The Issue The issue is whether Respondent should pay Petitioner's attorney's fees and costs, and, if so, the amount.
Findings Of Fact Mayor Osborne was the Mayor of Beverly Beach, Florida, during 1999 through 2001. Dr. Milanick was a dentist who owned property immediately north of Beverly Beach, Florida. Dr. Milanick desired that the property be annexed into the town and initiated annexation proceedings before the City of Beverly Beach. Mayor Osborne did not facilitate the requested annexation during the time he served as Mayor of Beverly Beach. Dr. Milanick alleged to the Commission that Mayor Osborne opposed the annexation for personal, financial gain. In order to defend himself against these false allegations, Mayor Osborne retained Robert J. Riggio, Esquire, of the Riggio and Mitchell firm of Daytona Beach. The Original Award of Attorney's Fees An award of attorney's fees and costs in favor of Mayor Osborne was recommended in Division of Administrative Hearings Case No. 04-4110E. The Recommended Order stated that the amount of attorney's fees and costs for Mayor Osborne to defend against Dr. Milanick's allegations was $4,976.00. The Commission did not address the amount of attorney's fees and costs in its Final Order, but instead held that Mayor Osborne was not entitled to any award. Subsequently, the Fifth District Court of Appeal found the Commission's Final Order to be erroneous and remanded the matter ". . . for entry of an order making the awards recommended by the ALJ." A Mandate with regard to the Fifth District Court of Appeal issued April 11, 2007. The award recommended by the ALJ was, as stated above, $4,976.00, and that amount should be awarded by the Commission in a Final Order. Appellate Attorney's Fees Mayor Osborne filed a Motion for Petitioner's Appellate Attorneys' Fees and Costs before the Commission on May 10, 2007, noting the Fifth District Court of Appeal, in its Order dated February 16, 2007, stated that, "Appellant's Motion For Attorney's Fees, filed May 16, 2006, is granted and the above- styled cause is hereby remanded to the Commission . . . to determine and assess reasonable attorney's fees for this appeal." The Fifth District Court of Appeal addressed only attorney's fees. However, because Mayor Osborne's Motion sought both attorney's fees and costs, and because the Commission sent that Motion without special directions to the Division of Administrative Hearings for resolution, it is found that the Administrative Law Judge has jurisdiction to recommend awards of both attorney's fees and costs expended in prosecuting the appeal. David C. Robinson, an attorney in Daytona Beach, Florida, testified as an expert on attorney's fees in Volusia County, Florida. He has practiced law in Daytona Beach for 26 years and has testified in other attorney's fees cases. He is familiar with the fees charged by attorneys in the Daytona Beach and Volusia County area. He knows Attorney Robert Riggio, of Daytona Beach, Volusia County, and Attorney Martin Pedata, of Deland, a town that is also located in Volusia County. Mr. Robinson is found to be an expert on the subject of reasonable attorney's fees and costs in Volusia County. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne as to the appellate filings made by Mr. Riggio. In doing so he considered the Lodestar approach as described in Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Mr. Robinson opined that the services performed by Mr. Riggio in the appellate proceeding were provided in a manner that an attorney would be reasonably expected to provide. He reviewed the hourly rate charged by Mr. Riggio and stated that the reasonable rate should be $250.00 per hour, but that Mr. Riggio only charged $150.00 per hour. Mr. Riggio's law firm, Riggio and Mitchell, billed Mayor Osborne for 95 hours. A small portion of the work was accomplished by his partner Jerome D. Mitchell. Other work in the amount of 9.4 hours was billed for paralegal work at $40.00 per hour. The 95 hours of attorney work was billed at $150.00 per hour for a total of $14,250.00, and the paralegal work totaled $376.00. Costs amounted to $859.70. This resulted in a total of $14,626.00 for fees and $859.70 in costs. Mayor Osborne paid these charges in full. