STATE OF
DIVISION OF
ADMINISTRATIVE HEARINGS
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MICHAEL
ADDICOTT, Petitioner, vs. ROBERT
NIEMAN, Respondent. |
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Case No. 04-0043FE |
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RECOMMENDED
ORDER
Pursuant
to notice, a final hearing was conducted in this case on June 17 and 18, 2004,
in
APPEARANCES
For
Petitioner: Stuart R. Michelson, Esquire
Law Office of Stuart R. Michelson
For
Respondent: Robert Nieman, pro se
STATEMENT
OF THE ISSUES
The basic issues in this case are whether
Petitioner, Michael Addicott, is entitled to recover attorney’s fees and costs
from Complainant/Respondent, Robert Nieman, as provided in Section 112.317(8)
Florida Statutes, and, if so, the amount of such attorney's fees and costs.
PRELIMINARY
STATEMENT
On November 19, 2003, Addicott filed his fee
petition in this cause, requesting an award of attorney's fees and costs
pursuant to Section 112.317(8) Florida Statutes, against Nieman. Section 112.317(8), Florida Statutes, allows
such an award when a complaining person files a complaint with the Ethics
Commission "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." In June of
2002, Nieman filed a complaint against Addicott with the Ethics Commission, and
in September of 2002 Nieman filed an amended ethics complaint against
Addicott. The fee petition in this case
asserts that some of the allegations in Nieman's original and amended
complaints against Addicott were made "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."
In due course, the fee petition was referred to the
Division of Administrative Hearings to conduct an evidentiary hearing. At the final hearing in this case, Addicott
testified on his own behalf and also called the following witnesses: Carol Morris, Samuel S. Goren, Esquire, Dr.
James Vardalis, and Leo Santiello.
Addicott also published the deposition of Nieman as well as the
depositions of Judy Cuenca and Bo Jackson. Addicott offered ten exhibits.
Addicott’s Exhibit A-10 was rejected.
The remaining Addicott exhibits were received in evidence.
Nieman testified in his own behalf and called the
following witnesses: Neil Leff, Samuel
Feinman, and Rosemary Wascura. Nieman
offered 17 exhibits. Nieman’s Exhibits
N-02, N-07, N-12, N-13, N-15, and N-17 were rejected. The remaining Nieman exhibits were received
in evidence.
At the conclusion of the evidentiary hearing the
parties requested and were allowed 40 days from the filing of the hearing
transcript within which to file their respective proposed recommended orders. The last volume of the transcript was filed
on July 29, 2004. Thereafter, both
parties filed proposed recommended orders containing proposed findings of fact
and conclusions of law. The proposals
submitted by the parties have been carefully considered during the preparation
of this Recommended Order.
FINDINGS
OF FACT
Nieman's ethics complaints against
Addicott
1. On or about June 14, 2002, Robert Nieman
("Nieman") filed a complaint with the Florida Commission on Ethics
("Ethics Commission") against Michael Addicott
("Addicott"). At that time
Nieman was a police officer of the Town of Golden Beach who was in a work
status of suspended with pay, pending investigation of allegations that Nieman
had engaged in some form of misconduct.
At the time the subject complaint was filed, Addicott was the Mayor of
the Town of Golden Beach. At all times
material to this case, Addicott has been the Mayor of the Town of Golden Beach
or has been a candidate for the office of Mayor.
2. Nieman's June 14 complaint to the Ethics
Commission contained four numbered paragraphs.
Each numbered paragraph described a separate incident involving alleged
conduct by Addicott that Nieman believed was inappropriate and that Nieman believed
should be investigated by the Ethics Commission. The only one of those paragraphs that appears
to be relevant and material to the issues in this case is paragraph 2, in which
Nieman alleged the following:
Mayor Addicott's son had a hit and run
accident within the Town's jurisdiction; hitting and knocking down a concrete
light pole. When the criminal accident
was being investigated and the son approached about the crime, the Mayor's
wife, who was a Councilperson at the time, badgered and tried to intimidate the
officers (myself included. I was a sergeant at the time), raising her voice and
stating that we were "picking on her son." She interfered with our investigation of the
vehicle. The son later admitted to the
incident and after discussions with the then Chief by Mr. and Mrs. Addicott, no
further action was taken by the Golden Beach Police Department.
3. On or about September 20, 2002, Nieman filed
an amendment to his original Ethics Commission complaint against Addicott. The amendment appears to have been in
response to a request by the Ethics Commission for additional information about
the allegations in Nieman's June 14 complaint.
The amendment to the complaint was also arranged in four separate
numbered paragraphs, each providing additional information about essentially
the same four events that were described in the original complaint of June
14. Two of the numbered paragraphs in
the amended complaint appear to be relevant and material to the issues in this
case. The primary subject matter of
paragraph 1 concerns allegations that one of Addicott's sons, Aaron Addicott,
received special treatment by being paid for hours when he did not report to
work as a lifeguard. However, the last
sentence of paragraph 1 of the amended complaint alleges the following new
event not alleged in Nieman's original complaint: "The lifeguard [Addicott's son] was
hired when the Mayor [Addicott] was in office." And paragraph 2 of Nieman's amended Ethics
Commission complaint added the following allegations about the automobile
accident episode.
With regard to the auto accident, both
the Mayor and the former Councilperson, his wife, used their position to have
the accident ignored, Mrs. Addicott responded to the scene of the accident and
Mrs. Addicott directly told the police department not to take any action and
that they better let up on her son. Both
the Mayor and Mrs. Addicott discussed the matter with the former Police Chief
and told him not to interfere. The Chief
was later forced to resign. As the Mayor
was running for election at the time, it benefited him by his son not being
arrested for leaving the scene of an accident.
