STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LINDA CHAPIN, )
vs. ) CASE NO. 91-7002EC
) COMPLAINT NO. 91-63
MARVIN COUCH, )
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 11, 1992, in Orlando, Florida.
For Petitioner: Joseph L. Passiatore
Assistant Orange County Attorney
Orange County Administration Center
Post Office Box 1393
Orlando, Florida 32802-1393
For Respondent: William J. McLeod, Esquire
McLeod, McLeod & McLeod, P.A.
Post Office Drawer 950
48 E. Main Street
Apopka, Florida 32703
STATEMENT OF THE ISSUES
Whether Marvin Couch, the Respondent, should be required to pay attorney's fees and costs to Linda Chapin, the Petitioner, pursuant to Section 112.317(8), Florida Statutes?
On or about May 13, 1991, a Complaint was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). The Complaint was filed by the Respondent, Marvin Couch, and contained allegations of misconduct by Linda Chapin, the Petitioner in this case. After a review of the Complaint against Ms. Chapin, the Commission dismissed the Complaint.
On or about October 15, 1991, Ms. Chapin filed a pleading titled "Respondent Linda W. Chapin's Petition for Attorney's Fees and Costs" with the Commission. A copy of the Petition was sent to Mr. Couch by letter dated October 16, 1991.
By letter dated October 31, 1991, the Commission referred this matter to the Division of Administrative Hearings and, in accordance with Rule 34-5.029, Florida Administrative Code, requested that a hearing be conducted by the Division of Administrative Hearings.
Prior to the final hearing the parties each filed a Prehearing Statement. The parties stipulated to certain facts set out in their Prehearing Statements. Those facts have been accepted in this Recommended Order and have been identified as "Stipulated Facts".
At the formal hearing Ms. Chapin presented the testimony of Joseph A. Berenis, Mr. Couch, Douglas Guetzloe, Thomas J. Wilkes, Joseph Passiatore and Harry Stewart. Ms. Chapin also offered thirteen exhibits which were accepted into evidence. Mr. Couch testified on his own behalf. Mr. Couch offered no exhibits.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
In Mr. Couch's proposed recommended order it has been suggested that Mr. Couch is entitled to an award of attorney's fees in this matter pursuant to Section 57.105(2), Florida Statutes. Section 57.105(2), Florida Statutes, has no application in this proceeding.
FINDINGS OF FACT
A. Linda Chapin's Public Office.
1. Linda Chapin was elected to the Orange County Commission in November, 1990.
2. Ms. Chapin ran for office as a Democrat.
3. At all times relevant to this proceeding, Ms. Chapin served as Chairman of the Orange County Commission.
4. Ms. Chapin was sworn in as a member of the Orlando-Orange County Expressway Authority (hereinafter referred to as the "Authority") on December 19, 1990.
5. Ms. Chapin was automatically considered to be an ex-officio member of the Authority due to her position as Chairman of the Orange County Commission.
B. Ms. Chapin's Treatment of Her Son's Employment with
6. In a letter dated December 18, 1990, Ms. Chapin informed the Chairman of the Authority that her son, Andrew Chapin, was employed by Greiner Engineering (hereinafter referred to as "Greiner"), as a project coordinator on the "Central Connector Interchange at I-4", a project of the Authority.
7. In the December 18, 1990, letter to the Chairman of the Authority Ms. Chapin informed the Chairman that she had requested an opinion of the Orange County Attorney as to whether her son's employment and her public office might create any conflict of interest. A copy of an opinion from Harry A. Stewart, then Orange County Attorney, indicating no conflict of interest, was attached to the letter.
8. The December 18, 1990, letter and the opinion of the Orange County Attorney were provided to the Authority at the meeting of the Authority held on December 19, 1990.
9. Approval of Greiner for the project referenced by Ms. Chapin in her December 18, 1990, letter to the Chairman of the Authority had been approved by the Authority at an August 22, 1990, meeting of the Authority. Greiner was therefore approved by the Authority before Ms. Chapin was elected to the Orange County Commission and before she became an ex-officio member of the Authority. (Stipulated Fact).
10. Ms. Chapin did not vote to retain the services of Greiner while sitting as a member of the Authority between December 19, 1990, and May 22, 1991 or at any other time. (Stipulated Fact).
