The URL can be used to link to this page

Agenda 03/24/2009 Item #16K 5 iL8~n r'JO. ~ Cf<5 rvi13rch 24, 2009 Page 1 of .~9 EXECUTIVE SUMMARY Recommendation pursuant to Collier County Resolution No. 95-632, that the Board of County Commissioners authorizes the Office of the County Attorney to select and retain outside counsel to represent Commissioner Tom Henning, as well as County employees Stan Chrzanowski and Rudy Moss, who are all being sued by former employee Barbara Burgeson in the case styled Barbara Burgeson v. Collier County, Tom Henning, Stan Chrzanowski, alld Rudy Moss, Case No. 09-2010-CA, Twentieth Judicial Circuit ill and for Collier Coullty, and in addition to waive the Purchasing Policy to the extent it applies to the selection of outside counsel and/or otherwise exempt the selection of outside counsel from competition pursuant to VII.G. of the Purchasing Policy. OBJECTIVE: To get direction from the Board in responding to a complaint filed by a former employee against the County, Commissioner Henning, and two County employees. .~ CONSIDERATIONS: Collier County Resolution No. 95-632 sets forth the Board's policy with regard to providing a defense and paying legal expenses of County Commi ssioners, County staff and advisory board members ("County persons") who are sued individually in lawsuits. A copy of both the complaint and Resolution No. 95-632 are attached. The County, Commissioner Tom Henning and two members of the County staff have been sued in the case styled Barbara Burgeson v. Collier County, Tom Henning, Stan Chrzanowski, and Rudy Moss, on a variety of claims. The claims include: gender discrimination, sexual harassment, retaliation, violations of State equal pay requirements, negligent supervision, intentional infliction of emotional distress, assault and battery, tortious interference with an employment relationship, conspiracy to tortiously interfere with an employment relationship, and conspiracy to violate the County Administrator's Ordinance. The claims against Commissioner Henning are based on a July 12, 2005 memorandum from Commissioner Henning to County Manager Mudd discussing Ms. Burgeson's comments involving an agenda item concerning Kraft Construction's then proposed new headquarters building. In accordance with Resolution No. 95-632 and current Florida law, County persons sued in civil actions and civil rights lawsuits may be provided representation if the litigation involving the person(s) to be represented: (1) arose out of or in connection with the performance of official duties and (2) while the County person was serving a valid public purpose. With respect to Commissioner Henning, the County Attorney strongly recommends that the Board provides Commissioner Tom Henning with private legal counsel in accordance with Resolution No. 95-632. The Cow1ty Attorney is extremely concerned with the claims against Commissioner Henning, not because they have any true legal merit, but because they strike the County Attorney as clearly intended to punish, and thereby eliminate, any criticism or negative comment any present or future Commissioner might have with respect to any former, present or future County employee, including those at the manager level. With respect to County employees Stan Chrzanowski and Rudy Moss, in keeping with past practice of the Board, the County Attorney also recommends lhM the Board also provides lhese employees with private legal counsel in accordance with Resolution No. 95-632. If Ms. Burgeson is successful in her .- claims against either one of these employees, the County will have the ability to seek recovery of these fees from them, Given the allegations, the County Attorney's Office cannot represent these individuals along with the County, as it is very likely that the County will need to take an adverse position should this case not be quickly dismissed. Given that the suit has already been filed and served, it is imperative that investigation of the complaint be commenced as soon as possible, Accordingly, based on these circumstances and in the best interest of the County, it is further recommended that the Board waives the Purchasing Policy and/or otherwise exempts the selection of outside counsel from competition pursuant to VII.G. of the Purchasing Policy to the extent it applies