92-2 Recommended Order, In re ILENE LIEBERMAN

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ILENE LIEBERMAN, )

) CASE NO. 93-1181EC

Respondent. )

___________________________________)

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 April 6, 7, and 8 1994, in Lauderhill, Florida, April 13, 1994, in Fort Lauderdale, Florida, and June 14, 1994 in Lauderhill, Florida.

APPEARANCES

For Respondent: Stuart R. Michelson, Esquire

1111 Kane Concourse, Suite 517

Bay Harbor Islands, Florida 33154

For Complainant: Anthony J. Titone, Esquire

7471 West Oakland Park Boulevard

Suite 110

Fort Lauderdale, Florida 33119

STATEMENT OF THE ISSUES

Whether Respondent, Ilene Lieberman, is entitled to attorney's fees and costs from Complainant, David Kaminsky, as provided in Section 112.317(8), Florida Statutes.

PRELIMINARY STATEMENT

On February 19, 1993, Respondent, Ilene Lieberman ("Lieberman"), filed Respondent's Verified Petition for Attorney's Fees and Costs, requesting fees and costs pursuant to Section 112.317(8), Florida Statutes, against Complainant, David Kaminsky ("Kaminsky"), relating to a complaint filed with the Commission on Ethics by Kaminsky against Lieberman. The petition was forwarded to the Division of Administrative Hearings on March 1, 1993 for assignment to a Hearing Officer.

The case was originally assigned to Hearing Officer Mary Clark and was scheduled for hearing on August 3, 1993. At the request of Lieberman the hearing was rescheduled for August 23, 1993. At the request of Lieberman the hearing was rescheduled for October 11, 1993. At the request of Lieberman the hearing was rescheduled for December 7, 1993 and was to be heard at the conclusion of In Re: Ilene Lieberman, DOAH Case No. 93-1180EC. The hearing was not commenced at the time scheduled due to the length of the final hearing in Case No. 93-1180EC. The final hearing was rescheduled for April 6, 1994.

At the final hearing Lieberman testified in her own behalf and called the following witnesses: Alfonso Geraffi, Richard Michelson, Charles Faranda, Jr., Samuel Goren, Nancy Cousins, Gregg Pickett, Rebecca Roberts, David Kaminsky, Jeff Pheterson, Donald Giancoli, and Val Valentine. She presented the testimony of Senator Matthew Meadows by deposition and published the deposition of Kaminsky. Lieberman's exhibits 1-31 were admitted in evidence. Kaminsky testified in his own behalf and called the following witnesses: Joseph Pardo, Les Stracher, Beverly Behr-Stracher, and Jack Brown. Kaminsky's exhibits 1-4 were admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within sixty days of the filing of transcript. The last volume of the transcript was filed on July 8, 1994. On September 6, 1994, Lieberman filed her proposed recommended order. On September 13, 1994, Lieberman filed a Motion for Leave to File a Proposed Recommended Order in Excess of Forty Pages. On September 16, 1994, Kaminsky filed a motion to strike and a response to Lieberman's motion. Lieberman's Motion for Leave to File a Proposed Recommended Order in Excess of Forty Pages is GRANTED. There is no showing that the granting of the motion would prejudice Kaminsky. Kaminsky's Motion to Strike is DENIED.

The parties timely filed their proposed recommended orders. The parties proposed findings of fact are addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. In March 1988 Ilene Lieberman (Lieberman) was elected Mayor of the City of Lauderhill (City). She defeated the incumbent mayor, David Kaminsky (Kaminsky), in a very hard fought election.

2. At all times relevant to this proceeding, Lieberman served as the City's mayor.

3. On or about December 31, 1991, Kaminsky filed an ethics complaint ("Complaint") with the Commission on Ethics (Commission) against Lieberman, alleging that she violated Section 112.313(6), Florida Statutes. The Complaint consisted of the following four parts:

A. Kaminsky claimed that Lieberman had expended over $40,000 for "personal legal fees to defend herself" in an action brought before the Commission by Michael Arciola. Kaminsky alleged that the expenditure of these funds was in violation of Sections 19-51(b)(2) and (h) and 2-141(b) of the City Code of Ordinances ("City Code").

B. Kaminsky claimed that Lieberman violated Article III, Section 3.05, of the City Charter by sponsoring and passing Ordinance Nos. 89-197 and 91-90 which granted ten percent increases in compensation for the City Council.

C. Kaminsky claimed Lieberman violated Article V, Section 5.02(d), of the City Charter by passing Ordinance No. 91-109, which provides sick leave and vacation pay for the mayor.

D. Kaminsky claimed that Lieberman used City stationery and City personnel for correspondence that did not deal with City business.

4. On or about February 27, 1992, Kaminsky filed an amendment to the Complaint which restated and clarified the portion of the Complaint which dealt with the issue of use of City stationery for letters unrelated to City business. Kaminsky stated that the letters were dictated, typed and reproduced on City time and using City equipment. He also indicated that the letters were typed by a City employee, Rusty Roberts.