11. Ms. Chapin has voted on the payment of invoices submitted by Greiner to the Authority. (Stipulated Fact).
12. Andrew Chapin was an employee of Greiner. Andrew Chapin did not, however, hold any position of control of Greiner. Nor did he own a material interest in Greiner.
C. The May 9, 1991, Newspaper Article.
13. On May 9, 1991, an article was printed in The Orlando Sentinel (hereinafter referred to as the "May 9th Article"). (Stipulated Fact). The article was printed under the title "Pignone's interest in connector questioned." The article, as the title suggests, discussed whether another member of the Orange County Commission, Fran Pignone, had a conflict of interest with an Orange County road project.
14. The May 9th Article included the following statement concerning Ms. Chapin:
And Chapin noted in her letter that she
tries to "tread very carefully" because she
sits on the agency proposing to build the
road and her son Andrew works for an
engineering firm that is designing one of the
15. Mr. Couch read the May 9th Article. Based upon the May 9th Article, Mr. Couch believed that Ms. Chapin may have been involved in some impropriety as a member of the Authority. (Stipulated Fact).
D. Mr. Couch's Ethics Complaint.
16. After reading the May 9th Article, Mr. Couch telephoned the Florida Commission on Ethics and requested complaint forms.
17. On May 13, 1991, Mr. Couch filed a Complaint against Ms. Chapin (hereinafter referred to as the "Complaint") with the Florida Commission on Ethics. (Stipulated Fact). The Complaint contained the following allegations:
Chairman Chapin violated Part III, Chapter
112, Florida Statutes by serving on the
Orlando/Orange County Expressway Authority
and voting to retain the services of an
engineering company that employs her son as
admitted by Chairman Chapin in Orlando Sentinel
dated week of May 6-10th.
18. The allegations in the Complaint were based solely upon the information contained in the May 9th Article. In particular, Mr. Couch relied upon the paragraph of the May 9th Article quoted in finding of fact 14.
19. The May 9th Article does not support the allegations contained in the Complaint. The May 9th Article does not indicate that Ms. Chapin voted to retain Greiner. The May 9th Article suggests just the opposite. It is stated in the article that Ms. Chapin "tries to 'tread very carefully' . . ." because of her son's work for Greiner.
20. At the time the Complaint was filed, Mr. Couch did not know when Ms. Chapin had become a member of the Authority or when Greiner was retained by the Authority. (Stipulated Fact).
21. Although Mr. Couch was aware generally of when Ms. Chapin was elected to the Orange County Commission, Mr. Couch was unaware at the time he filed the Complaint when Greiner had been retained by the Authority.
22. Mr. Couch made no effort to obtain information to substantiate his Complaint other than the May 9th Article. (Stipulated Fact).
E. Mr. Couch's Press Release.
23. Simultaneously with the filing of the Complaint, a document (hereinafter referred to as the "Press Release") was provided to several radio and television stations in Orange County, weekly newspapers and The Orlando Sentinel:
a. At the top of the Press Release, the following heading appeared: "Orange County Republican Executive Committee". The heading was followed by an address and telephone number.
b. It was indicated that Mr. Couch should be contacted "for further information" and his telephone number was listed.
c. The Press Release was titled "Republican Party Files Ethics Complaints Against Chapin/Pignone."
d. The Press Release indicated that Mr. Couch had filed complaints with the Florida Commission on Ethics against Ms. Chapin (and Ms. Pignone) and indicated:
Orange County Chairman Linda Chapin is being
charged with violating the Government in the
Sunshine law by meeting with fellow Commissioner
Fran Pignone privately and allegedly
discussing county business and by serving on
the Orlando/Orange County Expressway Authority
and voting to retain the services of an
engineering company that employs her son.
e. The Press Release contained the following quoted statements from Mr. Couch:
"These commissioners have betrayed the public
trust by meeting behind closed doors without
the benefit of their having either the public
or the press present to protect our interests,"
stated Couch. "Linda Chapin voting for the
firm that employs her son represents the very
worst type of backroom, financial impropriety
I have seen in some time," Couch continued.
"We need a full and public investigation of
these activities," Couch concluded.
24. Although Mr. Couch appeared to have a difficult time during the final hearing remembering how the Press Release came into being, his deposition testimony and other evidence during the final hearing indicates that he created the first draft of the Press Release on a personal computer.
