                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

ALBERT (AL) HADEED AND                NOT FINAL UNTIL TIME EXPIRES TO
NATHAN (NATE)                         FILE MOTION FOR REHEARING AND
MCLAUGHLIN,                           DISPOSITION THEREOF IF FILED

      Appellant,                      CASE NO. 1D16-724 & 1D16-725

v.

STATE OF FLORIDA,
COMMISSION ON ETHICS,

      Appellee.

_____________________________/

Opinion filed December 12, 2016.

An appeal from an order of the State of Florida Commission on Ethics.
Stanley M. Weston, Chair.

Mark Herron and Robert J. Telfer, III, of Messer Caparello, P.A., Tallahassee, for
Appellant.

C. Christopher Anderson, III, and Grayden Paul Schafer of the Florida
Commission on Ethics, Tallahassee, for Appellee.


PER CURIAM.

      Albert “Al” Hadeed, a county attorney, and Nathan “Nate” McLaughlin, a

county commissioner, who were the targets of unsuccessful ethics complaints,

appeal the Commission on Ethics’s denial of their requests for costs and attorney’s

fees sought under section 112.317(7), Florida Statutes. We affirm.
                                         I.

      In June 2015, the Commission received a 187-page complaint from citizen

John Ruffalo, who claimed that Hadeed, as the attorney for the Flagler County

Board of County Commissioners, had engaged in acts that violated state ethics

laws. Soon thereafter, the Commission received a 34-page complaint from citizen

Dennis McDonald that raised similar allegations against McLaughlin, a Flagler

County Commissioner. Among others, an allegation common in both complaints

was that Hadeed provided advice to McLaughlin and other board members, who

accepted his recommendation that public funds be expended to pay for legal

expenses to defend against litigation previously brought against the public officials

and Hadeed.

      The Commission rejected the two complaints as legally insufficient, finding

neither established grounds for an ethics violation. The Commission, which

summarized Ruffalo’s complaint as a “lengthy narrative and multiple attachments,

much of which concerns officials or persons other than [Hadeed],” focused on

Hadeed’s alleged failure to provide appropriate legal advice to the Board and his

conduct in defending a lawsuit against the County. It concluded that the complaint

“substantively fails to indicate a possible violation of Section 112.313(6), Florida

Statutes, the only provision of the Code of Ethics even arguably applicable to it.”

Specifically, the Commission found that Hadeed’s legal representation and advice

                                         2
to the Board was not inconsistent with his public duties; indeed, it was prudent

action. Because none of the matters in Ruffalo’s complaint raised redressible

matters, the complaint was dismissed. Likewise, the Commission dismissed the

complaint against Commissioner McLaughlin as legally insufficient, finding his

alleged conduct was not inconsistent with the proper performance of public duty.

      Dismissal of the ethics complaints did not end the matter. Florida law

provides for an award of costs and attorney’s fees against persons who file

knowingly false ethics complaints against public officials and employees, provided

certain parameters are met. The applicable statute, section 112.317(7), states in

relevant part:

   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 fees incurred in the defense of the person
   complained against[.]

§ 112.317, Fla. Stat. (2013). Pursuant to this statute, Hadeed and Commissioner

McLaughlin sought costs and attorney’s fees, alleging the complaints were filed

maliciously to injure their reputations via knowingly false allegations that were

material to ethics violations. The Commission dismissed the fee requests as

insufficient because, among other reasons, neither met the standards for showing

that the allegations were material to an ethical violation. Stated differently, even if
                                          3
knowingly false allegations were maliciously made to injure Hadeed and

McLaughlin, they were not “material” to any purported ethics violation. Hadeed

and McLaughlin appeal the orders denying their fee requests.

                                          II.

      The central point we address in this consolidated appeal is the language of

section 112.317(7), which requires that a complaint contain false statements that

are “material to a violation” of the Ethics Code. As explained in Brown v. State,

Commission on Ethics, 969 So. 2d 553, 560 (Fla. 1st DCA 2007):

   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.

The statute incorporates the “actual malice” standard from First Amendment

jurisprudence, id., but it also requires that the false allegations be “material” to an

ethics violation to be actionable for costs and fees. Falsely calling someone a

terrorist or child abuser is of no moment under section 112.317(7) unless the false

allegation is “material” to a violation of Florida’s Code of Ethics.

      Amidst the hundreds of pages of inflammatory, disparaging, and conclusory

allegations in the complaints, the Commission found just three were material to

possible ethics violations:


                                          4
      (1) Hadeed sought Board approval for a publicly-funded legal defense
      for Board members and himself;

      (2) McLaughlin voted favorably for a publicly-funded legal defense
      for himself and others; and

      (3) Hadeed was involved in defending a lawsuit involving the County.

The question then becomes whether these factual allegations—stripped of the

tacked-on hyperbolic legal conclusions that accompany them in the complaints—

are false. They are not. Hadeed does not deny seeking approval from the Board to

procure a publicly-funded defense, as well as holding a vote on the matter. Nor

does Hadeed deny participating in litigation involving the County. Likewise,

Commissioner McLaughlin does not deny voting at the meeting as alleged. The

Commission found that these actions were part of the officials’ duties and not

ethical breaches. Accordingly, there are no false allegations of fact in the

complaints that are material to a violation of the Code to support a request for costs

and fees. Though we need not defer to the Commission’s interpretation of section

112.317(7), Brown, 969 So. 2d at 557, we nonetheless find it supportable as

applied in this case.

      The statutory analysis stops here. Whether the disparaging language and

desultory legal conclusions interspersed through the two tome-like complaints

were maliciously intentional or knowingly false doesn’t matter legally under

section 112.317(7); so long as the allegations are true and material, costs and fees

                                          5
are not recoverable. This result may seem odd. Hundreds of pages of inflammatory

language in ethics complaints are directed at public officials, who prevail on the

merits, but they can’t recover costs or fees against their tormentors? The answer is

that the statute is narrowly-drawn and allows recovery only in very limited

situations; it doesn’t permit recovery where knowingly false allegations are

maliciously made to injure a public official’s reputation on matters immaterial to

an ethics violation, at least in this context. Awards of costs and attorney’s fees are

a matter of legislative grace and the dividing line the Legislature has drawn here

does not extend to the actions of Ruffalo and McDonald in filing meritless ethics

complaints; had they made a knowingly false allegation as to a material fact in an

attempt to cause reputational harm, the statute would apply.

      Finally, because the material factual allegations in the complaints are true,

allowing amendment to Hadeed’s and McLaughlin’s cost/fee petitions would not

change the result. For all these reasons, the Commission’s orders on the petitions

for costs and attorney’s fees and the motions for leave to amend are AFFIRMED.


MAKAR, JAY, and M.K. THOMAS, JJ., CONCUR.




                                          6
