11-001238FE In Re: Diane V. Bendekovic vs. * Status: Closed Recommended Order on Monday, August 29, 2011.

Summary: Respondent proved, by a preponderance of evidence, that she was entitled to attorney's fees and costs by establishing that Complainaint had malicious intent to injure her reputation by filing an ethics complaint with reckless disregard for the truth.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In RE: DIANE V. BENDEKOVIC , )

)

Respondent. ) Case No. 11 - 1238FE

__________________________________)

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to s ections

120.569 and 120.57(1), Florida Statutes 1 b efore Administrative

Law J udge Jessica Varn of the Division of Administrative

Hearings (DOAH). The hearing was held on July 25 , 2011 , in Fort

Lauderdale, Fl orida.

APPEARANCES

For Respondent : Jeremy J. Kroll , Esquire

Bogenschutz, Dutko & Kroll, P.A.

Fort Lauderdale, Florida 33301

For Complainant : Robert W. Medoff

7480 Southwest 18th Street

Plantation, Florida 33317

STATEMENT OF THE ISSUE

Whether Respondent is entitled to attorneyÓs fees pursuant

to s ection 11 2.317(7), Florida Statutes , and Florida

Administrative Code Rule 34 - 5.0291 .

PRELIMINARY STATEMENT

On September 27 , 2010, Robert W. Medoff (Medoff) filed an

ethics complaint against Respondent, Diane V. Bendekovic

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

The complaint alleged that Respondent misused her public

position as a mem ber of the City Council of the C ity of

Plantation in violation of section 112.313 (6) . M edoff filed an

amended complaint on October 21 , 2010.

The Commission undertook an inv estigation of the

allegations in MedoffÓs complaint s and, on December 13, 2010,

i ssued a Report of I nvestigation concluding that the allegations

lacked merit. On December 29, 2010, the CommissionÓs Advocate

recommended a finding of no probable cause to believe Respondent

violated Florida law as alleged in the complaint s . Based on the

AdvocateÓs recomme ndation, the Commission, on February 9, 2011,

dismissed MedoffÓs ethics complaint s .

On February 24 , 2011, Respondent filed a Petition for Costs

and AttorneyÓs Fee s pursuant to section 112.317(7) and Florida

Administrative Code Rule 34 - 5.0291. The Petition alleged that

Medoff filed the ethics complaint s with malicious intent to

injure her reputation, by filing the complaint s with knowledge

that they contained one or more false allegations, or with

reckless disregard for whether the complaint s contained one or

more false allegations. Medoff disputed the Petition for Costs

and AttorneyÓs Fees and the matter was forwarded to DOAH for a

hearing.

Pursuant to notice , the final hearing in this case was

conducted on July 25 , 2011 . At the hearing, Respondent called

Medoff, Susan Slattery, Sharon Uria, Rico Petrocelli, and Beau

Jackson as witnesses. Additionally, Respondent offered E xhibits

1 - 11 into evidence. Medoff called Jerry Fadgen, Daniel Keefe,

Donald Lunny, and Annette Otiniano as witnesses. Medoff also

offered E xhibits 1 - 4 into evidence.

The transcript of the pr oceedings wa s filed with DOAH on

August 11 , 2011. The parties timely filed P roposed F indings of

F act and C onclusions of L aw, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. In September 23, 2 010, Respondent was a sitting

Councilwoman for the City of Plantation . Medoff has been a

resident of Plantation since 1987 , oftentimes following local

politics. On September 22, 2010, then - sitting Mayor of

Plantation, Rae Carol Armstrong, publicly announced her

retirement and that she would not seek re - election.

2. On September 22, 2010, Medoff sent Respondent an email

containing the subject line: ÐTonights [ sic ] voteÑ. The email

read as follows:

Councilwoman Bendekovic:

A vote to give raises tonight is a coffin

nail in your political future. By approving

the flawed budget, you are explaining why

you are not fit to be mayor. I ask you to

vote for what is right, even knowing that

your vote has allegedly been bought already.