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. As a result of Mr. Riggio's efforts, Mayor Osborne prevailed in the appeal. It is found that Dr. Milanick caused Mayor Osborne to pay attorney's fees and costs in the amount of $15,485.70. Proving Entitlement to Fees and Costs Subsequent to Dr. Milanick's allegations of misconduct before the Commission, and after an investigation, the Commission, in a Public Report dated September 8, 2004, dismissed the complaint on a finding of no probable cause in the case of Mayor Osborne. Pursuant to Subsection 112.317(8), Florida Statutes, Mayor Osborne was entitled to be reimbursed for the attorney's fees and costs associated with defending himself against Dr. Milanick's allegations. Because Dr. Milanick did not voluntarily remit the fees and costs expended, a hearing was required. A hearing was held in this matter in Daytona Beach, Florida, on May 11, 2005. The hearing in Division of Administrative Hearings Case No. 04-4110FE, lasted an entire day. Prior to the hearing, Mayor Osborne engaged the services of Attorney Martin Pedata in addition to those provided by Mr. Riggio. The agreement for representation by Mr. Pedata was reduced to writing on April 6, 2005. The agreement provided that Mayor Osborne would pay Mr. Pedata $250.00 per hour for his services and $75.00 per hour for paralegal services. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne for the preparation for and the conduct of the hearing of May 11, 2005. Mr. Robinson stated that the hourly rate of $250.00 was a reasonable one for the type of services provided by Mr. Pedata. He stated that the number of hours expended by Mr. Riggio and Mr. Pedata in connection with this hearing was reasonable. In analyzing this claim he used the Lodestar approach set forth in Rowe. Mr. Riggio and his partner Mr. Mitchell, expended 160.6 hours proving entitlement to fees and costs. Mr. Pedata, as lead attorney in the entitlement case, expended 107 hours. In addition, 54.2 paralegal hours were expended in proving the entitlement case. These hours include the time up to the filing of the appeal with the Fifth District Court of Appeal. These hours also include the time spent before the Commission. As a result of the efforts of Mr. Riggio and Mr. Pedata, Mayor Osborne prevailed in the entitlement hearing, which resulted in a Recommended Order in his favor. Mayor Osborne paid Mr. Riggio and Mr. Pedata a total of $50,840.00 for their services in proving entitlement to attorney's fees. He also paid $2,168.00 for paralegal services. Total costs amounted to $3,764.73, which Mayor Osborne paid. The total fees and costs to Mayor Osborne was $56,772.73. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. It is found that Dr. Milanick was responsible for Mayor Osborne having to pay attorney's fees and costs in the amount of $56,772.73. Additional fees and costs Mr. Riggio presented Mayor Osborne with an invoice in the amount of $2,370.00 for the cost of the current proceeding. However, the Administrative Law Judge is without jurisdiction to address this claim in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics award attorney's fees and costs as follows: The original award of attorney's fees in the amount of $4,976.00. Attorney's fees and costs for appellate attorney's fees and costs in the amount of $15,485.70. Attorney's fees and costs for proving entitlement to fees and costs in the amount of $56,772.73. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2007. COPIES FURNISHED: Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Kaye Starling Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Dr. Alexander J. Milanick 7250 A1A South St. Augustine Shores, Florida 32080 Phillip C. Claypool, Executive Director and General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue In an order entered on October 30, 1991, the Florida Commission on Ethics (EC) found probable cause that Respondent, Donald H. Sanders, as a Coral Springs city commissioner, violated section 112.313(7)(a), F.S., by acting as an investment broker for an individual who is president of a large land development company which frequently has business before the city commission. In a subsequent order entered on December 11, 1991, the EC found probable cause that the same respondent in his capacity as city commissioner violated section 112.313(7)(a), F.S., by having a loan contract with a company doing business with the city. The issues for determination in this proceeding are whether those violations did occur and, if so, what penalty is appropriate.
