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Not All Speech Is Free: County Slams McDonald for Legal Fees Over “Knowingly False” Claims

| November 17, 2015

dennis mcdonald ethics commission

Flagler County government and Commissioner Nate McLaughlin want their legal fees back from an ethics complaint Dennis McDonald, above, filed against McLaughlin, and that the Florida Ethics Commission dismissed. McDonald says he will ‘absolutely’ contest the county’s move. (© FlaglerLive)

An attorney representing Commissioner Nate McLaughlin on behalf of the Flagler County Commission on Monday filed a petition to the Florida Ethics Commission to recover costs county government incurred defending an ethics complaint against McLaughlin the county deems based on malicious lies.

The complaint was filed against McLaughlin by Dennis McDonald, a director of the Ronald Reagan Republican Assemblies, on June 30. The ethics commission dismissed it on Oct. 28. It was one of 19 similarly styled complaints filed by McDonald, Assemblies member John Ruffalo and their allies against county officials since last year.

Monday’s filing was not a surprise. County Attorney Al Hadeed told the county commission it was likely last month, when the McDonald and Ruffalo ethics complaints became the latest of more than half the 19 complaints to be dismissed. But the wording of Monday’s filing reveals the extent to which McDonald went to–according to the county–invent a case against McLaughlin, intentionally to damage his reputation. At one point the petition suggests that McDonald lied under oath, which would amount to perjury, a criminal offense. And throughout, the 11-page petition mirrors McDonald’s acts with those of his co-complainers, stating explicitly that all 19 complaints show “similarities of structure, content, and intent among the complaints filed by the group that exhibit a concerted effort to cast local officials in a false light and besmirch their reputations.”

The wording and intimations of the petition is remarkable for a tone that mirrors political rather than legal rejoinders, which may well be the county’s intent: it is sending a signal to the Reagan assemblies or its current and former acolytes that it is no longer taking gratuitous criticism even within the usual and very broad bounds of public and government discourse, where the threshold for injurious speech is almost invisible. For a government official to have a legal case against anyone who’s been critical beyond First Amendment protections, the official must show that the criticism was not only false, but willfully so, and in reckless disregard of the truth.

That’s what the petition to the ethics commission, unique in the annals of Flagler government, seeks to do.

“The complaint by Mr. McDonald was filed with a malicious intent to injure the reputation of Mr. McLaughlin,” the petition, written by attorney Mark Herron but likely with generous helpings of Hadeed, “and it was fueled with knowledge that it contained one or more false allegations, or with reckless disregard for whether it contained false statements of facts material to alleging a violation of the Code of Ethics.”

“I’m absolutely going to contest it,” McDonald said this afternoon in an interview. “Maybe I gave them too much information and they didn’t get to it, but the issue is how can we function without people freely being able to make complaints to the ethics commission?” He said it’s now a First Amendment issue.

The county is listing just $630 in recoverable fees so far, but Hadeed, briefing the commission on the filing Monday evening, said the amount is far from the recoverable total because it doesn’t include his office’s billable hours, only those of Messer Caparello, the Tallahassee-based firm that filed the petition.

“We have been doing the bulk of the work on these complaints simply because it reduces the cost that the insurance company has to spend, which hopefully will mitigate against any insurance premium increase, so we’re trying to save premium dollars long into the future by trying to do as much of the work as we can,” Hadeed said.

The counter-complaint against Ruffalo, which Ruffalo filed against Hadeed, is still in the works because his allegations are “far more numerous,” Hadeed said.

Others filing complaints have included Mark Richter Sr. and his son of the same name. The father ran against McLaughlin in the Republican primary in 2014 and lost, and moved from Daytona North (or the Mondex) to run in the district now held by Charlie Ericksen Jr. McDonald ran against commissioner Frank Meeker and lost.

McDonald’s complaint against McLaughlin was two-fold. It claimed that when McLaughlin paid a $250 fine for an impropriety with a campaign ad, he paid the fine improperly. And that the county should not have been providing him a defense for his acts as a candidate.

