GREG BROWN v. STATE OF FLORIDA, COMM. ON ETHICS, et al
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
GREG BROWN,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NO. 1D06-6070
1D06-6071
STATE
OF
FLORIDA,
COMMISSION ON ETHICS,
ROBERT BURGESS, and HILTON
KELLY,
Appellees.
_____________________________/
Opinion filed November 30, 2007.
An appeal from an order of the Commission on Ethics.
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.
PADOVANO, J.
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 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
1
The statute was subsequently renumbered. It is now section 112.117(7).
2
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.
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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 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 .
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. . 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
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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 (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.
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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.
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
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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 within its area of expertise.
Given the nature of the adjudication in this case and the subject matter of the
statute, we conclude that the final order is reviewable by the de novo standard, as
expressed in section 120.68(7)(d). Because the order is based on a conclusion of law
that did not require any particular expertise, we need not defer to the Commission.
Brown contends that the phrase, “reckless disregard for the truth,” in section
112.317(8) should be interpreted by its plain meaning. If that is correct, Brown will
prevail on appeal. There is no doubt that Burgess and Kelly acted “recklessly,” as we
would ordinarily use that term. They charged Brown with public corruption without
any investigation of the facts. Although they submitted their complaints under oath,
8
they had no legitimate reason to believe that the accusations they made against Brown
were true.
In contrast, Burgess and Kelly contend that the phrase, “reckless disregard for
the truth,” is used in the statute as a term of art to mean something much more.
Because this phrase mirrors the language in the opinion in New York Times Co. v.
Sullivan, they argue, it must refer to the actual malice standard adopted by the Court
in that case. The term, “actual malice,” is used in Sullivan not to refer in its ordinary
sense to feelings of ill will about the person who was the subject of the statement, but
rather to signify the likelihood that the speaker knew the statement was false.
As the Court has since explained, the statement must be one that was made with
“a high degree of awareness of [its] probable falsity.” Garrison v. Louisiana, 379 U.S.
64, 74 (1964). To meet this standard, the plaintiff must prove by clear and convincing
evidence that the “defendant in fact entertained serious doubts as to the truth of his
publication.” St. Amant v.Thompson, 390 U.S. 727, 731 (1968).
If the Florida
Legislature meant to incorporate these concepts into section 112.317(8), Burgess and
Kelly will prevail on appeal. On this record, we could not say that they acted with
“actual malice,” as that phrase is used in Sullivan.
To resolve the controversy, we first consider the text of the statute. Section
112.317(8) states in full:
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In any case in which the commission determines that a person has
filed a complaint against a public officer or employee with a malicious
intent to injure the reputation of such officer or employee by filing the
complaint with knowledge that the complaint contains one or more false
allegations or with reckless disregard for whether the complaint contains
false allegations of fact material to a violation of this part, the
complainant shall be liable for costs plus reasonable attorney’s fees
incurred in the defense of the person complained against, including the
costs and reasonable attorney’s fees incurred in proving entitlement to
and the amount of cost and fees. If the complainant fails to pay such
costs and fees voluntarily within 30 days following such finding by the
commission, the commission shall forward such information to the
Department of Legal Affairs, which shall bring a civil action in a court
of competent jurisdiction to recover the amount of such costs and fees
awarded by the commission.
§ 112.317(8), Fla. Stat. (2004) (emphasis added). The underscored language is the
same as that used in the Sullivan case, but that is the only point that supports the
argument by Burgess and Kelly. There are many other points supporting Brown’s
argument.
It is significant, in our view, that the term, “actual malice,” does not appear in
the text of the statute. The Legislature has shown that it understands the precise
meaning of this term by using it in the proper context in section 104.271(2) Florida
Statutes. This statute authorizes the imposition of a penalty against a political
candidate who with “actual malice” makes a false statement against an opposing
candidate. The Legislature plainly understood when it enacted section 104.271(2) that
a statute regulating pure speech or expression would require proof of actual malice to
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meet First Amendment standards. By contrast, the absence of this well known phrase
in section 112.317(8) is an indication that the Legislature did not intend to engraft the
Sullivan standard into the statutory requirements for recovery of costs and attorney
fees.
Another indication leading to the same conclusion is that section 112.317(8)
does not explicitly require evidence of a high awareness of probable falsity, or proof
that the complainant in fact entertained serious doubts as to the truth of the allegations
in the complaint. These findings would be required if the Legislature meant to
incorporate the Sullivan actual malice standard.
