16-005246FE Charles Ericksen, Jr. vs. Kimberle B. Weeks Status: Closed Recommended Order on Thursday, September 21, 2017.

Summary: Petitioner proved by clear and convincing evidence that Respondent's complaint was filed against Petitioner with a malicious intent to injure Petitioner's reputation by filing a complaint with false allegations which were material.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES ERICKSEN, JR.,

Petitioner,

vs. Case No. 16 - 5246FE

KIMBERLE B. WEEKS,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly noticed final hearing was held in this matter on

May 16, 2017, at the Division of Administrative Hearings in

Tallahassee, Florida, before Administrative Law Judge

Suzanne Van Wyk.

APPEARANCES

For Petitioner: Albert T. Gimbel, Esquire

Mark Herron , Esquire

Messer Caparello, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, F lorida 32317

Albert J. Hadeed, Esquire

Flagler County Board of

County Commissioners

1769 East Moody Boulevard, Building 2

Bunnell, Florida 32110

For Respondent: No Appearance

STATEMENT OF THE ISSUE S

Whether Petitioner is entitled to an award of costs and

attorneysÓ fees pursuant to section 112.313(7), Florida

Statutes, and Florida Administrative Code Rule 34 - 5.0291; and,

if so, in wha t amount.

PRELIMINARY STATEMENT

On September 13, 2016, the Florida Commission on Ethics

(ÐCommissionÑ) referred five separate petitions seeking costs

and attorneysÓ fees pursuant to section 112.313(7) and rule

34 - 5.0291, requesting the Division of Adminis trative Hearings

(ÐDivisionÑ) assign an Administrative Law Judge to conduct a

formal administrative hearing and to prepare a recommended

order. Upon receipt of the referrals from the Commission, the

Division opened five separate cases which were referred to the

undersigned. After reviewing the records forwarded by the

Commission, the undersigned, sua sponte , entered an Order

consolidating the five cases. 1/

Counsel for Petitioners filed responses to the Initial

Order on behalf of each Petitioner and sugges ted that the

hearing be held in Tallahassee. 2/ Following is a procedural

history of the consolidated cases.

Respondent Mark Richter, Jr. (ÐRichter Jr.Ñ), did not file

a response to the Initial Order. 3/ In their response to Case

Nos. 16 - 5244FE and 16 - 5246 FE, counsel for Petitioners outlined

their unsuccessful attempts to contact Richter Jr. Counsel for

Petitioners indicated contact was made by telephone with Richter

Jr.Ós father, Mark Richter, Sr. (ÐRichter Sr.Ñ). When asked to

provide contact informatio n for his son, Richter Sr. advised

that he had none. When then asked to forward the materials to

his son, as this was an important matter, Richter Sr. reiterated

that he had no contact information on his son and abruptly ended

the phone call.

Respondent K imberle Weeks (ÐWeeksÑ) filed a response to the

Initial Order in Case Nos. 16 - 5246FE and 16 - 5247 F E, in which she

requested that the hearing take place in Orlando, Florida, but

otherwise indicated that she would be Ðunavailable for any dates

and times until a pending legal matter is resolved or until

authorized by her legal counsel[.]Ñ

Respondent Dennis McDonald (ÐMcDonaldÑ) filed a response to

the Initial Order in Case No. 16 - 5248FE, in which he suggested

the hearing be held in Central Florida and that he w ould be

available for hearing on various dates, including December 1,

2016 through December 19, 2016.

Following a telephonic status conference on October 5,

2016, at which counsel for Petitioners and McDonald participated

and discussed scheduling issues, t he undersigned entered a

Notice of Hearing on October 6, 2016, which set the final

hearing for December 12 through 16, 2016, in Tallahassee. 4/

On October 27, 2016, Petitioners served initial discovery

requests on Respondents. On December 2, 2016, Petition ers filed

a motion to continue the hearing because Respondents failed to

respond to PetitionersÓ discovery. Counsel for Petitioners

indicated that he had been unable to contact Richter Jr., Weeks,

or McDonald to determine the status of their responses to the

discovery. By Order entered December 7, 2016, after finding

good cause existed to continue the hearing, the undersigned

cancelled the hearing scheduled for December 12 through 16,

2016, and rescheduled the final hearing for March 6 through 9,

2017.

On December 22, 2016, counsel for Petitioners filed a

motion to compel responses to the unanswered interrogatories and

requests to produce which were propounded on October 27, 2016.

On January 6, 2017, the undersigned scheduled a telephonic

hearing on Petit ionersÓ motion to compel for January 20, 2017.

Counsel for Petitioners and Respondents Weeks and McDonald

participated in the telephonic hearing during which the

undersigned informed the participating Respondents of the

consequences and implications of fa ilure to respond to

PetitionersÓ discovery requests. By Order dated January 20,

2017, the undersigned granted PetitionersÓ motion to compel and

ordered Respondents to serve answers to PetitionersÓ First Set

of Interrogatories, and to produce documents in response to

PetitionersÓ First Request for Production of Documents on or

before January 30, 2017. 5 /

Petitioners filed a second motion for continuance on

February 8, 2017. The motion was based on the failure of

Richter Jr. and Weeks to provide responses to PetitionersÓ

pending discovery, despite the prior Order granting the motion

to compel, and on the failure of McDonald to provide sufficient

responses to the pending discovery. In that motion, Petitioners

noted that they had served requests for admissions on each of

the Respondents on February 2, 2017, and that they intended to

depose each of the Respondents before the final hearing. 6 /

By Order entered February 16, 2017, the undersigned

cancelled the hearing scheduled for March 6 through 9, 2017, and

order ed each party to advise, in writing, no later than March 3,

2017, of all dates on which they were available for rescheduling

the final hearing in April 2017. Richter Jr. filed no response.

