Flagler Commissioners Press Case to Recover Fees from 5 More Frivolous Ethics Complainants
FlaglerLive | May 17, 2016
It hasn’t worked so far. But the Flagler County Commission is trying again. Monday evening the commission voted to try to recover attorney’s fees and costs in five ethics commission cases filed against its members and its attorney by the same group of people who have filed close to 30 such complaints in various state and local venues going back to 2014.
Most of those cases have been tossed as frivolous or legally insufficient. Last year the commission tried to recover fees in some of the cases. The Florida Ethics Commission ruled against Flagler. The county is appealing.
That appeal is separate from Monday evening’s actions, which refer to complaints the ethics commission dismissed on April 15. Those complaints had targeted Commissioners Charlie Ericksen, Frank Meeker, Nate McLaughlin, George Hanns and County Attorney Al Hadeed. Under Florida law, if an ethics commission complaint is found to have been filed with malicious intent–to injure the reputation of an official–and if the allegation is knowingly false, the targeted official may seek attorney’s fees.
Mark Herron, the attorney representing the commission and Hadeed in the various cases, presented that option to the commission Monday. Three of the five complaints (against McLaughlin, Meeker and Hanns) were essentially identical. They alleged that the county commission met out of the sunshine, took some action and voted to carry on a planned agenda to place Hadeed as the canvassing board attorney. The alleged actions were presumed to benefit two incumbent candidates running for reelection in 2014: McLaughlin and Meeker.
The ethics commission investigated. With respect to those three complaints specifically, “there’s evidence in the record that those complaints were filed with malicious intent to injure the reputation of those three public officials,” Herron said. “They were filed that way in the sense that as you know, and most of your constituents know, there’s been 26 complaints filed against you by a group of individuals. We believe that they’re acting in concert, we can show that through the language that is common in the various complaints. They have filed those complaints with multiple agencies. They have made allegations in those complaints that you have committed criminal violations, which is defamation per se, and we believe that that is out there basically to injure your public reputations. And it has arisen as part of political conflict in this county, and I think that’s part of malicious intent.”
He said the complainants knew when they made the allegations that the allegations were false: the discussions about the canvassing board, for example, had taken place in formal, open meeting, when no vote was taken.
The Hanns complaint alleged he took action to retaliate against Kimberle Weeks, the former supervisor of elections, when he and other commissioners asked the state Division of Elections to send a monitor to the supervisor’s office (the request was made with the Department of State).
In Commissioner Charlie Ericksen’s case, the claim that he refused to step down from the canvassing board is, Herron said, also false, providing a basis for recovering attorney’s fees in his case as well. Finally, in Hadeed’s case, the allegations that he did not provide proper counsel to the canvassing board, that he violated the sunshine law and that he acted in his official capacity to benefit himself personally are all knowingly false and intended to injure his reputation, Herron said.
Herron’s motion will be filed with the ethics commission. But the burden is on the county to prove the motion’s claims. If the ethics commission believes the claims have merit, it will refer the case to the division of administrative hearings, where a judge will hold a hearing, giving the county the opportunity to prove its case. The proceedings will be similar to a trial. “The trial would most likely be held in Flagler County, because all of the witnesses are here,” Herron said. The administrative judge then adopts a recommended order that the ethics commission either approves, modifies or rejects.
But it may not get that far: the ethics commission itself could end the process by finding against the county’s claim (as it has in a previous, similar attempt by the county). At that point the county may decide to appeal.
There was no debate among county commissioners. They wanted to proceed with attempting to recover fees.
“You are well aware of the allegations that were made, you are well aware of the conclusions of the ethics commission, Mr. Herron has laid out the law, and it is for you to decide whether you wish to pursue claims for reasonable attorneys’ fees and costs,” Hadeed told commissioners.
Any money recouped, should the county win its cases, would be returned either to the county or to the county’s insurer, which has been underwriting the cost of the defense.
McLaughlin made the motion to go forward with the claim. Meeker seconded. It carried unanimously.
Within the last few months the same group of complainants have filed yet more complaints against the commission–three through the Florida Elections Commission, one through the ethics commission. “We’re not to the point yet where you can tack them on” to the claim for attorneys’ fees, Herron said, since neither state commission has ruled yet on the complaints’ validity.