91-184 Recommended Order, In re MICHAEL P. OLON

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: MICHAEL P. OLON, )

) CASE NO. 93-1596EC

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above-styled case on July 9, 1993, in Miami, Florida.

APPEARANCES

For Michael Olon: Marianne A. Vos, Esquire

900 Ingraham Building

25 Southeast Second Avenue

Miami, Florida 33131

For Donald Goetz: J. R. Callahan, Esquire

Callahan and Mickler

700 South Royal Poinciana Boulevard

Suite 502

Miami Springs, Florida 33166

STATEMENT OF THE ISSUES

The issue for disposition is whether Michael Olon, Respondent in a complaint to the Florida Commission on Ethics, is entitled to attorneys' fees and costs from the complainant, Donald Goetz, pursuant to section 112.317(8), F.S.

PRELIMINARY STATEMENT

On December 8, 1992, the Florida Commission on Ethics, by its chairperson, Stephen N. Zack, issued a Public Report finding:

. . . no probable cause to believe that the

Respondent, as Police Chief of Virginia

Gardens, violated Section 112.313(7)(a),

F.S., as alleged in this complaint, as it

does not appear that the private work engaged

in by the Respondent under his private

investigative license presented him with a

continuing or frequently recurring conflict

of interest or impeded the full and faithful

discharge of his public duties.

On January 7, 1993 Michael P. Olon filed his petition for costs and attorneys' fees with the Commission on Ethics.

The case was referred to the Division of Administrative Hearings on March 22, 1993 for conduct of an evidentiary hearing on the complaint.

At the hearing Michael Olon testified and presented the additional testimony of Donald Goetz, Neil Flaxman, James Brako, Suzanne Gage and Dennis Whitt. Olon's eight exhibits were received in evidence.

Donald Goetz testified on his own behalf and offered five exhibits, received in evidence.

Joint Exhibit #1, a certified file from the Ethics Commission, was also received in evidence.

No transcript was filed and both parties submitted written argument and proposed recommended orders. The findings of fact proposed by each are addressed in the attached appendix.

FINDINGS OF FACT

1. Michael Olon (Olon) is chief of police for the Village of Virginia Gardens, a small incorporated municipality in Dade County, Florida. He was appointed to that position in spring 1991 by the former mayor of Virginia Gardens, Roy Whitfield.

2. Donald Goetz (Goetz) is now, and at the relevant period was mayor of Virginia Gardens, having defeated Roy Whitfield in September 1991. Prior to the mayoral election, Goetz was a member of the city council for two years.

3. As a councilman Goetz voted against Olon's appointment. Olon supported Whitfield in the mayoral race. There was open and notorious conflict between the two Virginia Gardens officials. As mayor, Goetz had supervisory authority over the police chief and other city employees. Goetz was trying to make some changes which he believed would save money and make the police department more efficient; Olon resisted the changes. At one point Goetz attempted to suspend Olon for insubordination, but failed to obtain the council votes to support the discipline. Depending on whom was asked, Goetz was either overzealous and intoxicated with power or he was a conscientious and careful mayor.

4. As reflected in press clippings, minutes of the council meetings and testimony of the various witnesses in this proceeding, the political atmosphere in the village was rife with acrimony, affecting not only the principals here but other city employees and officials as well. Lawsuits and public accusations abounded.

5. In the midst of that atmosphere an incident occurred which precipitated the complaint that is the subject of this proceeding. On October 15, 1991, a woman identifying herself as Joanna Bailey, a private investigator, walked into the Virginia Gardens town hall and requested a copy of the personnel file of Sue Gage, Virginia Gardens' city clerk. Ms. Gage was upset that a private investigator wanted her file, but because the request was legal and proper, the file was copied and furnished to Ms. Bailey, and she left.

6. The only person Sue Gage knew who was connected with a private investigation agency was Chief Mike Olon. Ms. Gage looked up his financial disclosure form in the city files and found the name of the company he had worked for, ICDA. She then called the company and asked for Joanna Bailey. The person who answered the phone stated that Ms. Bailey was not in. Ms. Gage called again a few hours later and was told that Ms. Bailey was not in but would be back. Ms. Gage called a third time and was told that Ms. Bailey did not work there. Some time between the second and third telephone call, Ms. Bailey called Sue Gage and denied working for ICDA.