This is the same son who is the absentee lifeguard. Also, no reimbursement was received from the
Mayor, his wife or son for the damage to the Town's property.
The subject matter scope of the fee
petition
4. The Fee Petition in this case asserts, in
general terms, that Nieman acted with malice by filing complaints against
Addicott with knowledge that the complaints contained one or more false
allegations, or with reckless disregard as to whether the complaints contained
false allegations. The Fee Petition does
not assert that all of the allegations in Nieman's complaints against
Addicott were known to be false or were made with a reckless disregard as to
whether the allegations were false.
Rather, only two of the events alleged in Nieman's complaints are
specified in the fee petition as being events about which Nieman knowingly made
false allegations or about which Nieman made statements with a reckless
disregard as to whether the allegations were false. The paragraphs of the Fee Petition which
describe those two specific events appear at paragraphs 6, 7, 8, and 9 of the
Fee Petition, which read as follows:
6. One of the factual
underpinnings of Nieman's Complaint is that Petitioner [Addicott] interfered
with a police investigation into an automobile accident involving Aaron
Addicott, Petitioner's son. Nieman
admitted that he had no personal knowledge regarding this allegation, and that
he was not personally involved in the
investigation. Incredibly, Nieman
admitted that the accident took place before Addicott was elected Mayor! ***
This is certainly a reckless, if not knowing, false allegation which is
material to a violation of the Florida Ethics Code.
7. At the time of the alleged
incident, Nieman was the Police Chief of the Town of Golden Beach, and
certainly had access to all the necessary records to verify his allegations,
and therefore knew or should have known that his allegations were false.
8. Nieman also alleged that Mayor
Addicott hired his son, Aaron Addicott, to be a Town of Golden Beach part-time
lifeguard, which was in violation of the Florida Ethics Code. However, Nieman admitted that he had no
personal knowledge regarding the Petitioner's involvement in the hiring of his
son. ***
In fact, Addicott had NO involvement in hiring his son, nor does the
Golden Beach Town Charter recognize that the town Mayor need have any
involvement in hiring lower level town employees, such as part-time life guards.
9. At the time of the filing of
the Complaint [with the Ethics Commission], Nieman's allegation that Petitioner
hired his son was made with the knowledge that it was false, or at the very
least with reckless disregard as to whether it was true, as is evidenced by
Nieman's own admission that he had no personal knowledge of the alleged
violation.
Aaron's employment as a lifeguard
5. Section 4.01 of Article IV of the charter of
the Town of Golden Beach sets forth the powers and duties of the mayor. Subsection (b) of that section describes the
"administrative duties" of the mayor, which include:
(1)
The mayor shall nominate a town manager who shall be appointed by
resolution of the council.
(2)
The mayor, together with the town manager, shall carry out all
administrative duties as provided by the charter, ordinance or resolution of
the council.
(3)
The mayor shall approve all written orders, administrative policies and
acts of the town manager.
(4) The
mayor shall upon recommendation of the manager appoint and when
deemed necessary, discipline, suspend or remove town employees. (Emphasis added.)
(5)
The mayor shall upon the recommendation of the manager appoint
department heads to administer the government of
6. Prior to the date on which Addicott became
mayor of the Town of Golden Beach, two of his sons (Benjamin and Aaron)
sometimes worked for the Town in the capacity of "fill-in"
lifeguards. During that same time
period, a number of other people, most of whom had regular jobs as lifeguards
in nearby communities, would also work for the Town of Golden Beach in the capacity
of "fill-in" lifeguards.
Although all of the people who worked for the Town as
"fill-in" lifeguards were paid for the time they worked, none of
those people were regular employees of the Town with regular scheduled work
hours. Rather, all of the people who
worked as "fill-in" lifeguards worked on an "as needed"
basis.
7. At some time in March of 1999, shortly after
Addicott became the mayor of the Town, Aaron Addicott, was placed on the Town
payroll in some sort of regular weekend part-time lifeguard position, in which
his work as a lifeguard was primarily on Saturday and Sunday. This was a change in the terms and conditions
under which Aaron Addicott performed lifeguard services for the Town. The specific nature of the change in March of
1999 is not contained in the record of this case, but it appears that following
that change, Aaron Addicott was, essentially, the Town's weekend lifeguard, and
another lifeguard worked the other five days of the week. Following the change in Aaron Addicott's terms
and conditions of employment in March of 1999, Aaron Addicott's work as a
lifeguard continued to be on Saturday and Sunday, with the exception of
occasional days when he filled-in for the regular lifeguard when the regular
lifeguard was unable to work.
8. On or about August 26, 1999, at a time when
Michael Addicott was serving as mayor of the Town of Golden Beach, an
interoffice memo reading as follows was sent to him by Rosemary J. Wascura, who
was then the Interim Town Manager:
To: Mayor
Michael Addicott
From: Rosemary J. Wascura,
Manager
Date:
August 26, 1999
Re:
Appointment of Lifeguards
102-99
Following
our recent conversation regarding the appointment of Lifeguards, please see
below the following recommendation:
1.
That effective September 1, 1999 John Fialowsky be hired as the Town's
full-time Lifeguard. Compensation is
$13.00 per hour and his hours are Monday and Tuesday 7:00 am. - 7:00 pm., and
Wednesday, Thursday and Friday 7:00 am. - 2:00 pm.
2.