Warren Medoff

3 . Respondent filed her Statement of Candidacy for the

position of Mayor of the City of Plantation on September 23,

2010. The election for this position was to be held on March 8,

2011.

4 . On or about September 23rd, according to Susan Slattery,

the City Clerk for the City of Plantation, Medoff picked up a

packet of paperwork for persons who intend to run for the office

of Mayor.

5 . On September 23, 2010, Medoff sent Respondent an email

with a s ubject line that read: ÐTime to get out of politics!Ñ

The email read as follows :

Doubleflush,

The Mayor is smart enough to know when to

exit gracefully and without an i ndictment.

L earn from the Bell, California indicted

c urrent and past elected officials.

Official m isconduct is a third - degree felony

punishable b y up to five years in the state

Department of Corrections and a $5,000 fine.

Have a nice day.

Warren Meddoff

Medoff explained at the hearing that the nickname ÐDoubleflushÑ

had been gi ven to Respondent after she had championed double

flush toilets as an example of her commitment to the

environment.

6 . On September 24, 2010, on the internet blog for The

Plantation Journal , Medoff posted the following blog entry,

referring to Respondent:

She suffers from battered wife syndrome,

meglomania [ sic ] and most likely is

compensating for childhood incest and forced

devient [ sic ] sexual behaviors as an adu lt.

Pity her and pray for her.

7 . Also on September 24, 2010, Medoff sent Respondent an

email, with a subject line that read: ÐNepotism, incest,

consorting with criminalsÑ. The email stated:

Councilwoman Bendekovic, you are an

embarrassment to the City of Plantation.

ÐIÓm up to the challenge,Ñ Bendekovic said.

She sa id she learned how to serve the city

Ðlike osmosis. It was part of our family.

ItÓs an asset to be my mother and fatherÓs

daughter and because my father was mayor for

24 years and my mother was volunteer

extraordinaire.Ñ

Nepotism, incest, devient [ sic ] sex ,

solicitation of bribes and consorting with

convicted elected officials of the school

board are not qualifications for public

office.

Warren Meddoff

8 . On Saturday, September 25, 2010, Medoff received a

phone call from Frances Petrocelli , who had been involved in

politics for a long time in the City of Plantation . Mr.

Petrocelli told Medoff that he had heard rumors that on Friday,

September 24, 2010, Respondent had been campaigning and

soliciting support for her mayoral campaign in areas of City

H all that were restricted from access to the general public.

Mr. Petrocelli told Medoff that he had learned thi s information

from an individual who had called Mr. Petrocelli , but he did not

know t he identity of the caller . Mr. Petrocelli did not know

whet her t he caller had first, second, third or fourth - hand

knowledge of the alleged conduct.

9 . That same day, Mr. Petrocelli and Medoff exchanged

emails regarding the upcoming mayoral election. In those

emails, Medoff asked Mr. Petrocelli to identify suppo rters of

RespondentÓs mayoral campaign.

10 . Also on September 25, 2010, Medoff called Sharon Uria,

a City Councilwoman, and asked her if she had seen Respondent in

City Hall on Friday, September 24 , 2010 . Ms. Uria replied that

she had seen Respondent in the mail room on that day; however,

she possessed no knowledge of RespondentÓs alleged inappropriate

conduct. 2

11 . Medoff conducted no other investigation into the

alleged conduct on September 24, 2010. He did not call

Respondent, any other City employee, or anyone else who may have

actually been in attendance when the alleged conduct took place.

12 . Instead of reasonable inquiry regarding the rumor he

had heard , Medoff filed a Complaint with the Florida Commission

on Ethics. It stated as follows:

This complaint is filed on September 25,

2010, regarding the actions and activities

of Diane Veltri Bendekovic, an elected

memb er of the City Council of the City of

Plantation,Florida.