Weeks filed a response stating that because of other obligations

for ÐApril 2017 through May 27, 2017, [she] will not be

available until May 28 th through May 31 st 2017.Ñ McDonald

indicated that he was available for several days in both April

and May of 2017. Petitioners likewise indicated they were

available for sever al days in both April and May of 2017.

By Order dated March 23, 2017, the undersigned rescheduled

the final hearing for May 15 through 19, 2017, noting:

On March 2, 2017, Respondent Weeks filed a

response indicating her unavailability the

entire month of April 2017, and through

May 27, 2017. Respondent WeeksÓ notice of

unavailability for almost two months is

unacceptable. On March 3 and March 6, 2017,

Petitioner and Respondent McDonald,

respectively, filed notices of available

dates in April and May 2017 . Only one set

of dates, April 4 through 7, 2017, were

common to both Petitioners and Respondent

McDonald.

The undersigned has made numerous attempts

to reach the parties to schedule a telephone

conference to coordinate a mutually -

agreeable date to resch edule the hearing in

this matter. Telephone messages to

Respondent McDonald have not been returned,

and the telephone number provided by

Respondent Weeks (which was confirmed by her

on a previous telephone conference), rings

incessantly but remains unansw ered. No

voice mail or other message service is

provided.

With much effort on behalf of Division

staff, the undersigned has identified dates

on which the Petitioners are available and

which overlap with dates identified as

available for Respondent McDona ld.

On February 14, 2017, counsel for Petitioners informed the

undersigned of the death of Petitioner Frank Meeker and moved

to substitute his wife, Debra Meeker, as surviving spouse and

sole beneficiary, in these proceedings. By Order entered

February 28, 2017, the undersigned granted the motion and

ordered that the style of this cause be amended to substitute

Debra R. Meeker for Frank J. Meeker, deceased.

On March 2, 2017, McDonald filed a motion to dismiss,

asserting that he was not afforded due proce ss by the action of

the Commission in its referral of the matter to the Division.

By Orders entered March 7, 2017 , and March 8, 2017 ( Ð Amended

Order Ñ ), the undersigned denied McDonaldÓs motion to dismiss.

On March 27, 2017, Petitioners filed a motion to p ermit,

post hoc, PetitionersÓ filing of Requests for Admission on

February 2, 2017, which exceeded the number permitted by the

Florida Rules of Civil Procedure, and to deem all unanswered

Request for Admissions as having been admitted. In support of

the m otion, Petitioners stated that Requests for Admissions

were served by U.S. Mail to: (1) mailing addresses that were

confirmed on the record by Respondents Weeks and McDonald

during prior proceedings held in this matter; (2) addresses

shown and sworn to as true and correct by each of the

Respondents on the original complaint filed with the Commission

in this matter; and (3) via e - mail addresses confirmed by

Respondents Weeks and McDonald during prior hearings in this

matter. By Order dated April 11, 2017, the undersigned granted

the motion, noting:

In the Motion, Petitioners request the

undersigned to deem admitted the statements

in PetitionersÓ Request for Admissions

served Respondents on February 2, 2017

(Request), to which no response has been

filed.

Pursuant to Florida Rule of Civil Procedure

1.370(a), Respondents were under an

obligation to serve written responses or

objections to the Request within 30 days of

service, or by March 6, 2017. By operation

of the rule, RespondentsÓ failure to timely

res pond to the Request renders the

statements admitted. The undersigned is

mindful that Respondents are unrepresented

and the penalty is harsh. However, the

undersigned has previously instructed

Respondents Weeks and McDonald of the duty

to respond to disco very and the penalties

for failure to comply. [endnote omitted]

In the Motion, Petitioners also request the

undersigned approved [sic], post hoc,

Request for Admissions that exceed the

number set forth in the rule. The rule

authorizes the undersigned t o allow a party

to exceed the limit on number of requests

Ðon motion and notice and for good cause.Ñ

Fla. R. Civ. P. 1.370(a). Petitioners

served the motion on March 27, 2017, and

Respondents have had notice of same since

that date, but not filed any obj ection.

Good cause for exceeding the limit has been

established by RespondentsÓ failure to

cooperate in discovery in this matter, which

has resulted in significant delays and

hampered PetitionersÓ efforts to establish

their case by other means.

On May 2, 2017, Petitioners filed a motion in limine or,

alternatively, a motion for sanctions restricting Respondents

from introducing testimony and evidence at trial not previously

disclosed to Petitioners. In support of the motion,

Petitioners set forth (1) the failure of Respondents to respond

to prior discovery requests; (2) the failure of Respondents to

respond to the requests for admissions; and (3) the refusal of

Respondents and others associated with them to participate in

properly noticed depositions. 7 / By Order dated May 10, 2017,

the undersigned granted the motion and ordered that:

Respondents are prohibited from presenting

any testimony or documentary evidence at

the final hearing which would have been

disclosed, produced, discussed, or otherwise

revea led in response to PetitionersÓ

discovery requests, or which would

contradict any of the Requests for Admission

which have been deemed admitted by the

undersignedÓs Order dated April 11, 2017.

On May 9, 2017, Weeks filed a motion to change venue of

the fi nal hearing from Tallahassee (Leon County) to Bunnell

(Flagler County). By Order dated May 10, 2017, the undersigned

denied Weeks motion to change venue.

On May 11, 2017, McDonald filed a motion to dismiss the

petition against him in Case No. 16 - 5248FE on the basis that

the issues regarding costs and attorneysÓ fees in this case

have already been decided by the First District Court of Appeal

in Hadeed et al. v. Commission on Ethics , 208 So. 3d 782 (Fla.