It is also significant that the statute does not address the evidentiary standard
that applies to a claim for costs and attorney fees. A public official who files a civil
action for defamation must prove actual malice by clear and convincing evidence, yet
there is nothing in section 112.317(8) to suggest that the Commission should also
apply this high burden of proof to a claim for costs and fees. That the Legislature is
presumed to have known about this standard of proof and did not include it here is yet
another indication that it did not mean to require a showing of actual malice.
If we were to accept the argument made by Burgess and Kelly, we would be
forced to read into the statute language that is not there. We would have to assume
that the phrase, “malicious intent to injure the reputation of [the] officer,” does not
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refer to the motive or intent of the complainant, but rather that it was used in a more
abstract way to describe the legal concept of actual malice. We would also have to
assume that the phrase, “reckless disregard for the truth,” does not refer to a conscious
indifference to the truth, as it would ordinarily, but that it was meant to convey an
entirely different meaning: that the complainant in fact had serious doubts about the
truth of the accusation.
Florida courts interpret statutes according to their plain meaning. There are
certain accepted principles of statutory construction that can be applied if a statute is
ambiguous, but the courts have no reason to speculate as to the meaning of a statute
if it is clear on its face. Section 112.317(8) is not confusing or ambiguous. It lays out
in plain English the requirements for recovering costs and attorney fees. It is not for
us to add to these requirements by reading unstated terms into the statute.
We reject the argument that section 112.317(8) incorporates the actual malice
standard in Sullivan based on the text of the statute alone. But the argument is one
that must fail for yet another good reason. The justification for applying such a high
standard in a defamation action by a public official -- to protect the right to freedom
of expression -- does not exist in a defensive context such as this. Brown did not sue
anyone. He merely sought to recover costs and attorney fees in an action brought
against him by Burgess and Kelly.
12
The distinction is best illustrated by a brief review of the facts of the Sullivan
case. A public official in Alabama sued the New York Times Company and a group
of African-American civil rights leaders, claiming that they had published a false and
defamatory editorial about his conduct toward civil rights activists. Many of the
statements made in the editorial were false. The official was not named in the
editorial and he could not prove that he was actually harmed by it. Nevertheless, in
1960 an Alabama court awarded him a judgment in the amount of $500,000. This
judgment was made possible primarily because Alabama had a law that created a
presumption that a false statement was made with malice.
The United States Supreme Court granted review in Sullivan to answer the
question “whether this rule of liability, as applied to an action brought by a public
official against critics of his official conduct, abridges the freedom of speech and of
the press that is guaranteed by the First and Fourteenth Amendments.” Sullivan, 376
U.S. at 268. The Court observed that it was considering this issue against “the
background of a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials.” Id. at 270. Following a detailed exposition of the need to protect the
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right to freedom of expression, the Court concluded that the Alabama law presuming
malice was deficient and it held instead that a public official must show actual malice.
These concerns do not exist here. Burgess and Kelly were not merely critics
of Brown’s official conduct. They initiated legal proceedings against him and swore
under oath in those proceedings that he committed acts of public corruption. In
Sullivan, the First Amendment was used as a shield to protect speakers and writers
against complaints that might have the effect of discouraging public discourse, but
here the complainants wish to use it as a sword to justify baseless litigation.
Had Burgess and Kelly made these same false accusations in a press
conference, on the internet or in a campaign flyer, the situation would have been
different. Brown could have responded with his own statements or he could have
ignored the accusations. However, Burgess and Kelly did not give him either of those
options. When they filed their ethics complaints against him, they drew him into the
legal system involuntarily, and he had no choice but to defend himself. He was not
seeking damages or a penalty; he was merely trying to recover the costs and expenses
he incurred in defending himself.
The distinction is critical. The First Amendment guarantees the right to
freedom of expression, but it would be a far cry to extrapolate from this proposition
that the First Amendment also guarantees a right to initiate a legal proceeding based
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on false allegations. If that were the case, the “actual malice” standard would shield
a claim of malicious prosecution in the same way that it shields a defamation claim.
Yet that is not the case. Florida courts have held the plaintiff in a malicious
prosecution case need not prove actual malice. See Alamo Rent-A-Car, Inc. v.
Mancusi, 632 So. 2d 1352 (Fla. 1994); Clemons v. State Risk Mgmt. Trust Fund, 870
So. 2d 881 (Fla. 1st DCA 2004).2 As the courts have recognized, these are very
different issues.
