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 14-230 On December 4, 2014, the Commission received a complaint against Nate McLaughlin (“McLaughlin”), filed by Richter Jr., which alleged that McLaughlin, as a member of the Flagler County Commission, violated Florida’s election laws, the Government-in-the-Sunshine Law (“Sunshine Law”), and Florida’s Code of Ethics for Public Officers and Employees (“Ethics Code”). Specific allegations in the complaint included that: County Commissioner Nate McLaughlin and Current County Commissioner Frank Meeker along with other county commissioners (including canvassing Board member County Commissioner George Hanns and alternate canvassing board member County Commissioner Charles Ericksen) were involved in discussion outside a scheduled canvassing board meeting but during an advertised board of county commissioner meeting, which public notice was not given by the canvassing board members, the Supervisor of Elections or her staff. The discussion pertained to canvassing board activity. Action, by consensus vote, was taken by the board of county commissioners which pertained to the canvassing board selecting a canvassing board attorney, and to request the state oversee the 2014 general election; all of which is believed to be a Sunshine Law violation. The complaint also alleged that: It is believed others such as the county administrator, other county commissioners and the county attorney were being a conduit to canvassing board members, and canvassing Board member George Hanns and alternate canvassing board member County Commissioner Charles Ericksen, Jr. are also believed to have violated the sunshine law by contributing to the discussions, which was believed to have been done to advance manipulation to the canvassing board members who were present so they could carry out a planned agenda. The complaint further alleged that: Discussions regarding the canvassing board took place at least twice at board of county commissioner [sic] 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 [sic] 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 [McLaughlin] 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 carry out a planned agenda, that discussions occurred regarding 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, apparently for the benefit of 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 [McLaughlin] 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 Flagler County Canvassing Board (“Canvassing Board”) for the 2014 Election was composed of Judge Melissa Moore-Stens, County Commission Chairman George Hanns (Commissioner Hanns), and then-Supervisor of Elections Weeks. Initially, the alternate member of the Canvassing Board was County Commission member Charles Ericksen, Jr. McLaughlin was a member of the Flagler County Commission; he was not a member of the Canvassing Board during the 2014 election cycle. Minutes from the September 15, 2014 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. 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 (Commissioner Frank 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. 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. When asked about his allegation that McLaughlin was involved in other or related conduct, apparently for the benefit of particular candidates or others, Richter Jr. 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 McLaughlin 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. On April 20, 2016, the Commission issued its Public Report dismissing Richter Jr.’s complaint against McLaughlin for lack of probable cause. Richter Jr.’s Knowledge of the Falsity of His Sworn Allegations Richter Jr. filed a sworn complaint against McLaughlin. When signing the complaint, Richter Jr. executed an oath that “the facts set forth in the complaint were true and correct ” When he filed his complaint against McLaughlin, Richter Jr. 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 County website. Minutes of all County Commission meetings are public record available to the public on the Clerk of Court’s website and upon request. Neither the posted video nor the minutes of the September 15, 2014 meeting of the County Commission indicate that any discussion regarding the selection of the Canvassing Board attorney occurred in violation of the Sunshine Law. Neither the posted video nor the minutes of the September 15, 2014 meeting of the 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. When asked by the Commission investigator whether McLaughlin was involved in other or related conduct, for the benefit of particular candidates or others, Richter Jr. indicated he had no information regarding that allegation. The allegations in Richter Jr.’s complaint against McLaughlin, which the Commission found material to investigate, were known by Richter Jr. to be false, or filed by Richter Jr. with reckless disregard for whether they were true or false. Malicious Intent to Injure McLaughlin’s 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 Richter Jr. worked in concert with other individuals to maliciously injure the reputation of McLaughlin by filing complaints containing false allegations material to the Code of Ethics with the Commission and other agencies. This group, formed in 2009 or 2010, was known formally as the Ronald Regan Republican Association, informally as the “Triple Rs.” Members of the group included Richter Sr., Dennis McDonald, 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 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 elections. 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 County officials, individually and collectively, including complaints against McLaughlin, County Attorney 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 Ethics Code. 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 McLaughlin violated Florida’s ethics laws and Sunshine Law, the complaint filed with the Commission alleged that McLaughlin violated Florida’s elections laws, specifically chapter 106, Florida Statutes (the “Campaign Finance Law”), in several respects. Richter Jr. also filed a complaint against McLaughlin with the Florida Elections Commission. In that complaint, he included allegations that McLaughlin discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, selecting the Canvassing Board attorney, and advancing a hidden agenda. The allegations that McLaughlin discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, selecting the Canvassing Board attorney, and advancing a hidden agenda, were crucial to the ethics complaint which Richter Jr. filed against McLaughlin. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient in order that it be investigated. Likewise, inclusion of the allegations that McLaughlin violated Florida’s elections laws was an important part of Richter Jr.’s complaint against McLaughlin. Had McLaughlin been found to have violated either Florida ethics or 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 14-230 was filed with a “malicious intent” to injure the reputation of McLaughlin and create political gain for the Triple Rs and Weeks. The totality of these findings constitutes clear and convincing evidence that Richter Jr.’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 Ethics Code. The totality of these findings constitutes clear and convincing evidence that Richter Jr. showed “reckless disregard” for whether his sworn complaint contained false allegations of fact material to a violation of the Ethics Code. 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 McLaughlin, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by McLaughlin. Attorneys’ Fees and Costs Upon receipt and review of the complaints filed against McLaughlin 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 hourly records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 96.64 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 46.78 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 $1,749.18 incurred by the Messer Caparello law firm through May 14, 2017 are reasonable. Costs of $982.51 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 11.70 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 23.05 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 through May 15, 2017, are reasonable. Costs of $292.99 incurred by the Flagler County Attorney’s Office after May 15, 2017, are reasonable. A reasonable hourly rate to compensate the Flagler County Attorney’s Office in this proceeding for attorney time is $325 per hour and for paralegal time is $150 per hour. Based on the findings herein, McLaughlin established that he incurred: (i) reasonable costs in the amount of $2,731.69 and reasonable attorneys’ fees in the amount of $50,197.00 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, including paralegal time, in the amount of $9,720.00 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 McLaughlin’s Petition for Costs and Attorneys’ Fees relating to Complaint 14-230 in the total amount of $63,110.61. 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.
