RECOMMENDED
ORDER
This
cause came on for formal hearing before Harry L. Hooper, Administrative Law
Judge with the Division of Administrative Hearings, on May 11, 2005, in
APPEARANCES
For Petitioner: Martin A. Pedata, Esquire
Martin Pedata, P.A.
For Respondent: Gary S. Edinger, Esquire
STATEMENT OF THE ISSUE
The issue is whether Respondent Alexander
J. Milanick should be required to pay attorney fees and costs in the amount of
$4,976.00 to Petitioner Charles Osborne to compensate Petitioner for his
defense of an ethics complaint filed with the Florida Commission on Ethics.
PRELIMINARY STATEMENT
In a letter dated July 18, 2003, Respondent
Alexander J. Milanick (Dr. Milanick), through his attorney, James J. Kearn,
initiated an inquiry by the Florida Commission on Ethics (Commission). The letter addressed certain actions of Petitioner
Charles Osborne (Mr. Osborne), taken while he was mayor of the Town of
Subsequent
to the investigation, the Commission, in a Public Report dated September 8,
2004, dismissed the complaint on a finding of no probable cause.
Subsequently, Mr. Osborne filed a Petition
for Costs and Attorney Fees, which was filed with the Commission on October 1,
2004. Dr. Milanick filed his Objection
to Respondent's Petition for Costs and Attorney Fees, which was filed by the
Commission on October 29, 2004.
On November 12, 2004, the Commission
forwarded the matter to the Division of Administrative Hearings. A hearing was scheduled for February 1,
2005. Pursuant to a Joint Emergency
Motion to Continue and Reschedule Hearing, the hearing was rescheduled for
April 19 and 20, 2005. Pursuant to
Respondent's Motion to Continue, the hearing was rescheduled for May 11 and 12,
2005, in
At the hearing, Mr. Osborne testified in
his own behalf and presented the testimony of four witnesses and offered ten
exhibits into evidence, which were accepted.
Dr. Milanick testified in his own behalf and presented the testimony of
four witnesses and offered twenty exhibits into evidence and all were
accepted.
Official recognition was taken of Milanick
v. Town of Beverly Beach, 820 So. 2d 317 (
A Transcript was filed on June 10,
2005. Subsequently, Petitioner and
Respondent timely filed Proposed Recommended Orders, which were considered in
the preparation of this Recommended Order.
References
to statutes are to Florida Statutes (2004) unless otherwise noted.
FINDINGS OF FACT
1. The Town of
2. Mr. Osborne is an
aerospace engineer who served on the Beverly Beach Town Commission from 1997
through March 1999. He was mayor from March
1999 until 2001. He has lived at
3. Dr. Milanick is a
dentist who, along with his brother John, and a person named McGee, during
times pertinent, owned land immediately north of Beverly Beach. On the property then and currently owned by
Dr. Milanick, and east of A1A, is a restaurant named the Shark House. The premises has also been known as Crabby
Joe's.
4. In 1995, Dr. Milanick
applied to the Town Commission to have his property, and that of his brother,
and that of McGee, annexed into the town limits of Beverly Beach. He did this by asking a Mr. Taylor to do what
was necessary to cause the annexation to occur.
Mr. Taylor thereafter filed a petition with the Town Commission.
5. By Ordinance 95-9-4,
the Town Commission, in 1995, assented to the request and it was made effective
November 15, 1995. The Ordinance
purported to annex the Milanick property into the Town of
6. The Ordinance, however, was defective in four
ways. The Ordinance purported to annex
the property into
7. The matter languished
until 1997 when Dr. Milanick determined that his property had not in fact been
moved within the boundaries of Beverly Beach.
Dr. Milanick brought this to the attention of the Town Commission in
October 1997.
8. At a Town Commission meeting on
December 3, 1997, the Town Attorney stated that he had not had a chance to look
into the Milanick and Shark House issue.
At a Town Commission meeting on February 4, 1998, Dr. Milanick inquired
as to the progress being made on the annexation of his property and was told
that the Town Attorney would get with him and discuss the procedure. Subsequently, the Town Attorney, Pat
McCormick, suggested that it would be necessary to start the process from the
beginning if the land was to be annexed.
9. At a Town Commission meeting on March 4, 1998, Mayor Osborne stated that there was no benefit to the annexation of the Shark House. One member of the Town Commission suggested that they honor past commitments. Dr. Milanick was in attendance at this meeting.
10. At a Town Commission meeting on May 5, 1999, Dr. Milanick and his brother again attended the Town Commission meeting and requested the annexation of their property and discussed the procedure that would be necessary. At a Town Commission meeting on June 2, 1999, a motion was made to go forward with Ordinance 95-9-4 and to amend the official city map and legal description to include the Shark House property. The motion passed but Mayor Osborne vetoed it.