5. On or about April 14, 1992, Kaminsky filed a second amendment to the Complaint concerning the ordinance increasing the pay for the City Council and the ordinance providing sick and vacation pay for the mayor. With regard to the two ten percent pay increases for the City Council, Kaminsky stated, "whereas the Charter . . . specifically limited a compensation increase to the 'U.S. Consumer Price Index for the month prior to the preparation of the annual budget' . . . at the time Ordinance No. 89-197 and Ordinance No. 91-90 were passed, the controlling C.P.I.'s were below 10 percent, being 4.7 in 1989 and 3.7 in 1991." With regard to the mayor's vacation and sick pay, Kaminsky stated that the City Charter provided that no ordinance increasing the salary of the mayor shall take effect unless it has been one year since the last salary increase and that no ordinance shall increase the mayor's salary more than ten percent. Kaminsky further stated that on March 4, 1991, the mayor had received a ten percent salary increase and that on April 8, 1991, the mayor was authorized to receive sick pay and vacation pay "which effectively surpasses the 10 percent maximum salary increase in any one year." Along with the second amendment, Kaminsky provided the Commission with the two letters purportedly typed by City personnel on City time.

6. On June 30, 1992, Kaminsky filed two additional amendments to the Complaint. In the third amendment, Kaminsky advised the Commission that on January 27, 1992, the City had enacted Ordinance No. 92-106, which revised Section 19-51(b) of the City Code. Kaminsky claimed that this section was previously used as authority to hire a private attorney to represent Lieberman in the Arciola ethics complaint. In the fourth amendment, Kaminsky advised that on May 26, 1992, the City passed on second reading Ordinance No. 92-143, revising Section 19-51(h) of the City Code to state that the employment of outside counsel pursuant to that section would not be subject to City Council approval as required in Section 2-141(b) of the City Code. Kaminsky alleged that this amendment clearly indicated that Lieberman knew that she was violating the City Code when outside counsel was hired in the Arciola matter. Furthermore, Kaminsky alleged that Lieberman further violated that City Code when outside counsel was hired to represent her in an elections complaint on May 11, 1992.

LEGAL FEES IN THE ARCIOLA CASE

7. In 1990 Lieberman was notified that Michael Arciola had filed an ethics complaint against her. When Lieberman presented the Arciola complaint to the City Attorney, he advised her that he could not represent her in the matter because he would likely be a material witness in the case due to his role in the City's investigation of Arciola.

8. Lieberman advised the City Attorney that she wished to maintain confidentiality relating to the ethics complaint. Her desire to maintain confidentiality was based on legal advice. She was not "anxious to keep the expenditure from the City Council" as alleged by Kaminsky.

9. At the time Kaminsky filed the Complaint, Section 19-51 of the City Code provided as follows:

(a) There is hereby created a fund of the

city which shall be known as the insurance

services fund. The purpose of this fund is

to provide a source of funds to pay all costs

of insurance coverage, insurance-related

services required by the city and the settle-

ment of claims against the city which are not

otherwise covered by policies of insurance which

shall be purchased by the city from time to time.

The city may purchase insurance which shall

provide coverage for those services enumerated

in subsection (b) herein, which shall be in excess

of coverage provided by the city.

(b) The insurance services to be provided by

this fund shall be as follows:

(1) Damage to personal property or real estate

owned by the city.

(2) Liability for property damage, personal injury

and other tort claims against the city or any

elected official, department head, official, member

of an advisory board or employee thereof when acting

in the scope of his or her employment or official

duties and subject to the conditions of section

2-20, Indemnification of city officers and employees.

(3) Worker's compensation.

costs of insurance coverage, all insurance-related

services required by the city and all settlements

of claims against the city, as well as for the

purchase of any policies of insurance and the

payment of any insurance premiums.

* * * *

(h) All claims against the city which are insured

by the city and which result in litigation shall be

referred to the city attorney immediately upon service

of the summons and complaint. The city attorney shall

represent the city in all litigation unless the

decision is made to employ outside counsel upon

consultation with the mayor.

10. For claims covered by Section 19-51 of the City Code, the City is self-insured for the first $50,000 and maintains excess insurance for coverage for all expenses over $50,000.

11. The City Attorney advised Lieberman that he interpreted Section 19-51 of the City Code to mean that outside counsel could be retained pursuant to that section to provide legal defense of an ethics claim against the mayor without requiring approval from the City Council. It was also the City Attorney's opinion that this interpretation maintained the confidentiality of the Complaint.

12. The City Attorney hired Samuel Goren to represent Lieberman in the Arciola matter. The City spent less than $35,000 in defending Lieberman in her official capacity against the ethics complaint filed by Michael Arciola.

