13-004759F Robert J. Barnas vs. Sharon L. Yeago Status: Closed Recommended Order on Thursday, August 28, 2014.

Summary: Evidence showed Petitioner failed to inquire about allegations in FEC complaint and attributed private political activities to Respondent and group to which she supported. Fees and cost awarded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. BARNAS,

Petitioner,

vs. Case No. 13 - 4759F

SHARON L. YEAGO, 1/

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was he ld before the

Division of Administrative Hearings Administrative Law Judge

Diane Cleavinger on February 25, 2014, and April 24, 2014, in

Gainesville, Florida.

APPEARANCES

For Petitioner: Joseph W. Little, Esquire

3731 Northwest 13th Place

Gainesville, Florida 32605

For Respondent: Paul R. Regensdorf, Esquire

Holland and Knight LLP

50 North Laura Street

Jacksonville, Florida 32202

STA TEMENT OF THE ISSUE

The issue in this proceeding is whether Respondent is

entitled to attorneyÓs fees and costs pursuant to s ection

106.265(6), Florida Statutes (2012) , and Florida Administrative

Code Rule 2B - 1.0045.

PRELIMINARY STATEMENT

On April 1, 2013 , Complainant , Robert J. Barnas, filed a n

ethics complaint with the Florida Elections Commission (FEC)

against Respondent , Sharon L. Yeago, as the spokesman of an

organization known as Concerned Citizens for a Better High

Springs ( Concerned Citizens ). In the Complaint, Mr. Barnas

alleged that Ms. Yeago and others had formed Concerned Citizens

to oppose a High Springs charter amendment referendum and to

support certain High Springs city commission candidates in the

November 6, 2012 , general election. The C omplaint further

alleged that such activity had violated various provisions of

c hapter 106 , Florida Statutes , since Concerned Citizens fail ed to

register as a political committee, fail ed to appoint a treasurer,

fail ed to appoint a registered agent, fail ed to file reports of

financial expenditures, and fail ed to keep records. Ms. Yeago

filed a response to the complaint . After review, FEC ultimately

dismissed the underlying complaint .

At the hearing in this matter, Mr. Barnas claimed that

procedural flaws regarding notice had occurred during the

underlying proceeding. However, the decision of the FEC in the

underlying action was not appealed by Mr. Barnas and is now

final. Therefore, such alleged procedural flaws have not been

addressed in this Recommend ed Order.

After the FEC decision , Ms. Yeago filed a Petition for Costs

and AttorneyÓs Fees pursuant to sect ion 106.265(6 ) and Florida

Ad ministrative Code Rule 2B - 1.0045 . The Petition alleged that

Mr. Barnas filed the ethics Complaint with malicious i ntent to

injure her reputation, by filing the Co m plaint with knowledge

that it contained one or more false allegations, or with reckless

disregard for whether the Complaint contained one or more false

allegations. Mr. Barnas disputed the Petition for Fees and the

matter was forwarded to the Division of Administrative Hearings

(DOAH) for formal hearing.

At the hearing, Complainant , Mr. Barnas , testified in his

own behalf and presented the testimony of two witnesses.

Complainant also offered 12 exhibit s into evidence . Respondent,

Ms. Yeago, testified in her own behalf and presented the

testimony of three witnesses. Additi onally, Respondent offered

19 exhibits into evidence.

After the hearing, Petitione r /Complainant filed a Proposed

Recommended O rder o n June 27, 2014. Respondent filed a Proposed

Recommended Order on June 30, 2014.

FINDING S OF FACT

1. Robert Ba rnas was an elected member to the C ity

C ommission of the C ity of High Springs, Florida. At the time

relative to this proceeding, the C ity of Hi gh Springs was having

serious financial difficulty , had cut salaries and staff and was

having difficulty meeting its obligations .

2. Mr. Barnas was a sponsor and supporter of a referendum

to amend the C ity of High Springs charter. In general, the

propo sed amendment sought to limit the power of the C ity of High

Springs to borrow money without a super majority vote of the C ity

C ommission and an approving vote of the electorate.