25. The Press Release was then provided to a public relations consultant and political ally, Douglas M. Guetzloe, of Advantage Consultants, Inc. Mr. Guetzloe finalized and ultimately distributed the Press Release.
26. The precise quotes from Mr. Couch contained in the Press Release were created by Mr. Guetzloe but were based upon general comments from Mr. Couch and were ultimately approved by Mr. Couch.
27. The Press Release was prepared at the request, direction and with the approval of Mr. Couch.
28. Mr. Couch was provided a copy of the Press Release for review before it was distributed. Mr. Couch approved the Press Release or it would not have been distributed.
29. Mr. Couch directed that his name and telephone number be included on the Press Release.
30. Mr. Couch also disclosed the filing of the Complaint with television stations (Channels 2, 6 and 9) in Orange County, radio station WDBO and The Orlando Sentinel.
F. Mr. Couch's Purpose in Filing the Complaint.
31. Mr. Couch testified that he filed the Complaint against Ms. Chapin because he was a concerned citizen who just wanted the proper authorities to check out Ms. Chapin's actions with regard to Greiner and determine if there were any improprieties. This testimony is not credible.
32. Mr. Couch is the Chairman of the Republican Executive Committee in Orange County. He was elected to that position in February, 1991. Mr. Couch has been a member of the Republican Executive Committee since 1988.
33. As characterized by Mr. Guetzloe, Mr. Couch was playing "adversarial politics". Mr. Couch, a Republican, filed the Complaint and issued the Press Release in an effort to criticize a member of the opposition party, a Democrat. Mr. Couch used the Commission for his political purposes, charging Ms. Chapin had committed a violation of Florida law, when there was no basis for his allegations.
34. Mr. Couch was motivated because of his belief that Ms. Chapin was "getting too big for her britches". He believed that "something had to be done about it."
35. Mr. Couch's actions evidenced a malicious intent to injure the reputation of Ms. Chapin.
36. The Complaint was frivolous and without basis in law or fact.
G. Legal Representation of Ms. Chapin and Disposition
of the Complaint.
37. The Orange County Attorney's office represented Ms. Chapin before the Commission. There was no written agreement between Ms. Chapin and Orange County concerning her representation by the Orange County Attorney.
38. Mr. Wilkes, the Orange County Attorney at the time the Complaint was filed, determined that the charges against Ms. Chapin in the Complaint arose out of her position on the Orange County Commission. Mr. Wilkes made this determination based upon the fact that Ms. Chapin served on the Authority by virtue of Section 348.753, Florida Statutes, which provides that the Chairman of the Orange County Commission will serve as an ex officio member of the Authority. Mr. Wilkes also concluded that the actions complained of in the Complaint were actions which would have been taken in Ms. Chapin's official position.
39. Based upon the conclusions described in finding of fact 38, Mr. Wilkes concluded that Ms. Chapin was entitled to representation by his office pursuant to Section 706 of the Orange County Code. Ms. Chapin made no request for this representation. Mr. Wilkes' conclusion was reasonable and, although Mr. Couch has questioned the propriety of Orange County providing representation for Ms. Chapin, the evidence on this question was unrefuted.
40. On or about July 16, 1991, after Ms. Chapin received a copy of the Complaint, a Motion for Summary Judgment and Attorney Fees was prepared and filed with the Commission by the Orange County Attorney's Office.
41. On September 18, 1991, the Commission entered a Public Report and Order Dismissing Complaint. Pursuant to this Order the Complaint was determined to be legally deficient and was dismissed.
42. A Petition for Attorney's Fees and Costs dated October 14, 1991, was filed by the Orange County Attorney's Office on behalf of Ms. Chapin.
H. Cost and Attorney's Fees Incurred.
43. The Orange County Attorney at the time, Thomas J. Wilkes, and Joseph L. Passiatore, an Assistant Orange County Attorney, represented Ms. Chapin before the Commission.
44. Ms. Chapin's attorneys performed research (factual and legal), reviewed and initiated correspondence, reviewed orders of the Commission, took the deposition of Mr. Couch and prepared and participated in the final hearing of this matter.