13. At the August 26, 1991 City Council meeting, there was a discussion of the legal fees which had been incurred in the Arciola ethics complaint. In a memorandum dated August 29, 1991, the City Council president, Jim O'Brian, questioned the City Attorney's interpretation of the City Code as it related to the retaining of Samuel Goren to represent Lieberman in the Arciola ethics complaint. Kaminsky read the memorandum from O'Brien to the City Attorney.

14. Kaminsky never spoke to the City Attorney concerning the City Attorney's interpretation of the City Code as it related to the Arciola matter. If Kaminsky had inquired, the City Attorney would have explained the basis for his interpretation.

15. On May 12, 1992, the Commission on Ethics entered its Determination of Investigative Jurisdiction and Order to Investigate, finding that Kaminsky's complaint as to the retention of the law firm of Josias & Goren to represent Lieberman in the Arciola ethics complaint was legally insufficient.

AMENDMENTS TO SECTION 19 OF CITY CODE

16. On January 27, 1992, the City Council passed Ordinance No. 92-106, which amended Section 19-51(b) of the City Code to read:

(b) The insurance services to be provided by

this fund shall include any lawsuit, complaint,

or claim of any kind, whether through the courts

or any administrative procedure, wherein, the City,

any employee thereof, or any official thereof,

whether elected or appointed, shall be a subject

of the complaint or claim. Notice of the complaint

or claim shall be sufficient to authorize the

utilization of this section.

17. On May 11, 1992, and May 26, 1992, the City Council passed Ordinance 92-143, on first and second reading, respectively. This ordinance amended Section 19-51(h) of the City Code to read:

(h) All claims against the city which are insured

by the city and which result in litigation shall

be referred to the city attorney immediately upon

service of the summons and complaint. The city

attorney shall represent the city in all litigation

unless the decision is made to employ outside

counsel upon consultation with the mayor. The

employment of outside counsel pursuant to this

section shall not be subject to approval of the

City Commission as might otherwise be required in

Section 2-141(b) of the Code or any other section

thereof. If the Mayor or any commissioner is the

subject of a criminal complaint or a complaint by

an administrative agency, the elected official who

is the subject of the complaint may designate

outside counsel to represent that elected official

in that matter.

18. On May 11, 1992, Lieberman authorized the retention of outside counsel to represent her in an elections Complaint filed against her by Kaminsky. Kaminsky had alleged in an amendment to the Complaint that Lieberman was guilty of an ethics violation by retaining such outside counsel.

19. On August 4, 1992, the Commission on Ethics issued Amendment to Determination of Investigative Jurisdiction and Order to Investigate, finding that the allegations in Kaminsky's Amendments to the Complaint concerning the passage of Ordinance Nos. 92-106 and 92-143 were legally insufficient to indicate a possible ethics violation by Lieberman. Additionally, Kaminsky's allegations concerning Lieberman's retention of outside counsel on May 11, 1992, were deemed legally insufficient to indicate a violation of Section 112.313(6), Florida Statutes.

CITY COUNCIL SALARY INCREASE

20. On November 13, 1989, pursuant to Section 3.05 of the City Charter, the City Council passed Ordinance No 89-197 which increased the City Council members' salaries from $330 per month to $363 per month. On November 12, 1991, the City Council passed Ordinance 91-90 which increased the City Council members' salaries from $363 per month to $399 per month. Both ordinances passed unanimously.

21. Lieberman did not vote on the ordinances. The City Charter authorizes the mayor to vote only when there is a tie.

22. The City Charter provides that the mayor may veto any ordinance passed by the City Council within three working days of the effective date of the passage of the ordinance. An ordinance which has been vetoed may be overridden by a four-fifths vote of the City Council. An ordinance not vetoed within the three day period becomes effective without the signature or approval of the mayor. Lieberman did not veto Ordinance Nos. 89-197 and 91-190.

23. At the time Ordinance Nos. 89-197 and 91-90 were passed, Article III, Section 3.05 of the City Charter provided:

The council may, through the passage of an

ordinance passed by the minimum of a four-

fifths (4/5) of all council members, determine

the annual salary of the council members at the

time they adopt each fiscal budget. But in no

event shall any such ordinance which increases

the salary of council members currently serving

in office become effective until said council

has served at least one full year of the term of

office for which they were elected.

Any increase in the council members' salary

shall be based upon the U.S. Consumer Price Index

for the month prior to the preparation of the

annual budget; but in no event shall any increase

exceed ten (10) per cent of the current salary.

And further, in no event shall there be more than

one raise during one elective term of the council

members.

24. The City Attorney interpreted Article III, Section 3.05, to mean that the words "based upon" did not limit a salary increase to the amount of the U.S. Consumer Price Index not to exceed ten percent but rather provided that the Consumer Price Index was the starting point to calculate the salary increase which could not exceed ten percent. His interpretation was based on a definition of "based upon" found in Black's Law Dictionary which stated "an initial or starting point for calculation." Kaminsky did not speak to the City Attorney concerning the City Attorney's interpretation of the section.

