11-000011FE Bobbie Metz vs. Shaun Meyers Status: Closed Recommended Order on Wednesday, July 6, 2011.

Summary: The evidence showed that Respondent maliciously filed an ethics complaint against Petitioner with conscious indifference to the truth or falsity of the material allegations of the complaint. Attorney's fees and costs awarded.

Case No. 11-0011FE

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOBBIE METZ, )

RECOMMENDED ORDER )

Petitioner, )

)

vs. )

SHAUN MEYERS, )

)

Respondent. )

)

)

Pursuant to notice, a formal hearing was held before Diane

Cleavinger, a designated Administrative Law Judge with the

Division of Administrative Hearings, on April 18, 2011, in

Destin, Florida.

APPEARANCES

For Petitioner: Glenn T. Burhans, Jr., Esquire

Greenburg Traurig, P. A.

101 East College Avenue

Tallahassee, Florida 32301

For Respondent: Jennifer H. Copus, Esquire

Copus & Copus, P. A.

1817 Lewis Turner Boulevard, Suite E

Fort Walton Beach, Florida 32547

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner is

entitled to attorney’s fees pursuant to Section 112.317(7),

Florida Statutes (2009), and Florida Administrative Code Rule

34-5.0291.

PRELIMINARY STATEMENT

On April 7, 2010, Respondent, Shaun Meyers (Respondent or

Meyers) filed an ethics complaint against Petitioner, Bobbie

Metz (Petitioner or Metz) with the State of Florida Commission

on Ethics (Commission). The complaint alleged that Petitioner

misused her public position as a fire commissioner in violation

of section 112.313(6). Respondent filed an amendment to the

complaint on April 30, 2010.

The Commission undertook a full investigation of the

allegations of Meyers' amended complaint and, on September 1,

2010, issued a final Report of Investigation, concluding that

Meyers' allegations against Metz lacked merit. On September 17,

2010, the Commission's Advocate recommended that there was no

probable cause to believe Metz violated Florida law as alleged

in the Complaint. Based on the Advocate's recommendation, the

Commission, on October 27, 2010, dismissed Meyers' ethics

Complaint.

Thereafter, Metz filed a Petition for Costs and Attorney’s

Fees pursuant to section 112.317(7) and Florida Administrative

Code Rule 34-5.0291. The Petition alleged that Meyers filed the

ethics Complaint with malicious intent to injure her reputation,

by filing the Complaint with knowledge that it contained one or

more false allegations, or with reckless disregard for whether

the Complaint contained one or more false allegations.

Respondent disputed the Petition for Fees and the matter was

forwarded to the Division of Administrative Hearings (DOAH) for

formal hearing.

At the hearing, Petitioner testified on her own behalf and

called Mark Baugh as a witness. Additionally, Petitioner

offered 15 exhibits into evidence. Respondent testified on his

own behalf, but did not offer any exhibits into evidence. After

the hearing, both parties filed Proposed Recommended Orders on

May 6, 2011.

FINDINGS OF FACT

1. Respondent has been employed as a firefighter with

Destin Fire Control District (DFCD) since 2002. Currently, he

is a Lieutenant and paramedic with DFCD. In 2005 and early

2006, he was a firefighter in the main fire station where all

the DFCD administrative offices are located. Additionally,

during the same period he served as the Union President for the

local firefighters. As such, he knew that Commission meetings

were recorded.

2. Petitioner is licensed as a Certified Public Accountant

(CPA). Her primary background is in the area of public finance.

From January 2004, until January 2005, Petitioner served as an

Administrative Assistant to then Fire Chief, Milner “Tuffy”

Dixon (Dixon). She left that position for full-time employment

at a CPA firm.

3. While maintaining her employment as a CPA, Petitioner

was appointed as a Fire Commissioner for DFCD on March 14, 2005.

The principle reason for Ms. Metz’s appointment to DFCD was her

extensive background as a certified public accountant and the

growing annual budget of DFCD.

