04-000043FE Michael Addicott vs. Robert Nieman Status: Closed Recommended Order on Thursday, November 4, 2004.

Summary: The evidence was insufficient to show that Nieman made statements that he knew were false or made statements with reckless disregard for the truth or falsity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL ADDICOTT, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0043FE

)

ROBERT NIEMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final h earing was conducted in this

case on June 17 and 18, 2004, in Miami, Florida, before

Administrative Law Judge Michael M. Parrish of the Division of

Administrative Hearings

APPEARANCES

For Petitioner: Stuart R. Michelson, Esquire

Law Office of Stu art R. Michelson

200 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Robert Nieman, pro se

9731 Southwest 12th Street

Pembroke Pines, Florida 33026

STATEMENT OF THE ISSUES

The basic issues in this case are whether Petitioner,

Michael Addicott, is entitled to recover attorney’s fees and

costs from Complainant/Respondent, Robert Nieman, as provided in

Section 112.317(8) Florida Statutes, and, if so, the amount of

such attorney's fees and costs.

PRELI MINARY STATEMENT

On November 19, 2003, Addicott filed his fee petition in

this cause, requesting an award of attorney's fees and costs

pursuant to Section 112.317(8) Florida Statutes, against Nieman.

Section 112.317(8), Florida Statutes, allows such an a ward when

a complaining person files a complaint with the Ethics

Commission " 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

viol ation." In June of 2002, Nieman filed a complaint against

Addicott with the Ethics Commission, and in September of 2002

Nieman filed an amended ethics complaint against Addicott. The

fee petition in this case asserts that some of the allegations

in Niema n's original and amended complaints against Addicott

were made " 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."

In du e course, the fee petition was referred to the

Division of Administrative Hearings to conduct an evidentiary

hearing. At the final hearing in this case, Addicott testified

on his own behalf and also called the following witnesses:

Carol Morris, Samuel S. Goren, Esquire, Dr. James Vardalis, and

Leo Santiello. Addicott also published the deposition of Nieman

as well as the depositions of Judy Cuenca and Bo Jackson.

Addicott offered ten exhibits. Addicott’s Exhibit A - 10 was

rejected. The remaining Addicott exhibits were received in

evidence.

Nieman testified in his own behalf and called the following

witnesses: Neil Leff, Samuel Feinman, and Rosemary Wascura.

Nieman offered 17 exhibits. Nieman’s Exhibits N - 02, N - 07, N - 12,

N - 13, N - 15, and N - 17 were reject ed. The remaining Nieman

exhibits were received in evidence.

At the conclusion of the evidentiary hearing the parties

requested and were allowed 40 days from the filing of the

hearing transcript within which to file their respective

proposed recommended o rders. The last volume of the transcript

was filed on July 29, 2004. Thereafter, both parties filed

proposed recommended orders containing proposed findings of fact

and conclusions of law. The proposals submitted by the parties

have been carefully consi dered during the preparation of this

Recommended Order.

FINDINGS OF FACT

Nieman's ethics complaints against Addicott

1. On or about June 14, 2002, Robert Nieman ("Nieman")

filed a complaint with the Florida Commission on Ethics ("Ethics

Commission") aga inst Michael Addicott ("Addicott"). At that

time Nieman was a police officer of the Town of Golden Beach who

was in a work status of suspended with pay, pending

investigation of allegations that Nieman had engaged in some

form of misconduct. At the time the subject complaint was

filed, Addicott was the Mayor of the Town of Golden Beach. At

all times material to this case, Addicott has been the Mayor of

the Town of Golden Beach or has been a candidate for the office

of Mayor.

2. Nieman's June 14 complai nt to the Ethics Commission

contained four numbered paragraphs. Each numbered paragraph

described a separate incident involving alleged conduct by

Addicott that Nieman believed was inappropriate and that Nieman

believed should be investigated by the Ethic s Commission. The

only one of those paragraphs that appears to be relevant and

material to the issues in this case is paragraph 2, in which

Nieman alleged the following:

Mayor Addicott's son had a hit and run

accident within the Town's jurisdiction;

hitti ng and knocking down a concrete light

pole. When the criminal accident was being

investigated and the son approached about

the crime, the Mayor's wife, who was a

Councilperson at the time, badgered and

tried to intimidate the officers (myself

included. I was a sergeant at the time),

raising her voice and stating that we were

"picking on her son." She interfered with

our investigation of the vehicle. The son

later admitted to the incident and after

discussions with the then Chief by Mr. and

Mrs. Addicott, no further action was taken

by the Golden Beach Police Department.

3. On or about September 20, 2002, Nieman filed an

amendment to his original Ethics Commission complaint against

Addicott. The amendment appears to have been in response to a

request b y the Ethics Commission for additional information

about the allegations in Nieman's June 14 complaint. The

amendment to the complaint was also arranged in four separate

numbered paragraphs, each providing additional information about

essentially the same four events that were described in the

original complaint of June 14. Two of the numbered paragraphs

in the amended complaint appear to be relevant and material to

the issues in this case. The primary subject matter of

paragraph 1 concerns allegations t hat one of Addicott's sons,

Aaron Addicott, received special treatment by being paid for

hours when he did not report to work as a lifeguard. However,

the last sentence of paragraph 1 of the amended complaint

alleges the following new event not alleged in Nieman's original

complaint: "The lifeguard [Addicott's son] was hired when the

Mayor [Addicott] was in office." And paragraph 2 of Nieman's

amended Ethics Commission complaint added the following

allegations about the automobile accident episode.

With regard to the auto accident, both the

Mayor and the former Councilperson, his

wife, used their position to have the

accident ignored, Mrs. Addicott responded to

the scene of the accident and Mrs. Addicott

directly told the police department not to

take any action and that they better let up

on her son. Both the Mayor and Mrs.

Addicott discussed the matter with the

former Police Chief and told him not to

interfere. The Chief was later forced to

resign. As the Mayor was running for

election at the time, it benefited him by

his son not being arrested for leaving the

scene of an accident. This is the same son

who is the absentee lifeguard. Also, no

reimbursement was received from the Mayor,

his wife or son for the damage to the Town's

property.