25. Kaminsky interpreted Article III, Section 3.05, to mean that a salary increase was limited to the U.S. Consumer Price Index or ten percent, whichever was lower. The City Charter did not state which Consumer Price Index was to be used.

26. Kaminsky's complained that Lieberman should not have presented the ordinances to the City Council for passage and that she should have vetoed the ordinances once they were passed.

27. The City's mayor is the "default sponsor" of any proposed legislation emanating from one of the departments of the City and not from a specific council member. Proposed ordinances coming from the finance department are automatically assigned sponsorship by the mayor. Based on the transcript of discussions by the City Council members during the budget workshop meetings which occurred prior to the ordinances being placed on the agenda for a vote, the City Council members had determined that they wanted a ten percent salary increase. Thus, the idea for ten percent salary increases came from the City Council and not from Lieberman.

28. Kaminsky did not file an ethics complaint against any of the City Council members who voted on the salary increases. He felt that Lieberman was more culpable than the City Council members.

29. Lieberman did not gain any personal benefit from the enactment of Ordinance Nos. 89-197 and 91-190. Kaminsky did not know of any personal benefit that Lieberman may have gained from the passage of the ordinances but merely speculated that she may have gained some political IOU's.

30. Kaminsky never had any personal knowledge that Lieberman thought the ordinances were in violation of the Charter. He felt that because he interpreted the City Charter to mean that the raises were limited by the U.S. Consumer Price Index that she should have come to the same conclusion. His investigation of the issue consisted of reading the ordinances and the City Charter.

31. On May 12, 1992, the Commission on Ethics issued a Determination of Investigative Jurisdiction and Order to Investigate, finding that allegations concerning the salary increases for the City Council members were legally sufficient to indicate a possible violation of Sections 112.313(6) and 112.3143(3), Florida Statutes. This finding was based on the Commission's belief that Lieberman had voted on the salary increases.

32. On November 20, 1992, the Report of Investigation was issued finding that Lieberman did not vote on the salary increases. On December 15, 1992, the Advocate's Recommendation was filed with the Commission, recommending that no probable cause of a violation of Section 112.3143(3) be found because Lieberman did not vote on the increases and that no probable cause of a violation of Section 112.313(6) be found because the Report of Investigation did not reveal that Lieberman received any personal benefit from the ordinances.

33. On February 2, 1993, the Commission issued a Public Report finding there was no probable cause to believe that Lieberman violated Sections 112.313(6) and 112.3143(3), Florida Statutes, concerning the pay increases for the City Council members.

MAYOR'S SICK AND VACATION PAY

34. On April 8, 1991, the City Council passed Ordinance 91-109 which created Sections 2-17(c) and (d) of the City Code to read:

relating to sick pay, vacation pay and health

insurance as are received by department heads

with maximum senority; and shall be defined as

a general employee for purposes of Chapter 2,

Article II, Division 3, Retirement, of the Code.

(d) The retirement benefits as provided for

herein, to the extent that, after January 1,

1977, they have been funded and determined to

be actuarially sound, are ratified and confirmed

effective November 1, 1973.

35. Because the ordinance dealt in part with retirement benefits, Lieberman instructed the City Attorney to contact former mayors, Cippoloni and Kaminsky, prior to the enactment of the ordinance and inform them that the ordinance would not diminish or affect in any way the pensions that the mayors were receiving from the City. The City Attorney explained the ordinance to Kaminsky; thus, Kaminsky had an opportunity to discuss the ordinance with the City Attorney and to ask any questions and make any objections that he might have prior to the enactment of the ordinance. Kaminsky never asked the City Attorney any questions concerning the ordinance prior to filing the Complaint.

36. Kaminsky argues that the ordinance violated Article V, Section 5.02(d), of the City Charter which provided:

The salary of the mayor shall be set by the

city council through the passage of an ordinance.

No ordinance shall be effective to reduce or

increase the salary of the mayor by more than ten

(10) percent of the then existing salary for the

office of the mayor. Further, no salary increase

and/or decrease for the office of the mayor shall

be effective unless it has been at least one year

since the last ordinance setting forth a salary

adjustment.

Kaminsky reasoned that because Lieberman could cash in her sick and vacation leave she was in effect getting an increase in her salary above the annual ten percent increase authorized in the City Charter.

37. Lieberman did not vote on Ordinance 91-109 and she did not veto the ordinance. The ordinance was passed by a unanimous vote of the City Council.

38. Prior to Lieberman becoming mayor, the practice of the City had been to pay the mayor's salary whether the mayor was sick or on vacation. The administrative policy was to have the mayor indicate on the time sheet that the mayor was present even if the mayor was sick or on vacation. Thus, the mayor would receive his salary whether he worked or not. Kaminsky participated in this practice when he was mayor.