45. Mr. Wilkes invested 22.9 hours through October 14, 1991, and 1 hour subsequent to October 14, 1991, representing Ms. Chapin in this matter.
46. Through September 20, 1991, the date the order dismissing the Complaint was received, Mr. Passiatore invested 25 hours representing Ms. Chapin in this matter.
47. Subsequent to September 20, 1991, Mr. Passiatore spent 20.5 hours through January 6, 1992, representing Ms. Chapin in this matter (preparing a draft of the Petition, conducting discovery and preparing for the final hearing of this case).
48. Between January 6, 1992, and the date of the final hearing of this case, Mr. Passiatore spent 20 hours preparing for the final hearing.
49. Ms. Chapin is seeking reimbursement for 22.9 hours of Mr. Wilkes' services and 45.5 hours of Mr. Passiatore's services. The 22.9 hours spent by Mr. Wilkes and the 45.5 hours spent by Mr. Passiatore in the defense of Ms. Chapin constituted reasonable amounts of time.
50. Motions for summary judgement are neither specifically authorized by the Commission's rules nor prohibited. The filing of the motion for summary judgement was, however, prudent and reasonable in light of the frivolous nature of the Complaint and the potential harm to Ms. Chapin's reputation caused by the issuance of the Press Release.
51. A reasonable hourly rate for Mr. Wilkes' and Mr. Passiatore's services to Ms. Chapin is $175.00 per hour.
52. Based upon an hourly rate of $175.00 per hour, the 22.9 hours invested by Mr. Wilkes and the 45.5 hours invested by Mr. Passiatore would result in total attorney's fees of $11,970.00.
53. Mr. Wilkes and Mr. Passiatore were not paid $175.00 an hour for their services. They received their normal salaries as the Orange County Attorney and an Assistant Orange County Attorney, respectively.
54. Mr. Wilkes and Mr. Passiatore were paid their salaries during the time that they represented Ms. Chapin, and all costs associated with this matter were paid, out of the Orange County General Fund. Any recovery of attorney's fees and costs in this case will deposited in the Orange County General Fund.
55. The evidence failed to prove what Mr. Wilkes' and Mr. Passiatore's salaries were.
56. As of February 11, 1992, reasonable costs of $661.90 had been incurred by the Orange County Attorney's Office in defense of Ms. Chapin.
57. If Ms. Chapin had been determined to have violated the law as alleged in the Complaint, she would have been required to reimburse Orange County for the cost incurred by Orange County in defending her.
58. The evidence failed to prove that, at the time of the final hearing of this matter, Ms. Chapin was liable for or subject to any amount of attorney's fees or costs.
CONCLUSIONS OF LAW
59. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).
B. Burden of Proof.
60. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino V. Department of Health and Rehabilitative Services, 348 So.2d 249 (Fla. 1st DCA 1977). In this proceeding it is Ms. Chapin that is asserting the affirmative. Therefore, the burden of proving that Mr. Couch should be required to pay attorney's fees and costs, and the amount thereof, was on Ms. Chapin. See Rule 34-5.029(3), Florida Administrative Code.
C. Constitutional Issues.
61. The Respondent has cited several constitutional provisions in a pleading titled "Respondent's Closing Argument." It does not appear that the Respondent is asserting that imposition of attorney's fees and costs pursuant to Section 112.317(8), Florida Statutes, would violate these constitutional provisions. It is noted, however, that if the Respondent is asserting that imposition of attorney's fees and costs may constitute any constitutional violation, the undersigned has no jurisdiction over such an issue. Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund, 427 So.2d 153 (Fla. 1982); Long v. Department of Administration, 428 So.2d 688 (Fla. 1st DCA 1983); and Cook v. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).
D. The Requirements of Section 112.317(8), Florida
62. Section 112.317(8), Florida Statutes, authorizes the Commission to award attorney's fees and costs to any person complained against:
(8) In any case in which the commission
determines that a person has filed a complaint
against a public officer or employee with a
malicious intent to injure the reputation or
such officer or employee and in which such
complaint is found to be frivolous and without
basis in law or fact, the complainant shall
be liable for costs plus reasonable attorney's
fees incurred by the person complained against
. . . .