The subject matter scope of the fee petition

4. The Fee Petition in this case asserts, in general

terms, that Nieman acted with malice by filing complaints

against Addicott with knowledge that the complaints contained

one or more false allegations, or with reckless disregard as to

whether the complaints contained false allegations. The Fee

Petition does not assert that all of the allegations in Nieman's

complaints against Addicott were known to be false or were made

with a reckless disregard as to whether the alleg ations were

false. Rather, only two of the events alleged in Nieman's

complaints are specified in the fee petition as being events

about which Nieman knowingly made false allegations or about

which Nieman made statements with a reckless disregard as to

wh ether the allegations were false. The paragraphs of the Fee

Petition which describe those two specific events appear at

paragraphs 6, 7, 8, and 9 of the Fee Petition, which read as

follows:

6. One of the factual underpinnings of

Nieman's Complaint is t hat Petitioner

[Addicott] interfered with a police

investigation into an automobile accident

involving Aaron Addicott, Petitioner's son.

Nieman admitted that he had no personal

knowledge regarding this allegation, and

that he was not personally involved in the

investigation. Incredibly, Nieman admitted

that the accident took place before Addicott

was elected Mayor ! *** This is certainly a

reckless, if not knowing, false allegation

which is material to a violation of the

Florida Ethics Code.

7. At t he time of the alleged incident,

Nieman was the Police Chief of the Town of

Golden Beach, and certainly had access to

all the necessary records to verify his

allegations, and therefore knew or should

have known that his allegations were false.

8. Niema n also alleged that Mayor

Addicott hired his son, Aaron Addicott, to

be a Town of Golden Beach part - time

lifeguard, which was in violation of the

Florida Ethics Code. However, Nieman

admitted that he had no personal knowledge

regarding the Petitioner's in volvement in

the hiring of his son. *** In fact,

Addicott had NO involvement in hiring his

son, nor does the Golden Beach Town Charter

recognize that the town Mayor need have any

involvement in hiring lower level town

employees, such as part - time life gu ards.

9. At the time of the filing of the

Complaint [with the Ethics Commission],

Nieman's allegation that Petitioner hired

his son was made with the knowledge that it

was false, or at the very least with

reckless disregard as to whether it was

true, a s is evidenced by Nieman's own

admission that he had no personal knowledge

of the alleged violation.

Aaron's employment as a lifeguard

5. Section 4.01 of Article IV of the charter of the Town

of Golden Beach sets forth the powers and duties of the mayo r.

Subsection (b) of that section describes the "administrative

duties" of the mayor, which include:

(1) The mayor shall nominate a town

manager who shall be appointed by resolution

of the council.

(2) The mayor, together with the town

manager, sha ll carry out all administrative

duties as provided by the charter, ordinance

or resolution of the council.

(3) The mayor shall approve all written

orders, administrative policies and acts of

the town manager.

(4) The mayor shall upon recommendation

of the manager appoint and when deemed

necessary, discipline, suspend or remove

town employees . (Emphasis added.)

(5) The mayor shall upon the

recommendation of the manager appoint

department heads to administer the

government of Golden Beach. Appoi ntments

and terms of employment shall be approved by

resolution of the council. Department heads

shall carry out the administrative orders of

the manager and the mayor and may be

disciplined, suspended or removed by the

mayor as may be recommended from ti me to

time by the manager. A department head may

appeal the decision of the mayor to the

personnel board in the same manner as an

employee.

6. Prior to the date on which Addicott became mayor of the

Town of Golden Beach, two of his sons (Benjamin and A aron)

sometimes worked for the Town in the capacity of "fill - in"

lifeguards. During that same time period, a number of other

people, most of whom had regular jobs as lifeguards in nearby

communities, would also work for the Town of Golden Beach in the

cap acity of "fill - in" lifeguards. Although all of the people

who worked for the Town as "fill - in" lifeguards were paid for

the time they worked, none of those people were regular

employees of the Town with regular scheduled work hours.

Rather, all of the pe ople who worked as "fill - in" lifeguards

worked on an "as needed" basis.

7. At some time in March of 1999, shortly after Addicott

became the mayor of the Town, Aaron Addicott, was placed on the

Town payroll in some sort of regular weekend part - time lifegu ard

position, in which his work as a lifeguard was primarily on

Saturday and Sunday. This was a change in the terms and

conditions under which Aaron Addicott performed lifeguard

services for the Town. The specific nature of the change in

March of 1999 is not contained in the record of this case, but

it appears that following that change, Aaron Addicott was,

essentially, the Town's weekend lifeguard, and another lifeguard

worked the other five days of the week. Following the change in

Aaron Addicott's ter ms and conditions of employment in March of

1999, Aaron Addicott's work as a lifeguard continued to be on

Saturday and Sunday, with the exception of occasional days when

he filled - in for the regular lifeguard when the regular

lifeguard was unable to work.

8. On or about August 26, 1999, at a time when Michael

Addicott was serving as mayor of the Town of Golden Beach, an

interoffice memo reading as follows was sent to him by Rosemary

J. Wascura, who was then the Interim Town Manager:

To: Mayor Michael Ad dicott

From: Rosemary J. Wascura, Interim Town

Manager

Date: August 26, 1999

Re: Appointment of Lifeguards

102 - 99

Following our recent conversation regarding

the appointment of Lifeguards, please see

below the following recommendat ion:

1. That effective September 1, 1999 John

Fialowsky be hired as the Town's full - time

Lifeguard. Compensation is $13.00 per hour

and his hours are Monday and Tuesday 7:00

am. - 7:00 pm., and Wednesday, Thursday and

Friday 7:00 am. - 2:00 pm.

2. That effective September 1, 1999 Aaron

Addicott be hired as the Town's part - time

Lifeguard. Compensation is $9.25 per hour

and his hours are Saturday and Sunday 7:00

am. - 7:00 pm., and Wednesday, Thursday and

Friday 2:00 pm. - 7:00 pm.