39. It had been the practice of the City Council to grant by ordinance a salary increase to the mayor and to City Council members and to grant a separate fixed amount for expenses. The mayor and City Council members were not required to account for expenses which they incurred. The mayor and the City Council members received the allocated amount for expenses regardless of whether the actual expenses incurred were greater or lesser than the allocated amount. This was a way that the mayor and City Council members could receive a salary increase in excess of the ten percent authorized by the City Charter. Kaminsky had participated in and approved of this practice when he was mayor.

40. Kaminsky had received information from someone that Lieberman had drawn down salary and vacation pay in excess of a ten percent increase of her annual salary. He did not know who gave him the information and he did not verify the information. He could not tell when Lieberman was supposed to have cashed in her leave nor could he tell what amount had been received by Lieberman. He assumed it was in excess of ten percent of her annual salary.

41. Kaminsky alleged in the Complaint that "no one keeps track of when the mayor arrives at her office, when she leaves or where she is when she is not in her office."

42. Lieberman's secretary, Ms. Roberts, had the responsibility of keeping track of Lieberman's attendance at her City Hall office. Ms. Roberts maintained public records of Lieberman's attendance.

43.

On May 12, 1992, the Commission on Ethics issued a Determination and Order finding that the allegations in Kaminsky's Complaint concerning sick leave and vacation benefits were legally insufficient to indicate a possible violation of Section 112.313(6), Florida Statutes.

CITY STATIONERY

44. Kaminsky alleged that Lieberman used City stationery for correspondence unrelated to City business, and that such correspondence was typed by Rusty Roberts on City time and using City equipment. Kaminsky attached two letters to an amendment to his Complaint, alleging that they were prepared in violation of the Code of Ethics. One letter was from Lieberman to Nova University, transmitting two draft letters dealing with a fund raiser. The other letter was from Lieberman to then Governor Bob Martinez, advising him of her views on additional legislation restricting abortion rights. She copied members of the City Council, members of the Broward Legislative Delegation, and the National Organization of Women with the letter to Governor Martinez. At the bottom of both letters were stamped the words, "Not Paid for With City Funds."

45. On the letter to Nova University, below the signature of Lieberman appeared the notation, "IL/rr." Kaminsky surmised from this notation that the letter had been dictated by Lieberman and typed by Rusty Roberts on City time and using City equipment. Had he made an inquiry concerning the letter, he would have learned that the letter was typed by Lieberman at her home and on her personal time and that Ms. Roberts had given Lieberman permission to place her initials on the letter. The letter was not prepared by City employees on City time using City equipment.

46. The letter to Governor Martinez was typed by Ms. Roberts on City time and using City equipment. Ms. Roberts inadvertently duplicated the letter on Lieberman's personal stationery rather than City stationery. The letter did serve a public purpose.

47. Kaminsky never spoke with Lieberman or the City Attorney about the stationery issue prior to filing the Complaint. If he had he would have been advised that the use of this type of stationery by Lieberman had been previously raised and resolved by the Commission on Ethics in an ethics Complaint which had been filed against Lieberman. Prior to filing the Complaint, Kaminsky made no investigation or inquiry to learn the circumstances in which the letters were prepared.

48. On May 12, 1992, the Commission on Ethics issued a Determination and Order finding that Kaminsky's allegations concerning the two letters were legally insufficient to indicate a violation of Section 112.313(6), Florida Statutes.

ATTORNEYS' FEES AND COSTS

49. After Kaminsky filed the Complaint against Lieberman, City Attorney Dick Michelson retained Samuel S. Goren of the law firm of Josias & Goren to represent Lieberman in the proceedings.

50. Thereafter, the City hired Stuart Michelson to replace Samuel Goren as Lieberman's attorney because Kaminsky's attorney had indicated that Mr. Goren would be a material witness in the fee proceedings. Samuel Goren and Stuart Michelson charged $125 per hour for their services, and Stuart Michelson billed $50 per hour for paralegal time. The $125 rate was below the market rate for such services in the community.

51. Dick Michelson billed the City at the rate of $100 per hours for 8.5 hours of service from July 20, 1992 through September 24, 1992. He billed the City at the rate of $125 per hour for 1.8 hours of service from December 2, 1992 through January 27, 1993. From March 5, 1993 through October 19, 1993, he billed the City for 21.5 hours at $125 per hour. The rate of $125 per hour for the services which were provided for services rendered from March 5, 1993 through October 19, 1993 was a reasonable rate and 21.5 hours was a reasonable amount of time spent for the services provided during this time period.

52. The rate of $125 per hour is a reasonable rate for the services provided by Samuel Goren in his representation of Lieberman in relation to the Kaminsky Complaint and this fee proceeding and 61.5 hours is a reasonable number of hours spent by Mr. Goren in relation to the Kaminsky Complaint and this fee proceeding.

