STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE
HEARINGS
MAXINE HOLST, )
)
Petitioner,
)
)
vs. ) Case No. 99-0149FE
)
MARY LUEDERS BURNETT, )
)
Respondent.
)
__________________________________)
RICHARD MCGATH, )
)
Petitioner,
)
)
vs. ) Case No. 99-0161FE
)
MARY LUEDERS BURNETT, )
)
Respondent. )
__________________________________)
MARSHA STRANGE, )
)
Petitioner,
)
)
vs. ) Case No. 99-0162FE
)
MARY LUEDERS BURNETT, )
)
Respondent.
)
__________________________________)
RECOMMENDED ORDER
Pursuant
to notice, the Division of Administrative Hearings, by its duly-designated
Administrative Law Judge, Carolyn S. Holifield, held a formal hearing on May
13, 1999, in Gainesville, Florida.
APPEARANCES
For Petitioners: S. Scott Walker, Esquire
Post Office Box 1070
Gainesville, Florida 32602-1070
For
Respondent: Mary Lueders Burnett
Post Office Box 381
McIntosh, Florida 32664-0381
STATEMENT OF THE ISSUES
Whether Petitioners are entitled to
recover costs and attorney's fees against Respondent and, if so, in what
amount.
PRELIMINARY STATEMENT
In March 1998, Respondent
filed separate complaints with the State of Florida Commission on Ethics
(Ethics Commission) against Petitioners Maxine Holst, Richard McGath, and
Marsha Strange alleging numerous violations of the Code of Ethics for Public
Employers and Officers (Code of Ethics).
After filing the initial complaints, Respondent also filed several
additional complaints against Petitioners.
The Ethics Commission considered these subsequently-filed complaints as
amendments to the initial complaints.
Except as noted in this Recommended Order, the matters alleged in the
complaints were investigated. Upon
completion of the investigation, the Ethics Commission issued a Public Report
in each case, finding that there was no probable cause to believe that
Petitioners violated the Code of Ethics and dismissed the complaints. Thereafter, each Petitioner timely filed a
Petition for Attorney's Fees and requested a formal hearing.
On
or about January 13, 1999, the Ethics Commission separately forwarded the Petitioners’
cases to the Division of Administrative Hearings for assignment of an
administrative law judge to conduct the final hearings. By order issued February 22, 1999, the three cases were consolidated. A Notice of Hearing was issued on February 22,
1999, and the final hearing was conducted as noticed.
At
hearing, Petitioners Marsha Strange, Maxine Holst, and Richard McGath testified
and also presented the testimony of Elizabeth Wray and expert witness, Mark
Herron. Petitioners' Exhibits numbered
1-8 and 11-20 were received into evidence.
Respondent presented the testimony of six witnesses: Barbara Fellman, Eugene Calwell, Harold
Miller, June Glass, Barbara Bessent, and S. Scott Walker. At hearing, Respondent's Exhibits numbered 1-4
were received into evidence. Also,
Respondent's late-filed Exhibits numbered 4a-24 were received into evidence.
At
the conclusion of the hearing, by agreement of the parties, the time for filing
post-hearing submissions was set for more than the ten days after the
Transcript was filed. A Transcript of
the proceeding was filed on July 9, 1999.
Respondent filed a Closing Statement, Proposed Recommended Order, and
Memorandum of Law on June 18, 1999, prior to the filing of the Transcript. Petitioners timely filed their Proposed
Recommended Order under the extended time frame.
After
the final hearing, numerous documents, including letters, newspaper articles,
and minutes of McIntosh Council meetings, were filed by or on behalf of
Respondent. These documents were placed
on the record pursuant to a letter issued by the undersigned on September 9,
1999. The documents were not received
into evidence and have not been considered in this Recommended Order.
FINDINGS OF FACT
1. At all times relevant to
this proceeding, Petitioner, Marsha Strange, was the Mayor of McIntosh,
Florida, having served in that position for approximately ten years.
2. The
Town of McIntosh (Town or Town of McIntosh) has a population of approximately
400 and has only three paid employees on its staff.
3. The
Town of McIntosh has a weak mayoral form of government. Under this system of government, the mayor
does not have the power to appoint, promote, or dismiss Town employees or to
appoint members to the Town's various committees or boards. Rather, these decisions are made by the
elected five-member Town Council. The
mayor is not a member of the Town Council and has no power to vote on issues
coming before that governing body.