3. Th e charter amendment was passed by the C ity C ommission

without following proper procedures and was slated to appear on

the November 6, 2012, general election ballot. The restrictive

nature of the referendum and the manner of the referendumÓs

passage angered many voters who campaigned against it. Further,

a legal action by op ponents of the referendum was filed in

Circuit Court to invalidate the passage of the referendum. Due

to that legal action, the Circuit Court preliminarily voided the

impending vote on the charter amendment but did not remove the

question from the ballot.

4 . In addition, p olitics in High Springs had t o o many

people become shockingly contentious, mean - spirited and

discourteous. The referendum and its questionable passage added

to the negative political atmosphere. As a consequence, around

September 28 , 2012 , an informal , unincorporated organization was

formed in the C ity of High Springs called Concerned Citizens for

a Better High Springs (Concerned Citizens) . It was formed for a

variety of Ð good government Ñ concerns regarding government and

politics i n Hi gh Springs .

5 . T hroughout the period of time between its organization

and the election in November of 2012, four people were responsible

for C oncerned C itizens and constituted its Steering Committee .

Those four people were Becky Johnson, John Manley, Bob Jones , and

Linda Jones.

6. The group was a volunteer organization and did not have

dues or a bank account . The evidence was not clear if Concerned

Citizens had official members in its organization or less official

supporters since to Ð joinÑ the organization a person could email

Concerned Citizens or ÐlikeÑ the group on Facebook and thereby be

listed as a supporter.

7 . Ms. Yeago was affiliated with or a supporter of Concerned

Citizens and served from time to time as a volunteer spokes person

for that organization. She also assembled from other supporters

ideas , and / or typed up the mission statement and other documents

that will be discussed later in this order. She did draft the

groupÓs description /solicitation for support which will also be

di s cussed later in this order.

8. Ms. Yeago lived in the county where High Springs is

located, but did not live in High Springs. She, therefore, was

not a voter in High Springs city elections. Her political stance

on any High Springs city commi ssion candidates or on the charter

amendment was not known and not demonstrated by the evidence .

Further, no effort was made by Mr. Barnas to ascertain Ms. YeagoÓs

position on these issues and there was a complete lack of evidence

demonstrating that Ms. Y eago campaigned for or against any

candidate for the CityÓs commission or advocated for or against

the charter amendment on the ballot .

9. Ms. Yeago supported Concerned Citizens and helped the

group because she was genuinely concerned with fostering a b etter

political atmosphere in High Springs. She was not on the steering

committee and not responsible for guiding the group . Further, due

to her professional work with various local government s and people

of all political persuasions it was of primary co ncern to her that

Concerned Citizens or any group she was associated with be non -

political and nonpartisan .

10 . On the other hand, s ome of Concerned Citiz ens Ó publicly

identified sup p orters , in their private capacity, actively and

publicly opposed adopti on of the proposed charter amendment and

actively and p ublicly supported election of particular candidate s

for seat s on the High Springs city commission whose election

Mr. Bar nas opposed.

11 . Two of the cand idates opposed by Mr. Barnas were Bryan

Willia ms and Scott Jamieson . Mr. WilliamsÓ opponent was Patrick

Rush. Mr. JamiesonÓs opponent was Edward Reiss.

12 . Concerned Citizens created a Facebook identity and

started a Facebook page on September 28, 2012, the official day of

its formation. The group posted under the name ÐConcerned

Citizens for a Better High Springs.Ñ Individuals posted under

whatever Facebook name they used. The group did not control who

posted to its F acebook page or the contents of such posts.

13. On September 28, 2012, the o fficial day of formation of

Concerned Citizens, Gene Levine posted a comment on Concerned

CitizensÓ F acebook page. T he evidence was not clear if Mr. Levine

was then a supporter of Concerned Citizens. However, by

November 1, 2012, he was listed as a suppo rter by the organization

in an advertisement it ran in the local newspaper offering rides

to the polls.

14 . Mr. LevineÓs comment read:

As of Friday n ight 9/28/2102 [ sic ] , if the

information is correct, it appears that Edward

Reiss has thrown in the towel leaving Scott

Ja mison [sic] to retain Seat 5 unopposed.