7. That afternoon when Mayor Goetz came to the town hall, Sue Gage told him about the request for records and her phone calls to the private investigation agency. Goetz was upset that someone was harassing Ms. Gage, but also he understood that the request was appropriate under the Public Records Act. He made two telephone calls himself to ICDA and asked for Ms. Bailey. The first time he was told she wasn't in; the second time, the person who answered said she did not work there.

8. There had been an issue in the past, in the early 1980's, when Dennis Whitt was police chief. There were questions regarding the propriety of some of his officers being employed by a private investigation agency. Goetz assumed that because Chief Olon's 1990 disclosure form, filed in June 1991, indicated that he received compensation from ICDA, the chief still worked for the agency.

9. Goetz asked the city attorney, Neil Flaxman, to look into a possible conflict of interest. Goetz, himself, wrote to the Dade County Attorney for an opinion, but never received a response. Goetz also called the Florida Ethics Commission for information and received a facsimile copy of Commission on Ethics opinion (CEO) 91-34 on October 17, 1991.

10. In summary, CEO 91-34, addressed questions regarding a city police chief employed as private investigator and held that no conflict of interest would be created by the mere holding of a private investigator license; no conflict of interest would be created by a municipal police chief performing private investigative services for cruise lines relative to incidents occurring on board ship, and not involving intentional torts or crimes; and a prohibited conflict of interest would exist if the police chief were employed to investigate accidents occurring outside his department's jurisdiction but within neighboring counties. The concern was that access by the chief to confidential law enforcement information of value to his clients would present a continuing or frequently recurring conflict of interest, or would impede the full and faithful discharge of his duties. (Olon, exhibit #2).

11. Neil Flaxman has been city attorney for the Village of Virginia Gardens since 1970. After Mayor Goetz asked him to get an opinion on the possible conflict of interest, Flaxman wrote a letter of inquiry to Chief Olon; he wanted to get the facts from the chief before proceeding with an opinion. The letter dated October 21, 1991 states that he (Flaxman) was asked to contact the county attorney for an opinion as to whether Olon's activities as an active private investigator created a conflict of interest with his position as a police chief. The letter further stated that he (Flaxman) was advised that the chief performed investigations for "International Detective Agency" and that it was assumed that the private investigative work was conducted outside of the village. The letter requested a reply within 10 days if the assumptions were incorrect, and further asked what Olon's duties were, where he performed them, whether his private investigator's license was active and what limitations there were, if any, on the use of the license. The closing paragraph suggested that Olon consult with an attorney or representative, as the inquiries could have consequences beyond the mayor's concerns and could include the Commission on Ethics. (Olon, exhibit #8)

12. Olon did not respond to Flaxman's letter. Instead, a letter dated November 5, 1991 was sent by Olon's attorney, Richard Venditti, Esquire, denying "assumptions or insinuations" that Olon committed an act contrary to his position as chief of police, stating that the city attorney had a conflict in acting on behalf of the mayor, stating that the mayor was engaging in a personal and retaliatory attack, suggesting that any investigation or complaint to the Ethics Commission be made with authorization from the city council, and closing with the statement that Olon would answer questions before the "proper authoritative body". (Goetz exhibit #1).

13. On November 14, 1991 the council of Village of Virginia Gardens conducted a special meeting regarding the authority of the mayor and the relationship between the mayor and police chief.

The council voted to revoke a suspension of the chief imposed by the mayor and to give the parties an opportunity to sit down and work out a reasonable solution.

The minutes of the November 14th meeting reflects this discussion regarding the complaint to the Ethics Commission:

Mayor Goetz advised that at the October 17

Council Meeting he reported to the council

that an investigator had requested the

records of the Sue Gage and that Chief Olon

and Officer Mazzieri were both associated

with the same detective agency. Since that

meeting the investigator has not contacted

Ms. Gage again. At that meeting he requested

the attorney obtain an opinion from the

county attorney to see if there is a conflict

of interest.

Mayor Goetz advised that he was withdrawing

the attorney's involvement and taking it upon

himself to issue a complaint to the

commission on ethics and request a ruling on

this issue. He then read the opinion from

the commission on ethics regarding a similar

case.

