11-001587 Florida Elections Commission vs. Robert H. Sharkey Status: Closed DOAH Final Order on Thursday, July 28, 2011.

Summary: Respondent violated provisions of election laws; fine of $1,000 imposed due to mitigating factors.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ELECTIONS COMMISSION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 1587

)

ROBERT H. SHARKEY , )

)

Respondent . )

)

FINAL ORDER

Pursuant to notice t o all parties, a final hearing was

conducted in this case on June 23, 2011, by video

teleconferencing with sites in F ort Myers and Tallahassee,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings.

APPEARANC ES

For Petitioner: Eric M. Lipman, Esquire

Jay P . Buchanan, Qualified Representative

Florida Elections Commission

Collins Building, Suite 224

107 W est Gaines Street

Tallahassee, Florida 32399 - 1050

For Respondent: Stephe n Hunter Johnson, Esquire

Lydecker Diaz

1201 Brickell Avenue, Fifth Floor

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Robert H.

Sharkey ("Sharkey"), violated s ection 104.27 1 (2), Florida

Stat utes (2010), 1/ as alleged in Petitioner, Florida Elections

Commission 's ("Commission") , Or der of Probable Cause dated

February 21, 2011, and, if so, the amount of any fine that

should be imposed against Sharkey. Specifically, did Sharkey

act with actual m alice in publishing a defamatory statement

against an opponent during a political campaign?

PRELIMINARY STATEMENT

On February 15, 2011, an Order of Probable Cause was

entered by the Commission holding that Sharkey violated

chapter 106, Florida Statutes , by maliciously making or causing

to be made a false statement about his opponent in a political

race.

Sharkey filed a request for formal hearin g pursuant to

section 106.25(5) . The matter was assigned to the undersigned

for purposes of conducting the final hearing.

At the final hearing, the Commission called four witnesses:

Bernie Feliciano, qualifying officer for the Lee County

S upervisor of E lections; Sharkey; Alex Grantt; and Edward

Fitzgerald, fire commissioner in Bonita Springs. The

Commission's Exhi bits 1 through 13 were received and admitted

into evidence. Sharkey did not call any other witnesses .

Sharkey's E xhibits A and B were received and admitted into

evidence. Sharkey's E xhibit B is the T ranscript of a deposition

taken of Wayne Edsall, inclu ding numerous attachments. To the

extent the attachments are hearsay and were not verified,

corroborated or subject to a hearsay exception, they will not be

used to make a F inding of F act in this Final Order.

The parties advised that a transcript of the f inal hearing

would be ordered. The parties were given ten days from the date

the transcript was filed at the Division of Administrative

Hearings ("Division") to submit proposed final orders. The

Transcript was filed at the Division on July 11, 2011. Eac h

party timely submitted a proposed final order, and each was duly

considered in the preparation of this Final Order.

FINDINGS OF FACT

Based upon the evidence presented, the following F indings

of F act are made in this matter:

1. During the 2010 Florida general election period,

Sharkey was a candidate for f ire c ommissioner of the Bonita

Springs Fire Control and Rescue District, Seat 1. His opponent

in the political campaign was Edward Fitzgerald, the incumbent

f ire c ommissioner.

2. Sharkey is not a car eer politician and had never run

for public office prior to the 2010 general election. He had

run for private offices, but had no experience in a general or

primary public election process.

3. Sharkey had properly applied to be a candidate in the

elec tion and had received all requisite materials from the

supervisor of elections. The materials he received included a

Candidate and Campaign Treasurer Handbook, a step - by - step guide

to running a political campaign. The handbook included the

following prov ision:

A candidate may not, with actual malice,

make any false statement about an opposing

candidate.

4. During the course of the campaign, Sharkey issued two

emails to approximately 200 people he considered friends and

supporters. The entire texts of t he emails were as follows 2 / :

Sunday, August 22, 2010 at 8:11 p.m.

FISCAL RESPONSIBILITY; lets get you informed

regarding this issue. 2008 without BSFCRD

permission, Fitzgerald attends a three week

class at Harvard University pertaining to

Fire Education , you the "Citizen Tax Payer

of Bonita Springs paid for Fitz's trip,

including Air fare, Hotel, Meals, and

Harvard's fee for schooling a 75 year old

commissioner. Folks this is a flagrant

Abuse, and the other Fire Commissioners did

not know or approve of this, however they

all caved in after the fact to fund Fitz.

this opportunity. I wonder what this cost

the Residents of Bonita. Better yet, Fitz.

thought this was so good and easy he helped

the Fire Chief Kinsey to also attend and

cost the "CITIZEN TAX PA YERS TWICE". a few

months later. Next Ed Fitz goes to Paris

France with the Chief Kinsey and Asst Chief

Kraft.