[_] APPROVED

[_] NOT APPROVED

________________________

Michael Addicott

Mayor

9. Mayor Addicott placed a check mark in the "approved"

box and then signed the interoffice memo quoted above and

returned it to Ms. Wascura on or before the effective date

mentioned in the memo. By approving and signing the

recommendation, Mayor Addicott hired his son as "the Town's

part - time Lifeguard," which was a new position of employment

that had not previously existed at the Town of Golden Beach.

Notwithstanding the job title of "par t - time lifeguard," the

position Aaron Addicott was hired to fill in August of 1999 was

a full - time position of employment in which he was scheduled to

work a total of five days per week for a total of 39 hours per

week.

10. In both March of 1999 and in A ugust of 1999, the

effective hiring authority was vested in the mayor of the Town

of Golden Beach. Such being the case, the final decision to

hire Aaron Addicott on both of the occasions in 1999 described

above was made by Mayor Addicott.

Aaron's motor v ehicle accident

11. Very shortly before the election at which Addicott was

elected mayor of the Town of Golden Beach, Aaron Addicott was

involved in a one - vehicle motor vehicle accident in which the

vehicle driven by Aaron Addicott struck a light pole an d knocked

the light pole down. The location of the accident was a block

or less from the Addicott home. Shortly after the accident,

Aaron Addicott left the scene of the accident and drove the

short distance to the Addicott home. Nieman saw the accident

happen, and shortly thereafter, police officers of the Town of

Golden Beach, including Sergeant Nieman, arrived at the Addicott

home and attempted to conduct an investigation of the accident

that Aaron Addicott had just been involved in. Mrs. Addicott,

th e wife of the soon - to - be mayor and the mother of Aaron,

refused to cooperate with the efforts of the police officers to

investigate the accident and ordered the police officers to

leave the premises of the Addicott home. Mrs. Addicott also

chastised the p olice officers for picking on her son and

demanded that they leave her son alone.

12. Although Aaron Addicott at first denied involvement in

the motor vehicle accident, a few days after the accident he

went to the police station in the Town of Golden Bea ch and

acknowledged his involvement in the accident. Aaron Addicott

was never charged with any civil or criminal violation arising

from the accident or from his act of leaving the scene of the

accident.

13. Another police officer told Nieman that Mr. and Mrs.

Addicott (Aaron's parents) had met with the Chief of Police of

the Town of Golden Beach shortly after the accident. Nieman

does not appear to have conducted any further inquiry to confirm

the information that Mr. and Mrs. Addicott had met with the

C hief. Nieman believed that Aaron should at least have been

charged with the violation of leaving the scene of an accident.

When no charges were forthcoming, Nieman formed the opinion that

Mr. and Mrs. Addicott, during the meeting he believed they had

wit h the Chief, had "used their position[s] to have the accident

ignored" and had told the Chief "not to interfere."

14. The Town of Golden Beach did not receive any

reimbursement for the damage to the light pole caused by Aaron's

motor vehicle accident fro m Aaron Addicott or from either of

Aaron's parents. 1

15. From time to time when Aaron Addicott was scheduled to

be working as a Town lifeguard, he would be absent from work and

the town manager would receive complaints that Aaron was not

working wh en he should be working. This is the same Aaron

Addicott who was involved in the motor vehicle accident

described above.

The actual knowledge issue

16. With regard to the factual allegations at issue here,

at the time of making those allegations Niema n did not have

actual knowledge that any of those allegations were false. 2

The reckless disregard issues

17. With regard to the factual allegations at issue here,

at the time of making those allegations Nieman did not make any

of the subject allega tions with a "reckless disregard" as to

whether they were true or false. Quite to the contrary, Nieman

did not at any time entertain any "serious doubts as to the

truth" of his allegations. Similarly, Nieman did not at any

time have any "high degree of a wareness" of the "probable

falsity" of the subject allegations. 3

Attorney's fees and costs

18. The real party in interest; i.e., the entity that will

be the beneficiary of any award of attorney's fees and costs in

this proceeding, is the Town of Golden Beach. That is because

it is the Town that retained and agree to pay for legal

representation of Mayor Addicott in both the defense of the

underlying Ethics Commission complaint and in the prosecution of

this fee petition. The Town retained the law offi ces of Stuart

R. Michelson. As of June 17, 2004, the date on which the final

hearing in this case began, Mr. Michelson's law offices had

submitted three bills to the Town. Those bills cover costs and

attorney's fees incurred from July 2, 2002, through Ju ne 4,

2004. Those bills itemize a total of 59.70 hours of attorney's

services, for which the Town was billed $10,650.00.

19. The three bills discussed immediately above also

itemize a total of 5.60 hours of law clerk services, for which

the Town was bil led $420.00.

20. The three bills discussed immediately above also

itemize a total of $1,402.54 of costs. The types of costs

itemized include such things as in - house photocopy costs, Fed - Ex

and similar express mail charges, facsimile charges, postage

cha rges, long distance telephone charges, and some miscellaneous

travel - related charges such as car rental, parking, air fare,

and gasoline. The itemized costs also include at least one

"miscellaneous services charges/fee" in the amount of $12.50 and

one in - house photocopying charge in the amount of $447.50.

