16-005247FE Albert J. Hadeed vs. Kimberle B. Weeks Status: Closed Recommended Order on Thursday, August 31, 2017.

Summary: Petitioner proved entitlement to attorneys' fees and costs incurred in defending Respondent's meritless Ethics Complaint filed against him.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT J. HADEED,

Petitioner,

vs. Case No. 16 - 5247FE

KIMBERLE B. WEEKS,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly noticed final hearing was held in t his matter on

May 1 6, 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.

Post Office Box 15579

2618 Centennial Place

Tallahassee, FL 32317

For Respondent: No Appearance

STATEMENT OF THE ISSUE S

Whether Petitioner is entitled to an award of costs a nd

attorneysÓ fees pursuant to s ection 112.313(7), Florida

S tatutes, and Florida Administrative Code Rule 34 - 5.0291; and,

if so, in what amount.

PRELIMINARY STATEMENT

On September 13, 2016, the Florida Commission on Ethics

(ÐCommissionÑ) referred five separate petitions seeking costs

a nd attorneysÓ fees pursuant to s ection 112.313(7) and rule

34 - 5.0291, requesting the Division of Administrative 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 t he 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 O rder

consolidating the five cases. 1/

Counsel for Peti tioners filed responses to the Initial

O rder on behalf of each Petitioner and suggested 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 t o the Initial O rder. 3 / In their response to Case

No s . 16 - 5244FE and 16 - 5246F E, 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 i nformation for his son, Richter Sr. advised

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

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

that he had no co ntact information on his son and abruptly ended

the phone call.

Respondent Kimberle Weeks (ÐW eeksÑ) filed a response to the

Initial O rder in Case No s . 16 - 5246FE and 16 - 52475E , in which she

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

othe rwise 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) f iled a response to

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

the hearing be held in Central Florida and that he would 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, the 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 ser ved initial discovery

requests on Respondents. On December 2, 2016, Petitioners 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 R ichter Jr., Weeks,

or McDonald to determine the status of their r esponses to the

discovery. By O rder entered December 7, 201 6 , after finding

good cause existed to continue the hearing, the undersigned

cancelled the hearing scheduled for December 12 throug h 16,

2016, and re - scheduled 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 Octob er 27, 2016 .

On January 6, 2017 , the undersigned scheduled a telephonic

hearing on PetitionersÓ motion to compel for January 20, 2017.

Counsel for Petitioners and Respondents Weeks and McDonald

participated in the telephonic hearing during which the

undersigned inf ormed the participating Respondents of the

consequences and implications of failure to respond to

Petiti onersÓ discovery requests. By O rder dated January 20,

2017, the undersigned granted PetitionersÓ motion to compel and

ordered Respondents to serve answ ers 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 mo tion was based on the f ailure of

Richter Jr. and Weeks to provide responses to PetitionersÓ

pendin g discovery, despite the prior O rder 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 O rder entered February 16, 2017, the unde rsigned

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

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

2017, of all dates on which they were available for re -

scheduling 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 several days in both April and May of 2017.

By O rder dated March 23, 2017, the undersigned rescheduled

the fina l hearing for May 15 through 19, 2017, noting:

On March 2, 2017, Respon dent 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 sc hedule a telephone

conference to coordinate a mutually -

agreeable date to re - schedule 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 b y her

on a previous telephone conference), rings

incessantly but remains unanswered. 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 avail able and

which overlap with dates identified as

available for Respondent McDonald.

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 th ese proceedings. By O rder 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, M cDonald filed a motion to dismiss ,

asserting that he was not afforded due process by the action of

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

By O rders entered March 7, 2017 and March 8, 2017 (Amended

Order), the undersigned denied McDon aldÓs motion to dismiss.

On March 27, 2017, Petitioners filed a motion to permit,

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 unan swered

Request for Admissions as having been admitted. In support of

the motion, 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 McDo nald during prior hearings in this

matt er. By O rder 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 Respond ents 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 M arch 6, 2017. By operation

of the rule, RespondentsÓ failure to timely

respond to the Request renders the

statements admitted. The undersigned is

mindful that Respondents are unrepresented

and the penalty is harsh. However, the

undersigned has previousl y instructed

Respondents Weeks and McDonald of the duty

to respond to discovery and the penalties

for failure to comply. [end note omitted]

In the Motion, Petitioners also request the

undersigned approved [sic], post hoc,

Request for Admissions that exce ed the

number set forth in the rule. The rule

authorizes the undersigned to 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 objection.

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

hamper ed 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

disclose d 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 other s associated with them to participate in

properly noticed depositions. 7 / By O rder 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 hearin g which would have been

disclosed, produced, discussed, or otherwise

revealed 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 final hearing from Tallahassee (Leon County) to Bunnell

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

denied Weeks motion to change venue.