4. At DFCD Commission meetings held on June 13, 2005;

September 12, 2005; October 11, 2005; and December 12, 2005,

Ms. Metz identified portions of the financial reports prepared

by then Financial Administrator Wanda Martin (Martin) that did

not comply with Generally Accepted Accounting Principles (GAAP).

Specifically, the financial statements prepared by Wanda Martin

did not properly accrue expenses; did not always correctly

reconcile bank accounts; did not properly record fund balances,

receivables and liabilities, and misspelled account names.

DFCD’s outside auditor Bruce Nunnally, who is also a CPA, agreed

with Ms. Metz’s observations. Ms. Metz, along with the

Commission, wanted the financial statements corrected and to

conform with GAAP. However, because Ms. Martin had no formal

accounting education, Mr. Nunnally offered to help Ms. Martin

make the corrections noted by Ms. Metz and had at least one

meeting with her and Ms. Metz to achieve that purpose. After

several months, Ms. Martin did not adopt the changes requested

by Ms. Metz and the financial reports remained essentially the

same.

5. Since Ms. Martin failed to make these corrections, at

the December 2005 DFCD Commission meeting, Ms. Metz initially

stated that, due to her CPA training, she could not in good

faith approve a financial statement she knew to be incorrect.

After further discussion amongst the DFCD Commissioners,

Ms. Metz accepted the financial statement prepared by Ms. Martin

with the condition that the corrections would be made in the

future.

6. As indicated, all of these commission meetings were

recorded. Although some of the recordings were of poor quality,

the tapes showed that Petitioner was always polite to

Ms. Martin. They contained no evidence that Ms. Metz ever

bullied or harassed Ms. Martin.

7. Importantly, throughout this time period the gossip in

the fire station, which stations tend to be rampant with, was

that Ms. Metz was being extremely hard on Ms. Martin and getting

on to her. Other gossip was that Ms. Metz was being extremely

hard on Ms. Martin because she wanted her job. However, neither

during the unfolding of these events nor shortly after, did

Respondent feel it was necessary to inquire into the activities

of Ms. Metz or Ms. Martin. Similarly, Respondent did not feel

it was necessary to file an ethics complaint against Ms. Metz.

8. On January 9, 2006, Wanda Martin resigned from her

position of Financial Administrator with DFCD.

9. After learning of Ms. Martin's resignation, Petitioner

resigned from the Fire Commission on January 12, 2006, in order

to apply for the Financial Administrator position vacated by

Ms. Martin. The evidence did not demonstrate when Ms. Metz

submitted her application for the Financial Administrator

position.

10. Sometime in January, either upon or after her

resignation, Ms. Metz spoke with former Chief Dixon regarding

turning in her job application. She told him she felt she had a

good chance to get the job because she thought she was the best

qualified. She did not threaten or pressure former Chief Dixon

to hire her for the Financial Administrator position.

11. Former Chief Dixon told her that he had to advertise

the job according to the rules and that Ms. Metz could put her

application in “like anyone else.”

12. The position was advertised during the month of

January and about 30 applications, including Petitioner's

application, were received by DFCD. At no time did Petitioner

solicit any Commissioner's support. Petitioner was

subsequently, hired as Financial Administrator by Chief Dixon on

January 30, 2006.

13. Ms. Metz was not a DFCD Commissioner and did not hold

any public office at the time she applied for the DFCD Financial

Administrator position. In fact, Ms. Metz remained employed

full-time as a CPA with the accounting firm she had been working

for, receiving a compensation package similar to that offered

for the DFCD Administrator position. She left her employment

with the CPA firm when she was hired as the DFCD Financial

Administrator.

14. Former Chief Dixon denied that he was pressured to

hire Ms. Metz for the position. Rather, the ethics

investigation revealed that Chief Dixon thought that out of

approximately 30 applicants for the Financial Administrator

position, Ms. Metz was the best qualified applicant because she

was a CPA and had previous employment history with DFCD.