21. With regard to the three bills discussed above, there

was no testimony under oath that any of the services itemized in

the bills had actually been performed. There was no testimony

under oath that the bills were accurate. There was no testimony

under oath explaining any details about the nature of the

services performed or explaining why, or whether, the services

were reasonable, necessary, or appropriate. There was no

testimony under oath stating whether all of the services and

costs itemized in the three subject bills relate only to the fee

petition and the underlying ethics complaint in this proceeding,

or whether some of the itemized services and costs relate to

other similar litigation matters in which the Town has a

beneficial interest that were pending at the same time. 4

22. An expert witness was retained to express legal

opinions on two basic issues: (1) an opinion as to the issue of

whether Addicott is entitled to an award of attorney's fees and

costs against Nieman pursuant to Section 112.317(8), Florida

Statutes, and, if entitled, (2) an opinion as to the reasonable

amount of such an award. The Town agreed to pay the expert

witness for his services in this case on an hourly basis. The

agreed upon hourly rate for the services of the expert witness

is either $200.00 per hour or $225.00 per hour. 5

23. The expert witness does not know how many hours he

spent preparing for and presenting his expert opinions in this

case. 6

24. The expert witness reviewed and testified about a few

details of the costs itemized on the three bills discussed

above, but he never clearly expressed any opinion as to whether

the costs itemized on the three bills are reasonable or

unreasonable. 7

25. The expert w itness testified to several expert legal

opinions regarding the manner in which the present language of

Section 112.317(8), Florida Statutes, should be construed,

interpreted, and applied. He also opined as to the extent to

which cases decided under the o ld language of Section

112.317(8), Florida Statutes, were useful in determining

entitlement to attorney's fees and costs under the current

version of Section 112.317(8), Florida Statutes. 8

26. The expert witness also testified about how many hours

it wou ld have been reasonable for the attorneys for Addicott to

have worked from June 4, 2004, through the end of the first day

of the final hearing in this case, which was June 17, 2004.

There is not, however, any testimony as to how many hours of

attorney ser vices were actually performed during the period from

June 4 through June 17, 2004.

27. In both the defense of the underlying ethics

complaints against Addicott and in the preparation and the

prosecution of the fee petition in this case, services billed a t

an hourly rate have been performed by three lawyers in the law

firm representing Addicott; specifically, Mr. Michelson (a

partner), Mrs. Michelson (a partner), and Mr. Birch (an

associate attorney). Reasonable and typical hourly rates that

are charged f or the types of attorney services that were

performed in the course of the subject cases are as follows:

Mr. Michelson $200.00 per hour

Mrs. Michelson $200.00 per hour

Mr. Birch $135.00 per hour

28. In both the defense of the underlying ethics

com plaints against Addicott and in the preparation and the

prosecution of the fee petition in this case, services billed at

an hourly rate also have been performed by law clerks employed

by the law firm representing Addicott. A reasonable and typical

hourly rate that is charged for services of a legal nature

performed by law clerks in cases of this nature is $75.00 per

hour. 9

29. Following the conclusion of the administrative hearing

before the Division of Administrative Hearings in this case, in

the normal course of events, the attorneys representing Addicott

will need to spend a number of additional hours before their

work on this matter is finished. Post - hearing tasks include

such matters as preparation of proposed recommended orders,

preparation of exce ptions to the recommended order or

preparation of responses to exceptions filed by an opposing

party, preparation of memorandums related to exceptions, and

perhaps an appearance before the Ethics Commission to present

oral argument prior to issuance of the Final Order. 10

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

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

31. The first issue that requires attention is the issue

of the scope of the subject matter at issue in this case. In

the underlying ethics complaints, Nieman included factual

allegations about four specific events. The Fee Petition in

this case specifically mentions Nieman's allegations about only

two o f those events. Addicott argues that all of the

allegations made by Nieman in the ethics complaints against

Addicott are at issue in this case. The undersigned is of the

view that the only factual allegations in the ethics complaints

that are at issue he re are the ones that are specifically

mentioned in the Fee Petition at paragraphs 6, 7, 8, and 9 of

the Fee Petition. 11 The full text of those four paragraphs

appears in the findings of fact, above. The essence of the

factual allegations at issue here ar e assertions by Nieman that

Addicott interfered with a police investigation of an automobile

accident involving Addicott's son and assertions that Addicott

hired his son as a part - time town lifeguard.

32. Section 112.317(8), Florida Statutes, reads as fo llows:

(8) In any case in which the commission

determines that a person has filed a

complaint against a public officer or

employee with a malicious intent to injure

the reputation of such officer or employee by

filing the complaint with knowledge that the

complaint contains one or more false

allegations or with reckless disregard for

whether the complaint contains false

allegations of fact material to a violation

of this part, the complainant shall be liable

for costs plus reasonable attorney's fees

incurr ed in the defense of the person

complained against, including the costs and

reasonable attorney's fees incurred in

proving entitlement to and the amount of

costs and fees. If the complainant fails to

pay such costs and fees voluntarily within 30

days foll owing such finding by the

commission, the commission shall forward such

information to the Department of Legal

Affairs, which shall bring a civil action in

a court of competent jurisdiction to recover

the amount of such costs and fees awarded by

the commis sion. (Emphasis added.)

33. The language of Section 112.317(8), Florida Statutes,

has read as quoted above since 1995. Prior to 1995, the

statutory predicate for awarding attorney's fees and costs

against a person who filed a complaint with a malicious intent to

injure the reputation of the person complained against was worded

somewhat differently. Because of the amendments to the statutory

language, appellate court decisions interpreting and applying the

earlier version of the statute are not especiall y helpful to

ascertaining the correct interpretation and application of the

underscored portion of the current language of the statute. 12

34. By way of background, as well as to put the subject

statutory language in its relevant historical context, it is

useful to consider the line of judicial decisions regarding

defamatory statements about public figures that began with the

case of New York Times v. Sullivan , 376 U.S. 254, 84 S. Ct. 710

(1964). There the Court for the first time concluded that in

libel a ctions by public officials in state courts "the rule

requiring proof of actual malice is applicable." New York Times

at 727. The Court also stated, after noting that that there was

evidence that the Times had published the information in question

in that case without checking its accuracy against the news

stories in the Times' own files, that "negligence in failing to

discover the misstatements . . . is constitutionally insufficient

to show the recklessness that is required for a finding of actual

malice. " New York Times at 288.

35. Shortly following the New York Times decision, the U.S.

Supreme Court decided Garrison v. State of Louisiana , 379 U.S.