1st DCA 2016 ). By Order dated May 11, 2017, the unde rsigned

denied McDonaldÓs motion to dismiss.

On May 11, 2017, Weeks filed a motion to dismiss the

petitions filed against her asserting Ðqualified immunity.Ñ 8 /

By Order entered May 16, 2017, the undersigned denied WeeksÓ

motion to dismiss based on Ðqualif ied immunity.Ñ

On Friday, May 12, 2017, Weeks filed a motion to appear

telephonically at the hearing scheduled to commence the

following Monday, May 15, 2017. By Order dated May 15, 2017,

the undersigned denied Weeks motion to appear telephonically.

The f inal hearing commenced as scheduled. None of the

Respondents appeared at the hearing. Petitioners presented the

testimony of the following witnesses: Debra Meeker, the widow

of former Flagler County Commissioner Frank Meeker (ÐMeekerÑ)

and Petitioner in Case No. 16 - 5245 FE; Albert J. Hadeed, Flagler

County Attorney and Petitioner in Case No. 16 - 5247FE; Charles

Ericksen, Jr., Flagler County Commissioner and Petitioner in

Case No. 16 - 5246FE; Nate McLaughlin, Flagler County

Commissioner and Petitioner in Cas e No. 16 - 5244FE; and George

Hanns, former Flagler County Commissioner and Petitioner in

Case No. 16 - 5248FE. With respect to costs and attorneysÓ fees,

Petitioners presented the testimony of Mr. Hadeed; Mark Herron,

counsel for Petitioners; and Michael P. Donaldson as an expert

witness on attorneysÓ fees. PetitionersÓ Exhibits P - 1

through P - 97 were admitted into evidence.

After the conclusion of the formal hearing, Petitioners

filed a motion to re - open the record to permit submission of

two additional exhi bits regarding the underlying facts relative

to McDonaldÓs motion to dismiss the petition for costs and

attorneysÓ fees in Case No. 16 - 5248FE. No objection or other

response was filed by McDonald. By Order dated June 1, 2017,

the undersigned granted the motion to re - open the record and

PetitionersÓ Exhibits P - 98 and P - 99 were admitted.

On July 31, 2017, Petitioner moved to introduce

supplemental exhibits on costs and attorney s Ó fees incurred in

pursuing this matter after conclusion of the final hearing.

No objection or other response was filed by any of the

Respondents. The motions were granted and PetitionerÓs

Exhibits P - 100C, P - 101, and P - 102 were admitted in evidence.

Counsel for Petitioners asked to submit a proposed

recommended order within 30 days of the transcript being filed

with the Division. A two - volume Transcript was filed with the

Division on June 30, 2017. Petitioner timely filed a Proposed

Recommended Order, which has been taken into consideration in

preparing this Recommended Order.

Co unsel for Petitioners filed, with the concurrence of the

Commission, a motion on July 12, 2017, requesting that separate

proposed recommended orders be filed so that separate

recommended orders can be issued. By Order dated July 13,

2017, the undersigned severed these cases. Accordingly,

separate Recommended Orders have been rendered in each case.

FINDING S OF FACT

Ethics Complaint 14 - 232

1. On December 4, 2014, the Commission received a

complaint against Charles Ericksen, Jr. (ÐEricksenÑ) , filed by

We eks , which alleged that Ericksen violated FloridaÓs election

laws, the Government - in - the - Sunshine Law (ÐSunshine LawÑ), and

FloridaÓs Code of Ethics for Public Officers and Employees (the

ÐEthics CodeÑ).

2. Specific allegations in the complaint referenced a

ÐwhisperedÑ conversation between County Attorney Hadeed and

Ericksen, who was both a Flagler County Commissioner and an

alternate Flagler County Canvassing Board (ÐCanvassing BoardÑ)

member at the time, outside of a Canvassing Board meeting. The

compla int alleged:

The actions and behaviors of some county

commissioners and their staff demonstrate

some have used their position for their

personal gain and for the personal gain of

their co - commissioners and employers. Such

activities as described herein c ould allow

voters to also believe some persons who are

privy to information, change the outcome of

elections when information is prematurely

revealed. The public should be able to

trust those who are responsible for

canvassing our elections. Because the

county attorney and county commissioners

remain hushed on behavior that has been

identified, it is unknown what else may have

transpired that is unknown, and if such

occurrences will happen again knowing they

will be kept hidden and unaddressed. It is

als o unknown how many other persons the

county attorney Al Hadeed and county

commissioners have told about such incidents

that give the public opinion that the

Supervisor of Elections condones this type

of activity, and such activity is common.

It is believe d candidates may receive

support when it is known if they are elected

and serve on the canvassing board that such

occurrences will continue to take place to

manipulate elections.

3. The complaint also alleged that:

On October 17th, 2014, it was requested that

alternate canvassing board member Charles

Ericksen Jr. step down as an alternate

canvassing board member because it became

known he contributed $50 to the re - election

campaign of county commissioner Frank Meeker

and in doing so, could allow the appea rance

of impropriety. However, he refused to do

so at that time, and he failed to reveal he

also attended a fund raising event for

candidate, fellow County Commissioner Frank

Meeker. It was not known by the supervisor

of elections when Commissioner Erick sen was

asked to step down from the canvassing board

on October 17th, 2014, that he attended a

fundraiser for candidate Meeker, which would

have in itself disqualified him from serving

as a canvassing board as an alternate.