That effective September 1, 1999 Aaron Addicott be hired as the Town's
part-time Lifeguard. Compensation is
$9.25 per hour and his hours are Saturday and Sunday 7:00 am. - 7:00 pm., and
Wednesday, Thursday and Friday 2:00 pm. - 7:00 pm.
[_] APPROVED
[_] NOT APPROVED
________________________
Michael
Addicott
Mayor
9. Mayor Addicott placed a check mark in the
"approved" box and then signed the interoffice memo quoted above and
returned it to Ms. Wascura on or before the effective date mentioned in the memo. By approving and signing the recommendation,
Mayor Addicott hired his son as "the Town's part-time Lifeguard,"
which was a new position of employment that had not previously existed at the
Town of Golden Beach. Notwithstanding
the job title of "part-time lifeguard," the position Aaron Addicott
was hired to fill in August of 1999 was a full-time position of employment in
which he was scheduled to work a total of five days per week for a total of 39
hours per week.
10. In both March of 1999 and in August of 1999,
the effective hiring authority was vested in the mayor of the Town of Golden
Beach. Such being the case, the final
decision to hire Aaron Addicott on both of the occasions in 1999 described
above was made by Mayor Addicott.
Aaron's motor vehicle accident
11. Very shortly before the election at which
Addicott was elected mayor of the Town of Golden Beach, Aaron Addicott was
involved in a one-vehicle motor vehicle accident in which the vehicle driven by
Aaron Addicott struck a light pole and knocked the light pole down. The location of the accident was a block or
less from the Addicott home. Shortly
after the accident, Aaron Addicott left the scene of the accident and drove the
short distance to the Addicott home.
Nieman saw the accident happen, and shortly thereafter, police officers
of the Town of Golden Beach, including Sergeant Nieman, arrived at the Addicott
home and attempted to conduct an investigation of the accident that Aaron
Addicott had just been involved in. Mrs.
Addicott, the wife of the soon-to-be mayor and the mother of Aaron, refused to
cooperate with the efforts of the police officers to investigate the accident
and ordered the police officers to leave the premises of the Addicott
home. Mrs. Addicott also chastised the police
officers for picking on her son and demanded that they leave her son alone.
12. Although Aaron Addicott at first denied
involvement in the motor vehicle accident, a few days after the accident he
went to the police station in the Town of Golden Beach and acknowledged his
involvement in the accident. Aaron
Addicott was never charged with any civil or criminal violation arising from
the accident or from his act of leaving the scene of the accident.
13. Another police officer told Nieman that Mr.
and Mrs. Addicott (Aaron's parents) had met with the Chief of Police of the
Town of Golden Beach shortly after the accident. Nieman does not appear to have conducted any
further inquiry to confirm the information that Mr. and Mrs. Addicott had met
with the Chief. Nieman believed that
Aaron should at least have been charged with the violation of leaving the scene
of an accident. When no charges were
forthcoming, Nieman formed the opinion that Mr. and Mrs. Addicott, during the
meeting he believed they had with the Chief, had "used their position[s]
to have the accident ignored" and had told the Chief "not to
interfere."
14. The Town of Golden Beach did not
receive any reimbursement for the damage to the light pole caused by Aaron's
motor vehicle accident from Aaron Addicott or from either of Aaron's parents.1
15. From time to time when Aaron Addicott was
scheduled to be working as a Town lifeguard, he would be absent from work and
the town manager would receive complaints that Aaron was not working when he
should be working. This is the same
Aaron Addicott who was involved in the motor vehicle accident described above.
The actual knowledge issue
16. With regard to the factual allegations at
issue here, at the time of making those allegations Nieman did not have
actual knowledge that any of those allegations were false.2
The reckless disregard issues
17. With regard to the factual allegations at
issue here, at the time of making those allegations Nieman did not make
any of the subject allegations with a "reckless disregard" as to
whether they were true or false. Quite
to the contrary, Nieman did not at any time entertain any "serious
doubts as to the truth" of his allegations. Similarly, Nieman did not at any time
have any "high degree of awareness" of the "probable
falsity" of the subject allegations.3
Attorney's fees and costs
18. The real party in interest; i.e., the entity
that will be the beneficiary of any award of attorney's fees and costs in this
proceeding, is the Town of Golden Beach.
That is because it is the Town that retained and agree to pay for legal
representation of Mayor Addicott in both the defense of the underlying Ethics
Commission complaint and in the prosecution of this fee petition. The Town retained the law offices of Stuart
R. Michelson. As of June 17, 2004, the
date on which the final hearing in this case began, Mr. Michelson's law offices
had submitted three bills to the Town.
Those bills cover costs and attorney's fees incurred from July 2, 2002,
through June 4, 2004. Those bills
itemize a total of 59.70 hours of attorney's services, for which the Town was
billed $10,650.00.
19. The three bills discussed immediately above
also itemize a total of 5.60 hours of law clerk services, for which the Town
was billed $420.00.
20. The three bills discussed immediately above
also itemize a total of $1,402.54 of costs.
The types of costs itemized include such things as in-house photocopy
costs, Fed-Ex and similar express mail charges, facsimile charges, postage charges,
long distance telephone charges, and some miscellaneous travel-related charges
such as car rental, parking, air fare, and gasoline. The itemized costs also include at least one
"miscellaneous services charges/fee" in the amount of $12.50 and one
in-house photocopying charge in the amount of $447.50.
21. With regard to the three bills discussed
above, there was no testimony under oath that any of the services itemized in
the bills had actually been performed.