Findings Of Fact Respondent, Donald L. Sanders (Sanders), is now, and for the past fourteen years has been, a city commissioner in Coral Springs, an incorporated city in Broward County, Florida. Sanders' occupation is stockbroker. He has been employed as such for thirty years, the last nineteen of which have been with the firm, Paine Webber. Coral Ridge Properties The City of Coral Springs was created by special act of the legislature in 1963, at the behest of Coral Ridge Properties, Inc., the largest landowner and developer of the community. Personnel of Coral Ridge Properties acted as the city officials in the beginning. Gradually, as the community built up, the city hired employees. In 1969, the then residents of the city elected their first five member commission pursuant to the charter established in the special act. Werner Buntemeyer was involved in the initial creation of the city as an employee of Coral Ridge Properties, Inc., and as the city's first city manager. By 1974, the manager job became too big for Buntemeyer's dual role and he resigned, choosing to stay with the company. He is now president of Coral Ridge Properties, Inc., and has worked in that capacity for thirteen years. Werner Buntemeyer is also president of Florida National Properties, Inc., a wholly owned subsidiary of Coral Ridge Properties, Inc., and the land holding company for Coral Ridge Properties. Both companies, Coral Ridge Properties, Inc., and Florida National Properties, Inc. (CRP/FNP), are wholly owned subsidiaries of Westinghouse Communities, Inc., a part of Westinghouse Corporation. Buntemeyer receives bonuses based on the success of these companies. The twenty-five square miles that comprise the City of Coral Springs has grown in population from zero in 1963, to approximately 85,000. CRP/FNP no longer owns most of the land in the city; it is, however, a large landowner with substantial development interests and the city's major developer. Issues affecting CRP/FNP come before the city commission at virtually every meeting. CRP/FNP has representatives who attend those meetings. Buntemeyer does not attend routinely, and probably has attended only twice in the fourteen years that Respondent Sanders has been on the commission. Buntemeyer lobbies commission members individually by inviting them to his office to discuss issues such as economic development or other issues of interest to the company. Buntemeyer has lobbied Sanders individually in this manner. Sanders moved to Coral Springs in 1975, and became active in the community in various organizations. The city in those days was quite small, and folks gathered in the evening after work to socialize. This is how Sanders initially met Werner Buntemeyer. At some point, Sanders suggested some investments to Buntemeyer. Sanders was recommended to Buntemeyer by someone else, so he made some investments through Sanders, even though he mostly invested through other firms. Sanders checked with the city attorney and understood that so long as he did business with Buntemeyer personally, and not with Coral Ridge Properties, a conflict problem would not exist. Sanders did not pursue a formal opinion from the attorney or from the Ethics Commission on this issue. However, Sanders did ask the Ethics Commission on another occasion whether Paine Webber could bid on city bond issues while he was on the city commission. The answer, as Sanders remembers, was "no." Between 1986 and 1990, Respondent Sanders brokered investment transactions for Werner Buntemeyer totalling approximately $142,883.00. The total commission to the firm on these transactions was $5,696.00, and the total commission paid to Sanders was approximately $2,275.00. The document created at the inception of the relationship was a normal contract between a broker and client. There is no evidence that Sanders' public duty was ever actually compromised by his relationship with Werner Buntemeyer. From the summaries of commission meetings submitted as Advocate's exhibit #12, virtually all of the votes taken on any issue were unanimous, 5-0 or 4-0. In only one instance did Sanders dissent from the majority. It was a minor issue involving a letter from Coral Ridge Properties regarding trespassing. The commission voted to ask the developer to sit down with the offending students and explain its position in a more sensitive manner. According to the minutes of the meeting, Sanders felt the commission was responding to threats. (Advocate's exhibit #12, 11/20/90 meeting). R. L. LaRoche In 1987, Sanders had just purchased a home and was looking for some cash to pay off his bills. He had heard that developers in town sometimes made second mortgage investments through their pension plans so he decided to go that route, if possible, to avoid the points and extra costs of borrowing through a conventional lender. Ronald LaRoche is the sole owner and president of R. L. LaRoche, Inc., a general contracting company specializing in commercial and municipal construction. Sanders and LaRoche were occasional social friends; they played golf and saw each other sometimes at parties. Sanders called up LaRoche, made an appointment, saw him in his office and asked if he had money in his pension fund that he was willing to loan. On May 29, 1987, the parties closed on a $15,000.00 loan to Donald Sanders and his wife, secured by a second mortgage on the Sanders' condominium. The lender and mortgagee is "R. L. LaRoche, Inc. Profit Sharing Plan and Trust." Terms of the note called for monthly interest payments of $150.00 (12 percent), with the principal coming due at the end of a twelve-month period, on May 29, 1988. The loan was extended each year until LaRoche wanted to make a similar loan to someone else and asked Sanders to pay off his loan. The loan was repaid in August 1992. R. L. LaRoche, Inc. Profit Sharing Plan and Trust is a benefit offered to the company's employees, like a pension plan, and is available only to that company's employees. At Ronald LaRoche's election, the company makes contributions to the plan. If the company is profitable, normally contributions are made. The employees receive their benefits when they leave the company. The plan has been in existence for ten to twelve years with the number of employees