16-005248FE George Hanns vs. Dennis Mcdonald 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

GEORGE HANNS,

Petitioner,

vs. Case No. 16 - 5248FE

DENNIS MCDONALD,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly noticed final hearing was held in this ma tter 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, B uilding 2

Bunnell, F lorida 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 what amou nt.

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 Administrativ e 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 suggested t hat 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 - 5246FE, c ounsel 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 information 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 Kimber le 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 pe nding 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 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 un dersigned 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, Petitioners f iled

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

d iscovery. 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 Dece mber 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 Petitioner sÓ 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 failure 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 respo nse 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 Peti tionersÓ

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 e ach 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

ordered ea ch 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 Ð April 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 da ys 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. On ly 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 reschedule 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 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 available 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 these proceedings. By Order entered

February 28, 2 017, 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 process 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 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 unanswered

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

McDonald during prior hearings in this matter. By Order dated

April 11, 2017, the u ndersigned 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.

Pursu ant 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

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 previously instructed

Respondents Weeks and McDonald of the duty

to respond to discovery 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 to all ow 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 objectio n.

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 fail ure 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 Or der 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

revealed i n 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 h earing 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 undersign ed

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 Ðqualified i mmunity.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 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 (ÐMeekerÑ)

and Pe titioner 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 presented the testimony of Mr. Hadeed; Mark Herron,

counsel for Petitioners; and Michael P. Donal dson 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 exhibits 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 motio n 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 attorneys Ó fees incurred in

pursuing this matter after conclusion of the final hearing.

No o bjection or other response was filed by any of the

Respondents. The motions were granted and PetitionerÓs

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

Counsel for Petitioners asked to submit a proposed

recommended order within 30 days of t he 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.

Counsel 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 sever ed these cases. Accordingly,

separate Recommended Orders have been rendered in each case.

FINDING S OF FACT

Ethics Complaint 15 - 174

1. On August 17, 2015, the Commission received a

complaint against George Hanns (ÐHannsÑ) filed by McDonald

which alleged t hat Hanns, as a member of the Flagler County

Commission (ÐCounty CommissionÑ) and the Flagler County

Canvassing Board (ÐCanvassing BoardÑ), violated FloridaÓs

election laws, the Government - in - the - Sunshine Law (ÐSunshine

LawÑ), and FloridaÓs Code of Ethics for Public Officers and

Employees (ÐCode of EthicsÑ).

2. Specific allegations in the complaint included that:

A Special Ca nvassing Board meeting was

held on September 12, 2014 in the Supervisor

of Elections office bringing in a record

crowd of voters. Co mmissioner Hanns and

other county commissioner's behaviors and

actions towards the Supervisor of Elections

were criticized by Joe Kubusky. George

Hanns becam e argumentative, stood up

(in a threatening manner) and very

unprofessionally verbally lashed back

yelling at the public in a threatening

manner. Many of the individuals present

recorded the meeting, as did the Supervisor

of Elections. Following the September 12,

2014 Special Canvassing Board meeting a

scheduled County Commission meeting was

held. I t was at this time County Commission

Chair/Canvassing Board member George Hanns

brought up at the end of the County

Commission meeting issues faced during

Canvassing Board meetings. The alternate

canvassing board member Barbara Revels and

county attorney/ canvassing board attorney

Albert Hadeed were present. A discussion

then took place at the County Commission

meeting about the appointment of a

canvassing board attorney along with other

election related topics; all which were

captured on audio by the staf f member of the

Clerk of the Court. It is believed that

none of the election related topics were

reflected on the meeting agenda, advertised

to the public or reflected in the Board of

County Commission meeting minutes.

Furthermore, the other canvassing b oard

members (including the Supervisor of

Elections) were not noticed and provided the

opportunity to be present to participate in

the discussions. It would not be expected

that election Canvassing Board issues be

discussed at a Board of County Commission

Meeting with only a canvassing board member

and canvassing board alternates present.

During the Board of County Commission

meeting it was stated that action was to

take place at the next scheduled election

canvassing board meeting (October 17, 2014)

for the county attorney Albert Hadeed (the

board of county commissioners attorney) to

be appointed the official canvassing board

attorney, which in fact did occur during the

October 17, 2014 Canvassing Board meeting as

had been stated at the County Commission

meeting and Commissioner George Hanns was

the one to make the motion on the matter.