There was no testimony under oath that the bills were accurate. There was no testimony under oath explaining
any details about the nature of the services performed or explaining why, or
whether, the services were reasonable, necessary, or appropriate. There was no testimony under oath stating
whether all of the services and costs itemized in the three subject bills
relate only to the fee petition and the underlying ethics complaint in this
proceeding, or whether some of the itemized services and costs relate to other
similar litigation matters in which the Town has a beneficial interest that
were pending at the same time.4
22. An expert witness was retained to express
legal opinions on two basic issues: (1)
an opinion as to the issue of whether Addicott is entitled to an award of
attorney's fees and costs against Nieman pursuant to Section 112.317(8),
Florida Statutes, and, if entitled, (2) an opinion as to the reasonable amount
of such an award. The Town agreed to pay
the expert witness for his services in this case on an hourly basis. The agreed upon hourly rate for the services
of the expert witness is either $200.00 per hour or $225.00 per hour.5
23. The expert witness does not know how many
hours he spent preparing for and presenting his expert opinions in this case.6
24. The expert witness reviewed and testified
about a few details of the costs itemized on the three bills discussed above,
but he never clearly expressed any opinion as to whether the costs itemized on
the three bills are reasonable or unreasonable.7
25. The expert witness testified to several
expert legal opinions regarding the manner in which the present language of
Section 112.317(8), Florida Statutes, should be construed, interpreted, and
applied. He also opined as to the extent
to which cases decided under the old language of Section 112.317(8), Florida
Statutes, were useful in determining entitlement to attorney's fees and costs
under the current version of Section 112.317(8), Florida Statutes.8
26. The expert witness also testified about how
many hours it would have been reasonable for the attorneys for Addicott to have
worked from June 4, 2004, through the end of the first day of the final hearing
in this case, which was June 17, 2004.
There is not, however, any testimony as to how many hours of attorney
services were actually performed during the period from June 4 through June 17,
2004.
27. In both the defense of the underlying ethics
complaints against Addicott and in the preparation and the prosecution of the
fee petition in this case, services billed at an hourly rate have been
performed by three lawyers in the law firm representing Addicott; specifically,
Mr. Michelson (a partner), Mrs. Michelson (a partner), and Mr. Birch (an
associate attorney). Reasonable and
typical hourly rates that are charged for the types of attorney services that
were performed in the course of the subject cases are as follows:
Mr.
Michelson $200.00 per hour
Mrs.
Michelson $200.00 per hour
Mr.
Birch $135.00 per hour
28. In both the defense of the underlying ethics
complaints against Addicott and in the preparation and the prosecution of the
fee petition in this case, services billed at an hourly rate also have been
performed by law clerks employed by the law firm representing Addicott. A reasonable and typical hourly rate that is
charged for services of a legal nature performed by law clerks in cases of this
nature is $75.00 per hour.9
29. Following the conclusion of the
administrative hearing before the Division of Administrative Hearings in this
case, in the normal course of events, the attorneys representing Addicott will
need to spend a number of additional hours before their work on this matter is
finished. Post-hearing tasks include
such matters as preparation of proposed recommended orders, preparation of exceptions
to the recommended order or preparation of responses to exceptions filed by an
opposing party, preparation of memorandums related to exceptions, and perhaps
an appearance before the Ethics Commission to present oral argument prior to
issuance of the Final Order.10
CONCLUSIONS
OF LAW
30. The Division of Administrative Hearings has
jurisdiction over the subject matter of and the parties to this
proceeding. §§ 120.569 and 120.57(1),
31. The first issue that requires attention is
the issue of the scope of the subject matter at issue in this case. In the underlying ethics complaints, Nieman
included factual allegations about four specific events. The Fee Petition in this case specifically
mentions Nieman's allegations about only two of those events. Addicott argues that all of the allegations
made by Nieman in the ethics complaints against Addicott are at issue in this
case. The undersigned is of the view that
the only factual allegations in the ethics complaints that are at issue here
are the ones that are specifically mentioned in the Fee Petition at paragraphs
6, 7, 8, and 9 of the Fee Petition.11 The full text of those four paragraphs
appears in the findings of fact, above.
The essence of the factual allegations at issue here are assertions by
Nieman that Addicott interfered with a police investigation of an automobile
accident involving Addicott's son and assertions that Addicott hired his son as
a part-time town lifeguard.
32.
Section 112.317(8), Florida Statutes, reads as follows:
(8) 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 proving entitlement to and the
amount of costs and fees. If the
complainant fails to pay such costs and fees voluntarily within 30 days following
such finding by the commission, the commission shall forward such information
to the Department of Legal Affairs, which shall bring a civil action in a court
of competent jurisdiction to recover the amount of such costs and fees awarded
by the commission. (Emphasis added.)
33. The language of Section 112.317(8), Florida
Statutes, has read as quoted above since 1995.
Prior to 1995, the statutory predicate for awarding attorney's fees and
costs against a person who filed a complaint with a malicious intent to injure
the reputation of the person complained against was worded somewhat
differently. Because of the amendments
to the statutory language, appellate court decisions interpreting and applying
the earlier version of the statute are not especially helpful to ascertaining
the correct interpretation and application of the underscored portion of the
current language of the statute.12
34. By way of
background, as well as to put the subject statutory language in its relevant
historical context, it is useful to consider the line of judicial decisions
regarding defamatory statements about public figures that began with the case
of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964). There the Court for the first time concluded
that in libel actions by public officials in state courts "the rule
requiring proof of actual malice is applicable." New York Times at 727. The Court also stated, after noting that that
there was evidence that the Times had published the information in question in
that case without checking its accuracy against the news stories in the Times'
own files, that "negligence in failing to discover the misstatements . . .
is constitutionally insufficient to show the recklessness that is required for
a finding of actual malice." New
York Times at 288.
