Meeker by Commissioner Hanns. Minutes from the October 17, 2014 Canvassing Board meeting confirm that Weeks mentioned that Commissioner Ericksen made a contribution to Commissioner Meeker's campaign and that the Department of State, Division of Elections, had advised her that the contribution was not considered to be "active participation" in a campaign. The minutes also confirm that Commissioner Ericksen was not present at the meeting. Hadeed learned from Commissioner Ericksen on the morning of October 20, 2014, prior to a scheduled County Commission meeting, that Commissioner Ericksen attended a fundraiser for Commissioner Meeker. It was at that time that Hadeed advised Commissioner Ericksen to resign as a member of the Canvassing Board. Commissioner Ericksen confirmed that he met with Hadeed on the morning of October 20, 2014, before the County Commission meeting, and that Hadeed advised him that his attendance at Commissioner Meeker's fundraiser would disqualify him from serving on the Canvassing Board. Commissioner Ericksen stated that during this consultation Hadeed advised him to resign from the Canvassing Board. Minutes from the October 20, 2014 County Commission meeting indicate that there was a discussion regarding Commissioner Ericksen’s contribution to another candidate with opposition in the election (Meeker) and that Commissioner Ericksen resigned as an alternate member of the Canvassing Board at that time. The Commission then voted to appoint Commissioner Barbara Revels as the alternate Canvassing Board member. Weeks further alleged that Hadeed failed to provide proper legal advice when he failed to advise County Commission Chairman Hanns to resign his position on the Canvassing Board after a political advertisement was distributed by Commissioner Meeker's campaign, which included an endorsement by Commissioner Hanns. Weeks advised that she asked Commissioner Hanns to step down from the Canvassing Board at its November 3, 2014 meeting because of the endorsement, and that he refused to do so. Weeks stated that Hadeed was present and did not provide advice regarding the situation. Hadeed related that he did not advise Commissioner Hanns to resign from the Canvassing Board because Commissioner Hanns stated that he did not endorse Commissioner Meeker's campaign. Commissioner Hanns stated that a campaign mailer was mistakenly sent to voters by Commissioner Meeker's campaign, including an endorsement attributed to Commissioner Hanns. Commissioner Meeker's campaign, Hadeed said, distributed another mailer correcting the error and notifying each of the recipients of the original mailer that Commissioner Hanns had not endorsed Commissioner Meeker's campaign. Hadeed stated that he discussed the issue at the November 4, 2014 Canvassing Board meeting and that the Division of Elections’ interpretation of the statutes involving disqualification of Canvassing Board members requires intentional, rather than perceived, action. However, Hadeed said, Weeks made a motion to remove Commissioner Hanns from the Canvassing Board, and that motion was seconded by County Judge Melissa Moore-Stens (the third member of the Canvassing Board). Minutes from the November 4, 2014 Canvassing Board meeting confirm that Commissioner Hanns stated that he did not give permission for his photo or endorsement to be used in the advertisement by Commissioner Meeker's campaign and that he did not endorse Commissioner Meeker. The minutes also confirm that Weeks made a motion to remove Commissioner Hanns from the Canvassing Board and that Judge Moore-Stens seconded that motion. The vote on the motion was two to one with Commissioner Hanns voting against it. Commissioner Hanns stated that he contacted Hadeed at the time of the mistaken endorsement, who advised him that he had done nothing wrong and was not required to resign. During the November 4, 2014 Canvassing Board meeting both Hadeed and Roberta Walton, the attorney hired by Weeks to represent her office, agreed Commissioner Hanns was not required to resign. Their opinions were informed, in part, by written opinions from the Division of Elections. Commissioner Hanns provided an October 26, 2015 Division of Elections opinion which directly addressed Weeks' desire for Commissioner Hanns to resign. The opinion stands for the proposition that mistakenly being a part of an endorsement in a political advertisement is not considered “active participation” which would require replacement of the canvassing board member. When asked about her allegation that Hadeed was involved in other or related conduct, apparently for the benefit of particular candidates or others, Weeks indicated that she had no information regarding that allegation. Commission on Ethics Advocate’s Recommendation On March 7, 2016, Commission Advocate Elizabeth L. Miller recommended that there was “no probable cause” to believe that Hadeed violated section 112.313(6) by participating in discussions which may have been in violation of the Sunshine Law, allowing an ineligible person to remain on the Canvassing Board by not providing proper legal services to the Canvassing Board, or by being involved in other or related conduct for the benefit of himself, particular candidates, or others. On April 20, 2016, the Commission issued its Public Report dismissing Weeks’ complaint for lack of probable cause. Weeks’ Knowledge of the Falsity of Her Sworn Allegations Weeks filed a sworn complaint against Hadeed. When signing the complaint, Weeks executed an oath that “the facts set forth in the complaint were true and correct ” Weeks served as a member of the Canvassing Board during the 2014 Election Cycle. Weeks was present at both the September 12, 2014 and the October 17, 2014 meetings of the Flagler County Canvassing Board. The Flagler County Canvassing Board makes the minutes of its meetings available to the public. Weeks had access to the minutes of the Flagler County Canvassing Board of which she was a member. Prior to filing her complaint against Hadeed, Weeks had access to the video of the County Commission meeting of September 15, 2014, posted on the County’s website and the published minutes of that meeting, also available online or by request. Video of the 2014 meetings of the Flagler County Commission is archived for public viewing on the Flagler County website. Minutes of all Flagler County Commission meetings are public record available to the public on the Flagler Clerk of Court’s website and upon request. Weeks is familiar with the process of obtaining minutes of County Commission meetings by request as evidenced by her public record requests made during the pendency of this proceeding before the Division. The minutes of the September 15, 2014 meeting of the Flagler County Commission reflect the County Commission discussed whether the Canvassing Board could select its own attorney, and, ultimately, suggested the Canvassing Board affirm selection of its attorney by vote at a future meeting.9/ Neither the posted video nor the minutes of the September 15, 2014 meeting of the Flagler County Commission indicate that any action was taken by consensus vote or by any other vote regarding who had the authority to appoint the attorney for the Canvassing Board. No vote was taken by the Flagler County Commission to designate the County Attorney as the attorney for the Canvassing Board. To the contrary, the County Commission determined that it was a matter for the Canvassing Board to select its own attorney. Contrary to Weeks’ allegation that Commissioner Ericksen refused to resign his position as an alternate member of the Canvassing Board at its October 17, 2014 meeting, the official minutes of that meeting indicate that Commissioner Ericksen did not attend that meeting. Weeks’ allegations that Hadeed had a conflict of interest in serving as both the County Attorney and the Canvassing Board attorney were false, and were known by Weeks to be false, or were made with reckless disregard of whether they were false. Contrary to Weeks’ allegations that Hadeed failed to give proper legal advice when he failed to advise Commissioner Hanns to resign his position on the Canvassing Board after the political advertisement was distributed by Commissioner Meeker's campaign, which included an endorsement by Commissioner Hanns, the record revealed that Hadeed’s advice was correct and proper, notwithstanding the Canvassing Board’s ultra vires action in removing Commissioner Hanns from the Canvassing Board. When this issue was discussed at the November 4, 2014 meeting of the Canvassing Board, Roberta Walton, the attorney hired by Weeks to represent her office, agreed with the advice given by Hadeed that Commissioner Hanns was not required to resign. When asked by the Commission’s investigator whether Hadeed was involved in other or related conduct, for the benefit of particular candidates or others, Weeks indicated that she had no information regarding that allegation. The allegations in Weeks’ complaint against Hadeed, which the Commission found material to investigate, were known by Weeks to be false or were filed by Weeks with reckless disregard for whether they were true or false. Malicious Intent to Injure Reputation Whether the claims against public officials were “motivated by the desire to [impugn character and injure reputation],” is a question of fact. Brown v. State, Comm’n on Ethics, 969 So. 2d 553, 555 (Fla. 1st DCA 2007). The evidence adduced at the hearing established that Weeks worked in concert with other individuals to maliciously injure the reputation of Hadeed by filing complaints