53. The rate of $125 per hour is a reasonable rate for the services provided by Stuart Michelson in his representation during this fee proceeding. The rate of $50 per hour is a reasonable rate for paralegal services provided by Stuart Michelson's paralegal in this fee proceeding. It was reasonable for Stuart Michelson to spend 104.3 hours for services provided through March 7, 1994. It was reasonable for a paralegal to spend 106.8 hours for services provided through March 7, 1994. Stuart Michelson spent 37.5 hours at the final hearing in this proceeding which is a reasonable amount of time for the services provided at the final hearing.

54. Mr. Jeffery Pheterson testified as an expert witness in this case on behalf of Lieberman. He billed the City at the rate of $125 per hour for 25.4 hours of service rendered as an expert witness.

55. The costs billed to the City by Goren and Stuart Michelson relating to this case were $665.89 as of March 8, 1993. Those costs are reasonable.

ILL WILL AND HOSTILITY

56. After Lieberman defeated Kaminsky in 1988, Kaminsky in referring to Lieberman told Al Geraffi, the mayor of Lauderdale Lakes, that the "G__ D___ bitch, f___ing beat me. She isn't worth a shit." Kaminsky made similar remarks about Lieberman to Mayor Geraffi on three different occasions.

57. On the day of the 1988 mayoral election, Kaminsky had a heated discussion with the president of the firefighter's union concerning campaign literature that was derogatory to Lieberman. Kaminsky wanted to know why the union members were not being allowed to pass out the campaign literature. During the conversation, Kaminsky referred to Lieberman as a bitch.

58. Shortly after the 1988 election, Lieberman contacted Kaminsky to set up a meeting to discuss projects that Kaminsky had initiated as mayor. Kaminsky told her that he harbored ill will toward her and had harsh feelings, thus, he did not want to meet with her.

59. Senator Matthew J. Meadows, who was a former City Commissioner, heard Kaminsky refer to Lieberman as the "f______g bitch and the f_____g broad" before, during and after the 1988 mayoral election. Senator Meadows did not understand the remarks to have been made jokingly.

60. Kaminsky did not think that it would serve any purpose for him to know whether Lieberman relied on legal advice regarding the issues in the Complaint because he felt that she dictated the City Attorney's legal opinions.

KAMINSKY'S RELIANCE ON LEGAL ADVISE

61. Having judged the credibility of the witnesses, I find that Kaminsky informally discussed the Complaint with his brother-in-law, Joseph Pardo, prior to filing the Complaint. The discussions took place in Mr. Pardo's and Kaminsky's homes. When Kaminsky was asked at his deposition whether he formally retained Mr. Pardo or just consulted with him informally, Kaminsky replied: "Just very informally. We visit. We are family."

62. Kaminsky knew that Mr. Pardo, an attorney, was not experienced in matters dealing with Chapter 112, Part III of the Florida Statutes, and had no experience practicing before the Florida Commission on Ethics. Mr. Pardo was not familiar with the City Code and Kaminsky knew it.

63. Kaminsky told Mr. Pardo what the code was and let Pardo read portions of the code. Kaminsky told Pardo what he felt was occurring and told Pardo that he intended to file an ethics complaint. Mr. Pardo advised Kaminsky that he thought Kaminsky was following the proper procedure.

CONCLUSIONS OF LAW

64. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

65. 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 the officer or employee and in which such complaint is found to 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 findings 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.

66. Rule 34-5.029(3), Florida Administrative Code, 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.

67. Lieberman has established that the Complaint filed by Kaminsky was frivolous and was without basis in law or fact. All but one of the issues of the Complaint were dismissed without investigation as legally insufficient to state a possible ethics violation. The Commission ordered an investigation of the issue of the pay increases for the City Council, in part, based on the wording of the Compliant which would lead one to believe that Lieberman had voted on the pay raises. After the investigation revealed that Lieberman did not vote on the pay raises and that she received no personal benefit from the enactment of the ordinances raising the City Council members' salaries, the Commission determined that there was no probable cause to believe that an ethics violation had occurred.

68. Lieberman has established that Kaminsky filed the Complaint with a malicious intent to injure the reputation of Lieberman. The testimony was clear that Kaminsky had ill will and hostility toward Lieberman. This is evidenced by his derogatory references to her prior to, during and after the 1988 mayoral election. Kaminsky seemed to have a personal vendetta against Lieberman because she had defeated him in the election. Kaminsky felt that Lieberman was more culpable for the passage of the ordinances for which he complained than the City Council members who actually voted on the ordinances. He was not interested in hearing the interpretation of the City Attorney concerning the ordinances because he felt that Lieberman essentially dictated the legal opinions of the City Attorney and therefore, whatever the City Attorney said was of no importance. There was no competent substantial evidence to support Kaminsky's supposition that the City Attorney's interpretations were not based on his own independent judgement.