From my perspective and other public

attendees it seemed that this voting in of

Hadeed had been prearranged! No such topic

was discussed during the September 12th

Special Canvassing Board meeting or at any

other prior Canvassing Board meetings,

therefore, it is believed a violation of the

Florida Sunshine Law occurred. It was

unknown by the Canvassing Board Agenda that

a vote was going to take place at the

October 17, 201 4 canvassing board meeting as

to who the canvassing board attorney would

be. This September 12, 2014 Board of County

Commission meeting appeared to be the prime

opportunity for collaboration between

commissioners (canvassing board member and

alternates) a nd their staff to poll support

from one another to manipulate and conquer

the events of election canvassing board

meetings to their advantage and liking, and

to undermine and attack the supervisor of

elections who is a constitutional elected

officer who is independently elected by the

people to preserve the integrity of the

elections process. [ 9/ ]

3. The complaint also alleged that:

The County Commission also discussed

election related issues on or about

October 20, 2014 at a regularly scheduled

Board of C ounty Commission meeting, which

too is believed to be a violation of the

Sunshine Law as it was not advertised, was

not on the meeting agenda, nor were other

canvassing board members noticed or provided

the opportunity to participate in the

discussions. T hese occurrences of

discussing the Canvassing Boards business

take place with Commissioner George Hanns,

Chair of the County Commission leading the

meetings, and are done at the end of Board

of County Commission meetings where the

public would not expect s uch events. All

discussions are captured on meeting audio

though they may not be reflected in the

Board of County Commission meeting minutes.

4. The complaint further alleged that:

The actions of George Hanns, the other

county commissioners, and their staff have

been done willingly, intentionally and with

knowledge. They have used their position

for personal gain - to remain in office, and

to benefit other fellow commissioners to get

re - re - elected so they too could remain in

office to carry out agendas collectively.

In the last two election cycles four of

these commissioners have been narrowly

elected. Hanns was a five term incumbent

but won by 318 votes to a first time

candidate, that was less than 1% but more

than the .5% required to recount. Erick sen

won by 120 votes and Meeker survived by 209

votes. They together retaliated against the

supervisor of elections by conspiring

together to harm the Supervisor of Elections

reputation and their actions impacted our

elections. Chair Commissioner George Hanns

used his county employees to carry out his

agenda relating to unethical practice and

attacking the Supervisor of Elections for

exposing his wrong doing and his dislike for

being requested to remove himself from the

county canvassing board. Commissio ner Hanns

and his fellow Commissioners are responsible

for the actions and behaviors of the county

administrator Craig Coffey and County

Attorney Albert Hadeed. The removal of

Commissioner George Hanns from the

Canvassing Board left him powerless in the

c anvassing process and an embarrassment to

our County.

Discussions regarding the canvassing board

took place at least twice at board of county

commissioner meetings following the

September 12, 2014 special canvassing board

meeting and again on October 20, 2014. It

is believed that both times canvassing board

member and others have violated the Sunshine

Law, and it is believed that those involved

that are not canvassing board members or

alternates were being a conduit to certain

canvassing board members who were present.

5. 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 the [Hanns] and

other members of the Board [of County

Commi ssioners] or members of the canvassing

board were involved in discussions which may

not have been in compliance with the

Sunshine Law, in order to manipulate

canvassing board members or canvassing board

conduct, that the Respondent was involved in

placemen t of the County Attorney as attorney

for the canvassing board (a placement

objected to by the Supervisor of Elections),

and that the Respondent was involved in

other or related conduct, including

retaliation against the Supervisor of

Elections, apparently for the benefit of a

particular candidate the Respondent had

endorsed, or for the benefit of 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 th e investigative staff of the Commission was

directed to Ðconduct a preliminary investigation of this

complaint for a probable cause determination of whether [Hanns]

has violated section 112.313(6), Florida Statutes, as set forth

above.Ñ

The CommissionÓs In vestigation

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 co mprised 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. Th e Canvassing Board for the

2014 Election was made up of Han ns (then - County Commission

Chair), Judge Melissa Moore - Stens, and then - Supervisor of

Elections Weeks. Initially, the alternate member of the

Canvassing Board was County Commission member

Charles Ericksen, Jr.

b. Minutes from the September 15, 2014 Flagle r 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 take n at

that time. The minutes indicate that County Attorney Albert

Hadeed advised that it would be the Canvassing Board's decision

as to who its legal counsel should be; and that County

Administrator Craig Coffey suggested that the Canvassing Board

resolve the issue at its next meeting.

c. Current Flagler County Supervisor of Elections Kaiti

Lenhart advised that her records indicate that either the County

Attorney or an attorney from the County Attorney's Office has

served as the Canvassing Board Attorney s ince 1998. Records

preceding the 1998 election are not available. County Attorney

Hadeed indicated that the County Attorney, or someone from the

County AttorneyÓs Office, had served as the Canvassing Board

Attorney for the past 25 years.

