DIVISION OF ADMINISTRATIVE HEARINGS
Complaint No. 04-087
Case No. 04-3007FE
This case was assigned to Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings. In lieu of a live hearing, the parties agreed to submit the case on the official record, by pre-hearing stipulation, and deposition testimony, a list of which is contained in Appendix A to this order.
For Petitioner: Albert T. Gimbel, Esquire
Mark Herron, Esquire
Messer, Caparello & Self, P.A.
For Respondent: Joseph Hammons, Esquire
Hammons, Longoria & Whittaker, P.A.
Statement of the Issue
The question presented in this case is whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291.
Burgess (Burgess), a resident of
fully investigated the allegations of the complaint, and, on June 7, 2004, the
Commission issued a final Report of Investigation, which concluded that
Burgess’ allegations against Brown lacked merit. On June 11, 2004, the Commission’s Advocate
recommended a finding of no probable cause that Brown violated
On August 11, 2004, Brown filed a Petition for Costs and Attorney’s Fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291, alleging that Burgess filed the ethics complaint with malicious intent to injure Brown’s reputation, by filing the complaint with knowledge that the complaint contained one or more false allegations, or with reckless disregard for whether the complaint contained one or more false allegations. That Petition was forwarded to the Division of Administrative Hearings to conduct the formal hearing.
The matter was duly set for hearing, but the hurricane prevented the formal hearing and subsequently delayed proceedings. Ultimately, the parties agreed to submit this case on the official record, to include motions, responses to motions and exhibits thereto, through documents and answers exchanged in discovery, by pre-hearing stipulation, and deposition testimony and exhibits. See Appendix A to this Order. The Pre-Hearing Stipulation was filed on October 21, 2005. The parties timely filed Proposed Recommended Orders on November 1, 2005, that have been read and considered.
Findings of Fact
1. Robert Burgess (Burgess) was the Santa Rosa
County Property Appraiser from 1984 until December 31, 2000. He continues to reside in
2. Leon Cooper (Cooper) is a former employee of Robert Burgess, and qualified as a candidate for the Property Appraiser of Santa Rosa County on April 12, 2004, to run against the incumbent, Greg Brown (Brown), the Petitioner in this case.
3. Brown was elected and took office on January 1, 2001, and in 2004 was running for re-election for the first time.
4. Burgess supported Cooper's candidacy and opposed Brown's re-election bid in 2004.
5. On April 12, 2004, the day Cooper qualified to run, Burgess signed an ethics complaint to the Florida Commission on Ethics alleging that Brown had reinstated a religious tax exemption for the Spiritual Life and Healing Waters church on November 14, 2003, and deleted taxes assessed against said church for the tax years 2000 through 2003. Burgess alleged that Brown did this corruptly in return for the political support of the owner of the church, Ms. Lovie Grimes in the 2004 election. He further alleged that Brown also did this to garner the support of Grimes to have Cooper terminated as an employee of the Florida Department of Revenue.
6. Burgess filed his complaint in concert with that of Hilton Kelly, who is the subject of a companion case considered at the same time as this case, but the subject of a separate order, involving alleged favors regarding another property owner. Both complaints were motivated by the desire to impugn Brown's character and the performance of his elected duties, i.e., to injure Browns reputation.
7. The Burgess complaint was fully investigated
by the Commission. The investigation
revealed that, prior to Burgess' leaving office, a determination to eliminate
the tax exemption for the Spiritual Life and
8. Brown caused this matter to be investigated by a member of his staff, Chief Deputy Property Appraiser Lorenzo Law Drinkard (Drinkard). Drinkard looked into the matter and determined that notice had not been given, and visited the church where he found pews, religious materials, and a piano. Although services were not being conducted at the time he was there, Drinkard concluded that it was obviously being used as a church. Drinkard determined on November 14, 2003, that the exemption should be re-instated because it was being used as a church and the taxes assessed be eliminated because notice had not been provided.
9. Burgess, as the former Property Appraiser, was uniquely aware of the legal necessities and requirements in granting and removing exemptions. His office failed to provide the required notice to the owner of the elimination of the exemption for property used for religious purposes.
10. During his tenure as Property Appraiser,
Burgess had no direct contact with the Spiritual Life and
11. Burgess did not examine the public records of his former office to determine the basis for re-instating the exemption.
12. The record reflects that Brown did not write the Department of Revenue about Cooper improperly engaging in campaign activities on state time until February 13, 2004.
13. Burgess knew that determination to re-instate the exemption in question was made on November 14, 2003, and he knew that Brown's letter of complaint to the Department of Revenue regarding Cooper's alleged improper campaigning was on February 13, 2004. Therefore, Brown's alleged motivation in granting the exemption as it might have related to any support for Grimes' support with the Cooper complaint is sequentially impossible.