to procurement ofIegal services under Resolution No. 95-632 and authorizes the Office of the County Attorney to select and retain counsel for Commissioner Tom Henning and County employees Stan Chrzanowski and Rudy Moss. The Office of the County Attorney will proceed by identifying an attorney or attorneys who have experience in such civil matters and making contact with rhat attorney to determine their interest, rate and capabilities. It is likely to be necessary to procure multiple attorneys in this matter. FISCAL IMP ACT: Risk Management Department has informed our office that defense costs will be covered by the County's insurer. The Board should be aware that outside counsel fees could well be in excess of $] 50,000.00. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this Executive Summary. RECOMMENDATION: That the Board of County Commissioners authorizes the Office of the County Attorney to select and retain outside counsel to represent Commissioner Tom Herming and County employees Stan Chrzanowski and Rudy Moss, who are all being sued by former employee Barbara Burgeson in the case styled Barbara Burgeson 1'. Collier County, Tom Henning, Stan Chrzanowski, and Rudy ,\fo.l's, Case JVo. 09-2010-C1, Twentieth Judicial Circuit in and for Collier County. and in addition to waive the Purchasing Policy to the extent it applies to the selectiDn Df outside counsel and/or otherwise exempt the selection of outside counsel from competition pursuant to VII.G. of the Purchasing Policy, SUBMITTED BY: Jeffrey A. Klatzkow, County Attorney i r I , -"',. Page 1 or 1 l',ern \;0, i'3r<5 !\,'1a: ,~fl =4, 2CiD3 ", Dr ~9 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16~~5 Recommendation pursuant to Collier County Resolution No 95-632 that the Board of C:)unty COnllllissicners authonzes the Office of the County Attorney to select and retalll olltside counsel to ,'2present Commissioner Tom Henning, as v\!ell as County employees Stan Chr=3Ilows,ki and Rudy Moss, who ale all being sued by former employee Barb:)~a Burgeson in the case styled Barbara Burgeson \I, Collier County, Tom Henning, St:.:n Chrzanowski, and Rudy r'Jloss, Case No. 09-2010-,CA. Twentl'3th JudiCial Circuit in and for Ccllier County, and in addition tOvl,'ai\ie U",e Purchasing Policy to the extent it applies to the ~.e!8ct!On of outSide cOclnsei 3ilj'or oln.:;rVl'ise Erempt '_he ss.!ec.ti')tl of OU!E,lce counsel fro:-n comr:.elition pursuant to VI] G of the Purchasing Policy Meeting Date: 3/24/200990800 AJJi Prepared By Jeff Klatzkcw Assistant County.~,tto~ncy Date County Attorney County t\ttorncy effEct: 3/'17[2009 2:.1.4:51 ~M Approved By Jeff !<;Jat:ko'i,; ,t,s~~s-~~;nt County At~0,;1i?Y ::'>3te County Attorney COl::--,ty r.!:tOn1Cj O~f:C0 :V-: 7....2009 4 :09 PM Approved By :,f;ark !sB.cks::m Sud2::t ~\:oe:Yst D2ta Coun~y r-.1ar.c:gcr's Office O;fir:e of f\.~,-m29orncnt &. Budget 3/17;20094:41 PM Approved By Ji:lrn!O's V. Mudd CDunty tl'ianag0r Date Soard of County Commissioners Cuunty r..rianzgH's Office 3i1li2009 4:56 PfJi ~EMORANDUM :i(:;':1'1 i\io. i '_Ii\:') r,~(;rch 24. 2!JC9 P;:-:;ie 4 of J 9 , . TO: County Attorney Jeff Klatzkow FROM: Commissioner Jim Coletta RE: Attached Summons - Case # 09-2010-CA DATE: March 13,2009 I was served on March 13.2009, with this summons and complaint in the ab~ve stated actions and have 20 days within which to respond to the complaint. Please take whateve1 actions are required. I i JC: fist Attachment ...~ '._J , , .~ n QC) ',:- ---Ti "'-~iJ ~-..-;(j ~ n~ 2:n ;;::~ :n ;~;~: 7 ,c. hi ;!.J ". w -1 j'.:! (, 'oJ " , -, !tern tJo.3f,5 ~,,1arch 24. i}J9 ?a'J8 5 f 49 IN THE CIRCUIT OF TI-IE TWENTIETH JUDICIAL C RCUIT IN AND FOR COLLIER COUNTY, FLORIDA BARBARA BURGESON. Plaintiff, RECEiVED WI? :' Iliii9 /' ~I'" '1l"" . ':' ~I' 01', '-,I'." '--'I' o? - RO (~->- e.it g c:; ~ Oc ~ '--f ~-r~ .~.~, ~ -~' ....