Both parties have filed proposed findings of fact and conclusions of law, which have been considered by the Hearing Officer. Specific rulings on the parties' proposed findings of fact are set forth in the appendix to this order. References to the transcript of the hearing are denoted by the letter "T", followed by the page number; references to the Respondent's exhibits are made as "RE", followed by the exhibit number and page number, if applicable.

After the conclusion of the hearing, at the time the Respondent submitted his proposed order, the Respondent also submitted an Attorney's Fees Affidavit regarding the reasonableness of the fees incurred by the Respondent. This was one of the issues for determination at the hearing. However, because there was no understanding or agreement reached at the hearing to allow the Respondent to submit such an affidavit afterward, the affidavit has not been received as evidence or considered in preparing this order.

ISSUE

Whether the Complainant, Edgar de Lasalle, filed the complaint in this matter with a malicious intent to injure the reputation of the Respondent and whether the complaint is frivolous and without basis in law or fact, thus entitling the Respondent to recover from the Complaint costs and reasonable attorney's fees incurred by him under the provisions of Section 112.317(8), Florida Statutes.

FINDINGS OF FACT

From the evidence presented at the hearing, the undersigned Hearing Officer finds as follows:

1. The Complainant, Edgar de Lasalle, filed the instant complaint with the Commission on Ethics on July 10, 1989. Complaint No. 89-71.

2. The complaint alleged that the Respondent, as a North Port City Commissioner acting as Department head of the Road and Drainage District, authorized the purchase of a two-way radio system; a scanner for monitoring of calls to City Departments; and a yellow strobe light, all of which were to be used in connection with City business. The radio system allegedly was installed in the Respondent's private automobile by City personnel. On or about July 18, 1988, the complaint maintained, the Respondent relinquished his responsibilities as head of the Road and Drainage District when the City changed its form of government. The above mentioned equipment, however, allegedly was not returned to the City but remained in the Respondent's private automobile. Moreover, it was alleged, after the Respondent relinquished his road and drainage duties, he purchased a new car and had City personnel transfer the equipment from the old vehicle to the new one. Complaint No. 89-71.

3. On August 16, 1989, Bonnie Williams, Executive Director of the Commission, entered a Determination of Investigative Jurisdiction and Order to Investigate, finding that the above allegations were legally sufficient to allege a possible violation of Section 112.313(6), Florida Statutes, in that the Respondent was alleged to have used City personnel and equipment for private purposes in a manner inconsistent with his public duties, and ordering an investigation of the complaint. Determination of Investigative Jurisdiction and Order to Investigate.

4. The preliminary Report of Investigation was released on February 12, 1990. Report of Investigation.

5. Based upon the Report of Investigation, the Commission Advocate prepared an Advocate's Recommendation that reviewed the evidence contained in the investigative report, analyzed the elements of proof of Section 112.313(6), Florida Statutes, and recommended that the Commission find that there was no probable cause to believe that the Respondent violated Section 112.313(6). Advocate's Recommendation.

6. The Commission on Ethics met on April 26, 1990 and voted to find no probable cause, in accordance with the Advocate's recommendation. The Commission's Public Report memorializing this action was rendered on May 1, 1990. Public Report.

7. The Respondent filed his Petition for Costs and Attorney's Fees on May 22, 1990. Petition for Costs and Attorney's Fees.

8. In 1988, the City of North Port changed from a mayor/commission type of government, under which the Mayor headed the Finance Department and each of the Commissioners served as a Department head, to a city manager/council type of government, under which the Commissioners' duties were primarily legislative in nature. T 19-20, 26-27. A City Manager began working for the City in July of 1988. T 22.

9. The Respondent acquired the radio, strobe light, and scanner in connection with his responsibilities as Director of the Road and Drainage Department. T 39-40. He retained the equipment after the City changed to a City Manager form of government in order to communicate with the City, and used the radio to report problems he observed to the City. T 24-25, 39-42. The Respondent had the equipment installed in his new car in February of 1989. T 35-36. He returned the equipment to the City on November 5, 1989, the day after he was defeated in his re-election campaign. T 42.