See also Rule 34-5.029, Florida Administrative Code. In order to be entitled to payment for attorney's fees and costs it must be proved: (1) that the complaint was made with a malicious intent to injure the reputation of the public officer or employee; and (2) that the complaint was frivolous and without basis in law or fact. If these two facts are proved to exist, an award of reasonable attorney's fees and costs "incurred by the person complained against" is to be ordered.
63. The Complaint was made with a malicious intent to injure Ms. Chapin's reputation. In determining whether a complaint has been filed with malicious intent, Rule 34-5.029(3), Florida Administrative Code, provides the following:
. . . . "Malicious intent to injure the
reputation" may be proven by evidence showing
ill will or hostility as well as by evidence
showing that the complainant intended to bring
discredit upon the name or character of the
respondent by filing such complaint with
knowledge that the complaint contained one
or more false allegations or with reckless
disregard for whether the complaint contained
false allegations of fact material to a
violation of the Code of Ethics for Public
Officers and Employees. Such reckless
disregard exists where the complainant
entertained serious doubts as to the truth or
falsity of the allegations, where the
complainant imagined or fabricated the
allegations, or where the complainant filed
an unverified anonymous tip or where there
are obvious reasons to doubt the veracity of
the information or that of the source of the
information. [Emphasis added].
64. The evidence in this case proved that the allegations against Ms. Chapin written in the Complaint by Mr. Couch were not supported by anything other than Mr. Couch's imagination and conjecture. There was no information in the May 9th Article, the sole basis for filing the Complaint, that supports Mr. Couch's assertion that Ms. Chapin was guilty of "voting to retain the services of an engineering company that employs her son . . . ." Nor was there any basis for Mr. Couch's allegation that this violation had been "admitted by Chairman Chapin in Orlando Sentinel dated week of May 6-10th." These allegations were mere speculation on the part of Mr. Couch. Mr. Couch made no effort to determine if there was any truth to his conjecture.
65. Mr. Couch also had no information which would support his conclusion that, had Ms. Chapin in fact voted to retain Greiner, her action constituted a violation of the Ethics Code or any other Florida law. In fact, Mr. Couch had no knowledge of Andrew Chapin's position with Greiner or whether a law existed which prohibited Ms. Chapin from voting on matters concerning Greiner because of her son's position with Greiner.
66. Mr. Couch's actions in causing the Press Release to be distributed support a conclusion that Mr. Couch was interested in damaging Ms. Chapin's reputation. Mr. Couch's actions were not the actions of a person merely trying to get the appropriate authorities to look into the matter to determine whether a violation occurred. If that were Mr. Couch's only intent, the filing of the Complaint would have been sufficient to accomplish his alleged goal. Reporting the false violations of law of Ms. Chapin to the press could only serve to damage Ms. Chapin's reputation. Mr. Couch wanted to discredit Ms. Chapin's political reputation and to embarrass her. That was his motive in this matter and constituted malicious intent.
67. The Complaint was frivolous and without basis in law or fact. The evidence proved that the specific acts alleged by Mr. Couch did not occur. Ms. Chapin did not vote to retain the services of Greiner. The evidence also proved that there was nothing upon which Mr. Couch could have relied to support his allegations against Ms. Chapin. Finally, the evidence proved that Andrew Chapin's position at Greiner was not such that Ms. Chapin would have violated Chapter 112, Florida Statutes, even if she had voted to retain Greiner's services. Therefore, the allegations raised by Mr. Couch were frivolous and without any basis in law or fact.
Mr. Couch's Arguments.
68. Mr. Couch has suggested that no fees or costs should be assessed against him for a number of reasons. First, it has been argued that a finding that Mr. Couch's actions were malicious would:
. . . establish a very dangerous precedent
that would operate to dilute and chill one of
the citizens' most fundamental rights, to
petition the government for redress of
grievances. A citizen would have to go to
great expense in time and money and making
himself familiar with Time v. Sullivan
(citations omitted) before filing his
complaint. Such a requirement would be an
impermissible restriction on the citizens'
right to petition their government for
redress and would be highly dangerous to our
representative form of government.
A similar argument was made and rejected in Wright v. Acierno, 437 So.2d 242 (Fla. 5th DCA). In Wright the court responded to this type of argument as follows:
Appellees contend that an allowance of fees
to the city officials here would inhibit
actions by citizens against their public
officials when the citizens have a valid
cause to pursue in court. Appellees' logic
fails, however, and their fears are misplaced,
because it is not the intent of the statute to
punish valid causes (or even invalid causes
where there is at least an arguable issue).