64, 85 S. Ct. 209 (1964), in which the Court followed and

expanded upon what it had decided in New York Ti mes . The

Garrison decision included the following:

We held in New York Times that a public

official might be allowed the civil remedy

only if he establishes that the utterance

was false and that it was made with

knowledge of its falsity or in reckless

dis regard of whether it was false or true.

The reasons which led us so to hold in New

York Times, 376 U.S., at 279 -- 280, 84 S.Ct.

at 724 -- 726, apply with no less force merely

because the remedy is criminal. The

constitutional guarantees of freedom of

expression compel application of the same

standard to the crim inal remedyuth may

not be the subject of either civil or

criminal sanctions where discussion of

public affairs is concerned. And since '* *

* erroneous statement is inevitable in free

debate, and * * * it must be protected if

the freedoms of expression are to have the

'breathing space' that they 'need * * * to

survive' * * *,' 376 U.S., at 271 -- 272, 84

S.Ct. at 721, only those false statements

made with the high degree of awareness of

their probable falsity demanded by New York

Times may be the subject of either civil or

criminal sanctions . For speech conc erning

public affairs is more than self - expression;

it is the essence of self - government. The

First and Fourteenth Amendments embody our

'profound national commitment to the

principle that debate on public issues

should be uninhibited, robust, and wide -

op en, and that it may well include vehement,

caustic, and sometimes unpleasantly sharp

attacks on government and public officials.'

New York Times Co. v. Sullivan, 376 U.S., at

270, 84 S.Ct., at 721 . (Emphasis added.)

36. In St. Amant v. Thompson , 390 U.S. 727, 88 S. Ct. 1323

(1968), the Court explicated furt her on its thoughts as to what

types of conduct constituted a "reckless disregard" for whether

published statements were false, and on what circumstances might

indicate evidence of such a "reckless disregard." The

explications in St. Amant include the fol lowing:

Purporting to apply the New York Times

malice standard, the Louisiana Supreme Court

ruled that St. Amant had broadcast false

information about Thompson recklessly,

though not knowingly. Several reasons were

given for this conclusion. St. Amant h ad no

personal knowledge of Thompson's activities;

he relied solely on Albin's affidavit

although the record was silent as to Albin's

reputation for veracity; he failed to verify

the information with those in the union

office who might have known the facts ; he

gave no consideration to whether or not the

statements defamed Thompson and went ahead

heedless of the consequences; and he

mistakenly believed he had no responsibility

for the broadcast because he was merely

quoting Albin's words.

These considerat ions fall short of proving

St. Amant's reckless disregard for the

accuracy of his statements about Thompson.

'Reckless disregard,' it is true, cannot be

fully encompassed in one infallible

definition. Inevitably its outer limits

will be marked out through case - by - case

adjudication, as is true with so many legal

standards for judging concrete cases,

whether the standard is provided by the

Constitution, statutes, or case law. Our

cases, however, have furnished meaningful

guidance for the further definition of a

reckless publication. In New York Times,

supra, the plaintiff did not satisfy his

burden because the record failed to show

that the publisher was aware of the

likelihood that he was circulating false

information . In Garrison v. State of

Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13

L.Ed.2d 125 (1964) , also decided before the

decision of the Louisiana Su preme Court in

this case, the opinion emphasized the

necessity for a showing that a false

publication was made with a 'high degree of

awareness of * * * probable falsity.' 379

U.S., at 74, 85 S.Ct., at 216. Mr. Justice

Harlan's opinion in Curtis Publishing Co. v.

Butts, 388 U.S. 130, 153, 87 S.Ct. 1975,

1991, 18 L.Ed.2d 1094 (1967) , stated that

evidence of either deliberate falsification

or reckless publication 'despite the

publisher's awareness of probable falsity'

was essential to recovery by public

officials in defamation actions. These

cases are clear that reckless conduct is not

measured by whether a reasona bly prudent man

would have published, or would have

investigated before publishing. There must

be sufficient evidence to permit the

conclusion that the defendant in fact

entertained serious doubts as to the truth

of his publication. Publishing with such

doubts shows reckless disregard for truth or

falsity and demonstrates actual malice .

It may be said that such a test puts a

premium on ignorance, encourages the

irresponsible publisher not to inquire, and

permits the issue to be determined by the

defend ants testimony that he published the

statement in good faith and unaware of its

probable falsity. Concededly the reckless

disregard standard may permit recovery in

fewer situations than would a rule that

publishers must satisfy the standard of the

reasona ble man or the prudent publisher.

But New York Times and succeeding cases have

emphasized that the stake of the people in

public business and the conduct of public

officials is so great that neither the

defense of truth nor the standard of

ordinary care w ould protect against self -

censorship and thus adequately implement

First Amendment policies. Neither lies nor

false communications serve the ends of the

First Amendment, and no one suggests their

desirability or further proliferation. But

to insure the a scertainment and publication

of the truth about public affairs, it is

essential that the First Amendment protect

some erroneous publications as well as true

ones. We adhere to this view and to the

line which our cases have drawn between

false communicatio ns which are protected and

those which are not.

37. In St. Amant , at 732, the Court also included the

following regarding the determinations that must be made by the

finder of fact:

The defendant in a defamation action

brought by a public figure canno t, however,

automatically insure a favorable verdict by

testifying that he published with a belief

that the statements were true. The finder

of fact must determine whether the

publication was indeed made in good faith.

Professions of good faith will be u nlikely

to prove persuasive, for example, where a

story is fabricated by the defendant, is the

product of his imagination, or is based

wholly on an unverified anonymous telephone

call. Nor will they be likely to prevail

when the publisher's allegations ar e so

inherently improbable that only a reckless

man would have put them in circulation.

Likewise, recklessness may be found when

there are obvious reasons to doubt the

veracity of the informant or the accuracy of

his reports.