containing false allegations material to the Code of Ethics with the Commission on Ethics and other agencies.10/ This group, formed in 2009 or 2010, was known formally as the Ronald Reagan Republican Association, informally as the “Triple Rs.” Members of the group included McDonald, Richter Sr., John Ruffalo, Carole Ruffalo, Ray Stephens, William McGuire, Bob Hamby, and Dan Bozza. The Triple Rs were trying to influence the outcome of elections in Flagler County. They did this by fielding candidates against incumbent members of the Flagler County Commission. In 2014, Richter Sr. ran against and lost to Commissioner McLaughlin. Dennis McDonald ran against and lost to Commissioner Frank Meeker in 2012 and 2014. The Triple Rs also tried to influence the results of the elections by filing complaints with multiple agencies against various elected and appointed Flagler County officials. Weeks was not a member of the Triple Rs; however, Dennis McDonald, the de facto spokesperson of the Triple Rs, frequently visited Weeks’ office, particularly in the period between the 2014 primary and general election. Weeks’ interaction with McDonald and other Triple Rs during this timeframe was so pervasive that Weeks’ husband expressed concern to McLaughlin about McDonald’s influence over Weeks. Weeks filed six complaints against various Flagler County officials, many of the same officials about whom the Triple Rs also filed complaints. This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Hadeed, all members of the 2014 County Commission, and the County Administrator. The complaints were filed with the Commission on Ethics, the Florida Elections Commission, The Florida Bar, and the State Attorney for the Seventh Judicial Circuit. Certain members of the Triple Rs formed a limited liability company--the “Flagler Palm Coast Watchdogs”--and also filed suit against the County Commission to block renovation of the old Flagler Hospital into the Sheriff’s Operation Center, alleging violations of the Code of Ethics. At least 12 of the complaints filed by the group specifically alleged or referenced the false allegations which are at issue in this case: that members of the County Commission discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, improperly selecting the Canvassing Board attorney, and advancing a hidden agenda. In addition to alleging that Hadeed violated Florida’s ethics laws and the Sunshine Law, Weeks’ complaint alleged that Hadeed conspired to cover up felonious conduct by a member of the County Commission and that Hadeed violated Florida’s elections laws, specifically chapter 106, Florida Statutes, in several respects. Weeks also filed a complaint against Hadeed with The Florida Bar. That complaint tracked Ethics Complaint 14-233 in many respects and included allegations that Hadeed violated Florida’s ethics laws and the Sunshine Law, improperly altered public records, and conspired to cover up a felony. The allegations that Hadeed participated in discussions that violated the Sunshine Law, acted to allow an illegible person to serve on the Canvassing Board, altered the minutes of the Canvassing Board, gave improper legal advice, and engaged in other conduct to benefit particular candidates in the 2014 Election, were crucial to the ethics complaint which Weeks filed against Hadeed. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient and ordered that it be investigated. Had Hadeed been found to have violated Florida law, it would have damaged his reputation in the community and would have jeopardized his ability to practice law. The evidence also shows a concerted effort by Weeks and the Triple Rs to continue filing new complaints after dismissal orders in order to keep Flagler County officials under constant investigation by various agencies, which kept them under a cloud of suspicion with the public. The totality of these findings, including the number of complaints, the false complaints to The Florida Bar and the Elections Commission, the collaboration among the various complainants, and the inclusion of similarly false allegations in complaints filed by different complainants with different agencies, lead to no reasonable conclusion other than Ethics Complaint 14-233 was filed with a “malicious intent” to injure the reputation of Hadeed and create political gain for the Triple Rs and Weeks. The totality of these findings constitutes clear and convincing evidence that Weeks’ complaint was filed with knowledge that, or with reckless disregard for whether, it contained one or more false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that Weeks showed “reckless disregard” for whether her sworn complaint contained false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that the true motivation behind the underlying complaint was the professional and political damage the complaint would cause Hadeed, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Hadeed. Attorney’s Fees and Costs Upon receipt and review of the complaints filed against Hadeed and others in late 2014, Flagler County informed its liability insurance carrier and requested that counsel experienced in ethics and elections law be retained to defend against those complaints. At the specific request of the County, Mark Herron of the Messer Caparello law firm was retained to defend these complaints. Mr. Herron is an experienced lawyer whose practice focuses almost exclusively on ethics and elections related matters. Mr. Herron was retained by Flagler County on the understanding that the Messer Caparello firm would be compensated by the County’s liability insurance carrier at the rate of $180 per hour and that the County would make up the difference between the $180 per hour that the insurance carrier was willing to pay and the reasonable hourly rate. The rate of $180 per hour paid by the County’s liability insurance carrier to the Messer Caparello firm is an unreasonably low hourly rate for an experienced practitioner in ethics and election matters. Expert testimony adduced at the hearing indicated that a reasonable hourly rate would range from $250 to $450 per hour. Accordingly, a reasonable hourly rate to compensate the Messer Caparello firm in this proceeding is $350 per hour. The total hours spent on this case by Messer Caparello attorneys is reasonable. The billable hour records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 115.69 hours were spent in defending the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of Messer Caparello costs and attorneys’ fees records after May 14, 2017, through the date of submission of the Proposed Recommended Order. These records of the Messer Caparello law firm indicate that an additional 28.80 hours were spent in seeking costs and fees for that defense at the formal hearing and in preparing the Proposed Recommended Order. The total hours spent by the Messer Caparello law firm in defense of the Complaint against Petitioner, and in seeking costs and fees for that defense, is 144.49. The total hours spent on this case by the Messer Caparello law firm is reasonable. Costs of $1,785.03 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of $1,012.44 incurred by the Messer Caparello law firm after May 14, 2017, are reasonable. The total hours spent on this case by the Flagler County Attorney’s Office is reasonable. Hadeed has not sought fees for his time as the County Attorney in the defense of this complaint against him. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 30.85 hours for paralegal time were spent in assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of costs and attorneys’ fees records after May 15, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Flagler County Attorney’s Office indicate that a total of 17.10 hours of paralegal time were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $168.93 incurred by the Flagler County Attorney’s Office before May 15, 2017, are reasonable. After May 15, 2017, no additional costs were charged by the Flagler County Attorney’s Office. A reasonable hourly rate for the time of the paralegal in the Flagler County Attorney’s Office in connection with this matter is $150 per hour. Based on the findings herein, Hadeed has established that he incurred: (i) costs in the amount of $2,797.47 and attorneys’ fees in the amount of $50,571.50 for the services of the Messer Caparello law firm in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding; and (ii) costs in the amount of $168.93 and $7,144.50 for paralegal services incurred by the Flagler County Attorney’s Office in defending the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hadeed’s Petition for Costs and Attorneys’ Fees relating to Complaint 14-233 in the total amount of $60,682.40. DONE AND ENTERED this 31st day of August, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2017.