11. During a regular monthly meeting of
the Town Commission on July 7, 1999, James Kearn, an attorney retained by Dr.
Milanick, who was authorized to act for Dr. Milanick, appeared and requested
that the Commission direct the Town Clerk to sign Ordinance 95-9-4 and to
forward it to the county and the state in order to determine if the Ordinance
was valid. This request was approved by
the Town Commission. Mayor Osborne,
vetoed the measure. Thereafter, the veto
was over-ridden by the Commission.
12. At a Town Commission workshop on July 21, 1999, there was additional discussion regarding the annexation of the Shark House. Mr. Kearn accused Mayor Osborne of discussing the Milanick annexation matter with Sid Crosby, Clerk of the Court of Flagler County. Mayor Osborne denied the charge. The discussion became heated and accusatory and Mayor Osborne threatened to have the sheriff eject Mr. Kearn from the meeting.
13. Subsequent to the
action of the Town Commission of July 7, 1999, the Town Clerk, Douglas
Courtney, took Ordinance 95-9-4 to Syd Crosby, Clerk of the Court for
14. No creditable
evidence was adduced which indicated that Mayor Osborne visited Syd Crosby for
the purpose of preventing the recording of the annexation of Dr. Milanick's
property. Mr. Crosby concluded from the
beginning that Ordinance 95-9-4 was not recordable.
15. Mayor Osborne
suggested some solutions which would
permit the annexation,
including, re-submission of a proper application. Over a period of time some "glitch"
bills were considered which would annex the land. However, none passed.
16. Mr. Kearn attended the Town Commission meeting on February 2, 2000, and the minutes of the meeting noted that he was accompanied by "a person taking notes." Following this meeting, in a February 16, 2000, letter to Dennis Knox Bayer, Town Attorney, Mr. Kearn claimed that Mayor Osborne had a personal vendetta against Dr. Milanick, and that he was exercising dictatorial efforts to prevent citizens to speak at town meetings. He further demanded that ". . . all Town officials, including you as their representative, refrain from saying things that are simply and blatantly false, which only serve to incite Mr. Milanick."
17. At a town meeting on March 1, 2000, Mr. Kearn complained about the annexation not being on the agenda and Mayor Osborne stated that a request for inclusion on the agenda had not been made in writing. Mr. Kearn was permitted to speak for three minutes, he spoke for three minutes, and immediately thereafter Mayor Osborne adjourned the meeting.
18. On or about April 25,
2000, Dr. Milanick and his brother John, filed suit against the Town of Beverly
Beach and Mayor Osborne personally, in the Circuit Court of the Seventh Judicial
Circuit in and for Flagler County. The
suit alleged that the Town of
19. The Circuit Court dismissed the civil rights
count against Mayor Osborne and the town, and this dismissal was affirmed by
the Fifth District Court of Appeal. The
Circuit Court also dismissed the mandamus action, finding that the 30-day
limitations' period for filing a petition for a writ of certiorari applied and
that a prima facie case for mandamus had not been
established. The Fifth District Court of
Appeal, on October 19, 2001, remanded that count to the Circuit Court with directions
to grant the petition for mandamus, but upheld the dismissal of the civil
rights counts.
20. On January 23, 2003, the Circuit Court
entered its Alternative Writ of Mandamus.
The Writ incorporated the allegations of Plaintiff's Complaint by reference
and ordered that the Defendants take whatever steps necessary to sign and
record Ordinance 95-9-4. When this
occurred, Mr. Osborne was no longer an elected official of Beverly Beach.
21. The circuit
court complaint filed by Dr.
Milanick recited that the recording of the ordinance did not occur because
Mayor Osborne conferred with the Clerk of the Court to block recording of the
ordinance. The adoption of the matters
recited in the complaint as true, by the appellate court, does not make them
proven facts because no evidence was taken in the case. The complaint, moreover, alleges actions,
such as being tyrannical and peevish, which could not in any event constitute a
violation of a person's civil rights.
The complaint does not allege that Mr. Osborne took any action, as
mayor, because he wished to obtain a personal advantage and does not allege
that the annexation of Dr. Milanick's real property would affect
Mr. Osborne's real property in terms of value or otherwise.
22. As of the date of the
hearing, Dr. Milanick's property had not been annexed into the corporate limits
of Beverly Beach.
23. Mr. Osborne, while serving as mayor, was not
helpful in causing the annexation to occur and it is apparent that his
relations with Mr. Kearn were not amicable.