Moreover, the mayor of the Town of McIntosh is not paid.
4. On
March 5, 1998, Respondent, Mary Lueders Burnett (Respondent), filed a verified
ethics complaint against Mayor Marsha Strange, alleging Mayor Strange had
violated Section 112.3135, Florida Statutes, regarding the appointment of
relatives. In the complaint, Respondent
stated that the mayor's brother-in-law, Thurman Kingsley, was appointed as the
only person authorized to sign building permits. The complaint stated:
I believe that
this appointment to a position involving the approval of the Mayor by virtue of
her management responsibilities mandated in the Town Charter, constitutes a
violation of Section 112.3135, Florida Statutes, regarding the appointing of
relatives.
While our
municipality is less than 35,000, our population is 413. I believe the function involves land planning
or zoning as stated in the statute.
5. Within
a month of filing the initial complaint against Mayor Strange, Respondent
separately filed three additional verified complaints against Mayor Strange.
6. On
March 20, 1998, Respondent filed a second complaint against Mayor Strange which
alleged that the Town of McIntosh failed to comply with its Comprehensive
Plan. Specifically, Respondent claimed
that the official zoning map, Public Works Manual, and Land Development
Regulations, documents required by the Town's Comprehensive Plan, did not
exist. Respondent asserted that this
alleged act "constitutes malfeasance and is a gross misuse of public
position in violation of Florida Statutes." Notwithstanding Respondent's allegation that the Town had no land
development regulations, in a letter dated March 13, 1998, signed by Respondent
and attached to this ethics complaint, Respondent cites extensively from the
Town's Land Development Code.
7. On
April 3, 1998, Respondent filed a third complaint against Mayor Strange
alleging that the mayor had (1) improperly determined that the terms of members
of the Town's Code Enforcement Board had expired; (2) failed to post notice of
vacancies on that board; and (3) failed to adopt rules for the recruitment and
appointment of board members. In this
complaint, Respondent contended that the alleged acts were a breach of public
trust in violation of Sections 112.311(6) and 286.011, Florida Statutes.
8. On
April 5, 1998, Respondent filed a fourth ethics complaint against Mayor Strange
alleging that on certain property in the Town, land development by a former
Town official was taking place without proper permits. In this ethics complaint, Respondent
indicated that on March 4, 1998, she had filed a Notice of Complaint with the
Town regarding this issue but that the Town's Code Enforcement Officer had
determined that the complaint was unfounded.
In the ethics complaint, Respondent stated that:
It is my
belief that the code enforcement officer as well as the mayor and the members
of the McIntosh Town Council, under whose pleasure the code enforcement officer
is appointed, have violated Section 112.313(6), Florida Statutes, for allowing
this unpermitted land development by a former town official.
9. Respondent's
second, third, and fourth ethics complaints against Mayor Strange were found to
be without merit and dismissed by the Ethics Commission without the necessity
of an investigation.
10. The Ethics Commission authorized an
investigation of the allegations contained in Respondent's initial complaint,
Complaint No. 98-37, alleging a nepotism violation against Mayor Strange.
11. Larry Hill, a senior investigator,
investigated the allegations in Respondent's Complaint No. 98-37 on behalf of
the Ethics Commission. As a part of his
investigation, Mr. Hill interviewed Respondent and Mayor Strange. Following the investigation, Mr. Hill
incorporated his factual findings in a Report of Investigation dated June 19,
1998.
12. After considering the Report of Investigation
and the Advocate’s recommendation, the Ethics Commission determined that there
was no evidence that Mayor Strange advocated, recommended, or otherwise played
any role in having Mr. Kingsley appointed to the municipal position. Thereafter, the Ethics Commission issued an
Order finding that there was no probable cause to believe that Mayor Strange
violated Section 112.3135, Florida Statutes, regarding her brother-in-law's
appointment to a Town position as alleged in Respondent's complaint.
13. According to the Report of Investigation,
Thurman Kingsley was Mayor Strange’s brother-in-law. However, Respondent admitted she had no evidence that Mayor
Strange had advocated or was in any way involved in Mr. Kingsley's appointment
to his municipal position as a building official. Furthermore, according to the report, Respondent acknowledged
that she knew that Mayor Strange did not have a vote on any official Town
matters.
14. During Mr. Hill's interview with her, Mayor
Strange indicated that she had taken no action to appoint or promote Thurman
Kingsley as the building official for the Town of McIntosh. Also, at hearing, Mayor Strange provided
credible testimony that she did not take part in the Town's hiring of Thurman
Kingsley and did not have the power to do so.