Both claims are false, Hadeed said, citing documents. Beyond that, he said McDonald knew his claims were false, because he had asked for, and received–through public record requests–the documents that explicitly prove McLaughlin had used his money, not the county’s, to pay the fine. Similar documents and recordings show that the county’s defense of McLaughlin was legal, as had been explained to commissioners by Hadeed.

“Mr. McDonald who serves us with public record requests quite frequently,” Hadeed said, “had requested records concerning these insurance claims, and he received the letters in advance of his filing of the complaint, letters that were specifically addressed to Mr. McLaughlin and the county commission, saying that there would be no coverage, there would be no assumption of any of the costs or the obligations to respond to that particular political ad complaint, and that was in his possession prior to the time that he filed the ethics commission complaint.”

“I take a different viewpoint of that and I think I’m correct on that,” McDonald said today. “Frank meeker did it right. Frank Meeker wrote a check from Frank Meeker to the Division of Elections and paid his fine. McLaughlin did not. McLaughlin paid his fine from a trust account.” (Meeker was fined for the same reason McLaughlin was.) In other words, “he did not pay it from a personal check. I mean Frank did it right. Why does Nate have to do it through an attorney? Is he trying to hide something?”

McDonald wrote to the ethics commission: “It is believed funds disbursed from the Trust Account were funds that were not provided personally by the ‘Respondent’ Nathan (Nate) McLaughlin.”

“This is essentially a First Amendment right, and if you stop and think about it, the reason the Ethics Commission exists, it’s to find these things out,” McDonald said today, stressing that it was the first time he’d made an ethics complaint. “I think I’ve got it right,” he said, while the county is “fuzzing up the whole thing” to silence him.

But McDonald is no rookie in such legal actions against government. Two years ago he sued Palm Coast, the lawsuit was declared frivolous, Palm Coast pursued McDonald and his attorney for fees, and a circuit court ruled in Palm Coast’s favor, forcing McDonald to pay several thousand dollars in legal fees.

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8 Responses for “Not All Speech Is Free: County Slams McDonald for Legal Fees Over “Knowingly False” Claims”

  1. Fredrick says:

    Will these guys ever just go away???

  2. confidential says:

    Another Slapp aka Strategic Lawsuits Against Public Participation, against citizen Mr. Dennis McDonald to silence him. I thought that as per Florida Florida Statutes 786.295, http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0768/Sections/0768.295.html, these lawsuits are prohibited as voted by our Florida legislature, as is the intent of the Legislature to protect the right in Florida to exercise the rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct representatives, and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. Then furthermore violations to the Florida Statute from our FCBOCC, manager and attorney? Or they are exempted from abiding by our Florida Constitution? If so why Tallahassee comes up with Florida Statutes that county or city governments violate?

  3. Challenge us and we will use your tax dollars to come after you says:

    Where is the proof from the ethics commission that anything contained in the complaint was stated to injure ones reputation and was not actually factual? This all appears to be an action to hush those that don’t agree with elected officials actions and a form of intimidation. There must be some validity to complaints filed since Revels, Meeker, McLaughlin and Manfre have all been fined in recent months. It is shameful our county attorney is wasting our tax dollars and all are pretending to be victims when these same elected officials have been fined since taking office.

    What is the outcome of the elections commission hearings held 11/17/15 regarding complaints to be heard before the elections commission board against Commissioners Meeker and McLaughlin? It’s interesting that the county didn’t boast about today’s hearings on their website….oh, that’s right-that’s one of those things they like to keep quiet because they can spin it because it was a probable cause hearing.