15. The ethics investigation further revealed that Chief

Dixon stated he felt "uncomfortable" when Ms. Metz said that she

was only resigning from the DFCD Commission because she thought

she was the most qualified for the DFCD Financial Administrator

position. However, he also did not feel pressured by Ms. Metz

because she was tendering her resignation from the Commission at

the time that she made the comment and no longer had any

influence over his position as the Chief of the Fire District.

At hearing, Respondent claimed that Chief Dixon may have been

untruthful during the ethics investigation, but offered no

credible proof of his assertion. Chief Dixon did not testify at

the hearing in this matter and Respondent's assertion about

Chief Dixon's untruthfulness is not credible or material since

Respondent never inquired whether Chief Dixon was pressured by

Ms. Metz.

16. In 2005 and 2006, gossip among the firefighters was

rampant about the hiring of Ms. Metz and Respondent was aware of

this gossip. However, he again did not feel compelled to

inquire into any of these events or file an ethics complaint

against Ms. Metz.

17. In March 2009, Chief Dixon retired from DFCD after 19

years of service to DFCD as Fire Chief. Assistant Chief Sasser

became the Fire Chief.

18. By 2010, due to a variety of incidents, the atmosphere

in the fire district was poisonous because of some actions taken

by Ms. Metz and some actions taken against her son, who had been

employed by DFCD as a lifeguard. For example, by letter dated

March 10, 2010, Ms. Metz provided notice to the DFCD Board of

Commissioners that DFCD Chief Sasser had allegedly violated the

Sunshine Law and created a hostile work environment. By this

same letter, Ms. Metz sought whistleblower protection under

chapter 122, Florida Statutes, stating, “I am very concerned

about retaliation after you receive this letter.” On the other

hand, some of the incidents involved the termination of

Ms. Metz's son by Chief Sasser. Rumors and innuendos were

flying around the fire station both in conversation and in

blogs. Some of the problems were appearing in the local news.

19. Respondent, who described Chief Sasser as a friend,

mentor, and superior, was upset that Ms. Metz exposed Chief

Sasser’s alleged Sunshine Law violations. Mr. Myers felt that,

by calling attention to Chief Sasser’s misconduct, Ms. Metz cast

the department and Chief Sasser in a “bad light.” Mr. Myers

testified: “I was upset that we were getting drug in the paper

every week.” He wanted the coverage to stop.

20. In this atmosphere, many of the old rumors about

Ms. Metz were resurfacing. Respondent was told by another

firefighter, that in January 2006, Ms. Metz had gone to Chief

Dixon with her resignation in one hand and her application in

the other and informed Chief Dixon that she was applying for

Ms. Martin's old job. Although all of these rumors were around

in January 2006, Respondent claims that, over 4 years later, he

was now troubled by them and went to Chief Dixon to inquire

about what he had been told. Importantly, Respondent had no

direct knowledge of any of the alleged events that occurred in

2005 and 2006.

21. Chief Dixon told Respondent that he had met with

Ms. Metz, but that he could not remember whether she had her

resignation and application with her at the time. Essentially

the conversation was as outlined above. In addition, Chief

Dixon discussed the alignment of the Commission on the issue of

hiring Ms. Metz that he thought was prevalent in January 2006.

Importantly, Respondent never asked Chief Dixon whether he was

pressured by Ms. Metz to hire her for the position. If he had,

Chief Dixon would have denied such pressure as he has

consistently done during the investigation of this matter by the

Ethics Commission. The omission of this question demonstrates

that Respondent's belated interest in Ms. Metz's hiring and

Ms. Martin's resignation was motivated not because he was a

concerned citizen but more by a desire to strike out at Ms. Metz

in order to stop her from disparaging the fire department. The

deliberate omission of this question was also in reckless

disregard of the truth of his allegation that the Chief was

pressured by Ms. Metz.

22. Respondent also spoke with Ms. Martin who was known

for being overly dramatic and sensitive and who remains bitter

about Ms. Metz. She felt Ms. Metz was overly hard on her. She

cited no specifics and the evidence did not show any such

specifics, other than the alleged harassment occurred in

commission meetings. She, also specifically mentioned the

November commission meeting when she felt harassed by Ms. Metz

because she did not have the financial reports for the meeting

completed due to the time off she had taken to help her mother

who was ill.