Charles Ericksen Jr. should hav e been

transparent and forthcoming with his

involvement in Commissioner Frank Meeker's

re - election campaign, and he should not have

served on the canvassing board when he

wasn't eligible. He also should have relied

on his training materials provided to hi m at

the state workshop he attended, which it

appears he failed to do. County attorney

Hadeed should have advised this county

commissioner he was not eligible to serve on

the canvassing board and instead he stated

financially contributing to a candidate's

campaign docs not disqualify a canvassing

board member from serving. Even after that

was stated, county attorney Hadeed did not

encourage commissioner [sic] Ericksen to

step down to avoid the appearance of

impropriety.

4. The complaint further alleged :

Therefore, it is believed they knowingly and

willingly violated the provisions of the

law. In fact , Commissioner Charles

Ericksen Jr. was asked to step down from the

canvassing board because he contributed S50

to the campaign of candidate Frank Meeker.

Neither Charles Ericksen Jr. nor anyone else

revealed the fact that he also attended a

fund raising event; the supervisor of

elections revealed that fact at a later

canvassing board meeting.

And:

Though Charles Ericksen Jr . refused to step

down as an alternate from the county

canvassing board during the scheduled

October 17, 2014 canvassing board meeting

when it was requested that he do so, he did

resign as alternate canvassing board member

at the October 20, 2014 Board of County

Commission meeting.

5. The complaint was reviewed by the Executive Director

of the Commission who found the complaint to be legally

sufficient to warrant investigation:

The complaint alleges that [Ericksen]

engaged in a ÐwhisperingÑ exchange at a

canvassing board meeting or otherwise was

involved in discussions which may not have

been in compliance with the Sunshine Law,

that he had an unlawful connection as a

canvassing board member to a candidate in

the 2014 election, that the County Attorney

may have been placed as attorne y for the

canvassing board, and that he was involved

in other or related conduct, and that this

may have been for the purpose of benefiting

particular candidates or others. This

indicates possible violation of Section

112.313(6), Florida Statutes.

6. As a result, the complaint was determined to be legally

sufficient and the investigative staff of the Commission was

directed to Ðconduct a preliminary investigation of this

complaint for a probable cause determination of whether

[Ericksen] has violated se ction 112.313(6), Florida Statutes, as

set forth above.Ñ

The CommissionÓs Investigation

7. The complaint was investigated by Commission

Investigator Kavis Wade. On February 19, 2016, the

Commission issued its Report of Investigation, which found, as

follows:

a. Florida law provides that a county canvassing board

shall be comprised of the Supervisor of Elections, a County

Court Judge, and the Chair of the County Commission.

Additionally, an alternate member must be appointed by the Chair

of the Count y Commission. The Canvassing Board for the 2014

Election was made up of Judge Melissa Moore - Stens, County

Commission Chairman George Hanns (ÐCommissioner HannsÑ), and

then - Supervisor of Elections Weeks. Initially, Ericksen was the

alternate member of the Canvassing Board.

b. Minutes from the October 20 , 2014 Flagler County

Commission (ÐCounty CommissionÑ) meeting indicate that during

the ÐCommission Reports/CommentsÑ portion of the meeting there

was a discussion regarding who had the authority to appoint the

Canvassing Board attorney, but no official action was taken at

that time.

c. The only members of the Canvassing Board present at the

October 20 , 2014 meeting of the County Commission were

Commissioner Hanns and Ericksen.

d. Weeks claimed that Ericks en refused to resign his

position as an alternate member of the Canvassing Board at its

October 17, 2014 meeting when it was discovered that he

contributed to Meeker's reelection campaign.

e. Minutes from the October 17, 2014 Canvassing Board

meeting re flect that Ericksen did not attend that meeting.

f. Minutes from the October 20, 2014 County Commission

meeting reflect a discussion regarding EricksenÓs contribution

to MeekerÓs campaign and that Ericksen resigned as an alternate

member of the Canvassing Board at that time. The Commission

then voted to appoint Commissioner Barbara Revels as the

alternate Canvassing Board member.

g. All discussions by the County Commission regarding the

Flagler County Canvassing Board took place during the

ÐCommissioner Reports/CommentsÑ or ÐCommission ActionÑ portion

of duly - noticed County Commission meetings.

h. When asked about her allegation that Ericksen was

involved in other or related conduct, apparently for the benefit

of particular candidates or others, Weeks in dicated that she had

no information regarding that allegation.

Commission on Ethics AdvocateÓs Recommendation

8. On March 7, 2016, Commission Advocate Elizabeth L.

Miller recommended that there was Ðno probable causeÑ to believe

that Ericksen violated se ction 112.313(6), by participating in

discussions which may have been in violation of the Sunshine Law

or other related conduct to place the County Attorney as the

attorney for the Canvassing Board against the wishes of the

Supervisor of Elections, by havi ng an unlawful connection as a

Canvassing Board member to a candidate during the election, or

by participating in other or related conduct for the benefit of

particular candidates or others.

9. On April 20, 2016, the Commission issued its Public

Report d ismissing WeeksÓ complaint against Ericksen for lack of

probable cause.

WeeksÓ Knowledge of the Falsity of Her Sworn Allegations

10. Weeks filed a sworn complaint against Ericksen. When

signing the complaint, Weeks executed an oath that Ðthe facts

set forth in the complaint were true and correct . . . .Ñ

11. When she filed her complaint against Ericksen, Weeks

had access to the video of the County Commission meeting of

September 15, 2014, posted on the CountyÓs website and the

published minutes of t hat meeting, also available online or by

request. Similarly, Weeks had access to the minutes of the

Canvassing Board of which she was a member. Weeks was present

at both the September 12, 2014 and the October 17, 2014 meetings

of the Canvassing Board.

12 . Video of the 2014 meetings of the County Commission

are archived for public viewing on the Flagler County website.

Minutes of all County Commission meetings are public record

available to the public on the Flagler Clerk of CourtÓs website

and upon requ est. Weeks is familiar with the process of

obtaining minutes of County Commission meetings by request as

evidenced by her public record requests made during the pendency

of this proceeding before the Division.