The Issue Whether Petitioner's application for registration as a trainee real estate appraiser should be denied on the ground set forth in the Florida Real Estate Appraisal Board's Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a 35-year-old divorced man (born in October 1972) who resides in Miami-Dade County, Florida, with his parents. He is the father of a six-year-old son whom he shares custody of with his former wife. In early 2003 (when he was 30 years of age), fueled by a desire to increase his wealth, Petitioner engaged in the trafficking of counterfeit Procrit to drug wholesalers. (Procrit is a prescription drug manufactured by Amgen, Inc.) In so doing, Petitioner recklessly exposed the intended consumers of these counterfeit drugs to the risk of serious bodily harm. Prior to engaging in this criminal enterprise, Petitioner had lived a law-abiding life. Petitioner was arrested on or about February 28, 2003, and subsequently charged in the United States District Court for the Southern District of Florida with the federal crime of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320. The information against Petitioner alleged, in pertinent part, that, "[f]rom on or about January 20, 2003 to on or about February 27, 2003, at Miami, Miami-Dade County, in the Southern District of Florida, and elsewhere, the defendant, Eddy Gorrin, did intentionally traffic and attempt to traffic in goods, that is, Procrit prescription drugs, and knowingly used a counterfeit mark on and in connection with such goods without authorization from Amgen, Inc., such mark being identical with and substantially indistinguishable from the genuine mark in use and registered for those goods by Amgen, Inc. on the principal register in the United States Patent and Trademark Office, and the use of which counterfeit mark was likely to cause confusion, to cause mistake, and to deceive." With Petitioner's post-arrest assistance, the authorities recovered all of the counterfeit Procrit that Petitioner and his co-perpetrators had distributed. On or about May 22, 2003, Petitioner entered into a plea agreement with the federal prosecutor's office. The agreement provided, in pertinent part, as follows: The defendant agrees to waive prosecution by indictment and plead guilty to Count One of an Information, which charges the defendant with intentionally trafficking and attempting to traffic in goods and knowingly using a counterfeit mark on those goods in violation of Title 18, United States Code, Sections 2320 and 2. The defendant is aware that the sentence will be imposed in conformity with the Federal Sentencing Guidelines and Policy Statement (hereinafter "Sentencing Guidelines"), and that the applicable guidelines will be determined by the Court. The defendant is also aware that a sentence imposed under the guidelines does not provide for parole. Knowing these facts, the defendant agrees that this Court has jurisdiction and authority to impose any sentence within the statutory maximum set for his offense. This Office and the defendant agree that, although not binding on the Probation Office or the Court, they will jointly recommend that the Court make the following findings and conclusions regarding the applicable Sentencing Guidelines: Applicable Offense Guideline: That pursuant to Section 1B1.2(a) of the Sentencing Guidelines, the offense guideline applicable to the defendant's offense is Section 2B5.3 of the Sentencing Guidelines, which provides for a base offense level of eight; Amount of Loss: That under Sections 2B1.1(b)(1) and 1B1.3 of the Sentencing Guidelines, the amount of loss resulting from the defendant's offense conduct is between $200,001 and $400,000, increasing the defendant's offense level by twelve levels. Manufacture of Counterfeit Drug: That under Section 2B5.3(b)(2) of the Sentencing Guidelines, the defendant's offense involved the manufacture of the counterfeit prescription drug Procrit and that his offense level should therefore be increased by two levels. Conscious or Reckless Risk of Serious Bodily Injury: That under Section 2B5.3(b)(4) of the Sentencing Guidelines, the defendant's offense involved the conscious or reckless risk of serious bodily harm, and that as a result, his offense level should be increased by two levels. Acceptance of Responsibility: That under 3E1.1 of the Sentencing Guidelines, the Sentencing Guideline level applicable to the defendant's offense should be reduced by three levels based upon his recognition and affirmative and timely acceptance of personal responsibility for the offense, provided further that the defendant makes a full, accurate and complete disclosure to the United States Probation Office of the circumstances surrounding defendant's relevant conduct and does not engage in any misconduct after entering into this agreement . . . . Other Adjustments: That no other additional downward adjustments from Chapters 2 or 3 of the Sentencing Guidelines are applicable in this case. Restitution and Fine: That pursuant to Section 5E1.1(a) of the Sentencing Guidelines, the defendant agrees that he shall pay restitution in the amount of $8,000 to the U.S. Food and Drug Administration, which takes into account the $25,000 voluntarily restituted in March 2003, prior to the filing of the information in this case. It is also agreed that this payment will be a condition of the defendant's probation and/or supervised release. After a through review by the parties of both the offense conduct and the application of the Sentencing Guidelines to this offense conduct as outlined in paragraph 3 of this Agreement, this Office and the defendant agree, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, that the applicable total resulting offense level in this case is an offense level 21. This Office does not object to the defendant's request to be sentenced at the low end of the guideline range, that is, 37 months. The defendant understands and agrees that the Court may impose any sentence authorized by law and that the defendant may not withdraw his plea solely as a result of the sentence imposed. The defendant also understand and agrees that the Court may impose a statutory maximum term of imprisonment of up to ten years, followed by a maximum supervised release term of three years. In addition to a term of imprisonment and supervised release, the Court may impose a fine up to $2,000,000. The defendant understands and agrees that, in addition to any sentence imposed under paragraph 5 of this agreement, a special assessment in the amount of $100 will be imposed on the defendant. The defendant agrees that any special assessment imposed shall be paid at the time of sentencing. The defendant is aware that the sentence has not yet been determined by the Court. The defendant is also aware that any estimate of the probable sentencing range that he may receive from his counsel, the government or the Probation Office, is a prediction, not a promise, and is not binding on the government, the Probation Office or the Court. * * * After entering his plea of guilty, Petitioner was sentenced to 37 months in federal prison. He was also fined and ordered to pay restitution. Petitioner began serving his prison sentence on October 16, 2003. While in prison, Petitioner took a correspondence course in real estate appraising. He also participated in and completed a nine-month alcohol rehabilitation program (for which he was eligible because he had a history of alcohol abuse). As a result of his completion of the program, his prison sentence was shortened. In March 2005, Petitioner was released from prison and placed on supervised probation for a period of three years. For the first six months of his probation, Petitioner was under house arrest and had to wear a monitoring device on his ankle. Petitioner's probation officer recommended that he be discharged early from probation inasmuch as he had "complied with the rules and regulations of probation/supervised release and [was] no longer in need of supervision." On November 22, 2006, the sentencing judge issued an order adopting this recommendation and discharging Petitioner from probation. Since his release from prison in March 2005, Petitioner has led a crime-free life and become a productive member of society. He has abstained from the use of alcohol, with the exception of having an occasional glass of wine. He has gone back to school and completed the necessary coursework to obtain his Associate of Arts degree from Miami- Dade Community College. He has been gainfully employed throughout the post- incarceration period. From March 2005, to April 2006, Petitioner worked for two companies owned by Patsy Stecco: Mortgage Processors of South Florida, Inc., where he helped process mortgages, work that required him to handle money (which he did without incident); and Buyers Home Connection, Inc., where he was a credit analyst with managerial responsibilities. During this time period, he took a "real estate mortgage broker course . . . to get more of an understanding of what the work entail[ed]." Ms. Stecco has known Petitioner for the past ten years,1 having first met him "through a niece of [hers who] was friend[ly] with his ex-wife."2 Ms. Stecco was aware of Petitioner's criminal past when she hired him. In April 2006, Petitioner went to work for a Florida- certified residential appraiser, Gaston Gosselin, Jr. Mr. Gosselin owns his own appraisal business, Precision Appraisers and Company, Inc. He hired Petitioner based upon Ms. Stecco's recommendation. Before hiring Petitioner, Mr. Gosselin did not inquire as to whether Petitioner had a criminal record, and Petitioner did not volunteer that he did. It was not until two or three months after Petitioner began working for him that Mr. Gosselin found out (from Ms. Stecco) about Petitioner's criminal past. When Mr. Gosselin confronted Petitioner about the matter, Petitioner was candid and forthright, and he apologized to Mr. Gosselin for not making the disclosure sooner. While Mr. Gosselin was concerned about Petitioner's "initial[]" lack of openness regarding the matter, Petitioner had so impressed him during the "short time" they had known each other that, despite this concern, Mr. Gosselin retained Petitioner as an employee. Petitioner did research and marketing work for Mr. Gosselin. He also assisted