04-001729FE Jose Iglesias vs. Robert Nieman Status: Closed Recommended Order on Thursday, June 9, 2005.

Summary: There was no clear and convincing evidence that Respondent filed the complaint without a factual basis for his concern that an ethics violation had occurred.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE IGLESIAS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1729FE

)

ROBERT NIEMAN, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on Nov ember 1, 2004, in Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: James J. Birch, Esquire

Law Office of Stuart R. Michelson

200 Southeast 13 th Street

Fort Lauderdale, Florida 33316

For Respondent: Robert Nieman, p ro s e

9731 Southwest 12 th Street

Pembroke Pines, Florida 33026

STATEMENT OF THE ISSUE

Whether the Petitione r, Jose Iglesias (Petitioner or

Iglesias) is entitled to attorney ' s fees and costs from the

Complainant/Respondent, Robert Nieman (Respondent or Nieman),

pursuant to Section 112.317(8), Florida Statutes (2004).

PRELIMINARY STATEMENT

This case began on Aug ust 14, 2003, when the Respondent

executed an ethics Complaint against the Petitioner and filed it

with the Florida Commission on Ethics (Ethics Commission). The

Complaint alleged eight incidents concerning the Petitioner and

alleged acts committed while Iglesias held the office of Vice

Mayor for the Golden Beach Town Council. More specifically, the

Complaint alleged:

1. Vice Mayor Iglesias is constantly

interfering with Police Department’s day - to -

day operations, and spreading false rumors

about Police D epartment personnel. (Document

#1)

2. Vice Mayor Iglesias is c ausing a hostile

work environment with constant complaints

about officers.

3. Vice Mayor Iglesias is c onstantly

encouraging r acism, pitting h ispanics

against w hite and b lack officers of the

Department.

4. Vice Mayor Iglesias f iled false police

reports (verbally) constantly for his own

gain and benefits.

5. Vice Mayor Iglesias’s 16 - year - old son

works part time in Town Hall. (Nepotism)

6. Vice Mayor Iglesias improper use of his

title by i nstructing the Town Manager to

take actions on the police department, and

even retaliation against the Police Chief

and myself.

7. Vice Mayor Iglesias ordered public

records about himself not to be released,

and then when they were released he insisted

t he secretary releasing the records be

fired. (Document #1)

8. Mr. Iglesias is falsely using the title

of M.D. and in fact used this title to gain

his seat on the council and then becoming

Vice Mayor. When Mr. Iglesias has been

questioned on this matter by residents in

the past he has stated he was a brain

surgeon, a foot doctor, and a chiropractor,

and could not list a hospital where he did

his residency to become M.D. (Document #2)

On March 16, 2004, the Ethics Commission issued a Public

Report that fo und no probable cause to believe that the

Petitioner had violated ethics statutes. Accordingly, the

Respondent’s Complaint was effectively closed. The Advocate’s

Recommendation in this matter noted only three of the

Respondent’s claims had been deemed le gally sufficient to

require an investigation for a probable cause determination as

to whether the Petitioner had violated provisions of Florida’s

ethics laws.

The three allegations were: whether the Petitioner had

filed false police reports for his pers onal benefit; whether the

Petitioner had attempted to prevent the release of a public

record or insisted on the firing of the person who had released

the record; and whether the Petitioner had caused his son to be

employed by the Town of Golden Beach (the Town). As to each

claim the Advocate recommended that there was no probable cause

to believe the Petitioner violated the law.

On April 14, 2004, the Petitioner filed the Fee Petition

that is the subject of the instant case against the Respondent.

Petiti oner maintains he is entitled to attorney's fees and costs

pursuant to Section 112.317(8), Florida Statutes. The Fee

Petition alleged that Respondent had filed the Complaint with

the Ethics Commission with “a malicious intent to injure the

reputation of t he Petitioner by filing the Complaint with

knowledge that the Complaint contained one or more false

allegations, or that the Complaint was filed with reckless

disregard for whether the Complaint contained false allegations

of fact material to a violation o f the Florida Ethics Code.”

The case was forwarded to the Division of Administrative

Hearings for formal proceedings on May 14, 2004.