-'C W '[T P- C) -j (-. ::l: ,e~j ~rl P0-1J I c..., ~fTl l,.fi ',":':,J vs. CASE NO. COLLIER COUNTY, TOM HENNING, Individually. STAN CHRZANOWSKI, Individually. and RUDY MOSS, Individually. Defendant. / SUMMONS THE STATE OF FLORIDA: TO ALL AND SINGULAR THE SHERIFFS OF SAID STATE: GREETINGS: YOU ARE HEREBY COMMANDED to serve this Complaint in the above styled eause upon the Delendant: Collier County By Serving: Board of County Commissioners 3301 E. Tamiami Trail Naples. FL 34112 i , I Sumnlons and a copy of the I I I , Each Defendant is hereby required to serve written defenses to sai4 Complaint or Petition on Plaintiffs attorney, whose name and address is: I Bill B. Berke, Esquire BERKE & LUBELL. PA 1003 Del Prado Boulevard. Stc. 300 Cape Coral, Florida 33990 (239) 549-6689 I within twenty (20) days after service of this Summons upon that Defendahl. exclusive of the day or service, and to lile the original of said written defenses with the Clerk of said Court either before " \ ik;,TI i~o. ~16r-5 l\/larch 24. 2009 Page 6 of ~9 service on l'laintiff's attorney or immediately thereafter. If a Defendant fai s to do so. n default ,,-ill bc entered against that Defendant for the relief demanded in the Complaint r Petition. WITNESS my hand and the seal oflhe Co It on (Court Seal) Fly; 2 .2009. l!wJGHr't- I",:. B. ReCI( . , C~R/( -: DEPUTY CLERK I' "'- I I rt8:ll [oJ\], 'JK5 '"larch 24, 2009 ,-J C"'IC r.)~ I' J- Pi)ge 7 of 49 l,j~ : :IU~~ I.. 1- 111- I"";--Y :"nv '-";'":"'1"-"'-""---;[" ..1.., ,'of I f;i j,....::"i..:r IN THE CIRCUIT OF THE TWENTIETH JUDI<t~'IRjqu~~ i 3: 00 IN AND FOR COLLIER COUNTY, FLORID BARBARA BURGESON, vs. CASE NO. ~(Q)(P)W Oqi aG/~- ~o ,~ I , '-' I II P ~,;~ r~ f1 r:-l Is? I,-':; ~:'] c.> ar I' ... c:-. C::rr] C") :;;~o -; I <<2 ~ ;-<. I ..1_. ~ ::.oj '10 r:J ;;;:wr- .c- 0 ;u c..' CJ >- 5-) Plaintiff, COLLIER COUNTY, TOM HENNING, Individually, STAN CHRZANOWSKI, Individually, and RUDY MOSS, Individually, Defendants. I COMPLAINT AND DEMAND FOR JURY TR AI, Plaintiff, Barbara Burgeson, by and through her undersigned counsel, complaining of Rudy Moss, alleges: Defendanl~, Collier County, Collier County Commissioner Tom Henning, Stan Chrzanowski and I I , , I. PRELJMINARY STATEMENT 1. Plaintiff, Barbara Burgeson, brings this action to remedy i discrimination in her employment in Violation of the Florida Civil Rights Act of 1992 (here~er "FCRA"), Fla. Stat. S 760.01 ct. seq. (1992). Plaintiff brings causes of action for disc~tiOn, including gender discrimination, sexual harassment and retaliatiou. Plaintiff also bringf other causes of action under the Florida Equal Pay Act, Fla. Stat. S 725.07, the General Labor fegulations, Fla. Stat. ~ I 448.07, and the FCRA, Fla. Stat. ~ 760.10, all requiring equal pay fo~ equal services and for I negligent supervision, intentional infliction of emotional distress, ~ssault and battery by 1 Defendant, Rudy Moss and for Tortius Interference with Employment ~lationship, Conspiracy I I I I I I i !~:;-:m r~o. ': :3!<,5 :','~:jr,-~h .:24, 2009 Page 3 of 49 . to c;:ortiously Interfere with Employment Relationship and conspirai y to Violate the County Admini&irator's Ordinance by Tom Henning, COlmty Commissioner. II. .JURISDICTION AND VENUE occurred within this Court's domain. 2. The damages are in excess of the amount required for the jurisdicfon of this Court. 3. Venue within this jurisdiction is proper as the unlawful practi~es complained of herein I I I m. COMPLIANCE WITH PROCEDURAL REQUIREMENTS 4. Plaintiff, Barbara Burgeson, filed her Charge of DiSeriminatrn on the basis of sex discrimination and sexual harassment against the Defendant, COllie] County, with the Dade County Office of Equal Employment Opportunity Commission ~ereafter "EEOC") and concurrently with the Florida Commission on Human Relation~ (hereinafter "FCHR") complaining of the discrimination alleged herein. Plaintiff has comPli+ with all administrative , prerequisites to sue under the FCRA. This action remained with the REOC for more than 180 I days. Plaintiff's other claims do not require exhaustion of any adminiStrative remedies prior to I I institution of proceedings in a Court of competent jurisdiction. i I IV. PARTIES I I I 5. Plaintiff, Barbara Burgeson, is a resident ofeollier County, FlOridt. 6. Defendant, Collier County, is a govenunent entity, doing busines. in the State of Florida, and an employer within the meaning of the FCRA and other Florida Sta tes. 7. Defendant, Tom Henning, is a Collier County Commissioner, s employed by Collier County, and is believed to reside in Collier County, Florida. i 8. Defendant, Stan Chrzanowski, was a coworker of Plaintiff; is emPlbyed by Collier County, I and is believed to reside in Collier County, Florida. 2 i~0;:n--; ['-J~). ':::;;.:) f./1clr'~;h 2,4-. 