STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
JERRY ATTERSON,
MICHAEL J. )
MAHLER, and CHARLES
L. )
SADDLER, III, )
)
Petitioners, )
)
vs. ) Case
Nos. 96-5214FE
) 96-5215FE
CARROLL G. ALLEN
and ) 96-5216FE
WILLIS D.
CONNER, )
)
Respondents. )
_______________________________)
RECOMMENDED ORDER
Pursuant to notice,
the Division of Administrative Hearings, by its duly designated Administrative
Law Judge, Carolyn S. Holifield, held a formal hearing on August 10, 1998, in
Bartow, Florida.
APPEARANCES
For
Petitioners: Barbara W. Coleman,
Esquire
Office of Polk County
Attorney
Post Office Box 9005
Drawer AT01
Bartow, Florida 33831-9005
For
Respondents: Joseph N. Baron, Esquire
Post Office Box 1088
Lakeland, Florida 33802
STATEMENT OF THE
ISSUE
Whether Petitioners
are entitled to recover costs and attorney's fees against Respondents and, if
so, in what amount.
PRELIMINARY
STATEMENT
On or about June 8,
1995, Respondents filed separate Complaints with the State of Florida
Commission on Ethics (Ethics Commission) against Petitioners, Gary Atterson,
Michael J. Mahler, and Charles L. Saddler (Petitioners), alleging numerous
violations of the Code of Ethics for Public Employees and Officers (Code of
Ethics). On September 4, 1996, the
Ethics Commission issued a Public Report in each of the cases, finding there
was no probable cause to believe that the Petitioners violated the Code of
Ethics and dismissing the Complaints.
Thereafter, Petitioners timely filed a Petition for Attorney's Fees
based on the aforementioned Complaints and requested a formal hearing.
On November 5,
1996, the Ethics Commission separately forwarded the three cases to the
Division of Administration Hearings for assignment of an Administrative Law
Judge. By Order issued December 26,
1996, the three cases were consolidated.
A Notice of Hearing issued December 26, 1996, set the final hearing for
February 6, 1997. Subsequently, several
unopposed motions to continue the final hearing filed by the parties were
granted. Thereafter, the final hearing
was conducted as noticed in the Amended Notice issued on July 13, 1998.
On August 7, 1998,
Petitioner filed a Motion to Quash Subpoenas of Witnesses. Subsequently, Petitioner filed an Amended
Motion to Quash Subpoenas of Witnesses (Amended Motion). At commencement of the final hearing and
after argument of counsel, the Amended Motion was granted. Prior to presentation of evidence, the
parties stipulated to the reasonableness of the attorney's fees as set forth in
the affidavits filed herein. At the
conclusion of Petitioners' case, Respondents' counsel made an ore tenus
Motion to Dismiss, a ruling on which was reserved. That Motion to Dismiss is hereby denied.
At the final
hearing, Petitioners called one witness, Allen Keith Powell, Investigator for
the Commission on Ethics, and Petitioner Saddler testified on his own
behalf. Petitioners offered and had ten
exhibits admitted into evidence.
Respondent, Carrol G. Allen, testified on his own behalf, but called no
other witnesses. Respondent, Willis D.
Conner, was represented by counsel, but was not present at the hearing.
A copy of the
transcript was filed on August 14, 1998.
Petitioners timely filed their Proposed Recommended Order and Memorandum
of Law. On August 27, 1998,
Respondents' filed a post hearing submittal, which Petitioners moved to strike
as untimely. By Order issued September
10, 1998, the Motion to Strike was denied.
FINDINGS OF FACT
1. Respondents, Carrol G. Allen and Willis D.
Conner, former employees of Polk County (County), filed verified Complaints on
June 8, 1995, with the Ethics Commission against Petitioners, Jerry Atterson,
Michael J. Mahler, and Charles L. Saddler, III. At the time the Complaints were filed, Petitioner were public
employees and subject to the Code of Ethics.
2. The Complaints against the Petitioners were
substantially similar and alleged that Petitioners violated Section 112.313(6),
Florida Statutes. Specifically,
Respondents alleged that Petitioners committed the following acts:
a. Started and encouraged baseless rumors and
allegations.
b. Encouraged subordinates to fabricate false
reports of misconduct involving pilots.
c. Rewarded subordinate employees monetarily
who assisted the Respondents with the agenda against the pilots.
d. Encouraged subordinates to supply false and
misleading information to assist in the eventual dissolution of the entire
flight department on the pretext of economic downsizing.
e. Retaliated against the pilots because said
plots had reported chemical spills, safety violations, aircraft tampering, and
conflicts of interest to supervisors.