10. In 1988, the Complainant became aware that the Respondent had the equipment in his car. T 35. He filed the complaint against the Respondent after learning that the Respondent had purchased the new car and City employees had installed the radio in the car and after waiting several months to see whether the City had purchased a siren horn for the Respondent's use. T 36.

11. From all indications, there was no City ordinance, resolution, or Charter provision that prohibited the Respondent from having the equipment. T 17-18, 25. However, the Complainant testified that, at the time the equipment was installed in the Respondent's new car, the City Commissioners' instructions were to return all complaints to the City Manager, rather than to the various Departments of the City. T 35.

12. The Respondent was defeated in his bid for re-election at the City Commission election held on November 4, 1989. T 28-29. Qualifying for that election occurred 45-50 days before the election. T 28-29.

13. The Complainant filed the complaint in July of 1989, prior to the Respondent's qualifying for re-election, which would have been in September, 1989. T 37. The Complainant acknowledged having heard rumors that the Respondent would seek re-election at the time the complaint was filed, although the Respondent was not a candidate at that time. T 38.

14. The complaint became public in May of 1990. T 43. There was no evidence that the filing of the complaint received any media coverage, that the complaint was a matter of public knowledge before it became public, or that it had any effect on the Respondent's election. T 42-44.

15. The Respondent incurred legal fees in the amount of $2,542.07 and costs in the amount of $54.83 in the defense of this complaint. RE 1, RE 2. However, no evidence was presented at the hearing regarding the reasonableness of the amount of attorney's fees.

APPLICABLE STATUTES AND RULES

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 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.

Commission Rule 34-5.029(3), Florida Administrative Code, provides as follows:

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 allegations, 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.

CONCLUSIONS OF LAW

Based on the foregoing findings of fact, the undersigned Hearing Officer recommends that the Commission on Ethics make the following conclusions of law:

1. The Commission on Ethics has jurisdiction to hear and decide the subject Petition for Costs and Attorney's Fees pursuant to Section 112.317(8), Florida Statutes.

2. The Respondent's Petition for Costs and Attorney's Fees was timely filed, having been received within 30 days following the dismissal of the complaint. See Commission Rule 34-5.029(2), Florida Statutes.

3. In supporting his Petition for Costs and Attorney's Fees, the Respondent's burden of proof is governed by the standard of "preponderance of the evidence."

4. In previous orders, the Commission has interpreted the phrase "malicious intent to injure the reputation of such officer or employee" to require a showing of "actual malice." Consolidated Complaint Nos. 81-34, 81-35, 81-37, and 81-38, In re Monroe Cox, Jack Bowman, Clayton Shiver, Bobby Varnum, and Donnie Whitfield; Consolidated Complaint Nos. 80-03, 80-04, and 80-05, In re Robert V. Youkey, Stephen C. Watson, and J. Hal Roberts, Jr.; Complaint No. 80-13, In re George Musson; Complaint No. 78-56, In re Porter Goss; Complaint No. 77-22, In re John Thomas; and Complaint No. 75-01, In re David Reid. The determination of whether malicious intent to injure the reputation existed must be made from an examination of the circumstances surrounding the filing of the complaint, including the factors listed in Rule 34-5.029(3) of whether there is evidence showing ill will or hostility toward the Respondent and whether the complaint was filed with the knowledge that its allegations were false, or with reckless disregard for the truth of the allegations. In Amant v. Thompson, 390 U.S. 727 (1968), the U. S. Supreme Court stated that:

Reckless conduct is not measured by whether a reasonably prudent man . . . would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

5. Here, the Repondent has failed to carry his burden of proving that the Complainant acted with a malicious intent to injure the reputation of the Respondent. The evidence presented is not sufficient to conclude that the complaint was filed with knowledge by the Complainant that the complaint contained one or more false allegations; rather, it appears that the factual allegations of the complaint were true. Nor was it shown by a preponderance of the evidence that the Complainant acted with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. The Respondent argues that the Complainant should have investigated to determine that there was no misuse of City property. However, as announced above, the legal standard is not whether the Complainant should have investigated, but rather, whether he entertained serious doubts about the truth of the complaint. This greater standard was not proven.