2C:.'9 F'.::'-;J8 '3 ~lf !,9 9. Defendant, Rudy Moss, was a coworker of Plaintiff, is employed y Collier County, and is believed to reside in Collier County, Florida. V. STATEMENT OF CLAIM I 10. Plaintiff, Barbara Burgeson, was employed by Collier County frbm December 28, 1989 through January 6, 2009 in the Engineering and Environmental Reviet Department (hereafter "EERD") in and for the Collier County, Collier COWlty, Florida. I 11. Plaintiff is a member of a protected group under the FCRA; she is remale. 12. Plaintiffs position was Environmental Services Manager for ctllier County. She was qualified for this position with a degree from Colgate University in Geolqgy. I 13. Plaintiff received excellent reviews over the entire 19 years in hlr position with Collier County. I 14. On or about October I, 2006, the Collier County Engineertg and Environmental Departments merged into one. Prior to the merge of the departments Plaintiff was asked by her Department Manager to evaluate the pay grades of positions in both epartments, as it was obvious the Engineering Department was being paid at a higher rate an the Environmental Department. At this time, Plaintiff was not aware of how much the En ineers were earning or what their official qualifications or education were but was only aw of some of their pay grades. 15. Plaintiff's Director requested a 10% pay increase for Plaintiff th t was not approved by Human Resources. During this samc time period multiple pay raises we e approved for men in the EERD. Plaintiff's request for a raise complied with Human Resourc polieies and the raises given to men did not comply with the Human Resource policies and Jere given to men who I were not qualified to be in the positions they were in. I 3 ...J ::,::'::;:'1 :'~Cl. ' '.j:','J r'~,:J :::h ::::-t. .'20C,g 10 of .~9 16. Plaintiff was discriminated against in her workplace based u n her gender by not receiving equal pay for equal services while employed by Defendant, .ollier County, and was later retaliated against for her complaints regarding such equal pay. 17. Plaintiff, Barbara Burgeson, was sexually harassed in her workpl e by Defendant, Collier County, through its employees, namely Stan Chrzanowski and Rudy Mo s. I 18. On or about November 8, 2007, Defendant, Rudy Moss, wholwas a co)Vorker in the EERD, touched Plaintiff on her rear end twice. Plaintiff told her Dirbctor and filed a formal I 1 complaint with Peter Wiltsie, a Collier County Human Resource speci1st 19. On or about November 9,2007, Plaintiff filed a fonnal COmPljt for sexual harassment against Defendant, Stan Chrzanowski with his Supervisor and Human 1esources staff. Plaintiff, along with other women, was the target of unwelcome sexual advances; and physical, verbal and visual conduct of a sexual nature which created a hostile and offensive work environment Defendant, Stan Chrzanowski used unwelcome sexuali propositions (repeated I , requests for plaintiff to hug him or to sit on his lap), sexual innuenPo, sexually suggestive I , remarks, vulgar or sexually explicit conduct, sexually oriented teasing, physical contact such as hugging and touching other women in the office, publication and diSPlat of pictures and objects of a sexual nature, use of emails and websites that contained material ot a vulgar sexual nature, , and abusive and intimidating conduct and remarks directed at w4men. Defendant, Stan Chrzanowski's behavior was demeaning, insulting, abusive, intimidatinf and harassing and was not only inappropriate but violated every example of sexual harassmfnt listed in the Collier County prohibition of sexual harassment policy. Defendant, Stan C1uzjmowski, also displayed sexually explicit items and pictures in his office. Plaintiff complained land was later retaliated against for her complaints of sexual hara~sment 4 H'3l-: !,jO. '3f<5 f\A,c;rCil 24, 2()~19 .i 1 of 49 20. Plaintiff, Barbara Burgeson, repeatedly demanded that Defend t take action to stop the sexually harassing behavior and hostile work environment. Plaintiff complained repeatedly to senior staff and the human resources staff regarding the inappropri te sexual comments and actions of Defendants, Stan Chrzanowski and Rudy Moss. 2 L The inappropriate comments and actions of Defendants, Stan \ Chrzanowski and Rudy Moss, continued even though they were told by the Plaintiff to stop tht uninvited behavior and they became retaliatory toward the Plaintiff. I 22. Defendant, Collier County, through its employees, agen~, and/or supervisors, intentionally, maliciously, and without justification, inflicted injury upoj the Plaintiff which was I ongoing, repeated and continuing through December, 2008. \ 23. The conduct by Defendants, Collier County, through its emdloyees, agents, and/or supervisors, Commissioner Tom Henning, Stan Chrzanowski and Rudy \ Moss, was committed willfully, knowingly, maliciously, intentionally, wanto~ly, recklessly, and/fr negligently. 