On May 11, 2017, McDonald f iled 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 , Case Nos. 1D16 - 724 &

1D16 - 725 (Fla. 1st DCA Feb. 2, 2017). By O rder dated May 11,

2017, the undersigned 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 O rder entered May 16, 2017, the undersigned denied WeeksÓ

motion to dismiss based on Ðqualified immunity.Ñ

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

telephonically at the hearing scheduled to commence the

follo wing Monday, May 15, 2017. By O rder dated May 15, 2017,

the undersigned denied Weeks motion to appear telephonically.

The final 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 and

Petitioner in Case No. 16 - 5245FE; 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 Case 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 prese n ted the testimony of Mr. Hadeed; Mark Herron,

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

witness on attorneysÓ fees. Pe titionersÓ Exhibits P - 1

through P - 97 were admitted into evidence.

After the conclusion of the formal hearing, Petit ioners

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

two additional exhibits regarding the underlying facts relative

to McDonaldÓs motion to dismiss the petition for costs and

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

res ponse was filed by McDonald. By O rder 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 at torneyÓs 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 - 100D, P - 101, and P - 102 were admitted in eviden ce.

Counsel for Petitioners asked to submit a proposed

recommended o rder within 30 days of the transcript being filed

wi th the Division. A two - volume T ranscript 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.

Counsel for Petitioners, filed, with the concurrence of

the Commission, a motion on July 12, 2017, reques ting that

separate proposed recommended o r ders be filed so that se parate

r ecomme nded o rders can be issued. By O rder 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 - 233

1. On December 4, 2014, the Co mmission received a

complaint against Hadeed filed by Weeks which alleged that

Hadeed violated FloridaÓs election laws, the Sunshine Law, and

the Code of Ethics.

2. Specific allegations in the complaint referenced a

ÐwhisperedÑ conversation between Albert Hadeed (ÐHadeedÑ) , the

County Attorney, and alternate Canvassing Board member and

County Commissioner Ericksen, Jr. (ÐEricksonÑ) , outside of a

Canvassing Board meeting. The complaint alleged:

The actions and behaviors of some county

commissioners and th eir staff demonstrate

some may have used their position for their

personal gain and for the personal gain of

their co - commissioners and employers. Such

activities as described herein could allow

voters to also believe some persons who are

privy to informa tion, change the outcome of

elections when information is prematurely

revealed, and that attorney Hadeed is the

canvassing board attorney because he allows

the laws to be bent or broken. As

Supervisor of Elections I oppose and have

objected to the county attorney being the

canvassing board attorney. The public

should be able to trust those who are

responsible for canvassing our elections and

at no time should how a voter voted be

released, and never should election results

be release [sic] prior to 7 p.m. election

night. Because attorney Hadeed and county

commissioners remained hushed on behavior

that has been identified, it is unknown what

else may have transpired that has been kept

hushed, and if such occurrences will happen

again knowing they will be ke pt hidden and

unaddressed. It is also unknown how many

other people attorney Hadeed and county

commissioners have told about such incidents

which may give the public opinion that the

Supervisor of Elections condones this type

of activity, and that such ac tivity is

common. It is believed candidates may

receive voter's support if it is expected

that when they serve on the canvassing board

they will continue such practices to allow

elections to be manipulated and give some

candidates an advantage.

3. The complaint also alleged that:

On October 17th, 2014, I 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 co mmissioner Frank

Meeker. Ericksen refused to do so at that

time, but did resign on October 20th, 2014

at a Board of County Commission meeting. It

was at that time alternate canvassing board

member Barbara Revels was chosen to replace

Ericksen. Though co mmissioner Revels has

been under an ethics investigation for the

past several months, it did not make her

ineligible to serve as an alternate

canvassing board member.

Attorney Hadeed was responsible for

representing the canvassing board and the

board of c ounty commission [sic] and failed

to provide advice indicating what should be

done to prevent the appearance of

impropriety when serving as a canvassing

board member, and what would disqualify one

from being eligible to serve on the

canvassing board. He t herefore knowingly

and willingly allowed Ericksen to remain as

an alternate canvassing board member without

providing any guidance to prevent the

appearance of impropriety or possible

violation of Florida election code.

4. The complaint also alleged:

At torney Hadeed also failed to guide

commissioner Ericksen and encourage him to

step down from the canvassing board on

October 17, 2014 due to his involvement in

fellow Commissioner Frank Meeker's re -

election campaign. Attorney Hadeed also

failed to seek an d disclose to the

canvassing board the degree of commissioner

Ericksen's involvement in fellow

commissioner/candidate Frank Meeker's

campaign before or after the issues was

{sic] raised before the board. Attorney

Hadeed had a responsibility to ethically a nd

legally guide the canvassing board and

county commissioners to prevent one from

violating the Florida election code.

