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.