38. Our Florida appellate c ourts have taken note of the

legal principles described in the cases mentioned above, and have

followed them in deciding whether defamatory statements were made

with a "reckless disregard" for the truth. In Demby v. English ,

667 So. 2d 350 (Fla. 1st DCA 1 996), in a defamation case brought

by a public officer, the court stated:

"[T]he constitutionally protected right to

discuss, comment upon, criticize, and debate,

indeed, the freedom to speak on any and all

matters is extended not only to the organized

med ia but to all persons." Nodar v.

Galbreath, 462 So.2d 803 (Fla.1984) . The

First Amendment privilege of fair comment is

not absolute. To prevail at trial, a

plaintiff must establish not only the falsity

of the claimed defamation, but also

demonstrate through clear and convincing

evidence that the defendant knew the

statements were false or recklessly

di sregarded the truth. New York Times v.

Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11

L.Ed.2d 686 (1964) . See McDonald v. Smith,

472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384

(1985) (holding that Petition Cl ause does not

require states to expand this privilege into

an absolute one.) Reckless disregard is not

measured by whether a reasonably prudent

person would have published or would have

investigated before publishing; the plaintiff

must show the defendant " in fact entertained

serious doubts as to the truth of his

publication." St. Amant v. Thompson, 390

U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262

(1968) (Emphasis added.)

39. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2 d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the a llegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983). "Although this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

40. The Florida courts have also recognized that: "A false

statement of fact is absolutely n ecessary if there is to be a

recovery in a defamation action." Friedgood v. Peters Publ'g

Co. , 521 So. 2d 236, 242 (Fla. 4th DCA), rev. denied , 531 So. 2d

1353 (Fla. 1988), cert. Denied 488 U.S. 1042, 109 S. Ct. 867, 102

L.Ed.2d 991 (1989). See also Zorc v. Jordan , 765 So. 2d 768 (Fla

4th DCA 2000).

41. The underlying rationale for all of the conclusions

reached in the line of cases that begins with New York Times and

includes Garrison , St. Amant , Demby , and a host of other similar

cases is that those c onclusions are compelled by constitutionally

protected rights to "freedoms of expression" that have a need for

"breathing space" if they are to survive. Today those rights are

no less important, and are no less protected by the same

Constitution, than the y were when the cases discussed above were

decided. Accordingly, the conclusions reached in New York Times ,

Garrison , St. Amant , Demby , and a host of other similar cases are

applicable to the interpretation of the statutory language upon

which Addicott re lies for the relief sought in this case. The

unavoidable requirement that such decisions must be followed

unless and until such time as they may be modified by the U. S.

Supreme Court is eloquently explained in Faxon v. Michigan

Republican State Central C ommittee , 244 Mich. App. 468, 624

N.W.2d 509 (2001). 13

42. For convenient reference, the core of that statutory

language is repeated. The statutory predicate for the relief

sought here is the filing of a complaint against a public officer

or employee wit h the Ethics Commission " . . . 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 complai nt contains false allegations of fact material

to a violation of this part."

43. Because it is most quickly disposed of, attention is

directed first to the "with knowledge" portion of the statutory

language. In order to prevail on the grounds that Niema n filed a

complaint "with knowledge that the complaint contains one or more

false allegations," Addicott must show by "clear and convincing

evidence" that Nieman knew the statements at issue were false at

the time the statements were made. The evidence in this case is

insufficient to meet the required standard. While some of the

evidence in this case would tend to support a finding that, at

the time he made the statements at issue, Nieman did not have

very much information one way or the other regarding t he accuracy

of some of his statements, there simply is no clear and

convincing evidence that at the time of making those statements

Nieman knew that any of the statements were false.

44. Directing attention now to the portion of the statutory

language th at imposes liability for filing a complaint "with

reckless disregard for whether the complaint contains false

allegations of fact material to a violation of this part," it is

first noted that not every false allegation in a complaint filed

with the Ethics Commission provides a basis for liability under

Section 112.317(8), Florida Statutes. Rather, the only false

allegations that provide a basis for liability are "allegations

of fact material to a violation of this part [Part III of Chapter

112, Florida Sta tutes]." By way of example Nieman's allegations

regarding the conduct of Mrs. Addicott are not material to a

violation of Part III of Chapter 112 by Mr. Addicott. Therefore,

such allegations, even if false and even if made with a reckless

disregard for w hether they were true or false, cannot be the

basis for an award of costs and attorney's fees under Section

112.317(8), Florida Statutes, because they were not material to

any allegation that Mr. Addicott had committed a violation of the

ethics laws.

45. With regard to other allegations made by Nieman, in

order to prevail on the grounds that Nieman filed a complaint

"with reckless disregard for whether the complaint contains false

allegations of fact," Addicott must show by "clear and convincing

evidence" that Nieman made those allegations with a "reckless

disregard," as that term has been described and defined in the

cases discussed above. The evidence in this case is insufficient

to meet the required standard. Rather, as noted in the findings

of fact, Nieman did not at any time entertain any "serious doubts

as to the truth" of his allegations. Similarly, Nieman did not

at any time have any "high degree of awareness" of the "probable

falsity" of the subject allegations. Further, although on the

facts i n this case it might be concluded that Nieman was

negligent in failing to inquire further before making some of his

allegations, "negligence in failing to discover the misstatements

. . . is constitutionally insufficient to show the recklessness

that is re quired for a finding of actual malice." New York Times

at 288. There is simply no clear and convincing evidence that,

at the time he made the allegations at issue here, Nieman acted

with a reckless disregard of the type described in the applicable

case l aw. In this regard it is significant to note that the

greater weight of the evidence is to the effect that the vast

majority of Nieman's allegations at issue here were true or were

very close to the truth. On the few factual issues in which the

evidence is insufficient to show affirmatively that a specific

allegation was true, it is significant to note that there is no

clear and convincing evidence that any such allegation was false.