24. A county ordinance, and Florida State Statutes prohibit commfusioners from getting I involved in the hiring and firing of county staff; with the exception of cas~ involving the county i manager, county attorney and Collier Airport Authority director. Plafntiff accuses Collier County Commissioner Henning and County Manager, Jim Mudd of Jterfering illegally in \ personnel decisions and defamation of character, and of attempting to I financially hurt Ms. Burgeson. Wherein Henning wrote a damaging letter to Mudd defamin~ Plaintiff and Mudd forwarded the letter to Joe Schmitt the Community Development and Entronmental Services I (CDES) Administrator with direction to use in her annual review. Collier cfunty Commissioner Henning and County Manager, Jim Mudd tried to destroy Plaintiff's professional reputation, I defamed her character and demanded that it negatively affect her rual I I \ I review and 5 :t'.,-,iTl !'-Jo. 5 L'~]r:;:l ~~4 2C,l 9 p:,;ge ~2 of 9 salary. Other letters from Henning to his fellow commissioners d the County Manager attempted to identify Plaintiff as an employee with no p fessional character or integrity and negatively influenced the CDES Administrator, which r quired Ms. Burgeson to have to defend herself that she was truthful and honest, had e highest integrity and professionalism and had the County's best interest at heart. , I I , COUNT I I VIOLA nON OF THE FLORIDA EQUAL PAY ACT, FLA. STAT. & 725.07 AGAINST COLLIER COUNTY I 25. Plaintiff, Barbara Burgeson, repeats and realleges each and eve1 allegation of paragraphs I through 16 of this Complaint with the same force and effect as if fully set forth herein. I , 26. Plaintiff brings this claim pursuant to Fla. Stat. ~ 725.07(1) because Defendant, Collier County, discriminated against Plaintiff based upon her scx in that she I was not receiving equal pay for equal services performed. 27. Plaintiff, Barbara Burgcson, is a protected female person. 28. Plaintiffs position was Environmental Services Manager for <fllier County. She was qualified for this position with a degree from Colgate University in Geolpgy. i 29. Plaintiff's compensaiion was less than the men in her dePartmfnt (EERD), some with , lower pay grades were earning more and many had less experience and 9ualifications for the jobs , that they were performing. 30. Defendant violated the Florida Equal Pay Act by not providing IPlaintiff with equal pay for equal services rendered by her while employed by Defendant WHEREFORE, Plaintiff, Barbara Burgeson, prays that this Co will: a. Declare that the acts and practices complained of herein are in 'olation of The Florida Equal Pay Act; 6 itsm :+::L i Ct<5 :v1arz:h 24. 2C}c'~~ ?aJB ~13 of :ij b. Enjoin Defendant from continuing or maintaining any poli y, practice, or custom of denying, abridging, withholding, or conditioning the rights f employees on the basis of their sex, which rights are secured by The Florida Equal PAct; c. Direct the Defendant, Collier County, to pay Plain iff, Barbara Burgeson, compensatory damages representing lost wages and punitive damages for the injuries i suffered as a result of Defendant's violations of'Ibe Florida ~uaI Pay Act; d. Grant Plaintiff, Barbara Burgeson, her costs and a reasonable ~ward of attorney's fees I pursuant to Fla Stat. ~725.07(2); and e. Grant such other and further relief as this Court deems just an proper. COUNT II VIOLATION OF THE GENERAL LABOR REGUL TIONS, FLA. STAT. 448.07 AGAINST COLLIER COvNTV 31. Plaintiff, Barbara Burgeson, repeats and realleges each and every allegation of paragraphs 1 through 16 of this Complaint with the same force and effect as if fully et forth herein. 