That leaves Patrick Rush to run against Bryan

Williams for Seat 4 , the seat now held by Dean

Davis who is all too friendly with Rush.

DeanÓs close friend Robyn Rush instructed

Davis to support Pat R ush and Davis is going

around town putting up ÐVote For RushÑ signs.

We must remember Pat Rush as the owner of

ÐPatÓs Place , Ñ a coffee shop on Main Street

that went out of business. He couldnÓt blame

anyone else for his businessesÓ demise because

he made all the decisions. How can any

citizen of High Springs even think of voting

for someone who couldnÓt successfully run his

own business to run our CityÓs big business?

Everyone should send the present triumvirate a

clear message that we the people, who t his

trio works for, canÓt take their lack of

professionalism anymore. We will vote for

Bryan Williams because he has nothing to hide

about his past and wants the chance to do

damage control and better position High

Springs to thrive once again by bringing in

much needed jobs.

15 . Immediately following Mr. LevineÓs comment , Concerned

Citizens disclaimed Mr. LevineÓs comment and posted:

This group will not be addressing political

campaign issues. Those are for other groups.

We are nonpartisan and no npolitical and will

only be focused on policy recommendation s to

move High Springs forward.

16 . Concerned Citizens further advised people to Ðtake a

look at our Principles and Policy Recommendations under About.Ñ

Notably , through the time of filing the FEC complaint underlying

this action and other than congratulating the electionÓs winner

after the election and wishing him well , there were no other

postings on the Concerned Citizens Ó Facebook page or on its

ÐAboutÑ page regarding any political cand idates. Further, there

were clearly no postings by Ms. Yeago regarding any political

candidates.

17 . Indeed, Mr. JamiesonÓs race was uncontested and listed

as such on the ballot in November. Mr. William Ós race remained

contested and most of the evi dence in this hearing focused on

Mr. William Ós race. However, Mr. Barnas misrepresented , to the

point of falsification , that Concerned Citizens supported these

two candidates when he cut and pasted into an attachment to his

FEC complaint only Mr. LevineÓs post on Facebook, deliberately

leaving out the nonpartisan statement and position of Concerned

Citizens which followed Mr. LevineÓs post. Moreover, by April 1,

2013, when Mr. Barnas sent his complaint to the FEC, Mr. Barnas

knew that Mr. JamiesonÓs race was uncontested, but falsely

represented that Concerned Citizens had expressly advocated for

his election when no such advocacy occurred because the race was

uncontested.

18 . As indicated, Concerned Citizens published on its

Facebook page and in a v ariety of documents its mission statement ,

its four guiding principles, and its five key areas of principal

concern to effectuate its goals of greater civility in politics

and better government in High Springs .

19 . The Miss ion Statement read :

Concerned Citizens for a Better High Springs

supports a local government with a commission

and professional management that provide

leadership, accountability and a vision for

our future.

20 . In addition to the mission statement that appeared on

its Facebook page, there were two publications /statements created

that included the groupÓs above - quoted mission statement. One

publication contained the mission statement and listed the

groupÓs four ÐGuiding Principles . Ñ Those guiding principles

were:

Principle One : There must be a commitment by

the Commissioners and the citizens to restore

professional, experienced , and accountable

management to the City.

Principle Two : There must be a commitment to

restore a comprehensive budgetary process

that addresses both sh ort and long term core

needs and brings the City back to fiscal

responsibility.

Principle Three : There must be a commitment

to restore civility and fairness to the

manner in which City government is conducted

and to the manner in which its elected

offici als interact with City staff and with

residents.

Principle Four : There must be a commitment

to restore the reputation of High Springs

City government as a responsible, caring and

fair government. This commitment must

encompass relations with government entities

at all levels, with City staff, with business

owners, with the public - at - large, with the

media, and most of all with its own citizens.

(Bold and italics in original.)