13. Neither the posted video nor the minutes of the

September 15, 2014 meeting of the County Commission indicate

that any action was taken by consensus vote or by any other vote

regarding who had the authority to appoint the attorney for the

Canvassing Board.

14. No vote was taken by the County Com mission to

designate the County Attorney as the attorney for the Canvassing

Board.

15. To the contrary, the County Commission determined that

it was a matter for the Canvassing Board to select its own

attorney.

16. Contrary to WeeksÓ allegation that Eric ksen refused to

resign his position as an alternate member of the Canvassing

Board at its October 17, 2014 meeting, the official minutes of

that meeting indicate that Ericksen was not even present at that

meeting.

17. When asked by the CommissionÓs invest igator whether

Ericksen was involved in other or related conduct, for the

benefit of particular candidates or others, Weeks indicated that

she had no information regarding that allegation.

18. The allegations in WeeksÓ complaint against Ericksen ,

which th e Commission found material to investigate, were known

by Weeks to be false, or filed by Weeks with reckless disregard

for whether they were true or false.

Malicious Intent to Injure Reputation

19. Whether the claims against public officials were

Ðmoti vated by the desire to [impugn character and injure

reputation],Ñ is a question of fact. Brown v. State, CommÓn on

Ethics , 969 So. 2d 553, 555 (Fla. 1st DCA 2007).

20. The evidence adduced at the hearing established that

Weeks worked in concert with othe r individuals to maliciously

injure the reputation of Ericksen by filing complaints

containing false allegations material to the Ethics Code with

the Commission and other agencies.

21. It is also noteworthy that evidence established that

Weeks targeted E ricksen with an animus to humiliate him during

a public Canvassing Board meeting at which a sizable number of

the public were in attendance. She embarrassed him by loudly

instructing one of her female staff members to accompany him to

the restroom during the canvassing of the absentee ballots.

All action stopped as the public watched Ericksen proceed to

the restroom with the staff person walking along side of him.

Upon his exit and return to the canvassing activities, all eyes

were fixed on his return an d Weeks explained to the public that

she feared he was going to illegally access ballots in a room

further down the hall that contained canvassed ballots in a

locked vault.

22. Moreover, one of WeeksÓ supporters, John Ruffalo

(ÐRuffaloÑ), who had also f iled complaints against Flagler

County officials, touched absentee ballots just before Weeks

had her staff member escort Ericksen to the restroom. Ruffalo

was not a member of the Canvassing Board or a Supervisor of

Elections staffer. It was unlawful for Ruffalo to handle the

ballots, but Weeks did not admonish him although she

demonstrably accused Ericksen publicly of possibly having

corrupt motives.

23. Ruffalo was a member of a group, formed in 2009 or

2010, formally known as the Ronald Regan Republic an

Association, informally as the ÐTriple Rs.Ñ Members of the

group included Ruffalo and his wife, Carole Ruffalo ; Dennis

McDonald ; Mark Richter Sr. ; Ray Stephens ; William McGuire ; Bob

Hamby ; and Dan Bozza.

24. The Triple R s were trying to influence the outcome of

elections in Flagler County. They did this by fielding

candidates against incumbent members of the County Commission.

In 2014, Richter Sr. ran against and lost to Commissioner

McLaughlin. Dennis McDonald ran against, and lost to , Meeker

in 2 012 and 2014. The Triple Rs also tried to influence the

results of the elections by filing complaints against Flagler

County officials with multiple agencies.

25. Weeks was not a member of the Triple Rs; however,

Dennis McDonald, the de facto spokesperso n of the Triple Rs,

frequently visited WeeksÓ office, particularly in the period

between the 2014 primary and general election. WeeksÓ

interaction with McDonald and other Triple Rs during this

timeframe was so pervasive that WeeksÓ husband expressed

conce rn to McLaughlin about McDonaldÓs influence over Weeks.

26. This group filed 25 complaints against Flagler County

officials, individually and collectively, including complaints

against Ericksen and all other members of the 2014 County

Commission, the Coun ty Attorney, and the County Administrator.

The complaints were filed with the Commission on Ethics, the

Florida Elections Commission, The Florida Bar, and the State

Attorney for the Seventh Judicial Circuit. Certain members of

the Triple Rs formed a limi ted liability company -- the ÐFlagler

Palm Coast WatchdogsÑ -- and also filed suit against the County

Commission to block renovation of the old Flagler Hospital into

the SheriffÓs Operation Center, alleging violations of the

Ethics Code.

27. At least 12 of th e complaints filed by the group

specifically alleged or referenced the false allegations which

are at issue in this case: that members of the County

Commission discussed Canvassing Board matters in violation of

the Sunshine Law with the goal of manipulati ng elections,

improperly selecting the Canvassing Board attorney, and

advancing a hidden agenda.

28. In addition to alleging that Ericksen violated the

Ethics Code and Sunshine Law, the complaint filed with the

Commission alleged that Ericksen conspired t o cover up

felonious conduct by a member of the County Commission and that

Ericksen violated FloridaÓs elections laws, specifically

c hapter 106, Florida Statutes (the ÐCampaign Finance lawÑ), in

several respects.

29. Weeks also filed a complaint against E ricksen with

the Florida Elections Commission. That complaint essentially

tracks Ethics Complaint 14 - 232 and includes allegations that

Ericksen violated the Ethics Code, the Sunshine Law, and that

he conspired to cover up a felony. The Director of the Fl orida

Elections Commission dismissed the complaint as legally

insufficient.