69. Kaminsky did not investigate his allegations prior to filing the Complaint. He felt that because he read the City Charter and City Code to have a particular meaning that there was no further need to learn the basis for the interpretation on which that the mayor had relied. He did not leave room for the possibility that his interpretation could be wrong. He imputed wrongful intent to Lieberman simply because she had a different interpretation of the City Code and City Charter. He assumed that the letter to Nova University had been written by a City employee on City time, and using City equipment without making an investigation to find out whether that assumption was true.

70. Kaminsky did informally discuss the Complaint with his brother-in-law prior to filing the Complaint. Kaminsky knew that Mr. Pardo was not familiar with the City Code, the City Charter, and Chapter 112, Florida Statutes. The facts deduced at hearing do not show that Kaminsky told Mr. Pardo all that would have been necessary for Mr. Pardo to have given an informed opinion regarding the merits of the Complaint. See Glass v. Parrish, 51 So.2d 717 (Fla. 1951) as it relates to advice of counsel as a defense to malicious prosecution. In Glass, the Court stated that reliance on advice of counsel is a defense to malicious prosecution when there has been a full and complete disclosure to the attorney before his advice is given and followed. Since Kaminsky had not investigated the allegations to learn the legal interpretations of the City Code and City Charter by the City Attorney, to learn whether Lieberman had personal knowledge that the ordinances passed were in violation of the law, to learn whether Lieberman had gained a personal benefit from the passage of the pay increases for the City Council members, and to learn whether letters had been written using City personnel during office hours for business not related to the City, it cannot be said that Kaminsky made a full and complete disclosure to Mr. Pardo.

71. Based on the guidelines set forth in Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), $33,440 is a reasonable amount for attorney and paralegal fees for services rendered in this case. The amount for the attorneys' fees is calculated by multiplying $125 per hour by 224.8 hours. The hours billed by the City Attorney prior to the dismissal of the Complaint by the Commission are not included based on Florida Bar Opinion 77-30, May 9, 1978, which indicates that the City Attorney could not have represented Lieberman in the matter. The amount for paralegal costs is calculated by multiplying $50 per hour by 106.8 hours. Reasonable for the costs incurred in this case, including the cost for Mr. Pheterson as an expert witness, are $3,840.89.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED Ilene Lieberman be awarded attorney's fees and costs of $37,280.89. It is further recommended that jurisdiction not be retained by the Division of Administrative Hearings to determine fees incurred after March 8, 1993. The recommended amount includes Stuart Michelson's actual time spent at hearing.

DONE AND ENTERED this 18th day of January, 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 18th day of January, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1181EC

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:

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-6: Accepted in substance.

2. Paragraph 7: The first sentence is rejected as

unnecessary. The second sentence is accepted in

substance.

3. Paragraphs 8-10: Accepted in substance.

4. Paragraph 11: The last sentence is rejected as

constituting a conclusion of law. The remainder is

accepted in substance.

5. Paragraph 12: The second sentence is accepted in

substance. The third sentence is rejected as

constituting a conclusion of law. The remainder is

rejected as constituting argument.

6. Paragraph 13: The first sentence is rejected as

constituting argument. The second sentence is accepted

in substance.

7. Paragraphs 14-15: Accepted in substance.

8. Paragraph 16: Rejected as unnecessary.

9. Paragraph 17: Accepted in substance.

10. Paragraph 18: The first two sentences are rejected as

constituting argument.

11. Paragraphs 19-20: Accepted in substance.

12. Paragraph 21: Rejected as unnecessary.

13. Paragraph 22: Rejected as constituting argument.

14. Paragraph 23: Accepted in substance.

15. Paragraphs 24-25: Rejected as constituting argument.

16. Paragraph 26: The first sentence is accepted in

substance. The remainder is rejected as constituting

argument.

17. Paragraphs 27-37: Accepted in substance.

18. Paragraph 38: Rejected as unnecessary.

19. Paragraph 39: Accepted in substance.

20. Paragraph 40: Rejected as unnecessary.

21. Paragraphs 41-45: Accepted in substance.

22. Paragraph 46: Rejected as unnecessary.

23. Paragraphs 47-58: Accepted in substance.

24. Paragraphs 59-62: Accepted in substance.

25. Paragraph 63: Rejected as constituting argument.

26. Paragraphs 64-67: Accepted in substance.

27. Paragraph 68: Accepted to the extent that that is what

he testified but rejected to the extent that that is

what is reflected in Lieberman's Exhibit No. 20.

28. Paragraph 69: Rejected to the extent that he testified

that the amount reflected costs and fees.

29. Paragraph 70: Accepted in substance.

30. Paragraph 71: Accepted in substance.

31. Paragraph 72: Accepted that that was his testimony but

rejected to the extent that that number of hours is

not reflected in the invoices submitted in evidence.

