STATE
OF FLORIDA
DIVISION
OF ADMINISTRATIVE HEARINGS
In Re:
JOHN KEENE CASE NO. 94-1907FE
______________________/
RECOMMENDED
ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly
designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this
case on March 8, 9, 10, 16, and 17, 1995, in Green Cove Springs, Florida.
APPEARANCES
For Respondent, Jeptha F.
Barbour, Esquire
Keene: Marks, Gray,
Conroy, Gibbs, P.A.
1200 Riverplace Boulevard, Suite 800
Jacksonville, Florida 32207
For Complainant, Robert L.
McLeod, II, Esquire
Stotler: McLeod &
Canan
Post Office Box 1918
St. Augustine, Florida 32085
STATEMENT
OF THE ISSUES
Whether the Complainant, Ronald Stotler, should be required to pay
attorney's fees and costs to the Respondent, John Keene, pursuant to Section
112.317(8), Florida Statutes, and Rule 34-10.29, Florida Administrative Code,
and if so, the amount of the attorney's fees and costs to be awarded.
PRELIMINARY
STATEMENT
On or about February 4, 1994, Complainant, Ronald Stotler, filed
Complaint No. 94-09 (Complaint) with the Florida Commission on Ethics
(Commission) against Respondent, John Keene.
After a review of the Complaint and a Recommendation of Legal
Insufficiency by Bonnie J. Williams, Executive Director of the Commission, the
Commission dismissed the Complaint on March 10, 1994.
On or about April 12, 1994, Mr. Keene filed a Petition for Attorney's
Fees and Costs with the Commission relating to Complaint No. 94-09.
On April 12, 1994, the Commission referred this matter to the Division
of Administrative Hearings for assignment to a Hearing Officer. The final hearing was scheduled for June 16,
1994. On May 20, 1994, Respondent Keene
filed a Motion for Continuance. The
motion was granted, and the final hearing was rescheduled for October 19,
1994. On September 30, 1994, the
parties filed a Joint Motion for Continuance, which was granted. The final hearing was rescheduled to
commence on March 8, 1995.
At the final hearing, Mr. Keene testified in his own behalf and called
the following witnesses: Ronald L.
Stotler, Patricia G. Surman, Mae M. Byers, Eugene Alphonse, Thomas S. Edwards,
William J. Conroy, Donald W. Moore, and Steven J. Duval by live testimony and
presented the testimony of Terry Jones, Bill Thompson, Jeptha Barbour, Ronald
Stotler, and James Jett by deposition.
Keene's Exhibits 1-48 were admitted in evidence.
At the final hearing, Mr. Stotler testified in his own behalf and called
the following witnesses: Harold H.
Rymer, Jr. and Lloyd Green by live testimony, and Terry Jones, James Jett, and
John Keene by deposition. Stotler's
Exhibits 1-17 were admitted in evidence.
The transcript was filed on May 30, 1995. Mr. Keene filed his
Proposed Recommended Order on
June 29, 1995. Mr. Stotler filed
his Proposed Recommended Order on July 3, 1995. The parties' findings of fact are addressed in the Appendix to
this Recommended Order.
FINDINGS
OF FACT
1. John Keene was elected Clerk
of the Court for Clay County, Florida, in November, 1988, and was reelected in
1992. He has served as Clerk of the
Court at all times relevant to this proceeding.
2. Ronald Stotler served on the
Board of County Commissioners for Clay County (Board) from 1982 to 1992, and
served as Chairman of the Board from approximately November, 1991 to November,
1992. Based on his experience as a
County Commissioner, he is familiar with the preparation and implementation of
the Clay County budget. After going off
the Board, he remained interested and active in Clay County politics.
3. As Clerk of the Court, Mr.
Keene is the chief financial officer of Clay County. With the assistance of his financial director, he prepares the
tentative budget to be presented to the Board.
The Clerk's revenue projections are based on various factors including
advalorem tax assessments, fine and foreiture and license funds, and State
funding. Preparation of the budget
requires projection of revenues and expenditures six to eight months prior to
realization of those revenues or expenditures.
The Board must approve the budget and can make changes to the budget
presented by the Clerk.
4. The budget estimates for the
1992-1993 fiscal year, which included estimates of cash carried forward, were
prepared by the Finance Director at that time, Arnold Herwick, who had served
as Finance Director since 1975.
5. The budget for the 1992-1993
fiscal year was approved by the Board, chaired then by Commissioner Stotler.
6. In the fall of 1992, Arnold
Herwick became ill and was unable to remain with the County as Finance
Director. Sometime in October, 1992,
Donald Moore contacted Mr. Keene to apply for the vacant position. Mr. Moore was the managing partner of a
local CPA firm, Jones, Moore, Johnston, and Williams (Jones-Moore). His firm specialized in governmental
accounting and auditing, tax, and write-up work. In the summer of 1992, the Jones-Moore firm had been awarded a
four-year contract to do audit work for the Board beginning September 30,
1992. Mr. Moore's partner, Walter Johnston,
did the actual work on the audit, not Mr. Moore.
