State Ethics Commission Will Hear Flagler’s Claim to Recoup Fees From Serial Complainers
FlaglerLive | August 24, 2016
The General Counsel of the Florida Commission on Ethics recommended that five petitions filed by Flagler County to recover attorneys’ fees from Kimberle Weeks, Mark Richter Jr. and Dennis McDonald are “sufficient” to be heard before an administrative law judge. The trio of complainants had filed a slew of ethics charges against county officials, all of which were tossed for lack of probable cause in April.
But it is still up to the Florida Ethics Commission to decide whether the petitions should go forward. The commission will make that determination at its next meeting, on Sept. 9.
It’s an unusual case: county government is seeking to recoup money spent to defend against the ethics cases filed against Commissioners Nate McLaughlin, Charlie Ericksen, George Hanns, the late Frank Meeker and County Attorney Al Hadeed.
“If the Commission approves the General Counsel’s recommendation, the county will have to prove the right to, as well as the amount of, the fees and costs,” Hadeed said in comments cited by a release issued by the county today. “The law allows taxpayers to be reimbursed for the cost of defending against knowingly false allegations. This is particularly appropriate in these cases where the complaints were repeatedly filed with allegations known to be false when they were filed.”
But the county has a high bar to clear in order to recover the fees. It must prove that the complainants filed their charges knowing that they were filing false claims, that their intent was malicious, and that they were made with reckless disregard for the truth. It is a similar standard that public officials or public figures must meet when they sue for libel.
Former Supervisor of Elections Kimberle Weeks filed two of the five complaints in December 2014 – one against Commissioner Ericksen and a second against Hadeed. Mark Richter Jr. also filed two of the complaints in December 2014 – one against Commissioner McLaughlin and another against Commissioner Meeker. Dennis McDonald filed the fifth complaint against Commissioner Hanns in August 2015.
All five of the complaints claim that Flagler County officials violated the Sunshine Law by discussing canvassing board issues in an attempt to advance an alleged hidden agenda to manipulate the 2014 Election. This allegation, which the county considers–and the record shows to have been–false, was made even though all discussion occurred during a regular public meeting of the County Commission.
This same allegation was made in 12 separate complaints with three different state agencies. Each one was dismissed by the agency with jurisdiction. Along with its release today, the county issued a cheat sheet listing 14 related complaints filed in the last few years against county officials, and their outcomes.
The release goes on: McDonald further alleged Hanns served on the canvassing board during the 2014 election cycle after endorsing a candidate – something prohibited by the rules of the Florida Division of Elections. McDonald made the assertion despite acknowledging the endorsement never actually occurred, but rather was mistakenly attributed to Hanns by a candidate’s campaign staffer.
Weeks claimed Hadeed improperly advised the canvassing board that Hanns need not step down for the mistaken endorsement to protect his employer. However, the Assistant Attorney General who presented Weeks’ complaint to the Commission on Ethics stated that it was not Hadeed but Weeks who violated the statute by voting to remove Hanns.
Weeks’ complaint of more than 60 pages against Ericksen made numerous allegations against him and his service as an alternate on the Canvassing Board. She claimed that he refused to step down from his position on the canvassing board in October 2014 after paying $50 to attend a dinner hosted by Meeker, who was a candidate at the time. The claim was made against Ericksen even though he was not at the meeting but out of town on Flagler County business. He did voluntarily step down at the following County Commission meeting in an abundance of caution and to avoid the appearance of impropriety.
Weeks also contended that Ericksen acted with malice, and without authority, when the County Commission acted through consensus to request assistance from the Department of State for the General Election. Richter Jr. and McDonald made similar allegations in their complaints.
In dismissing McDonald’s complaint, the Ethics Commission wrote: “Due to the turmoil and tension surrounding the 2014 election in Flagler County as suggested by Complainant’s 101 page complaint, it is not unreasonable to believe the County Administrator, County Commission, and Canvassing Board were concerned about the efficacy of the upcoming election process. It appears from the investigation that a request for the Florida Department of State’s assistance in Flagler County’s 2014 election was not made in retaliation but was requested as a legitimate safeguard for the citizens.”
The Florida Elections Commission also recently dismissed three complaints filed by McDonald with the same allegation: “Your allegation suggests a misreading of the statute. Neither 101.58, Florida Statutes, nor any other provision of the Election Code, prohibits a county government from requesting election assistance from the Secretary of State, the state’s chief elections officer.”
Hadeed said Flagler County was forced to defend itself. “The county was dragged into these cases involuntarily. We could not sit idly by even though the allegations were meritless,” Commission Chairwoman Barbara Revels said. “The county now seeks taxpayer compensation for the time and resources spent in defending against those knowingly false accusations.”
But the county still has a distance to go to win its case: even if the ethics commission approves sending the case to an administrative law judge (or for the case to be heard by the ethics commission itself, as is also possible) the resulting decision may or may not favor the county.