  4. confidential says:

    Yes the right to Freedom of Speech also in Florida:
    The 2015 Florida Statutes
    Title XLV
    TORTS
    Chapter 768
    NEGLIGENCE
    View Entire Chapter
    768.295 Strategic Lawsuits Against Public Participation (SLAPP) prohibited.—
    (1) It is the intent of the Legislature to protect the right in Florida to exercise the rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct representatives, and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. It is the public policy of this state that a person or governmental entity not engage in SLAPP suits because such actions are inconsistent with the right of persons to exercise such constitutional rights of free speech in connection with public issues. Therefore, the Legislature finds and declares that prohibiting such lawsuits as herein described will preserve this fundamental state policy, preserve the constitutional rights of persons in Florida, and assure the continuation of representative government in this state. It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts.
    (2) As used in this section, the phrase or term:
    (a) “Free speech in connection with public issues” means any written or oral statement that is protected under applicable law and is made before a governmental entity in connection with an issue under consideration or review by a governmental entity, or is made in or in connection with a play, movie, television program, radio broadcast, audiovisual work, book, magazine article, musical work, news report, or other similar work.
    (b) “Governmental entity” or “government entity” means the state, including the executive, legislative, and the judicial branches of government and the independent establishments of the state, counties, municipalities, corporations primarily acting as instrumentalities of the state, counties, or municipalities, districts, authorities, boards, commissions, or any agencies thereof.
    (3) A person or governmental entity in this state may not file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against another person or entity without merit and primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.
    (4) A person or entity sued by a governmental entity or another person in violation of this section has a right to an expeditious resolution of a claim that the suit is in violation of this section. A person or entity may move the court for an order dismissing the action or granting final judgment in favor of that person or entity. The person or entity may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the claimant’s or governmental entity’s lawsuit has been brought in violation of this section. The claimant or governmental entity shall thereafter file a response and any supplemental affidavits. As soon as practicable, the court shall set a hearing on the motion, which shall be held at the earliest possible time after the filing of the claimant’s or governmental entity’s response. The court may award, subject to the limitations in s. 768.28, the party sued by a governmental entity actual damages arising from a governmental entity’s violation of this section. The court shall award the prevailing party reasonable attorney fees and costs incurred in connection with a claim that an action was filed in violation of this section.
    (5) In any case filed by a governmental entity which is found by a court to be in violation of this section, the governmental entity shall report such finding and provide a copy of the court’s order to the Attorney General no later than 30 days after such order is final. The Attorney General shall report any violation of this section by a governmental entity to the Cabinet, the President of the Senate, and the Speaker of the House of Representatives. A copy of such report shall be provided to the affected governmental entity.
    History.—s. 1, ch. 2000-174; s. 1, ch. 2015-70.

  5. We do what we want says:

    Because McDonald is an honorable man I doubt very seriously if he made any false claims or made claims to damage a reputation of county employees–he speaks the truth. Until you are able to provide documentation from the Ethcis Commission stating his complaint was false, it can only be believed that what the county is doing is an attack on Dennis McDonald because they don’t like being challenged.

  6. just me says:

    People should not fear a law suit when they question government BUT they also should be held financially accountable if found to be a unjustified law suit against the government or any others. ~

    But McDonald is no rookie in such legal actions against government. Two years ago he sued Palm Coast, the lawsuit was declared frivolous, Palm Coast pursued McDonald and his attorney for fees, and a circuit court ruled in Palm Coast’s favor, forcing McDonald to pay several thousand dollars in legal fees. ~

    I also wish Government and its officials where held to the same standard when they knowingly lie to us.

  7. Layla says:

    Why is the county attorney representing a commissioner?

  8. Commom Sense says:

    I applaud these officials for going after these divisive political wannabes.

    What the two commenters above don’t understand is that, just like with his previous lawsuit, McDonald gets it wrong. He insults, lies and offers no proof of his unfounded assertions. This is a man with too much time and money on his hands. He was given documents that proved there was no merit to his claims.

    His strategy is to throw enough dirt and hope some of it will stick so he can get elected instead. It is time for the citizens of Palm Coast to tell him we’ve had enough.

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