Mr. Osborne, while serving as mayor was irascible, intimidating, and
controlling.
24. Mr. Osborne believed
that the annexation would bring no benefit to Beverly Beach and believed it
would, "change the town's character."
Mr. Osborne gained nothing directly or personally by preventing, or
making difficult, the annexation of Dr. Milanick's land. As an elected official, he was permitted to
advance his own ideas with regard to what he believed would be best for Beverly
Beach and for himself as a citizen and property owner of Beverly Beach. He could act in this regard so long as he did
not secure a special privilege, benefit, or exemption for himself,
as opposed to a general benefit.
25. A letter signed by
Mr. Kearn dated July 18, 2003, accompanied by an affidavit signed by Dr.
Milanick, requested that the Commission conduct an investigation into the
activities of Mr. Osborne during the period when he was the mayor of Beverly
Beach. For reasons which become apparent
hereafter, this letter, which had the words "Via Airborne Overnight
Mail" stamped on its face, will be hereinafter referred to as the
"Airborne" letter. The
following statements were contained in the "Airborne" letter:
Specifically, while Mayor, Charles Osborne simply
refused to sign and record the ordinance duly adopted by the Town, which
annexed land into the Town as a general commercial, simply because he
personally did not want anymore general commercial land in the Town, which
could jeopardize his personal investment in the Town.
He also met with the former Clerk of Court for
He thus plainly put his purely personal concerns,
ahead of his duties as mayor, and fiduciary duty to the citizens of Beverly
Beach.
The mayor still refused to oblige the Town's
request, or to honor the duly adopted resolution, for his own personal reasons,
irrespective of his duties as mayor to the citizens of Beverly Beach....
Even worse, he met with the former Clerk of Circuit
Court of Flagler County, Mr. Syd Crosby, to attempt to persuade Mr. Crosby to not record any ordinance presented by
the Town, annexing the Milanicks' property.
Mayor Osborne repeatedly ignored and defied the will
of the Town to complete the annexation, to pursue his own personal agenda,
i.e., stopping annexation of land as general commercial.
26. The "Airborne" letter then parroted
items that indicated that the Circuit Court had found to be true, as follows:
Additionally, Mr. Osborne simply does not allow
anyone to speak with whom he disagrees, or to address matter that he does not
want addressed.
Mayor Osborne has...
a. refused to
put the Milanicks' matters or requests on the Town Council agenda;
b. taken
action regarding the Milanicks' properties, without any notice to the
Milanicks, or without knowledge by the Milanicks that such action was being
taken against their property, as required by the Town's own law;
c. refused to allow the Milanicks to speak to
matters that affect their personal and property interests, once the Town
Council had opened discussion regarding the annexation and zoning of the
Milanicks' properties;
d. blatantly
and willfully misrepresented the Milanicks' positions, actions, and statements
at Town meetings, beyond the scope of the privilege normally attendant to a
politician's statements at such meeting, in order to defeat the Milanicks'
requests, and to harm the Milanicks;
e. refused to
honor Ordinances passed by previous Town councils, as detailed above;
f. refused to
follow through with completing the annexation approved by previous council
members of the Town;
g. worked to
undercut the recording of the completion of the signing of the ordinance, and
the recording of the ordinance, to complete the annexation, all as detailed
above.
27. The matters in
paragraph 25, are misleading because they indicate that the Circuit Court found
these items to be true when in fact no evidentiary proceedings with regard to
these items occurred in the Circuit Court.
28. Moreover, the Complaint alleged several
matters which Dr. Milanick either knew to be untrue, or should have known that
it was untrue. Specifically, the
Complaint alleged that Mayor Osborne "did not want anymore general
commercial land in the Town, which could jeopardize his personal investment in
the Town." This allegation implies
that he was acting for some personal and specific reason financial reason, as
opposed to a general opposition to development.
This allegation, had it been true, would have been actionable pursuant
to Section 112.313(6)
29. The Complaint also
alleged that Mayor Osborne met with Syd Crosby in order to prevent the annexation
of the Milanicks' property. This
allegation, coupled with the allegation as to a financial interest, bolsters
the asserted improper purpose.
30. Based on this Complaint, the Executive
Director of the Commission issued a Determination of Investigative Jurisdiction
and Order to Investigate, which was filed with the Commission on September 26,
2003, and assigned Complaint Number 03-091.
31. Investigator Travis Wade of the Commission
was directed to conduct a preliminary investigation into whether or not there
was probable cause to believe a violation of Section 112.313(6), Florida
Statutes, had occurred. That section
reads as follows:
(6) Misuse of public
position.--No
public officer, employee of an agency, or local government attorney shall
corruptly use or attempt to use his or her official position or any property or
resource which may be within his or her trust, or perform his or her official
duties, to secure a special privilege, benefit, or exemption for himself,
herself, or others. This section shall not be construed to conflict with s.