15. Thurman Kingsley was appointed as building
permit official for the Town of McIntosh approximately four years prior to
Respondent's filing the complaint of a violation of the nepotism law by Mayor
Strange. The minutes of the Town
Council meeting at which Mr. Kingsley was approved as a building permit
official reflect that Mayor Strange played no role in his appointment to the
building committee.
16. At the time Respondent filed the verified
complaint against Mayor Strange, she was aware that the mayor had no power to
appoint any town official. Moreover,
Respondent had no first-hand knowledge
of the alleged violations nor had the factual allegations been provided to her
by reliable sources. Although
Respondent had no knowledge or reliable information to support the allegations,
she filed a verified complaint against Mayor Strange.
17. In light of the foregoing, the statements and
allegations contained in the Respondent's complaint against Mayor Strange were
filed with knowledge that they were false or with reckless disregard for whether the complaint contained false
allegations of fact material to a violation of the Code of Ethics.
18. On October 9, 1997, Petitioner, Maxine Holst,
was appointed on a temporary basis as Town Clerk for the Town of McIntosh. Six months later, on April 9, 1998, Ms.
Holst was appointed to the position as permanent Town Clerk. In both instances, Ms. Holst was appointed
by the Town Council and served at the pleasure of and answered to that body.
19. On March 3, 1998, Respondent filed a complaint
with the Ethics Commission against Maxine Holst. The complaint alleged that "the issuing clerk" misused
her public office by issuing a building permit to the relative of a Town
Council member. The complaint further
alleged that the permit was issued contrary to applicable issuance criteria and
in spite of the fact that the permit had been denied by the former Town Clerk
because the necessary requirements had not been met. In Respondent's complaint against Ms. Holst, Respondent, wrote:
The issuing
clerk was aware of the previous denial of permit. I believe this act represents a direct violation of the Florida
Statutes, Section 112.313(6) as misuse of public position.
20. The building permit referred to in
Respondent's complaint was for construction of a carport on property owned by
Wilshire Walkup, a family member of Howard Walkup. According to Respondent's complaint, when the subject permit was
issued, Howard Walkup was a member of the Town Council.
21. On March 9, 1998, Respondent filed a second
ethics complaint against Ms. Holst, alleging that she (1) failed to file
applicable financial disclosure after being appointed to her public position;
and (2) refused to return the former Town Clerk's notary seal left through
oversight at the clerk's office. In
regard to the first allegation, Respondent stated:
A Town Clerk
was appointed in October 1997. This was
on a temporary basis but later became a permanent appointment.
As of this
date, according to the [O]ffice of the Marion County Supervisor of Elections,
the town clerk has not filed Form 1, Limited Financial Disclosure. This is a violation of the Sunshine
Amendment.
22. In regard to the allegation concerning the
notary seal, Respondent stated in her complaint:
A Town Clerk
was appointed in October of 1997. The
former Town Clerk, by oversight, left her notary seal at the office.
The newly
appointed town clerk, M. Maxine Holst, refused, upon the former clerk's three
requests to give the notary seal to it's [sic] owner."
23.
The letter acknowledged that the notary seal was returned to the former
Town Clerk but noted that the act of refusing to return the notary stamp
constituted a misdemeanor according to Section 117.05(9), Florida
Statutes. Finally, Respondent's letter
stated that the alleged act "constituted misuse of public position in
violation of Section 112.313(6) of Florida Statutes."
24. On April 3, 1998, Respondent filed a third
ethics complaint against Ms. Holst. The
allegations in this complaint were identical to those made in the ethics
complaint filed by Respondent against Mayor Strange on the same date and
described above in paragraph 7. In
fact, a copy of the same letter was attached to the complaints filed on April
3, 1999, against Mayor Strange and Ms. Holst.
25. In the third complaint filed against Ms.
Holst, Respondent alleged that the terms of members of the Code Enforcement
Board had been determined without documentation and concluded that the new
members appointed to the Board were chosen without public notice and
search. In this complaint, Respondent
alleged that:
The Town
Clerk, Maxine Holst, Mayor Marsha Strange, and Council Members Stott, Smith,
McCollum and Walkup determined without documentation that the [Code Enforcement
Board] Chairman's and another member's terms had expired. Although the Chairman and the other members
wished to be considered for reappointment, the Town Council recruited, without
posting a notice that interested residents might apply for the position,
and appointed their replacements.