3. The Complaints were investigated by A. Keith
Powell, Investigator for the Ethics Commissioner. Following completion of the investigation, that included an
interview with Respondent Allen, Mr. Powell prepared a written report which was
submitted to the Ethics Commission on or about June 17, 1996.
4. On July 26, 1996, Eric S. Scott, Advocate
for the Ethics Commission, filed an Advocate's Recommendation regarding each of
the Complaints. In all instances, Mr.
Scott found that there was no probable cause to believe that Petitioners
violated Section 112.313(6), Florida Statutes.
5. On September 4, 1996, the Ethics Commission
entered a Public Report dismissing the Complaints against Petitioners and
finding that there was no probable cause to believe that the Petitioners herein
violated Section 112.313(6), Florida Statutes.
6. On June 22, 1994, Polk County's Office of
Management and Budget completed review of flight operations and recommended
that the County's pilot positions be eliminated and that the County instead
contract for pilot services. This
recommendation was based on a determination by the County's Office of
Management and Budget that such plan would be more cost effective.
7. The Complainants were employees of Polk
County and worked as pilots until April 11, 1995, when the Polk County Board of
County Commissioners voted to eliminate the pilot positions and contract with a
private provider for pilot services.
8. Respondent Allen admitted to Keith Powell,
Investigator for the Ethics Commission, that Petitioner Saddler did not
encourage the false reports as alleged in the Complaint against Petitioner
Saddler. In fact, when asked whether
Respondent Allen had knowledge of Petitioner Saddler actually encouraging the
preparation of the memorandum in question, Respondent Allen responded,
"Probably not. I don't think he
had knowledge of it."
9. Regarding Petitioner Mahler, the only
evidence that Respondent Allen had that Petitioner Mahler encouraged false
reports was that Mr. Mahler had asked Iris Sibal to put her concerns in writing
when she reported them to him. This is
not the same as encouraging false reports.
In fact, the Advocate for the Ethics Commission pointed out in his
recommendation that under the circumstances which existed, the memorandum
written by Iris Sibal was appropriate.
10. Respondent Allen had no basis for the
allegations in the Complaints that Petitioners Saddler and Mahler encouraged
false reports. Moreover, Respondent
Conner was not mentioned in the memorandum, and had no basis whatsoever for
this allegation.
11. In their complaint, the Respondents alleged
that Petitioners Atterson and Mahler failed to report numerous chemical
spills. This allegation was made
notwithstanding the fact that it was the Respondents' responsibility to report
the spills and then only in instances that resulted in environmental
damage. Respondents either knew this to
be false or recklessly disregarded whether such allegation was false.
12. Respondents also alleged that the
Petitioners knowingly allowed subordinates to engage in outside employment
involving conflicts of interest. This
allegation was based on Respondent Allen's unfounded assertions that the EVM
herbicides belonging to Polk County were being diluted and the subject
subordinates were using county herbicides in their outside employment. However, Petitioner Allen acknowledged that
he had no evidence to show that there was a theft of EVM herbicides. Furthermore, those employees who engaged in
outside employment obtained permission from the County. Again, this allegation was made with a
reckless disregard of whether the allegations were false.
13. Respondents further alleged that the
Petitioners monetarily rewarded or gave pay raises to employees who assisted
them with their "agenda" against Respondents. However, the only salary raises that
Respondent Allen could point to were those given to employees who were given
additional responsibilities as a result of a reorganization of the division in
which they worked.
14. Another allegation made by Respondents was
that Petitioners gathered and presented false evidence to facilitate
discrediting and dissolving the flight program. This was found to be completely without basis. As stated in paragraph 6 above, the Polk
County's Office of Management and Budgeting considered the total costs to the
County in relation to the total amount of time that the pilots were
flying. The pilots' flight time had
been substantially reduced mainly because the County eliminated its Midge
Treatment Program. As a result, the
Office of Management and Budget recommended that the County contract for pilot
services from an outside source and eliminate the in-house flight program. At the time this matter was being considered,
Petition Saddler presented Respondent Conner with an opportunity to respond to
the Office of Management and Budget recommendation. Although he was given an opportunity to make comments regarding
the report, Respondent Conner responded only by stating that he had no comment.
15. The Respondents alleged that the Petitioners
retaliated against them for reporting chemicals spills, conflicts of interest,
and safety violations by eliminating their positions as pilots with the County. This allegation is addressed above regarding
dissolution of the flight program.