At the hearing, the Petitioner testified and presented

testimony from Robert Nieman, Bonilyn Wilbanks - Free, Sheila

Pir rone, and Samuel Goren. The Petitioner’s Exhibits 1 through

7 were admitted into evidence. The Respondent’s Composite

Exhibit 1 was also admitted into evidence. Respondent’s

Exhibits 2 - 5 were proffered for the record.

The transcript of the proceeding was filed with the

Division of Administrative Hearings on February 14, 2005. The

parties requested an extension of time to file proposed

recommended orders. That request was granted. Both parties

timely filed post - hearing proposals that have been full y

considered in the preparation of this order.

FINDINGS OF FACT

1. On August 14, 2003, the Respondent executed a Complaint

that was filed with the Ethics Commission against the

Petitioner. The Complaint alleged:

1. Vice Mayor Iglesias is constantly

in terfering with Police Department’s day - to -

day operations, and spreading false rumors

about Police Department personnel. (Document

#1)

2. Vice Mayor Iglesias is c ausing a hostile

work environment with constant complaints

about officers.

3. Vice Mayor Ig lesias is c onstantly

encouraging r acism, pitting h ispanics

against w h ite and b lack officers of the

Department.

4. Vice Mayor Iglesias f iled false police

reports (verbally) constantly for his own

gain and benefits.

5. Vice Mayor Iglesias’s 16 - year - old s on

works part time in Town Hall. (Nepotism)

6. Vice Mayor Iglesias improper use of his

title by instructing the Town Manager to

take actions on the police department, and

even retaliation against the Police Chief

and myself.

7. Vice Mayor Iglesias orde red public

records about himself not to be released,

and then when they were released he insisted

the secretary releasing the records be

fired. (Document #1)

8. Mr. Iglesias is falsely using the title

of M.D. and in fact used this title to gain

his seat on the council and then becoming

Vice Mayor. When Mr. Iglesias has been

questioned on this matter by residents in

the past he has stated he was a brain

surgeon, a foot doctor, and a chiropractor,

and could not list a hospital where he did

his residency to become M.D. (Document #2)

2. At all times material to this case the Petitioner was

Vice Mayor serving on the Town’s governing council. As such,

the Petitioner was subject to the ethics provisions governed by

the Ethics Commission.

3. The Respondent is a town employee and serves as a

police sergeant within the police department. Mr. Nieman has

been so employed for over 20 years.

4. After an investigation of three of the allegations set

forth in the Complaint (only three were deemed legally

sufficient to warrant investigation) and consideration of the

Advocate’s recommendation, the Ethics Commission entered a

Public Report on March 16, 2004. The Public Report dismissed

the Complaint and closed the matter.

5. On April 14, 2004, the Petitioner filed the instant Fee

Petition pursuant to Section 112.317(8), Florida Statutes

(2004). The Fee Petition alleged that the Complaint “is based

on eight allegations, all of which are false and were known to

be false by Complainant when he filed the Complaint.”

Addi tionally, the Fee Petition stated the Complaint “was filed

by the Complainant with the knowledge the Complaint contained

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

whether the Complaint contained false allegations. . . . ”

6. At hearin g, the Petitioner presented evidence as to the

three allegations of the Complaint that were investigated and

deemed legally sufficient to require an ethics investigation.

Those allegations were: whether the Petitioner had filed false

police reports for hi s personal benefit; whether the Petitioner

had attempted to prevent the release of a public record or

insisted on the firing of the person who had released the

record; and whether the Petitioner had caused his son to be

employed by the Town.

7. The false police reports allegation stemmed from the

Petitioner’s use of public roads for rollerblading. The

Petitioner is an avid rollerblader and likes to rollerblade for

exercise. The Petitioner opined that rollerblading puts less

stress on his back and has les s impact than jogging. The

Petitioner frequently rollerblades on the public road within the

Town. Automobile traffic on the road must go around the

Petitioner in order to pass. It is the Petitioner’s position

that since there is no sidewalk or shoulder suitable to

rollerblade, he is entitled to use the road surface just as a

pedestrian might use the road surface. The Petitioner skates

toward the middle of the lane and not on the edge of the road

surface because the roadway is better there for the

roller blades. The record in this case does not clarify whether

the Petitioner skates with or against the traffic.