A person who files a lawsuit based on a false allegation is not
entitled to the same protection that is afforded to a person who merely publishes false
information.
That proof of actual malice is not required to recover attorney’s fees under
section 112.317(8) will not discourage citizens from filing ethics complaints against
a public officials. The statute sets a very high bar for the recovery of fees, even
without the extraordinary protection that is afforded to freedom of expression. We
have stated our view that the actual malice standard is not necessary as a matter of
constitutional law, but the Florida Legislature is certainly free to incorporate this
standard in the statute if it wishes.
2
We recognize that section 112.317(8) involves policy considerations that are
not present in other forms of civil litigation. The comparison to malicious prosecution
suits is made here only to illustrate that the actual malice standard protects a person
who has made a false statement about another. It does not protect a person who takes
formal legal action against another based on a false accusation.
15
For these reasons, we conclude that the phrase, “reckless disregard for the
truth,” in section 112.317(8) was not used as a shorthand reference to the exacting
requirements in New York Times Co. v. Sullivan. Instead, we construe the statute by
its plain meaning. Based on the text of the statute, the elements of a claim by a public
official for costs and attorney fees are that (1) the complaint was made with a
malicious intent to injure the official’s reputation; (2) the person filing the complaint
knew that the statements made about the official were false or made the statements
about the official with reckless disregard for the truth; and (3) the statements were
material.
Because the evidence supports all of these elements, Brown is entitled to an
award of costs and attorney fees against Burgess and Kelly. Accordingly, we reverse
the final order on appeal and remand this case with instructions to enter a final order
awarding costs and fees. No additional evidence is required or permitted. The
Commission need only enter a final order adopting Judge Dean’s original
recommendations.
Reversed and remanded.
ROBERTS, J., CONCURS. WOLF, J., CONCURS WITH OPINION.
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WOLF, J., Concurring.
I concur fully in the majority’s determination that the text of section 112.317(8),
Florida Statutes, does not incorporate the actual malice standard. I also concur to the
extent the majority determines that adoption of the actual malice standard is not
constitutionally mandated.3 I feel it is unnecessary, however, to weigh the importance
of the right to freedom of expression as addressed in New York Times Co. v. Sullivan
against the right to bring complaints to an independent commission concerning
breaches of the public trust by public officials.
The Commission on Ethics, in its motion for rehearing, makes a number of
policy arguments for the adoption of the “actual malice” standard of New York Times
Co. v. Sullivan, 376 U.S. 254 (1964). I feel that these policy arguments should be
made to the Legislature. The majority opinion suggests that the freedom of expression
protected in New York Times Co. v. Sullivan is entitled to greater protections than the
freedom to file ethical complaints regarding public officials. In my view, this is also
a policy decision for the Legislature.
The importance of an independent investigation of misuse of office cannot be
debated. The people expressed their recognition of this importance within the
3
The reckless allegation of the appellees in this case are a perfect example of
why the Legislature may wish not to adopt such a standard.
17
constitution. Article II, section 8(f) of the Florida Constitution requires the creation
of an independent commission to investigate breaches of the public trust by public
officers or employees.
The Commission on Ethics fulfills this important
responsibility. See § 112.320, Fla. Stat. (2006); Comm’n on Ethics v. Sullivan, 489
So. 2d 10 (Fla. 1986). Thus, complaints to the Commission are the method of
implementing the people’s mandate of ethics in government.4 Judicial debate over the
relative importance of this right serves no useful purpose.
The majority attempts to illustrate the greater importance of freedom of
expression by comparing the facts in New York Times v. Sullivan and the facts in this
case. Individual illustrations add little to the exercise of weighing these two important
constitutional rights. The critical determination is not the facts related to these two
particular instances; it is the general question of whether the right to criticize a public
figure in writing is more important than the right to initiate investigations of public
office holders who may be involved in breaching the public trust. The people of the
State of Florida have indicated both rights are important. It is totally within the
prerogative of the Legislature to determine if they wish to give complainants to the
4
This is especially true because the Commission cannot initiate investigations
on its own but may only act upon initiation of an individual complaint. See §
112.322, Fla. Stat. (2006).
18
Commission on Ethics as much protection as provided in Sullivan.5 I, therefore,
would not engage in a discussion of the relative importance of these rights.
5
I would note that any protection from liability under either of these processes
allows for misuse or abuse of the process. It is up to the Legislature to weigh this
factor.
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