eligible to participate ranging from six to fifteen. In consultation with his attorney and accountant, Ronald LaRoche makes all of the decisions regarding contributions to, and investments for the plan. There are Internal Revenue Service (IRS) guidelines governing investments and, as fiduciary, LaRoche considered the Sanders' loan to be well within the guidelines. Twelve percent was considered a good return, given the economy at the time. On December 20, 1988, the Coral Springs city commission, including Respondent Sanders, voted to approve R.L. LaRoche, Inc., as one of the contractors to bid on construction of the Coral Springs City Center. LaRoches' bid was $700,000.00 lower than the second bid, and R. L. LaRoche, Inc., was awarded the contract on March 28, 1989. The contract was in excess of $4 million. From time to time, change orders or other matters relating to the contract with R. L. LaRoche, Inc., came before the city commission. The votes were mostly routine, based on recommendations by city staff, but the commissioners also asked questions about the change orders to ensure themselves as laypersons why the change was required. Until the conflict issue was brought up, Sanders voted on the matters affecting the contract. After he was publicly criticized, he abstained from the discussion and votes. At the time that the contract was awarded to Ronald LaRoche's company, Sanders did not think about a potential conflict; when the issue was raised and he did think about it, he felt he was still okay because he considered the profit sharing plan to be a separate entity from the corporation. Moreover, he did not consider that any of his votes were influenced by his loan. The Profit Sharing Plan and Trust is described in a fifty-three page document titled "Summary Plan Description for R. L. LaRoche, Inc. Profit Sharing Plan and Trust" (Advocate's Exhibit #13). Under the plan the trustee is granted substantial discretion. The plan itself is voluntary and the employer, R. L. Laroche, Inc., has the right at any time to reduce benefits, discontinue contributions or terminate the plan and trust. Notification of such must be provided to the appropriate governmental agency or agencies pursuant to the Internal Revenue Service Code of 1954 and the Employee Retirement Income Security Act of 1974 (ERISA). Benefits, once vested, are sacrosanct, and the trustee is prohibited from entering into a transaction with the employer, any relative of the employer, any corporation controlled by the employer, and any officer or stockholder of the employer without first requesting a determination of legality from the U.S. Department of Labor. (See Section 6.15, p. 35/48, Advocate's exhibit #13.) In summary, the plan's very existence, investments and contributions are subject to the discretion of Ronald LaRoche, as trustee, but the exercise of that discretion is heavily regulated by the IRS and the Department of Labor. A creature of the employer corporation, the plan and trust nonetheless has a life of its own.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order and public report be issued dismissing the complaints in these consolidated cases. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 27th day of October, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-161EC The following constitute specific rulings on the findings of fact proposed by the parties. The Advocate's Proposed Findings 1 and 2. Adopted in paragraph 1. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraphs 3 and 4. Adopted in paragraph 4. Adopted in paragraphs 2 and 5. Adopted in paragraph 5. Rejected as uneccessary. Adopted in paragraph 6. 11 and 12. Adopted in paragraph 8. 13 and 14. Adopted in paragraph 10. 15 and 16. Adopted in substance in paragraph 12. 17 and 18. Adopted in paragraphs 12 and 14. 19. Adopted in paragraph 13. 20 and 21. Adopted in paragraph 15. 22. Adopted in paragraph 16. 23 - 26. Adopted in paragraph 17. 27 and 28. Adopted in paragraph 18. Rejected as unnecessary and immaterial. Adopted in substance in paragraphs 19 and 20. Rejected as unnecessary. Adopted in substance in paragraph 20. Findings of Fact proposed by Respondent Respondent's findings of fact are included in the first four pages of his "Fact, Law and Recommendation [sic] Order". They are unnumbered and mixed with argument on the issues. The proposed findings of fact are substantially those adopted by the parties by stipulation and as such have been incorporated here. Only two factual statements by Respondent need to be specifically addressed as unsupported by the weight of the evidence: He references the profit sharing plan as a separate corporation; it was not a corporation. He also dismisses LaRoche's authority over the plan as minimal; it was not, but the plan still is a separate entity. COPIES FURNISHED: Virlindia Doss, Esquire Advocate for the Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Hilliard Moldoff, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Bonnie Williams, Executive Director Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact On May 25, 1979 NFRH requested a binding letter of determination of a Development of Regional Impact status for a proposed 97-bed addition to the hospital at Gainesville, Florida (Exhibit 1). In this request NFRH suggested that the 97-bed addition was exempted by Section 380.06(15), Florida Statutes, from the other provisions of Section 380.06 and included evidence to show that NFRH was constructed prior to 1973 and had thereby obtained a vested status. Petitioner sought to intervene in that proceeding and requested a formal hearing before the BLID issued. This was denied by Respondent. In response to NFRH request for this binding letter of interpretation, Respondent, on 22 June 1979, issued the letter in the format of a final order as prescribed by Section 120.59, Florida Statutes, containing findings of fact, conclusions of law and an order that the proposed addition of 97 beds to NFRH at Gainesville did not have to comply with the review requirements of Section 380.06, Florida Statutes, applicable to developments of regional impact. Petitioner has appealed the issuance of this final order to the district court of appeal. This action to challenge the BLID as a rule was then filed.