35.
Shortly following the New York Times decision, the U.S. Supreme
Court decided Garrison v. State of Louisiana, 379 U.S. 64, 85 S. Ct. 209
(1964), in which the Court followed and expanded upon what it had decided in New
York Times. The Garrison
decision included the following:
We held in New
York Times that a public official might be allowed the civil remedy only if
he establishes that the utterance was false and that it was made with knowledge
of its falsity or in reckless disregard of whether it was false or true. The
reasons which led us so to hold in New York Times, 376 U.S., at 279--280,
84 S.Ct. at 724--726, apply with no less force merely because the
remedy is criminal. The constitutional
guarantees of freedom of expression compel application of the same standard to
the criminal remedy. Truth may not be the subject of either civil or criminal
sanctions where discussion of public affairs is concerned. And since '* * *
erroneous statement is inevitable in free debate, and * * * it must be
protected if the freedoms of expression are to have the 'breathing space' that
they 'need * * * to survive' * * *,' 376 U.S., at 271--272, 84 S.Ct. at 721,
only those false statements made with the high
degree of awareness of their probable falsity demanded by New York Times may be
the subject of either civil or criminal sanctions. For speech concerning public affairs is more
than self-expression; it is the essence of self-government. The First and Fourteenth Amendments embody
our 'profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials.' New York Times Co. v. Sullivan, 376
U.S., at 270, 84 S.Ct., at 721.
(Emphasis added.)
36.
In St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323 (1968),
the Court explicated further on its thoughts as to what types of conduct
constituted a "reckless disregard" for whether published statements
were false, and on what circumstances might indicate evidence of such a
"reckless disregard." The
explications in St. Amant include the following:
Purporting to apply the New York Times
malice standard, the Louisiana Supreme Court ruled that St. Amant had broadcast
false information about Thompson recklessly, though not knowingly. Several reasons were given for this
conclusion. St. Amant had no personal knowledge of Thompson's activities; he
relied solely on Albin's affidavit although the record was silent as to Albin's
reputation for veracity; he failed to verify the information with those in the
union office who might have known the facts; he gave no consideration to
whether or not the statements defamed Thompson and went ahead heedless of the
consequences; and he mistakenly believed he had no responsibility for the
broadcast because he was merely quoting Albin's words.
These considerations fall short of proving St. Amant's
reckless disregard for the accuracy of his statements about Thompson. 'Reckless
disregard,' it is true, cannot be fully encompassed in one infallible
definition. Inevitably its outer limits
will be marked out through case-by-case adjudication, as is true with so many
legal standards for judging concrete cases, whether the standard is provided by
the Constitution, statutes, or case law.
Our cases, however, have furnished meaningful guidance for the further
definition of a reckless publication. In New York Times, supra, the plaintiff did not
satisfy his burden because the record failed to show that the publisher was
aware of the likelihood that he was circulating false information. In Garrison v. State of Louisiana, 379
U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), also decided before
the decision of the Louisiana Supreme Court in this case, the opinion
emphasized the necessity for a showing that a false publication was made with a
'high degree of awareness of * * * probable falsity.' 379 U.S., at 74, 85 S.Ct., at 216.
Mr. Justice Harlan's opinion in Curtis Publishing Co. v. Butts, 388
U.S. 130, 153, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967), stated
that evidence of either deliberate falsification or reckless publication
'despite the publisher's awareness of probable falsity' was essential to
recovery by public officials in defamation actions. These cases
are clear that reckless conduct is not measured by whether a reasonably prudent
man would have published, or would have investigated before publishing. There must be sufficient evidence to permit
the conclusion that the defendant in fact entertained serious doubts as to the
truth of his publication. Publishing
with such doubts shows reckless disregard for truth or falsity and demonstrates
actual malice.
It may
be said that such a test puts a premium on ignorance, encourages the
irresponsible publisher not to inquire, and permits the issue to be determined
by the defendants testimony that he published the statement in good faith and
unaware of its probable falsity.
Concededly the reckless disregard standard may permit recovery in fewer
situations than would a rule that publishers must satisfy the standard of the
reasonable man or the prudent publisher.
But New York Times and succeeding
cases have emphasized that the stake of the people in public business and the
conduct of public officials is so great that neither the defense of truth nor
the standard of ordinary care would protect against self-censorship and thus
adequately implement First Amendment policies.
Neither lies nor false communications serve the ends of the First
Amendment, and no one suggests their desirability or further
proliferation. But to insure the ascertainment
and publication of the truth about public affairs, it is essential that the
First Amendment protect some erroneous publications as well as true ones. We adhere to this view and to the line which
our cases have drawn between false communications which are protected and those
which are not.
37. In St. Amant, at 732, the Court also
included the following regarding the determinations that must be made by the
finder of fact:
The defendant in a defamation action brought
by a public figure cannot, however, automatically insure a favorable verdict by
testifying that he published with a belief that the statements were true. The finder of fact must determine whether the
publication was indeed made in good faith.
Professions of good faith will be unlikely to prove persuasive, for
example, where a story is fabricated by the defendant, is the product of his
imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the
publisher's allegations are so inherently improbable that only a reckless man
would have put them in circulation.
Likewise, recklessness may be found when there are obvious reasons to
doubt the veracity of the informant or the accuracy of his reports.
38.
Our
"[T]he
constitutionally protected right to discuss, comment upon, criticize, and
debate, indeed, the freedom to speak on any and all matters is extended not
only to the organized media but to all persons." Nodar v.
