DAVID KAMINSKY, APPELLANT/CROSS-APPELLEE,
v.
ILENE LIEBERMAN, APPELLEE/CROSS-APPELLANT
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This appeal concerns whether attorney's fees and costs awarded in an ethics complaint proceeding should be limited to those incurred through the hearing date or may include post-hearing expenses. The court affirmed the finding that Kaminsky's ethics complaint was frivolous and malicious but reversed the commission's cutoff of fees and costs at the hearing's conclusion, allowing Lieberman to seek additional fees for post-hearing work.
The court affirmed that Kaminsky's complaint was frivolous and malicious, and that Lieberman is entitled to attorney's fees and costs. However, the court reversed the commission's cutoff date and held that Lieberman must be afforded a hearing to establish fees and costs incurred after the evidentiary portion of the hearing concluded.
[1] A party may be awarded attorney's fees and costs when an ethics complaint is found to be frivolous and filed with malicious intent.
[2] A hearing officer's recommended order regarding attorney's fees and costs may be adopted by the Commission on Ethics.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Kaminsky's complaint was frivolous and without basis in law or fact and that Kaminsky filed it with a malicious intent to injure Lieberman's reputation.”
Establishes the hearing officer's core finding regarding the nature and motivation of Kaminsky's ethics complaint.
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Join FLexlaw to unlock all legal intelligenceIn 1988, Lieberman defeated incumbent Kaminsky in a mayoral election for the City of Lauderhill. In December 1991, Kaminsky filed an ethics complaint …
The full statement of facts, procedural history, and disposition for this case are member content.
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STEVENSON, Judge.
This is an appeal and cross-appeal of a final order entered by the Commission on Ethics awarding attorney’s fees and costs. We affirm the order on appeal and grant the cross-appeal in part.
In 1988, llene Lieberman, was elected mayor of the City of Lauderhill by defeating the incumbent, David Kaminsky. In December, 1991, Kaminsky filed an ethics complaint against Lieberman with the Commission on Ethics. Ultimately, the commission dismissed the complaint for lack of probable cause to believe that Lieberman committed any ethics violation.
This appeal concerns Lieberman’s subsequent petition for an award of attorney’s fees and costs against Kaminsky for allegedly filing a frivolous and malicious ethics complaint. See § 112.317(8), Fla.Stat. (1991). After a formal administrative hearing, the hearing officer entered a lengthy order which concluded that Kaminsky’s complaint was frivolous and without basis in law or fact and that Kaminsky filed it with a malicious intent to injure Lieberman’s reputation. The order recommended that Lieberman be awarded fees and costs totalling $37,280.89. The order computed fees and costs through March 8, 1994, the date up to which Lieberman presented evidence at the hearing. Also, the order included 37.5 hours expended by Lieberman’s attorney in attending the final hearing. The commission denied each party’s exceptions to the recommended order and adopted the hearing officer’s final conclusions.
Lieberman’s cross-appeal concerns those fees and costs incurred after March 8, 1994. We reverse that part of the commission’s ruling which precluded Lieberman from applying for fees and costs incurred after the date of the administrative hearing’s conclusion. Administrative proceedings typically involve a great deal of attorney work after the conclusion of the evidentiary portion of the ruling, including but not limited to, the preparation of proposed recommended orders and the filing of exceptions to the recommended order. While we appreciate the commission’s concern that “eventually proceedings must come to an end,” the attorney involved may not be able to forecast presently unearned fees and costs with any degree of accuracy at the hearing. As a matter of basic fairness, the interested parties should be neither shortchanged nor over-charged for the sake of administrative expediency.
Accordingly, we hold that the commission must provide a hearing for Lieberman to establish fees and costs which were incurred after the last day of the hearing. We affirm that portion of the commission’s ruling requiring that all evidence of fees and costs be introduced at the hearing to the extent that such expenses had already been incurred or were incurred during the hearing.
Affirmed in part, reversed in part and remanded.
FARMER and GROSS, JJ., concur.