These four principle s were followed by a variety of policy

recommendations that Concerned Citizens felt were important

considerations to implement its principles. Importantly, this

publication did not mention Mr. Williams, Mr. Jamieson , or

expressly advocate for their election , the defeat or passage of

any candidate or charter a mend ment and co uld not be reasonably

read to do so .

21 . A second publication/statement by Concerned Citizens was

created that included the groupÓs mission statement and listed

Ð Five Key Areas o f Principal Concern.Ñ The Five areas were , in

relevant pa rt :

1. The Dispatch Project is a major financial

drain whose re - installation was premature at

best and ill - advised at worst.

* * *

2. The morale of the CityÓs employees has

been badly eroded by the CityÓs Commission

leadership and attitudes. The non - u nion

employees have had to bear a disproportionate

share in reductions to their compensation and

benefits, all in an increasingly hostile

atmosphere.

* * *

3. The prolonged absence of professional

management is destroying the CityÓs

credibility and grea tly reducing its

performance .

* * *

4. Critical infrastructure items are not

being properly monitored and the lack of

necessary maintenance, or funding reserves,

exposes the City to an unreasonable ri s k of

system collapse.

* * *

5. Proposed changes t o the City Charter will

drastically change and significantly limit

how future Commissions are able to run City

Government:

a. The amendment would prohibit the City

Commission from incurring any debt beyond one

million dollars unless first approved by a

2 /3 vote (4 out of 5) of the Commission PLUS

passage of a referendum by the voters

approving the debt, before the loan could be

made, ensuring that an immediate response to

a major crisis is virtually impossible from a

financial perspective.

b. If the am endment is approved, it has the

potential to make debt consolidation and

other financial planning tools less available

for the City since governmental entities and

financial institutions would have no

organization with which they could deal to

finish a tra nsaction. Some say the cost of

funds for the City could rise dramatically.

Long - range planning concerns were not

considered by the Commission in any detail,

and they should be carefully explored by the

citizens before election day when considering

this a mendment.

THEREFORE, WE BELIEVE : The proposed

amendment to limit the debt to $1,000,000,

unless first approved by a 2/3 majority of

Commissioners [4 of 5 voting] AND a

referendum vote by the citizens, is a serious

and significant limitation on future

C ommissions' ability to manage the financial

resources of the City.

(Bold and italics in original.)

22 . The Five Principals were posted on the groupÓs F acebo ok

page and also distributed as a paper document at a candidateÓs

forum conducted in High Spr ings shortly prior to the November 6,

2012 , election. Notably, concern 5 was a reasonable analysis of

the charter a mendment and only endeavored to explain the c harter

amendment, its potential effects and things that should be

considered by a voter when vo ting on this amendment.

Importantly, this second publication does not expressly advocate

for or against any candidate or for or against the charter

a mendment . Moreover, paragraph 5 could not be reasonably read to

expressly advocate for o r against any can didate or the c harter

amendment . The italicized portion of paragraph 5 only describes

the amendmentÓs method for limiting debt by subjecting such a

decision to two votes and further stating the groupÓs belief that

such restrictions limit the city commissi onÓs ability to act.

Nowhere in this language does the group indicate how a person

should vote regarding the ballot referendum on the charter

amendment.

23 . Unfortunately , Mr. Barnas read item 5 above and deemed

it to be express advocacy opposing th e pending referendum on the

proposal to amend the City of High Springs charter. Mr. Barnas'

complaint affirmatively accu ses Ms. Yeago, on behalf of the

Concerned Citizens group , with expressl y advocating the defeat of

the charter a mendment. As indicated, this single reference by

Concerned Citizen s to the charter a mendment in its many

publications w as fair comment on the amendment and did not

expressly advocate for its passage or defeat.

24 . The C oncerned C itizen s Ó statement that included item 5

abo ve also contained the following group description/request for

support :

Concerned Citizens for a Better High Springs

is a nonpartisan, nonpolitical grassroots

citizensÓ group and, pursuant to Fl orida

Stat ute, s ection 106.011, does not qualify as

either a political committee or an

electioneering communications organization.

We encourage local residents, business owners

and others invested in and supportive of our

goals to sign on to show public support for

this effort by email at [e-mail]

or ÐL ikingÑ the group at

http://tinyurl.com/bosiqm3 .