14. Burgess did make this complaint in concert with the complaint by Kelly for which he provided copies of the records of the Property Appraiser's office. It is clear from the timing that Burgess' motivation was to impugn Brown's reputation.
15. Burgess lacked a factual predicate to assert that Brown's re-instating the religious exemption was done corruptly, was done to improperly influence Grimes and in return for her political support, or to garner her support for Brown's complaint against Cooper.
16. Affidavits were presented in support of attorney fees and costs, and their reasonableness. The Proposed Recommended Order restated those amounts as 94.4 hours at a rate of $175 per hour. The total provided in the Proposed Order was $17,079.50; however, 94.4 times $175 equals $16,250. If one considers that the difference is attributable to law clerks, if one subtracts $16,250 from $17,079, the balance of $559.46, which divided by 8.1 hours for clerks, equals $69.06 per hour for law clerks, which is a reasonable rate.
17. The costs incurred by the attorneys in defending the action and presenting this case were $5,366.56, which are reasonable.
Conclusions of Law
18. Pursuant to Florida Administrative Code Rule 34-5.0291 cases of this type are proceedings under Chapter 120, Florida Statutes, and may be referred to the Division of Administrative Hearings. Additionally, the Division has jurisdiction over the subject matter and parties pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2004).
19. Section 112.317(8), Florida Statutes, 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 such officer or employee by filing the complaint with knowledge that the compliant contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part, the complainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against, including the costs and reasonable attorney's fees incurred in proving entitlement to and the amount of the costs and fees.
20. In the case of Addicott v. Robert Nieman, Case No. 04-0043FE, 2004 WL 2494741 (DOAH Nov. 4, 2004), Administrative Law Judge Michael M. Parrish, applied the standard and analysis of the U.S. Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964), to the consideration pursuant to Section 112.317, Florida Statutes, of the issue of malicious intent. The Commission adopted ALJ Parrish's Recommended Order, stating that the amendment of Section 112.317(8), Florida Statute, in 1995 to delete the language "and in which such complaint is found to be frivolous and without basis in law or fact" and adding the language, "by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part," indicates the legislature's intent to adopted the "Sullivan" standard for assessing "malicious intent."
21. The obvious problem in applying the Sullivan standard to the definition of "malicious intent" in the statute involved here is that filing an ethics complaint is not constitutionally protected speech. The legislature has created the Ethics Commission, set up the procedures for filing complaints, and has an interest in limiting those complaints by establishing standards of truthfulness and prudence for those filing complaints.
22. Section 112.324, Florida Statutes, which outlines the procedures to be followed in making, investigating, and reporting on ethics complaints, provides that the complaints shall be made under oath, that the complaints are confidential and exempt from the State's Sunshine Law until the complaint is dismissed as legally insufficient, or until the alleged violator request the records be made pubic, or until the commission determines there is probable cause to believe a violation has occurred.
23. When a statute requires the allegations be made under oath, it implicitly requires the declarant to tell the truth. A newspaper reporter or radio reporter is not required to swear to the truth of the materials being broadcast or printed. A complainant to the Ethics Commission is.
24. "Malicious" is defined by Webster's New Collegiate Dictionary, 1975 Edition, as "given to, marked by, or arising from malice." "Malice" is defined by that reference as:
Desire to see another suffer that may be fixed and unreasonable or no more than a passing mischievous impulse; also intent to commit an unlawful act or cause harm without legal justification or excuse."
It would be a more reasonable interpretation of the statutory language given the procedures described above, to include requiring the allegations be sworn to, that the legislature intended the words "malicious intent" to mean, "intending to harm without legal justification or excuse."
25. Having considered the language in the context of the process surrounding the making and investigating of complaints, "malicious intent" does not reflect a legislative intent to establish a higher standard of proof of wrongdoing for a Petitioner.
26. With regard to the allegations made by Burgess, although it is true that the Petitioner's office re-instated the religious exemption and determined that the assessed taxes were not due, there was no evidence to support the allegations Burgess made that Brown did these things for Grimes' political support or Grimes' support of Brown's complaint against Cooper to the Department of Revenue, and that these acts were done corruptly. It is these latter allegations that form the gravamen of the complaint because it is the function of a property appraiser to grant and deny exemptions, and one cannot conclude that because a public officer is doing his or her job, that it is being done for personal benefit. It is only when this is done for personal benefit that it is corrupt or illegal, and the complainant must have some tangible evidence of the improper motivation.
27. When Burgess alleged that Brown "corruptly" re-instated the religious exemption to obtain the owner's political support, Burgess had no basis for those allegations of corrupt motivation. When asked the basis for his conclusion Brown's motivation was improper, Burgess stated that Grimes had a large family. Clearly, this does not meet the standard for belief that the plain language of the statute would require.