Attorney Hadeed did nothing to prevent or

stop commissioner Ericksen's involvement on

the canvassing board after it was learned of

his i nvolvement in candidate Meeker's

campaign. Therefore he failed those he was

representing, and did not protect the

integrity of the electoral process.

5. The complaint further alleged that:

The board of county commissioners is the

employer of county at torney Hadeed. It is

believed to be a conflict of interest for

attorney Hadeed to represent both the board

of county commissioner [sic] and the

canvassing board. By representing both of

these boards, attorney Hadeed may provide

advice and guidance to his employers who are

responsible for canvassing elections, and

additional employers are on the ballot. The

composition of the canvassing

board/alternate normally consists of at

least two of the county attorney's employers

(county commissioners). It may hav e been in

attorney Hadeed's best interest for

commissioner Ericksen to remain as a

canvassing board alternate when it was

believed he was ineligible.

6. The complaint further alleged that:

County commissioner/canvassing board member

George Hanns was al so asked to step down

from the canvassing board on November 3,

2014 because he too was involved in a fellow

commissioner Frank Meeker's re - election

campaign and he too refused. Attorney

Hadeed did nothing again to protect the

integrity of the electoral pr ocess and

ensure election code was not violated. He

was made aware, if he didn't already know,

that an advertisement was released by fellow

county commissioner Frank Meeker stating he

was endorsed by county

commissioner/canvassing board member George

Hann s. George Hanns stated it was not an

endorsement because he didn't put it in

writing. Attorney Hadeed again failed to

encourage commissioner Hanns to voluntarily

step down from his position on the

canvassing board after the endorsement was

exposed and ma de public on November 3, 2014.

Again, attorney Hadeed failed to properly

represent the canvassing board.

On November 4, 2014 Commissioner George

Hanns was again asked to stop [sic] down

from the canvassing board for the same

reason, and he again refused. Attorney

Hadeed still did not encourage the

commissioner to voluntarily step down, and

he did not provide anything on the matter to

support why he should not be required to

step down. Attorney Roberta Walton produced

an opinion on the matter to support why he

should step down. It was at that time when

attorney Hadeed attempted to discredit

attorney Walton's findings, but again

produced nothing to prove otherwise. The

county judge (canvassing board chair)

reviewed the opinion attorney Walton

provided an d it was then when she supported

the motion made by the supervisor of

elections to remove commissioner George

Hanns from the county canvassing board.

Again, attorney Hadeed made no attempt to

uphold the law, and again failed to properly

represent the canv assing board and county

commissioners as he failed to provide proper

guidance. Guidance that would have spared

tension on the canvassing board, prevented

embarrassment to a county commissioner and

preserved the integrity of the electoral

process.

7. Th e complaint also alleged:

Per Florida Statute 102.141(6) the

resignation of canvassing board member

Charles Ericksen Jr was reflected in the

Conduct of Election Report that is filed

with the Florida Division of Elections

following the certification of the election,

as was the removal of the Chairman of the

Board of County Commissioners, George Hanns.

Commissioner/alternate canvassing board

member Barbara Revels (Charles Ericksen's

replacement) refused to sign the required

Conduct of Election Report because it

reflected the fact that 1 county

commissioner was removed from the Canvassing

Board. In fact, commissioner Revels wrote

on the report "Refused to sign: Barbara

Revels". Commissioner Revels stated she did

not feel it was necessary that such

informatio n be reflected on the report;

Supervisor Weeks disagreed as she found the

matter to be material to the conduct of

election. Two of the three canvassing board

members (the Supervisor of Elections and

County Judge) signed the report willingly.

County/canvas sing board attorney Hadeed

failed to advise canvassing board member/

county commissioner Barbara Revels on

completing the required report by placing

her signature in the required area.

Attorney Hadeed also failed to say whether

the report would be conside red incomplete

due to the absence of a canvassing board

members signature, and if the report lacking

a signature would put the canvassing board

at risk of being in violation of Florida

election code. Because attorney Hadeed

failed to properly guide the ca nvassing

board members with prior issues, as well as

with the issues of commissioner Revels

resistance, it appeared he and county

commissioners are in collusion. He never

seems to address or provide guidance in

areas as have been referenced, but quite

oft en weighs in on influencing canvassing

board members decisions and inserts his

comments and opinions. Again, attorney

Hadeed did not properly represent the

canvassing board. Attorney Hadeed should

have ensured and encouraged that the

requirements of the canvassing board were

being met. However, he spoke up on another

matter regarding a voter's registration

complaint and weighed in on that matter

being noted on the conduct of election

report. Perhaps attorney Hadeed spoke up at

this time because Dennis a nd Janet McDonald

whom the complaint was filed on are quite

vocal and critical of attorney Hadeed, and

his job performance.