7. Mr. Keene notified Mr. Moore
in November, 1992, that he would be hired as Finance Director. Beginning, December 1, 1992, Mr. Moore began
working part-time as the Finance Director in order to assist the County with
the purchase of a local utility. On
December 8, 1992, Mr. Keene introduced Mr. Moore as the new finance director at
a public meeting of the Board.
8. In mid December, 1992, Mr.
Moore sold his practice to the accounting firm of Magers, Nichols. Walter Johnston joined the Magers, Nichols
firm and continued working on the Board's audit. On December 15, 1992, the
Jones-Moore firm ceased all billable activities and started the process of
collecting and paying on its accounts.
9. As part of the sale of the
Jones-Moore firm, Mr. Moore was to continue to receive a portion of the
collections on his client list, which included governmental clients. Mr. Moore and the Magers, Nichols firm
agreed that Mr. Moore would not receive any compensation related to the audit
contract with Clay County; however, this portion of the agreement was not
memorialized until approximately a year after the original agreement.
10. In January, 1993, the
Magers, Nichols firm was renamed Magers, Nichols, Moore, and Johnston. The "Moore" in the firm name
referred to Donald Moore. The Magers,
Nichols, Moore and Johnston firm had unilaterally and temporarily issued one
share of the firm in Mr. Moore's name in order to be able use Mr. Moore's name
in the firm name. Mr. Moore did not
sign for the share and was unaware that he had been issued a share. However, Mr. Moore did concede the original
agreement called for him to purchase a share in the newly formed Magers,
Nichols firm. Mr. Moore was listed in
the State Board of Accountancy Records as a partner or shareholder in the
Magers, Nichols, Moore and Johnston firm.
11. The Jones-Moore firm
received the following payments related to the audit for the Board: (a) $2,000
by check dated 10-13-92 for work performed through 9-30-92; (b) $1,200 by check
dated 11-10-92 for work performed through 10-31-92; (c) $15,000 by check dated
12-22-92 for work performed through 11-30-92; and (d) $2,780 by check dated 1-26-92
for work performed through 12-31-92.
According to Mr. Moore, the Jones-Moore firm stopped performing actual
work by December 15, 1992; thus, the January check would have been for work
performed prior to December 15. The
Magers, Nichols, Moore and Johnston firm received the following payments
related to the audit contract for the Board which had been awarded to the Jones-Moore
firm: $3,000 by check dated February 23, 1993 and $2,475 by check dated April
13, 1993. Mr. Moore did not receive any
compensation for work performed after December 15, 1992, relating to the Board
audit.
12. Mr. Moore was officially
sworn in as Finance Director on January 5, 1993, at which time he began his
full-time duties as Finance Director.
13. In February 1993, Mr. Moore
determined that the audit work for the Board previously provided by the Jones-Moore
firm should be assigned to a firm with which he had no prior relationship. He
identified Duval & Company as the accounting firm rated highest by the
Board during the summer of 1992 that was still in existence in 1993. When the Jones-Moore firm was awarded the
contract in the summer of 1992, the Board had ranked three CPA firms, with the
Jones-Moore being first and the Duval firm being third. The second firm dissolved after the
award. Mr. Moore discussed the matter
with Mr. Keene, who instructed him to contact the Duval firm to determine if
the firm would be willing to accept an assignment of the contract. On February 4, 1993, Mr. Moore wrote a memorandum
to Mr. Keene indicating that because of public perception that the audit
contract should be assigned and that the Duval firm had agreed to finish the
audit at no cost to the County. On February 9, 1993, at a regular public
meeting, the Board approved the transfer and assignment of the audit contract
to Duval & Company.
14. The audit was completed and
delivered to the Board in March, 1993.
The cover letter to the audit was dated January 23, 1993, which
represented the last date that substantial field work was done.
15. In January, 1993, Mr. Keene
reviewed a cash fund balance report for the 1991-1992 fiscal year and detected
account balances that were lower than expected. He compared the last check run of the 1991-1992 fiscal year with
the previous year and found the check run was 1.2 million dollars greater in
the 1991-1992 fiscal year.
16. In February, 1993, Mr. Keene
notified the Board of the possible 1.2 million dollar difference. In March, 1993, Mr. Keene received the audit
of the 1991-1992 fiscal year and compared the adopted budget to the actual
budget. The comparison revealed that
revenue in the form of cash carried forward was overestimated by Mr. Herwick in
the amount of 7.6 million dollars.
17. Mr. Keene prepared a
proposal for the Board in which he recommended, among other things, that the
County reduce its expenditures by 2.9 million dollars in order to balance the
budget. He presented his proposal to
each Board member individually and to the Board's Budget and Finance Committee
as a group on April 21, 1993.