32. Plaintiff brings this claim pursuant to Fla. Stat. S 448.07 bec~use Defendant, Collier County, discriminated against Plaintiff in her wage rate based upon her gender. 33. Plaintiff, Barbara Burgeson, is a protected female person. I 34. Plaintiff's position was Environmental Services Manager for C !lier County. She was qualified for this position with a degree from Colgate University in Geolo . I 35. Plaintiff's compensation was less than the men in the EERD and mJany had less experience and qualifications for the jobs that they were performing. Pursuant to 1Ja. Stat. S 448.07(2)(a) "no employer shall discriminate between employees on the basis of s~x by paying wages to onploY''' " . ,," I,~..", fu, ,," .1 will'" h, 0' '" P'Y" _" 10 to'"" of I" """"I' I I , ! 7 I I I sex for equal work on jobs the performance of which requires fqUal skill, effort, and responsibility..." I WHEREFORE, Plaintiff, Barbara Burgeson, prays that this cor will: a. Declare that the acts and practices complained of herein are in yiolation of The General Labor Regulations, Fla. StaL S 448.07; I I b. Enjo;. Doft,,,,,,,, from ,,,<bmW. ,,_ my po'orl "",ti~, "'""= of denying equal pay for equal services provided on the basis 01 their sex, which rights are secured by Ibe Geneml Labor Regulations; i , ::.;;-~iTI tJo. 1'~f<S :,'i~li'ch 2~. 2809 F:1:~':; 14 uf -~9 c. Direct the Defendant, Collier County, to pay Plaintiff, Barbara Burgeson, compensatory damages representing lost wages together with sJd amounts and interest for the injuries suffered as a result of Defendant's violations 10f n1e General Labor I Regulations pursuant to Fla. Stat. 9 448.07(3); I I d. Grant Plaintiff, Barbara Burgeson, her costs and a reasonable awjrrd of attorney's fees pursuant to Fla. Stat. S 448.07(4); and 'I , e. Grant such other and further relief as this Court deems just and p~oper. COUNT III I VIOLA nON 0.1<' THE FCRA. FLA. STAT. Ii 76o.l0 AGAINST COLLIER COUNTY I 36. Plaintiff, Barbara Burgeson, repeats and realleges each and every al]jegation of paragraphs I tllfough 16 of this Complaint with the same force and effect as if fully set ~Orth herein. 37. Plaintiff brings this claim because Defendant discriminated against rlaiutiff with respect to her compensation because of her sex (female), Fla. Stat. S 760.10(1 )(a). i , 38. Plaintiff, Barbara Burgeson, is a protected female person. 8 liBiD 1,lJ. 1-;;[-::5 r'Aarch 24, 2CC:9 Pa;e ';5 uf 49 39. Plaintiff's position was Environmental Services Manager for oilier COWity. She was qualified for this position with a degree from Colgate University in G 40. Plaintiff's compensation was less than the men in her dep ent and many had less experience and qualifications for the jobs that they were performing. WHEREFORE, Plaintiff prays that this Court will: a. Declare that the acts and practices complained of herein are i violation of the FCRA, Fla. Stat. S 760.10, et seq.; b. Enjoin Defendant from continuing or maintaining any polic , practice, or custom of denying equal pay for equal services provided on the basis f their sex, which rights are secured by the FCRA; c. Direct the Defendant, Collier County, to pay Plaint ff, Barbara Burgeson, compensatory damages representing lost wages together with aid amounts and interest for the injuries suffered as a result of Defendant's violations f the FCRA pursuant to Fla. Stat. S 760.11(5), et seq.; d. Grant Plaintiff, Barbara Burgeson, her costs and a rea~onable ard of attorney's fees pursuant to Fla. Stat. S 760.11(5); and e. Grant such other and further relief as this Court deelllS just and proper. COUNT IV SEXUAL HARASSMENT IN VIOLA nON OF F FLA. STAT. 760.01 AGAINST COLLlER CO 41. Plaintiff, Barbara Burgeson, repeats and rea!leges each and every !legation of paragraphs I through 13 and paragraphs 17 through 23 of this Complaint with the s e force and effect as if fully set forth herein. 9 !::::-iTl :,b. i':_H<5 f),,:r;::h 24, :::DCd 16 ,)f"::9 42. Plaintiff brings this claim against Defendant, Collier County, pursuant to Fla Stat. S 760.Dl. 43. The actions of Defendant, Collier Couilty, through its e ployees, agents, and/or supervisors, created a sexually hostile atmosphere. 44. Plaintiff, Barbara Burgeson, is a protected female person. I 45. By the above acts described in paragraphs 17 through 23, Defen' ts violated the FCRA by harassing the Plaintiff because of her sex which affected the terms, onditions, and privileges of her employment. 