Findings Of Fact Ethics Complaint 14-232 On December 4, 2014, the Commission received a complaint against Charles Ericksen, Jr. (“Ericksen”), filed by Weeks, which alleged that Ericksen violated Florida’s election laws, the Government-in-the-Sunshine Law (“Sunshine Law”), and Florida’s Code of Ethics for Public Officers and Employees (the “Ethics Code”). Specific allegations in the complaint referenced a “whispered” conversation between County Attorney Hadeed and Ericksen, who was both a Flagler County Commissioner and an alternate Flagler County Canvassing Board (“Canvassing Board”) member at the time, outside of a Canvassing Board meeting. The complaint alleged: The actions and behaviors of some county commissioners and their staff demonstrate some 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. The public should be able to trust those who are responsible for canvassing our elections. Because the county attorney and county commissioners remain hushed on behavior that has been identified, it is unknown what else may have transpired that is unknown, and if such occurrences will happen again knowing they will be kept hidden and unaddressed. It is also unknown how many other persons the county attorney Al Hadeed and county commissioners have told about such incidents that give the public opinion that the Supervisor of Elections condones this type of activity, and such activity is common. It is believed candidates may receive support when it is known if they are elected and serve on the canvassing board that such occurrences will continue to take place to manipulate elections. The complaint also alleged that: On October 17th, 2014, it was 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 and in doing so, could allow the appearance of impropriety. However, he refused to do so at that time, and he failed to reveal he also attended a fund raising event for candidate, fellow County Commissioner Frank Meeker. It was not known by the supervisor of elections when Commissioner Ericksen was asked to step down from the canvassing board on October 17th, 2014, that he attended a fundraiser for candidate Meeker, which would have in itself disqualified him from serving as a canvassing board as an alternate. Charles Ericksen Jr. should have been transparent and forthcoming with his involvement in Commissioner Frank Meeker's re-election campaign, and he should not have served on the canvassing board when he wasn't eligible. He also should have relied on his training materials provided to him at the state workshop he attended, which it appears he failed to do. County attorney Hadeed should have advised this county commissioner he was not eligible to serve on the canvassing board and instead he stated financially contributing to a candidate's campaign docs not disqualify a canvassing board member from serving. Even after that was stated, county attorney Hadeed did not encourage commissioner [sic] Ericksen to step down to avoid the appearance of impropriety. The complaint further alleged: Therefore, it is believed they knowingly and willingly violated the provisions of the law. In fact, Commissioner Charles Ericksen Jr. was asked to step down from the canvassing board because he contributed S50 to the campaign of candidate Frank Meeker. Neither Charles Ericksen Jr. nor anyone else revealed the fact that he also attended a fund raising event; the supervisor of elections revealed that fact at a later canvassing board meeting. And: Though Charles Ericksen Jr. refused to step down as an alternate from the county canvassing board during the scheduled October 17, 2014 canvassing board meeting when it was requested that he do so, he did resign as alternate canvassing board member at the October 20, 2014 Board of County Commission meeting. The complaint was reviewed by the Executive Director of the Commission who found the complaint to be legally sufficient to warrant investigation: The complaint alleges that [Ericksen] 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 had an unlawful connection as a canvassing board member to a candidate in the 2014 election, that the County Attorney may have been placed as attorney for the canvassing board, and that he was involved in other or related conduct, and that this may have been for the purpose of benefiting 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 [Ericksen] 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 Judge Melissa Moore-Stens, County Commission Chairman George Hanns (“Commissioner Hanns”), and then-Supervisor of Elections Weeks. Initially, Ericksen was the alternate member of the Canvassing Board. Minutes from the October 20, 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 only members of the Canvassing Board present at the October 20, 2014 meeting of the County Commission were Commissioner Hanns and Ericksen. Weeks claimed that Ericksen refused to resign his position as an alternate member of the Canvassing Board at its October 17, 2014 meeting when it was discovered that he contributed to Meeker's reelection campaign. Minutes from the October 17, 2014 Canvassing Board meeting reflect that Ericksen did not attend that meeting. Minutes from the October 20, 2014 County Commission meeting reflect a discussion regarding Ericksen’s contribution to Meeker’s campaign and that 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 Flagler County Canvassing Board took place during the “Commissioner Reports/Comments” or “Commission Action” portion of duly-noticed County Commission meetings. When asked about her allegation that Ericksen 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 Ericksen violated section 112.313(6), by participating in discussions which may have been in violation of the Sunshine Law or other related conduct to place the County Attorney as the attorney for the Canvassing Board against the wishes of the Supervisor of Elections, by having an unlawful connection as a Canvassing Board member to a candidate during the election, or by participating in other or related conduct for the benefit of particular candidates or others. On April 20, 2016, the Commission issued its Public Report dismissing Weeks’ complaint against Ericksen for lack of probable cause. Weeks’ Knowledge of the Falsity of Her Sworn Allegations Weeks filed a sworn complaint against Ericksen. When signing the complaint, Weeks executed an oath that “the facts set forth in the complaint were true and correct ” When she filed her complaint against Ericksen, 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. Similarly, Weeks had access to the minutes of the Canvassing Board of which she was a member. Weeks was present at both the September 12, 2014 and the October 17, 2014 meetings of the Canvassing Board. 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. 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. Neither the posted video nor the minutes of the September 15, 2014 meeting of the 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. Contrary to Weeks’ allegation that 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 Ericksen was not even present at that meeting. When asked by the Commission’s investigator whether Ericksen 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 Ericksen, which the Commission found material to investigate, were known by Weeks to be false, or 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 Ericksen by filing complaints containing false allegations material to the Ethics Code with the Commission and other agencies. It is also noteworthy that evidence established that Weeks targeted Ericksen with an animus to humiliate him during a public Canvassing Board meeting at which a sizable number of the public were in attendance. She embarrassed him by loudly instructing one of her female staff members to accompany him to the restroom during the canvassing of the absentee ballots. All action stopped as the public watched Ericksen proceed to the restroom with the staff person walking along side of him. Upon his exit and return to the canvassing activities, all eyes were fixed on his return and Weeks explained to the public that she feared he was going to illegally access ballots in a room further down the hall that contained canvassed ballots in a locked vault. Moreover, one of Weeks’ supporters, John Ruffalo (“Ruffalo”), who had also filed complaints against Flagler County officials, touched absentee ballots just before Weeks had her staff member escort Ericksen to the restroom. Ruffalo was not a member of the Canvassing Board or a Supervisor of Elections staffer. It was unlawful for Ruffalo to handle the ballots, but Weeks did not admonish him although she demonstrably accused Ericksen publicly of possibly having corrupt motives. Ruffalo was a member of a group, formed in 2009 or 2010, formally known as the Ronald Regan Republican Association, informally as the “Triple Rs.” Members of the group included Ruffalo and his wife, Carole Ruffalo; Dennis McDonald; Mark Richter Sr.; 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 County Commission. In 2014, Richter Sr. ran against and lost to Commissioner McLaughlin. Dennis McDonald ran against, and lost to, Meeker in 2012 and 2014. The Triple Rs also tried to influence the results of the elections by filing complaints against Flagler County officials with multiple agencies. 