Sunday, August 22, 2010 at 8:41 p.m.

The "CITIZEN TAX PAYERS OF BONITA

SPRINGS", WERE DUPED AGAIN!!! The three

Amigos Ed Fitzgerald, Chief Kinsey, and

Asst. Chief Kraft flew to Paris France to

attend an International Fire Prevention

Seminar. Can you imagine the gall, and the

irresponsible decision of these three. Two

of them are staff, the other is your fire

commissioner, chairman. What a model for

others! I could understand if Chicago,

Miami, Atlanta, New York, Boston, Cleveland,

Los Angeles was in attendance, but Fitz and

company, this is outrageous, and complete

Abuse of the "CITIZEN TAX PAYERS OF BONITA

SPRINGS". Please Mr. Mayor, Cit y

Councilmen, pay attention to this. Lets

address this abuse of our citizens. this is

embarrassing.!! Airfare, Hotel, Meals, for

Three days. for a seminar that should

include major cities, not Fitz and company,

but the "CITIZEN TAX PAYERS OF BONITA", ge t

hosed again. That's enough!! Vote this

clown out of office, Put Responsible People

on the Fire Commission, people who will

always represent the "CITIZEN TAX PAYERS OF

BONITA SPRINGS". There is no other name for

this ABUSE!! Why did the Current Fire

C ommissioners endorse this?? Fitz'z co

commissioners, They need to leave as well!!

Vote them all out, and maybe we can fix the

future of the Bonita Springs Fire Control

and Rescue District.!!!!!!

5. Sharkey sent out these two emails in an effort to

gar ner support from his voter base and to express his

understanding of at least one of the issues in the campaign,

i.e., financial responsibility by the f ire c ommissioners. The

emails went to over 200 people, but Sharkey d oes n o t know at

th is time exactly wh o received the emails.

6. Sharkey reportedly got the information contained in his

emails from a person he had known from church, Alex Grantt.

Sharkey also knew Grantt because Sharkey was a customer of

Grantt's pest control service. Sharkey described hi mself and

Grantt as social friends , who had known each other for over

20 years. Grantt described Sharkey as someone he knew a little,

but that they were not social friends. Sharkey believed Grantt

was an exemplary person who would not intentionally tell a lie .

7. Grantt often attended fire commission meetings , because

he was interested in what the commission was doing. He would

not always listen attentively when he was at a meeting. Grantt

remembers discussing Fitzgerald's trip to Harvard with Sharke y

at some point, perhaps in late July or early August. As to

whether he talked to Sharkey before the emails were sent on

August 22, 2010, Grantt said, "I think I did; I may have." Upon

further questioning by Sharkey's attorney at final hearing,

Grantt sa id, "Yes" [I did tell Sharkey that Fitzgerald had been

reimbursed for the trip to Harvard before Sharkey sent his

email]. Grantt had been in attendance at a fire commission

board meeting at some point in time and remembered Fitzgerald

asking for reimburse ment for the Harvard class. He mistakenly

remembered that Fitzgerald had been reimbursed for the class

when , in fact , he had not.

8. Grantt also remembered mentioning something about the

Paris trip to Sharkey. Grantt had heard discussion about the

trip during another board meeting and is certain that the trip

was discussed. He mentioned to Sharkey at some point in time

that the matter had come up during a commission meeting. There

is no persuasive evidence that Grantt told Sharkey , prior to the

two em ails being sent , that Fitzgerald had , in fact , gone to

Paris. Grantt could only say that there had been mention of the

trip during a meeting.

9. Grantt was, as of the date of final hearing, very sure

that Fitzgerald and the fire chief made the trip to Paris. His

belief is based on a review , after the emails had been sent , of

some past minutes from commission meetings. There is absolutely

no competent evidence to support his contention, but Grantt is

still sure Fitzgerald made the trip at taxpayer's e xpense. 3 /

Fitzgerald testified that he had never been to France at

taxpayer expense or otherwise. His testimony in that regard is

credible. Grantt, on the other hand, seems very confused as to

the facts.

10. There was also another alleged source relied upon by

Sharkey concerning the statements in his emails. At around the

time he sent out the emails, Sharkey spoke with Wayne Edsall,

another f ire c ommissioner. Neither Sharkey , nor Edsall , can pin

down the exact dates and times they talked, but it was o n or

near the date of the emails. Sharkey remembers it being after

the emails were sent; Edsall thinks it might have been before ,

but that it could have been after.