30. The allegations that Ericksen discussed Canvassing

Board matters in violation of the Sunshine Law, had an unlawful

connection to a candidate, improperly selected the Canvassin g

Board attorney, and engaged in other conduct to benefit

particular candidates in the 2014 Election were crucial to the

ethics complaint which Weeks filed against Ericksen. These

allegations formed the basis for the CommissionÓs finding that

the complain t was legally sufficient and ordered that it be

investigated.

31. Had Ericksen been found to have violated Florida law,

it would have damaged his reputation in the community.

32. The evidence also shows a concerted effort by Weeks

and the Triple Rs to co ntinue filing new complaints after

dismissal orders in order to keep Flagler County officials

under constant investigation by various agencies, which kept

them under a cloud of suspicion with the public.

33. The totality of these fi ndings, including the

n umber of complaints, the collaboration among the various

complainants, and the inclusion of similarly false allegations

in complaints filed by different complainants with different

agencies, lead to no reasonable conclusion other than Ethics

Complaint 14 - 2 32 was filed with a Ðmalicious intentÑ to injure

the reputation of Ericksen and create political gain for the

Triple Rs and Weeks.

34. The totality of these findings constitutes clear and

convincing evidence that WeeksÓ complaint was filed with

knowledge that, or with a conscious intent to ignore whether,

it contained one or more false allegations of fact material to

a violation of the Ethics Code.

35. The totality of these findings constitutes clear and

convincing evidence that Weeks showed Ðreckless dis regardÑ for

whether her sworn complaint contained false allegations of fact

material to a violation of the Ethics Code .

36. The totality of these findings constitutes clear and

convincing evidence that the true motivation behind the

underlying complaint w as the political damage the complaint

would cause Ericksen, with the corresponding benefit to the

Triple Rs and Weeks, rather than any effort to expose any

wrongdoing by Ericksen.

Attorneys Ó Fees and Costs

37. Upon receipt and review of the complaints f iled

against Ericksen and others in late 2014, Flagler County

informed its liability insurance carrier and requested that

counsel experienced in ethics and elections law be retained to

defend against those complaints. At the specific request of

the County , Mark Herron of the Messer Caparello law firm was

retained to defend these complaints. Mr. Herron is an

experienced lawyer whose practice focuses almost exclusively on

ethics and elections related matters.

38. Mr. Herron was retained by Flagler County o n the

understanding that the Messer Caparello firm would be

compensated by the CountyÓs liability insurance carrier at a

rate of $180 per hour and that the County would make up the

difference between the $180 per hour that the insurance carrier

was willing to pay and the reasonable hourly rate.

39. The rate of $180 per hour paid by the CountyÓs

liability insurance carrier to the Messer Caparello firm is an

unreasonably low hourly rate for an experienced practitioner in

ethics and election matters. Expert testimony adduced at the

hearing indicated that a reasonable hourly rate would range

from $250 to $450 per hour. Accordingly, a reasonable hourly

rate to compensate the Messer Caparello firm in this proceeding

is $350 per hour.

40. The total hours spent on this case by Messer

Caparello attorneys is reasonable. The billable hourly records

of the Messer Caparello law firm through May 14, 2017, indicate

that a total of 103.39 hours were spent in defending the

underlying complaint filed with the Commission a nd in seeking

costs and fees in this proceeding.

41. The record remained open for submission of Messer

Caparello costs and attorneysÓ fees records after May 14, 2017,

through the date of submission of the Proposed Recommended

Order. These additional reco rds of the Messer Caparello law

firm indicate that a total of 49.93 hours were spent in seeking

costs and fees for that defense at the formal hearing and in

preparing the Proposed Recommended Order.

42. The total hours spent by the Messer Caparello law

fi rm in defense of the Complaint against Petitioner, and in

seeking costs and fees for that defense, is 153.32. The total

hours spent on this case by the Messer Caparello law firm is

reasonable.

43. Costs of $1,814.12 incurred by the Messer Caparello

law f irm through May 14, 2017, are reasonable. Costs of

$957.44 incurred by the Messer Caparello law firm after May 14,

2017, are reasonable.

44. The total hours spent on this case by the Flagler

County AttorneyÓs Office is reasonable. Time records of the

Fl agler County AttorneyÓs Office through May 15, 2017 , indicate

that a total of 12.40 hours for attorney time were spent in

assisting in the defense of the underlying complaint with the

Commission and in seeking costs and fees in this proceeding.

Time recor ds of the Flagler County AttorneyÓs Office through

May 15, 2017, indicate that a total of 24.75 hours for

paralegal time were spent in assisting in the defense of the

underlying complaint filed with the Commission and in seeking

costs and fees in this proc eeding.

45. The record remained open for submission of costs and

attorneysÓ fees records after May 15, 2017, through the date of

submission of the Proposed Recommended Order. These additional

records of the Flagler County AttorneyÓs Office indicate that a

total of 6.60 hours of attorney time, and that a total of

14.30 hours of paralegal time were spent in seeking costs and

fees for that defense at the formal hearing in this cause and

in preparation and submission of the Proposed Recommended

Order.

46. Co sts of $168.93 incurred by the Flagler County

AttorneyÓs Office through May 15, 2017, are reasonable. Costs

of $292.99 incurred by the Flagler County AttorneyÓs Office

after May 15, 2017, are reasonable.

47. A reasonable hourly rate for the time of Flagl er

County Attorney in connection with this matter is $325 per

hour.

48. A reasonable hourly rate for the time of the

paralegal in the Flagler County AttorneyÓs Office in connection

with this matter is $150 per hour.