46. Defendant's acts were with malice and a reckless disregard or Plaintiffs statutorily i protected civil rights. I 47. As a direct and proximate result of said acts, Plaintiff is now su~ering and will continue to suffer irreparable injury and monetary damages as a result of Defendant's discriminatory practices, unless and until this Court grants relief. WHEREFORE, Plaintiff prays that this Court will: i a. Declare that the acts and practices complained of herein are in violation oithe FCRA; b. Enjoin Defendant from continuing or maintaining any pOlic1 practice, or custom of denying, abridging, withholding, or conditioning the rights o~ employees on the basis I of their sex, which rights are secured by the FCRA; c. Direct the Defendant, Collier County, to pay Plaintiff, Barbara Burgeson, compensatory damages representing lost wages and all tther swns of money, including, but not limited to retirement benefits, accrued sick p~y, health insurance, life insurance, disability insurance, all fringe benefits, and all othfr employment benefits I I 10 IL~:;:ri :,jo, h)<5 ;,,1arcll ::'4. 20:)9 Pag9 i? of J9 , which were lost, together with said amounts and interest fo) the injuries suffered as a result of Defendant's violations of the FCRA; d. Grant Plaintiff, Barbara Burgeson, her costs and a reasonable jWard of attorney's fees; and . e. Grant such other and further relief as this Court deems just an1 proper. COUNT V I RETALIATION AGAINST COLLIER coUNtY 48. Plaintiff, Barbara Burgeson, repeats and realleges each and every allegation in paragraphs I through 23 of this complaint with the same force and effect as if fully stt forth herein. 49. Defendant, Collier County, through its employees, agents, TdJor supervisors, has retaliated against Plaintiff based on her statutorily protected right to c01Plain.of discriminatory practices as stated herein, in violation of the FCRA and Equal Pay Statutek. I 50. Defendant's acts were with malice and a reckless disregard for Plaintiff's statutorily protected civil rights and equal pay rights. I I 51. As a direct and proximate result of said acts, Plaintiff is now SUffring and will continue to suffer irreparable injury and monetary damages as a result of Defendant's discriminatory practices, unless and until this Court grants relief. WHEREFORE, Plaintiff prays that this Court will: a. Declare that the acts and practices complained of herein are in v olation of the FCRA and Equal Pay Statutes; b. Enjoin Defendant from continuing or maintaining any policy, pdctice, or custom of denying, abridging, withholding, or conditioning the rights of eir~IOyeeS on the basis ! of their sex, which rights are secured by the FCRA and Equal pa* Statutes; i i I I 11 1~(:';:1l iJo. i 'J! ,:) Ik,rrh =4 21J': oJ P;:)]9 ~-3 ')f :'9 c. Direct the Defendant, Collier County, to pay Plaintiff compensatory damages representing lost wages and all other sums of money, incl ding, but not limited to retirement benefits, accrued sick pay, health insurance, re insurance, disability insurance, all fringe benefits, and all other employment bjnefits which were lost, together with said amounts and interest for the injuries ruffered as a result of Defendant's violations of the FCRA; I d. Grant Plaintiff, Barbara Burgeson, her costs and a rea~onable tward of attorney's fees; and I e. Grant such other and further relief as this Court deems just an1 proper. COUNT VI I NEGLIGENT SUPERVISION AGAINST COLLIER bOUNTY I 52. Plaintiff, Barbara Burgeson, repeats and realleges each and every allfgation in paragraphs I through 23 of this Complaint with the same force and effect as if fully s~ forth herein. , 53. Defendant, Collier County, owed a duty to the Plaintiff to supervise fts agents, employees I and officers to prevent violations of the law. i I 54. Plaintiff states that company officials with authority over the PlaintiibreaChed their duty by failing to adequately supervise the workplace to prevent the actions des1ribed in paragraphs J 5 through 23 which affected the terms, conditions, and privileges of her CfPlOyment. 