8 . Finally, the complaint alleged:

Attorney Hadeed demonstrated the same poor

judgment in 2010 when he violated the

Sunshine Law by being a conduit between some

canvassing board members. He was successful

in creating the same type of hostile

environment at that time as he did in 2014

when he made great efforts to change meeting

minutes from the August 6, 2010 canvassing

board meet ing by verbally communicating with

canvassing board members, and then

distributed e - mails to carry out his plan.

Those meeting minutes reflected when he

incorrectly advised the canvassing board as

to whom the chair of the canvassing board

shall by Florida Statue [sic] be when an

alternate for the canvassing board chair is

required to serve. Attorney Hadeed wanted

the language that existed in the first

paragraph of the meeting minutes to be

replaced with new language; which would then

remove language that reflected the incorrect

advice he gave the board.

9 . The complaint was reviewed by the Executive Director

of the Commission who found the complaint to be legally

sufficient to warrant an investigation:

The complaint alleges that [Hadeed] engaged

in a "wh ispering" 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

allowed an ineligible person to remain on

the canvassing board or did not provide

proper advice o r legal service regarding the

person's being on the canvassing board, that

he failed to report a crime, that he was

involved in other or related conduct, and

that this may have been for the purpose of

benefiting himself, particular candidates,

or others. This indicates possible

violation of Section 112.313(6), Florida

Statutes.

1 0 . 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

c omplaint for a probable cause determination of whether [Hadeed]

has violated s ection 112.313(6) as set forth above.Ñ

The CommissionÓs Investigation

1 1 . The complaint was investigated by Commission

Investigator Kavis Wade. On February 19, 2016, the

Co mmission 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 County Commission. The Flagler County Canvassing Board

for the 2014 Election was made up of Judge Melissa Moore - Stens,

County Commission Chairman George Hanns (Commissioner Hanns) ,

and then - Superviso r of Elections Kimberle Weeks. Initially, the

alternate member of the Canvassing Board was County Commission

member Charles Ericksen, Jr.

b. Weeks alleged that Hadeed used his position as the

Canvassing Board Attorney to manipulate the process to benefit

Commissioner Meeker's candidacy by failing to advise

Commissioner Ericksen to resign from the Canvassing Board.

Weeks alleged that Hadeed failed to advise Commissioner Hanns to

resign from the Canvassing Board after a political advertisement

was distribu ted which contained an endorsement of Commissioner

Meeker by Commissioner Hanns.

c. Minutes from the October 17, 2014 Canvassing Board

meeting confirm that Weeks mentioned that Commissioner Ericksen

made a contribution to Commissioner Meeker's campaign an d that

the Department of State, Division of Elections, had advised her

that the contribution was not considered to be "active

participation" in a campaign. The minutes also confirm that

Commissioner Ericksen was not present at the meeting.

d. Hadeed lea rned from Commissioner Ericksen on the

morning of October 20, 2014, prior to a scheduled County

Commission meeting, that Commissioner Ericksen attended a

fundraiser for Commissioner Meeker. It was at that time that

Hadeed advised Commissioner Ericksen to resign as a member of

the Canvassing Board. Commissioner Ericksen confirmed that he

met with Hadeed on the morning of October 20, 2014, before the

County Commission meeting, and that Hadeed advised him that his

attendance at Commissioner Meeker's fundrais er would disqualify

him from serving on the Canvassing Board. Commissioner Ericksen

stated that during this consultation Hadeed advised him to

resign from the Canvassing Board.

e. Minutes from the October 20, 2014 County Commission

meeting indicate that there was a discussion regarding

Commissioner EricksenÓs contribution to another candidate with

opposition in the election (Meeker) and that Commissioner

Ericksen resigned as an alternate member of the Canvassing Board

at that time. The Commission then vo ted to appoint Commissioner

Barbara Revels as the alternate Canvassing Board member.

f. Weeks further alleged that Hadeed failed to provide

proper legal advice when he failed to advise County Commission

Chairman Hanns to resign his position on the Canvass ing Board

after a political advertisement was distributed by Commissioner

Meeker's campaign , which included an endorsement by Commissioner

Hanns. Weeks advised that she asked Commissioner Hanns to step

down from the Canvassing Board at its November 3, 201 4 meeting

because of the endorsement, and that he refused to do so. Weeks

stated that Hadeed was present and did not provide advice

regarding the situation.

g. Hadeed related that he did not advise Commissioner

Hanns to resign from the Canvassing Board b ecause Commissioner

Hanns stated that he did not endorse Commissioner Meeker's

campaign. Commissioner Hanns stated that a campaign mailer was

mistakenly sent to voters by Commissioner Meeker's campaign,

including an endorsement attributed to Commissioner Hanns.

