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Date of Issue: June 30, 2010

Dye says city doesn’t owe Stoltzfus’ bill

Anna Maria city attorney Jim Dye sent the city a letter June 22 stating the city does not have to pay the legal fees incurred by Commissioner Harry Stoltzfus regarding a complaint by a private citizen to the Florida Commission on Ethics.

The complaint was filed by Anna Maria businessman John Cagnina against Stoltzfus, but the COE dismissed the case in early June without investigation, stating it did not have jurisdiction regarding the accusations.

After Cagnina submitted the complaint to the COE, attorney Richard Harrison, representing Stoltzfus, claimed the city would be liable for the legal fees incurred as a result of the complaint by the commissioner.

On dismissal of the COE complaint, Harrison sent the city a bill for $7,223 for services rendered.

Dye, however, said he reviewed the cases cited by Harrison and talked to the COE’s general counsel about the commission’s rules of procedures for assessing costs.

Dye agreed that a public official “has a right to reimbursement of attorney’s fees if they must defend themselves against litigation,” but there was no defense involved in the COE complaint and thus no litigation.

Because the COE dismissed the complaint “based solely on its internal review, any fees incurred by Commissioner Stoltzfus did not accrue to his defense because they did not affect the commission’s decision to dismiss the complaint,” he said.

The COE never got to the defense phase of its investigation.

The city would only be liable if the “litigation” arose “out of, or in connection with, (his) official duties and (the litigation) served a public purpose,” Dye said.

Neither was the case in the COE dismissal.

“Any work done by Mr. Harrison for Mr. Stoltzfus” was not used by the COE because it had not yet declared the complaint legal, Dye wrote.

Dye said he spoke with a COE attorney who “informed me the material filed by Mr. Harrison did not reach the commission until the staff’s recommendation for denial had been drafted for consideration.”

This first step by the COE in determining jurisdiction does not consider the “pros and cons of the allegations,” and does not involve any investigation or defense, Dye said.

No valid legal complaint, no litigation, no need for a defense, and no need to pay the bill, Dye indicated.

Since the work done by Mr. Harrison could not be considered by the COE, “It is my view that (Harrison’s work) did not serve a public purpose and I recommend against expending public funds to pay the bill,” Dye concluded.

Harrison said he has not yet had an opportunity to discuss Dye's letter and any options with Stoltzfus.

Attorney Kerry Stillman of the COE said she could not comment on Dye’s letter, but she agreed that the first thing the COE does with any complaint is “determine if we have jurisdiction.”

That determination “does not include an investigation of what is alleged,” she said.

The claims against Stoltzfus might be true and they might not, but the COE determined it did not have jurisdiction to make any decision, she said. The COE dismissal of the case did not prove innocence or guilt, Stillman stated.

Other legal remedies are available to Cagnina to determine the facts in his allegations, she said.

By May 31, Harrison had billed for 4.9 hours of his time at $375 per hour for $1,837.50 in charges.

His associate, Misty C. Leafers, performed 14 hours of research at $290 an hour for $4,060 in work.

Paralegal Lisa Ferrara did 1.4 hours of work at $150 per hour for $210.

Accounting charges brought forward on June 18 included 2.5 hours from Harrison ($937.50), .2 of an hour from Leafers ($58), and .8 of an hour from Ferrara ($120), for a grand total of $7,223.