The statute intends only to impose a penalty
on those who bring completely frivolous and
baseless actions and thereby abuse both their
opponents and the judicial system.
Wright, 437 So.2d at 244. These conclusions apply equally in this case.
69. Mr. Couch as also argued that there was no need to incur any attorney's fees or costs on behalf of Ms. Chapin because the Complaint was determined to be legally insufficient. Mr. Couch suggest, therefore, that Ms. Chapin had no reason to defend herself. The evidence failed to support this assertion. Ms. Chapin was served a copy of the Complaint and informed that it had been filed with the Commission for consideration. Ms. Chapin, as a result of Mr. Couch's actions, was also accused of violating the laws of the State of Florida in the media. To accept Mr. Couch's position would require a conclusion that Ms. Chapin should have ignored these allegations and done nothing until the Commission decided what action to take on the Complaint. Such a conclusion would defy logic. The testimony of Mr. Wilkes and Mr. Stewart supports the conclusion that the actions taken by counsel for Ms. Chapin were reasonable and necessary.
70. Mr. Couch has also argued that a complaint filed before the Commission "is more analogous to a request to investigate a perceived situation or impropriety than a complaint in a lawsuit." Mr. Couch has cited no authority to support such a conclusion. Mr. Couch also ignores the fact that he did more than merely request an investigation. Mr. Couch suggested in his Complaint and before the media that Ms. Chapin had in fact violated the law and alleged specific unfounded acts in support of his allegation.
71. Mr. Couch has also attempted to characterize Ms. Chapin's and the Orange County Attorney's actions as an attempt to "not only crush Marvin Couch, but quell future public protests." The evidence in this case fails to support such an allegation. Mr. Couch was not merely a "concerned citizen who happens to be the president of the Orange County Republican Executive Committee" as asserted by Mr. Couch. The evidence proved just the opposite. Mr. Couch's actions in accusing Ms. Chapin of specific unfounded illegal acts and the release of those charges to the media were without justification and intended to discredit a political opponent.
72. Finally, Mr. Couch has suggested that "Linda Chapin has improperly caused expenditure of public funds for her own personal benefit in that the County Attorney's office represented her in this proceeding." This issue is not properly before the undersigned. Nor did the evidence in this case support such a conclusion.
D. Attorney's Fees and Costs Incurred by Ms. Chapin.
73. The evidence in this case proved that the time spent on Ms. Chapin's behalf by Mr. Wilkins and Mr. Passiatore was reasonable. The evidence also proved that $175.00 is a reasonable hourly rate for such representation. The amount of the attorney's fees sought in this case total $11,970.00. This amount is reasonable. Finally, the evidence proved that the costs incurred on Ms. Chapin's behalf were reasonable. These conclusions, however, do not resolve the issue of whether attorney's fees and costs should be awarded in this matter.
74. Although not raised by Mr. Couch, there is a question as to whether an award of attorney's fees and costs in this matter is limited to the actual amount expended by Ms. Chapin or for which Ms. Chapin was liable. If so, no attorney's fees or costs should be awarded because the evidence failed to prove that Ms. Chapin has paid any amount for her representation or that she was liable for the payment of any amount at the time of the final hearing of this matter. If it is concluded that Ms. Chapin may be entitled to an award even though she may not have paid any attorney's fees or costs, it must also be decided whether the amount of attorney's fees should be limited to the actual costs of the services of the attorneys who represented Ms. Chapin: their salaries for the hours invested.
75. The foregoing questions have been answered negatively by the courts in awarding reasonable attorney's fees pursuant to Section 57.105, Florida Statutes. In Wright, supra, the court reversed a lower court decision that city officials who were provided with legal counsel by the City of Winter Park, Florida were not entitled to an award of attorney's fees because they had not actually paid for the services. In Wright it was recognized that the purpose of the statutory provision for an award of attorney's fees under Section 57.105, Florida Statutes, was to "discourage baseless claims, stonewall defenses and sham appeals . . . " and noted that the "legislature had decided to place a price tag on unwarranted and frivolous litigation . . . ."