with office personnel matters. In February 2008, Mr. Gosselin had to let Petitioner go because, due to deteriorating business conditions, he could no longer afford to keep Petitioner on the payroll. He has "stayed in touch" with Petitioner, however, and now "consider[s] him a friend." Ms. Stecco and Mr. Gosselin (both of whom testified, credibly, at the final hearing on Petitioner's behalf3) found Petitioner to be a hardworking, quick-learning, reliable, dedicated, competent, honest, and trustworthy employee. Mr. Gosselin would not hesitate to serve as Petitioner's supervising appraiser were Petitioner's application for registration as a trainee real estate appraiser to be granted.4 He believes that Petitioner would be a "great asset to [him] and [his] business." Since February 2008, Petitioner has been a staffing manager with Robert Half International (RHI). RHI does not "know about [Petitioner's] criminal history." It has not "inquire[d] [of Petitioner] about [his] criminal past," and Petitioner has not come forward and made any unsolicited disclosures regarding the matter. In addition to working full-time for RHI, Petitioner works evenings and weekends for his father's company, EDGO General Consulting Services, Inc. (EDGO), which "owns rental properties." Petitioner collects rents and makes deposits, as well as does needed repair work, for the company. Petitioner had worked for EDGO prior to his incarceration. In 2001, he was "involved in overseeing" a residential construction project undertaken by the company. In applying for the staffing manager position he now holds with RHI, Petitioner submitted a copy of a resume, wherein he had listed, "oversee construction development of single family spec homes," as one of his duties at EDGO. In so doing, he meant to convey that "oversee[ing] construction development of single family spec homes" was one of things that he had done during his employment with EDGO, not that it was among his current job duties. The resume also contained the following entry regarding his employment with Precision Appraisers and Company, Inc. (under the heading of "Professional Experience"): Precision Appraisers & Company, Inc., Office Manager/Appraiser 04/2006-02/2008 Establish productive marketing strategies and incentives for existing and potential clients. In charge of interviewing new prospective personnel for clerical and administrative positions. Research all records of properties being appraised and provide all information to the appraiser performing the appraisal. Organize bi-weekly payroll for staff and independent contractors. It was Petitioner's intent, in describing his position as "Office Manager/Appraiser," to indicate that he was an "office manager for an appraiser firm," not that he himself was an appraiser. Under the heading of "Education/Qualifications" on the resume appeared the following: Real Estate Appraiser Real Estate Mortgage Broke[r] Associates in Arts, Business Administration Petitioner listed "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" under this heading to indicate that he had taken "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" coursework. He did not mean to represent that he was authorized to act as a "Real Estate Appraiser" and a "Real Estate Mortgage Broke[r]." While the resume entries discussed above were not models of precision, neither were they intentionally deceptive. Petitioner has become a more mature and responsible person than he was at the time he engaged in the criminal conduct that led to his incarceration. He is repentant and remorseful about his crime and recognizes the importance of his being a positive role model for his son. He understands all too well what his ill-advised decision five years ago has cost him and his family, particularly his son, who did not have a father around during the time Petitioner was in prison. More importantly, he feels "terribly" about the potential harm to which he exposed the public and is "thankful that no one was [actually] harmed." Petitioner is embarrassed and ashamed of what he did and is committed to not making the same mistake again in the future and jeopardizing his freedom and ability to be with his son and the rest of his family. He has "learned [a] lesson" from the price he and his family has paid for his one criminal indiscretion. He has no intention of ever "put[ing] [him]self in a position like that again." In short, in the five years that have passed since his crime, Petitioner has been rehabilitated, and it appears that the interest of the public will not likely be endangered if he is granted the registration he seeks and is able to work as a trainee real estate appraiser under the supervision of a licensed or certified appraiser.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order granting Petitioner's application for registration as a trainee real estate appraiser. DONE AND ENTERED this 11th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 11th day of July, 2008.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Section 475.25(1), Florida Statutes. By Administrative Complaint the Respondent is charged with having violated subsections (b), (d), and (l) of Section 475.25(1), Florida Statutes, by reason of fraud or misrepresentation in a business transaction, by failing to account for or deliver a deposit, and by having filed a report known to be false.
Findings Of Fact The Respondent Jean Gramolini was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0367905. The last license issued was as a broker-salesperson. On June 16, 1989, the Respondent became a Management Broker for the Department of Veterans Affairs (hereafter "the VA"). At that time her duties as a Management Broker were explained to her through a Management Broker Manual which she received from the VA and through VA training. Those duties, at all times material hereto, included the following: Inspection of VA-owned foreclosure properties assigned to her by the VA. Within 15 days of notification of a property assignment, preparation and forwarding to the VA of a Property Management Report for the property. For properties built before 1978, the Property Management Report was to include a Defective Paint Report. Engagement of the services of workers to prepare and maintain the assigned properties for resale. For lawn mowing services and for jobs under $200, the Respondent was to pay the workers out of her own pocket and then be reimbursed by the VA. The Respondent was to submit to the VA on a monthly basis a consolidated invoice in order to claim reimbursement from the VA for such out- of-pocket payments. Beginning some time in 1988 or 1989, the Respondent engaged the services of Nowak Property Management (hereafter "NPM") to provide certain services for her on properties assigned to her by the VA. Those services included lawn mowing, boarding up windows, cleaning up debris from houses, and taking trash to the dump. Each month Alan Nowak (hereafter, "Nowak"), owner and president of NPM, submitted to the Respondent for direct payment by her a list of lawns mowed and invoices for jobs under $200. The business relationship between the Respondent and NPM was satisfactory at first, but some time early in 1991, Nowak noticed that the Respondent began to be late in giving him checks. On August 3, 1991, at the Respondent's request, Nowak met with her at her office. At that time, Nowak had already submitted NPM invoices to the Respondent and had already claimed payment due thereon from the Respondent in the amount of $6,663, as follows: $1,720 for July 1991 lawns; $2,650 for June 1991 jobs under $200; and $2,293 for July 1991 jobs under $200 (hereafter, "the Invoices"). The Respondent told Nowak that she was terminating the business relationship between herself and NPM because Charles Daughtry of the VA had told her she should do so. In fact, Charles Daughtry had not made such a statement to her. The Respondent also reviewed all of the Invoices and arbitrarily and without justification stated to Nowak that she would be willing to pay NPM only $3,593 in exchange for a signed release from further liability on the Invoices. Nowak refused the offer and on August 19, 1991, sent a letter to the VA describing the situation and attaching a copy of the Invoices (hereafter, "Nowak's letter" or "the Nowak letter"). In September of 1991 Nowak filed a complaint against the Respondent with the Department of Professional Regulation. Some time in October of 1991 Nowak offered to accept partial payment from the Respondent, at which time the Respondent told Nowak that she would not pay him anything. This was the last communication between Nowak and the Respondent, and Nowak never received any payment or partial payment from the Respondent for the Invoices. The Nowak letter was received by the VA and on August 22, 1991, it was routed to Charles Daughtry (hereafter, "Daughtry"). Daughtry, at the time of the hearing, had been a Realty Specialist in the Property Management Section of the VA for nine years. As such, his duties included monitoring the performance of Management Brokers within his assigned geographic area of responsibility. At the time of the Nowak letter, Daughtry was, and since about August 1990 had been, assigned to the area where the Respondent functioned as Management Broker. Upon receipt of Nowak's letter, Daughtry reviewed the Respondent's Consolidated Invoices, from which it appeared that the VA had already paid the Respondent for the work represented by the Invoices. On October 3, 1991, Mr. Daughtry met with the Respondent at her office and requested that