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. This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Ericksen and all other 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 Ethics Code. 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 Ericksen violated the Ethics Code and Sunshine Law, the complaint filed with the Commission alleged that Ericksen conspired to cover up felonious conduct by a member of the County Commission and that Ericksen violated Florida’s elections laws, specifically chapter 106, Florida Statutes (the “Campaign Finance law”), in several respects. Weeks also filed a complaint against Ericksen with the Florida Elections Commission. That complaint essentially tracks Ethics Complaint 14-232 and includes allegations that Ericksen violated the Ethics Code, the Sunshine Law, and that he conspired to cover up a felony. The Director of the Florida Elections Commission dismissed the complaint as legally insufficient. The allegations that Ericksen discussed Canvassing Board matters in violation of the Sunshine Law, had an unlawful connection to a candidate, improperly selected the Canvassing Board attorney, and engaged in other conduct to benefit particular candidates in the 2014 Election were crucial to the ethics complaint which Weeks filed against Ericksen. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient and ordered that it be investigated. Had Ericksen been found to have violated Florida law, it would have damaged his reputation in the community. 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 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 14-232 was filed with a “malicious intent” to injure the reputation of Ericksen 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 a conscious intent to ignore whether, it contained one or more false allegations of fact material to a violation of the Ethics Code. 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 Ethics Code. 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 Ericksen, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Ericksen. Attorneys’ Fees and Costs Upon receipt and review of the complaints filed against Ericksen 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, 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 hourly records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 103.39 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 49.93 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 153.32. The total hours spent on this case by the Messer Caparello law firm is reasonable. Costs of $1,814.12 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of $957.44 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. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 12.40 hours for attorney time were spent in assisting in the defense of the underlying complaint 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 24.75 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 6.60 hours of attorney time, and that a total of 14.30 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 through May 15, 2017, are reasonable. Costs of $292.99 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, Ericksen has established that he incurred: (i) reasonable costs in the amount of $2,731.69, and reasonable attorneys’ fees in the amount of $53,662.00 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 attorneys’ fees in the amount of $12,032.50 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 Ericksen’s Petition for Costs and Attorneys’ Fees relating to Complaint 14-230 in the total amount of $68,888.11. 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 for determination is whether Respondent violated section 1012.795(1)(j), Florida Statutes (2015),1/ and Florida Administrative Code Rules 6A-10.081(5)(a), (h), and (i); and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Mr. Kellen is currently licensed as a teacher in Florida and has been issued Florida educator certificate 1007357. Mr. Kellen's certificate covers the areas of Educational Leadership, English, Pre-Kindergarten/Primary Education, Reading, and Exceptional Student Education. Mr. Kellen's certificate expires on June 30, 2020. Prior to obtaining his Florida educator certificate, Mr. Kellen was employed as a teacher in the State of Indiana from 1997 to 2005. In 2006, Mr. Kellen moved to Florida and became a reading teacher in Collier County from 2006 to 2007. From 2007 to 2008, he was a middle school teacher at Six Mile Charter Academy with Charter School USA. From 2009 to 2011, Mr. Kellen was employed as a substitute teacher in Lee County, Florida. From January through March 2012, Mr. Kellen was a paraprofessional in Monroe County, Florida. In August 2012, Mr. Kellen was employed as a teacher at Knox Academy in Lee County, Florida. Three months later, in November 2012, Knox Academy terminated his employment. Brad Buckowich was the principal at Knox Academy. Mr. Buckowich both hired and fired Mr. Kellen. In July 2013, Mr. Kellen applied for a teaching position at James Stevens International Academy ("James Stevens Academy"), a school within the School District. Alice Barfield, principal at James Stevens Academy, interviewed Mr. Kellen for a reading teacher position. Shortly, thereafter, she offered him the position. As part of the hiring process, the School District required Mr. Kellen to submit references from previous employers. On July 31, 2013, Mr. Kellen met with Georgianna McDaniel, the Executive Director of Personnel Services for the School District, to discuss the School District hiring procedures. Ms. McDaniel explained to Mr. Kellen that School District policy required the hiring school to contact the candidate's previous employer before the School District would hire him. Following the July 31 meeting, Mr. Kellen brought to Ms. Barfield at James Stevens Academy a recommendation letter from Knox Academy dated July 8, 2013, and signed by Brad Buckowich. The recommendation letter was a photocopy. However, Mr. Kellen represented throughout the hiring process (and maintained during the final hearing) that Mr. Buckowich prepared and signed the original recommendation letter on behalf of Knox Academy.2/ The photocopied recommendation letter which Mr. Kellen provided to Ms. Barfield included a Knox Academy letterhead. The letter also bore the signature of Brad Buckowich at the bottom. Upon review of the recommendation letter, however, Ms. Barfield noticed that the signature seemed odd. The top of the letter "B" in the name "Brad" and "Buckowich" was cut off. The signature was also slightly slanted. Thereafter, Ms. Barfield contacted Mr. Buckowich to personally inquire about Mr. Kellen's employment with Knox Academy, obtain his verbal recommendation as Mr. Kellen's last employer, and discuss the recommendation letter. When Ms. Barfield's secretary reached Mr. Buckowich by phone, however, he declined to recommend Mr. Kellen for the position. Furthermore, he denied that he had ever written a recommendation letter for Mr. Kellen. Ms. Barfield then faxed the recommendation letter to Mr. Buckowich. After reviewing the letter, Mr. Buckowich repeated to Ms. Barfield that he did not draft or sign the letter. Ms. Barfield faxed a copy of the recommendation letter to Ms. McDaniel at the School District office on August 2, 2013. On August 5, 2013, Mr. Kellen visited James Stevens Academy. He was told there was a problem with his reference letter. Later that morning, Mr. Kellen met again with Ms. McDaniel at the School District office. Ms. McDaniel informed Mr. Kellen that Mr. Buckowich said he did not prepare or sign the recommendation letter. Mr. Kellen disclosed that he had actually prepared the letter for Mr. Buckowich's signature. However, Mr. Kellen insisted that Mr. Buckowich signed the letter he submitted. In the afternoon of August 5, 2013, Mr. Kellen wrote an e-mail addressed to Mr. Buckowich. In the e-mail, Mr. Kellen asked Mr. Buckowich to "please fill out this form as you promised in March, that you would give me a good recommendation based on my working as Asst. Principal/Instructor." Mr. Kellen added, "[t]o avoid any mis-communication, email the form signed to me at this email and to Mrs[.] McDaniel in HR." On August 9, 2013, Mr. Buckowich met with Ms. McDaniel to discuss and review the recommendation letter. Mr. Buckowich observed that the signature on the photocopied letter was, in fact, a copy of his signature. However, Mr. Buckowich reiterated that he did not draft or sign the recommendation letter. Further, Mr. Buckowich produced for Ms. McDaniel another document he signed in October 2012, which he believed was the source of the signature that was "cut and pasted" onto the recommendation letter Mr. Kellen presented to Ms. Barfield. Mr. Buckowich had provided this document to Knox Academy employees, including