I believe that
the bogus expirations and the reappointments of hand-picked replacements
without notice to board members or the public posting of the vacancies
represents a breach of public trust in violation of Florida Statute 112.313(6).
26. The Ethics Commission authorized a preliminary
investigation of the complaints filed by Respondent against Maxine Holst. The investigation was conducted by Larry D.
Hill, a senior investigator with the Ethics Commission. The results of Mr. Hill’s findings were recorded
in a Report of Investigation dated June 19, 1998. Based on the Report of Investigation and the Advocate’s
recommendation, the Ethics Commission issued an Order finding that there was no
probable cause to believe that Maxine Holst was guilty of the violations
alleged in the three complaints filed by Respondent.
27. The initial ethics complaint filed by
Respondent against Ms. Holst alleged that Ms. Holst (1) improperly issued a
building permit although the application had been previously denied; (2) was
aware, when she issued the permit, that the permit had been denied; and (3)
issued the permit only because the applicant was related to a member of the
Town Council. These allegations were
not true. Moreover, at the time the
complaint was filed, there was no basis in fact for the allegations made by
Respondent.
28. When Margaret Walkup, wife of Wilshire Walkup,
first submitted the permit application, it was accepted by the Town Clerk,
Barbara Bessent. At the direction of
June Glass, the chairperson of the Town's Historic Preservation Board, Ms. Bessent told Mrs. Walkup that the
application must also include a site plan.
Mrs. Walkup drew a diagram of a carport that was to be constructed and
re-submitted the application. Ms.
Bessent accepted the application.
29. When a permit application involved a request
for construction in the Town’s historic district, the Town's Historic
Preservation Board would typically be required to review and approve the
application. In this case, Ms. Glass
believed that Mrs. Walkup’s application was incomplete in that the diagram
drawn on the application did not, in Ms. Glass' opinion, constitute a site
plan. In light of her belief, Ms. Glass
told Ms. Bessent to send a letter to Mrs. Walkup notifying her that the application
was incomplete and/or that it was denied.
The letter was never written and no official action was taken on the
application. Ms. Holst’s immediate
predecessor, Ms. Bessent, never approved or denied the permit application nor
did she create a file or in any way document the status of the
application. Rather, she put the
application in the correspondence file.
This failure to document would make it impossible for anyone to know or
determine what action, if any, had been taken on the application.
30. On or about October 13, 1999, Margaret Walkup
went to the Town Clerk's office and inquired about the status of the previously-filed
building permit application. When the
inquiry was made, Ms. Holst had been in the position of Town Clerk less than a
week, was unfamiliar with the permitting process, and had no knowledge of the
permit application in question.
Therefore, prior to responding to Mrs. Walkup’s inquiry, Ms. Holst
sought the advice of Town Council member Eunice Smith, who was in the office training
Ms. Holst. Ms. Smith was an appropriate
person to train Ms. Holst for her new position because, several years ago and
prior to being elected to the Town Council, Ms. Smith had worked as the Town
Clerk.
31. After Ms. Holst and/or Town Councilwoman Smith
located the application, Councilwoman Smith advised Ms. Holst that the Town's
Land Development Regulations required issuance of the permit because the permit
had been pending for more than 45 days.
Based on Town Councilwoman Smith's
advice and directive, Ms. Holst
issued the permit, which allowed the construction of an aluminum carport on the
property owned by Wilshire Walkup.
32. Respondent's statements in the March 3, 1999,
complaint against Ms. Holst, that the subject permit application was initially
denied and that Ms. Holst was "aware" of the denial, were false and
had no basis in fact.
33. Finally, Respondent alleged that Ms. Holst
issued the permit to Wilshire Walkup because he was related to Howard Walkup, a
member of the McIntosh Town Council.
This allegation was false and was easily discernable as such. Although Howard Walkup was a member of the
McIntosh Town Council when Respondent filed her complaint against Ms. Holst, he
was not a member of the Town Council in October 1997 when the permit was issued
by Ms. Holst as alleged by
Respondent.
34. Respondent offered no explanation of the
basis of her belief that at the time she filed the complaint, these statements
were true. Thus, the allegations
contained in Respondent's first complaint against Ms. Holst were filed with
knowledge that they were false or with reckless disregard for whether the
complaint contained false allegations of fact material to a violation of the
Code of Ethics.