The Issue The issues are whether Respondent Francis Thompson's interests in the pension plan are forfeited under the law, whether he should be required to repay all monies received less accumulated contributions, and whether Respondent Patricia R. Thompson's interest in the plan is forfeited upon the forfeiture of the rights of her former husband.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The City of Daytona Beach (City) is a municipal corporation created as a political subdivision of the State of Florida. Petitioner, Board of Trustees of the City of Daytona Beach Police and Fire Department Pension Fund (Board), was established by Special Act of the Legislature in 1959, as amended in 1965. The Board is responsible for administering the City's police and fire department retirement plan (plan) and paying benefits to eligible participants subject, however, to the requirements of Chapter 112, Part VII, Florida Statutes. Respondent, Francis Thompson, is a plan participant, having retired as a police officer with the City of Daytona Beach Police Department on September 24, 1994. His dates of service are from July 31, 1972, to July 30, 1977, and from June 19, 1983, to September 24, 1994. Under the terms of the plan, upon retirement, Francis Thompson was entitled to $1439.84 per month in retirement benefits. Sometime prior to his retirement, however, his marriage to Patricia R. Thompson was dissolved. As a part of the settlement between the parties, Francis Thompson agreed to transfer a portion of his benefits (48.75% had he retired on January 31, 1992), but not to exceed a total liability of $31,000.000, plus twelve percent simple interest on the unpaid balance computed from January 31, 1992. This agreement is embodied in a Domestic Relations Order entered on March 30, 1993, by the Circuit Court, in and for Volusia County, Florida. Although the City was never given notice of this proceeding nor an opportunity to participate, the order reflects that a copy of the same was served upon the plan administrator. Notwithstanding the above action, Section 10 of Sub-Part D of the City Code provides that "the right of a person to a pension . . . shall be unassignable." In other words, Francis Thompson was prohibited from assigning his plan benefits to another person. Faced with a court order which directed the City to pay a portion of the benefits to a third party, the plan administrator consulted with the City's legal counsel, who advised the adminstrator to "follow the intent" of the court's order and begin paying a portion of the benefits to the former wife. It is noted, however, that Patricia R. Thompson did not receive an interest in the plan by the court's order; rather, she obtained entitlement to a portion of the benefits of a plan member. Between September 1995 and the end of November 1997, Patricia R. Thompson has received $24,199.32 in benefits. As of the same date, Francis Thompson received a total of $55,333.18 in benefits. Based upon a belief that Francis Thompson had been convicted of a specified offense related to conduct prior to his retirement, on August 5, 1997, the Board initiated this proceeding for the purpose of terminating all of his rights and benefits under the plan and requiring him to return $42,655.20, plus all distributions, if any, made subsequent to June 1997. Because Patricia R. Thompson is now receiving a portion of her former husband's benefits, she was also named as a party. Between 1987 and 1994, Francis Thompson was evidence custodian and in charge of the evidence and property room for the City of Daytona Beach Police Department. In that position of special trust, he was responsible for keeping all weapons, drugs, moneys, and other property seized or held by the Police Department. The position of evidence custodian was a position that required the City to trust that the custodian would properly perform his responsibilities and duties. It is undisputed that during his tenure as evidence custodian, Francis Thompson removed multiple firearms from the evidence and property room and shipped them to another person in the State of Pennsylvania for personal use. The Police Department could not find any evidence that the firearms had been properly logged or recorded for removal in accordance with proper protocol. By engaging in this conduct, Respondent violated the City's trust. On June 27, 1996, Francis Thompson was convicted of multiple felony violations of the United States Code in the United States District Court, Eastern District of Pennsylvania, in Case No. 2:95CR00232-1. One of these offenses was "shipping stolen firearms in interstate commerce." Because the offense involved the commission of a theft by a public employee from his employer, it constituted a "specified offense" as defined by Sections 112.3173(2)(e)2. and 6., Florida Statutes (1997). The conviction for a specified offense calls for forfeiture of all retirement benefits under Section 112.3173(2)(e)2., Florida Statutes (1997). Finally, it is noted that the illicit activity occurred while Respondent was employed as evidence custodian with the City's Police Department. Throughout his term of employment with the City, Francis Thompson made accumulated contributions to the plan totaling $29,173.21. As of November 30, 1997, the plan administrator had distributed plan benefits in the amount of $79,532.50, or $50,359.29 more than contributions. At hearing, Respondent's present wife, Patricia B. Thompson, testified on his behalf. Her testimony was limited to a request that, due to financial and health problems incurred by her incarcerated husband, the undersigned appoint counsel on his behalf. That request was denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Trustees of the City of Daytona