BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re LINDA CHAPIN,
DOAH Case No. 91-7002EC
Respondent. Complaint No. 91-63
Final
Order No. COE 92-13
__________________________/
FINAL ORDER AWARDING
ATTORNEY'S FEES
This matter came before the Commission on Ethics on the Recommended
Order rendered in this matter on May 11, 1992 by the Division of Administrative
Hearings (a copy of which is attached and incorporated by reference). The Hearing Officer recommends that the
Commission enter a Final Order dismissing the petition for attorney's fees and
costs. Respondent/Petitioner, Linda
Chapin, filed exceptions. At the
Commission's final consideration of this matter, the Respondent/Petitioner requested
that any award be for attorney's fees in the amount of $7,980.
Having reviewed the Recommended Order, the exceptions, and the record of
the public hearing of this petition, having considered the arguments of counsel
for the Respondent/Petitioner, the arguments of Respondent/Petitioner, and the
arguments of the Complainant/Respondent, Marvin Couch, the Commission makes the
following findings, conclusions, rulings, and determinations:
Rulings on Exceptions
1. The Respondent/Petitioner
excepts to a portion of the Hearing Officer's finding of fact numbered
"39" which states that the Respondent/Petitioner made no request for
representation of her by the Orange County Attorney's Office regarding the
ethics complaint filed against her by the Complainant/Respondent, arguing that
such finding is not supported by the evidence.
In addition, the Respondent/Petitioner submits that such finding should
be rejected and that the Commission make a finding of fact to the effect that
the Respondent/Petitioner did request such representation.
The exception is granted in part and the finding by the Hearing Officer
that the Respondent/Petitioner made no request for representation of her by the
Orange County Attorney's Office on the ethics complaint is stricken, because
the record does not contain competent substantial evidence to support that
finding. The exception is rejected in
part and the proposed finding that the Respondent/Petitioner did request such
representation is rejected, because the record does not contain competent
substantial evidence to support such a finding; the record citations offered by
the Respondent/Petitioner to support her proposed finding are hearsay not
within any exception to the hearsay rule.
Further, neither the portion of the Hearing Officer's finding to which
the Respondent/Petitioner excepts nor the proposed finding of the
Respondent/Petitioner are relevant to the material issues presented in this
matter.
2. The Respondent/Petitioner
excepts to the Hearing Officer's conclusion of law which begins with the first
full paragraph on page 21 of the Recommended Order and excepts to the balance
of the Recommended Order appearing thereafter, arguing that the Hearing Officer
erred in concluding that Section 112.317(8), Florida Statutes, only provides
for an award of attorney's fees in situations where the person complained
against personally contracts for representation with a private attorney or
actually pays fees from his or her own pocket.
This exception is granted in that the conclusion of law of the Hearing
Officer which begins with the first full paragraph on page 21 of the
Recommended Order and which ends with last full paragraph on page 22 of the
Recommended Order is rejected, and, in substitution therefor, the Commission
concludes that Section 112.317(8) does provide for an award of attorney's fees
against a complainant when the respondent was represented by counsel of her
public agency, as was Respondent/Petitioner, and is not limited to situations
in which a respondent contracts personally and directly with a private attorney
for representation or pays fees from her own pocket.
The Legislature intended, in enacting Chapter 75-208, Laws of Florida,
which is codified at Section 112.317(8), Florida Statutes (the costs and
attorney's fee provision at issue here), to punish persons who make malicious
and baseless ethics complaints, such as that found by the Hearing Officer and
this Commission to have been made by Mr.
Couch against Ms. Chapin, and
thereby intended to deter similar conduct.
The Hearing Officer adheres unduly to what he considers to be the strict
language of the provision and focuses on the phrase "incurred by the
person complained against" in coming to his conclusion and recommendation
that costs and attorney's fees should not be awarded. However, it is a fundamental rule of statutory construction that
legislative intent is the polestar by which a body must be guided in
determining the meaning of a statute, and this intent must be given effect even
though it may contradict the strict letter of the statute. Furthermore, construction of a statute which
would lead to an absurd or unreasonable result or would render a statute
purposeless should be avoided. To
determine legislative intent, the act as a whole--the evil to be corrected, the
language of the act, including its title, the history of its enactment, and the
state of the law already in existence bearing on the subject--must be
considered. The Florida Supreme Court
said as much in State v. Webb, a 1981
case found at 398 So.2d 820, wherein the Court, in reviewing a criminal
conviction, construed the Florida Stop and Frisk Law to require that a law
enforcement officer have only "reasonable suspicion" to detain a
suspect, in spite of the Law requiring by its express terms that the officer
possess "probable cause" (a stricter standard than reasonable
suspicion) in order to validly effect such a detention. Similarly, the origins and purposes of the
attorney's fee provision at issue point toward a construction of the provision
contrary to the one placed upon it by the Hearing Officer and one which would
fulfill the urposes of the provision--to punish and deter those who would abuse
the Code of Ethics.
In addition, since the right of a public officer or employee to be
represented by agency counsel in situations such as that encountered by the
Respondent/Petitioner, Linda Chapin, pursuant to the filing of the ethics
complaint against her had not been clearly established by Florida caselaw at
the time of the enactment of the attorney's fee provision at issue, it is
reasonable to conclude that the phrase "incurred by the person complained
against" was not chosen in order to limit the award to only those cases in
which an official personally paid funds from his or her own pocket, rather than
where the agency was providing the representation.
Further, the meaning of the term "incur" encompasses
situations such as that of the Respondent, Ms. Chapin, and is not limited to
situations where a Respondent directly
pays fees from his or her own pocket to an attorney.
Findings of Fact
The Findings of Fact set forth in the Recommended Order are approved,
adopted, and incorporated herein by reference except as modified above.
Conclusions of Law
1. The Conclusions of Law set
forth in the Recommended Order are approved, adopted, and incorporated herein
by reference except as modified above.
2. Accordingly, the Commission
on Ethics determines that the Complainant/Respondent, Marvin Couch, filed an
ethics complaint which was frivolous and without basis in law or fact, against
the Respondent/Petitioner, Linda Chapin, a public officer or employee, with a
malicious intent to injure the reputation of the Respondent/Petitioner, and
that the Complainant/Respondent is therefore liable for attorneys' fees
incurred, as described herein.
WHEREFORE, pursuant to Section 112.317(8), Florida Statutes, the Commission on Ethics determines that the
Complainant/Respondent, Marvin Couch, is liable for attorney's fees in the
amount of $7,980. Said fees in said
amount to be paid to Orange County, Florida.
ORDERED by the State of Florida Commission on Ethics meeting in public
session on Friday, July 17, 1992.
July 22, 1992
Date Rendered
_________________________
Stephen N. Zack
Chairman
YOU ARE NOTIFIED THAT YOU ARE
ENTITLED, PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF
AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY
FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF
APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE
PROCEDURE. THE NOTICE OF ADMINISTRATIVE
APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
cc:
Mr. Marvin Couch, Complainant/Respondent
Ms. Linda Chapin, Respondent/Petitioner
Division of Administrative Hearings
Joseph L. Passiatore, Esquire
Stuart R. Michelson,
Attorney for Steven B. Feren, Amicus Curiae