STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
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GREG BROWN,
Petitioner,
vs.
HILTON KELLY,
Respondent.
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Case No. 04-2867FE |
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Recommended Order
This case was assigned to Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings. In lieu of a live hearing, the parties agreed to submit the case on the official record, by pre-hearing stipulation, and deposition testimony.
Appearances
For Petitioner: Albert T. Gimbel, Esquire
Mark Herron, Esquire
Messer, Caparello & Self, P.A.
215 South Monroe Street, Suite 701
Tallahassee, Florida 32301
For Respondent: Joseph Hammons, Esquire
Hammons, Longoria & Whittaker, P.A.
17 West Cervantes Street
Pensacola, Florida 32501
Statement of the Issue
The question presented in this case is whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to Section 112.317(8), Florida Statutes, and Rule 34-5.0291, Florida Administrative Code.
Preliminary Statement
Respondent, Hilton Kelly (Kelly), is, and at all times material to this proceeding, was a resident of Washington County, Florida. On April 12, 2004, Kelly signed a sworn ethics complaint to be filed with the Florida Commission on Ethics (Commission). The complaint alleged that Petitioner, Greg Brown (Brown), acting in his capacity as the Santa Rosa County Property Appraiser, “deliberately” and improperly assessed Santa Rosa County resident, Donald Moore’s, real property at a reduced value in exchange for a campaign contribution.
The Commission undertook a full investigation of the Complaint and its allegations. On June 7, 2004, the Commission issued a final Report of Investigation, concluding that Kelly’s allegations against Brown lacked merit. On June 11, 2004, the Commission’s Advocate recommended that there was no probable cause to believe Brown violated Florida law as alleged in the Complaint. Accordingly, on July 27, 2004, the Commission dismissed Kelly’s ethics Complaint.
On August 11, 2004, Brown filed a Petition for Costs and Attorneys’ Fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291, alleging that Kelly filed the ethics Complaint with malicious intent to injure Brown’s reputation, by filing the Complaint with knowledge that the Complaint contained one or more false allegations, or with reckless disregard for whether the Complaint contained one or more false allegations.
In lieu of a formal administrative hearing, the parties agreed to submit this case on the official record, including motions, responses to motions and exhibits thereto, through documents and answers exchanged in discovery, by pre-hearing stipulation, and deposition testimony and exhibits. See Appendix A to this Order. The Pre-Hearing Stipulation was filed on October 21, 2005. The parties timely filed Proposed Recommended Orders on November 1, 2005.
Findings of Fact
1. Mr. Hilton Kelly is a resident of Washington County, Florida, and the brother of Ms. Miller McCombs (McCombs).
2. McCombs, a licensed real estate agent in Santa Rosa County since 1974 and broker since 1975, has used the records of the property appraiser for many years in her profession. In 2004, McCombs was an active participant and supporter of
Leon Cooper, the opposition candidate to incumbent Property Appraiser of Santa Rosa County, Greg Brown.
3. Brown had been the property appraiser since January 2, 2001, and was running in 2004 for re-election for the first time.
4. Leon Cooper, who McCombs supported, was formerly an employee of the Santa Rosa County Property Appraiser's Office, having been employed by Robert Burgess, the Property Appraiser until December 31, 2000.
5. On the day that Cooper qualified to run against Brown, April 12, 2004, Kelly filed the ethics Complaint that underlies this action, which alleges Brown deliberately assessed the property of Donald Moore located in Santa Rosa County at a reduced rate in exchange for a campaign contribution. Kelly alleged that Moore was a friend of Brown's, and Brown instructed appraisers to stay away from Moore's property in furtherance of a scheme to keep Moore's property undervalued.
6. On the same day, April 12, 2004, Robert Burgess, the former property appraiser, also filed a separate ethics complaint against Brown alleging that Brown had reinstated the tax exemption of a church owned by Ms. Lovie Grimes and deleted the tax assessments against the church for the tax years 2000 through 2003 in support for the political support of Ms. Grimes in his 2004 re-election bid.