d. Minutes from the October 17, 2014 Canvassing Board

meeting indicate that Weeks made a motion that she be given

authority to select the Canvassing Board attorney and that her

motion died for lack of a second.

e. The issue of Commissioner Ericksen's contribution to a

c andidate in the subject election was raised at the October 17,

2014 Canvassing Board meeting by Weeks. Commissioner Ericksen

was not present at the meeting. Hanns indicated at the meeting

that he would bring the issue to the attention of the County

Commi ssion at its next regular meeting, which was scheduled for

October 20, 2014, thus alerting the members of the Canvassing

Board that the issue would be publicly discussed by the County

Commission.

f. Minutes from the October 20, 2014 County Commission

meet ing indicate that there was a discussion regarding

Commissioner EricksenÓs contribution to Meeker, who had

opposition in his upcoming reelection, and that Commissioner

Ericksen resigned as an alternate member of the Canvassing Board

at that time. The Comm ission then voted to appoint Commissioner

Barbara Revels as the alternate Canvassing Board member.

g. All discussions by the County Commission regarding the

Canvassing Board took place during the ÐCommissioner

Reports/CommentsÑ or ÐCommission ActionÑ port ion of duly noticed

County Commission meetings.

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

October 20 , 2014 County Commission meeting were Hanns and

alternate member Commissioner Ericksen.

i. The minutes from the October 20, 2014 County Commission

meeting indicate that the County Commission reached a

ÐconsensusÑ to authorize the County Administrator to request the

observer for the remainder of the election cycle. This request

resulted from HannsÓ observations, while a member of the

Canv assing Board, regarding the handling of absentee ballots by

Weeks, whom he believed had close connections to at least one

candidate in the election.

j. County Administrator Coffey raised these concerns at

the October 20, 2014 Commission meeting and reques ted County

Commission permission to request an observer from the Division

of Elections. County Administrator Coffey's October 21, 2014

letter to the Secretary of State , requesting an observer ,

indicates that the County Commission voted unanimously to

auth orize him to pursue the request. County Administrator

Coffey stated in the letter that the community's confidence in

the elections process is low due to both recent and past events

involving the Supervisor of Elections.

k. When asked about his allegation that Hanns was involved

in other or related conduct, apparently for the benefit of

particular candidates or others, McDonald indicated that he 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 no probable cause to believe

that Hanns violated section 112.313(6) by participating in

discussions which may have been in violation of the Sunshine

Law, or other related conduct rega rding appointment of the

County Attorney as attorney for the Canvassing Board in order to

manipulate Canvassing Board members or to carry out a planned

agenda for the benefit of particular candidates or others. In

addition, the Commission Advocate recomme nded that there was no

probable cause to believe that Hanns violated section 112.313(6)

by retaliating against the then - Supervisor of Elections for her

efforts to remove two County Commissioners from the Canvassing

Board.

9. On April 20, 2016, the Commis sion issued its Public

Report dismissing McDonaldÓs complaint against Hanns for lack of

probable cause.

McDonaldÓs Knowledge of the Falsity of His Sworn Allegations

10. McDonald filed a sworn complaint against Hanns. When

he signed the complaint, McDon ald executed an oath that Ðthe

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

11. When he filed his complaint against Hanns, McDonald

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.

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 request.

13. 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 consensu s 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 Commission to

designate the County Attorney as the attorney for the Canvassing

Board.

15. To the contrary, t he County Commission determined that

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

attorney.

16. All meetings of the Canvassing Board are publicly

noticed and open to the public and its records are open for

public inspection.

17. When asked by the CommissionÓs investigator whether

Hanns was involved in other or related conduct, for the benefit

of particular candidates or others, McDonald indicated he had no

information regarding that allegation.

18. The allegations in the McDonaldÓs complain t against

Hanns, which the Commission found material to investigate, were

known by McDonald to be false, or filed by McDonald with

reckless disregard for whether they were true or false.

Malicious Intent to Injure Hanns

19. Whether the claims against pu blic 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).

20. The evidence adduced at the hearing established that

McDonal d worked in concert with other individuals to

maliciously injure the reputation of Hanns by filing complaints

containing false allegations material to the Code of Ethics

with the Commission on Ethics and other agencies.

21. This group, formed in 2009 or 2010, was known

formally as the Ronald Reagan Republican Association,

informally as the ÐTriple Rs.Ñ Members of the group included

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

Stephens, William McGuire, Bob Hamby, and Dan Bozza.