Mr. Kellen. Mr. Buckowich surmised that Mr. Kellen, likely by using a computer Word or PDF program, cut his signature from the October 2012 document and pasted it onto the recommendation letter. Based on her meeting with Mr. Buckowich, Ms. McDaniel concluded that the recommendation letter Mr. Kellen submitted to support his application for the teaching position was fraudulent. Ms. McDaniel determined that the School District would not hire Mr. Kellen. At the final hearing, Mr. Buckowich expanded on why the recommendation letter should not be considered genuine. Mr. Buckowich stated that the recommendation letter had several formatting and style errors that he would not have used or made. These mistakes included: he would have adjusted the date to the right margin, not centered it under the Knox Academy seal; he would have placed the subject line flush with the left margin, not indented it; and he would not have capitalized every word of the addressee line. As far as the letter's content, Mr. Buckowich stated that he would not have used the words or phrases written in the letter. He would not have identified Mr. Kellen as the "Assistant Principal/Instructional Leader." Neither would he have used the term "RTI strategies." Finally, regarding the signature, other than not actually signing the recommendation letter, Mr. Buckowich commented that the signature looked as if it had been cut and pasted, as if from another PDF or scanned document, onto this letter. Aside from this fact, Mr. Buckowich testified that his actual signature block reads "Brad J. Buckowich, Principal/Director, Knox Academy," not "Mr. Brad Buckowich, Founder/Principal, Knox Academy," as written on the letter. To conclude, Mr. Buckowich commented that if he would have actually drafted a recommendation letter for Mr. Kellen, he would have sent an original letter with a Knox Academy color logo and an original signature, not a photocopy. At the final hearing, Mr. Kellen adamantly asserted that the recommendation letter with Mr. Buckowich's signature was genuine. Mr. Kellen stated that he obtained the letter from his former attorney. His attorney had received it from Mr. Buckowich and then forwarded it to Mr. Kellen. The Florida Education Practices Commission is the state agency charged with the certification and regulation of Florida educators. See Chapter 1012, Fla. Stat. Prior to this current matter, the Education Practices Commission entered two, separate final orders against Mr. Kellen sanctioning his educator certificate for misconduct, one dated December 4, 2006, and one dated October 23, 2008. Based on the evidence and testimony presented during the final hearing, Petitioner demonstrated, by clear and convincing evidence, that Mr. Kellen submitted a fraudulent recommendation letter to the School District as part of his application for employment in a teaching position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Irwin Kellen, in violation of section 1012.795(1)(j) and rules 6A-10.081(5)(a), (h), and (i). It is further RECOMMENDED that Petitioner revoke Respondent's certificate for a period of time deemed appropriate by the Education Practices Commission. DONE AND ENTERED this 27th day of August, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 27th day of August, 2015.
The Issue Whether Respondent, Working America, discriminated against Petitioner, Frances B. Schlein, based on her religion, race, and/or nationality (Jewish/Hebrew) when it did not hire her, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact Ms. Schlein applied for the position of canvasser in July 2016 with Working America. Ms. Schlein’s religion is Judaism, but she also considers being Jewish a part of her national origin and race.2/ Working America is a non-profit organization focusing on economic issues such as jobs, education, healthcare, retirement security, and corporate accountability. It is an “employer” as defined by section 760.02(7), Florida Statutes (2016). In July 2016, Angel Darcourt served as a field director for Working America in Orlando, Florida. As a field director, Ms. Darcourt had authority to hire employees for Working America. Working America originally hired Ms. Darcourt for the canvasser position——the same job Petitioner had applied for. Although not offered as an exhibit, Ms. Darcourt testified Working America has an equal employment opportunity (EEO) policy, which “is against discrimination.” Working America’s EEO policy encourages people of all backgrounds, including women, “people of color,” and people who are LGBTQ (lesbian, gay, bisexual, transgender, or queer) to apply for positions. This EEO policy is included in all advertisements. Job Duties of a Canvasser Working America is a canvassing organization which conducts community outreach. In July 2016, Working America was hiring employees to canvass on behalf of the 2016 Democratic presidential candidate. This involved going to door-to-door to engage people in conversations about what issues they were concerned about in the presidential election, and then sharing information about the Working America’s candidate’s views on that issue. In the Orlando area, Working America was seeking to reach out and spread information in neighborhoods on the Democratic candidate’s views on immigration policy. As explained by Ms. Darcourt, this was a “hot button” issue in the 2016 presidential campaign given the Republican candidate’s promise to build a wall to prevent illegal immigration across the United States-Mexico border. The job of “canvasser” for Working America was to interact with the public, inform them of a candidate’s position, and leave a positive impression of that candidate in hopes to garner support and a vote in the upcoming election. Canvassers work without direct supervision. Therefore, the ability to speak without assistance about political issues in a tactful and non-offensive way is a basic qualification for the position. In 2016, Working America was also trying to “spread the message” regarding the Democratic presidential candidate, so it was imperative Working America canvassers use the right talking points and terminology when discussing the candidate’s position on various issues. The Hiring Process Applicants for the canvasser position could indicate interest in working for Working America by clicking on an electronic link via on-line advertisements. An interested candidate could enter his or her information, and then would be contacted by phone by a Working America employee. Alternatively, an applicant could call or apply to Working America directly. Once Working America made telephone contact with the applicant, it would screen the applicant to ensure he or she was comfortable going door-to-door, could work the necessary hours, and was in support of the Democratic presidential candidate. If the applicant was approved after an initial phone screening, Working America would bring the applicant in for a face-to-face interview with a field director. The field director then interviewed the candidate to determine if he or she would be good for the canvassing position. If he or she thought the candidate was acceptable, the applicant would be offered a background check form, before a second interview. The second interview consisted of shadowing a field manager, and ultimately participating in door-to-door canvassing. The field manager would then make a recommendation regarding the candidate to a field director. The field director would make the ultimate decision to hire. The Interview Ms. Schlein visited the Orlando office of Working America with two other applicants: Robert Velazquez and Robert Diaz. It is unclear if any of these three individuals had gone through the initial phone screening before coming to Working America’s office. Regardless, upon arrival to the office, the three were greeted by Ms. Darcourt and a conversation ensued in both Spanish and English. Ms. Darcourt asked the trio where they were from. Mr. Velazquez indicated he was from Puerto Rico; Mr. Diaz said he was from Cuba; and Ms. Schlein said she was from Bronx, New York. Ms. Darcourt then gave all three an application to fill out, and proceeded to interview them separately. Ms. Darcourt’s interview with Ms. Schlein did not go well. At some point the discussion turned to immigration policy. Ms. Darcourt indicated she was half-Cuban and half- Mexican. Ms. Schlein responded that her family were also immigrants, but emphasized the fact that her family immigrated to the United States legally. Ms. Schlein went on to use the word “illegals” to describe Mexican immigrants. Specifically, Ms. Schlein stated she did not like the Republican presidential candidate, but that she “agreed with him on the illegals.” She also indicated she understood Cubans needed asylum, but did not understand why Mexicans could not come here legally. Ms. Darcourt immediately informed Ms. Schlein that using the word “illegals” to describe humans was inappropriate. Either Ms. Darcourt suggested Ms. Schlein do some research on Mexican immigration, or Ms. Schlein indicated she would do