23. Other than these two individuals, Respondent made no

inquiry of anyone with direct knowledge of these events. More

importantly, he did not listen to the tapes of the meetings at

which such harassment allegedly occurred. If he had he would

have learned that Ms. Metz was not rude or hostile to Ms. Martin

during these commission meetings. He would have learned that

Ms. Metz did not harass Ms. Martin during these commission

meetings, but performed her duty to inquire about financial

reports that to a CPA were done incorrectly. He would have

learned that the District's auditor agreed with Ms. Metz and

that Ms. Martin repeatedly failed over several months to

incorporate the corrections that Ms. Metz desired and the

commission had instructed her to do. In short, Petitioner would

have learned that his belief that Ms. Metz harassed Ms. Martin

until she resigned was not true. Such a failure to investigate

the facts to determine their validity constitutes reckless

disregard for the truth especially given Respondent's knowledge

that such tapes existed and the length of time that had passed

since Ms. Martin's resignation and Ms. Metz's hiring, as well

as, the ulterior motive of Respondent to silence Ms. Metz in

2010.

24. Instead of reasonable inquiry regarding his beliefs,

on April 7, 2010, Respondent filed an ethics complaint against

Petitioner alleging that Petitioner had violated section

112.313(6)(Misuse of Public Office) for actions that had

allegedly occurred in 2005 and January 2006 regarding

Ms. Martin's resignation and Ms. Metz employment as Financial

Administrator by DFCD. The Complaint alleged that Ms. Metz had

used her position as a fire commissioner to harass and belittle

Ms. Martin at DFCD commission meetings in order to force her to

resign and then used that same position to pressure Chief Dixon

to hire her for that same position.

25. To support his allegation, the initial complaint,

contained factual allegations confined primarily to the

following facts that are not in dispute: (i) Ms. Metz was a Fire

Commissioner with the DFCD in 2005; (ii) Wanda Martin was the

Financial Administrator for DFCD at that time; (iii) Ms. Metz

questioned Ms. Martin about the financial statements at four

Fire Commission meetings in the fall of 2005; (iv) Ms. Martin

resigned in January of 2006; (v) Ms. Metz subsequently resigned

as a Fire Commissioner; and (vi) Ms. Metz was hired as the new

DFCD Financial Administrator. Based on these bare facts,

Respondent concluded that Ms. Metz “used her position to push

Ms. Martin out so that she could step into the job.”

26. However, the Commission on Ethics’ investigator

determined that these allegations were legally insufficient for

investigation and told Respondent that the Complaint would be

dismissed unless he provided additional information.

27. Respondent called Chief Dixon again; Chief Dixon gave

him the same information he had given him before. Importantly,

Respondent, again, failed to inquire about whether Chief Dixon

was pressured by Ms. Metz. No other investigation or inquiry

was made by Respondent regarding his beliefs. Again, this

failure to inquire into essential facts was in reckless

disregard of the truth.

28. Instead, Respondent filed an amendment to the

complaint on April 30, 2010. Specifically, Respondent again

alleged that in 2005 and 2006, some four and a half years prior

to his complaint, Petitioner misused her public position as a

Fire Commissioner to (a) create a hostile work environment for

Ms. Martin thereby forcing Martin to resign as Financial

Administrator, and pressured former Chief Dixon to hire

Petitioner. Given this timing and his motivation, Respondent's

explanation that he did not think it was not his "job" to

investigate this matter before he filed his ethics complaint is

not credible.

29. After amendment, the Executive Director of the

Commission on Ethics found the complaint against Petitioner to

be legally sufficient and ordered a preliminary investigation to

determine if Petitioner’s actions were violative of section

112.313(6).

30. In order to defend herself, Ms. Metz entered into a

retainer agreement with the firm of Greenburg Traurig, P.A. on

September 14, 2010. Ms. Metz intends to fully pay the bill.

31. As of April 14, 2011, Ms. Metz incurred fees in the

amount of $25,356.76, and costs in the amount of $1,158.22.