8. In connection with the rollerblading, the Respondent

believes that the Petitioner is not entitled to use the road as

he does and that if the Pe titioner did not use his position as a

councilman for influence, he would be cited for rollerblading

down the road as he does. Further, the Respondent maintains

that the Petitioner has made verbal complaints against motorists

who passed too close to him. The Respondent maintains that the

verbal complaints are false in that the Petitioner is not

entitled to use the roadway as he does and therefore cannot

complain against motorists as he does.

9. The Petitioner does not deny the activity. The

Respondent has observed the Petitioner rollerblading down the

road. The Respondent has not issued a citation to the

Petitioner because he is assigned an administrative position

within the police department and he believes he is not allowed

to issue such citations.

1 0. The Respondent based the allegation regarding this

claim upon statements he has heard from police officers within

the Town’s police department. The Respondent did not subpoena

the officers to the hearing because he did not want to involve

other Town e mployees in the matter. The Respondent does not

have any evidence to support the allegation other than what he

believed he had been told in his experience as a police officer

for the Town. The record does not demonstrate any written

record of either the Petitioner being cited for improper

rollerblading or making a report against a vehicle.

11. As to the second allegation that was investigated, a

memo purportedly from the chief of police was released to a

member of the public by accident. It was included within a

stack of documents that had been requested by a private citizen.

The document stated in part:

SUBJECT: Ethics violations and continual

interference of day - to - day police operations

by the Vice Mayor Iglesias

This memorandum is to inform you [M ayor

Michael Addicott] of constant harassment of

police personnel and interference in daily

operations by the new vice mayor.

The Petitioner admitted that he was concerned that the document

had been released in error and that the person who wrongly

relea sed a document should be disciplined. The Petitioner did

not know about the document before it was released. He did not

attempt to prevent the release of the document. Instead, the

Petitioner sought to, after - the - fact find out why the document

had been released, if the document was in fact a public record

subject to release, and if the employee should be disciplined

for the release.

12. The document in question was a public record, was

subject to public release, and the employee was not disciplined

fo r its release. Nevertheless, the Petitioner did require a

second (and arguably third opinion) regarding whether the

document constituted a public record. In the meanwhile, the

controversy within the Town over whether the document should

have been release d was widely discussed among Town employees.

The Respondent filed his claim based upon several reports that

the Petitioner wanted the secretary who released the report

fired. One of the Respondent’s sources was the Chief of P olice.

The Respondent did no t question the veracity of the police

chief.

13. At hearing, the Petitioner did not deny that

discipline would have been appropriate if the release of the

document were shown to be erroneous. The Petitioner

acknowledged that the Town pursued a full rev iew of the matter

and that he was among those who called for the review.

14. As to the third allegation (that the Petitioner caused

his son to be hired by the Town), the Respondent believed that

once the Petitioner was elected as a councilman that the s on was

not eligible to work for the Town. The Respondent thought that

rules prohibiting nepotism applied to the Petitioner’s son and

that as such the son could not continue to work for the Town.

The Respondent based this interpretation on a general but u n -

researched idea about nepotism. He also discussed this matter

with another Town employee who also thought the son was not

eligible to work for the Town.

15. In fact, the Petitioner’s son, Joseph, started working

for the Town in a part - time position pri or to the Petitioner

being elected to office. After the Petitioner became Vice

Mayor , the son continued with his duties but was moved from an

independent contractor status to part - time employee status. The

son then received a raise in his hourly rate of pay when the

Town employees also received a raise. The Petitioner did not

supervise the son’s employment and did not direct the son’s

work. The record is unclear as to whether the Petitioner voted

on the pay raise or not.

16. At hearing the Respondent maintained that he had had

numerous conversations with persons at the Ethics Commission who

recommended that he add the information regarding the nepotism

claim to his allegations. He admitted that he did not

independently check any laws or rules that mig ht pertain to

nepotism before filing the c laim.

17. Much of the Respondent’s attitude and comments in

connection with the Petitioner must be viewed in the context of

the happenings within the Town. For unknown reasons, the Town,

its employees, and the go verning council were in a state of

change and confrontation. The Respondent and the Petitioner

apparently do not relate well to one another personally.

18. The Respondent is suspicious of the Petitioner’s

medical credentials and is uncertain as to why the Petitioner

holds himself out as an “M.D.” , when he is not licensed nor is

he eligible to be licensed as a medical doctor.