Complaint: On Friday, September 24, 2010,

during regular business hours, Diane Veltri

Bendekovic misused her position of

authority, in that as a Member of the City

Council of the City of Plantatio n, Florida,

she accessed areas of the City Hall and

other City facilities, restricted from

access by the general public, to campaign

and solicit support from City employees for

her campaign to be elected Mayor of the City

of Plantation. This position is b eing

vacated by sitting Mayor Rae Carol Armstrong

who has announced her retirement at the end

of her current term of office. This

complaint is being filed in the belief that

Ms. Veltri Bendekovic has misu s ed her public

position to obtain a special benefit and

privilege. Additionally it is alleged that

she has taken this action to coerce and

intimidate city employees in an effort to

obtain an advantage in the upcoming

election. It is alleged that Ms. Bendekovic

is in violation of 112.313 Standards of

C ond uct for public officers, employees of

agencies, and local government attorneys.

Please note: A former elected official of

the City of Plantation has provided the

complainant with the statement that Ms.

Veltri Bendekovic is being supported in her

election bid by Plantation Mayor Armstrong,

her husband, former State Representative Tom

Armstrong, former State Representative

Norman Ostrau, former Broward County

Commissioner Scott Cowan and Plantation City

Attorney Donald Lunny.

The complainant, Robert Warren Meddoff, does

hereby waive his right to confidentiality

and authorizes the release of the contents

of this complaint to the media and public at

large.

13 . Medoff admits that at the time he filed the

c omplaint s , he had no person al knowledge of the allegat ions. He

concedes that the information he received from Mr. Petrocelli

regarding the alleged events of September 24, 2010 , could have

been fourth , fifth , or sixth - hand comments. Up to and including

the day of the final hearing in this case, h e did not id entify a

single person who possessed first - hand knowledge of the events

or conduct that allegedly occurred on September 24, 2010.

14 . Medoff publicly declared his intention to run against

Respondent for the office of Mayor of the City o f Plantation on

Oct ober 1, 2010, just four days after filing the ethics

complaint.

15 . On October 4, 2010, a staff attorney for the

Commission on Ethics wrote Medoff a letter regarding his

complaint. The letter informed Medoff that more information was

needed in order to better understand whether RespondentÓs

alleged behavior was in violation of any law. First, the

Commission asked M edoff to identify a City rule, policy, or

ordinance that prohi bited Respondent from engaging in

campaigning in the ÐrestrictedÑ areas. Second, the Commission

asked Medoff to provide more detail as to the events that had

allegedly occurred on September 24, 2010. Specifically, the

Commission asked Medoff to identify RespondentÓs conduct which

could be considered coercive and intimidating.

16 . On October 26, 2010, the Commission received MedoffÓs

Amended Complaint. Medoff attached a copy of s ection 106.15,

Florida Statutes, a copy of RespondentÓs Statement of Candida te

wherein she confirms that she understands the requirements of

Chapter 106, Florida Statutes, and various sections of the City

of Plantation Employee Handbook. Medoff also added the

following details to the complaint:

It has been stated to the complaina nt

that,ÐDiane Bendekovic went to city

employees and made the statement that if

they did not support her and that if

Councilman Jerry Fadgen was elected Mayor,

that they would be fired.Ñ

The Commission should note that a criminal

investigation has been in stituted of the

actions of Ms. Bendekovic by the Special

Prosecution Unit of the Office of the State

Att orney, Seventeenth Judicial Circuit of

Florida.

Attached is an article from the Sun - Sentinel

Newspaper dated September 24, 2010 by which

she claims her nepotism as her primary

qualification for office.

Attached is a video of Ms. Bendekovic

admitting [ sic ] violation of the Sunshine

Law. Additional information in the form of

emails to and from City of Plantation

Officials and Law Enforcement outlining

po tentially unethical actions of Ms.

Bendekovic over a two year period prior to

this incident is available should the

Commission elect to proceed to an

i nvestigative stage.