25 . On November 1, 2012 , C oncerned C itizen s Ó published a

full - page advertisement in the Alachua County Today newspaper.

The advertisement identified the names of C oncerned C itizens Ó

members including Ms. Yeago. The advertisement began Ð VOTE ON

NOVEMBER 6TH GO ALL THE WAY TO THE END OF THE BALLOT to ensure

your voice is heard! Ñ (Emphasis in original.) The advertisement

listed the four ÐGuiding Principles . Ñ It also included a

statement eliciting supp ort similar to but not identical to the

one quoted above.

26. As indicated earlier, Ms. Yeago drafted these

statements in order to describe the group as nonpartisan and

nonpolitical , seek support and make it clear that the group was

not a political committee engaged in election activities. The

language regarding s ection 106.011 was added to emphasize that

the group was not formed to advocate for any campaign or on any

election issue . More importantly, n o part of these group

descriptions / requests f or support could reasonably be read as

express advocacy regarding a candidate or election issue.

27 . Again , Mr. Barnas, in his complaint, incorrectly

asse rted that the groupÓs description/request for support

demonstrated its intention and that of Ms . Yeago to thwart the

law regarding political committees. He also believed that

Concerned Citizens had tried to hide its Ð advocacy Ñ against the

c harter amendment by omitting the above mentioned paragaraph 5

from its four principles document . In fact, the paragraph had

never been part of the group Ó s four principles and had only been

contained in its ÐFive Key Areas of Principal Concern.Ñ

Mr. Barnas did not inquire or make any investigation regarding

these documents but assumed bad intent on the part of Co ncerned

Citizens and, more specifically, Ms. Yeago . Such a failure to

investigate the se statements and documents constitutes reckless

disregard for the truth of the allegations made by Mr. Barnas in

his FEC complaint .

28 . C oncerned C itizen s Ó newspap er advertisement published

on November 1, 2012 , contained a list of its supporters including

the name s of Tom Hewlett and Linda Hewlett . During the run - up to

the election, t he Hewletts made two 4' by 4' posters statin g

ÐVote NoÑ in large letters which the y prominently displayed at

the High Springs voting precincts on election day, November 6,

2012. One of these posters was introduced into evidence but the

other poster had been destroyed. The uncontested evidence

demonstrated that t he Hewletts created the se signs in their

private capacity as voters in High Springs and without the

a ssistance or cooperation of C oncerned C itizens.

29 . Mr. Barnas testified he saw a large ÐVote NoÑ sign that

included C oncerned C itizen s Ó identification affixed from holes i n

its corners to a fence at a High Springs voting precinct on

Election Day November 6, 2012. O ther than his testimony ,

Mr. Barnas presented no evidence or witnesses that the signs he

described had ever existed . However, the evidence demonstrated

that the Hewlett signs were the only large ÐVote NoÑ signs at the

precinct. Moreover, the sign s , contrary to Mr. BarnasÓ claim at

hearing, bore no marking or legend that linked it to C oncerned

C itizens and his testimony to the contrary on this point was not

credi ble .

30 . In his complaint against Ms. Yeago, Mr. Barnas alleged

that C oncerned C itizens had endorsed or prepared two large, four -

foot by four - foot signs which said Ð Vote No Ñ and which signs

contained the appropriate disclaimer at the bottom that wo uld be

required by a political committee if publishing such a statement

or sign. Mr. Barnas did not make any inquiries regarding these

signs and did not make any inquiries of Concerned Citizens,

Ms. Yeago or the Hewletts.

31 . Based on private poli tical activities of people who

were also supporters of C oncerned C itizen s, Mr. Barnas inferred ,

without evidence, that C oncerned C itizens was expressly

advocating defeat of the charter amendment and had spent in

excess of $500 in doing so. As such, he fai led to distinguish

between private activities of individuals who also are members or

supporters of various other political and non political

organizations. Mr. Barnas did not inquire of these people if

they were speaking for Concerned Citizens or any other

organization when they campaigned against the charter amendment.