18. On or about April 22, 1993,
Mr. Keene referred the budget matter to the State Attorney's Office to
determine whether Mr. Herwick's errors resulted from malicious intent.
19. On April 27, and May 11,
1993, the Board held public meetings and discussed, among other things, the
Budget and Finance Committee's recommendation concerning handling the budget
shortfall.
20. On June 10 and 17, 1993,
concerned citizens met at the office of attorney Terry Jones to discuss the
budget issues and to prepare statements to be presented at the June 22 meeting
of the Board. Mae Byers and Eugene Alphonse were among the persons at the
meetings. Mr.Stotler did not attend the meetings.
21. On June 18, 1993, the
accounting firm of Purvis & Gray, at Mr.Keene's request, verified the
legality and appropriateness of the proposals offered by Mr.Keene to resolve
the budget shortfall.
22. On June 22, 1993, at a
regular public meeting, the Board considered and approved Mr.Keene's
recommendations to cure the budget shortfall by a vote of 4-1, with
Commissioner Jett voting in opposition.
Mrs. Byers, Mr. Alphonse and others made presentations at the meeting in
opposition to Mr. Keene's recommendations.
23. At Board meetings on July 13
and August 12, 1993, the Board, Mr. Keene and citizens discussed the 1992-1993
budget shortfall and ways to avoid future shortfalls.
24. On September 3, 1993, Mr.
Keene wrote the State Attorney, Harry Shorestein, a letter offering support for
any investigation and encouraging a grand jury inquiry if such an inquiry was
found to be necessary.
25. In the fall of 1993, Mr.
Stotler called Patricia Surman, who was a CPA and had been employed as an
internal auditor for the Clerk's Office prior to her dismissal. Mr. Stotler was inquiring about the budget
shortfall and the hiring of Donald Moore.
Ms. Surman informed Mr. Stotler that her understanding was that the
budget error resulted from the revenues collected falling short of the
estimates and that Mr. Moore had handled the transfer of the county audit
correctly under accounting practices.
26. On September 20, 1993, Mrs.
Byers invited Mr. Stotler to a private meeting to discuss a presentation to
State Attorney Harry Shorestein concerning the budget issues. Mr. Alphonse and others also attended the
meeting. During the meeting the issue of media coverage was discussed. Mr. Stotler stated that he did not want to
make the visit to the State Attorney a media event. After the September 20 meeting but prior to the actual meeting
with the State Attorney, Mr. Stotler and Mrs. Byers prepared an addendum to the
presentation to the State Attorney.
27. Mr. Stotler discussed the
budget issue with Mrs. Byers and Commissioner Jett on several occasions. Mr. Stotler, Mrs. Byers, and Mr. Jett are
friends and political allies.
28. On September 30, 1993, a
group of citizens, including Mr. Stotler, Mr. Alphonse, and Mrs. Byers, met
with Harry Shorestein to discuss the budget issues and to request an
audit. Unbeknownst to Mr. Stotler at
the time, Mrs. Byers had contacted several television stations and newspapers
concerning the meeting, resulting in extensive media coverage of the meeting.
29. After the September 30
meeting, Mr. Shorestein advised Mr. Stotler that he would refer the matter to
either the Governor's office or the Joint Legislative Auditing Committee. Within one or two weeks, Mr. Shorestein did
convey the citizen group's concerns to Terry Shoffstall, Staff Director for the
Joint Legislative Auditing Committee.
30. On October 4, 1993, Mr.
Keene sent a letter to the Auditor General of the State of Florida explaining
the circumstances of the budget shortfall and investigations surrounding
it. Further the letter encouraged an
audit by the Auditor General's Office, if it found one necessary.
31. On October 7, 1993, Mr.
Keene sent a letter to the Joint Legislative Auditing Committee along with a
packet of information concerning the budget issues. He requested that the Auditor General's Office perform an audit
of Clay County's financial records and procedures, stating, "[t]he purpose
of this audit should not be to lay the blame, but to restore public confidence
in Clay County government by a factual statement of financial conditions and
procedural review." Shortly
thereafter, Mr. Stotler spoke to Mr. Shoffstall, who advised Mr. Stotler that
he may wish to consider contacting the Commission on Ethics. In a letter dated August 12, 1994, Mr.
Shoffstall reiterated his previous comments and stated:
Committee staff has reviewed your concerns,
along with information contained in the 1993,
as well as 1992, audit reports.
Some of the
concerns you raised address possible violations
of the Code of Ethics for Public Officers and
Employees, pertaining to the actions of the
independent auditors and the
Finance Director.
The Commission on Ethics is statutorily charged
with the responsibility of investigating alleged
violations of the Code of Ethics, Part III,
Chapter 112, Florida Statutes. I
suggest that
you contact the Commission if you would like to
obtain information on how to initiate a formal
complaint.
32. On October 5, 1993, Mr.
Keene called a press conference during which he again made a presentation
explaining the budget measures taken and confirming the soundness of the
County's budget and financial condition.