16. Finally, in their Complaints, Respondents
alleged that Petitioner Mahler discriminated against other employees on the
basis of race, gender, and personal preference. There was no basis for this allegation. All three of the employees Respondent Allen named denied any
misconduct by Petitioner Mahler. With
regard to the allegations, Respondent Allen either knew this to be false or
recklessly disregarded whether such allegations were false.
17. Respondent Allen admitted that he was
hostile toward the Petitioners. In the
instant case, Respondents not only filed Complaints with the Ethics Commission
that contained unfounded allegations, but also directed that letters be sent to
Petitioner Saddler's boss and to counties in which Petitioner Saddler had
potential job opportunities.
18. In a letter dated April 25, 1995, to Richard
Hedrick, Petitioner Saddler's supervisor, Respondents, through their attorney,
refer to Petitioner Saddler as the "chief offender" in the
pretextural dismissal of Respondents Allen and Conner. Also, the letter stated that Respondents
intended to release media disclosures regarding the case. Respondent Allen admitted that following
this letter, such media disclosures took place with articles appearing on the
front page of the local newspaper, the Lakeland Ledger.
19. In May 1995, at Respondents' direction, two
letters were written and sent to counties where Petitioner had applied for
jobs. One such letter dated May 18,
1995, was sent to the Chairperson of the Marion County Board of
Commissioners. Another letter dated May
9, 1995, was sent to the Chairperson of the Lake County Board of County
Commissioners. The contents of both
letters were identical. First, the
letters stated that "it is my understanding that Mr. Charles Saddler, III,
is an applicant for a high post in your county government." Next, the letters stated that Respondents
are not disgruntled employees but are men of "high professional and
personal ethics who will be under oath, filing formal detailed complaints with
the Ethics Commission shortly."
Third, the letters referred to an attachment that "generally
outlines the nature of the charges" against Petitioner Saddler. Finally, the letter advised that,
"Should you wish to interview [him] as to the details, I believe it would
be in the public interest to do so."
20. As a result of the aforementioned letters,
Respondents injured Petitioner Saddler's ability to compete for the position of
County Manager at Lake City. Petitioner
Saddler first learned of the existence of the letter when questioned about it
during his job interview in Lake County.
In sending or directing that this letter be sent to the Lake County
Commission, Respondents knew that it could have an adverse impact on Petitioner
Saddler's application. Respondent Allen
admitted as much at hearing.
21. Petitioner Saddler never interviewed for any
position with Marion County. However,
the letter sent to the Marion County Board of County Commissioners was sent
with the same intent to injure Mr. Saddler's reputation or credibility and thus
frustrate his ability to compete for the job.
22. These actions by Respondents reflect that
such actions were done maliciously, and were aimed at discrediting Petitioner
Saddler. Notifying other counties of
their "intention" to file complaints with the Ethics Commission and
providing a self-serving list of "charges," and then filing the
complaint against Petitioner Saddler evidence Respondents' hostility and
malicious intent toward Petitioner Saddler.
23. Based on the foregoing, it is clear that
Respondents filed the complaints against Petitioners with a malicious intent to
injure the reputations of Petitioners.
Furthermore, the Complaints were filed with knowledge that the
Complaints contained one or more false allegations, or with reckless disregard
for whether the complaint contained false allegations of fact material to a
violation of the Code of Ethics.
24. In defending themselves against the
allegations in the subject Complaints and in this proceeding, Petitioners have
been represented by Mary E. Harlan, Esquire, and Barbara W. Coleman, Esquire. Ms. Harlan rendered legal services to
Petitioners during the period between June 3, 1995, and May 20, 1997, while she
was employed by the Polk County Board of County Commissioners. Ms. Harlan's hourly rate is $150.00 and she
expended 47 hours and 10 minutes in representing Petitioners in this
matter. The hourly rate of $150.00 is a
reasonable hourly rate. Likewise, the
time expended on this matter, 47 hours and 10 minutes, is reasonable. Therefore, the attorney's fee of $7,075.00
incurred is reasonable.
25. Barbara W. Coleman is an Assistant County
Attorney for the Polk County Board of County Commissioners. Ms. Coleman's hourly rate is $75.00 and she
has expended 25 hours and 50 minutes in representing Petitioners in this
matter. The hourly rate of $75.00 is
reasonable, as is the time, 25 hours and 50 minutes, expended on this
matter. Therefore, the attorney's fees
of $1,937.50 incurred as a result of Ms. Coleman's representation is
reasonable.