she provide him with certain of her cancelled checks, the numbers of which he obtained from the Consolidated Invoices which she had previously submitted to the VA. In response to Daughtry's request, on October 16 and 21, 1991, the Respondent provided certain of her cancelled checks to Daughtry. The numbers of the cancelled checks did not match the numbers of the checks which Daughtry had requested, but Daughtry was able to infer a correlation based upon a comparison of the amounts and the payees. Contrary to the Respondent's duties as explained to her in the manual and at her initial VA training, and contrary to the Respondent's representations contained in the Consolidated Invoices themselves, in several instances, the Respondent had claimed reimbursement in her Consolidated Invoices for payments which she had not yet made, including reimbursement for payment of the Invoices. Daughtry became convinced of this as a result of his review of the Respondent's Consolidated Invoices, cancelled checks, and Nowak's letter. As a result, he recommended that the Respondent's status as a Management Broker be terminated, and it was. Daughtry prepared a letter notifying the Respondent of her termination, and the letter was sent to her on October 30, 1991. Under the circumstances, Daughtry concluded that the Invoices should be paid in full by the VA. Upon Daughtry's recommendation, the VA, on November 26, 1991, sent a check to Nowak for $6,643 as payment in full of the Invoices. Subsequently another instance came to light in which the Respondent failed to pay for services for which she had already claimed and received payment as reimbursement from the VA. That instance involved C & J Housecleaning, and the amount was approximately $4,500. At the time of her termination as a VA Management Broker, the Respondent, with respect to each of six different properties, had sent to the VA a Property Management Report with a Defective Paint Report indicating "no defective paint," when in fact there was flaking or peeling paint that should have been reported. The circumstances were such that the Respondent had to have known that the reports were false. The Respondent inspected the properties herself, and the flaking and peeling paint was fairly obvious. In some instances the flaking and peeling paint was near the roof. In those instances it was even less likely that the Respondent could have over looked the defective paint conditions, since the Respondent inspected the roofs of all of the properties. The Respondent signed the Defective Paint Reports.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Concluding that the Respondent is guilty of having violated subsections (b), (d), and (1) of Section 475.25(1), Florida Statutes, as charged in Counts I, II, and III of the Administrative Complaint; and Imposing an administrative penalty comprised of an administrative fine in the amount of One Thousand Dollars ($1,000.00) and revocation of the Respondent's license. DONE AND ENTERED this 15th day of January, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1993. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128 Ms. Jean Gramolini 901 South Surf Road, #304 Hollywood, Florida 33019 Ms. Jean Gramolini 1310 North 69th Avenue Hollywood, Florida 33024 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The following quoted provisions of the joint stipulations of fact entered into by the parties, as attached to this recommended order, constitutes the underlying evidential facts to be considered by the undersigned in deliberating the charges in this case. The exhibits mentioned in the quoted provision may be found as a part of the attached joint stipulations of fact and exhibits, which have been made a part of the record herein. The quotation is as follows: JOINT STIPULATIONS OF FACT The charge herein attached as cumulative exhibit #1 was filed by the Charging party on October 21, 1976 and a copy was simultaneously served on Respondent. Pursuant to Florida Administrative Rule 8H-4.03 a copy of the charge is hereby attached. The trial and presentment of the above-captioned cause was assigned to Rodney W. Smith, attorney for the Charging Party on or about February 25, 1977. Respondent is a public employer within the meaning of F.S. 447.203(2) and has its principal place of business in the City of Jacksonville, Duval County, Florida where it is engaged in the business of operating a consolidated municipal government. Respondent is created directly by the legislature of the State of Florida so as to constitute a consolidated government administered by individuals who are responsible to public officials and/or the general electorate. Charging Party is now and has been at all times material herein an employee organization within the meaning of 447.203(l0) of the Act. On March 4, 1976 Respondent filed a PETITION FOR CERTIORARI with the opinion that said petition would stay the "proposed CERTIFICATION ORDER by the Public Employees Relations Commission until final determination of the case was resolved. On or about May 18, 1976 the Public Employees Relations Commission issued a CERTIFICATION ORDER certifying the Charging Party as the exclusive bargaining representative for the Public Employees in the following unit: INCLUDED: Firefighters Lieutenants Captains Employed by the City of Jacksonville Fire Department EXCLUDED: All officers above the rank of captain employed by the City of Jacksonville Fire Department and all other employees of the City of Jacksonville On or about June, 1976 the Respondent filed an APPEAL of the above- stated certification order by PETITION FOR REVIEW in the First District Court of Appeal in and for the State of Florida. At no time was a stay of the certification order sought or obtained by the Respondent. Although the CERTIFICATION ORDER was challenged by PETITION FOR REVIEW, the Charging Party has been the certified representative for purposes of collective-bargaining of all public employees in the unit described in the above paragraph since May 18, 1976. It has been the continuous policy, and most recently by special ordinance, for the City of Jacksonville to extend dues- deductions to firefighters, lieutenants and captains authorizing such deductions since on or about 1969. This policy of extending dues-deductions to captains, lieutenants and firefighters has continued at all times until October 15, 1976. On October 15, 1976 the biweekly paychecks of the captains (sic) and lieutenants employed by the, Respondent did not reflect the usual dues- deduction. The Charging Party was notified of the City's intention to discontinue dues-deductions for the employees "in the ranks of lieutenants and captains during contract negotiations in late September, 1976. On or about October 18, 1976 agents for the City, including Dave Thompson, Administrative Aide for the Public Safety Department and John Waters, Director of Department of Public Safety informed Robert Carver, President of the Charging Party, that the Respondent would not extend dues-deductions to the captains or lieutenants since the Respondent did not feel these positions were properly included in the certified bargaining unit. The action of the Respondent in discontinuing the dues-deductions on October 15, 1976 was resultant from the attached cumulative exhibit B, Memorandum of September 24, 1976 from John M. Waters to Jack Parker, City Accountant for the City of Jacksonville, which directs that positions above the rank of firefighter are to no longer receive dues-deductions. The Director of Employee Relations and chief negotiator for the Respondent, William Davis, was officially notified of the proposed discontinuation on September 29, 1976 by action of the attached cumulative exhibit c." The act complained of by the Charging Party, is the act of the Respondent in discontinuing the dues-deductions for the ranks of lieutenant and captain effective October 15, 1976. (The facts that led up to that action are established in the stipulations of fact entered into by the parties.) In the mind of the Charging Party the discontinuation of the dues-deductions on October 15, 1976, constituted: (1) an interference with the rights of employees as described in 447.501(1)(a), F.S.; (2) a unilateral change during the bargaining process in violation of 447.50l(1)(c), F.S.; and (3) a specific refusal to comply with the provisions of 447.303, F.S. The Respondent disputes and joins issue with that claim. To resolve the conflict, the case is best discussed by dividing the consideration into two broad categories. The first category is concerned with the question of whether the Respondent's initial petition for writ of certiorari filed with the First District Court of Appeal, State of Florida, on March 4, 1976, and/or the Respondent's appeal of the Public Employees Relations Commission's certification order, which was filed with the First District Court of Appeal, State of Florida; imposed an automatic stay of the effect of the proposed certification order by the Public Employees Relations Commission, and/or a stay of the certification order of May 18, 1976, entered by the Public Employees Relations Commission. Any stay of the proposed certification order and subsequent certification order by the Public Employees Relations Commission must have been effectuated by the filing of the initial petition for writ of certiorari on March 4, 1976, and the appeal of June, 1976, because the facts establish that no specific request was ever made of the First District Court of Appeal or the Public Employees Relations Commission to grant a stay. To