33. On October 12, 1993, at a
public meeting of the Board, Mr. Keene presented the fiscal budget for the
prior eleven months and explained how he had corrected the prior overestimates
made by the previous Finance Director.
34. In October of 1993, Mr.
Keene discovered that an audit by the Auditor General would cost the County
$40,000 to $50,000. At that time Mr.
Keene approached the Clay County Legislative Delegation and requested that the
Auditor General's audit be delayed until after the results of the County's
regular, annual independent audit were made known in March of 1994. The Clay County delegation requested that
the audit be delayed.
35. Mr. Stotler was unaware that
Mr. Keene's reason for asking for the delay of the Auditor General's audit was
based on the costs of the audit. Mr.
Stotler was concerned about the delay and expressed his concern to others. In November, 1993, Mr. Stotler wrote to
Representative Joseph Tedder of the Joint Legislative Auditing Committee
requesting him to consider the citizen's concern over the need for an audit.
36. On December 2, 1993, Mr.
Stotler wrote a letter to the Department of Business and Professional
Regulation (DBPR), requesting an investigation of alleged inappropriate conduct
on the part of Donald Moore. As a
result a formal investigation was begun.
Mr. Stotler also filed a similar complaint with DBPR against Steve
Duval, the accountant who was performing the Board's 1991-1992 audit as a
result of the assignment of the contract from the Jones-Moore firm. After their investigation, DBPR found no
inappropriate conduct by Mr. Moore.
37. On February 3, 1994, Mr.
Stotler and Mrs. Byers met with State Attorney Shorestein who did not commit to
doing anything about the issues they raised.
38. On February 4, 1994, Mr.
Stotler filed a Complaint with the Commission on Ethics (Commission) against
Mr. Moore as Finance Director for Clay County, asserting independence and
conflict of interest issues relating to Mr. Moore's hiring, the transfer of the
independent audit responsibilities from the Jones-Moore firm to the Duval firm,
and payments to Mr. Moore's former and successor CPA firms.
39. On February 4, 1993, Mr.
Stotler filed an identical Complaint with the Commission against Mr. Keene as
Clerk of the Court of Clay County.
40. Prior to filing the
Complaint against Mr. Keene, Mr. Stotler's attorney reviewed the Complaint and
advised Mr. Stotler that the Ethics Commission was the appropriate place to
take his concerns, that Mr. Stotler's concerns were valid, and that his
concerns were not frivolous.
41. Mr. Stotler had discussed
the budget issues and the assigning of the audit contract from the Moore-Jones
firm to the Duval firm with Eugene Alphonse, who is a Certified Public
Accountant practicing in Clay County.
Mr. Alphonse had some concerns about the accounting ethics concerning
the hiring of Mr. Moore. Unbeknownst to
Mr. Stotler at the time of their discussions and prior to his filing the Ethics
Complaint against Mr. Keene, Mr. Alphonse had been employed by Mr. Moore and
Mr. Duval and had been fired by both men.
Mr. Stotler was also unaware that Mr. Alphonse had also filed complaints
with the Department of Professional Regulation against Mr. Duval and those
complaints had been dismissed.
42. Prior to the filing of the
Complaint against Mr. Keene, Mrs. Byers told Mr. Stotler that she and Mr. Jett
had discussed the payments to the Magers, Nichols firm with the Sheriff and
that the Sheriff had indicated there could be possible criminal fraud involved.
43. Prior to filing the
Complaint against Mr. Keene, Mr. Stotler did not discuss the issues with Mr.
Keene, Mr. Moore, Steve Duval, anyone from the Jones-Moore firm, or anyone from
the Magers, Nichols firm.
44. On February 22, 1994, the
Executive Director of the Commission reviewed Mr. Stotler's Complaint against
Mr. Keene and concluded that the allegations failed to indicate a possible
ethics violation by Mr. Keene. As a
result, the Executive Director recommended that the Complaint be dismissed as
legally insufficient without investigation.
45. On March 10, 1994, the
Commission adopted the recommendation of the Executive Director and dismissed
the Complaint for failure of legal sufficiency.
46. The Commission also dismissed
the Complaint filed by Mr. Stotler against Mr. Moore.
47. In March, 1994, the
independent audit of the 1992-1993 fiscal year was completed by Duval &
Company. The audit was an
"unqualified report" which meant it was a clean audit with no reportable
conditions, comments, or recommendations.
48. On March 15, 1995, the
accounting firm of Purvis & Gray, at the request of Mr. Keene, reviewed and
confirmed the findings of Duval & Company's audit of the 1992-1993 fiscal
year.
49. Mr. Keene incurred legal
fees and costs totaling $33, 264.21 relating to the Ethics Complaint filed by
Mr. Stotler and in the prosecution of the fee petition. As of February 25, 1994, the legal costs
relating to the Complaint and this proceeding totalled $3,155.21. The total amount for reasonable fees for
legal services is $30,109.00.