76. It was also concluded in Wright that the use of the term "shall" in Section 57.105, Florida Statutes (1987):
. . . evidences the legislative intention to
impose a mandatory penalty in the form of a
reasonable attorney's fee once the
determination has been made that there was a
complete absence of a justiciable issue raised
by the losing party. If we are to implement
the legislative intent to discourage baseless
claims, stonewall defenses and sham appeals
in civil litigation by placing a price tag
through attorney's fees awards on losing
parties who engage in these activities,
Whitten, supra, the award must be based only
on the reasonable value of the services, not
on whether or how much the prevailing party
has actually paid, or why, in fact, no fee
Wright, 437 So.2d at 244. See also, Couch v. Drew, 554 So.2d 1185 (Fla. 1st DCA 1990).
77. The difficulty with applying the rationale of the decision in Wright to this matter is that Section 112.317(8), Florida Statutes, the authority for awarding fees and costs in this case, specifically states that the award is for reasonable attorney's fees "incurred by the person complained against." In this matter, it is Ms. Chapin who was the "person complained against" and not Orange County. The statute involved in Wright, Section 57.105, Florida Statutes (1987), provided for an award of "reasonable attorney's fees" and did not specify that the attorney's fees had to be "incurred." Neither of the parties has addressed this issue. Nor has the undersigned found any case directly on point. The undersigned was only able to find two cases involving Section 112.317(8), Florida Statutes: Taunton v. Tapper, 396 So.2d 843 (Fla. 1st DCA 1981); and Malfregeot v. Mobile Home Park Owners and Dealers of Martin County, Inc., 388 So.2d 341 (Fla. 4th DCA 1980). Neither of these cases involved the issue before the undersigned. In both cases, the person against whom the complaint was made apparently represented by retained counsel and not a city or county attorney.
78. Statutes providing for attorney's fees are to be strictly construed. DeRosa v. Shands Teaching Hospital and clinics, Inc., 549 So.2d 1039 (Fla. 1st DCA 1989). Construing Section 112.317(8), Florida Statutes, strictly, it must be concluded that it was Orange County and not Ms. Chapin that "incurred" attorney's fees and costs in this case. To "incur" is "[t]o become liable or subject to." Black's Law Dictionary (Fifth Edition, 1979). Ms. Chapin was contingently liable to Orange County for attorney's fees and costs: had she been found to have violated the Ethics Code as alleged by Mr. Couch she would have been required to reimburse Orange County for her representation. This contingency was no longer a possibility at the time of the final hearing. Therefore, it cannot be said that Ms. Chapin "incurred" any attorney's fee or costs in this matter for which she may be reimbursed.
79. The same justification for imposing an award of attorney's fees in Wright applies in this case: Mr. Couch's allegations against Ms. Chapin were frivolous and maliciously made in an effort to discredit Ms. Chapin. It cannot be ignored, however, that Section 112.317(8), Florida Statutes, unlike the statutory provision dealt with in Wright, specifically requires that the award of fees and costs be limited to amounts "incurred by the person complained against."
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission on Ethics enter a Final Order dismissing the Petition for Attorney's Fees and Costs be DISMISSED.
DONE and ENTERED this __11th__ day of May, 1992, in Tallahassee, Florida.
LARRY J. SARTIN
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Filed with the Clerk of the
Division of Administrative Hearings
this __11th__ day of May, 1992.
APPENDIX TO RECOMMENDED ORDER
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Ms. Chapin's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order
of Fact Number of Acceptance or Reason for Rejection
9 13, 18 and 22.
10 14 and 19.
15-16 Hereby accepted.
18-21 Hereby accepted.
23 24 and 27-28.
30 See 23e and 26.
31 Hereby accepted.
33 Hereby accepted.
48 Hereby accepted.
Mr. Couch's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order
of Fact Number of Acceptance or Reason for Rejection
6 Not relevant to this proceeding.
7 Not supported by the weight of the
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 101
Tallahassee, Florida 32399-1050
Joseph L. Passiatore
Assistant Orange County Attorney
Orange County Administration Center
Post Office Box 1393
Orlando, Florida 32802-1393
974 Pinelli Street
Orlando, Florida 32803
Bonnie J. Williams
Commission on Ethics
The Capitol, Room 2105
Post Office Box 6
Tallahassee, Florida 32302-0006