Beach Police and Fire Department Pension Fund enter a final order determining that Francis Thompson's interest in the plan, including past payments made and future benefits payable by the plan, less accumulated contributions shall be forfeited by the Board pursuant to law; that all persons deriving an interest through his interest in the plan, including his present and former wife shall forfeit all future payments from the plan upon the issuance of a final order; and that Francis Thompson shall pay back to the Board all payments in excess of his accumulated contributions in such manner as the Board may determine. DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1998. COPIES FURNISHED: Margaret T. Roberts, Esquire Post Office Box 832 New Smyrna Beach, Florida 32170-0832 David D. Fuller, Esquire 220 South Ridgewood Avenue Suite 210 Daytona Beach, Florida 32114 Francis Thompson Registry Number 17952-018 Eglin Air Force Base Prison Camp Post Office Box 600 Eglin Air Force Base, Florida 32542 James C. Maniak Plan Administrator City of Daytona Beach Post Office Box 2451 Daytona Beach, Florida 32115-2451
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner is an attorney licensed to practice law in Florida, and has engaged in the general practice of law in Perry, Florida, since his admission to the Bar in 1970. In January of 1975, petitioner was employed to act as the Board Attorney for the Board of County Commissioners of Lafayette County (the Board). Each January thereafter, the Board has reemployed petitioner as its Board attorney for the next calendar year, "providing his services remain satisfactory to the Board." Petitioner receives his annual salary, which is paid from the Board's regular salary account, on a monthly basis, as do regular County employees. He has received increases in his salary throughout his years of employment, and his raises have been in proportion to raises for other County employees. Petitioner is covered by the Board's unemployment and worker's compensation protection policies, as are other Board employees, and contributions to the Florida Retirement System (FRS) are made on his behalf by the Board. He does not receive annual leave, sick leave, or pay during vacation, holidays, or illnesses. He does not maintain time records in connection with his annual retainer or salary, but he is reimbursed for his travel expenses. In addition to his regular duties as described below, petitioner handles all litigation by or against the Board. For this service, which is outside the scope of his annual retainer, petitioner is compensated at an additional hourly fee. There is no written employment contract between the petitioner and the Board which specifies the legal services to be performed by the petitioner for the Board. Petitioner is expected to and does attend the Board's monthly meeting and is also available by telephone for consultation with the Clerk of the Circuit Court and the Board members regarding legal issues and opinions. He occasionally is requested to attend special meetings of the Board. The monthly meeting occurs on the first Monday of the month and generally lasts most of the day. Petitioner advises the Board on legal matters and prepares all resolutions, ordinances, and deeds for the Board. Petitioner's law office is located in Perry and the Board's headquarters are at the courthouse in Mayo, Florida. Petitioner has no office, no equipment, and no personnel at the Lafayette County Courthouse. While he does not hire, fire, or supervise any employees of the Board, he is permitted to and does utilize the Board's personnel, equipment, telephones, and facilities to assist him in performing legal services for the Board. He also utilizes the personnel, equipment, and facilities of his private law office in Perry to perform legal services for the Board and is not paid additional compensation for their use. Most legal papers and pleadings are prepared at his private law offices. Petitioner is not required to maintain any regular or specified office hours. Petitioner has been continuously enrolled in the FRS as an employee since 1975. No review of his actual employment status occurred until 1984. By a May 6, 1984 letter from the Division of Retirement, petitioner was advised that his enrollment was not proper and that he would be removed as a member as of July 1, 1979. At the hearing, the respondent Division modified its position and currently seeks petitioner's removal as a member of the FRS as of May 16, 1984.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner, as the Board Attorney for the Board of County Commissioners of Lafayette County, be deemed a professional person filling a temporary position, and therefore ineligible to participate in the Florida Retirement System subsequent to May 16, 1984. Respectfully submitted and entered this 6th day of March, 1985, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1985. COPIES FURNISHED: Edward B. Browning, Jr. Davis, Browning & Hardee P.O. Drawer 652 Madison, Fla. 32340 A.J. McMullian III Director Division of Retirement Cedars Executive Center Building C Tallahassee, Fla. 32303 Stanley M. Danek Assistant Division Attorney Cedars Executive Center 2639 North Monroe St. Suite 207 - Building C Tallahassee, Fla. 32303
The Issue The issue to be determined is whether Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from a prior consolidated action before ALJ F. Scott Boyd, DOAH Case Nos. 16-3298 and 16-3302, pursuant to section 185.05, Florida Statutes. Before the final hearing, the parties stipulated to an amount of reasonable prevailing party attorney’s fees and costs if the undersigned determines that Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from that prior action before ALJ Boyd.