Commissioner Meeker's campaign, Hadeed said, distributed another

mailer correcting the error and notifying each of the recipients

of the original mailer that Commissioner Hanns had not endorsed

Commissioner Meeker's campaign. Hadeed stated that he discussed

the issue at the November 4, 2014 Canvassing Board meeting and

that the Division of ElectionsÓ interpretation of the statutes

involving disqualification of Canvassing Board members requires

intentional, rather than perceived, action. However, H adeed

said, Weeks made a motion to remove Commissioner Hanns from the

Canvassing Board, and that motion was seconded by County Judge

Melissa Moore - Stens (the third member of the Canvassing Board).

h. Minutes from the November 4, 2014 Canvassing Board

mee ting confirm that Commissioner Hanns stated that he did not

give permission for his photo or endorsement to be used in the

advertisement by Commissioner Meeker's campaign and that he did

not endorse Commissioner Meeker. The minutes also confirm that

Weeks made a motion to remove Commissioner Hanns from the

Canvassing Board and that Judge Moore - Stens seconded that

motion. The vote on the motion was two to one with Commissioner

Hanns voting against it.

i. Commissioner Hanns stated that he contacted Hadeed at

the time of the mistaken endorsement, who advised him that he

had done nothing wrong and was not required to resign. During

the November 4, 2014 Canvassing Board meeting both Hadeed and

Roberta Walton, the attorney hired by Weeks to represent her

offic e, agreed Commissioner Hanns was not required to resign.

Their opinions were informed, in part, by written opinions from

the Division of Elections. Commissioner Hanns provided an

October 26, 2015 Division of Elections opinion which directly

addressed Wee ks' desire for Commissioner Hanns to resign. The

opinion stands for the proposition that mistakenly being a part

of an endorsement in a political advertisement is not considered

Ðactive participationÑ which would require replacement of the

canvassing boar d member.

j. When asked about her allegation that Hadeed was

involved in other or related conduct, apparently for the benefit

of particular candidates or others, Weeks indicated that she had

no information regarding that allegation.

Commission on Ethics A dvocateÓs Recommendation

1 2 . On March 7, 2016, Commission Advocate Elizabeth L.

Miller recommended that there was Ðno probable causeÑ t o believe

that Hadeed violated s ection 112.313(6) by participating in

discussions which may have been in violation of the Sunshine

Law, allowing an ineligible person to remain on the Canvassing

Board by not providing proper legal services to the Canvassing

Board, or by being involved in other or related conduct for the

benefit of himself, particular candidates, or others.

1 3 . On April 20, 2016, the Commission issued its Public

Report dismissing WeeksÓ complaint for lack of probable cause.

WeeksÓ Knowledge of the Falsity of Her Sworn Allegations

1 4 . Weeks filed a sworn complaint against Hadeed. When

signing the compla int, Weeks executed an oath that Ðthe facts

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

1 5 . Weeks served as a member of the Canvassing Board

during the 2014 Election Cycle. Weeks was present at both the

September 12, 2014 and the October 1 7, 2014 meetings of the

Flagler County Canvassing Board.

1 6 . The Flagler County Canvassing Board makes the minutes

of its meetings available to the public. Weeks had access to

the minutes of the Flagler County Canvassing Board of which she

was a member.

1 7 . Prior to filing her complaint against Hadeed, 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 that meeting, also available online or by

request.

1 8 . Vi deo of the 2014 meetings of the Flagler County

Commission is archived for public viewing on the Flagler County

website. Minutes of all Flagler County Commission meetings are

public record available to the public on the Flagler Clerk of

CourtÓs website and upon request. 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.

19 . The minutes of the September 1 5, 2014 meeting of the

Flagler County Commission reflect the County Commission

discussed whether the Canvassing Board could select its own

attorney, and, ultimately, suggested the Canvassing Board affirm

selection of its attorney by vote at a future meetin g. 9/

2 0 . Neither the posted video nor the minutes of the

September 15, 2014 meeting of the Flagler 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.

2 1 . No vote was taken by the Flagler County Commission to

designate the County Attorney as the attorney for the Canvassing

Board.

2 2 . To the contrary, the County Commission determined that

it was a matter for the Canvassing Board to sel ect its own

attorney.

2 3 . Contrary to WeeksÓ allegation that Commissioner

Ericksen refused to resign his position as an alternate member

of the Canvassin g Board at its October 17, 2014 meeting, the

official minutes of that meeting indicate that Commission er

Ericksen did not attend that meeting.

2 4 . WeeksÓ allegations that Hadeed had a conflict of

interest in serving as both the County Attorney and the

Canvassing Board attorney were false , and were known by Weeks to

be false, or were made with reckless dis regard of whether they

were false.

2 5 . Contrary to WeeksÓ allegations that Hadeed failed to

give proper legal advice when he failed to advise Commission er

Hanns to resign his position on the Canvassing Board after the

political advertisement was distribut ed by Commissioner Meeker's

campaign , which included an endorsement by Commissioner Hanns,

the record revealed that HadeedÓs advice was correct and proper,

notwithstanding the Canvassing BoardÓs ultra vires action in

removing Commissioner Hanns from the Ca nvassing Board.