26. Reasonable costs of $604.00 were incurred in
connection with defense of the Complaints against Petitioners and in this
proceeding.
27. The aforementioned costs and attorney's fees
are reasonable and have been stipulated as such by the parties.
CONCLUSIONS OF LAW
28. The Division of Administrative Hearings has
jurisdiction over the parties and the subject matter of this proceeding Section
120.57, Florida Statutes.
29. Pertinent to this proceeding are Section
112.317(8), Florida Statutes, and Rule 34-5.0291, Florida Administrative
Code. Section 112.317(8), Florida
Statutes, provides in pertinent part:
In any case in
which the commission determines that a person has filed a complaint against a
public officer or employee with a malicious intent to injure the reputation of
such officer or employee by filing the complaint with knowledge that the
complaint contains one or more false allegations or with reckless disregard for
whether the complaint contains false allegations of fact material to a
violation of this part, the complainant shall be liable for costs plus reasonable
attorney's fees incurred in the defense of the person complained against,
including the costs and reasonable attorney's fees incurred in proving
entitlement to and the amount of costs and fees. . . .
30. Rule 34-5.0291(1), Florida Administrative
Code, provides:
(1) If the Commission determines that a person
has filed a complaint against a public officer or employee with a malicious
intent to injure the reputation of such officer or employee by filing the
complaint with knowledge that the complaint contains one or more false
allegations or with reckless disregard for whether the complaint contains false
allegations of fact material to a violation of the Code of Ethics, the
complainant shall be liable for costs plus reasonable attorney's fees incurred
in the defense of the person complained against.
31. According to Section 112.317(8), Florida
Statutes, and Rule 34-5.0291, Florida Administrative Code, the award of
attorney's fees requires that the Petitioners show that the Complaints were
filed with a malicious intent to injure the reputation of such officers or
employees with knowledge that the complaints contain one or more false
allegations or with reckless disregard for whether the complaints contain false
allegations of fact material to a violation of the Part III, Chapter 112,
Florida Statutes, (Code of Ethics).
32. In this proceeding, Petitioners have the
burden of proving the grounds for a award of costs and attorney's fees by a
preponderance of the evidence presented at hearing. Rule 34-5.0291(4), Florida Administrative Code.
33. The evidence in this case clearly
established that the allegations contained in the Complaints filed by
Respondents against Petitioners had no factual basis and that Respondents filed
the complaints with malicious intent to injure the reputation of
Petitioners. Respondents' hostility
toward Petitioners was due to Respondents' jobs being eliminated. Based on their hostility and malicious
intent, Respondents filed the Complaints with knowledge that the Complaints contained
one or more false allegations or with reckless disregard for whether the
Complaints contained false allegations of fact material to a violation of the
Code of Ethics.
34. Petitioners have proven by a preponderance
of the evidence that Respondents filed the ethics complaints against
Petitioners with malicious intent to injure their reputations. Furthermore, taken as a whole, or
considering each allegation individually, it is clear that Respondents filed
the Complaints with knowledge that such Complaints contained one or more false
allegations material to a violation of Code of Ethics.
RECOMMENDATION
Based on the foregoing Findings of Fact
and Conclusions of Law, it is recommended that a Final Order be entered finding
Respondents, Carrol G. Allen and Willis D. Conner, liable for attorney's fees
of $9,012.50 and for costs of $604.00, and ordering that Respondents pay such
fees and costs to the Polk County Board of County Commissioners.
DONE AND ENTERED
this 12th day of October, 1998, in Tallahassee, Leon County, Florida.
___________________________________
CAROLYN S. HOLIFIELD
Administrative Law
Judge
Division of
Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee,
Florida 32399-3060
(850) 488-9675 SUMCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the
Division of
Administrative Hearings
this 12th day of
October, 1998.
COPIES FURNISHED:
Barbara W. Coleman,
Esquire
Office of Polk
County Attorney
Post Office Box 9005
Drawer AT01
Bartow,
Florida 33831-9005
Joseph N. Baron,
Esquire
Post Office Box
1088
Lakeland,
Florida 33802
Kerrie Stillman,
Complaint Coordinator
Commission on
Ethics
2822 Remington
Green Circle, Suite 1
Post Office Box
15709
Tallahassee,
Florida 32317-5709
Phil Claypool,
General Counsel
Commission on
Ethics
2822 Remington
Green Circle
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
Bonnie Williams,
Executive Director
Commission on
Ethics
2822 Remington
Green Circle, Suite 101
Post Office Drawer
15709
Tallahassee,
Florida 32317-5709
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.