35. As noted in paragraphs 21 and 22, Respondent's
second complaint alleged that Ms. Holst failed to file a financial disclosure
and also refused to return the notary seal to its owner and the former Town
Clerk, Barbara Bessent.
36. The allegation concerning Ms. Holst's failing
to file a financial disclosure form is true.
As of March 9, 1998, Ms.
Holst had not filed the required financial disclosure form. In fact, it was only after Respondent filed
this complaint that Ms. Holst first
learned that the filing was required.
However, upon learning of the requirement, Ms. Holst immediately filed
the required financial disclosure form.
37. Respondent stated that the former Town
Clerk, Ms. Bessent, left her
notary seal in the Town Clerk's Office through "oversight" and,
thereafter, requested on three occasions that Ms. Holst give her the seal. There is no indication that Respondent had
first-hand knowledge of the facts surrounding the return of Ms. Bessent's
notary seal nor was there any evidence that Respondent's allegations were based
on information obtained from reliable sources.
Moreover, these statements made by Respondent in the March 9, 1998,
complaint against Ms. Holst are contradicted by the credible testimony of Ms.
Bessent, the person most knowledgeable about the situation involving her notary
seal.
38. Respondent's statement that Ms. Bessent left
her notary seal in the Town Clerk's office through an oversight is not true.
39. On Ms. Bessent's last day as Town Clerk, she
voluntarily and intentionally left her notary seal in the Town Clerk's office
after being asked to do so by Town Council member McCullum. Councilman McCullum explained to Ms. Bessent
that he wanted to "clear" her and indicated that it would "be
safer" for her to leave the notary seal at the office. Ms. Bessent complied with Councilman
McCullum's request and never expressed an unwillingness to temporarily leave
the notary seal in the Town Clerk's office.
40. The second allegation included in the second
ethics complaint, that Ms. Holst refused to return a notary stamp to the former
Town Clerk, is false.
41. The former Town Clerk, Barbara Bessent,
provided credible testimony that Ms. Holst never refused to return the notary
seal on the one occasion that Ms. Bessent asked Ms. Holst for the notary seal. When Ms. Bessent made this request, Ms. Holst, who had been Town Clerk only
a few days, told her that if the Town paid for the seal that it belonged to the
Town and that she would have to check with the Town Council. Ms. Bessent was familiar with how the Town
Council worked and knew and understood that Council members wanted to be
consulted on most matters. Ms. Bessent
did not believe that Ms. Holst was refusing to give her the seal and did not
believe Ms. Holst intended to use the seal.
In fact, Ms. Bessent had reason to believe that Ms. Holst was a notary.
42. Several weeks after Ms. Bessent requested
that Ms. Holst give her the
notary seal, a Town Council member authorized Ms. Holst to give Ms. Bessent her
notary seal. Upon receiving this
authorization, Ms. Holst gave Ms. Bessent the notary seal.
43. Prior to Ms. Holst's returning the notary
seal to Ms. Bessent, and soon after
Ms. Bessent resigned as Town Clerk, the Town maintenance man came to the Town
Clerk's Office to retrieve Ms. Bessent's personal items that she had left in
the office. A few weeks later, Ms.
Glass wanted to have Ms. Bessent notarize something for her. After Ms. Bessent told Ms. Glass that her
notary seal was in the Clerk's Office, Ms. Glass volunteered to go to the
Clerk's Office and retrieve the seal.
Ms. Glass went to the office and asked for Ms. Bessent's notary
seal. Ms. Holst did not give Ms.
Bessent's notary seal to either the maintenance man or to Ms. Glass because she
believed that it was improper to give Ms. Bessent's notary seal to a third
party.
44. At the time Respondent made the statements
regarding the notary seal in the March 9, 1998, complaint against Ms. Holst, she either knew they were
false or made them with reckless
disregard for whether the complaint contained false allegations of fact
material to a violation of the Code of Ethics.
45. The allegation in Respondent's third ethics
complaint against Ms. Holst was that she, the mayor, and Town Council members
had improperly determined that the terms of the Town's Code Enforcement Board
had expired. This allegation is false
and has no basis in fact. When
Respondent made the statements and allegations in the complaint, filed on April
3, 1998, she either knew they were false or made them with reckless disregard
for whether the complaint contained false allegations of fact material to a
violation of the Code of Ethics.