7. The Commission investigated the allegations made by Kelly and Burgess with the following results.
8. Kelly was interviewed by telephone by investigators. He lives in Washington County, and stated, "I don't have a dog in this hunt." His sister, McCombs, had suggested he file the ethics complaint against Brown, which he did. He had no personal knowledge of the allegations he had made against Brown in his sworn complaint.
9. The facts regarding the evaluation of the Moore property revealed that it had burned completely on December 31, 2000, just as it was nearing completion. The reconstruction efforts were monitored by personnel of the appraiser's office, and it was duly added to the rolls on January 1 of the year following its completion, January 1, 2003.
10. Kelly had no personal knowledge of any of the facts alleged in his complaint. There is clear evidence that he was a proxy for his sister, who caused the complaint to be filed as part of a scheme in support of Cooper's candidacy, which McCombs supported. The complaint was intended to injure the reputation of Brown.
11. Kelly made no independent effort to verify any of the facts in his ethics Complaint. Kelly made no independent effort to verify any of the documents provided by his sister. Kelly was the willing tool of McCombs, his sister. He, under any consideration of the facts, did not have any knowledge of the truth or falsity of the allegations that he made. Kelly recklessly disregarded whether the complaint contained false allegations.
12. It is un-necessary to consider whether McCombs knew, should have known, or should have made inquiry about the facts she provided to her brother because her brother had the independent duty to ascertain the truth of the facts that he alleged, and failed to do so. It is un-necessary to consider whether the materials provided to Kelly would have caused him to conclude Brown had done something amiss because Kelly had no personal knowledge of the provenience of the materials or their accuracy and made no attempt at their verification.
13. Affidavits were presented in support of attorney fees and costs and their reasonableness. The Proposed Recommended Order restated those amounts as 69.3 hours at a rate of $175 per hour. The total provided in the Proposed Order was $13,016.50; however, 94.4 times $175 equals $12,127.50. If one considers that the difference, $889.00, is attributable to law clerks, and divides the balance $889.00 by 8.1 hours, equals $69.06 per hour for law clerks, which is reasonable rate.
14. The Petitioner presented affidavits in support the costs incurred in this case by the attorneys. The costs were $4,603.29.
Conclusions of Law
15. Pursuant to Florida Administrative Code Rule 34-5.0291, cases of this type are proceedings under Chapter 120, Florida Statutes, and may be referred to the Division of Administrative Hearings. Additionally, The Division has jurisdiction over the parties and the subject matter pursuant to Sections 120.569 and 120.57(1), Florida Statutes, (2004).
16. Section 112.317(8), Florida Statutes, provides:
In any case in which the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee by filing the complaint with knowledge that the compliant contains one or more false allegations or with reckless disregard for whether the complaint contains 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 the costs and fees.
17. When a statute requires the allegations be made under oath, it implicitly requires the declarant to tell the truth.
18. With regard to the allegations made by Kelly, although it is true that the Petitioner's office re-assessed the Moore property, there was no evidence to support the allegations Kelly made that Brown did these things to obtain of Moore's political support. It is this latter allegation that forms the gravamen of the complaint because it is the function of a property appraiser to assess property adding it to and taking it off the rolls as its character changes. One cannot conclude that, because a public officer is doing his or her job, that it is being done for personal benefit. It is only when this is done for personal benefit that it is corrupt or illegal, and the complainant must have some tangible evidence of the improper motivation.
19. When Kelly alleged that Brown re-assessed Moore's property in return for a campaign contribution, Kelly had no basis for any of his allegations. He had no facts at all, only the information that his sister provided him and which he swore were true. When asked the basis for his allegations, Kelly said he had no knowledge of the facts, and just signed what his sister gave him. Clearly, signing a compliant about which one has no personal knowledge constitutes reckless disregard for whether the complaint contains false allegations. The statute, being written in the disjunctive, does not require malicious intent where recklessness is involved. There is no need to consider the Commission's standard for malice.
20. Kelly argues that Brown must prove that the Kelly complaint contained false allegations made with reckless disregard for the truth. This misconstrues the requirement of proof. Brown must show that there was a legal basis for the official actions of his office. Brown must show that Kelly made his allegations recklessly. What records a citizen might have gotten; what the file actually showed is not relevant because Kelly did not inquire or investigate. He accepted as whole cloth the facts as presented by his sister. While his sister may have been able to make use of such a defense, Kelly cannot because he did not exercise "due diligence." The "I did it for my sister" defense does not exist.