50. Mr. Keene retained the firm
of Marks, Gray, Conroy & Gibbs to represent him in this matter. Bill Thompson of that firm spent 45.8 hours
representing Mr. Keene and Mr. Barbour spent 179 hours representing Mr.
Keene. Law clerks spent 9 hours and
paralegals spent 16.2 hours. The amount
of time spent by the firm is reasonable.
51. A reasonable hourly rate
for Mr. Thompson is $150, for Mr. Barbour is $130, for law clerks is $60,
and for paralegals is $45.
CONCLUSIONS
OF LAW
52. The Division of
Administrative Hearings has jurisdiction over the parties to and the subject
matter of this proceeding. Section
120.57(1), Florida Statutes.
53. Mr. Keene is seeking
attorney's fees and costs pursuant to Section 112.317(8), Florida Statutes,
which provides:
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 of the 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. If
the complainant
fails to pay such costs voluntarily within 30
days following such finding and dismissal of
the complaint by the commission, the commission
shall forward such information to the Department
of Legal Affairs, which shall bring a civil
action to recover such costs.
54. The Commission has codified
in Rule 34-5.029, Florida Administrative Code, the types of evidence which may
be presented to establish "malicious intent to injure the
reputation." The rule provides:
The respondent has the burden of proving the
grounds for an award of costs and
attorney's
fees by a preponderance of the evidence presented
at the hearing. '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 allegation, 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.
55. Mr. Keene has failed to establish
that Mr. Stotler filed Ethics Complaint No. 94-09 against Mr. Keene with the
malicious intent to injure Mr. Keene's reputation. The evidence, taken as a whole, does not establish that Mr.
Stotler had hostility or ill will toward Mr. Keene. The evidence does show that Mr. Stotler was a citizen concerned
about the large budget shortfall and about the hiring of Donald Moore and the
subsequent transfer of the Board audit contract from Mr. Moore's firm to the
Duval firm.
56. Mr. Stotler did not become
actively involved in the budget issue until September, 1993. At the meeting at Mr. Myers home, Mr.
Stotler emphasized that he did not want the meeting with the State Attorney to
become a media event. Unbeknownst to
him, Mrs. Byers had contacted the newspapers and television stations and
advised them about the meeting. Mr.
Stotler did not seek out the media after the meeting with the State Attorney,
but rather the media sought out Mr. Stotler.
57. Mr. Stotler's main thrust
regarding the budget issue was to get an audit. In his letter to the Joint Legislative Auditing Committee, he
stated that he was not looking for the audit to lay blame on anyone. The citizen group meeting with the State
Attorney was to get an audit not to make criminal charges against Mr. Keene.
58. In his February 4, 1993
memorandum to Mr. Keene, Mr. Moore raised the issue of the perception the
public may have concerning the firm in which Mr. Moore had been a partner
maintaining the Board audit contract while Mr. Moore was employed as the
Finance Director. Obviously Mr.
Stotler's perception was that the arrangement could be a conflict of interest
for Mr. Moore and that Mr. Keene as Clerk of the Court would have knowledge that
the Jones-Moore firm still had the contract with the Board after Mr. Moore was
hired. The situation became murkier
when Magers, Nichols took over the performance of the Board audit without Board
approval and at the same time issued one share of stock to Mr. Moore in the
newly formed Magers, Nichols, Moore and Johnston firm and listed Mr. Moore as a
partner in the records of the Board of Accountancy. Although Mr. Moore and the Magers, Nichols firm had an
understanding that Mr. Moore was not to receive compensation from the Board
contract after the Magers, Nichols firm took over, this agreement was not
formally set out in writing until around the time that Mr. Stotler requested
the DBPR to investigate Mr. Moore.
After the audit contract was assigned to the Duval firm, the Magers,
Nichols firm continued to receive payments for the contract. It was Mr. Keene's office's responsibility
to preaudit the contract payments.
Thus, it appeared to Mr. Stotler that some type of conflict could exist
based on this scenario.
59. In Couch v. Commission on
Ethics, 617 So.2d 1119, (Fla. 5th DCA 1993), the court upheld an award of
attorney's fees and costs against the appellant who had filed an ethics
complaint against a county official.
The appellant had based his allegations solely on his erroneous
interpretation of a newspaper article.
The appellant did not confer with anyone about the complaint until after
the complaint was filed. He did not
check the public records to verify his allegations nor did he contact the
reporter who wrote the article to determine if his interpretation of the
article was correct.
60. Mr. Stotler, on the other
hand, did consult with someone prior to filing the complaint. Mr. Stotler asked his attorney to review the
complaint to determine whether it was appropriate or frivolous. After having
been advised that the complaint was appropriate and not frivolous, Mr. Stotler
filed the complaint. Prior to filing
the complaint, Mr. Alphonse had advised Mr. Stotler that there may be come
concerns relating to accounting ethics.