some research on the issue. Regardless, both parties had negative reactions to the conversation. Ms. Darcourt found Ms. Schlein’s use of the word “illegals” personally offensive. In turn, Ms. Schlein felt anger from Ms. Darcourt during the interview. Ms. Schlein’s conduct at the interview raised concerns with Ms. Darcourt of how she might act if hired and was working unsupervised. Ms. Darcourt believed this kind of language, or agreeing with the Republican candidate’s views on immigration during canvassing, would be counterproductive to garnering support for the Democratic candidate promoted by Working America. Ms. Darcourt was also concerned that Ms. Schlein’s language and position on immigration policy would offend some of the other Working America employees, who were immigrants or whose families had recently immigrated to the United States. Ms. Darcourt’s concerns are validated by Ms. Schlein’s demeanor and testimony at the hearing. Although Ms. Schlein may not have intended to be offensive, Ms. Schlein’s statements regarding Mexicans, “gay,” “black,” and other minorities lead to the conclusion, at the very least, that she is unaware these statements may be perceived as insulting. Ms. Darcourt made the decision not to give Ms. Schlein a second interview. At the end of the interview, she informed Ms. Schlein she would call her if she thought she would be a good fit. Ms. Darcourt never called Ms. Schlein, even though, according to Mr. Velazquez, who was hired and began working for Working America, it was still looking for canvassers. A few weeks later, Ms. Schlein contacted Ms. Darcourt to let her know she had researched the immigration issue. Although there is a dispute about the language used by Ms. Schlein, there is no dispute Ms. Schlein conveyed that she believed Ms. Darcourt was unqualified to be in a management position, and questioned whether Working America employees who were from other countries or ethnicities had been properly vetted. Ms. Schlein admits Ms. Darcourt never asked about her religion, nor was there any discussion at any time about the fact she was Jewish. As evidence of discrimination, Ms. Schlein claims Ms. Darcourt gave her “dirty looks” and “the silent treatment,” while she was friendly to other employees. Even if true, there is no evidence Ms. Darcourt’s conduct was based on the fact Ms. Schlein is Jewish. Mr. Velazquez also testified Ms. Darcourt was “not friendly” toward Ms. Schlein, but was “friendly” toward him and Mr. Diaz. His testimony, however, was conclusory and unreliable. He could not provide any details of specific conduct and stated his “memory’s not too good.” Additionally, Mr. Velazquez admitted on cross-examination he is in a personal relationship and lives with Ms. Schlein. More importantly, his conclusion about Ms. Darcourt’s feelings toward Ms. Schlein was based on a single interaction he witnessed when they initially arrived at the Working America office. He was not present during the interview. There was also testimony about an employee known only as Layla, who was allegedly mistreated by the Working America management. It is unclear when or what position Layla held at Working America, but she was described as being Jewish, from a Muslim country, who spoke Spanish. Ms. Schlein admitted she had never met this employee and had only spoken with her on the phone; Mr. Velazquez’s knowledge regarding this employee was entirely secondhand. The undersigned cannot base any finding of fact based on this testimony as it is anecdotal and entirely based on hearsay. See § 120.57(1)(c), Fla. Stat.3/ The undersigned finds Working America did not hire Ms. Schlein based on her poor interview, and not based on the fact she was Jewish.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Frances B. Schlein’s Petition for Relief. DONE AND ENTERED this 21st day of June, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 June, 2019.
The Issue The issue in this case is whether Respondent, Pro Quality Enterprises, LLC (“Pro Quality”), should have a penalty assessed against it by Petitioner, Department of Financial Services, Division of Workers’ Compensation (the “Department”), for failure to have workers’ compensation insurance in place, and, if so, the amount of such penalty or assessment.
Findings Of Fact The Department is the State agency responsible for, inter alia, insuring that all businesses operating in this State have workers’ compensation insurance coverage. Pro Quality is a duly-formed and validly-existing limited liability company in the State of Florida. The company was formed on April 23, 2012, for the purpose of conducting any and all lawful business. At the time of its formation, Gabor Albok and Jaco Kotze were the named managers of the company. Mr. Albok was also the registered agent. Mr. Albok created the company when he first came to the United States from his native Hungary. He envisioned using the entity for some business purpose, i.e., perhaps shipping automobiles back to Europe. When that venture did not pan out, Mr. Albok came up with the idea of being a referral source for businesses engaged in the construction industry, e.g., painters, carpenters, lawn services, roofers, etc. On January 14, 2014, Jose Bird, a compliance investigator with the Department, conducted an investigation at 47 Lake Walk, Palm Coast, Florida. Upon arrival at the site at around 11:30 a.m., Mr. Bird saw a person (later identified as Mr. Albok) “doing touch-up work” with a paint brush and then cleaning the brush. Mr. Bird approached Mr. Albok, identified himself as an investigator for the Department, and asked Mr. Albok to identify himself. Mr. Albok complied with the request, including the name of his company, Pro Quality. Mr. Albok did not attempt to hide from the investigator or avoid his questions; he was fully cooperative at all times. Mr. Bird then asked Mr. Albok to provide proof of identity, so Mr. Albok went to his car to retrieve his wallet. At that time he realized he had left his wallet somewhere, so he hurriedly left in his car to return to the 7-11 store he had visited that morning to see if they had his wallet. Meanwhile, Mr. Bird used the information he had received from Mr. Albok to begin his investigation as to whether Pro Quality had workers’ compensation insurance coverage required by someone in the painting business. He found that it did not have such coverage after checking the Department’s compliance and coverage automated system. Mr. Bird, operating under the assumption that Mr. Albok was a painter, provided his findings to his supervisor and was directed to issue an SWO and request for business records. He prepared the documents and they were sent via certified mail to Mr. Albok at his address of record. Mr. Albok responded by providing such business records as he could locate, but maintained that he did not have workers’ compensation insurance coverage because he was not engaged in an activity that required such insurance. Specifically, Mr. Albok explained that he was not a painter, had never been a painter, had never employed a painter in his business, and could not understand why the Department thought otherwise. Mr. Albok was not engaged in any construction-related business. Pro Quality was a company that attempted to help persons building a new home to find professionals who might assist in the development and maintenance of the new home. Pro Quality would then get a referral fee from the companies if they were hired. He was not an employee of any of the companies and performed no services for them nor were the professionals he referred employees of Pro Quality. At the time Mr. Bird arrived at the work site in Palm Coast, Mr. Albok was talking to a painter at the house who he had referred to the homeowner. He touched up a spot on a windowsill and was helping the painter clean his brushes as they talked. He had wiped a brush on the windowsill and was bending down to spray it off as he talked. He had not been painting and the painter was not under his employ, nor was he under the painter’s employ. Mr. Albok’s testimony was credible and is accepted as true. The Department did not provide any evidence to refute Mr. Albok’s assertions in this matter. Mr. Bird’s short observation and minimal inquiry to Mr. Albok was insufficient to establish that Mr. Albok was a painter working at the job site. The Department nonetheless found that Pro Quality was engaged in the business of painting, issued a penalty assessment based on that presumption, and calculated a penalty of $20,727.38, later reduced to $15,215.68. Based upon the determination that Mr. Albok and Pro Quality were not engaged in the business of painting (or other work requiring workers’ compensation insurance), there is no basis for calculating a penalty assessment or imposing a penalty against the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rescinding the Stop-Work Order entered against Pro Quality Enterprises, LLC, and all penalties assessed therefrom. DONE AND ENTERED this 4th day of August, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2016.