49. Based on the findings herein, Er icksen has established

that he incurred: (i) reasonable costs in the amount of

$2,731.69, and reasonable attorneysÓ fees in the amount of

$53,662.00 for the services of the Messer Caparello law firm in

defending against the underlying complaint filed with the

Commission and in seeking costs and fees in this proceeding; and

(ii) reasonable costs in the amount of $461.92 and attorneysÓ

fees in the amount of $12,032.50 for the services of the Flagler

County AttorneyÓs Office in defending against the underlyin g

complaint filed with the Commission and in seeking costs and

fees in this proceeding.

CONCLUSIONS OF LAW

50. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. See §§ 120.569 and 120 .57(1), Fla. Stat.

51. Section 112.313(7) provides for an award of

attorneyÓs fees and costs in the following circumstances:

In any case in which the commission

determines that a person has filed a

complaint against a public officer or

employee with a mal icious 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 mate rial to a violation

of this part, the complainant shall be

liable for costs plus reasonable attorney

fees incurred in the defense of the person

complained against, including the costs and

reasonable attorney 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 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 commission.

52. Rule 34 - 5.0291(3) provides for the Commission to

review a petition seeking costs and attorneysÓ fees and:

If the Commission determine s that the facts

and grounds are sufficient, the Chair after

considering the CommissionÓs workload, shall

direct that the hearing of the petition be

held before the Division of Administrative

Hearings, the full Commission, or a single

Commission member ser ving as hearing

officer. Commission hearing officers shall

be appointed by the Chair. The hearing

shall be a formal proceeding under Chapter

120, F.S., and the Uniform Rules of the

Administration Commission, Chapter 28 - 106,

F.A.C. All discovery and hear ing procedures

shall be governed by the applicable

provisions of Chapter 120, F.S. and Chapter

28 - 106, F.A.C. The parties to the hearing

shall be the petitioner (i.e., the public

officer or employee who was the respondent

in the complaint proceeding) and the

complainant(s), who may be represented by

legal counsel .

53. Further, rule 34 - 5.0291(1) provides:

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 contains 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 Ethi cs, the

complainant shall be liable for costs plus

reasonable attorneyÓs fees incurred in the

defense of the person complained against,

including the costs and reasonable

attorneyÓs fees incurred in proving

entitlement to and the amount of costs and

fees.

54. During the course of this proceeding, Weeks moved to

dismiss Commissioner EricksenÓs petition seeking costs and

attorneysÓ fees, pursuant to section 112.313(7), asserting that

she is entitled to Ðqualified immunityÑ because she filed the

complaint as the ÐSupervisor of ElectionsÑ and not as a private

citizen.

5 5 . As explained by the Florida Supreme Court in Tucker v.

Resha , 648 So. 2d 1187, 1189 (Fla. 1994):

Under the qualified immunity doctrine,

Ðgovernment officials performing

discretionary funct ions generally are

shielded from liability for civil damages

insofar as their conduct does not violate

clearly established statutory or

constitutional rights of which a reasonable

person would have known.Ñ Harlow , 457 U.S.

at 818, 102 S.Ct. at 2738. ÐThe central

purpose of affording public officials

qualified immunity from suit is to protect

them Òfrom undue interference with their

duties and from potentially disabling

threats of liability.ÓÑ Elder v. Holloway ,

114 S.Ct. 1019, 1022, 127 L.Ed.2d 344

(199 4)(quoting Harlow , 457 U.S. at 806).

5 6 . In analyzing a claim of Ðqualified immunity,Ñ the

courts have stated:

[ T]here are two steps in evaluating the

qualified immunity defense. The defendants

must first demonstrate that they acted

within their discret ionary governmental

duties . Once that is established, the

plaintiff must show that the defendantsÓ

conduct violated his clearly established

statutory or constitutional rights.

Bd. of Regents v. Snyder , 826 So. 2d 382, 390 (Fla. 2d DCA

2002).

5 7 . WeeksÓ claim of qualified immunity fails for two

reasons. First, the award of attorneysÓ fees pursuant to

section 112.317(7) is not a claim for civil damages. Second, as

the Supervisor of Elections, Weeks had no discretionary duty to

report alleged violations o f the Ethics Code to the Commission.

Weeks cannot claim immunity, qualified or absolute, in the

context of filing an ethics complaint against Ericksen when she

acted with a malicious intent to injure his reputation and with

knowledge that the complaint co ntains one or more false

allegations or with reckless disregard for whether the complaint

contained false allegations of fact material to a violation of

the Ethics Code. WeeksÓ claim of qualified immunity is

rejected.

5 8 . Ericksen has the burden of prov ing the grounds for an

award of costs and attorneysÓ fees pursuant to section

112.317(7). See Fla. Admin. Code R. 34 - 5.0291(4). As the party

seeking entitlement, Ericksen has the burden to prove Ðby clear

and convincing evidenceÑ that the award of costs and attorneysÓ

fees is appropriate pursuant to section 112.317(7), and r ule 34 -

5.0291(1). See DepÓt of Banking & Fin. v. Osborne Stern & Co. ,

670 So. 2d 932, 934 (Fla. 1996); DepÓt of Transp. v. J.W.C. Co. ,

396 So. 2d 778, 787 (Fla. 1st DCA 1981). Ericks en has proven

Ðby clear and convincing evidenceÑ that the award of costs and

attorneysÓ fees is appropriate in this case.

59 . In Brown v. Florida Commission on Ethics , 969 So. 2d

553, 560 (Fla. 1st DCA 2007), the court established the

following elements o f a claim by a public official for costs and

attorneysÓ fees: (a) the complaint was made with a malicious

intent to injure the officialÓs reputation; (b) the person

filing the complaint knew that the statements about the official

were false or made the st atements about the official with

reckless disregard for the truth; and (c) the statements were

material to a violation of the Code of Ethics.