Galbreath, 462 So.2d 803 (Fla.1984). The First Amendment privilege of fair comment
is not absolute. To prevail at trial, a
plaintiff must establish not only the falsity of the claimed defamation, but
also demonstrate through clear and convincing evidence that the defendant knew
the statements were false or recklessly disregarded the truth. New York
Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964). See McDonald v. Smith, 472 U.S. 479, 105 S.Ct. 2787,
86 L.Ed.2d 384 (1985) (holding that Petition Clause does not
require states to expand this privilege into an absolute one.) Reckless
disregard is not measured by whether a reasonably prudent person would have
published or would have investigated before publishing; the plaintiff must show
the defendant "in fact
entertained serious doubts as to the truth of his publication." St. Amant v.
Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20
L.Ed.2d 262 (1968) (Emphasis
added.)
39. Clear and convincing evidence
"requires more proof than a 'preponderance of the evidence' but less than
'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (
40.
The
41.
The underlying rationale for all of the conclusions reached in the line
of cases that begins with New York Times and includes Garrison, St.
Amant, Demby, and a host of other similar cases is that those conclusions
are compelled by constitutionally protected rights to "freedoms of
expression" that have a need for "breathing space" if they are
to survive. Today those rights are no
less important, and are no less protected by the same Constitution, than they
were when the cases discussed above were decided. Accordingly, the conclusions reached in New
York Times, Garrison, St. Amant, Demby, and a host of
other similar cases are applicable to the interpretation of the statutory
language upon which Addicott relies for the relief sought in this case. The unavoidable requirement that such
decisions must be followed unless and until such time as they may be modified
by the U. S. Supreme Court is eloquently explained in Faxon v. Michigan
Republican State Central Committee, 244 Mich. App. 468, 624 N.W.2d 509
(2001).13
42. For convenient reference, the core of that
statutory language is repeated. The
statutory predicate for the relief sought here is the filing of a complaint
against a public officer or employee with the Ethics Commission " . . .
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."
43.
Because it is most quickly disposed of, attention is directed first to
the "with knowledge" portion of the statutory language. In order to prevail on the grounds that Nieman
filed a complaint "with knowledge that the complaint contains one or more
false allegations," Addicott must show by "clear and convincing
evidence" that Nieman knew the statements at issue were false at the time
the statements were made. The evidence
in this case is insufficient to meet the required standard. While some of the evidence in this case would
tend to support a finding that, at the time he made the statements at issue,
Nieman did not have very much information one way or the other regarding the
accuracy of some of his statements, there simply is no clear and
convincing evidence that at the time of making those statements Nieman knew
that any of the statements were false.
44.
Directing attention now to the portion of the statutory language that
imposes liability for filing a complaint "with reckless disregard for
whether the complaint contains false allegations of fact material to a
violation of this part," it is first noted that not every false allegation
in a complaint filed with the Ethics Commission provides a basis for liability
under Section 112.317(8), Florida Statutes.
Rather, the only false allegations that provide a basis for liability
are "allegations of fact material to a violation of this part [Part
III of Chapter 112, Florida Statutes]."
By way of example Nieman's allegations regarding the conduct of Mrs.
Addicott are not material to a violation of Part III of Chapter 112 by Mr.
Addicott. Therefore, such allegations,
even if false and even if made with a reckless disregard for whether they were
true or false, cannot be the basis for an award of costs and attorney's fees
under Section 112.317(8), Florida Statutes, because they were not material to
any allegation that Mr. Addicott had committed a violation of the ethics laws.
45. With regard to other allegations made by
Nieman, in order to prevail on the grounds that Nieman filed a complaint
"with reckless disregard for whether the complaint contains false
allegations of fact," Addicott must show by "clear and convincing
evidence" that Nieman made those allegations with a "reckless
disregard," as that term has been described and defined in the cases
discussed above. The evidence in this
case is insufficient to meet the required standard. Rather, as noted in the findings of fact, Nieman
did not at any time entertain any "serious doubts as to the
truth" of his allegations.
Similarly, Nieman did not at any time have any "high degree
of awareness" of the "probable falsity" of the subject
allegations. Further, although on the
facts in this case it might be concluded that Nieman was negligent in failing
to inquire further before making some of his allegations, "negligence in
failing to discover the misstatements . . . is constitutionally insufficient to
show the recklessness that is required for a finding of actual
malice." New York Times at
288. There is simply no clear and
convincing evidence that, at the time he made the allegations at issue here,
Nieman acted with a reckless disregard of the type described in the applicable
case law. In this regard it is
significant to note that the greater weight of the evidence is to the effect
that the vast majority of Nieman's allegations at issue here were true or were
very close to the truth. On the few
factual issues in which the evidence is insufficient to show affirmatively that
a specific allegation was true, it is significant to note that there is no
clear and convincing evidence that any such allegation was false. Further, at the time he made all of the
factual allegations at issue here, all of the allegations were either supported
by at least some hearsay evidence known to Nieman, or were inferences that
could logically be drawn from the information known to Nieman. In reaching this conclusion, the undersigned
has not overlooked Addicott's arguments to the effect that, with regard to some
of the allegations, Nieman testified in deposition and at the final hearing
that he did not have "any evidence" of some of the allegations at
issue here. These admissions by Nieman
must be evaluated in the context in which they occurred. When evaluated in context, it appears to the
undersigned that on those occasions when Nieman testified that he did not have
"any evidence," Nieman was attempting to communicate the idea that he
did not have any first hand evidence of the allegation inquired
about. It is clear from other statements
by Nieman that on such occasions he was not admitting that he had no
information at all. Rather, he testified
that he was aware of hearsay evidence that supported his allegations.