The Issue Whether Petitioner, Frank Meeker, by and through Debra Meeker as the substituted party, 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 14-231 On December 4, 2014, the Commission received a complaint against Frank Meeker (“Meeker”), filed by Richter Jr., which alleged that Meeker, as member of the Flagler County Commission (“County Commission”), violated Florida’s election laws, the Government-in-the-Sunshine Law (“Sunshine Law”), and Florida’s Code of Ethics for Public Officers and Employees (“Ethics Code”). Specific allegations in the complaint included that: Current County Commission Chairman Frank Meeker and other county commissioners (including canvassing Board member County Commissioner George Hanns and alternate canvassing board member County Commissioner Charles Ericksen) were involved in discussion outside a scheduled canvassing board meeting but during an advertised board of county commissioner [sic] meeting, which public notice was not given by the canvassing board members, the Supervisor of Elections or her staff. The discussion pertained to canvassing board activity. Action, by consensus vote, was taken by the board of county commissioners which pertained to the canvassing board selecting a canvassing board attorney, and to request the state oversee the 2014 general election; all of which is believed to be a Sunshine Law violation. The complaint also alleged that: It is believed others such as the county administrator, other county commissioners and the county attorney were being a conduit to canvassing board members, and canvassing Board member George Hanns and alternate canvassing board member County Commissioner Charles Ericksen Jr. are also believed to have violated the sunshine law by contributing to the discussions, which was believed to have been done to advance [sic] manipulation to the canvassing board members who were present so they could carry out a planned agenda. The complaint further alleged that: 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 [sic] 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 [Meeker] 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 carry out a planned agenda, that discussions occurred regarding placement of the County Attorney as attorney for the canvassing board (a placement objected to by the Supervisor of Elections), and that the [Meeker] was involved in other or related conduct, apparently for the benefit of 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 [Meeker] 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 (“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 Weeks. Initially, the alternate member of the Canvassing Board was County Commission member Charles Ericksen, Jr. Meeker was a member of the County Commission; he was not a member of the Canvassing Board during the 2014 election cycle. Minutes from the September 15, 2014 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. 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 (Commissioner 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. 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. When asked about his allegation that Meeker was involved in other or related conduct, apparently for the benefit of particular candidates or others, Richter Jr. 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 Meeker violated section 112.313(6) by participating in discussions which may have been in violation of the Sunshine Law, 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 Richter Jr.’s complaint for lack of probable cause. Richter Jr.’s Knowledge of the Falsity of His Sworn Allegations Richter Jr. filed a sworn complaint against Meeker. When signing the complaint, Richter Jr. executed an oath that “the facts set forth in the complaint were true and correct ” When he filed his complaint against Meeker, Richter Jr. 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 County website. Minutes of all County Commission meetings are public record available to the public on the Clerk of Court’s website and upon request. Neither the posted video nor the minutes of the September 15, 2014 County Commission meeting indicate that any discussion regarding the selection of the Canvassing Board’s attorney occurred in violation of the Sunshine Law. Neither the posted video nor the minutes of the September 15, 2014 County Commission meeting 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. When asked by the Commission investigator whether Meeker was involved in other or related conduct, for the benefit of particular candidates or others, Richter Jr. indicated he had no information regarding that allegation. The allegations in the Richter Jr.’s complaint against Meeker, which the Commission found material to investigate, were known by Richter Jr. to be false, or filed by Richter Jr. with reckless disregard for whether they were true or false. Malicious Intent to Injure Meeker’s 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 Richter Jr. worked in concert with other individuals to maliciously injure the reputation of Meeker by filing complaints containing false allegations material to the Code of Ethics with the Commission 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 County Commission. In 2014, Richter Sr. ran against, and lost to, Commissioner McLaughlin. Dennis McDonald ran against and lost to 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. This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Meeker, all members of the 2014 County Commission, County Attorney Hadeed, 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 Ethics Code. 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 Meeker violated Florida’s ethics laws and the Sunshine Law, the complaint filed with the Commission alleged that Meeker violated Florida’s elections laws, specifically chapter 106, Florida Statutes (the “Campaign Finance Law”), in several respects. Richter Jr. also filed a complaint against Meeker with the Florida Elections Commission. In that complaint, he included allegations that Meeker discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, selecting the Canvassing Board attorney, and advancing a hidden agenda. The allegations that Meeker discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, selecting the Canvassing Board attorney, and advancing a hidden agenda were crucial to the ethics complaint which Richter Jr. filed against Meeker. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient in order that it be investigated. Likewise, inclusion of the allegations that Meeker violated Florida’s elections laws was an important part of Richter Jr.’s complaint against Meeker. Had Meeker been found to have violated Florida ethics or elections law, it would have damaged his reputation in the community. Initially, Meeker was the main target of the Triple Rs. John Ruffalo and McDonald went to Meeker’s employer on at least two occasions in an unsuccessful effort to get him fired. They alleged that Meeker was performing duties as a Palm Coast City Councilman, an office he held before being elected to the County Commission, while being paid by the St. Johns River Water Management District (the “District”). The charges were false: Meeker’s work schedule with the District permitted him to perform City duties without conflict with his work schedule. 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 14-231 was filed with a “malicious intent” to injure the reputation of Meeker and create political gain for the Triple Rs and Weeks. The totality of these findings constitutes clear and convincing evidence that Richter Jr.’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 Ethics Code. The totality of these findings constitutes clear and convincing evidence that Richter Jr. showed “reckless disregard” for whether his sworn complaint contained false allegations of fact material to a violation of the Ethics Code. 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 Meeker, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Meeker. Attorneys’ Fees and Costs Upon receipt and review of the complaints filed against Meeker 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 hourly records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 73.34 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 54.88 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 $1,814.12 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of $957.44 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. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 16.50 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 21.50 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 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 through May 15, 2017, are reasonable. Costs of $292.99 incurred by the Flagler County Attorney’s Office after May 15, 2017, are reasonable. A reasonable hourly rate to compensate the Flagler County Attorney’s Office in this proceeding for attorney time 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, Meeker established that he incurred the following expenses: (i) reasonable costs in the amount of $2,771.56 and reasonable attorneys’ fees in the amount of $44,877.00 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 $11,509.42 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 Frank Meeker’s, through Debra Meeker, as the substituted party, Petition for Costs and Attorneys’ Fees relating to Complaint 14-231 in the total amount of $59,942.68. 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 Whether the Petitioner is entitled to a passing grade on the "Integration of Technical and Design" portion of the licensure examination administered in June of 1997.