He simply, without evidence, concluded that they spoke for

Concerned Citizens and in so doing made false allegations in his

complaint against Ms. Yeago . Based on these facts, s uch failure

to investigate the facts surrounding these private political

actions constitutes reckless disregard for the truth of the

allegations he made against Ms. Yeago in his FEC complaint by

attributing the private political activities of others to her or

Concerne d Citizens .

32 . Mr. Barnas was determined to file a complaint with FEC

against Concerned Citizens as an organization because he believed

it should comply with chapter 106, Florida Statutes, to assure a

Ðfair playing fieldÑ in future elections. It wa s unclear what

ÐunfairnessÑ he saw in Concerned Citizens Ó activities. His

intent was to file against Concerned Citizens as a group and

silence its activities .

33 . However, after inquiry of FEC staff about how to make a

complaint against Concerned Ci tizens, he concluded that

complaints must be made against responsible persons in an

unincorporated organization and not the organization itself. He

believed that he must identify at least two responsible persons

in the complaint; and therefore, filed the complaint against

Sharon Yeago as the Ð Person Against Whom Complaint is Brought Ñ

and naming Linda Jones as her co - conspirator, as well as listing

C oncerned C itizen s Ó failure to register as a political committee,

to name a registered agent and registered tr easurer, and to file

required reports as the violations .

34 . T he BarnasÓ complaint stated , in part :

The complaint is that a group of many

individual [ sic ] formed an organization/PC,

to defeat the ballot issu e and also support

and support [ sic ] the e lection of Byran

Williams and Scott Jamison [sic] . They set

up a Ð steering committee Ñ (please note they

do use the word committee) to write their

goals and positions and called them

Ðprinciples.Ñ I feel this organization used

the term Ðsteering committee Ó, [ sic ] but was

actually a PC that wo uld conform to Florida

Statute [ sic ] as defined in 106.011(a)(1)(c).

35 . Mr. Barnas claimed in testimony that Linda Jones

publicly identified herself as a member of the C oncerned

C itizen s Ó steering committee i n a High Springs C ity C ommission

meeting conducted in March 2013 , and thereby provided him with a

second person to name in his FEC complaint . However, the

evidence demonstrated that Mr. Barnas was aware of who m ,

including Ms. Jones, the members of the Conce rned CitizensÓ

steering committee were before the November election in 2012 , and

well before the meeting in 2013 . In fact, the evidence showed

that the likely motive for filing the underlying FEC complaint

was that Mr. Barnas was called a ÐfoolÑ by someon e he thought was

a member of Concerned Citizens and thereby decided to file an FEC

complaint again st the offending group, selecting April FoolsÓ D ay

as the date to mail his complaint to the FEC.

36 . Ms. Yeago was simply a means to an end, enabling

Mr . Barnas to file an FEC complaint against an organization who

he felt opposed something he favor ed . However, by Mr. Barnas

using Ms . Yeago as a means to an end in his FEC complaint, Ms.

Yeago was compelled to hire counsel and vigorously defend against

the complaintÓs allegations in order to protect her professional

reputation as an ethical person . Towards that end, Ms. Yeago

hired Mr. Regensdorf under an agreement for an hourly fee capped

at $505.00 which he would receive only if awarded such fees and

cos ts for defending the underlying FEC complaint and co nsequent

litigation establishing entitlement to such fees and costs.

37 . Unknown to Mr. Barnas, Ms. YeagoÓs lawyer filed a

notice of appearance in the underlying action with FEC on

April 26, 2013, b ut did not serve a copy on Mr. Barnas .

38 . Ms. Yeago, through her attorney , filed a response to

the complaint in the underlying action . For reasons that are not

clear in the record, Mr. Barnas did not know that Ms. Yeago had

filed a response to his complaint until October 28, 2013 .

39 . On June 10, 2013 , FECÓs executive director issued a

notice that Mr. BarnasÓ complaint was facially insufficient

because the allegations did not establish that C oncerned C itizens

had expended in excess of $500 in express advocacy during the

election. FECÓs notice informed Mr. Barnas that he was entitled

to supply additional information to support his complaint.