2 6 . When this issue was discussed at the November 4, 2014

meeting of the Canvassing Board, Roberta Walton, the attorney

hired by Weeks to represent her office, agreed with the advice

given by Hadeed that Commissioner Hanns was not required to

resign.

2 7 . When asked by the CommissionÓs investigator whether

Hadeed 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.

2 8 . The allega tions in WeeksÓ complaint against Hadeed,

which the Commission found material to investigate, were known

by Weeks to be false or were filed by Weeks with reckless

disregard for whether they were true or false.

Malicious Intent to Injure Reputation

29 . Wh ether the claims against public officials were

Ðmotivated 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).

3 0 . The evidence adduced at the hearin g established that

Weeks worked in concert with other individuals to maliciously

injure the reputation of Hadeed by filing complaints containing

false allegations material to the Code of Ethics with the

Commission on Ethics and other agencies. 10/

3 1 . Thi s group, formed in 2009 or 2010, was known

formally as the Ronald Re a gan Republican Association,

informally as the Ð Triple Rs .Ñ Members of the group included

McDonald , Richter Sr. , John Ruffalo , Carole Ruffalo , Ray

Stephens, William McGuire, Bob Hamby, an d Dan Bozza.

3 2 . The Triple Rs were trying to influence the outcome of

elections in Flagler County. They did this by fielding

candidates against incumbent members of the Flagler County

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

Commission er McLaughlin. Dennis McDonald ran against and lost

to Commissioner Frank Meeker in 2012 and 2014. The Triple Rs

also tried to influence the results of the elections by filing

complaints with multiple agencies against various elected and

appointed Flagle r County officials.

3 3 . Weeks was not a member of the Triple Rs ; however,

Dennis McDonald, the de facto spokesperson of the Triple Rs ,

frequently visited WeeksÓ office, particularly in the period

between the 2014 primary and general election. WeeksÓ

inte raction with McDonald and other Triple Rs during this

timeframe was so pervasive that We eksÓ husband expressed

concern to McLaughlin about McDonaldÓs influence over Weeks.

3 4 . Weeks filed six complaints against various Flagler

County officials, many of th e s ame officials about whom the

Triple Rs also filed complaints.

3 5 . This group filed 25 complaints against Flagler County

officials, individually and collectively, including complaints

against Hadeed, all members of the 2014 County Commission, and

the Co unty 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 m embers of the Triple Rs formed a limited

liability company -- th e ÐFlagler Palm Coast Watchdogs Ñ -- and also

filed suit against the County Commission to block renovation of

the old Flagler Hospital into the SheriffÓs Operation Center ,

alleging v iolations of the Code of Ethics.

3 6 . At least 12 of the complaints filed b y 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 manipulating elections,

improp erly selecting the Canvassing Board attorney, and

advancing a hidden agenda.

3 7 . In addition to alleging that Hadeed violated

FloridaÓs ethics laws and the Sunshine Law, WeeksÓ complaint

alleged that Hadeed conspired to cover up felonious conduct by

a mem ber of the County Commission and that Hadeed violated

FloridaÓ s elections laws, specifically c hapter 106, Florida

Statutes, in several respects.

3 8 . Weeks also filed a complaint against Hadeed with The

Florida Bar. That complaint tracked Ethics Complaint 14 - 233 in

many respects and included allegations that Hadeed violated

FloridaÓs ethics laws and the Sunshine Law, improperly altered

public records, and conspired to cover up a felony.

39 . The allegations that Hadeed participated in

discussions that viol ated the Sunshine Law, acted to allow an

illegible person to serve on the Canvassing Board, altered the

minutes of the Canvassing Board, gave improper legal advice, and

engaged in other conduct to benefit particular candidates in the

2014 Election , were cr ucial to the ethics complaint which Weeks

filed against Hadeed. These allegations formed the basis for

the CommissionÓs finding that the complaint was legally

sufficient and order ed that it be investigated.

4 0 . Had Hadeed been found to have violated Flor ida law,

it would have damaged his reputation in the community and would

have jeopardized his ability to practice law.

4 1 . The evidence also shows a concerted effort by Weeks

and the Triple Rs to continue filing new complaints after

dismissal orders in or der to keep Flagler County officials

under constant investigation by various agencies, which kept

them under a cloud of suspicion with the public.

4 2 . The totality of these findings, including the number

of complaints, the false complaints to The Florida Bar and the

Elections Commission, 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

C omplaint 14 - 233 was filed with a Ðmalicious intentÑ to injure

the reputation of Hadeed and create political gain for the

Triple Rs and Weeks.

4 3 . The totality of these findings constitutes clear and

convincing evidence that WeeksÓ complaint was filed with

knowledge that, or with reckless disregard for whether, it

contained one or more false allegations of fact material to a

violation of the Code of Ethics.