Further, at the time he made all of the factual allegations at

issue he re, all of the allegations were either supported by at

least some hearsay evidence known to Nieman, or were inferences

that could logically be drawn from the information known to

Nieman. In reaching this conclusion, the undersigned has not

overlooked Addi cott's arguments to the effect that, with regard

to some of the allegations, Nieman testified in deposition and at

the final hearing that he did not have "any evidence" of some of

the allegations at issue here. These admissions by Nieman must

be evaluated in the context in which they occurred. When

evaluated in context, it appears to the undersigned that on those

occasions when Nieman testified that he did not have "any

evidence," Nieman was attempting to communicate the idea that he

did not have any firs t hand evidence of the allegation inquired

about. It is clear from other statements by Nieman that on such

occasions he was not admitting that he had no information at all.

Rather, he testified that he was aware of hearsay evidence that

supported his all egations.

46. For the reasons set forth above, it must be recommended

that the relief sought in the Fee Petition be denied. Such being

the case, it would serve no useful purpose to discuss at length

the issues regarding the reasonableness of the amounts of the

costs and attorney's fees sought in this case, because it is

being recommended that they not be awarded. Nevertheless, for

the guidance of future parties in future cases a few brief

comments are offered.

47. The undersigned has serious doubts as to whether under

Section 112.317(8), Florida Statutes, in is appropriate to

include services performed by law clerks and similar para - legal

personnel as "attorney's fees." While courts are authorized by

Section 57.104, Florida Statutes, to treat some ser vices

performed by law clerks and other para - legal personnel as

"attorney's fees," that statutory authorization is limited by its

terms to fees "determined or awarded by the court ." Neither the

Division of Administrative Hearings nor the Florida Commissio n on

Ethics is a "court." And even if it were to be concluded that

Section 57.104, Florida Statutes, was applicable to a case of

this nature, the evidence in this case is insufficient to show

that the law clerk services billed for in this case were servic es

of the type contemplated by Section 57.104.

48. The undersigned has serious doubts as to whether, in a

case of this nature, the expert witness fees paid to an attorney

who testifies in support of the Petitioner's claim for attorney's

fees is an approp riate cost to be taxed even in a case in which

the fee petitioner prevails. A primary basis for such doubts is

explained at length in a "Final Order Granting Motion for

Rehearing and Supplementing Final Order of December 19, 2003,"

issued on January 7, 20 04, in Bryan Yamhure and Henry Yamhure v.

Department of Agriculture and Consumer Services , DOAH Case No.02 -

4003RX. In Yamhure the administrative law judge explained that

the taxing of such costs is discretionary and that only in

exceptional cases should a ttorneys expect to be compensated for

testifying as to the reasonableness of another attorney's fees.

A further reason for which the taxing of such costs would be

inappropriate in this case even if the Petitioner had prevailed

is that the expert witness n ever got closer than a vague

"guesstimation" of how many hours he devoted to preparing and

expressing his opinion. It is simply unfair to tax costs without

some reliable specific evidence regarding the precise amount of

the cost and the basis for arriving at that precise amount. It

is also noted that the amount of costs sought for the expert

witness services of Mr. Goren are simply unreasonable. Depending

on which of the vague, imprecise, and inconsistent testimony one

uses to make the calculation, Addic ott is seeking reimbursement

for Mr. Goren's services in an amount that ranges from $5,000.00

(25 hours x $200.00 per hour) to $7,875.00 (35 hours x $225.00

per hour). It is simply unreasonable to spend $5,000.00 or more

to obtain an opinion as to whether approximately $11,000.00 of

attorney's fees are reasonable fees.

49. The undersigned also has serious doubts as to whether,

if the Petitioner had prevailed in this case, the evidence

regarding attorney's fees in this case would have been sufficient

to s upport an award of attorney's fees in any amount. Among the

reasons for these doubts is the fact that nowhere in the record

of this case is there any testimony that the services itemized in

Addicott Exhibit 1 were actually performed, that the bills in

tha t exhibit are accurate, that all of the services were

reasonably necessary, or that all of the services related solely

to the Nieman ethics complaint against Addicott or to the

Addicott fee petition against Nieman. To the contrary, some of

the services it emized in Addicott Exhibit 1 appear to have been

unnecessary and some of the itemized services appear to be for

time spent on matters other than the Nieman ethics complaint

against Addicott or the Addicott fee petition against Nieman.

And as a final matte r on this point, it is noted that although

the issues in this case involve fewer than half of the

allegations in Nieman's ethics complaint against Addicott, there

is no evidence as to which of the itemized legal services related

to matters at issue here an d which related to factual allegations

that are not at issue here.

RECOMMENDATION

On the basis of the foregoing findings of fact and

conclusions of law, it is RECOMMENDED that a Final Order be

entered dismissing the Petition in this case and denying all

relief sought by the fee Petitioner, Michael Addicott.

DONE AND ENTERED this 4th day of November, 2004, in

Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 4th day of November, 2004.

ENDNOTES

1/ It is possible that the Town of Golden Beach received some

reimbursement for the damage to the light pole from the

insurance company that insured the motor vehicle Aaron Addicott

was driving at the time of the accident. But whether the

insurance company made any paymen t is irrelevant to the issues

at hand here, because Nieman never made any statement about the

insurance company that is at issue in this case.

2/ Nieman firmly, clearly, and without equivocation or

hesitation, repeatedly denied having any such knowledge.

Nieman's denials in this regard have been found to be credible

and convincing. There is no clear and convincing evidence that

Nieman knew, at any material time, that one or more of the

subject allegations was false.

3/ The findings of fact in this par agraph are mixed questions

of law and fact, which is why substantially identical statements

are also included in the conclusions of law. By way of

clarification it is also noted that the finding that Nieman did

not act with "reckless disregard" contemplat es the use of the

term "reckless disregard" as it has been described and defined

in New York Times v. Sullian , 376 U.S. 254, 84 S. Ct. 710, 11

L.Ed.2d 686 (1964), and its progeny.

4/ In this regard it is important to note that the brief

descriptions of s ome of the attorney's services itemized in the

three bills appear to be for services related to matters other

than Nieman's ethics complaint against Addicott and Addicott's

fee petition against Nieman. Bills for attorney's services

performed in other matt ers cannot properly be charged to Nieman.

