Brown v. State, Com'n On Ethics, 1D06-6070.

CourtCourt of Appeal of Florida (US)
Citation969 So.2d 553
Docket NumberNo. 1D06-6070.,No. 1D06-6071.,1D06-6070.,1D06-6071.
PartiesGreg BROWN, Appellant, v. STATE of Florida, COMMISSION ON ETHICS, Robert Burgess, and Hilton Kelly, Appellees.
Decision Date30 November 2007
969 So.2d 553
Greg BROWN, Appellant,
STATE of Florida, COMMISSION ON ETHICS, Robert Burgess, and Hilton Kelly, Appellees.
No. 1D06-6070.
No. 1D06-6071.
District Court of Appeal of Florida, First District.
November 30, 2007.

[969 So.2d 554]

Albert T. Gimbel and Mark Herron of Messer, Caparello & Self, Tallahassee; E. Gary Early, Tallahassee, for Appellant.

Philip Claypool, General Counsel, Julia Cobb Costas, Staff Attorney, and Daniel A. Carlton, Jr., Staff Attorney, Tallahassee, for Appellee Commission on Ethics; Joseph L. Hammons of Hammons Longoria & Whittaker, Pensacola, for Appellees Robert Burgess and Hilton Kelly.


This is an appeal by a public official from a final order denying costs and attorney fees under section 112.317(8) Florida Statutes (2004).1 We conclude that this statute does not require a public official

969 So.2d 555

who was falsely accused of an ethics violation to prove that the accusation was made with "actual malice." Based on the requirements stated in the text of the statute, the appellant was entitled to recover costs and attorney fees. For these reasons, we reverse.

The appellant Greg Brown is the property appraiser for Santa Rosa County. He took office in January 2001, having succeeded Robert Burgess, who had retired from the position at the end of the preceding term of office. Brown sought re-election in 2004 and was opposed by Leon Cooper, a man who had previously worked in the property appraiser's office under Burgess.

The controversy in this case began with the filing of two ethics complaints against Brown by his political opponents. Both complaints were submitted to the Florida Commission on Ethics on April 12, 2004, the day that Cooper qualified to run against Brown, and both were eventually dismissed for lack of probable cause.

Robert Burgess filed one of the complaints. The essence of the claim was that Brown had acted improperly in reinstating a religious exemption for a church. The exemption had been denied several years earlier during Burgess' term in office, on the ground that the property was not being used for religious purposes. Burgess alleged that Brown reinstated the exemption to obtain the political support of the owners of the church and on that assumption, he accused Brown of committing a "corrupt" act. However, he came to this grave conclusion about Brown's conduct without checking into the facts. Had he investigated the matter, he would have learned that the exemption was reinstated because it had been removed without proper notice. Public records available in the tax collector's office explained that the exemption had been removed in error. Burgess apparently did not examine these records or else he would have known that he was actually complaining about the correction of his own mistake.

The other complaint was filed by Hilton Kelly, who was apparently acting on behalf of his sister, a realtor in Santa Rosa County and a prominent supporter of the Cooper campaign. Kelly alleged that Brown had deliberately undervalued the property of a Santa Rosa County resident in exchange for a campaign contribution. He included factual details that appeared to support this assertion. For example, he alleged that Brown had instructed his appraisers to stay away from the property in furtherance of a scheme to ensure that it would remain undervalued.

Kelly conceded that he had filed the complaint at his sister's suggestion and explained that he did not "have a dog in this hunt." Although the allegations were made under oath, Kelly admitted that he had not investigated the facts. The reason for the reduction in the assessed value would have been apparent with very little inquiry. The house situated on the property had burned to the ground. Once the house was destroyed, the property was worth much less and Brown had no alternative but to reduce the assessment.

The Florida Commission on Ethics dismissed the complaints, and Brown subsequently made a claim for costs and attorney fees under section 112.317(8). This statute provides that a person who files an ethics complaint against a public official is liable for costs and fees if the complaint was made with a malicious intent to injure the reputation of the public official, in that the facts alleged in the complaint were known to be false or made with reckless disregard for the truth. Brown alleged that the ethics complaints filed by Burgess and Kelly fell within the requirements of the statute and he sought to recover the

969 So.2d 556

expenses he had incurred in his successful defense before the Ethics Commission.