21. Kelly also raises as a defense that the attorney's fees and costs were not paid by Brown, but by the county. The statute states that recovery can be had for "reasonable attorney's fees incurred in the defense of the person complained against, . . .[.]" That the Petitioner has authority to institute this action for the recovery of such fees. The financial relationship and fiduciary relationship between the Petitioner and the county is not within the subject matter of this case.
Recommendation
Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter its final order awarding the Petitioner the amount of $13,016.50 in attorneys' fees and $4,603.29 in costs.
DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida.
S
STEPHEN F. DEAN
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 31st day of January, 2006.
COPIES FURNISHED:
Albert T. Gimbel, Esquire
Mark Herron, Esquire
Messer, Caparello & Self, P.A.
215 South Monroe Street, Suite 701
Tallahassee, Florida 32301
Joseph Hammons, Esquire
Hammons, Longoria & Whittaker, P.A.
17 West Cervantes Street
Pensacola, Florida 32501
Kaye Starling, Agency Clerk
Commission of Ethics
3600 Macclay Boulevard, South, Suite 201
Post Office Drawer 15709
Tallahassee, Florida 32317-5709
Philip C. Claypool, General Counsel
Commission of Ethics
3600 Macclay Boulevard, South, Suite 201
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.
Appendix A (Exhibits)
By Pre-Hearing Stipulation, the parties agreed that the following exhibits were admitted into evidence:
1. Ethics Complaint 04-084, sworn to by Hilton Kelly on April 12, 2004, against Greg Brown, and received by the Florida Commission on Ethics on April 14, 2004.
2. Report of Investigation, prepared by A. Keith Powell, Investigator, issued on June 7, 2004 by the Florida Commission on Ethics.
3. Advocate’s Recommendation, dated June 11, 2004 prepared by James H. Peterson, III, Advocate for the Florida Commission on Ethics.
4. Public Report, dated July 27, 2004 dismissing the complaint as rendered by the Florida Commission on Ethics.
5. Deposition Transcript of Donald W. Moore dated April 22, 2005.
6. Deposition Transcript of Lorenzo Law Drinkard dated April 27, 2005, with Exhibits 1-3.
7. Deposition Transcript of Hilton Kelly dated April 28, 2005, with Exhibits 4-6.
8. Deposition Transcript of Robert Burgess dated April 28, 2005, with Exhibits 7-12.
9. Deposition Transcript of Gregory Stephen Brown dated April 29, 2005, with Exhibits 13-20.
10. Deposition Transcript of Miller McCombs dated April 28, 2005.
11. Deposition Transcript of Leon Cooper dated September 21, 2005.
12. Deposition Transcript of Keith Hodges dated September 21, 2005.
13. Deposition Transcript of Chris Haughee dated September 21, 2005.
14. All pleadings, motions, and the responses and exhibits thereto filed by the parties.
15. All discovery responses to Interrogatories, Requests for Production of Documents, and Request for Admissions filed by the parties.
16. Documents produced in discovery by the parties, identified as follows:
Brown documents numbered [K]-1 through [K]-89.
Kelly documents (unnumbered) in response to requests for production of documents Nos. 9, 10, and 12.
17. DVD of photographs taken of the Donald Moore property.
18. Affidavit of Attorneys Fees filed by Albert T. Gimbel.
19. Affidavit of Costs filed by Albert T. Gimbel.
20. Affidavit of Attorneys Fees filed by Mark Herron.
21. Affidavit of Costs filed by Mark Herron.
22. Affidavit of Reasonable Attorneys Fees and Costs filed by Michael E. Dutko.
23. Deposition Transcript of Michael E. Dutko dated October 13, 2005.
24. Affidavits, depositions, records, and other documents to be submitted additional to those already of record, in support of or in opposition to the attorney’s fees claimed.
Citations to the deposition transcripts shall be designated by the name of the deponent, followed by the page and line of the transcript. For example, a citation to page 5, line 20 of Greg Brown’s deposition transcript will appear as “Brown depo. 5:20.”