46. On January 8, 1998, Petitioner Richard McGath,
a retired Sarasota building inspection official and resident of the Town of
McIntosh, was appointed as the Town's code enforcement officer. This is a voluntary position, and one for
which Mr. McGath receives no
compensation. Mr. McGath spends about
two hours a week performing duties associated with his position as the Town's
code enforcement officer.
47. On March 3, 1998, less than two months after
Mr. McGath agreed to accept the Town's position of code enforcement officer,
Respondent filed a verified ethics complaint against him. In the
complaint, Respondent alleged that Mr. McGath failed to act on a matter
and that such failure was a misuse of his position. The alleged act giving rise to Respondent's complaint
against Mr. McGath was that the
Town Clerk had improperly issued a building permit to Town resident Wilshire
Walkup for construction of a carport, although it failed to meet the
requirements of the Town's Historic Preservation Board. Respondent felt that the permit was issued
only because Wilshire Walkup was related to Town Council member Howard Walkup. On or about December 10, 1997, two months
after the subject permit was issued, Respondent filed a Notice of Complaint
with the Town Clerk, alleging that Mr. McGath refused to take action when he
determined that Wilshire Walkup had constructed an aluminum carport.
48. The position of code enforcement officer was
vacant at or near the time Respondent's December 1997 Notice of Complaint was
filed. Therefore, no immediate action
was taken on the Respondent's complaint.
However, soon after Mr. McGath's appointment as code enforcement
officer, he investigated Respondent's complaint regarding the permit issued to
Wilshire Walkup. During the course of
his investigation, Mr. McGath determined that the building permit had been
issued to Wilshire Walkup on October 13, 1997.
Mr. McGath then went to Wilshire Walkup's property and observed that an
aluminum carport had been constructed.
49. Mr. McGath believed that the structure was in
violation of Town ordinances. However,
Mr. McGath issued a one-time waiver for the structure because the Town Clerk had
issued the building permit on October 13, 1997, and by the time he assumed the
position of code enforcement officer, the structure already had been
constructed. Based on Respondent's
December 1997 Notice of Complaint, the structure had likely been constructed as
early as December 10, 1997. Mr. McGath
explained to Mr. Walkup that any further modifications on the structure would
have to comply fully with all applicable code requirements. These comments were noted on the response
portion of Respondent's Notice of Complaint.
50. Mr. McGath took the action he did with respect
to Wilshire Walkup's carport because, prior to his investigation, the building
permit had been issued and the carport had already been constructed. Both of these events occurred before Mr. McGath was appointed as the Town's
code enforcement officer. Based on his
experience and given the facts related to the Wilshire Walkup project, Mr.
McGath believed that the course of action he chose was a prudent one.
51. Respondent also alleged that Mr. McGath took
no action against Wilshire Walkup because he was related to Howard Walkup, a
member of the Town council. First, as
stated in paragraph 33, Howard Walkup was not a member of the Town Council at
the time the permit was issued. Second,
after Howard Walkup was elected to the Town Council in November 1997, he never
attempted to influence or even discuss the matter with Mr. McGath during his
investigation of the matter. Finally,
prior to his investigating Respondent's December 1997 Notice of Complaint, Mr.
McGath had never met Wilshire Walkup and did not know that he was related to
Town Councilman Howard Walkup.
52. The action taken by Mr. McGath relative to
Respondent's complaint regarding Wilshire Walkup's aluminum carport was not a
misuse of his position as alleged by Respondent.
53. Respondent had no evidence to base her claim
that Richard McGath misused his public office for private gain. Yet, she filed a verified complaint with the
Commission alleging that he had done so.
Respondent offered no reasonable explanation or basis for her believing
that when the statements in her ethics complaint were made, that they were
true.
54. In light of the foregoing, the statements and
allegations contained in Respondent's complaint, filed on March 3, 1998, against Mr. McGath were
filed with knowledge that they were false or with reckless disregard for
whether the complaint contained false allegations of fact material to a
violation of the Code of Ethics.
55. On April 14, 1998, Respondent filed a second
ethics complaint against Mr. McGath. In
that complaint, Respondent alleged that Mr. McGath had violated Section
112.313(6), Florida Statutes, by allowing unpermitted land development by a
former Town official. In the complaint,
Respondent noted that she had previously filed a Notice of Complaint with the
Town regarding the alleged unpermitted land development and that the code
enforcement officer, Mr. McGath, had determined that the complaint was
unfounded.