that end, the Respondent contends that it could justifiably rely on the Florida Appellate Rule to grant an automatic stay in both the initial petition for writ of certiorari of March 4, 1976, and the appeal of June, 1976 Pertinent provisions of Rule 5.12 state: "Rule 5.12 Supersedeas Bond not Required of the State and its Political Subdivisions and their Boards, Commissions, etc.; Security when Required When Security Not Required. When the state or any of its political subdivisions, or any officer, board, commission or other public body of the state or any of its political subdivisions, in a purely official capacity, takes an appeal or petitions for certiorari, the filing of the notice of appeal or the petition for certiorari as the case may be shall perfect the same and stay the execu tion or performance of the judgment, decree or order being reviewed and no supersedeas bond need be given unless expressly required by the court. Court May Require Bond. The court may, on motion for good cause shown, require a super sedeas bond or other security, in such amount, form and manner as it may prescribe as a condition for the further prosecution of the appeal or certiorari." On the face of the language of Florida Appellate Rule 5.12, it would appear that the Respondent is correct in its assumption of having an automatic stay; however, there is a subsequent appellate decision which defeats the Respondent's right to rely on the theory it offers as standing for the proposition that an automatic stay is granted. That case is Panama City v. Florida Public Employees Relations Commission, 333 So.2d 470, (1st DCA 1976, Fla.). The decision in this case was initially rendered on May 5, 1976, and a rehearing denied on June 29, 1976. The effective date of the decision is July 14, 1976. The Panama City case, supra, concerns the determination by the Public Employees Relations Commission of an appropriate bargaining unit and direction of an election. Those actions by PERC were not found to be final orders and in discussing the position of that Petitioner requesting a writ of certiorari, the Court stated that a stay of the effect of the enforcement of the agency action does not transpire merely by filing the petition for writ of certiorari. Under the ruling, in the decision, the stay may be granted by the agency or by the Court upon appropriate terms and in keeping with the authority of 120.68(3), F.S. That section of Chapter 120 indicated the following: "(3) The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a license, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state. The agency may grant, or the reviewing court may order, a stay upon appropriate terms, but, in any event, the order shall specify the conditions upon which the stay or supersedeas is granted." Moreover, in the opinion of the Court in the Panama City case, under Florida Appellate Rule 5.5, the Petitioner for writ of certiorari shall apply to the agency for supersedeas to forestall the terms of the agency action. Through its memorandum the Respondent in this cause has concluded that there is a distinction in the facts of the Panama City case and the facts sub judice, in that the Panama City case dealt with determination of an appropriate bargaining unit and direction of an election which were interlocutory matters, whereas the question here deals with a certification order which is final agency action on the part of the Public Employes Relations Commission. As an adjunct to this argument, Respondent indicated that it is the June, 1976, appeal taken by the Respondent, challenging the Public Employees Relations Commission order of certification, that becomes the focal point of the inquiry upon the subject of an automatic stay. This latter phase of the argument is accepted and it is the June, 1976, appeal that should be addressed. With that fact in mind, the language of the Court's opinion in the Panama City case on a petition for rehearing clarifies any distinction which might be drawn between the right to stay in an interlocutory situation, and the right to a stay of final action by an agency. The Court, in its discussion on rehearing, stated that the PERC order certifying an employee organization's exclusive collective bargaining representative of employees is a final order, which is subject to judicial review, together with all prior interlocutory orders. The Court goes on to say that if PERC refuses to stay any bargaining pending the Court review, the Court would have authority to grant that relief, in A order to make the Court's jurisdiction effective. For this proposition it cites to Article V, Section (4)(b) 3, Florida Constitution. A close analysis of the Court's statement on the rehearing in the Panama City case, supra, points out that the party who takes an appeal of the final order of certification by the Public Employees Relations Commission should look to the Public Employees Relations Commission to grant a stay prior to turning to the Court for such relief. This is in keeping with the requirements of 120.68(3), F.S. It can be seen by an examination of the facts stipulated to in this cause that the Respondent has failed at any point to request of the Public Employees Relations Commission that the effect of the order of certification be stayed pending the outcome of the consideration of the appeal on its merits. Consequently, in keeping with the decision of the Panama-City case, supra, the effect of the certification order is not stayed and any action which the Respondent took in derrogation of the decision of the First District Court of Appeal in Panama City, supra, subsequent to July 14, 1976, the date the decision became binding, may constitute an unfair labor practice. See also, Duval Cty School Bd v. Fla. Pub. Emp. etc., 346 So.2d 1086 (1st DCA 1977, Fla.) Having determined that the effect of the certification order of the Public Employees Relations Commission has not been stayed, consideration of the effect of the Respondent's action which discontinued the dues-deduction after October 15, 1976 for those ranks of lieutenant and captain can be made. It is clear from the facts In the record that it had been the practice of the employer to authorize the dues-deduction for lieutenants and captains since 1969 and there is no showing that the employees in those ranks who requested the dues- deduction ever asked that the deductions be discontinued. The conclusion on the part of the Respondent that the dues-deduction should be discontinued was a unilateral action, premised upon Respondent's individual evaluation of the propriety of including lieutenants and captains in a unit with firefighters. In view of the history of the dues-deduction process for lieutenants and captains in the City of Jacksonville, and the outstanding unit certification by PERC which includes such employees, it is concluded that deductions should have been continued beyond October 15, 1976. This is authorized under the opinion of United Faculty of Palm Beach Jr. College, Case No. 8H-CA- 754-1158. The failure to continue this deduction program beyond October 15, 1976 constituted an action by the Respondent in regard to conditions of employment and was per se a violation of the duty to collectively bargain. See 447.309(1), F.S., and NLRB v. Katz, 396 U.S.736 (1962). This responsibility on the part of Respondent to continue the dues-deduction has now been specifically established in 447.303, F.S., as amended at 77-343, Laws of Florida which reads: "Any employee organization which has been certified as a bargaining agent shall have the right to, upon request, have its dues and uniform assessments deducted and collected by the employer from the salary of those employees who authorized the deductions, set dues and uniform assessments In a related argument, the Respondent attempts to suggest that the Public Employees Relations Commission has unilaterally expanded and redefined the bargaining unit that had been previously agreed to between the City of Jacksonville and Local 1884 IAFF. Specifically, the Respondent claims that the City of Jacksonville and Local 1884 IAFF had agreed that only fire privates be included in the unit in 1973-1974 and 1974-1975, and that thereafter the Commission expanded and redefined the bargaining unit to include firemen and fire officers. Although this may be a fact, this fact is not in evidence through the stipulation of facts and in view of the limitations imposed by the agreement of the parties through their stipulation, the above-referenced information may not be utilized in reaching conclusions in this case. However, assuming arguendo the propriety of those facts, they would not seem to promote a different result in this cause. This conclusion is drawn from an examination of Clearwater Firefighters Association; Local 1158, IAFF and City of Clearwater, Case No. 8H- RC-766-1O68, 77E-377, reported at 3 FPER 177 (1977) and City of Titusville v. PERC, 3,30 So.2d 733 (1st DCA 1976, Fla.) Even though the Commission and the Court seemed to be stating that the Public Employees Relations Commission may not extend the unit which has voluntarily been recognized by the parties, or offered for recognition by the Petitioner for unit determination, these cases demonstrate that each case that occurs should be examined on an individual basis. Applying that process, it would be necessary to request the Public Employees Relations Commission to reconsider their position in the instant case on the question of the appropriateness of the inclusion of lieutenants and captains in the certified bargaining unit, and that decision could be subject to appeal to the appropriate appellate court. Because a determination has not been rendered on the merits of excluding lieutenants and captains from the certified bargaining unit, either by the Public Employees Relations Commission or an appellate court, the certification order remains in effect and all rights and entitlements for ,the unit employees remain in force and effect until amended by a Perc order. Consequently, the act of discontinuing the dues-deduction for lieutenants and captains in the bargaining unit after October 15, 1976, constituted a specific refusal to comply with the provision of 447.303, F.S.; an interference with the rights of employees in violation of 447.501(1)(a), and an unilateral change during the bargaining process, in violation of 447.501(1)(c) , F.S.