Attorney Flaxman recommended that Chief Olon

reply to his letter to clarify some of the

facts so that a correct opinion can be

obtained.

Chief Olon's attorney, Richard Vendetti of

5215 S.W. 149 Place, advised that Chief Olon

is within his rights not to respond to

Attorney Flaxman's letter. He will answer

the questions when they are posed by the

proper authoritative body.

Attorney Flaxman stated for the record

anything that the city does in regard to that

opinion, any information it has or any

representative from the city seeking the

opinion will not be responsible for any

incorrect statements in the facts leading up

to the opinion because we have asked Chief

Olon for the facts about his license.

(Olon Exhibit #6, p.3)

14. Neither Olon nor his attorney responded to Attorney Flaxman's inquiries.

15. Don Goetz' complaint to the Ethics Commission is dated December 18, 1991 and was filed with the Commission on December 20, 1991.

The complaint is brought against Police Chief Olon. A narrative statement of facts describes the incident on October 15th, states that the village attorney unsuccessfully attempted to obtain information from the chief regarding his private investigator activities, and provides dates and types of licenses held by Chief Olon and Officer Mazzieri with information that both maintained their own agency. The complaint expresses Goetz' belief that the complaint was justified when the chief refused to divulge his involvement with ICDA; that it appeared that ICDA was doing detective work in the village; and that it was too much of a coincidence that an ICDA detective came to the village hall to gather information on the village clerk. The complaint attaches copies of the Flaxman and Venditti letters, Chief Olon's and Officer Mazzieri's outside employment statements for 1990 showing investigative work done for ICDA, and copies of the opinion the commission had sent to Goetz.

16. Investigative staff of the Ethics Commission conducted an investigation of the complaint, including an interview with Chief Olon in the presence of his attorney, Richard Venditti. Chief Olon revealed that he held a private investigator license and a license for his own agency. He performed work for ICDA in 1990, but not in 1991. Most of his work was in Dade and surrounding counties, but none in Virginia Gardens. The Virginia Gardens Police Department is equipped with Florida and national crime information computers, but they were not used, according to Chief Olon, to further his private interests.

17. The Ethics Commission investigation also learned that Joanna Bailey was associated with ICDA until about a year prior to the October 1991 incident and she was not engaged by ICDA to conduct an investigation in Virginia Gardens.

Dennis Whitt, the City Manager of Opa Locka and former Virginia Gardens police chief, said that he employed Ms. Bailey to obtain a copy of Ms. Gage's file. Whitt had filed a lawsuit against Gage and Goetz. Whitt had told Sue Gage in October or November that he had initiated the request for her file, but she was skeptical of his admission as she did not trust him.

18. On September 14, 1992, the Ethics Commission Advocate issued her written recommendation that the commission find probable cause that Respondent Olon violated section 112.313(7)(a), F.S. by working as a private investigator while serving as a law enforcement officer in the Village of Virginia Gardens between June 1989 and May 1990.

19. The commission's public report dated December 8, 1992 dismissed the complaint with the finding that Respondent's private work under his private investigative license did not appear to present a continuing or frequently occurring conflict of interest.

20. Respondent Olon had his opportunity to disclose his activities to the Ethics Commission and was exonerated. It was his choice to wait until what he considered was an appropriate investigation to make his disclosures.

This does not mean that Goetz' inquiry was inappropriate or motivated by malice. As mayor and the elected head of the village governing body, he had the right to seek information from Olon regarding his outside employment. Village of Virginia Gardens Ordinance No. 218, adopted May 8, 1980, creates the public safety department and establishes the mayor as the immediate supervisor of the director of the department, the police chief. (Goetz Exhibit #4)

21. Goetz' explanation of his basis for pursing a complaint to the commission was credible and reasonable; his announcement of his intention to the council was a logical follow-up to the issue earlier brought to the council's attention, and the issue was joined by Attorney Venditti's response inviting investigation by a "proper authoritative body". The complaint was not filed with a malicious intent to injure the reputation of Michael Olon.

22. It is uncontroverted that Olon incurred costs and attorney's fees as a respondent before the Ethics Commission.

The amounts were not presented.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S. and rule 34-5.029, F.A.C.