46.
For the reasons set forth above, it must be recommended that the relief
sought in the Fee Petition be denied.
Such being the case, it would serve no useful purpose to discuss at
length the issues regarding the reasonableness of the amounts of the costs and
attorney's fees sought in this case, because it is being recommended that they
not be awarded. Nevertheless, for the
guidance of future parties in future cases a few brief comments are offered.
47.
The undersigned has serious doubts as to whether under Section
112.317(8), Florida Statutes, in is appropriate to include services performed
by law clerks and similar para-legal personnel as "attorney's
fees." While courts are authorized
by Section 57.104, Florida Statutes, to treat some services performed by law
clerks and other para-legal personnel as "attorney's fees," that
statutory authorization is limited by its terms to fees "determined or
awarded by the court."
Neither the Division of Administrative Hearings nor the Florida
Commission on Ethics is a "court."
And even if it were to be concluded that Section 57.104, Florida
Statutes, was applicable to a case of this nature, the evidence in this case is
insufficient to show that the law clerk services billed for in this case were
services of the type contemplated by Section 57.104.
48.
The undersigned has serious doubts as to whether, in a case of this
nature, the expert witness fees paid to an attorney who testifies in support of
the Petitioner's claim for attorney's fees is an appropriate cost to be taxed
even in a case in which the fee petitioner prevails. A primary basis for such doubts is explained
at length in a "Final Order Granting Motion for Rehearing and
Supplementing Final Order of December 19, 2003," issued on January 7, 2004,
in Bryan Yamhure and Henry Yamhure v. Department of Agriculture and Consumer
Services, DOAH Case No.02-4003RX. In
Yamhure the administrative law judge explained that the taxing of such
costs is discretionary and that only in exceptional cases should attorneys
expect to be compensated for testifying as to the reasonableness of another
attorney's fees. A further reason for
which the taxing of such costs would be inappropriate in this case even if the
Petitioner had prevailed is that the expert witness never got closer than a
vague "guesstimation" of how many hours he devoted to preparing and
expressing his opinion. It is simply
unfair to tax costs without some reliable specific evidence regarding the precise
amount of the cost and the basis for arriving at that precise amount. It is also noted that the amount of costs
sought for the expert witness services of Mr. Goren are simply
unreasonable. Depending on which of the
vague, imprecise, and inconsistent testimony one uses to make the calculation,
Addicott is seeking reimbursement for Mr. Goren's services in an amount that
ranges from $5,000.00 (25 hours x $200.00 per hour) to $7,875.00 (35 hours x
$225.00 per hour). It is simply
unreasonable to spend $5,000.00 or more to obtain an opinion as to whether
approximately $11,000.00 of attorney's fees are reasonable fees.
49.
The undersigned also has serious doubts as to whether, if the Petitioner
had prevailed in this case, the evidence regarding attorney's fees in this case
would have been sufficient to support an award of attorney's fees in any
amount. Among the reasons for these
doubts is the fact that nowhere in the record of this case is there any
testimony that the services itemized in Addicott Exhibit 1 were actually
performed, that the bills in that exhibit are accurate, that all of the
services were reasonably necessary, or that all of the services related solely
to the Nieman ethics complaint against Addicott or to the Addicott fee petition
against Nieman. To the contrary, some of
the services itemized in Addicott Exhibit 1 appear to have been unnecessary and
some of the itemized services appear to be for time spent on matters other than
the Nieman ethics complaint against Addicott or the Addicott fee petition
against Nieman. And as a final matter on
this point, it is noted that although the issues in this case involve fewer
than half of the allegations in Nieman's ethics complaint against Addicott,
there is no evidence as to which of the itemized legal services related to
matters at issue here and which related to factual allegations that are not at
issue here.
RECOMMENDATION
On
the basis of the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that a Final Order be entered dismissing the Petition in this case
and denying all relief sought by the fee Petitioner, Michael Addicott.
DONE AND ENTERED this 4th day of November, 2004, in
S
MICHAEL M. PARRISH
Administrative Law Judge
Division of Administrative Hearings
The
(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 4th day of November, 2004.
ENDNOTES
1/ It is possible
that the Town of Golden Beach received some reimbursement for the damage to the
light pole from the insurance company that insured the motor vehicle Aaron
Addicott was driving at the time of the accident. But whether the insurance company made any
payment is irrelevant to the issues at hand here, because Nieman never made any
statement about the insurance company that is at issue in this case.
2/ Nieman firmly,
clearly, and without equivocation or hesitation, repeatedly denied having any
such knowledge. Nieman's denials in this
regard have been found to be credible and convincing. There is no clear and convincing evidence
that Nieman knew, at any material time, that one or more of the subject
allegations was false.
3/ The findings of
fact in this paragraph are mixed questions of law and fact, which is why
substantially identical statements are also included in the conclusions of
law. By way of clarification it is also
noted that the finding that Nieman did not act with "reckless
disregard" contemplates the use of the term "reckless disregard"
as it has been described and defined in New York Times v. Sullian, 376
U.S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny.
4/ In this regard it
is important to note that the brief descriptions of some of the attorney's
services itemized in the three bills appear to be for services related to
matters other than Nieman's ethics complaint against Addicott and Addicott's
fee petition against Nieman. Bills for
attorney's services performed in other matters cannot properly be charged to
Nieman.
5/ At pages 44-45 of
the hearing transcript, the expert witness testifies that he is being
compensated at the rate of $200.00 per hour.
At pages 85-86 he testifies that he is being compensated at the rate of
$225.00 per hour. It cannot be
determined from the record in this case which, if either, of the hourly rates
is correct.