19. The Petitioner believes the Respondent holds some

animosity toward him for unknown reasons. Further, because the

Responde nt admitted he believes the Petitioner is arrogant, that

belief somehow that demonstrates malice toward the Petitioner.

20. The questions of whether the Petitioner is

credentialed to be a medical doctor, whether the Petitioner

attempted to in ter fer e with the police department, or whether

the Petitioner spread false rumors regarding the police

department were not investigated and do not support, if true, an

ethics violation.

21. If attorney's fees and costs are entered in this cause

the beneficiary of an a ward will be the Town. The Petitioner

has incurred no expenses or costs associated with the defense of

the Complaint. The Town agreed to pay and has paid all

attorney's fees and costs associated with this case.

22. The Petitioner presented several inv oices from the Law

Offices of Stuart R. Michelson that were alleged to pertain to

the instant case.

23. The Petitioner also presented testimony from an expert

witness who was to be paid by the Town. That witness, an

attorney, was to be paid $200.00 per hour for his efforts in

this matter.

24. Although the Petitioner’s expert testified that the

hourly rates for fees applied in this cause were reasonable,

there was no evidence that the time was actually expended in

connection with the instant case. The re is no way to know if

the services were performed for the defense against the

Respondent’s Complaint. The expert merely opined that the

invoices he reviewed were reasonable. He maintained that the

Petitioner should recover $27,455.53 in this matter.

CO NCLUSIONS OF LAW

25. 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. (2004).

26. Section 112.317(8), Florida Statutes (2004), provides:

In a ny 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 conta ins one or more false

allegations or with reckless disregard for

whether the complaint contains false

allegations of fact material to a violation

of this part, the complainant shall be

liable for costs plus reasonable attorney's

fees incurred in the defens e 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 following such findi ng 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 commission.

27. The Commission on Ethics has recently determined that

the standard applicable to this matter is the “actual malice”

standard enunciated in New York Times v. Sullivan , 376 U.S. 254,

84 S. Ct. 710 (1964). See In re Michael Addicott , COE Final

Order No. 05 - 0207 entered April 26, 2005. Accordingly, unless

the construction of a statute leads to an unreasonable or a

clearly erroneous result, an agency’s interpretation of a

statute that it is charged with enforcing is entitled to great

deference. Level 3 Communica tions, LLC v. Jacobs , 841 So. 2d

447, 450 (Fla. 2003); Osorio v. Board of Professional Surveyors

and Mappers , 898 So. 2d 188 (Fla. 5 th DCA 2005).

28. Thus, the Sullivan standard is appropriate to the

issue at hand. Therefore, the Petitioner must establis h that

the Respondent filed the Complaint with a malicious intent to

injure the reputation of the Petitioner, with knowledge that the

complaint contained one or more false allegations or with

reckless disregard for whether it contained false allegations of

fact material to a violation of the Code of Ethics. If that

standard is met, then the Petitioner must establish the amount

of attorney's s fees based upon the criteria set forth in Florida

Patient’s Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla.

1985). If the standard is not met, the question of an amount of

reasonable attorney's fee s is moot.

29. In this case, the Petitioner failed to establish that

the Respondent filed the Complaint with a malicious intent to

injure the reputation of the Petitioner . The Respondent

believed that the Petitioner was not entitled to run roughshod

over Town employees. Basically, the Town was in turmoil. That

the Respondent believes the Petitioner to be a " pompous jerk "

does not automatically render his action maliciou s. What if the

Petitioner is, in fact, a " pompous jerk " ? Is truth an absolute

defense? There is no clear and convincing evidence in this

cause to support the conclusion that the Respondent filed his

Complaint with a malicious intent to injure the reputa tion of

the Petitioner. Further, except for the inconvenience of

defending himself through the investigation process, there is no

evidence that anyone other than the Petitioner thought the

Respondent was attempting to injure the Petitioner’s reputation.

3 0. Similarly, the Respondent did not file the Complaint

with a reckless disregard for the truth. As outlined by Demby

v. English , 667 So. 2d 350 (Fla. 1 st DCA 1996):

“[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 media 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 p laintiff 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

disregarded the truth. New York Times v.

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

L.Ed.2d 686 (1964).