104.31.
32. Mr. Osborne learned
of the Determination of Investigative Jurisdiction and Order to Investigate and
thereafter retained Robert J. Riggio, of the firm of Riggio & Mitchell,
P.A., located in
33. On April 6, 2004, a second letter dated July
18, 2003, was sent to the Commission by Mr. Kearn by facsimile. This will be referred to as the
"Fax" letter. This was
precipitated by a request to Mr. Kearn
from Investigator Wade that he provide a copy of the original letter.
34. The "Fax" letter differed from the
"Airborne" letter. In the
second paragraph of the "Fax" letter the following sentence
appears: "Specifically, while
Mayor, Charles Osborne simply refused to sign and record the ordinance duly
adopted by the Town, which annexed land just north of Mr. Osborne's
manufactured home . . . ." And in the
fourth paragraph of the "Fax" letter, the following sentence
appears: "The Mayor objected,
because it would serve to annex land as general commercial, just north of his
own manufactured home." It further
stated that his motivation was ". . . stopping land as commercial near
him."
35. Mr. Kearn testified
under oath that when Investigator Wade was discussing the case with him, that
he, Mr. Kearn, realized the "Fax" letter was a draft that had been
sent to Investigator Wade in error. Mr.
Kearn said that the "Fax" letter was a draft that had subsequently
been edited by Dr. Milanick who knew, July 18, 2003, that Mr. Osborne did
not live in a manufactured home located immediately south of the property which
was sought to be annexed.
36. Mr. Kearn said that it the
"Airborne" letter was supposed to be the operative document. He said that he realized that the
"Fax" letter was being used by Investigator Wade when he was talking
to him on the telephone on June 8, 2004, and that he advised Investigator Wade of
the error. He testified that he made it
perfectly clear to Investigator Wade that the "Airborne" letter was
the operative document.
37. Investigator Wade's
Report of Investigation, however, recites that during the telephone interview
of Mr. Kearn, that Mr. Kearn advised him that Mr. Osborne resided in a mobile
home community immediately south of the Milanick property, while he served as
mayor and that Mr. Osborne's interest in stopping the annexation was to use his
position for his personal benefit.
38. At the hearing,
Investigator Wade stated under oath that Mr. Kearn advised him during their
telephone conversation that Mr. Osborne resided in a mobile home community
immediately south of the Milanick property while he was serving as mayor. Investigator Wade stated that the issue of
whether or not Mr. Osborne lived in the immediate vicinity of the Milanick
property was the key element in his investigation because if that were true,
stopping the annexation could be a personal benefit to Mr. Osborne. Mr. Wade was a disinterested and credible
investigator and witness and his testimony is taken as true and accurate.
39. Mr. Osborne did not
live in either a manufactured or mobile home.
The type of home he lived in is irrelevant. What is relevant is that Mr. Osborne did not
live adjacent to, or in the vicinity of, the Milanick property. In fact, Mr. Osborne did not live near the
north side of town. He lived closer to
the south side of town and it is unlikely that the annexation of the Milanick
property would have an economic effect on Mr. Osborne's property.
40. Mr. Kearn was aware
of Mr. Osborne's resident address because he had him served with a civil suit
at his residence in 2000. Mr. Kearn knew
that Mr. Osborne did not live in a mobile home community, or in a manufactured
home near the Milanick property, or anywhere near it. Nevertheless, he asserted that to be true
when he talked to Investigator Wade.
41. Mr. Kearn is the
attorney and agent of Dr. Milanick. Mr.
Kearn is, therefore, the alter ego of Dr. Milanick so that the actions of Mr.
Kearn, are the actions of Dr. Milanick.
42.
The Commission, found in their Public Report, dated September 8, 2004,
that Mr. Osborne's opposition to the annexation was not connected to any desire
to secure a benefit for himself. The
Commission dismissed the Milanick complaint on a finding of "no probable
cause."
CONCLUSIONS OF LAW
43. The Division of
Administrative Hearings has jurisdiction over the subject matter of and the
parties to this proceeding. § 120.57(1),
44. Section 112.317(8)
provides as follows:
112.317. Penalties
(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.
45. Florida
Administrative Code Rule 34-5.0291, provides as follows:
34-5.0291. Award of Attorney's Fees.
(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, including the costs and
reasonable attorney's fees incurred in proving entitlement to and the amount of
costs and fees.