22. The Trip le 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. McDonald ran against and lost to Meeker in the

2012 and 2014 elections. In 2014, Richter Sr. ran against and

lost to Commissioner McLaughlin. The Triple Rs also tried to

influence the results of the elections by filing complaints

with multiple agencies against various elected and appointed

Flagler County officials.

23. McDonald was t he de f acto spokesperson of the

Triple Rs. McDonald was such a frequent visitor to WeeksÓ

office between the 2012 and 2014 election cycles that Weeks Ó

husband expressed concern to Commissioner McLaughlin about

McDonaldÓs influence over her.

24. This grou p filed 25 complaints against Flagler County

officials, individually and collectively, including complaints

against Hanns, all members of the 2014 County Commission, the

County Attorney, and the County Administrator. The complaints

were filed with the Com mission 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 limited liability company -- the ÐFlagler Palm Coast

WatchdogsÑ -- and also filed suit aga inst the County Commission

to block renovation of the old Flagler Hospital into the

SheriffÓs Operation Center, alleging violations of the Code of

Ethics.

25. At least 12 of the complaints filed by the group

specifically alleged or referenced the false al legations 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,

improperly selecting the Canvassing Board attorney, and

advancing a hidden agenda.

26. In addition to alleging that Hanns violated FloridaÓs

ethics laws and Sunshine Law, the complaint filed with the

Commission alleged that Hanns violated FloridaÓs campaign

finance law in several respects.

27. The allegations that Han ns discussed C anvassing B oard

matters in violation of the Sunshine Law with the goal of

manipulating elections, selected the C anvassing B oard attorney,

and advanced a hidden agenda were crucial to the ethics

complaint which McDonald filed against Hanns. T hese allegations

formed the basis for the CommissionÓs finding that the complaint

was legally sufficient and order that it be investigated.

2 8 . Had Hanns been found to have violated Florida ethics

and elections law, it would have damaged his reputation in the

community.

29 . The totality of these findings, including the number

of complaints, the collaboration among the various

complainants, and the inclusion of similarly false allegations

in complaints filed by different complainants with different

agenc ies, lead to no reasonable conclusion other than Ethics

Complaint 15 - 174 was filed with a Ðmalicious intentÑ to injure

the reputation of Hanns, and create political gain for the

Triple Rs and Weeks.

3 0 . The totality of these findings constitutes clear and

convincing evidence that McDonaldÓs 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 Code of Ethics.

3 1 . The totality of these finding s constitutes clear and

convincing evidence that McDonald showed Ðreckless disregardÑ

for whether his sworn complaint contained false allegations of

fact material to a violation of the Code of Ethics.

3 2 . The totality of these findings constitutes clear a nd

convincing evidence that the true motivation behind the

underlying complaint was the political damage the complaint

would cause Hanns, with the corresponding benefit to the

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

wrongdoing by Hanns.

Attorneys Ó Fees and Costs

3 3 . Upon receipt and review of the complaints filed

against Hanns 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 elec tions related matters.

3 4 . Mr. Herron was retained by Flagler County on 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

diff erence between the $180 per hour that the insurance carrier

was willing to pay and the reasonable hourly rate.

3 5 . The rate of $180 per hour paid by the CountyÓs

liability insurance carrier to the Messer Caparello firm is an

unreasonably low hourly rate f or 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, $350 per hour is a

reasonable hourly rate to compensate th e Messer Caparello firm

in this proceeding.

3 6 . 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 73.54 hours were s pent in defending the

underlying complaint filed with the Commission and in seeking

costs and fees in this proceeding.

3 7 . The record remained open for submission of Messer

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

through the date o f submission of the Proposed Recommended

Order. These additional records of the Messer Caparello law

firm indicate that a total of 58.33 hours 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.

3 8 . Costs of $1,919.21 incurred by the Messer Caparello

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

$424.90 incurred by the Mess er Caparello law firm after May 14,

2017, are reasonable.

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

County AttorneyÓs Office is reasonable. Time records of the

Flagler County AttorneyÓs Office through May 15, 2017, indicate

that a total of 13.20 hours of attorney time were spent

assisting in the defense of t he underlying complaint filed with

the Commission and in seeking costs and fees in this

proceeding. Time records of the Flagler Count y AttorneyÓs

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

22.20 hours of paralegal time were spent assisting in t he

defense of the underlying complaint filed with the Commission

and in seeking costs and fees in this proceeding.

4 0 . The record remained open for submission of costs and

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

submission of the P roposed Recommended Order. These additional

records of the Flagler County AttorneyÓs Office indicate that a

total of 6.60 hours of attorney time, and a total of 2.10 hours

of paralegal time were spent in seeking costs and fees for that

defense at the form al hearing in this cause and in preparation

and submission of the Proposed Recommended Order.