Prior to filing the complaint, Mr. Stotler had been advised by the staff
director for the Joint Legislative Auditing Committee that he may wish to
consider taking his concerns about the finance director to the Commission. Prior to filing the complaint, Mrs. Byers
advised Mr. Stotler that the Sheriff had opined that there could be possible
criminal fraud in the payments made to the Magers, Nichols firm.
61. Additionally, unlike the
appellant in Couch, Mr. Stotler relied on public records for the majority of
the information upon which he based his complaint. Although Mrs. Byers may have gathered the documents rather than
Mr. Stotler, it does not change the fact that the documents are public records.
62. Mr. Stotler had no reason to
doubt the truth of the allegations. The
Complaint was not based on an anonymous tip and Mr. Stotler did not fabricate
or imagine the allegations. The
Complaint was based on public records; therefore, Mr. Stotler did not have
reason to doubt the veracity of the information or the source of the
information.
63. The evidence does not
establish that Mr. Stotler had a reckless disregard for whether the Complaint
contained false allegations material to a violation of the Code of Ethics for
Public Officers and Employees.
64. In Taunton v. Tapper, 396
So.2d 843, 845 (Fla. 1st DCA 1981), the court discussed what constitutes
frivolous in law and fact as those terms are used in Section 112.317(8),
Florida Statutes.
In determining whether the complaint was
frivolous in law or fact, we find the definition
of 'frivolous appeal' helpful.
Treat v. State
ex rel. Mitton, 121 Fla. 509, 163 So. 883
(Fla. 1935), defined a frivolous appeal as
follows:
A frivolous appeal is not merely one that is
likely to be unsuccessful. It is
one that is
so readily recognizable as devoid of merit on the
face of the record that there is little, if any,
prospect whatsoever that it can ever succeed.
[Citation omitted.] It must be
one so clearly
untenable , or the insufficiency of which is so
manifest on a bare inspection of the record and
assignments of error, that its character
may be
determined without argument or research. An
appeal is not frivolous where a substantial
justiciable question can be spelled out of it,
or from any part of it, even though such question
is unlikely to be decided other
than as the lower
court decided it, i.e., against appellant or
plaintiff in error.
65. In Taunton the court
emphasized that the Commission made a prelimary investigation of the complaint
prior to finding no probable cause to believe that an ethical violation had
occurred. Thus, the Commission did not
make a finding of legal insufficiency based on a facial examination of the
complaint. In the instant case the
Commission did make a finding of legal insufficiency based on the four corners
of the Complaint without further investigation.
66. Mr. Stotler did not cite in
the Complaint any specific provision of Chapter 112, which he thought that Mr.
Keene had violated. As stated in the
Commission Executive Director's Recommendation of Legal Insufficiency, which
was adopted by the Commission, Section 112.313(6), Florida Statutes, is the
only provision which could apply to the allegations in the Complaint. The allegations do not support a finding
that Mr. Keene used his position as Clerk of the Court and Comptroller to
secure a special benefit for himself or anyone else. The allegations do not support a finding that his actions were
undertaken with a wrongful intent for the purpose of obtaining some benefit
resulting from actions which are inconsistent with the proper performance of
his public duties.
67. Although the Complaint may
have no basis in law or fact, the finding that Mr. Stotler had no malicious
intent to injure the reputation of Mr. Keene by filing the Complaint prohibits
the award of attorney's fees and costs.
See Malfregeot v. Mobile Home Park Owners, 388 So.2d 341 (Fla. 4th DCA
1980).
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a Final Order be entered denying John Keene's petition
for attorney's fees and costs against Ronald Stotler.
DONE
AND ENTERED this 15th day of September, 1995, in Tallahassee, Leon County,
Florida.
___________________________________
SUSAN B. KIRKLAND, 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 September, 1995.
APPENDIX
TO RECOMMENDED ORDER, CASE NO. 94-1907FE
To comply with the requirements of Section 120.59(2), Florida Statutes
(1993), the following rulings are made on the parties' proposed findings of
fact:
Keene's Proposed Findings of Fact.
1.
Paragraph 1: The first and last
sentences are accepted
in
substance. The second sentence is
rejected as
unnecessary.
2.
Paragraph 2: Rejected as
unnecessary.
3.
Paragraph 3: Accepted in
substance.
4.
Paragraph 4: The first sentence
is accepted. The
remainder is rejected as unnecessary.
5.
Paragraph 5: The first sentence
is accepted in
substance. The remainder is
rejected as unnecessary.
6.
Paragraph 6: The first two
sentences are accepted in
substance. The remainder is
rejected as unnecessary.
7.
Paragraph 7: The first sentence
is accepted in
substance. The remainder is
rejected as unnecessary.
8.
Paragraph 8: The first sentence
is accepted in
substance. The remainder is
rejected as unnecessary.
9.
Paragraph 9: Accepted in
substance.
10.
Paragraph 10: The first two
sentences are accepted in
substances. The remainder is
rejected as unnecessary.
11.