32. Paragraphs 73-77: Accepted in substance.

33. Paragraph 78: Rejected as constituting argument.

34. Paragraphs 79-83: Rejected as unnecessary.

35. Paragraph 84: Accepted in substance.

36. Paragraphs 85-87: Rejected as constituting argument.

37. Paragraphs 88-91: Accepted in substance.

38. Paragraphs 92-93: Rejected as constituting argument.

39. Paragraphs 94-96: Accepted in substance.

40. Paragraph 97: Rejected as unnecessary.

41. Paragraphs 98-99: Accepted in substance.

42. Paragraphs 100-103: Rejected as unnecessary.

43. Paragraphs 104-110: Accepted in substance.

44. Paragraph 111: Rejected as unnecessary.

45. Paragraphs 112-113: Rejected as constituting argument.

46. Paragraphs 114-118: Rejected as unnecessary.

47. Paragraph 119: Rejected as constituting argument.

48. Paragraphs 120-122: Rejected as unnecessary.

49. Paragraph 123: Rejected as constituting argument.

50. Paragraphs 124-125: Accepted in substance.

51. Paragraphs 126-128: Rejected as unnecessary.

52. Paragraphs 129-130: Accepted in substance.

53. Paragraphs 131-139: Rejected as unnecessary.

54. Paragraphs 140-141: Accepted in substance.

55. Paragraph 142: Rejected as unnecessary.

56. Paragraph 143: Rejected as constituting argument.

57. Paragraph 144. Accepted in substance.

58. Paragraph 145: Rejected as constituting argument.

59. Paragraph 146: Rejected as unnecessary.

60. Paragraph 147: Rejected as constituting argument.

61. Paragraph 148: Rejected as unnecessary.

62. Paragraphs 149-152: Rejected as constituting argument.

63. Paragraphs 153-170 Accepted in substance.

64. Paragraph 171: Rejected as constituting argument.

65. Paragraph 172: Accepted in substance.

66. Paragraphs 173-174: Rejected as constituting argument.

67. Paragraph 175: Accepted in substance.

68: Paragraph 176: Rejected as unnecessary.

69 Paragraphs 177-178: Rejected as constituting argument.

70. Paragraphs 179-184: Accepted in substance.

71. Paragraphs 185-186: Rejected as constituting argument.

72. Paragraphs 187-188: Rejected as subordinate to the

facts actually found.

73. Paragraphs 189-191: Accepted in substance.

74. Paragraph 192-201: Rejected as subordinate to the facts

actually found.

75. Paragraphs 202-209: Rejected as irrelevant.

76. Paragraphs 210-212: Rejected as subordinate to the

facts actually found.

77. Paragraphs 213-218: Rejected as constituting argument.

Complainant's Proposed Findings of Fact.

1. Paragraph 1: Accepted in substance to the extent that

Kaminsky may have thought that Lieberman violated the

City Code and Charter but rejected to the extent that

such statement implies that Lieberman did violate the

law.

2. Paragraph 2: Accepted in substance.

3. Paragraph 3: Accepted in substance to the extent that

Kaminsky believed when he filed the Complaint that

Lieberman violated the City Code and Charter for her own

personal benefit with the exception of the allegations

relating to the salary increases for the City Council

members. Rejected to the extent that the statement

implies that Lieberman did violate the law for her

personal benefit.

4. Paragraph 4: Accepted to the extent that Ms. Striker

and Mr. O'Brien had voiced their objections to the

payment of the legals fees related to the Aricola ethics

complaint.

5. Paragraph 5: Accepted in substance to the extent that

Kaminsky talked informally with his brother-in-law who

was an attorney pertaining to the Complaint. Having

judged the credibility of the witnesses, rejected that

Pardo reviewed all the materials pertaining to the

Complaint.

6. Paragraph 6: Accepted in substance with the exception

of the allegations as to personal benefit relating to

the City Council salary increase. However, rejected to

the extent that such a statement implies that Kaminsky's

belief was reasonably based on fact or law.

7. Paragraph 7: Rejected to the extent that Mr. Stracher's

opinion is based on competent substantial evidence.

8. Paragraph 8: Accepted to the extent that there were

ordinances passed but rejected to the extent that such

ordinances allowed for the expenditure of legal fees and

the salary increases which were previously prohibited

prior to the passage of the amendments. The ordinances

merely clarified City's existing policy and

interpretation relating to the unamended ordinances.

9. Paragraph 9: Having judged the credibility of

Kaminsky, the paragraph is rejected.

10. Paragraph 10: Accepted in substance.

11. Paragraph 11: Rejected as not supported by the greater

weight of the evidence.

12. Paragraphs 12-14: Rejected as not supported by

competent, substantial and credible evidence.

COPIES FURNISHED:

Stuart R. Michelson, Esquire

1111 Kane Concourse, Suite 517

Bay Harbor Islands, Florida 33154

Anthony J. Titone, Esquire

7471 West Oakland Park Blvd., Suite 110

Ft. Lauderdale, Florida 33319

Kerrie Stillman

Clerk & Complaint Coordinator

Ethics Commission

Post Office Box 6

Tallahassee, Florida 32399-0006

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.