6/ When asked
"what are your fees for your time in this matter?", the expert
witness answered, at pages 85-86, "To be truthful, I didn't look, but I'm
assuming, for discussion, that I'm probably in the neighborhood of between 25
and 35 hours of time." A bit
further down the expert witness adds:
"We're probably looking at between 25 and 30 hours of
time." This type of imprecise,
vague, and uncertain testimony which is also internally inconsistent from one
page to the next is not the type of evidence on which cost awards can be
properly based. Evidence of this type is
simply too unreliable and unpersuasive upon which to make any findings of
fact. Furthermore, any findings of fact
made upon the basis of evidence so lacking in trustworthiness would be nothing
better than some form of "guesstimation" unsupported by even
persuasive competent substantial evidence, much less the "clear and convincing
evidence" that is required in cases of this nature.
7/ See pages 110-111
of the hearing transcript.
8/ These expert legal
opinions have been found to be unpersuasive.
For reasons discussed in the conclusions of law, the appellate court
cases decided under the pre-amendment version of Section 112.317(8), Florida
Statutes, are of little help in interpreting and applying the current version
of the statute.
9/ While there is
record evidence regarding the reasonable and typical hourly rate that is
charged for the services of law clerks, there is no record evidence as to the
hourly cost of services performed by law clerks. For reasons discussed in the conclusions of
law, the cost of such services may be more important that the amounts that are
charged for the services.
10/ It serves no
useful purpose to attempt to estimate how many hours of attorney time will be
spent in post-hearing activities. See
Kaminsky v. Lieberman, 675 So. 2d 261 (Fla. 4th DCA 1996), in which the
court, noting that "[a]s a matter of basic fairness, the interested
parties should be neither shortchanged nor over-charged for the sake of
administrative expediency," held that the Ethics Commission must provide a
hearing to afford the Petitioner an opportunity "to establish fees and
costs which were incurred after the last day of the hearing."
11/ The allegations
of the Fee Petition clearly put Nieman on notice that Addicott was seeking
attorneys fees and costs on the grounds that Nieman's statements about two
specific matters had been made with malice.
The Fee Petition did not put Nieman on notice that Addicott was
contending that any other statements by Nieman were made with malice. It would be contrary to fundamental notions
of due process and fair play to subject Nieman to liability for, and to require
him to defend against, assertions that he also made other malicious statements
that are not specifically mentioned in the Fee Petition. The material allegations of the Fee Petition
that put Nieman on notice as to which of his specific allegations are alleged
to have been made with malice appear at paragraphs 6, 7, 8, and 9 of the Fee
Petition, which are quoted in the findings of fact. This view of the scope of this proceeding is
also supported by the portion of Florida Administrative Code Rule 34-5.0291(2)
which states, with regard to a petition seeking costs and attorney's fees under
Section 112.317(8), Florida Statutes:
"Such petition shall state with particularity the facts and
grounds which would prove entitlement to costs and attorney's fees." (Emphasis added.)
12/ Prior to the current
version of Section 112.317(8), Florida Statutes, the relevant portion of the
statutory language read as follows:
(8) In any case in which the
commission determines that a person has filed a complaint against a public
officer or employee with a malicious intent to injure the reputation of such
officer or employee and in which such complaint is found to be frivolous and
without basis in law or fact, the complainant shall be liable for costs
plus reasonable attorney's fees incurred by the person complained against. (Emphasis added.)
It would appear from the underscored portion of the pre-1995
language quoted above that the criteria for an award of attorney's fees and
costs under that language were intended to be similar to the criteria for
awards of attorney's fees and costs set forth in such statutory provisions as
Sections 57.105, (authorizing award of fees and costs when claim "not
supported by the material facts" or "not . . . supported by the
application of then-existing law"),120.569(1)(e), (authorizing award of
fees and costs for documents filed "for any improper purposes" or
"frivolous purpose") and 120.595(1)(b), Florida Statutes (authorizing
award of fees and costs for participating in a proceeding "for an improper
purpose" or a "frivolous purpose"). In Couch v. Commission on Ethics, 617
So. 2d 1119 (Fla. 5th DCA 1993), citing Taunton v. Tapper, 396 So. 2d
843 (Fla. 1st DCA 1981), the court stated, with regard to the pre-1995 version
of Section 112.317(8): "Section
57.105 appears to be the statute most analogous to section
112.317(8)." Under the pre-1995
version of Section 112.317(8), Florida Statutes, in order to avoid a
determination that a complaint was frivolous, the person filing the complaint
had to have some basis in law, as well as some basis in fact, for filing
the complaint with the Ethics Commission.
The current version of Section 112.317(8), Florida Statutes, omits any
consideration of the legal sufficiency of the original complaint.
13/ The Faxon
decision contains an interesting history, analysis, and criticism of the
evolution of the law regarding defamation of public officials, beginning with
cases pre-dating New York Times and continuing forward to the present. Of particular interest is the fact that,
although they disagree with the wisdom of some aspects of New York Times
and its progeny, the Faxon court emphasizes and implements its duty to
follow those decisions whether it agrees with them or not.
COPIES FURNISHED:
Stuart R. Michelson, Esquire
Law Office of Stuart R. Michelson
Robert Nieman
Kaye Starling, Agency Clerk
Commission on Ethics
Post Office Drawer 15709
Bonnie
J. Williams, Executive Director
Commission
on Ethics
Post
Office Drawer 15709
Philip
C. Claypool, General Counsel
Commission
on Ethics
Post
Office Drawer 15709
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.