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Florida Commission on Ethics remands contested attorney-fees order for more detailed findings
Summary
The commission voted to remand a DOAH recommended order that would have imposed more than $25,000 in attorneyfees jointly and severally against four complainants, saying the ALJfailed to make the individualized Roe findings and that statute 112.317(7) does not clearly authorize joint-and-several liability.
The Florida Commission on Ethics voted to remand to the Division of Administrative Hearings (DOAH) a recommended order awarding more than $25,000 in attorneyfees against four complainants in consolidated matters. Chair presided over the public session and adopted staffproposed remand after discussion and a roll-call vote.
Staff attorney Emilia Naomi told the commission that the administrative law judge(RO) had recommended joint-and-several liability for the four complainants but that Florida Statutes section 112.317(7) "does not contain explicit statutory authority" allowing each complainant to be held liable for fees generated by complaints filed by others. Naomi also said the RO failed to set forth the specific findings required by PatientCompensation Fund v. Roe for fee awards, including an explicit numeric finding of hours reasonably expended and analysis of any enhancement or reduction factors.
"The RO does make individualized findings as to each complainant's culpability," Naomi said, "but it makes no individualized findings of fact as to what fees and costs were generated by the defense of each of their complaints." She recommended remanding the matter to the ALJ for (1) individualized findings allocating fees and costs among the four complaints and (2) detailed Roe findings on hourly rate, hours expended and any reduction or enhancement.
Counsel for the respondent and parties spoke in opposition and support. Susan Erdely, representing Michelle Myers, urged the commission to remand for the reasons staff identified but argued the facts here support joint-and-several liability because, she said, several complainants "signed the exact same set of facts" and the judge found the complaints were made with malice. Mark Herron, counsel for another complainant, said he and other exception filers supported the ALJon most issues in the RO.
Commissioners debated whether consolidation for efficiency required separate fee findings. Commissioner Rogers described the case as "unusual" and said that although consolidation is common, this matter might be a "case of first impression" because multiple complainants appear to have collaborated on identical allegations.
After discussion the commission moved to adopt staffrecommendation to remand to DOAH for further factual findings and Roe-specific analysis. The motion passed by roll-call vote; the chair announced the motion carried and thanked participants for their presentations.
Next steps: the case will return to the ALJ for the limited purpose staff described; the commission did not enter a final order awarding fees at this meeting.