Paragraphs 11-17: Accepted in
substance.
12.
Paragraph 18: Accepted in
substance except as to being
dissolved. The firm was not legally
dissolved.
13.
Paragraphs 19-22: Accepted in
substance.
14.
Paragraph 23: The last sentence
is rejected as
constituting a conclusion of law.
The remainder is
accepted in substance.
15.
Paragraphs 24-25: Accepted in
substance.
16.
Paragraph 26: Rejected as
constituting argument.
17.
Paragraphs 27-41: Accepted in
substance.
18.
Paragraph 42: Rejected as
unnecessary.
19.
Paragraphs 43-49: Accepted in
substance.
20.
Paragraphs 50-52: Rejected as
subordinate to the facts
found.
21.
Paragraph 53: Accepted in
substance.
22.
Paragraphs 54-55: Rejected as
subordinate to the facts
found.
23.
Paragraph 56: Accepted in
substance.
24.
Paragraphs 57-62: Rejected as
subordinate to the facts
found.
25.
Paragraphs 63-64: Accepted in
substance.
26.
Paragraph 65: Accepted in
substance except as to the
purpose of the meeting. The purpose of the meeting was
to discuss the budget issues.
27.
Paragraph 66: The last sentence
is accepted in
substance. The remainder is
rejected as not supported
by the evidence if it refers to the original packet of
information discussed at the meeting at Mr. Myers home.
28.
Paragraph 67: The first sentence
is accepted in
substance. The remainder is
rejected as not supported
by the evidence. Mr. Stotler
testified that he
reviewed and considered documents that were presented
to him and to which he had access.
29.
Paragraph 68: Accepted that that
was Mr. Conroy's
testimony but rejected as to the truth of the testimony
based on the greater weight of the evidence.
30.
Paragraph 69: Accepted in
substance to the extent that
Stotler, Byers, and Alphonse were part of a group that
went to the State Attorney's office to discuss the
budget issues. Rejected as not
supported by the
greater weight of the evidence that Stotler led the
group. The last sentence is
accepted in substance.
26.
Paragraph 70: Rejected as
constituting argument.
27.
Paragraph 71: Accepted in
substance.
28.
Paragraphs 72: Rejected as
subordinate to the facts
found.
29.
Paragraph 73-76: Accepted in
substance.
30.
Paragraph 77: Rejected as
unnecessary.
31.
Paragraph 78: The first two
sentences are accepted in
substance. The remainder is
rejected as not supported
by the greater weight of the evidence.
Mr. Stotler was
unaware of Mr. Alphonse's employments and the filing of
the complaints when Mr. Stotler filed the Ethics
Complaint.
32.
Paragraph 79: Accepted in
substance that they met with
the State Attorney but rejected that the State Attorney
confirmed that an investigation was still under
consideration. The State
Attorney did not commit to do
anything.
33.
Paragraph 80: Rejected as
subordinate to the facts
found.
34.
Paragraphs 81-82: Accepted in substance.
35.
Paragraphs 83: The first portion
of the paragraph is
accepted in substance. The
remainder is rejected as
not supported by the evidence because Mr. Stotler did
have his attorney review the compliant before it was
filed.
36.
Paragraph 84: Rejected. Mr. Stotler consulted his
attorney.
37.
Paragraph 85: Rejected as
subordinate to the facts
found.
38.
Paragraph 86: Accepted in
substance.
39.
Paragraph 87: Rejected as
subordinate to the facts
found.
40.
Paragraph 88: The first part of
the paragraph is
rejected as not supported by the evidence. Mr. Stotler
did scan Chapter 119 prior to filing the complaint.
The remainder is subordinate to the facts found.
41.
Paragraphs 90-92: Accepted in
substance.
42.
Paragraphs 93-94: Rejected as
constituting argument.
43.
Paragraph 95: Accepted in
substance.
44.
Paragraph 96: Rejected as
constituting argument.
45.
Paragraph 97: Rejected that any
negative media
attention resulted from the efforts of Mr. Jett, Mrs.
Byers, Mr. Alphonse or Mr. Stotler.
The last sentence
is rejected as subordinate to the facts found.
46.
Paragraphs 98-99: Rejected as
not supported by the
greater weight of the evidence.
47.
Paragraph 100: Rejected as
constituting argument.
48.
Paragraph 101: Accepted in
substance.
49.
Paragraph 102: Accepted in
substance that the
discussion concerned the checks to the Magers, Nichols
firm but rejected that it was an investigation of Mr.
Keene.
50.
Paragraphs 103-105: Accepted in
substance.
51. Paragraph
106: Rejected as constituting argument.
52.
Paragraph 107: Rejected as not
supported by the
greater weight of the evidence.
53.
Paragraphs 108-115: Accepted in
substance.
Stotler's Proposed Findings of Fact.
(Stotler's Findings of Fact are not numbered; however, they are addressed in
the order that they appear.)
1.
Paragraph 1: Accepted in
substance.