Findings Of Fact The City of Coral Springs is a municipality in Broward County, Florida. It exercises broad power pursuant to article VIII, section 2 of the Florida Constitution, and the Municipal Home Rule Powers Act, chapter 166, Florida Statutes. The City Commission of the City of Coral Springs (“Commission”) may create other offices, boards, or commissions to administer the affairs of the city and may grant them powers and duties. The Commission has adopted the Coral Springs Police Officers’ Pension Plan (“the Plan”), which is amended from time to time by ordinance and is set forth in sections 13-5 through 13-17 of the Code of Ordinances of the City of Coral Springs. The Plan is administered by the City of Coral Springs Police Officers’ Pension Fund Board of Trustees (“Board”), the powers of which are set forth in sections 13-13 through 13-15 of the Code of Ordinances of the City of Coral Springs. The Plan is a local-law defined pension plan created pursuant to chapter 185. In February 2016, the Board adopted a policy to allow for the suspension of pension benefits of members who were charged with crimes specified at section 112.3173, Florida Statutes, and whose benefit payments had equaled or exceeded their contributions to the Plan. The Williamses are retired police officers whose pension benefits had fully vested at the time of the enactment of the aforementioned suspension policy. In February 2016, the Board sought to suspend Petitioners’ benefits under the newly-adopted policy because Petitioners had been charged with crimes specified in section 112.3173 and the benefit payments made to them had exceeded their contributions to the plan. Petitioners requested a formal hearing to challenge the authority of the Board to adopt the suspension policy. Petitioners’ benefits were never suspended at any time during the pendency of this suspension matter. The Board contracted with DOAH to conduct the formal hearing under the authority of section 120.65(6), Florida Statutes. DOAH assigned ALJ Boyd to the prior consolidated action, who issued pre-hearing instructions requiring a statement of all issues. The issue of attorney’s fees was not included by the parties. ALJ Boyd conducted the formal hearing on September 30, 2016, and October 10, 2016. On November 18, 2016, ALJ Boyd issued a Recommended Order finding that the Board did not have the authority to adopt the policy nor apply it to Petitioners. The Recommended Order made no mention of awarding attorney’s fees or costs. Nether Petitioners nor the Board filed exceptions to the Recommended Order. Petitioners raised the issue of fees in a letter to the Board dated December 2, 2016. Counsel for Petitioners appeared at a hearing held before the Board in December 2016 and sought fees as set forth in the December 2, 2016, letter. The Board adopted ALJ Boyd’s Recommended Order in toto on January 3, 2017. The Board also denied Petitioners’ request for a hearing regarding an award of attorney’s fees. On January 13, 2017, Petitioners sought an award of attorney’s fees by filing with DOAH a Verified Motion for Prevailing Party Attorney’s Fees and Costs. On March 1, 2017, ALJ Boyd entered an Order dismissing Petitioners’ motion for fees, stating he lacked jurisdiction to hear the issue of fees. That Order was not appealed. Prior to the final hearing in this matter, Petitioners successfully petitioned the Seventeenth Judicial Circuit Court to compel the Board to grant them a hearing on entitlement to the fees and to quash the Order denying fees for violation of due process. Petitioners then successfully defended an appeal of that Order by the Board to the Fourth District Court of Appeal and a motion for rehearing thereon. Petitioners are not seeking fees for these extraordinary writ actions as these efforts do not fall under chapters 185 or 120. The parties stipulated that “the Williamses prevailed in challenging the Board’s authority to create a policy suspending the benefits.” The Board never applied its proposed suspension policy to Petitioners. Petitioners continue to receive their benefits to this day. Criminal charges against Petitioners remained pending at the time of the hearing in this matter. Petitioners are only seeking entitlement here to an attorney’s fee and costs award for their successful challenge of the suspension policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioners’ request for prevailing party attorney’s fees and costs. DONE AND ENTERED this 19th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2021. Brandon J. Hechtman, Esquire Wicker, Smith, O’Hara, McCoy & Ford, P.A. 2800 Ponce de Leon Boulevard, Suite 800 Coral Gables, Florida 33134 Pedro Herrera, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Bonni Spatara Jensen, Esquire Klausner, Kaufman, Jensen & Levinson 7080 Northwest 4th Street Plantation, Florida 33317 Kenneth R. Harrison, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Gina Orlando, Administrator City of Coral Springs Police Officers’ Pension Fund 9551 West Sample Road Coral Springs, Florida 33065