40 . On June 28, 2013 , FEC issued a statement that the case

was closed.

41 . On July 10, 2013 , Ms. Yeago filed the petition for fees

and costs that is the subject of this proceeding, but did not

serve a copy on Mr. Barnas. Again , for reasons that are not

clear in the record, p rior to October 28, 2013 , Mr. Barnas did

not know that Ms. Yeago had fil ed a petition for fees and costs . .

42 . By notice dated October 24, 2013 , FEC notified

Ms. Yeago and Mr. Barnas that a hearing on Ms. YeagoÓs fee

petition had been set for November 13, 2013. Mr. Barnas received

this notice on October 28, 2013 , and elected not to ask for a

continuance of the hearing date . As indicated , on the same date ,

FEC supplied Mr. Barnas copies of Ms. YeagoÓs filings in the

case. 2/

43 . Mr. Barnas filed a response to Ms. YeagoÓs fee and cost

petition. Mr. Barnas was al so afforded an opportunity to present

all his evidence regarding a reasonable basis for filing his FEC

complaint at both the FEC hearing and the evidentiary hearing in

this case. 3 /

4 4 . The billable records for Ms. Y e agoÓs attorney listed

110.9 hours of time spent on this matter for which Ms. YeagoÓs

attorney admits 102.8 hours of att orney time were reasonably

attributable towards defending both the underlying FEC complaint

and seeking fees for that defense . A review of those records

confirms that 102 .8 hours of time is a reasonable amount of hours

to expend on this action. Additionally, a second partial day of

hearing , consisting of 3.1 hours, was held in this cause,

resulting in total hours of 105.9 . However, o ther than the 3.1

hours spent in heari ng on the second day, there was no evidence

regarding the amount of time Ms. YeagoÓs attorney spent on

preparation of later filings in this action. Therefore, no award

for that time is made in this m atter . Further , the expert

evidence demonstrated that a n hourly fee for an experienced

litigator who is not a practitioner before the FEC of $40 0.00 was

reasonable for litigation of this type . Finally , the evidence

demonstrated that reasonable costs in the amount of $4,516.95

were incurred by Ms. Yeago in def ending the underlying action and

in litigating this fee action . Therefore, Ms. Yeago is entitled

to a total of $42,3 6 0 .00 in attorneyÓs fees and $4,516.95 in

costs .

CONCLUSIONS OF LAW

45 . The Division of Administrative Hearings has

jurisdiction ove r the parties to and the subject matter of this

proceeding. See §§ 120.569 and 120.57(1) Fla. Stat. (2013).

46 . Section 106.265(6), Florida Statu tes (2012) and Florida

Administrative Code Rule 2B - 1.0045 provide for an award of

attorneyÓs fees and co sts in certain FEC actions. Section

106.265(6) provides in part:

(6) In any case in which the commission

determines that a person has filed a

complaint against another person with a

malicious intent to injure the reputation of

the person complained again st 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 chapter or

chapter 104, the complain ant shall be liable

for costs and 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.

4 7 . Furthe r, Florida Administrative Code Rule 2B - 1.0045 (1)

provides:

(1) If the Commission determines that a

complainant has filed a complaint against a

respondent with a malicious intent to injure

the reputation of such respondent by filing

the complaint with know ledge 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 c hapter 104 or 106, F.S., the complainant

shall be liable for costs and reaso nable

attorney's fees incurred in the defense of

the complaint, including the costs and

reasonable attorney's fees incurred in

proving entitlement to and the amount of

costs and fees.

48 . As the party asserting entitlement, Respondent has the

burden to prove Ð by clear and convincing evidence Ñ that an award

of attorneyÓs fees and costs is appropriate pursuant to secti on

1 06.265( 6 ) and r ule 2B - 1.0045(4) . See DepÓt of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996); DepÓt of

Tran sp. v. J.W.C. Co. , 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

49 . In Brown v. Fla. Comm ission on Ethics , 969 So. 2d 553,

560 (Fla. 1st DCA 2007), the court determined that the actual

malice standard of New York Times Co. v. Sullivan , 376 U.S. 254,

84 S. C t. 710, 11 L. Ed. 2d 686 (1964) does not apply to fees

sought pursuant to section 112.317 , now 106.265 . The court

established that the elements of a claim by a public official for

attorneyÓs fees are : (a) the complaint was made with a malicious

intent to injure the officialÓs 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 Brown court emphasized that even without the Sullivan

standard, Ð[t]he statute sets a very high bar for recovery of

fees.Ñ 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.