(2)
The Commission shall make such a determination only upon a petition for costs and attorney's fees filed with the Commission by the
public officer or employee complained against within 30 days following a
dismissal of the complaint. Such
petition shall state with particularity the facts and grounds which would prove
entitlement to costs and attorney's fees.
Staff shall forward a copy of said petition to the complainant by
certified mail, return receipt requested.
(3) If
the facts and grounds alleged in the complaint are not sufficient to state a
claim for costs and reasonable attorney's fees, the Commission shall dismiss
the petition after an informal proceeding.
If it appears that the facts and grounds are sufficient, the Chair after
considering the Commission's workload, shall direct that the hearing of the petition
be held before the Division of Administrative Hearings, the full Commission, or
a single Commission member serving as hearing officer. Commission hearing
officers shall be appointed by the Chair.
The hearing shall be a formal proceeding under Chapter 120, F.S., and
the Uniform Rules of the Administration Commission, Chapter 28-106, F.A.C. All discovery and hearing procedures shall be
governed by the applicable provisions of Chapter 120, F.S., and Chapter 28-106,
F.A.C. The parties to the hearing shall
be the respondent and the complainant(s), who may be represented by legal
counsel.
(4) The respondent has the
burden of proving the grounds for an award of costs and attorney's fees.
(5) If the petition is heard by the full
Commission, it shall direct staff to prepare an order complying with Chapter
120, F.S., incorporating its findings and either granting or denying the
petition. The draft of that order shall
be modified or adopted at the next Commission meeting.
(6) If
the petition is heard by a Commission hearing officer or, DOAH administrative
law judge, in order to assist the Commission in evaluating any exceptions that
may have been filed, Commission staff will provide a draft final order
analyzing the exceptions. Copies shall
be provided to the parties prior to the final hearing.
46. Mr. Osborne has the
burden of proof.
47. Mr. Osborne must prove entitlement to costs
and attorney fees by a preponderance of the evidence.
§ 120.57(1)(j),
48. The requirement that
the complaint be filed with a
malicious intent to injure the reputation of an officer, 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, represents a change from the law prior to 1995.
49. The Commission has held that the change which
inserted the requirement of "knowledge" or "reckless
disregard" for the truth, means that the "actual malice"
standard of New York Times v. Sullivan, 376 U.S. 254 (1964), is
applicable to proving entitlement to attorney fees and costs in proceedings
brought pursuant to Section 112.317(8). In
re Michael
50. In Addicott, the Administrative Law
Judge found that the complainant did not have actual knowledge that any of the
allegations were false. On the other
hand, in the present case it is clear that Mr. Kearn knew that Mr. Osborne did
not live immediately south of the Milanick property. Because a material fact was falsely alleged,
the reckless disregard issue does not have to be addressed.
51. It is clear in this case that an antagonistic relationship developed between Mr. Kearn and Mr. Osborne over a period of time. This was manifested by testy exchanges at Town Commission meetings and a threatening and accusatory letter directed to the Town Attorney stating that the delay in annexation was serving to incite Mr. Milanick. At some point, the antagonism degenerated into a malicious attempt to cause Mr. Osborne trouble. This was evidenced by the civil rights suit filed seeking to make Mr. Osborne personally liable, and by the complaint filed with the Commission.
52. Mr. Osborne has proved entitlement to attorney fees in accordance with Section 112.317(8).
53. In
54. Using the above standard, the fees sought are reasonable.
55. It is the Commission's
responsibility to provide a hearing for Mr. Osborne to establish fees and costs
which were incurred after the hearing. Kaminsky
v. Lieberman, 675 So. 2d 261 (
RECOMMENDATION
Based upon the Findings of Fact and Conclusions of Law, it is
RECOMMENDED
that the Florida Commission on Ethics enter an order requiring Dr. Milanick to
pay Mr. Osborne $4,976.00.
DONE AND ENTERED this 1st day of July, 2005, in
S
HARRY L. HOOPER
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 1st day of
July, 2005.
COPIES FURNISHED:
Kaye Starling, Agency Clerk
Commission on Ethics
Post Office Drawer 15709
James J. Kearn, Esquire
James J. Kearn, P.A.
Gary S. Edinger, Esquire
Martin A. Pedata, Esquire
Martin Pedata, P.A.
Robert J. Riggio, Esquire
Riggio & Mitchell, P.A.
Bonnie J. Williams, Executive Director
Commission on Ethics
Post Office Drawer 15709
Phillip C. Claypool, General Counsel
Commission on Ethics
Post Office Drawer 15709
Virlindia Doss, Esquire
Office of the Attorney General
The Capitol, Plaza Level 01
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.