Findings Of Fact In July 1997, Petitioner sat for Section 5 of the Landscape Architect Registration Examination that had been prepared by the Council of Landscape Architectural Registration Boards (CARLB). CARLB is a national organization that prepares licensure examinations for several states, including Florida. Section 5, styled Integration of Technical and Design Requirements, contains 5 vignette problems, each of equal weight. Petitioner received a passing grade for problems 1 and 3. When her responses were initially scored, she did not receive a passing grade for problems 2, 4, and 5. Her responses were re- scored at her request. She did not receive a passing score for these three problems following the re-scoring of her responses. For Petitioner to have passed Section 5, she would have had to have a passing score on three of the problems. 1/ The candidates were required to prepare design development details for a terrace area. The two problems at issue in this proceeding pertained to the construction of a free- standing wall (vignette problem 2) and the construction of a pool (vignette problem 4). The candidates were to assume that the soils were stable and that the frost depth was 24 inches. The scoring for the five problems required the grader to first determine whether the design by the candidate met the criteria to be scored. Critical issues were identified by the committee that prepared the examination and were part of the scoring criteria used by the graders of the examination. If it did not meet that criteria, the candidate received a grade of "s," which is a failing grade. If it met the criteria to be scored, the grader next determined whether the candidate missed any critical items. If there were missed critical items, the candidate received a score of "c," which is a failing grade. If there were no critical items missed, the grader continued grading the design until a final grade was determined. When Petitioner's responses to problems 2 and 4 were initially scored, she received a grade of "c" for both problems. When her responses to the two problems were re-scored, she received a grade of "c" for problem 2 and a grade of "s" for problem 4. For the purposes of scoring the examination, the term "Critical Failure," for which the candidate would receive a grade of "c," is defined as: solution indicates a life/safety error or fails to demonstrate the primary knowledge being tested on the vignette problem. For the purposes of scoring the examination, the term "unscoreable" [sic] for which the candidate would receive a grade of "s" is defined as: the solution is blank or fails to follow basic problem requirements given in the vignette problem statement. Problem 2 required the candidates to draw a cross- section of a free standing wall. The candidates were instructed to label materials, fasteners, finishes, and/or joining materials. Among the critical issues identified for problem 2 are the following, which Respondent asserts that Respondent failed to meet: 2/ Stone veneer is not tied to the wall. Fails to show compacted subbase and/or subgrade (i.e., compacted and undisturbed subgrade or compacted granular base shown). There was a dispute between Petitioner's expert witnesses and Respondent's expert witnesses as to whether Petitioner's response to vignette problem 2 should have received a passing grade. Respondent's expert was of the opinion that masonry ties should have been used to tie the stone veneer to the wall, and that Petitioner's failure to do so merits a failing grade. Petitioner's experts were of the opinion that Petitioner adequately tied the stone veneer to the wall by using mortar. The conflict in the evidence is resolved by finding that while tying the stone veneer to the wall with masonry ties is the preferred method, using only mortar is an acceptable method. Using only mortar does not meet the definition of a critical failure issue. Respondent's expert also was of the opinion that Petitioner's failure to show that the area under the footing of the wall was compacted subgrade is a critical fail issue. Petitioner showed that certain areas above the footing were to be compacted subgrade, but she clearly did not show the area under the footing to be compacted subgrade. Respondent established that this is a critical failure issue because the failure to erect the wall on compacted subgrade could impair the structural integrity of the wall. This failure justified the failing grade, given Petitioner's response to problem 2. Vignette problem 4 required Petitioner to show the cross-section of a poured-in-place concrete pool. Among other instructions, the candidates were told to include a permanent combination drain/overflow structure and to label all critical dimensions. The only critical issue for problem 4 was the following: "Pool does not extend to or below frost depth (from top of water elevation)(dimensioned, labeled or noted)." Initially, Petitioner's response to problem 4 was awarded a score of "c." When it re-scored, the grade was changed from a "c" to an "s." Respondent's expert testified that the design was re- scored as an "s" because of the manner Petitioner's depicted the drain/overflow structure. In her notes, she indicated that the drain/overflow structure was a "2 x 18" high standpipe with dome removable from floor drain." The structure she described was not the structure she drew. As drawn, the drain/overflow structure would not have worked because it could not have been removed from the floor drain. The manner in which she drew the drain/overflow structure established that Petitioner was not entitled to a passing grade for problem 4. Petitioner's design did not place the bottom of the pool at or below the frost depth and she did not dimension, label, or note, the frost depth. Her experts argued that frost depths are not a factor that needs to be considered in Florida and that her failure to address the frost depth issue should not be a critical failure issue. That argument is rejected because Petitioner was not at liberty to ignore the fact that the hypothetical structure was to be built in an area with a frost depth of 24 inches. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that dismisses Petitioner's challenge to her grades to problems 2 and 4 of the "Integration of Technical and Design" portion of the licensure examination administered in June of 1997. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of March, 1999.
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
The Issue Whether the Respondent, School Board of West Palm Beach County, Florida, (School Board) should reject the bid of the Petitioner, Copyco, Inc. d/b/a Toshiba Business Solutions Florida (Copyco or Petitioner), and approve a contract with the Respondent, Ikon Office Solutions, Inc. (Ikon), should reject the bid of Ikon and approve a contract with Copyco, or should reject all bids and re-bid the contract.