50 . 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 attorneyÓs fees is not warranted in every situation

wherein an ethics complaint is dismissed for lack of probable

cause .

51 . However, in this case, the evide nce demonstrated that

Mr. Barnas maliciously filed the complain t in orde r to silence

those whom he perceived as opposing him and the issues that were

important to him . Additionally, the evidence showed that

Mr. Barnas maintained a conscious indifference to the truth or

falsity of his allegations when he failed to reasonably

i nvesti gate or inquire about Concerned Citizens, Ms. YeagoÓs

relationship to Concerned Citizens, the private actions of

supporters of Concerned Citizens or any of the various

documents/statements attributable to Concerned Citizens . More

importantly, such i ndifference was demonstrated when he cut and

pasted portions of a F acebook page/blog from a person advocating

for a candidate while leaving out Conc erned CitizensÓ response to

the post which clearly demonstrated the groups Ó intention not to

be a political committee. As such Ms. Yeago is entitled to an

award of attorney Ó s fees and costs pursuant to section 106.265.

52 . Based on the expert evidence , a fee of $400 per hour is

a reasonable hourly fee for the services of Mr. Paul R.

Regensdorf, the attorn ey who represented Ms. Yeago in this

m atter . Furth er the amount of 1 05. 9 hours of time expended by

Mr. Regensdorf in this matter is reasonable. Finally, the

evidence demonstrated that reasonable costs in the amount of

$4,516.95 were incurred by Ms. Yeago in defending the underlying

action and in litigating this fee action. Therefore, Ms. Yeago is

entitled to an award of $42,3 6 0.00 in attorneyÓs fees and

$4,516.95 in costs that were incurred in this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Commis sion enter a Final Order

granting the Petition for fees and costs and awarding the amount s

established above to Ms. Yeago .

DONE AND ENTERED this 2 8 th day of August , 2014 , in

Tallahasse e, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 8 th day of August , 2014 .

ENDNOTE S

1/ The parties are identified as required by Florida

Administrative Code Rule 2B - 1.0045(4): Ð(4) The parties to the

claim sh all be the respondent and the complainant.Ñ

2/ Rule 2B - 1.0045(2) provides that service of the petition for

fees shall be accomplished by the Commission and provides, ÐThe

Commission clerk shall forward a copy of the petition to the

complainant by certifi ed mail . . . .Ñ Although such service was

extremely slow, service was accomplished by the FEC on

October 28, 2013, with no prejudice to Mr. Barnas demonstrated by

the evidence.

3 / Mr. BarnasÓ evidence remained largely the same as when he

filed his comp laint. However, Mr. Barnas presented one

additional witness who, in very vague testimony testified that an

unknown man Ðwith gorgeous eyesÑ gave her literature regarding

Concerned Citizens and that he told her Concerned Citizens

opposed the charter amendm ent. At the time of the complaint,

this information was not known to Mr. Barnas. However, t he

testimony regarding this person are both vague and hearsay and

not reliable to establish any facts regarding the legitimacy of

Mr. BarnasÓ claims in his underly ing FEC complaint.

COPIES FURNISHED:

Paul R. Regensdorf, Esquire

Holland and Knight LLP

50 North Laura Street

Jacksonville, Florida 32202

(eServed)

Amy McKeever Toman, Esquire

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines S treet

Tallahassee, Florida 32399 - 1050

Joseph W. Little, Esquire

3731 Northwest 13th Place

Gainesville, Florida 32605

(eServed)

Donna Malphurs, Agency Clerk

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Fl orida 32399 - 1050

(eServed)

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 th at

will issue the Final Order in this case.