Flagler County Attorney Al Hadeed is pressing the county commission not to accept two unanimous votes by the Florida Ethics Commission denying the county attorneys’ fees in frivolous cases against Hadeed and County Commissioner Nate McLaughlin. Hadeed wants the commission to appeal the ethics panel’s decisions to the Fifth Circuit Court of Appeal. He claims the ethics commission is mis-applying Florida law, and that Flagler is entitled to those fees.
The county commission will decide whether to file the appeal following a presentation on the issue by another attorney in two weeks. If the commission does file the appeal, it will find itself once again in a position to spur new legal precedent, as it did late last year and early this year with its new ordinance regulating short-term vacation rentals. That ordinance led to a court challenge locally. It was largely upheld by a circuit court last year, and again by the Fifth Circuit Court of Appeal last month—decisions that vindicate commissioners’ policy, but also their attorney’s shaping of the ordinance.
But an appeal in the ethics commission case is not without political risk. The commission would be perceived as trying to intimidate or silence critics who, however overzealous as in the present cases, exercise their right under the law to file ethics complaints.
The cases at hand relate to a complaint filed by Dennis McDonald against McLaughlin, and by John Ruffalo against Hadeed. McDonald and Ruffalo are members of the Ronald Reagan Republican Assemblies, and have been on the attack against local governments in various ways for the past couple of years. In voluminous filings with the ethics commission, they made copious accusations against Hadeed and McLaughlin drawn from circumstance and assumption rather than evidence. The ethics commission’s investigations saw nothing there and tossed out the complaints.
Hadeed, through the attorney the county’s insurance company hired to handle the case, Mark Herron, then argued that the complaints were replete with knowingly false allegations and that they were intended to damage his and McLaughlin’s reputation. Under Florida law, the county was then entitled to recover attorneys’ fees generated in defense of the complaints. Last month the ethics commission unanimously disagreed and went along with its staff counsel’s recommendation to reject Flagler’s motions.
Monday morning, Hadeed made his pitch to county commissioners, saying the ethics panel erred.
The ethics investigation and commission agreed that “they found nothing, nothing within all those pages that amounted to an ethics violation,” Hadeed said. “So no material fact, there can’t be a false material fact, and therefore there can’t be an attorney fee. Are you following that logic?”
“Yeah,” Commissioner Frank Meeker said, “but it’s making my head spin.”
Summarizing his interpretation of the ethics commission’s reasoning, Hadeed said that If the ethics commission had found that there was a sufficient allegation, and the county had gone through the process of fighting it, defeating it and being vindicated, then it would be eligible for fees.
The interpretation may be sound, but it’s not the only interpretation: the ethics commission in its order said that malicious intent on Ruffalo’s and McDonald’s part was not proved, and that the attempt to show that malice existed because Ruffalo and McDonald or their allies had also filed similar complaints in other forums was not sufficient proof. The ethics commission also found “lacking” the claim that Ruffalo and McDonald had made knowingly false claims.
So the question is not whether the filings by Ruffalo and McDonald were frivolous, baseless or even injurious to the reputations of Hadeed and McLaughlin. The ethics commission found them baseless. But it’s whether they were intentionally and recklessly so, a high bar it found Flagler’s petition did not meet.
Hadeed said the staff of the ethics commission has uniformly opposed such reimbursement of fees, in part, Hadeed thinks, because the staff would have to start working on just such petitions, which would be a distraction from “the many numerous complaints that they have to review,” Hadeed said. “So I understand it’s a huge workload issue, but nevertheless it’s part of the law. So while I respect their position, in my humble opinion, what they have done is created a new requirement that’s not in the statute.”
He noted that three of the ethics commission’s members had just been seated when Flagler’s case was heard, and were unlikely to go against their staff’s recommendation. Even if they had done so, however, the vote would still have carried against Flagler’s position.
McDonald, for his part, has interpreted Hadeed’s push for fees as an “attempt to bully the public they are supposed to serve,” as he put it in a letter to the Historic City News, a website in St. Augustine, on Jan. 29. Writing in support of the ethics commission’s votes, he wrote, “This decision maintains the system the Florida Legislature set in place years ago to provide a structured process for taxpayers to report ethics misdeeds. This system of reporting and due process was created to prevent the need for citizens from having to enter the courts and hire a lawyer to compel compliance with ethical behavior standards by Florida’s officials, both elected and appointed, as provided by state regulation.” But the letter also repeats some allegations that have been discredited.
Meanwhile, attorneys’ fees and time continue to run up the clock on the cases. There has been no exact accounting of either time or money spent on those cases so far.