Findings Of Fact On August 5, 2005, the School Board issued an Invitation to Bid (ITB) Number 06C-10B entitled “Term Contract for Copier on a Fixed Cost-Per-Copy. ” The School Board sought to award the Contract to the lowest responsive bidder. The School Board sought several different copiers with different copying rates. All rates were for copies per minute. The School Board did not guarantee any level of use for the copiers. Ikon is the current vendor for copiers provided to the School Board. Ikon and the School Board have enjoyed an amicable and successful working relationship. The subject ITB was available to vendors in an electronic format through a company known in this record as “RFP Depot, LLC.” RFP Depot, LLC is a private company located outside the State of Florida that posts invitations to bid, receives responses from vendors, and transmits information to entities seeking vendors. In this case, they contracted with the School Board to electronically present and respond to the instant ITB. No potential vendor timely protested the terms or specifications of the ITB when it was posted. That is to say, all of the terms of the ITB were accepted by the parties to this action. To prepare the ITB specifications, the School Board utilized information submitted by Ikon for the copiers it provides (manufactured by Canon) to draft the ITB. Karen Brazier exchanged e-mails with Ikon to obtain specifications and used information available from Buyers Laboratory, Inc. (BLI) to complete the ITB. Ms. Brazier did not ask any other vendor or manufacturer to submit data regarding its copiers before completing the ITB. Vendors and manufacturers other than Ikon and Cannon do produce copiers that can meet or exceed the copier requirements of the ITB. Ikon did not draft the instant ITB. Ms. Brazier was solely responsible for the terms of the ITB. The original due date for responses to the ITB was extended from August 29, 2005 to August 31, 2005, due to Hurricane Katrina. Vendors interested in the Contract submitted questions regarding the ITB to RFP Depot, LLC, which then transmitted the inquiries to the School Board. All questions with the answers were posted by RFP Depot, LLC so that all vendors were privy to the information posted for this ITB. Only three bidders timely submitted responses for this ITB: Axsa Document Solutions, Inc. (Axsa); Copyco; and Ikon. The Axsa bid is not at issue in this proceeding. Although it was the lowest bid received, it was disqualified and was not considered for the award. Axsa did not protest that finding. Copyco was the second lowest bidder. John Gans, a major account executive with Copyco, was the primary author of the bid submitted by the Petitioner. Mr. Gans had never used the RFP Depot, LLC system before but personally completed the information for the ITB and submitted it for consideration in a timely manner. The ITB included a chart entitled “Bid Summary Document.” That chart required the vendors to list the copiers proposed for each category by manufacturer and model number. All of the “Group 1” copiers were required to meet certain specifications. The “Estimated Yearly Total” was derived by multiplying the cost-per-copy for each of the Group 1 copiers times 400,000,000 (the number of estimated copies per year). For purposes of computing a cost the estimate for the number of copies was fixed but not guaranteed. In an attached section to the ITB, vendors were required to include additional information regarding the copiers proposed in the Group 1 categories. That information noted the copier proposed with a separate cost-per-copy rate for each of the three different Group 1 categories. Although the price computed for the award was based on the aggregate cost of the copiers, the ITB required that the individual copier breakdown costs be disclosed in the addendum material. When he submitted the bid proposal to RFP Depot, LLC, Mr. Gans believed he had listed a Toshiba e600 copy machine for the category 3 machine of Group 1. In fact, the information attached in the separate information required by the ITB identified the Toshiba e600 and noted its cost per copy in the individual copier breakdown. The Toshiba e600 meets or exceeds all specifications for Group 1, category 3 of the ITB. Group 1, category 3 of the ITB required a machine capable of producing 55 copies per minute. The Toshiba e520 copier is rated at 52 copies per minute. When Copyco’s proposal for this ITB was transmitted by RFP Depot, LLC to the School Board, the proposal identified the Toshiba e520 as the copier listed under the Group 1, category 3 chart. Without considering the attached information provided in the addendum to the proposal, the School Board determined that Copyco’s bid must be disqualified since the Toshiba e520 is not rated to produce 55 copies per minute. Accordingly, the Copyco bid was disqualified and Ikon (the highest bidder of the three submitted) was deemed the only responsive bidder to the ITB. All of the Ikon copiers bid met the specifications of the ITB. At the time the School Board determined to award the bid to Ikon, it did not deem material to the instant award Ikon’s debarment by Hillsborough County, Florida. In April 2005, Ikon was awarded a contract in Hillsborough County to provide copiers and related services based upon another bid solicitation. In that bid, Ikon failed or refused to execute an agreement for the copiers. As a result, the Board of County Commissioners for Hillsborough County, Florida decided to debar Ikon for a period of two years. The debarment precludes Ikon from doing business with Hillsborough County for a two-year term. On August 31, 2005, the date the proposals were due in this case, Ikon knew or should have known that Hillsborough County had decided to debar it from doing business with Hillsborough County. The instant ITB required every bidder to certify that “neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any State or Federal department/agency.” It is undisputed that Ikon did not notify the School Board that it was debarred by Hillsborough County. Ikon has challenged Hillsborough County and filed suit against it for the debarment. As of the time of hearing in this cause, that suit was unresolved and remained pending in federal court. The electronic listings for debarred companies maintained for the State of Florida and the federal government does not include any of the bidders for this ITB. The School Board did not consider the erroneous listing of the Toshiba e520, instead of the Toshiba e600 as the Group 1, category 3, listing to be a minor irregularity of the bid submission. The School Board did not consider the erroneous omission of the debarment from Hillsborough County a disqualifying offense for Ikon. When compared to the Copyco submission, the award of the ITB to Ikon will result in higher copier costs incurred by the School Board. Copyco did not refuse to execute an agreement with the Toshiba e600 as the Group 1, category 3 copier. In fact, Copyco has represented it will do so as that was the machine clearly identified in the addendum materials. In researching the debarment, the School Board made a telephone call to Hillsborough County to ascertain facts pertinent to the debarment. Any negative information related to Ikon was deemed irrelevant to the instant ITB. The Copyco protest to the intended award to Ikon was timely filed. Copyco intended to bid the Toshiba e600 in Group 1, category 3 of the instant ITB. The Toshiba e600 is identified throughout the bid submittal including the proposed transition plan. To have awarded the contract to Copyco with the Toshiba e600 noted as the Group 1, category 3 copier would not have afforded the Petitioner a competitive advantage as that machine was clearly denoted. The cost to the School Board would not have changed but would have been less than the cost proposed by Ikon. Even before a final decision was reached on this contract and before the posting of the award, Ms. Brazier was exchanging e-mails with Ikon regarding the transition under the new contract. Ms. Brazier did not make her supervisor fully aware of the Copyco proposal (as supported by the addendum materials) and did not believe the Ikon bid should be rejected for the failure to disclose the debarment. The School Board’s purchasing manual provides, in pertinent part: The following are reasons a bidder may be declared nonresponsible: * * * D. The bidder does not have a satisfactory record of integrity, or the bidder is currently debarred or suspended by the District or other State of Florida jurisdiction... Ms. Swan did not investigate Ikon’s debarment until after the posting of the award. The School Board has taken the position that the Hillsborough County debarment does not preclude the award of the contract to Ikon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a Final Order that rejects all bids for the contract. S DONE AND ENTERED this 9th day of February, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 9th day of February, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northwest Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael J. Glazer, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 James F. Johnston GrayRobinson, P. A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802 Michael E. Riley, Esquire Gray, Robinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302-3189 Steven A. Stinson, Esquire School Board of Palm Beach County Post Office Box 19239 West Palm Beach, Florida 33416