17 . Investigator Beau Jackson conducted an investigation

of MedoffÓs complaints. Du ring the course of his investigation,

Jackson spoke with M edoff by telephone; however, Medoff does not

recollect this telephone conversation. Investigator JacksonÓs

report indicates that Medoff told him that he had no personal

first - hand knowledge of the allegations he made in the

c omplaint s , and he had no additional information beyo nd what he

had provided in the c omplaint s. He admitted that the c omplaint s

were based on rumors, but added that the alleged inappropriate

conduct had occurred in the CityÓs Fi nance Department, and that

perhaps those employees had direct knowledge of the alleged

activity. Medoff identified Mr. Petrocelli, Ms. Uria and Ms.

Slattery as people who might have knowledge of the alleged

misconduct on September 24, 2010.

18 . Investigator Jackson spoke with Ms. Uria and Mr.

Petrocelli, who indicated that they had no personal knowledge

regarding the alleged misconduct, and they were unable to

identify any City employees who might have knowledge of the

alleged misconduct. Jackso n also canvassed City employees, to

attempt to find anyone who might have had knowledge of the

September 24, 2010 , events. He found no eye witnesses, no r

any one with personal knowledge of the alleged misconduct.

19 . None of MedoffÓs witnesses (Jerry F adgen, Daniel

Keefe, Donald Lunny, and Annette Otiniano) had personal

knowledge of RespondentÓs alleged misconduct in September 2010,

and Medoff had not spoken to any of them regarding the alleged

misconduct prior to filing the ethics complaint. During th e

time between his first complaint and his amended complaint, h is

efforts to gain more evidence of the alleged misconduct , by

speaking to more people, only led to more rumo rs and second,

third, or fourth - hand comments. No one with first - hand

knowledge of the alleged misconduct was ever identified.

20 . At hearing, Medoff explained that he never felt it was

his duty to investigate the veracity of his complaint s ; rather,

he felt that this duty fell upon the Commission on Ethics.

21 . The omission of any inv estigation prior to filing his

initial complaint constitutes reckless disregard for the truth.

The offensive and disparaging emails and blog entries authored

by Medoff and directed at Respondent, coupled with the fact th at

Medoff eventually became Responde ntÓs opponent in the mayoral

race, demonstrate his malicious intent to injure RespondentÓs

reputation during the course of the mayoral race.

22 . In order to defend herself, Respondent entered into a

retainer agreement with the firm of Bogenschutz, Dutk o & Kroll,

P.A. As of the date of the hearing, Respondent had in curred

fees in the amount of $37,088.00, and costs in the amount of

$5,275.55 . Additional fees in the amount of $7,525.00 and

$1,570.00 in costs have since been incurred. The parties have

s tipulated to the reasonableness of the hourly rates, hours

expended, and total fees and costs incurred. Given that

MedoffÓs ethics complaint was filed with malicious intent to

injure RespondentÓs reputation by filing complaint s with

reckless disregard of whether the complaint s contained false

allegations, Respondent is entitled to an award of attorneyÓs

fees and costs for her defense against MedoffÓs complaint s and

subsequent costs and fees associated therewith.

CONCLUSIONS OF LAW

23 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding, pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

24 . Section 112.317(7), Florida Statutes, provides, in

part:

In any case in which the commission

d etermines 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 cont ains 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 attorneyÓs

fees incurred in the defen se of the person

complained against, including the costs and

reasonable attorneyÓs fees incurred in

proving entitlement to and the amount of

costs and fees.

25 . Florida Administrative Code Rule 34 - 5.0291 also

provides as follows:

34 - 5.0291 Award of Attor ney's Fees.