6. Nor was it proven that the Complainant harbored ill will or hostility toward the Respondent. The Respondent argues that the Complainant filed the complaint in order to injure his reputation at the time he was ready to start his campaign for re-election. However, the Complainant gave a reasonable explanation for the timing of the complaint (that he was waiting to see if the City paid for the siren horn), and there was no evidence that the complaint had any effect on the Respondent's election.

7. The facts presented also do not support a claim that the complaint was "frivolous." With respect to when an appeal may be deemed to be frivolous, the Florida Supreme Court has stated:

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 justifiable 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 appelant or plaintiff in error. [Treat v. State ex. rel. Mitton, 121 Fla. 509, 163 So. 883 (1935).]

In Taunton v. Tapper, 396 So. 2d 843 (Fla. 1st DCA 1981), it was found that although the Commission on Ethics concluded there was no probable cause to believe that a public officer had violated the Code of Ethics, such determination was not made until after the Commission had conducted a factual investigation and legal research. Therefore, the Court stated, the complaint could not be characterized as completely untenable or frivolous.

8. Here, the complaint has not been shown to be so untenable under the facts or the law that there was little, if any, prospect that a violation of the Code of Ethics could have been found. As shown above, the factual allegations of the complaint basically were true. The Complainant stated that the Respondent's use of the equipment was improper because, due to the change in the form of City government, the Respondent no longer needed the equipment in his public capacity and was making personal use of it. T 35-36; Complaint No. 89-71. The Commission Advocate, although noting that it was possible to question the necessity of the Respondent's having this type of equipment in his personal vehicle, recommended a finding of no probable cause on the grounds that this more appropriately would be a policy or discretionary decision by the City, that there was no special privilege, benefit, or exemption afforded to the Respondent, and that there was no showing of an improper motive or action that was inconsistent with the proper performance of the Respondent's public duties. Advocate's Recommendation, Complaint No. 89-71. While the Commission agreed and found that there was no probable cause to believe that the Respondent violated Section 112.313(6), Florida Statutes, such a determination was not made until after factual investigation and the Commission's interpretation and construction of the pertinent laws and statutes.

9. Nor was the complaint without basis in law or fact. Section 112.317(8), Florida Statutes, requires this element in order for the Commission to award costs and attorney's fees. The use of the words "without basis" by the Legislature implies a complete lack of merit either on the facts or on the law. Thus, it cannot be inferred that a complaint is without basis in fact from the mere fact that the Commission has found no probable cause to believe that the Respondent violated Section 112.313(6), Florida Statutes. Here, the complaint was not proven to completely lack any basis in law or fact.

10. Accordingly, the Respondent has not proven by a preponderance of the evidence that the complaint was filed with a malicious intent to injure his reputation, or that the complaint was frivolous and without basis in law or fact.

RECOMMENDED FINAL ACTION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Hearing Officer recommends that the Commission on Ethics deny the Respondent's Petition for Costs and Attorney's Fees.

ENTERED and respectfully submitted this ____ day of December, 1990.

__________________________

John L. Kalajian

Hearing Officer and Member

Commission on Ethics

Copies furnished to:

Mr. Larry Goodcuff, Respondent

Mr. W. Kevin Russell, Attorney for Complainant

APPENDIX

The following are rulings on the proposed findings of fact submitted by the Respondent, designated by paragraph number:

1-2. Rejected, as being not supported by a preponderance of the evidence.

The following are rulings on the proposed findings of fact submitted by the Complainant, designated by paragraph number:

1-6. Accepted.

7. Accepted, except that evidence was presented indicating the number of hours and the hourly rate of legal representation of the Respondent. See RE 2.

8. Accepted, but not included in the findings of fact because the finding has little, if any, relevance to the issues presented.

9. Accepted.

10. Accepted as found in paragraph 15; however, the total set forth in RE 1 appears to contain a mathematical error.

INTRODUCTION

ISSUE

FINDINGS OF FACT

APPLICABLE STATUTES AND RULES

CONCLUSIONS OF LAW

RECOMMENDED FINAL ACTION