2.
Paragraph 2: The first sentence
is rejected as constituting
argument. The remainder is accepted in substance.
3.
Paragraph 3: Rejected as
unnecessary.
4.
Paragraph 4: Rejected as
constituting argument.
5.
Paragraph 5: The last sentence
is rejected to the extent
that the Clerk's office calculated all the revenue
projections. Some of the information was provided by the
State. The remainder is accepted in substance.
6.
Paragraph 6: Accepted in
substance.
7.
Paragraph 7: The last sentence
is rejected as unnecessary.
The remainder is accepted in substance.
8.
Paragraph 8: Sentences 5 and 6 are accepted in substance.
The fourth sentence is rejected as constituting argument.
The remainder is rejected as unnecessary.
9.
Paragraph 9: Sentences 1, 2, 4
are accepted in substance.
Sentence 5 is rejected as constituting argument. Sentence
3
is rejected as unnecessary.
10.
Paragraph 10: Rejected as
constituting argument.
11.
Paragraph 11: Rejected as
subordinate to the facts found.
12.
Paragraph 12: The first part of
the first sentence is
accepted in substance. The
second part of the first
sentence is rejected to the extent that it implies that
legally the last day of existence was December 31,
1992. The second sentence is
accepted in substance.
The third sentence is rejected as not supported by the
evidence to the extent that it implies that Mr. Moore
received compensation relating to the Board audit for
work performed after December 15, 1992.
13.
Paragraph 13: Accepted in
substance to the extent that
in January, 1993, he did receive payment for audit work
for the Board performed by the Jones-Moore firm through
December 15, 1992 and that he was working part time for
Clerk in December, 1992. He did not continue to receive
payment for the Board audit work performed after
December 15, 1992.
14.
Paragraph 14: Accepted in
substance.
15.
Paragraph 15: Rejected as
unnecessary.
16. Paragraph 16: The first
sentence is accepted in
substance. The second sentence
is accepted in
substance except as to the last portion which is
rejected as unnecessary. The
third, fourth, and sixth
sentences are accepted in substance.
The fifth and
seventh sentences are rejected as constituting argument.
17.
Paragraph 17: The first sentence
is accepted in substance.
The remainder is rejected as constituting argument.
18.
Paragraph 18: The first sentence
is subordinate to the
facts found. The remainder is
rejected as constituting
argument.
19.
Paragraph 19: The first sentence
is rejected to the
extent that it implies there was a conflict. The
second sentence is rejected as constituting argument.
20.
Paragraph 20: The first and
fourth sentences are
accepted in substance. The
quotation is rejected as
unnecessary. The third sentence
is rejected as
constituting argument. The fifth sentence is rejected
as constituting argument.
21.
Paragraph 21: The first sentence
is accepted in substance.
The remainder is rejected as constituting argument.
22.
Paragraph 22: The first sentence
is accepted in substance.
The
remainder is rejected as constituting argument.
23.
Paragraph 23: The fourth
sentence is accepted in substance.
The remainder is rejected as constituting argument.
24.
Paragraph 24: Accepted to the
extent that the audit
report reflects the last date of the field work; the
remainder is rejected as constituting argument.
25.
Paragraph 25-28: Rejected as
constituting argument.
26.
Paragraph 29: The last sentence
is accepted in substance.
The remainder is rejected as constituting argument.
27.
Paragraph 30: The first sentence
is rejected as
constituting argument. The
remainder is accepted in
substance.
28.
Paragraphs 31-37: Rejected as
constituting argument.
29.
Paragraphs 38-41: Accepted in substance.
30.
Paragraph 42: The first sentence
is rejected as
constituting argument. The
remainder is rejected as
unnecessary.
31.
Paragraph 43: The last is
rejected. Sheriff
Lancaster's deposition was not filed.
The remainder is
accepted in substance.
32.
Paragraph 44: Accepted in
substance.
33.
Paragraph 45: Rejected as
constituting argument.
COPIES FURNISHED:
Carrie Stillman
Complaint Coordinator
Commission on Ethics
Post Office Box 15709
Tallahassee, Florida 32317-5709
William L. Thompson, Jr. Esquire
Jeptha F. Barbour, Esquire
Post Office Box 447
Jacksonville, Florida 32201
Robert L. McLeod, II, Esquire
First Union Bank Building
24 Cathedral Place, Suite 500
St. Augustine, Florida 32084
Bonnie Williams
Executive Director
Florida Commission On Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phil Claypool, Esquire
General Counsel
Ethics Commission
2822 Remington Green Circle, Suite 101
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
NOTICE
OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written
exceptions to this recommended order.
All agencies allow each party at least ten days in which to submit
written exceptions. Some agencies allow
a larger period within which to submit written exceptions. You should contact the agency that will
issue the final order in this case concerning agency rules on the deadline for
filing exceptions to this recommended order.
Any exceptions to this recommended order should be filed with the agency
that will issue the final order in this case.