Additional fees in the amount of $17,277.50, and costs in the

amount of $1,418.31 have since been incurred. The parties have

stipulated to the reasonableness of the hourly rates, hours

expended, and total fees and costs incurred. Given that

Respondent's ethics complaint was filed in reckless disregard of

whether the complaint contains false allegations, Petitioner is

entitled to an award of costs and attorney's fees for her

defense against Respondent's complaint and subsequent costs and

fees associated therewith in the amounts outlined above.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. See §§ 120.569 and 120.57(1), Fla. Stat. (2009).

33. Section 112.317 provides for an award of attorney's

fees and costs in certain ethics actions. Section 112.317(7)

provides, in part:

In any case which the commission determines

that a person has filed a complaint against

a public officer or employees 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 violation of this part, the

complainant shall be liable for costs plus

reasonable attorneys’ fees incurred in the

defense of the person complained against,

including costs and reasonable attorneys’

fees incurred in proving entitlement to and

the amount of costs and fees.

34. As the party asserting entitlement, Petitioner has the

burden to prove that an award of attorney’s fees and costs is

appropriate pursuant to section 112.317(7) and Florida

Administrative Code Rule 34-5.0291. See

Dep’t of Banking & Fin.

v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996); Dep’t

of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 787 (Fla. 1st

DCA 1981).

35. In Brown v. Fla. Comm’n on Ethics , 969 So. 2d 553, 560

(Fla. 1st DCA 2007), the court determined that the elements of a

claim by a public official for attorney’s fees are (a) the

complaint was made with a malicious intent to injure the

official’s reputation; (b) the person filing the complaint knew

that the statements about the official were false or made the

statements about the official with reckless disregard for the

truth; and (c) the statements were material. The court, also,

determined that the actual malice standard of New York Times Co.

v. Sullivan , 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686

(1964) does not apply to fees sought pursuant to section

112.317. Id. at 559. The Brown court emphasized that even

without the Sullivan standard, “[t]he statute sets a very high

bar for recovery of fees.” Id. at 560. However, that bar is

met where, as here, the person filing an ethics complaint acts

with conscious indifference to the truth of that complaint. Id.

36. Under Brown , it is clear that ethics complaints which

allege facts insufficient to prove the elements of a violation

of an ethics statute will not automatically render a complaint

baseless or wholly untenable. Moreover, it is clear that an

award of attorney’s fees is not warranted in every situation

wherein an ethics complaint is dismissed for lack of probable.

37. However, in this case, the evidence demonstrated that

Respondent maliciously filed the complaint in order to silence

Petitioner. Additionally, Respondent maintained a conscious

indifference to the truth or falsity of his allegations when he

failed to reasonably investigate or inquire about the events

which occurred in 2005 and 2006. Given the timing of

Respondent's complaint and Respondent's failure to inquire, the

fact that Respondent provided the names and contact information

for potential witnesses, regardless of whether their testimony

would be in favor of the allegations, and informed the Ethics

Commission about the tapes does not demonstrate that Respondent

was concerned with the truth or falsity of his allegations.

Therefore, Petitioner is entitled to an award of costs and

attorney's fees for her defense against Respondent's complaint

and subsequent costs and fees associated therewith in the amount

of $42,634.26 in attorney's fees and $2,576.53 in costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

Recommended that the Commission enter a Final order

granting the Petition for Fees and awarding attorney's fees and

costs in the amounts noted above.

DONE AND ENTERED this 6th day of July, 2011, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of July, 2011.

COPIES FURNISHED :

Glenn T. Burhans, Jr., Esquire

Greenberg Traurig

101 East College Avenue

Tallahassee, Florida 32301

Kaye Starling, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Jennifer H. Copus, Esquire

Copus & Copus, P.A.

1817 Lewis Turner Boulevard, Suite E

Fort Walton Beach, Florida 32547

Philip C. Claypool, General Counsel

Florida Commission on Ethics

3600 Maclay Boulevard, South

Suite 201

Tallahassee, Florida 32312

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.