11. Edsall remembers meeting Sharkey only once for a

moment, just long enough for introdu ctions. Edsall remembers

talking to Sharkey on the telephone other times and exchanging

at least one email. Sharkey does not remember any telephone

conversations with Edsall. Edsall apparently provided Sharkey

with some hints or advice about running a p olitical campaign.

12. As for the subject matter of the emails, Edsall was

aware of the Harvard class that Fitzgerald had taken, but

remembers telling Sharkey that Fitzgerald paid for the class out

of his own pocket. Edsall has a vague memory of the Pari s trip,

but cannot affirm that he had ever heard more than rumors about

such a trip. He would have been very surprised if any

commissioner had been allowed to take such a trip.

13. It is impossible to ascertain from the evidence

whether Edsall and Sharke y had any meaningful or substantive

conversations concerning the alleged Fitzgerald trips , and, if

so, when such conversations may have occurred.

14. After posting his emails on August 22, 2010, Sharkey

asked Grantt to do some further investigation so a s to verify

the statements that had been made. Sharkey also purportedly had

a later conversation with Edsall concerning the veracity of the

allegations he had levied against Fitzgerald.

15. Upon further consideration and investigation, Sharkey

came to th e conclusion that the statements he had made about

Fitzgerald were false. Sharkey was contacted by an attorney

representing Fitzgerald who demanded a retraction of the

statements. The demand was set forth in a letter dated

August 30, 2010. On September 3, 2010, Sharkey issued a

retraction, acknowledging that the statements he had made in his

emails were not true. The retraction was sent to local

newspapers for distribution. The retraction was not addressed

to anyone in particular and did not mention Fi tzgerald or the

fire chief by name.

16. Later, Sharkey coincidentally encountered Fitzgerald

at a restaurant and apologized in person for the erroneous

statements he had made. Nonetheless, Fitzgerald was hurt and

embarrassed by the emails and was not wil ling to accept

Sharkey's apology.

17. It is clear that Sharkey did not independently attempt

to verify the information he received from Grantt prior to

publishing his emails. Sharkey relied entirely on Grantt's

statements, nothing more. Sharkey knew , or should have known ,

that the allegations were serious and would potentially inflict

egregious harm on Fitzgerald's reputation if published.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and subject m atter of this

proceeding pursuant to sections 1 20.57(1) and 106.25(5), Florida

Statutes.

19. The burden of proof is on the party asserting the

affirmative of the issue in a proceeding , unless there is a

statutory directive to the contrary. The Commissi on has the

burden of proof in this proceeding. Dep't of Banking & Fin. v .

Osborne Stern and Co. , 670 So. 2d 932, 934 (Fla. 1996); Dep't of

Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981);

and Balino v. Dep't of HRS , 348 So. 2d 349 (Fla. 1s t DCA 1977).

20. In this case, the Commission must prove by clear and

convincing evidence that Sharkey is in violation of the

provisions of section 104.271(2), which prohibit a candidate in

an election from making or causing to be made false statements

ab out another candidate. Section 104.271(2) s tates :

Any candidate who, in a primary election or

other election, with actual malice makes or

causes to be made any statement about an

opposing candidate which is false is guilty

of a violation of this code . . . [T]he

commission shall assess a civil penalty of

up to $5,000 against any candidate found in

violation of this subsection[.]

21. Clear and convincing evidence is an intermediate

standard of proof which is more than the "preponderance of the

evidence" standard used in most civil cases , but less than the

"beyond a reasonable doubt" standard used in criminal cases.

See State v. Graham , 240 So. 2d 486 (Fla. 2d DCA 1970). Clear

and convincing evidence has been defined as evidence which:

[ R ] equires that t he 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 s uch 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

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

v. Walker , 429 So. 2 d 797, 800 (Fla. 4th DCA 1983) (citations

omitted).

22. The Commission must prove not only that Sharkey

violated a provision of the election laws, but also that the act

or omission was "willful." See § 106.25(3), Fla. Stat.; Diaz de

la Portilla v. Fla. E lections Comm'n , 857 So. 2d 913, 916 - 917

(Fla. 3rd DCA 2003).

23. In the present case, defamation is being alleged by a

public official. The commission must , therefore , prove that the

statement was made with actual malice, i.e., it was made "with

knowled ge that it was false or with reckless disregard of

whether it was false or not." New York Times Co. v. Sullivan ,

376 U.S. 254, 280 (1964). Sharkey cites to Grad v. Copeland ,

280 So. 2d 461 (Fla. 4th DCA 197 3 ), which states in the

dissenting opinion by Ju dge Salfi: "Actual malice is defined as

the publishing party knowing the falsity or a showing that he

acted in such a way as to demonstrate his reckless disregard for

whether it was true or not. In other words, simply being

negligent or grossly negligent in failing to ascertain the

falsity of something will not meet the test of actual malice."