56. Respondent's Notice of Complaint regarding the
alleged unpermitted land development was filed with the Town on March 4,
1998. Mr. McGath investigated the
matter and determined that on the property in question, a culvert was being put
in to replace another culvert that had been crushed. Based on his investigation, Mr. McGath did not find that there
was unpermitted land development and
thus concluded that Respondent's complaint was unfounded. This finding was made on March 12,
1998. Respondent learned of Mr.
McGath's finding on April 1, 1998, but never questioned him regarding the
reason for his finding.
57. On April 14, 1998, without making any inquiry
into the basis of Mr. McGath's finding, Respondent filed an ethics complaint
alleging that Mr. McGath misused his public position by allowing alleged
unpermitted land development.
Respondent had no factual basis upon which to base the statements and
allegations contained in the ethics complaint against Mr. McGath.
58. In light of the foregoing, the statements and
allegations contained in Respondent's complaint filed on April 14, 1998, against Mr. McGath were
filed with knowledge that they were false or with reckless disregard for
whether the complaint contained false allegations of fact material to a
violation of the Code of Ethics.
59. The Ethics Commission authorized a
preliminary investigation of the complaints filed by Respondent against Mr. McGath. The investigation was conducted by Larry Hill, a senior
investigator with the Ethics Commission.
Thereafter, the Ethics Commission issued an Order finding no probable
cause to believe that Mr. McGath was guilty of the violations alleged in the
two complaints filed by Respondent.
60. Respondent frequently attends the Town Council
meetings and is knowledgeable of the workings of the Town of McIntosh. Moreover, Respondent knows how to obtain
public documents through public records requests and has made such requests on
a regular basis.
61. The record reveals that for many years
Respondent attended many Town Council meetings, made numerous public record
requests to the Town of McIntosh, and wrote numerous letters to the Town
Council, various governmental agencies, and officials. In many of those letters, Respondent
complained of alleged violations by Town officials, cited statutes, codes, and
ordinances, and quoted liberally from Town ordinances, Town council minutes,
and other documents. Many of the
letters prepared by Respondent reflect that she had extensively researched
selective issues contained therein. In
fact, Respondent indicated in one letter that based on her research, she had
determined that certain conduct constituted a misdemeanor offense.
62. However, in the instant case, Respondent not
only failed to research the facts alleged in the complaints, but apparently
never made even a cursory review of the Town records prior to leveling her
complaints against Petitioners.
63. Where allegations are made under oath, as in
this case, it is appropriate for a complainant to at least make a cursory
review of the facts before filing a complaint alleging officials have violated
Florida Statutes.
64. In the instant case, between March 3, 1998,
and April 5, 1998, Respondent filed a
total of nine verified ethics complaints against Petitioners. Three of the complaints were dismissed by
the Ethics Commission without an investigation. In the remaining six complaints which are the subject of this
proceeding, Respondent made numerous unsubstantiated allegations and statements
of fact to which she had no personal knowledge. Respondent also failed to check the accuracy and veracity of
statements before she filed these complaints.
65. Based on the foregoing, it is clear that
Respondent filed the ethics complaints against Petitioners with a malicious
intent to injure the reputations of Petitioners because they were filed with
the knowledge that the complaints contained one or more false allegations, or
with reckless disregard for whether the complaints contained false allegations
of fact material to a violation of the Code of Ethics.
66. In defending themselves against the
allegations in the subject complaints and in this proceeding, Petitioners have
been represented by S. Scott Walker, Esquire, and Gary Printy, Esquire. The normal hourly rate for S. Scott Walker
and Gary Printy, counsel for Petitioners, is $175.00 per hour. This is a reasonable hourly rate. However, in this case, the hourly rate
assessed to Petitioners was $75.00. The
hourly rate of $75.00 is also reasonable.
67. S. Scott Walker expended 47.70 hours on this
matter, including time spent in this proceeding. Mr. Printy expended four hours on this matter. The total attorney time expended on this
matter, 51.70 hours, is reasonable.
68. The attorney's fee of $4,109.47 incurred by
Petitioners as a result of Mr. Walker's representation is reasonable. Also, the attorney's fee of $400.00 incurred
by Petitioners as a result of Mr. Printy's representation is reasonable.
69. Reasonable costs of $231.98 were incurred in
connection with defense of the ethics complaints against Petitioners and in
this proceeding.
CONCLUSIONS OF LAW
70. The
Division of Administrative Hearings has jurisdiction over the parties and the
subject matter of this proceeding.