24. Section 112.317(8), F.S. 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.

25. Rule 34-5.029(3), F.A.C. provides:

(3) 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 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.

26. Respondent, Michael Olon failed to meet his burden of proof. Donald Goetz' concern regarding a potential conflict of interest was sincere, albeit ultimately established as misfounded. For more than two months Goetz sought information that could have put the issue to rest. He sought advice from the county attorney, the Ethics Commission and the city attorney before filing his complaint. Choosing to not respond to inquiry by the city attorney, Michael Olon, through his own attorney, instead invited the filing of the complaint and the resultant investigation.

27. From the facts and law presented in the investigative report, the Advocate for the Ethics Commission urged a finding of probable cause that Respondent Olon violated section 112.313(7)(a), F.S. The reasoning applied by the Advocate, and the Commission's own reasoning in its earlier opinion, CEO 91-34. (the opinion furnished to Donald Goetz) provide ample authority that the complaint was neither frivolous nor baseless. A "substantial justiciable question" was indeed presented. Taunton v. Tapper, 396 So.2d 843 (Fla. 1st DCA 1981), citing Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883 (Fla. 1935).

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED

that a final order be entered dismissing Michael Olon's petition for attorney's fees and costs.

DONE AND RECOMMENDED this 20th day of October, 1993, in Tallahassee, Florida.

___________________________________

MARY CLARK

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 20th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1596EC

Pursuant to section 120.59(2), F.S. the following are specific rulings on the findings of fact proposed by the parties.

Michael Olon's Proposed Findings

1. Adopted in paragraph 1.

2. and 3. Adopted in paragraph 3.

4. Adopted in paragraph 2.

5. Adopted in paragraph 3.

6. Adopted in substance in paragraph 4.

7. and 8. Adopted in paragraph 2.

9. Rejected as unsubstantiated by competent evidence to the extent that the proposed finding is presented as a fact. The disparate opinions of the mayor are addressed in paragraph 3.

10. Rejected as unnecessary.

11. Adopted in paragraph 4.

12.-13. Adopted by implication in paragraph 3.

14.-15. Adopted in paragraph 5.

16. Adopted by implication in paragraph 5.

17. Adopted in paragraph 6.

18. Adopted in paragraph 7.

19.-20. Adopted in substance in paragraph 6.

21. Adopted in paragraph 17.

22.-24. Rejected as unnecessary. By the time that the complaint was filed, the request for Ms. Gage's file was less material than the suspicions which arose from the chief's reaction to the village attorney's inquiry.

25. Adopted in paragraph 10.

26. Adopted in paragraph 13.

27. Adopted in paragraph 9.

28. Adopted in paragraph 15.

29.-31. Rejected as unnecessary. The disclosure to the council was reasonably and credibly explained by Goetz and Attorney Flaxman.

32. Rejected as contrary to the evidence.

33 and 34. Rejected as unnecessary. The information was ambiguous and suspicious, given the responses to Gage's and Goetz' telephone calls.

35. Rejected as immaterial. Goetz had strong circumstantial evidence and no explanation to the contrary from Chief Olon.

36. Rejected as immaterial.

37. Rejected as unsubstantiated by clear and credible evidence.

38. Adopted in paragraph 3.

39. Rejected as an overstatement and unsupported by the weight of evidence.

40.-43. Rejected as contrary to the evidence.

44. Adopted in paragraph 22.

45. Rejected as contrary to the facts and law.

Findings of Fact Proposed by Donald Goetz

1. Adopted in paragraph 20.

2. Adopted in paragraph 1.

3. Adopted in paragraphs 3 and 20.

4. Adopted in paragraph 11.

5. Adopted in paragraph 20.

6. Adopted in paragraph 16.

7. Adopted in paragraph 18.

8. Adopted in paragraph 21.

COPIES FURNISHED:

Bonnie Williams, Executive Director

Ethics Commission

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel

Ethics Commission

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Marianne A. Vos, Esquire

900 Ingraham Building

25 Southeast Second Avenue

Miami, Florida 33131

J. R. Callahan, Esquire

Callahan and Mickler

700 South Royal Poinciana Boulevard, Suite 502

Miami Springs, Florida 33166

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 10 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.