Id. at 468. That opinion by Judge Salfi does not alter the New

York Times definition of actual malice.

24. Reckless disregard in defamation cases is not measured

by whether a reasonably prudent man would have investigated

before publishing the document. The measure is whether a

respondent "entertained serious doubts as to the truth of his

publication." St. Amant v. Thompson , 390 U.S. 727, 731 (1968).

Disseminat ion of a statement , even in the face of serious

doubts , equates to reckless disregard. If a person publishes

information received from a source and "there are obvious

reasons to doubt the veracity of the informant or the accuracy

of his reports , " then rec kless disregard exists. Id. at 732.

25. Sharkey acted with reckless disregard when relying

solely upon casual conversations with a person with whom he did

not have a close relationship -- he published an email to over

200 people excoriating his opponent. The allegations are of

such a nature that any prudent person would have verified the

facts prior to publication, especially if that person was a

candidate in the midst of a political campaign.

26. The fact that Sharkey later retracted his defamatory

stat ement does not change the fact that he acted improperly. As

stated in Gertz v. Robert Welch , Inc. , 418 U.S. 323, 344 n.9

(1974) , " a n opportunity for rebuttal seldom suffices to undo

harm of defamatory falsehood. Indeed, the law of defamation is

rooted in our experience that the truth rarely catches up with a

lie." Or, as it has been said, "You cannot un - ring a bell once

it has been rung." Anonymous.

27. The Commission has, by clear and convincing evidence,

proven that Sharkey acted with reckless disr egard when he issued

two emails to the public and made false statements about

Fitzgerald.

28. Section 106.265 was amended by the Florida Legislature

and now provides in pertinent part:

(1) The commission or, in cases referred

to the Division of Admin istrative Hearings

pursuant to s. 106.25(5), the administrative

law judge is authorized upon the finding of

a violation of this chapter or chapter 104

to impose civil penalties in the form of

fines not to exceed $1,000 per count, or, if

applicable, to impo se a civil penalty as

provided in s. 104.271 or s. 106.19.

(2) In determining the amount of such

civil penalties, the commission or

administrative law judge shall consider,

among other mitigating and aggravating

circumstances:

(a) The gravity of the act or omission;

(b) Any previous history of similar acts

or omissions;

(c) The appropriateness of such penalty

to the financial resources of the

person . . .; and

(d) Whether the person . . . has shown

good faith in attempting to compl y with the

provisions of this chapter or chapter 104.

29. The publication of a false statement is serious and is

deserving of a substantial fine. Section 104.271(2) provides

that, "notwithstanding any other provision of law, the

commission shall assess a civil penalty of up to $5,000 against

any candidate found in violation of this subsection." Thus, a

fine up to $5,000 could be imposed in this case.

30. However, there are mitigating factors to be

considered. First, Sharkey has no prior history of sim ilar acts

or omissions. Second, there was no evidence presented that

Sharkey has the financial resources available to pay a

substantial fine. Third, Sharkey's retraction and apology to

Fitzgerald show at least some good faith effort to comply with

the pr ovisions of the election laws.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law , it is hereby

ORDERED that:

1. Petitioner, Robert H. Sharkey , violated the provisions

of section 104.271(2) .

2. A civil penalty in the sum of $1,00 0 is assessed,

payable to Respondent, Florida Elections Commission, within

30 days of the entry of this Final Order.

DONE AND ORDERED this 28th day of July , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 H earings

this 28th day of July , 2011 .

ENDNOTE S

1/ Unless stated specifically otherwise herein, all references

to the Florida Statutes shall be to the 2010 version.

2 / The texts of the emails are set forth exactly as they

appeared, with all spelling, g rammar and syntax errors in place.

3 / There was a discussion at a board meeting concerning an

upcoming international fire conference, but the meeting was held

in Palm Beach County, Florida, not Europe.

COPIES FURNISHED :

Rosanna Catalano, Executive Dir ector

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

Patricia Rushing, Clerk

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

Eric M. Lipman, Esquire

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

Stephen Hunter Johnson, Esquire

Lydecker Diaz

1201 Brickell Avenue, Fifth Floor

Miami, Florida 33131

Jay P . Buchan an, Qualified Representative

Florida Elections Commission

Collins Building, Suite 224

107 West Gaines Street

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicia l review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative Appeal with the

agency clerk of the Divisi on of Administrative Hearings and a

second copy, accompanied by filing fees prescribed by law, with

the District Court of Appeal, First District, or with the

District Court of Appeal in the appellate district where the

party resides. The Notice of Adminis trative Appeal must be

filed within 30 days of rendition of the order to be reviewed.