Recommendation It is recommended that the Respondent, City of Jacksonville, be required to reinstate the dues-deduction authorizations of those lieutenants and captains in the certified bargaining unit. DONE and ENTERED this 4th day of November, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 508 Gainesville, Florida 32602 Robert G. Brown, Esquire Assistant Counsel Office of General Counsel City Of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Leonard A. Carson, Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, FLORIDA Exhibit A STATE OF FLORIDA
The Issue Whether Logistic Services International, Inc. (Respondent or LSI), discriminated against Gina A. Ruiz (Petitioner) in her employment with LSI on the basis of Petitioner’s race or because of unlawful retaliation in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact LSI’s Pensacola facility builds training devices for the U.S. Army by salvaging damaged aircraft and fashioning simulated parts to be used in military aircraft maintenance training. Petitioner is an African-American female who was employed by LSI’s Pensacola facility for 19 months, from February 17, 2015, to September 9, 2016. During her employment with LSI, Petitioner held three different positions: tools and parts attendant, shipping and receiving clerk, and procurement planner. Initially, from February 17, 2015, until approximately April 2015, Petitioner worked as a tools and parts attendant at the rate of $14.00 per hour. Beginning in approximately April 2015, Petitioner moved from her job as tools and parts attendant to a position in shipping and receiving. At the final hearing, Petitioner testified that her move to the shipping and receiving position was actually a demotion because it had a lower classification number than her previous tools and parts attendant position. Petitioner, however, liked the shipping and receiving position at the time and considered it to be a positive move based on her skills. Petitioner received a raise to $14.75 per hour with the move. In approximately May 2015, Petitioner received a 90-day appraisal report rating of 6.38 out of 10 from her then-LSI supervisor, Bernard Hill. Mr. Hill is African-American. While Petitioner testified that she does not believe that Mr. Hill’s appraisal of her was based on her race, she asserts that a director at LSI, David Corbisier, interfered with that appraisal. Petitioner testified that she was not happy with her 6.38 appraisal rating and thought that she should have received at least an 8 or 9 out of 10 for that appraisal. Petitioner admitted, however, that she does not know the significance of the numbers assigned under LSI’s employee rating system. The 6.38 employee rating received by Petitioner under LSI’s employee rating system translates to a “highly effective” performance rating. Petitioner never complained about Mr. Hill’s appraisal of her until after submitting a resignation from her employment with LSI on August 29, 2016. In October 2015, Petitioner was promoted to the position of procurement planner. With her promotion, Petitioner received an increase in compensation from $14.75 to $16.67 per hour. Petitioner was happy with her promotion. The position of procurement planner was a newly- created position at LSI. Both Petitioner and another employee, Patricia Koons, were assigned to work as procurement planners. Petitioner and Patricia Koons were the only two procurement planners. Initially, both Petitioner and Ms. Koons were supervised by Jason Delsandro. On October 16, 2015, LSI hired Petitioner’s husband, Victor Ruiz, as a government-furnished equipment clerk at the Pensacola facility. After approximately three months, Mr. Ruiz was promoted to the position of inventory control manager, where he understood he would be supervising Sheila Corbisier. Sheila Corbisier is the wife of David Corbisier. David Corbisier is, and was at the time, director of manufacturing for LSI’s Pensacola facility. In that capacity, Mr. Corbisier oversaw the Pensacola facility’s production and supervised Petitioner’s supervisor, Mr. Delsandro, as well as other supervisors at LSI. At some point, Mr. Ruiz became aware that Ms. Corbisier may have been abusing her overtime. He reported his suspicions to his immediate supervisors, Victor Wright and Bernard Hill. Mr. Ruiz did not tell Sheila Corbisier that he thought she was abusing overtime or that he would be reporting his concerns to anyone. Mr. Ruiz never reported his concerns to Mr. Corbisier. LSI production manager Mark Case testified that the issue was not with Ms. Corbisier’s abuse of overtime, but whether she would be given the opportunity to work overtime if authorized. To Mr. Case’s knowledge, Ms. Corbisier did not work any overtime. At some point after Mr. Ruiz reported to his supervisors his concerns about Ms. Corbisier’s overtime, Ms. Corbisier resigned from LSI. Mr. Ruiz does not know why Ms. Corbisier resigned. No evidence was submitted indicating the reason or providing an explanation of why Ms. Corbisier resigned, or whether it had anything to do with her overtime. Petitioner alleges that, because her husband, Mr. Ruiz reported his concerns about Ms. Corbisier to his supervisors, Mr. Corbisier retaliated against Petitioner by interfering with Petitioner’s appraisals and assigning her menial tasks of inventory control that were to be performed in areas without air-conditioning. Petitioner also contends that Mr. Corbisier took these alleged adverse employment actions against her because of her race. At the final hearing, Petitioner’s husband, Mr. Ruiz, could not say how Mr. Corbisier had retaliated against Petitioner. The evidence was otherwise insufficient to reasonably suggest that Mr. Corbisier retaliated against Petitioner or that Mr. Corbisier discriminated against Petitioner in her employment based upon her race. As to Petitioner’s alleged assignment to menial tasks of inventory control, the evidence failed to show that Mr. Corbisier assigned any tasks to Petitioner. In his capacity of supervisor over the two procurement planners, Mr. Delsandro, and no one else, decided which tasks were assigned to Petitioner and Ms. Koons. As procurement planners, both Petitioner and Ms. Koons were responsible for inputting requisitions into the system, gathering backup data for proposals, conducting inventory control, and timely planning and requisitioning parts for training devices. Inventory control requires the monitoring of inventory levels to ensure consistency with forecasted demand and inventory goals for common stock items. The procurement planner job description provides that the work is to be performed in office and production floor environments. As used in the job description, “production floor environment” refers to an area that is not air-conditioned. While procurement requisitions are prepared in air-conditioned office space, approximately 90 percent of the facilities at LSI’s Pensacola location are not air-conditioned. During his supervision, Mr. Delsandro had the intention of dividing work assignments equally between Petitioner and Ms. Koons. Ms. Koons, however, who had more procurement experience than Petitioner, ended up performing more requisitions than Petitioner, and Petitioner was assigned more inventory control. The inventory control function includes the counting of inventory. Petitioner and Ms. Koons were both involved in counting various items for inventory control. Mr. Delsandro also engaged in inventory control tasks. While Petitioner apparently had more assigned tasks in inventory control than Ms. Koons, Mr. Delsandro attempted to assign inventory control tasks to Petitioner and Ms. Koons as equally as he could, based on their availability. At least once, when Petitioner was performing inventory control tasks in an environment without air-conditioning, Mr. Delsandro offered to let Petitioner take the inventory items into his office to work in air-conditioning. Petitioner, however, elected to work on the floor instead. On at least one other occasion, Petitioner asked Mr. Delsandro if she could help her husband in the warehouse, which is not air-conditioned. Prior to Mr. Delsandro’s supervision, Petitioner had worked in the tool room, an area which is not air-conditioned. The evidence does not support a finding that Petitioner’s assignments to work in inventory control were influenced by Mr. Corbisier, or were the result of retaliation or racial discrimination. Regarding Petitioner’s appraisals, there is no evidence that Mr. Corbisier, or anyone else, retaliated or discriminated against Petitioner. As noted above, Petitioner’s first appraisal, a 90-day appraisal report conducted in May 2015, gave Petitioner a “highly effective” rating. Petitioner’s only other appraisal, dated March 2, 2016, resulted