Findings Of Fact The Petitioner, Linda S. Powell, began her original employment associated with Orange County on February 19, 1975. The period from February 19, 1975, to July 1, 1980, is 5 years, 4.4 months. In order to be entitled to disability benefits under the Florida Retirement System (FRS), Ms. Powell must have completed five years of creditable service with the County on or before July 1, 1980. The period from February 19, 1975, through September 7, 1975, equals approximately 6.4 months. It is this 6.4 months which is at issue in this case because the Respondent, Department of Administration, Division of Retirement, maintains that Ms. Powell was ineligible for creditable service because she was a temporary CETA employee. If the 6.4 months of CETA employment is deducted from the 5 years 4.4 months of total service before July 1, 1980, Ms. Powell has 4 years 10 months of creditable service, 2 months short of the 5-year requirement. Ms. Powell began employment with the Orange County Board of County Commissioners on February 19, 1975, as a keypunch operator under the CETA Program. At this time, and for several months prior to her beginning employment, Orange County had been operating under a federally subsidized program known as the Comprehensive Education and Training Act (CETA), which was operated by Orange County under two separate programs known as Title I and Title II. Title I was an on-the-job training program which provided employment positions to individuals in addition to the regular employment positions already maintained by the County. These individuals were brought on the regular payroll of the County and were given full benefits, including retirement and social security. Approximately 20 to 25 individuals took part in this program. In the latter part of 1974, the CETA Title II program was begun by the County. This program was for certain identifiable population groups of unemployment within the County. Individuals hired under Title II were put on the regular County payroll, and the County would submit a bill to CETA for payment of the individual's salary and benefit, which included retirement (FRS) and social security. In February 1975, the CETA Title VI program was implemented by Act of Congress. Title VI was a federal emergency employment measure designed to get people into productive job situations and to provide an immediate salary payment. In implementing Title VI, the County determined that no fringe benefits, including social security and retirement, would be paid for these individuals, since this method would allow approximately 20 percent more individuals to be hired in the program. The County determined that individuals in the Title VI program were to be temporary employees of the County. Individuals were further notified on the first day of employment during an orientation session that they were temporary employees and would receive no fringe benefits. Petitioner signed a statement on her first day of employment that she understood that she was placed in a federally funded program and had no assurance of continued employment at the end of the funding for such program. (Respondent's Exhibit 1). CETA Title VI funds were placed in a special, separate bank account by the County, and from this account the County would pay salary to Title VI individuals and other bills such as equipment and supplies purchased. This account was not a regular payroll account. Upon payment of Title VI individuals, the County would then invoice the federal CETA office for the salaries paid and receive reimbursement. Employees who worked under Title VI performed work in nonprofit agencies, such as United Nay, as well as work for the County. Petitioner continued to be an employee under CETA Title VI from February 19, 1975, to September 7, 1975, at which time she was transferred from CETA Title VI to CETA Title II and placed in a regularly established position. (Respondent's Exhibit 2). At this time, an employment history file was begun on the Petitioner, and said file reflected a service date of September 7, 1975. In addition, an "employee change notice" was completed on Petitioner, signifying a transfer from CETA Title VI to permanent status. (Respondent's Exhibit 3). The County began payment of retirement contributions on Ms. Powell in September 1975, as reflected by the certification of earnings provided by the County to Respondent. Ms. Powell filed an application for disability retirement benefits on April 5, 1983. (Petitioner's Exhibit 1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Linda S. Powell be denied service credit for her employment under CETA from February 19, 1975, to September 7, 1975. Said service is not creditable under the Florida Retirement System. DONE and ENTERED this 9th day of May, 1984, in Tallahassee, Leon County, Florida. Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 9th day of May, 1984. COPIES FURNISHED: Terry C. Young, Esquire 109 East Church Street, Suite 301 Post Office Box 2631 Orlando, Florida 32802 Stanley M. Danek, Esquire Division of Retirement 2639 North Monroe Street, Suite 207-C, Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