(1) If the Commission determines that a

person has filed a complaint against a

public officer or employee with a malicious

intent to injure the reputation of such

officer or employee by filing the complaint

with knowledge that the complaint c ontains

one or more false allegations or with

reckless disregard for whether the complaint

contains false allegations of fact material

to a violation of the Code of Ethics, the

complainant shall be liable for costs plus

reasonable attorney's fees incurred in the

defense of the person complained against,

including the costs and reasonable

attorney's fees incurred in proving

entitlement to and the amount of costs and

fees.

* * *

(4) The respondent has the burden of

proving the grounds for an award of costs

and attorney's fees.

26 . Respondent has the burden of proof by a preponderance

of the evidence in this proceeding. Fla. Admn. Code R. 34 -

5.0291(4), and § 120.57(l)(j), Fla. Stat. (2010).

27 . In Brown v. Fla. CommÓn on Ethics , 969 So. 2d 553, 560

(Fla. 1 st DCA 2007), the complainant had filed an ethics

complaint without checking into the facts, and admitted that he

conducted no investigation prior to filing the ethics complaint.

T he court determined that the elements of a claim by a public

offi cial for costs and attorneyÓs fees are (1 ) the complaint was

made with a malicious intent to inju re the officialÓs

reputation; (2 ) the person filing the complaint knew that the

statements made about the official were false or made the

statements with reckl ess disregard for the truth; and (3 ) the

statements were material. In examining the phrase Ðreckless

disregard for the truth , Ñ the Brown court defined it as a

conscious indifference to the truth. Id. The court also

determined that the actual malice stan dard of New York Times Co.

v. Sullivan , 376 U.S. 254, 82 S. Ct. 710, 11 L. Ed. 2d 686

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

112.317(7), Florida Statutes. Id. at 559. The Brown court

emphasized that even without the Sullivan standard, the statute

sets a high bar for recovery of fees. Ethics complaints which

allege facts insufficient to prove the elements of a violation

of an ethics statute will not render a complaint baseless.

Moreover, an award of attorneyÓs fees is not warranted in every

situation wherein an ethics complaint is dismissed for lack of

probable cause.

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

Medoff maliciously intended to injure RespondentÓs reputation

during the course of the mayoral race. The content and tone of

MedoffÓs emails to Respondent, and the blog entries he authored

for the pub lic at large to read, reveal a desire to impugn

RespondentÓs reputation . Medoff demonstrated a conscious

indifference to the truth or falsity of his allegat ions when he

failed to make any independent effort to verify any of the facts

in the ethics complaint s .

29 . Having proven the required elements as set forth in

s ection 112.317(7), by a preponderance of the evidence,

Respondent is entitled to an award of a ttorneyÓs fees and costs

for her defense against MedoffÓs complaint s and subsequent fees

and costs associated there with in the amount of $44,613.00 i n

attorneyÓs fees and $ 6,845 .55 in costs.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Commission enter a Final Order

granting the Petition for Costs and AttorneyÓs Fees in the

amounts noted above.

DONE AND ENTERED this 2 9 th day of August , 2011 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JESSICA E. VARN

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

t his 2 9 th day of August , 2011.

ENDNOTES

1 / Unless otherwise noted, all references in this Recommended

Order to Florida Sta tutes are to Florida Statutes (2010).

2 / There was conflicting testimony as to the content of this

conversation. Medoff recalls that at the time of this phone

conversation, Ms. Uria had also heard the rumor about

RespondentÓs alleged inappropriate conduct on September 24,

2010, but that she could not identify who had told her about the

alleged conduct. Ms. UriaÓs testimony is credible and

consist ent with the sworn statement she gave Investigator

Jackson .

COPIES FURNISHED :

Jeremy J. Kroll, Esquire

Bogenschutz, Dutko & Kroll, P.A.

Fort Lauderdale, Florida 33301

Robert W. Medoff

7480 Southwest 18 th Street

Plantation, Florida 33317

Kaye Starling, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Philip C. Claypool, General Counsel

Florida Commission on Ethics

3600 Maclay Boulevard, South Suite 201

Tallahassee, Florida 32312

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.