in an even higher rating of “outstanding.” Petitioner’s March 2, 2016, appraisal was prepared and approved in accordance with LSI’s procedures designed to promote consistency in the appraisal process. In accordance with that process, draft appraisals are first prepared by employees’ supervisors, and then shared with the supervisors of those supervisors; in this case, David Corbisier. If the supervisor’s supervisor agrees with the evaluation, then it would be approved. Otherwise, there would be some discussion that may lead to changes, for consistency purposes. Any appraisal recommending a merit pay increase of more than three percent required justification prior to approval. Even with this interaction, the individual supervisors are ultimately responsible for the final appraisals. Petitioner and Ms. Koons were the first employees that Mr. Delsandro had supervised, and the appraisals for those two employees were the first appraisals that Mr. Delsandro had prepared for LSI. In accordance with LSI’s procedures, and considering the fact the appraisals of Petitioner and Ms. Koons were Mr. Delsandro’s first appraisals, Mr. Corbisier met with Mr. Delsandro to discuss the appraisals. Mr. Delsandro’s draft appraisal for Petitioner gave Petitioner an overall “outstanding” rating and recommended a 3.5-percent merit pay raise. When Mr. Corbisier met with Mr. Delsandro to discuss Petitioner’s draft appraisal, there were some differences in opinion. Providing a score between 1 and 10 for each category on the draft appraisal, Mr. Delsandro had initially assigned Petitioner a rating of 7 for job knowledge, 7 for teamwork, 9 for accountability, 7 for communications, 7 for incentive, and 8 for quality; for an overall rating of 7.5 across the categories, which is an “outstanding” rating. On the other hand, Mr. Corbisier assigned Petitioner a rating of 6 for job knowledge, 6 for teamwork, 8 for accountability, 7 for communications, 7 for incentive, and 7 for quality; for an overall rating of 6.83 across the categories, which is a “highly effective” rating. The discussions between Mr. Delsandro and Mr. Corbisier resulted in Petitioner receiving an overall “outstanding” rating of 7.17, and Mr. Delsandro and Mr. Corbisier agreed that Petitioner’s merit increase would remain at 3.5 percent as initially recommended by Mr. Delsandro. After Petitioner’s appraisal report was approved by Mr. Corbisier, Mr. Delsandro met with Petitioner to review her evaluation. Petitioner accepted the appraisal report without objection. Based on Petitioner's overall rating of 7.17, as reflected in her March 2016 appraisal, Respondent received a 3.5-percent merit pay increase, from $16.67 per hour to $17.25 per hour.3/ On approximately August 1, 2016, while still serving as procurement planners, both Petitioner and Ms. Koons were transferred from supervisor Mr. Delsandro to a new supervisor, Victor Wright. That same month, Petitioner was reassigned to work in LSI’s newly acquired building. Some of the employees referred to the new building as “the penthouse” because everything was so new. Petitioner’s pay was raised to $17.53 per hour, effective September 1, 2016. At the time, Petitioner did not object to her reassignment and made no complaint while working in the new building. Petitioner considered Mr. Wright to be fair and did not have any issues with Mr. Wright. On August 29, 2016, Petitioner submitted her voluntary resignation with a two-week notice to LSI, indicating that her last day of employment with LSI would be September 9, 2016. Prior to submitting her resignation, Petitioner had never complained about her appraisals, job duties, or work environment, and had not alleged retaliation or discrimination. Petitioner worked during the two-week notice period from the date of her resignation letter on August 29, 2016, until September 9, 2016. Petitioner’s rate of pay never decreased during her employment with LSI. For the first time, on September 7, 2017, two days prior to her last day at LSI, in a telephone conversation with LSI’s director of human resources, David Edwards, Petitioner alleged retaliation and discrimination. During that conversation, Petitioner advised Mr. Edwards that she had been told that Mr. Corbisier had made a racial comment about her husband, Victor Ruiz. She advised Mr. Edwards that she also believed Mr. Corbisier had retaliated against her because her husband had reported an overtime issue concerning Ms. Corbisier. Petitioner did not hear the alleged racial comment and neither did her husband. Rather, Petitioner and her husband were allegedly told by Steve Lewis, who was a production manager at LSI, that Mr. Corbisier had made racial statements. After conducting an investigation to determine whether Mr. Corbisier made racial statements about Mr. Ruiz, Mr. Edwards determined that the allegation was without merit. According to Mr. Edwards, “Mr. Lewis was unable to specifically say that Mr. Corbisier had made any specific racial comments against [Victor Ruiz].” Steve Lewis, the only one who allegedly heard Mr. Corbisier make a racial statement about Mr. Ruiz, testified at the final hearing. Consideration of his testimony, in light of testimony of other witnesses and other evidence, casts doubt upon the credibility of Mr. Lewis’s assertion that Mr. Corbisier made a racial statement about Mr. Ruiz or anyone else. Although Steve Lewis was still employed at LSI at the time that Petitioner resigned, he later resigned from employment with LSI. According to Mr. Lewis, he resigned from LSI due to conflicts with David Corbisier. Mr. Lewis testified that, on just one occasion in Mr. Corbisier’s office, when just he and Mr. Corbisier were present, Mr. Corbisier made comments of a racial nature about Victor Ruiz.4/ During his testimony, however, Mr. Lewis could not recall the exact comment or comments that Mr. Corbisier allegedly made about Mr. Ruiz, but said that Mr. Corbisier had used the “N” word when referring to Mr. Ruiz. Mr. Lewis further testified that Mr. Corbisier had used the “N” word freely in another conversation when he and co-worker, Mark Case, were present. Mr. Lewis testified that, on that occasion, the “N” word was not necessarily directed at anyone. Although Mr. Lewis had received training on reporting discrimination as part of his management training with LSI, he did not report any racial comments by Mr. Corbisier at the time that they were allegedly made. Rather, Mr. Lewis did not discuss the allegations with LSI’s human resources department until after Petitioner had resigned from her employment with LSI. When Mr. Lewis finally spoke to LSI’s human resources department about the matter, he told Mr. David Edwards that he had heard Mr. Corbisier make a racial comment about Mr. Ruiz, but that he could not recall the comment. Mr. Edwards recalled that Mr. Lewis told him that he believed Mr. Corbisier’s racial comment about Mr. Ruiz was a one-time comment in the heat of the moment. Mr. Edwards testified that Mr. Lewis never told him that Mr. Corbisier used the “N” word. Mark Case also testified. Mr. Case did not hear Mr. Corbisier make any racial statements, at the workplace or socially. Melissa Griffith, LSI’s human resources generalist who is the human resources contact for LSI’s Pensacola facility, testified that she has never heard Mr. Corbisier make any racial comments about Mr. Ruiz or anyone else. In his testimony, Mr. Corbisier denied ever making a racial statement about Mr. Ruiz. He further testified that he has not used the “N” word regarding Mr. Ruiz, has not made racial comments in the presence of Mr. Lewis, and did not make a racial statement about Mr. Ruiz in an alleged one-on-one meeting with Mr. Lewis. Mr. Corbisier further testified that he does not have any hostility or resentment toward Mr. Ruiz and that he has no motivation to harm or retaliate against Petitioner based on anything concerning Petitioner or her husband. Mr. Corbisier’s testimony was credible and is credited. The evidence presented at the final hearing was insufficient to support a finding that Mr. Corbisier used racial slurs against Petitioner’s husband or retaliated against Petitioner. Moreover, the evidence failed to show adverse action against Petitioner. Both of Petitioner’s employment appraisals at LSI were positive. Her last appraisal resulted in a merit pay raise higher that her co-worker, Ms. Koons.5/ During her 19 months of employment with LSI, Petitioner received four salary increases. At all material times, LSI had a grievance procedure in its employee handbook that provided employees with a complaint procedure for reporting discrimination, retaliation, or harassment. Petitioner received training on LSI’s grievance procedures during her new employee orientation process with LSI, and signed an acknowledgement regarding her receipt of LSI’s employee handbook. Petitioner had no complaints at the time of her assignments to various jobs. In fact, prior to her resignation, Petitioner never once complained to her supervisors or human resources under LSI’s grievance procedures or otherwise. She liked her immediate supervisors. Mr. Corbisier’s interactions with Petitioner’s supervisors did not result in adverse consequences against Petitioner and lacked retaliatory or discriminatory intent. In sum, the evidence did not demonstrate that Petitioner was subjected to retaliation or unlawful discrimination while employed at LSI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 16th day of October, 2017, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 16th day of October, 2017.