5/ At pages 44 - 45 of the hearing transcript, the expert witness

testifies that he is being compensated at the rate of $200.00

per hour. At pages 85 - 86 he testifies that he is being

compensated at the rate of $22 5.00 per hour. It cannot be

determined from the record in this case which, if either, of the

hourly rates is correct.

6/ When asked "what are your fees for your time in this

matter?", the expert witness answered, at pages 85 - 86, "To be

truthful, I didn' t look, but I'm assuming, for discussion, that

I'm probably in the neighborhood of between 25 and 35 hours of

time." A bit further down the expert witness adds: "We're

probably looking at between 25 and 30 hours of time." This type

of imprecise, vague, and uncertain testimony which is also

internally inconsistent from one page to the next is not the

type of evidence on which cost awards can be properly based.

Evidence of this type is simply too unreliable and unpersuasive

upon which to make any findings of fact. Furthermore, any

findings of fact made upon the basis of evidence so lacking in

trustworthiness would be nothing better than some form of

"guesstimation" unsupported by even persuasive competent

substantial evidence, much less the "clear and con vincing

evidence" that is required in cases of this nature.

7/ See pages 110 - 111 of the hearing transcript.

8/ These expert legal opinions have been found to be

unpersuasive. For reasons discussed in the conclusions of law,

the appellate court cases d ecided under the pre - amendment

version of Section 112.317(8), Florida Statutes, are of little

help in interpreting and applying the current version of the

statute.

9/ While there is record evidence regarding the reasonable and

typical hourly rate that is charged for the services of law

clerks, there is no record evidence as to the hourly cost of

services performed by law clerks. For reasons discussed in the

conclusions of law, the cost of such services may be more

important that the amounts that are char ged for the services.

10/ It serves no useful purpose to attempt to estimate how many

hours of attorney time will be spent in post - hearing activities.

See Kaminsky v. Lieberman , 675 So. 2d 261 (Fla. 4th DCA 1996),

in which the court, noting that "[a]s a matter of basic

fairness, the interested parties should be neither shortchanged

nor over - charged for the sake of administrative expediency,"

held that the Ethics Commission must provide a hearing to afford

the Petitioner an opportunity "to establish fees and costs which

were incurred after the last day of the hearing."

11/ The allegations of the Fee Petition clearly put Nieman on

notice that Addicott was seeking attorneys fees and costs on the

grounds that Nieman's statements about two specific matters h ad

been made with malice. The Fee Petition did not put Nieman on

notice that Addicott was contending that any other statements by

Nieman were made with malice. It would be contrary to

fundamental notions of due process and fair play to subject

Nieman to liability for, and to require him to defend against,

assertions that he also made other malicious statements that are

not specifically mentioned in the Fee Petition. The material

allegations of the Fee Petition that put Nieman on notice as to

which of his specific allegations are alleged to have been made

with malice appear at paragraphs 6, 7, 8, and 9 of the Fee

Petition, which are quoted in the findings of fact. This view

of the scope of this proceeding is also supported by the portion

of Florida Admini strative Code Rule 34 - 5.0291(2) which states,

with regard to a petition seeking costs and attorney's fees

under Section 112.317(8), Florida Statutes: "Such petition

shall state with particularity the facts and grounds which would

prove entitlement to cost s and attorney's fees." (Emphasis

added.)

12/ Prior to the current version of Section 112.317(8), Florida

Statutes, the relevant portion of the statutory language read as

follows:

(8) In any case in which the commission

determines that a person has filed a

complaint against a public officer or

employee with a malicious intent to injure

the reputation of such officer or employee

and in which such complaint is found to be

frivolous and without basis in law or fact,

the complainant shall be liable for c osts

plus reasonable attorney's fees incurred by

the person complained against. (Emphasis

added.)

It would appear from the underscored portion of the pre - 1995

language quoted above that the criteria for an award of

attorney's fees and costs under that la nguage were intended to

be similar to the criteria for awards of attorney's fees and

costs set forth in such statutory provisions as Sections 57.105,

(authorizing award of fees and costs when claim "not supported

by the material facts" or "not . . . suppor ted by the

application of then - existing law"),120.569(1)(e), (authorizing

award of fees and costs for documents filed "for any improper

purposes" or "frivolous purpose") and 120.595(1)(b), Florida

Statutes (authorizing award of fees and costs for participa ting

in a proceeding "for an improper purpose" or a "frivolous

purpose"). In Couch v. Commission on Ethics , 617 So. 2d 1119

(Fla. 5th DCA 1993), citing Taunton v. Tapper , 396 So. 2d 843

(Fla. 1st DCA 1981), the court stated, with regard to the pre -

1995 ve rsion of Section 112.317(8): "Section 57.105 appears to

be the statute most analogous to section 112.317(8)." Under the

pre - 1995 version of Section 112.317(8), Florida Statutes, in

order to avoid a determination that a complaint was frivolous,

the person filing the complaint had to have some basis in law ,

as well as some basis in fact, for filing the complaint with the

Ethics Commission. The current version of Section 112.317(8),

Florida Statutes, omits any consideration of the legal

sufficiency of the o riginal complaint.

13/ The Faxon decision contains an interesting history,

analysis, and criticism of the evolution of the law regarding

defamation of public officials, beginning with cases pre - dating

New York Times and continuing forward to the present. Of

particular interest is the fact that, although they disagree

with the wisdom of some aspects of New York Times and its

progeny, the Faxon court emphasizes and implements its duty to

follow those decisions whether it agrees with them or not.

COPIES F URNISHED :

Stuart R. Michelson, Esquire

Law Office of Stuart R. Michelson

200 Southeast 13th Street

Fort Lauderdale, Florida 33316

Robert Nieman

9731 Southwest 12th Street

Pembroke Pines, Florida 33026

Kaye Starling, Agency Clerk

Commission on Ethics

3600 Maclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Bonnie J. Williams, Executive Director

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5708

Philip C. Claypool, General Counsel

Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5708

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions withi n

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.