Section 120.57, Florida Statutes.
71. Pertinent to this proceeding are Section
112.317(8), Florida Statutes, and Rule 34-5.0291(1), Florida Administrative
Code. Section 112.317(8), Florida
Statutes, provides in pertinent part:
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
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, 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
providing entitlement to and the amount of costs and fees . . . .
72. Rule 34-5.0291(1), Florida Administrative
Code, provides:
(1) If 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 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 the Code of Ethics, the
complainant shall be liable for costs plus reasonable attorney's fees incurred
in the defense of the person complained against.
73. According to Section 112.317(8), Florida Statutes,
and Rule 34-5.0291(1), Florida Administrative Code, the award of attorney's
fees requires that the Petitioner show that the complaint was filed with a
malicious intent to injure the reputation of such officers or employees 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 the Part III, Chapter 112, Florida Statutes (Code of
Ethics).
74. In this proceeding, Petitioners have the
burden of proving the grounds for an award of costs and attorney's fees by a
preponderance of the evidence presented at hearing. Rule 34-5.0291(4), Florida Administrative Code. Petitioners have met their burden of proof.
75. The evidence in this case established that the
complaints filed against Petitioners contained numerous unsubstantiated
allegations and statements of fact to which Respondent had no first-hand
knowledge. The evidence also
established that prior to filing the complaints, Respondent failed to check the
accuracy and veracity of her allegations and statements and neglected to make
even a cursory review to determine the truth of the statements and allegations
she made under oath.
76. The evidence in this case established that
Respondent filed the subject ethics complaints against Petitioners with a
malicious intent to injure their reputations by filing the complaints with
knowledge that the complaints contained one or more false allegations or with
reckless disregard for whether the complaints contained false allegations of
fact material to a violation of the Part III, Chapter 112, Florida Statutes.
RECOMMENDATION
Based upon the foregoing Findings of
Fact and Conclusions of Law, it is hereby:
RECOMMENDED
that a final order be entered finding that Respondent, Mary Lueders Burnett, is
liable for attorney's fees of $4,509.47 and costs of $231.98.
RECOMMENDED
this 15th day of September, 1999, in Tallahassee, Leon County, Florida.
___________________________________
CAROLYN
S. HOLIFIELD
Administrative
Law Judge
Division
of Administrative Hearings
The
DeSoto Building
1230
Apalachee Parkway
Tallahassee,
Florida 32399-3060
(850)
488-9675 SUNCOM 278-9675
Fax
Filing (850) 921-6847
www.doah.state.fl.us
Filed
with the Clerk of the
Division
of Administrative Hearings
this
15th day of September, 1999.
COPIES FURNISHED:
S. Scott Walker, Esquire
Post Office Box 1070
Gainesville, Florida 32602-1070
Mary Lueders Burnett
Post Office Box 381
McIntosh, Florida 32664-0381
Sharon Moultry, Clerk
Florida Commission on Human
Relations
325 John Knox Road
Building F, Suite 240
Tallahassee, Florida 32303-4149
Dana Baird, General Counsel
Florida Commission on Human
Relations
325 John Knox Road
Building F, Suite 240
Tallahassee, Florida 32303-4149
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.
* RECOMMENDED ORDER
*NOTE: Correction was made to the COPIES FURNISHED section of the
Recommended order only. Duplicate text
not supplied.
RECOMMENDATION
Based
upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
RECOMMENDED
that a final order be entered finding that Respondent, Mary Lueders Burnett, is
liable for attorney's fees of $4,509.47 and costs of $231.98.
RECOMMENDED
this 30th day of September, 1999, in Tallahassee, Leon County, Florida.
___________________________________
CAROLYN
S. HOLIFIELD
Administrative
Law Judge
Division
of Administrative Hearings
The
DeSoto Building
1230
Apalachee Parkway
Tallahassee,
Florida 32399-3060
(850)
488-9675 SUNCOM 278-9675
Fax
Filing (850) 921-6847
www.doah.state.fl.us
Filed
with the Clerk of the
Division
of Administrative Hearings
this
30th day of September, 1999.
COPIES FURNISHED:
S. Scott Walker, Esquire
Post Office Box 1070
Gainesville, Florida 32602-1070
Mary Lueders Burnett
Post Office Box 381
McIntosh, Florida 32664-0381
Sheri L. Gerety, Complaint
Coordinator
Commission on Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Phil Claypool, General Counsel
Commission on Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
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.