4 4 . The totality of these findings constitutes clear and

convincing evidence that Weeks showed Ðreck less disregardÑ for

whether her sworn complaint contained false allegations of fact

material to a violation of the Code of Ethics.

4 5 . The totality of these findings constitutes clear and

convincing evidence that the true motivation behind the

underlying complaint was the professional and political damage

the complaint would cause Hadeed, with the corresponding

benefit to the Triple Rs and Weeks, rather than any effort to

expose any wrongdoing by Hadeed.

AttorneyÓs Fees and Costs

4 6 . Upon receipt and rev iew of the complaints filed

against Hadeed 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.

4 7 . Mr. Herron was retaine d by Flagler County on the

understanding that the Messer Caparello firm would be

compensated by the CountyÓs liability insurance carrier at the

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

difference between the $180 per hour that the insura nce carrier

was willing to pay and the reasonable hourly rate.

4 8 . 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 ele ction 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.

49 . The total hours spent on this case by Messer

Caparello attorneys is reasonable. The billable hour records

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

that a total of 115.69 hours were spent in defending the

underlying complaint filed with the Commission and in seeking

costs and fees in this proceeding.

5 0 . 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 records of the Messer Caparello law firm indicate

that an additional 28.80 hours were spent in seeking costs and

fees for that defense at the formal hearing and in preparing

the Proposed Recommended Order.

5 1 . The total hours spent by the Messer Cap arello law

firm in defense of the Complaint against Petitioner, and in

seeking costs and fees for that defense, is 144.49. The total

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

reasonable.

5 2 . Costs of $1,785.03 incurred by the Messer Ca parello

law firm through May 14, 2017 , are reasonable. Costs of

$1,012.44 incurred by the Messer Caparello law firm after

May 14, 2017 , are reasonable.

5 3 . The total hours spent on this case by the Flagler

County AttorneyÓs Office is reasonable. Hadeed has not sought

fees for his time as the County Attorney in the defense of this

complaint against him. Time records of the Flagler County

AttorneyÓs Office through May 15, 2017 , indicate that a total

of 30.85 hours for paralegal time were spent in assistin g in

the defense of the underlying complaint filed with the

Commission and in seeking costs and fees in this proceeding.

5 4 . 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 17.10 hours of paralegal time were spent in seeking

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

cause and in prepa ration and submission of the Proposed

Recommended Order.

5 5 . Costs of $168.93 incurred by the Flagler County

AttorneyÓs Office before May 15, 2017 , are reasonable. After

May 15, 2017 , no additional costs were charged by the Flagler

County AttorneyÓs Offi ce.

5 6 . 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.

5 7 . Based on the findings herein, Hadeed has established

that he incurred: (i) costs in the amount o f $2,797.47 and

attorneysÓ fees in the amount of $50,571.50 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) costs in the am ount

of $168.93 and $7,144.50 for paralegal services incurred by the

Flagler County AttorneyÓs Office in defending the underlying

complaint filed with the Commission and in seeking costs and

fees in this proceeding.

CONCLUSIONS OF LAW

5 8 . 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.

59 . 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 malicious intent to injure

the reputation of such officer or employee

by filing the complaint with knowledge that

the complaint con tains one or more false

allegations or with reckless disregard for

whether the complaint contains false

allegations of fact material to a violation

of this part, the complainant shall be

liable for costs plus reasonable attorney

fees incurred in the defens e 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.

6 0 . Rule 34 - 5.0291(3) provides for the Commission to

review a petition seeking costs and attorneysÓ fees and:

If the Commission determines that the facts

and grounds are sufficient, the Chair after

considering the CommissionÓs workload, shall

direct that the hearin g of the petition be

held before the Division of Administrative

Hearings, the full Commission, or a single

Commission member serving 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 hearing procedures

shall be governed by the applicable

provisions of Chapter 120, F.S. and Chapter

28 - 106, F.A.C. The parties to th e 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 .

6 1 . Further, r ule 34 - 5.0291(1) provides:

If the Commission det ermines 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 o r 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 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.

6 2 . During the course of this proceeding, Weeks moved to

dismiss HadeedÓs petition seeking costs a nd attorneysÓ fees

pursu ant to s ection 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.

6 3 . 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 functions generally are

shielded from liability for civil damages

insofar as their conduct does not violate

clearly established statutory or

con stitutional 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 a nd from potentially disabling

threats of liability.ÓÑ Elder v. Holloway ,

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

(1994) (quoting Harlow , 457 U.S. at 806).

6 4 . 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 discretionary governmental

duties . Once that is established, the

plaintiff must show that the defendantsÓ

conduct violated his clearly establis hed

statutory or constitutional rights.

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

2002).