6 0 . Section 112.317(7) does not require a public official,

who was falsely accused of ethics violations in compl aints

submitted to the Florida Commission on Ethics, to prove Ðactual

maliceÑ when attempting to prove malicious intent to injure the

officialÓs reputation. Brown , 969 So. 2d at 554. By employing

a textual analysis of the statute, the Court in Brown foun d that

section 112.317(7) is satisfied by the Ðordinary sense of

malice,Ñ i.e. feelings of ill will. Id. at 557.

6 1 . ÐS uch proof may be established indirectly, i.e., Òby

proving a series of acts which, in their context or in light of

the totality of surr ounding circumstances, are inconsistent with

the premise of a reasonable man pursuing a lawful objective, but

rather indicate a plan or course of conduct motivated by spite,

ill - will, or other bad motive.ÓÑ Mc Curdy v. Collins , 508 So. 2d

380, 382 (Fla. 1 st DCA 1987) ( quoting S . Bell Tel . & Tel . Co. v.

Roper , 482 So. 2d 538, 539 (Fla. 3d DCA 1986)).

6 2 . In this case, the evidence, by a clear and convincing

margin, indicated that Weeks malciously filed Ethics Complaint

14 - 230 against Ericksen in order to damage EricksenÓs reputation

and to advance the political a ims of herself and the Triple R s.

In addition, the evidence showed that, despite stating under

oath that Ðthe facts set forth in the complaint were true and

correct,Ñ Weeks either knew the matters alleged in the complaint

were false, or she was consciously indifferent to the truth or

falsity of her allegations when she failed to review the public

records which would have indicated that her allegations were

false. Finally, the false statements in h er complaint were

material to violations of the Ethics Code, in that they formed

the basis for the CommissionÓs investigation of the complaint.

6 3 . Ericksen is entitled to a total award of $56,393.69 in

costs and attorneysÓ fees in connection with legal services

provided by Messer Caparello in this matter.

6 4 . Ericksen is entitled to a total award of costs and

attorneysÓ fees in the amount of $12,494.42 in connection with

legal services provided the by Flagler County Attorney Ó s Office

in this matter.

R ECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Commission enter a final order

granting EricksenÓs Petition for Costs and AttorneysÓ Fees

relating to Complaint 14 - 230 in the total amount of $68,888.11 .

DONE AND ENTERED this 21st day of September , 2017 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of September, 2017 .

ENDNOTE S

1/ The cases referred and consolidated by the unde rsigned were

Nate McLaughlin v. Mark Richter , DOAH Case No. 16 - 5244FE;

Frank J. Meeker v. Mark Richter , DOAH Case No. 16 - 5245FE; Charles

Ericksen, Jr. v. Kimberle Weeks , DOAH Case No. 16 - 5246FE;

Albert J. Hadeed v. Kimberle Weeks , DOAH Case No. 16 - 5247FE; and

George Hanns v. Dennis McDonald , Case No. 16 - 5248FE.

2/ Although, for reasons set forth herein, the consolidated

cases have been severed and, therefore, subject to separate

r ecommended o rders, each applicable to a particular Petitioner,

the facts ap plicable to each are substantially similar. Despite

this Order applying only to a single Petitioner, the plural term

ÐPetitionersÑ will be used, for the purposes of this and the

other consolidated cases, unless the context indicates otherwise.

3/ The re cord reflects that Richter Jr. has refused to

participate in this case, has avoided service, and has ignored

all efforts by both the Division and Petitioners to contact him.

4 / On December 6, 2016, Weeks filed a letter with the

undersigned stating that s he was unable to attend the October 5

status conference because she did not receive notice of the

status conference until after it occurred.

5/ After the ruling on the motion to compel, and on the day her

discovery responses were due, Weeks, on January 30 , 2017, moved

to dismiss the motion to compel against her based on what

appeared to be a claim of Ðqualified immunity.Ñ

6/ On February 17, 2017, Weeks filed a motion to strike

PetitionersÓ Second Motion for Continuance, essentially alleging

that it was f iled for purposes of delay. By Order dated

February 28, 2017, the undersigned denied WeeksÓ motion to

strike PetitionersÓ Second Motion for Continuance. The record

revealed that requests for continuances were necessitated by the

failure of Respondents to respond to discovery.

7/ On April 11, 2017, pursuant to properly served Notices of

Depositions, Petitioners attempted to depose Richter Jr.,

Weeks, and McDonald. Richter Jr. did not appear. Weeks did

not answer any questions and asserted her right ag ainst self -

incrimination because of her pending criminal matter. McDonald

refused to answer on the ground that his testimony might impact

WeeksÓ pending criminal proceeding. On April 18, 2017,

Petitioners attempted to depose John Ruffalo, who was disclos ed

as a potential witne ss by Respondent McDonald. Mr. Ruffalo

made a brief appearance and announced that he was also going to

refuse to answer any questions.

8/ On January 30, 2017, Weeks filed a motion to dismiss the

petitions filed against her assert ing Ðqualified immunity.Ñ At

that same time, as noted herein, she moved to dismiss the motion

to compel against her based on what appears to be a claim of

Ðqualified immunity.Ñ

COPIES FURNISHED:

Albert J. Hadeed, Esquire

Flagler County Board of

Count y Commissioners

1769 East Moody Boulevard, Building 2

Bunnell, Florida 32110

(eServed)

Mark Herron, Esquire

Messer, Caparello, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

(eServed)

Millie Wells Fulford, Agency Clerk

Flor ida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Kimberle B. Weeks

3056 County Road 305

Bunnell, Florida 32110

Albert T. Gimbel, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Post Office Box 15579

Talla hassee, F lorida 32317

(eServed)

Virlindia Doss, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office D rawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Advocates for the Commission

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.