31. In this case the Petitioner failed to provide clear

and convincing proof that the Respondent acted with reckless

disregard for the truth. To satisfy this burden, the Petitioner

must demonstrate a level of e vidence such that it produces in

the mind of the trier of fact a firm belief or conviction

without hesitancy as to the truth of the allegations sought to

be established. See In re Davey , 645 So. 2d 398, 404 (Fla.

1994). To the contrary, the weight of the credible evidence in

this case established that the Respondent thought the

information he provided to the Ethics Commission was accurate

and would lead to an investigation that would disclose ethics

violations.

32. There is no clear and convincing evid ence that at the

time he made the Complaint that th e Respondent knew that any

statement was false. As to the each allegation the Respondent

had credible sources to support the Complaint. In retrospect ,

he perhaps naively believed the unverified statement s of his co -

workers. He did not determine if nepotism prohibits a son of a

councilman from being employed by the Town. He is not a lawyer

and did not research the law. Perhaps a more thorough

investigation could have been done before the filing of the

C omplaint. Hindsight would yield different results in many

instances. As to whether he knowingly made false statements

regarding this Petitioner, the evidence in this cause is

woefully inadequate to reach such a conclusion.

33. It is concluded that at t he time he made the Complaint

all of the factual allegations were either supported by the

Respondent’s observations, his conversations with Town

employees, or from reasonably drawn inferences. For example,

the chief of police told the Respondent and the p erson who

released the public document that the Petitioner wanted the

employee disciplined (fired). If it had turned out that the

document was not a public document, it was the Petitioner’s

intention to see that discipline of the employee occurred. To

th at end several checks were pursued to attempt to show that the

document was released in error. The Respondent could reasonably

infer from the Petitioner’s acts that he was displeased by the

release of the document and would use his position as Vice Mayor

to evidence that displeasure. He was unable to do so because

every source checked supported the conclusion that the document

was a public record. Similarly, the Respondent knew that the

Petitioner’s son worked for the Town and was made an employee of

the Town during the Petitioner’s tenure. He did not research

the law on nepotism. He and others thought that the

Petitioner’s daily presence at the Town offices looked like the

son was working in violation of the nepotism laws. Only through

the investigati on process did they come to understand that the

Petitioner’s son was not supervised or controlled by the

Petitioner and no nepotism rules were violated. Nonetheless

there was a factual basis for the Respondent’s concern.

Finally, as to the rollerblading issue, it is undisputed that

the Petitioner rollerblades down the road. The Petitioner

admits it, credible witnesses observed the behavior, and all

disagree as to whether the conduct is appropriate.

34. Section 316.2065(12), Florida Statutes (2004) ,

p rovides:

No person upon roller skates , or riding in

or by means of any coaster, toy vehicle, or

similar device , may go upon any roadway

except while crossing a street on a

crosswalk; and, when so crossing, such

person shall be granted all rights and shall

be subject to all of the duties applicable

to pedestrians. [Emphasis added.]

Further, persons violating the provision are subject to the

penalty set forth in Section 316.2065(20), Florida Statutes

(2004). Arguably, rollerblades are a form of roller skat es.

Thus the Respondent had a reasonable basis for believing the

Petitioner’s position as a councilman enabled him to pursue the

activity. Moreover, the Respondent’s allegation of the

Petitioner’s complaints regarding motorists who passed too close

to th e Petitioner were founded upon the comments overheard at

the police station. That those comments were not substantiated

at the hearing (and they were not) does not diminish the fact

that coupled with the known activity (rollerblading), the

Respondent had a basis for a credible belief that the Petitioner

was using his public position to further his private exercise.

35. For the reasons set forth above, it is concluded that

the Petitioner is not entitled to an award of attorney's fees in

this matter. The Petitioner has failed to meet the evidentiary

standard applicable to this cause. As such, no conclusion is

reached as to what would be an appropriate award if an award

were warranted.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusi ons

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

dismissing the Fee Petition in this case.

DONE AND ENTERED this 9th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative La w Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of June, 2005.

COPIES FURNISHED :

Kaye Starling, Agency Clerk

Commission on Ethics

3600 Maclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Phillip C. Claypool, General Counsel

Commission on Ethics

3600 Mclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Bonnie J. Williams, Executive Director

Commission on Ethics

3600 Mclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 3231 7 - 5709

James J. Birch , 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have th e right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.