6 5 . WeeksÓ claim of qualified immunity fails for two

reasons. First, the award of a ttorneysÓ fees pursuant to

s ection 112.317(7) is not a claim f or civil damages. Second, as

the Supervisor of Elections, Weeks had no discretionary duty to

report alleged violations of the Code of Ethics to the

Commission. Weeks cannot claim immunity, qualified or absolute,

in the context of filing an ethics complai nt against Hadeed when

she acted with a malicious intent to injure his reputation and

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 ethics code. WeeksÓ claim of qualified immunity is

rejected.

6 6 . Hadeed has the burden of proving the grounds for an

award of costs a nd attorneysÓ fees pursuant to s ection

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

seeking seeking entitlement, Hadeed has the burden to prove Ðby

clear and convincing evidenceÑ that the award of costs and

attorneysÓ f ees is appropriate pursuant to s ection 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). Hadeed

has proven Ðby clear and convincing evidenceÑ that the award of

costs and attorneysÓ fees is appropriate in this case.

6 7 . In Brown v. Florida Commission on Ethics , 969 So. 2d

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

following elements of a claim by a public official for costs and

attorneys Ó fees: (a) the complaint was made with a malicious

intent to injure the o fficialÓs reputation; (b) the person

filing the complaint knew that the statements about the official

were false or made the statements about the official with

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

material to a violation of the Cod e of Ethics.

6 8 . Section 112.317(7) does not require a public official,

who was falsely accused of ethics violations in complaints

submitted to the Florida Commission on Ethics, to prove Ðactual

maliceÑ when attempting to prove malicious intent to injur e the

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

a textual analysis of the statute, the Court in Brown found that

s ection 112.317(7) is satisfied by the Ðordinary sense of

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

69 . ÐS uch p roof may be established indirectly, i.e., Òby

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

the totality of surrounding 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. 1st DCA 1987) ( quoting Southern Bell Telephone &

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

7 0 . In t his case, the evidence, by a clear and convincing

margin, indicates that Weeks mal iciously filed Ethics

Complaint 14 - 233 against Hadeed in order to damage HadeedÓs

reputation and to advance the political aims of herself and the

Triple Rs . 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 allega tions when she failed to

review the public records which would have indicated that her

allegations were false. Finally, the false statements in her

complaint were material to violations of the Code of Ethics for

Public Officers and Employees, in that they formed the basis for

the CommissionÓs investigation of the complaint.

7 1 . Hadeed is entitled to a total award of $53,368.97 in

costs and attorneysÓ fees in connection with legal services

provided by Messer Caparello in this matter.

7 2 . Hadeed is ent itled to a total award of $7,313.43 in

costs and paralegal fees in connection with legal services

provided by the Flagler County AttorneysÓ Office in this matter.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is RECOMMEN DED that the Commission enter a final order

granting HadeedÓs Petition for Costs and AttorneysÓ Fees

relating to Complaint 14 - 233 in the total amount of $60,682.40.

DONE AND ENTERED this 31st day of August , 2017 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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

this 31st day of August , 2017 .

ENDNOTE S

1/ The cases referred and consolidated by the undersigned 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

Recommended Orders, each applicable to a particular Petitioner,

the facts applicable to each are substantially similar . Despite

this Order applying only to a single Petitioner, t he plural term

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

other consolidated cases, unless the context indicates otherwise.

3/ The record reflects that Richter Jr. has refused to

participate in this case, has avoided service, and has ig nored

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 she was unable to attend the October 5

status conference because she did not receive notice of the

statu s 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 Ðqua lified immunity.Ñ

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

PetitionersÓ Second Motion for Continuance, essentially alleging

that it was filed for purposes of delay. B y O rder 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 the 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 against self -

incrimination because of her pending criminal matter. McDonald

refused to answer on th e ground that his testimony might impact

WeeksÓ pending criminal proceeding. On April 18, 2017,

Petitioners attempted to depose John Ruffalo , who was disclosed

as a potential witness by Respondent McDonald. Mr. Ruffalo

made a brief appearance and announc ed 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 asserting 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

9/ Whether this discussion violated the Sunshine Law is a legal

conclusion that was not addressed by the Commission on Ethics.

10/ Weeks also filed a complaint with The Flo rida Bar seeking to

have Hadeed disciplined or prosecuted. The BarÓs grievance

committee dismissed the complaint , after investigation , as

lacking in probable cause.

COPIES FURNISHED:

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Mark Herron, Esquire

Messer, Caparello, P.A.

Post Office Box 15579

2618 Centennial Place

Tallahassee, Florida 32317

(eServed)

Kimberle B. Weeks

3056 County Road 305

Bunnell, Florida 32110

A lbert T. Gimbel, Esquire

Messer Caparello, P.A.

Post Office Box 15579

2618 Centennial Place

Tallahassee, Florida 32317

(eServed)

Virlindia Doss, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(e Served)

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Advocates for the Commission

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Fl orida 32399 - 1050

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 is sue the Final Order in this case.