4 1 . Costs of $168.93 incurred by the Flagler County

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

Costs of $292.00 incurred by the Flagler County AttorneyÓs

Office after May 15, 2017, are reasonable.

4 2 . A reasonable hourly rate for the time of Flagler

County Attorney in connection with this matter is $325 per

hour. A reasonable hourly rate for the time of the paralegal

in the Flagler County Attor neyÓs Office in connection with this

matter is $150 per hour.

4 3 . Based on the findings herein, Hanns established that

he incurred: (i) reasonable costs in the amount of $2,346.11

and reasonable attorneysÓ fees in the amount of $46,154.50 for

the service s of the Messer Caparello law firm in defending

against the underlying complaint filed with the Commission and

in seeking costs and fe es in this proceeding; and

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

attorneysÓ fees in the amount of $10,080.00 for the services of

the Flagler County AttorneyÓs Office in defending against the

underlying complaint filed with the Commission and in seeking

costs and fees in this proceeding.

CONCLUSIONS OF LAW

4 4 . The Division of Administrative Hearings h as

jurisdiction over the parties to and the subject matter of this

proceeding. See §§ 120.569 and 120.57(1), Fla. Stat.

4 5 . Section 112.313(7) provides for an award of

attorneyÓs fees and costs in the following circumstances:

In any case in which the com mission

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

al legations 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 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 co mmission 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.

4 6 . 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 hearing 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 the hearing

shall be the pet itioner (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 .

4 7 . Further, rule 34 - 5.0291(1) provides:

If the Commission determines that a person

has fi led 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 fo r 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 cost s and reasonable

attorneyÓs fees incurred in proving

entitlement to and the amount of costs and

fees.

4 8 . Hanns has the burden of proving 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, Hanns 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). Hanns has proven Ðby

clear and convincing evidenceÑ that the award of costs and

attorneysÓ fees is appropriate in this case.

49 . 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

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

intent to injure t he officialÓs 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 Code of Ethics.

5 0 . 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 inj ure the

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

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

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

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

5 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 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 S . Bell Tel . & Tel . Co. v.

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

5 2 . In this case, the evid ence, by a clear and convincing

margin, indicates that McDonald maliciously filed Ethics

Complaint 15 - 174 against Hanns in order to damage HannsÓ

reputation and to advance the political aims of the Triple Rs

and Weeks. In addition, the evidence showed tha t, despite

stating under oath that Ðthe facts set forth in the complaint

were true and correct,Ñ McDonald either knew the matters alleged

in the complaint were false, or he was consciously indifferent

to the truth or falsity of his allegations when he fail ed to

review the public records which would have indicated that his

allegations were false. Finally, the false statements in his

complaint were material to violations of the Code of Ethics, in

that they formed the basis for the CommissionÓs investigation of

the complaint.

5 3 . Hanns is entitled to a total award of $48,500.61 in

costs and attorneysÓ fees in connection with legal services

provided by Messer Caparello in this matter.

5 4 . Hanns is entitled to a total award of costs and

attorneysÓ fees in an amount of $10,541.92 in connection with

legal services provided by the Flagler County AttorneyÓ s Office

in this matter.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Commission enter a final ord er

granting HannsÓ Petition for Costs and AttorneysÓ Fees relating

to Complaint 15 - 174 in the total amount of $59,042.53.

DONE AND ENTERED this 2 1st 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

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 Adminis trative Hearings

this 2 1st day of September, 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

Eric ksen, 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 sever ed and, therefore, subject to separate

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

the facts applicable to each are substantially similar. Despite

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

ÐPetitionersÑ will be u sed, 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 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 she 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 filed 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 against self -

incrimination because of her pending criminal matter. McDonald

refused to answer on the ground that his testimony might impact

W eeksÓ 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 announced that he was also going to

refuse to ans wer 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 t o be a claim of

Ðqualified immunity.Ñ

9/ All excerpts from the complaint are reproduced verbatim in

this Recommended Order. Spelling and grammatical errors are in

the original complaint, which were too numerous to be designated

individually with the [si c] signal.

COPIES FURNISHED:

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Albert J. Hadeed, Esquire

Flagler County Board of

County Commissioners

1769 East Moody B oulevard, B uilding 2

Bunnell, F lorida 32110

(eServed)

Mark Herron, Esquire

Messer, Caparello, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32317

(eServed)

Dennis McDonald

Post Office Box 1232

Flagler Beach, Florida 32136

Albert T. Gimbel, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Post Office Box 15579

Tallahassee, Florida 32308

(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 Drawer 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 written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.