28. Regarding the Commission's "actual malice" or "Sullivan" standard, actual malice has been interpreted to limit a public office to recovering a civil remedy only if he or she establishes that the utterance was false and that it was made with actual knowledge of its falsity or reckless disregard for whether it was false or true. Burgess' basis for belief that Brown granted the exemption corruptly because Grimes had a large family does not meet the higher "Sullivan" standard. There is neither evidence of improper motivation provided by Burgess for his allegation nor may such a motivation be implied from the factual circumstances surrounding the reinstatement of the exemption or dismissing the taxes.
29. Burgess would argue that Brown must prove that the church was actually entitled to the exemption in order to recover. This misconstrues the requirement of proof. Brown must show that there was a legal basis for the official actions of his office. The testimony of Drinkard establishes a factual basis for the granting of the exemption and for not assessing the taxes because of the absence of notice.
30. Burgess also raises as a defense that the attorney's fees and costs were not paid by Brown, but by the county. The statute states that recovery can be had for "reasonable attorney's fees incurred in the defense of the person complained against, . . .[.]" The Petitioner has authority to institute this action for the recovery of the attorney's fees and the financial and fiduciary relationship between the Petitioner and the County is not the subject matter of this case.
Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter its final order awarding the Petitioner the amount of $17,079.50 in attorneys' fees and $5,366.56 in costs.
DONE AND ENTERED this 31st
day of January, 2006, in
STEPHEN F. DEAN
Administrative Law Judge
Division of Administrative Hearings
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the
Division of Administrative Hearings
this 31st day of January, 2006.
Albert T. Gimbel, Esquire
Mark Herron, Esquire
Messer, Caparello & Self, P.A.
Joseph Hammons, Esquire
Hammons, Longoria & Whittaker, P.A.
Kaye Starling, Agency Clerk
Commission of Ethics
Post Office Drawer 15709
Philip C. Claypool, General Counsel
Commission of Ethics
Post Office Drawer 15709
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
Appendix A (Exhibits)
By Pre-Hearing Stipulation, the parties agreed that the following exhibits were admitted into evidence:
1. Ethics Complaint 04-084, sworn to by Hilton Kelly on April 12, 2004, against Greg Brown, and received by the Florida Commission on Ethics on April 14, 2004.
2. Report of Investigation, prepared by A. Keith Powell, Investigator, issued on June 7, 2004 by the Florida Commission on Ethics.
3. Advocate’s Recommendation, dated June 11, 2004 prepared by James H. Peterson, III, Advocate for the Florida Commission on Ethics.
4. Public Report, dated July 27, 2004 dismissing the complaint as rendered by the Florida Commission on Ethics.
5. Deposition Transcript of Donald W. Moore dated April 22, 2005.
6. Deposition Transcript of Lorenzo Law Drinkard dated April 27, 2005, with Exhibits 1-3.
7. Deposition Transcript of Hilton Kelly dated April 28, 2005, with Exhibits 4-6.
8. Deposition Transcript of Robert Burgess dated April 28, 2005, with Exhibits 7-12.
9. Deposition Transcript of Gregory Stephen Brown dated April 29, 2005, with Exhibits 13-20.
10. Deposition Transcript of Miller McCombs dated April 28, 2005.
11. Deposition Transcript of Leon Cooper dated September 21, 2005.
12. Deposition Transcript of Keith Hodges dated September 21, 2005.
13. Deposition Transcript of Chris Haughee dated September 21, 2005.
14. All pleadings, motions, and the responses and exhibits thereto filed by the parties.
15. All discovery responses to Interrogatories, Requests for Production of Documents, and Request for Admissions filed by the parties.
16. Documents produced in discovery by the parties, identified as follows:
Brown documents numbered [K]-1 through [K]-89.
Kelly documents (unnumbered) in response to requests for production of documents Nos. 9, 10, and 12.
17. DVD of photographs taken of the Donald Moore property.
18. Affidavit of Attorneys Fees filed by Albert T. Gimbel.
19. Affidavit of Costs filed by Albert T. Gimbel.
20. Affidavit of Attorneys Fees filed by Mark Herron.
21. Affidavit of Costs filed by Mark Herron.
22. Affidavit of Reasonable Attorneys Fees and Costs filed by Michael E. Dutko.
23. Deposition Transcript of Michael E. Dutko dated October 13, 2005.
24. Affidavits, depositions, records, and other documents to be submitted additional to those already of record, in support of or in opposition to the attorney’s fees claimed.
Citations to the deposition transcripts shall be designated by the name of the deponent, followed by the page and line of the transcript. For example, a citation to page 5, line 20 of Greg Brown’s deposition transcript will appear as “Brown depo. 5:20.”