Brown's claim for costs and attorney fees was presented on written evidence to Administrative Law Judge, Steven Dean. Judge Dean found as a matter of fact that "[b]oth complaints were motivated by the desire to impugn Brown's character and . . . to injure [his] reputation." He found that Burgess had not examined the public records to ascertain the reason for reinstating the religious exemption, that Burgess lacked a factual predicate to assert that Brown had acted corruptly, and that it was "clear from the timing that Burgess' motivation was to impugn Brown's reputation." Likewise, he found that Kelly had "made no independent effort to verify any of the facts in his ethics complaint" and that he had "recklessly disregarded whether the complaint contained false allegations."

Based on these findings, Judge Dean concluded in his recommended orders that Brown was entitled to an award of costs and attorney fees under section 112.317(8). He determined that Brown was entitled to recover $5,366.56 in costs and $17,079.50 in attorney fees in the case initiated by Robert Burgess, and that he was entitled to $4,603.29 in costs and $13,016.50 in attorney fees in the Hilton Kelly case.

In the course of the final hearing, many of the commissioners expressed the view that the complaints by Burgess and Kelly were among the most egregious examples of misuse of an ethics complaint to harm a political opponent. They described the complaints as "blatantly political" and "shameful." Nevertheless, the Commission denied Brown's request for costs and attorney fees.

This decision was based on a concern that the findings of fact in Judge Dean's order were insufficient. The Commission construed the language of section 112.317(8) to require a finding of "actual malice," as defined by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Because the findings in Judge Dean's order would not, in the Commission's view, support a conclusion that the complainants entertained serious doubts about the truth of their allegations, as required by the Sullivan standard, the Commission remanded the case to Judge Dean for additional findings.

In the interim, Judge Dean retired. Administrative Law Judge Lisa Shearer Nelson was assigned in his place. Using the same written evidence, Judge Nelson concluded that the evidence against Burgess and Kelly did not meet the actual malice test in Sullivan. For that reason, Judge Nelson entered amended recommended orders, in which she concluded that Brown's motion for costs and fees should be denied. The Commission adopted Judge Nelson's recommendations and Brown then appealed to this court.

The standard of review of an agency decision on a point of law is set out in the Florida Administrative Procedure Act. Section 120.68(7)(d), Florida Statutes (2006) states that an appellate court may set aside a final administrative order if the agency "has erroneously interpreted a provision of law and a correct interpretation compels a particular action." See Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844 (Fla. 1st DCA 2002); Parlato v. Secret Oaks Owners Ass'n, 793 So.2d 1158 (Fla. 1st DCA 2001). This statute incorporates the de novo standard of review, which applies generally to issues of law. By the terms of the statute, the appellate court need only determine that the agency made a legal error and that the error was one that affected the outcome of the case.

969 So.2d 557

A more specific principle in the case law requires the appellate courts to show greater deference to an administrative agency if the agency has interpreted a statute within its jurisdiction. In such a case, the interpretation may have been based on a history that is best known by the agency or special expertise the agency has in applying the statute. To account for these factors, the courts have held that an agency decision construing a statute within its substantive jurisdiction should not be reversed unless it is clearly erroneous. See Pan Am. World Airways, Inc. v. Fla. Pub. Serv. Comm'n, 427 So.2d 716 (Fla.1983); Arza v. Fla. Elections Comm'n, 907 So.2d 604 (Fla. 3d DCA 2005).

Deference is not required under this rule, however, if the statute the agency has interpreted is an attorney fee statute. See G.E.L. Corp. v. Dep't of Envt'l Protection, 875 So.2d 1257 (Fla. 5th DCA 2004). An appellate court is free to reject an agency's interpretation of an attorney fee statute even if the statute is one that applies exclusively to that agency. See Doyle v. Dep't of Bus. Reg., 794 So.2d 686 (Fla. 1st DCA 2001). Whether a party is entitled to an award of attorney fees is a question that arises in many different kinds of cases, regardless of the subject matter, and it is one that the courts are best equipped to answer.

This case illustrates the reason for excluding attorney fee statutes from the customary practice of deferring to an agency. Here, the interpretation of the statute did not require the use of the agency's expertise in evaluating the ethical conduct of public officials. To the contrary, it required nothing more than the application of the principles of statutory construction. The fact that the Commission reached its decision in part by importing a principle from the law of defamation is further evidence that it was not operating...

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