55. As a direct and proximate result of said acts, Plaintiff is now sufferinr and will continue to suffer irreparable injury and monetary damages as a result of Defendant's ntgligent supervision, unless and until this Court grants relief. , I WHEREFORE, Plaintiff; Barbara Burgeson, prays for judgment ag1nst the Defendant, Collier County, for an award of damages, costs of action incurred herein, including rea~onable 12 :tC~:'~i i-b. '1':-:.:::> ~Ji;:;:'~~h ::::4, 2C:~;9 ~9 Jf,,~a . attorney's fees, and such other and further legal and equitable relief as 's Court deems just and proper. i COUNT VII I CLAIM FOR ASSAULT AND BATTERY AGAINST DEFEkANT. RUDY MOSS 56. Plaintiff, Barbara Burgeson, repeats and realleges each and eve~ allegation in paragraphs 1 through 13 and paragraphs 17 through 23 of this complaint with the lame force and effect as if fully set forth herein. 57. On or about November 8, 2007, Defendant, Rudy Moss, wh was a coworker in the EERD, touched Plaintiff on her rear end twice. Defendant, RldY Moss, intentionally, maliciously, and without justification, inflicted injury upon the Pl1ntiff by inappropriately touching and embarrassing Plaintiff to such a degree that it iiatelY and permanently negatively affected her ability to work comfortably with many of her eO'forkers. , 58. Defendant, Rudy Moss' offensive or hannful contact with PI4tiff as set forth herein, I constituted a battery upon Plaintiff. . I 59. Defendant, Rudy Moss' harmfbl or offensive contact \vith PIm4tiff as set forth herein, I placed the Plaintiff in imminent apprehension of such contact, and COIl tituted an assault upon her. 60. The aforesaid conduct by Defendant, Rudy Moss, was committ d willfully, knowingly, 61. As a direct and proximate result of Defendant's acts as desc 'bed in the foregoing paragraphs, Plaintiff has suffered serious mental anguish, humiliation, e barrassment, physical I and emotional upset, including, but not limited to, post-trawnatic stres! disorder, depression, sleeplessness, isolation, flashbacks, anxiety; the full extent of which i~uHes are not yet known, .teir, f'-10. ';I.:)!-<.5 Lf:ar,=:::h 24. 20CJ9 p;o:;S' 2D Qf c'19 62. As a direct and proximate result of the Defendant's acts as d scribed in the foregoing paragraphs, Plaintiff suffered, and will in the future continue to sufii ,serious mental pain and anguish, emotional upset, and the loss oflife' s pleasures. ! 63. As a direct and proximate result of the Defendant's acts as ctbsCribed in the foregoing paragraphs, Plaintiff has sustained a loss of earnings and earning eapacJ. 64. As a proximate result of the conduct of the Defendant, through ts employee, Rudy Moss as aforesaid, Plaintiff is entitled to damages a~ hereinabove set forth. WHEREFORE, Plaintiff, Barbara Burgeson, prays for judgme t against the Defendant, Rudy Moss, for an award of damages, costs of action incurred helin, including reasonable attorney's fees, and such other and further legal and equitable relief as rs Court deems just and proper. 1 COUNT VIII CLAIM FOR INTENTIONAL AND NEGLIGENT I ICTION OF EMOTIONAL DISTRESS AGAINST DEFENDANTS, RUDY MOSS, STAN CHRZANOWSKI AND TOM HlENNING I 65. Plaintiff, Barbara Burgeson, repeats and realleges each and everyiallegation in paragraphs I I through 24 ofthis complaint with the same force and effect as if fully sFt forth herein. 66. In December 2008, Plaintiff suffered a nervous breakdown at work. The acts described in I I I 67. At all tinles relevant hereto, Defendants, Rudy Moss, Stan Chrzanowski, and Tom , I I Henning knew with substantial certainty, or should have known that severe emotional distress I paragraphs 15 through 24 lead to Plaintiff's nervous breakdown. would be produced by their conduct. I 68. By engaging in the acts set forth in the foregoing paragraphs, gefendants, Rudy Moss, Stan Chrzanowski, and Tom Henning, engaged in extreme and ottrageous conduet and lintentionally inflicted severe emotional distress upon Plaintiff. 14 , , , I , I I ?d98 21 .of 4, 69. As a direct and proximate result of the acts of Defendants, Rudy Moss, Stan Chrzanowski, [[2:<1 :'~J. .; S~<5 r'.'121\~h 24, 2C)09 and Tom Henning, as set forth in the foregoing paragraphs in this Co plaint, Plaintiff has been caused to suffer and continues to suffer severe emotional distress, h iliation, embarrassment, and financial loss. WHEREFORE, Plaintiff, Barbara Burgeson, pmys for judgmen against the Defendants, Rudy Moss, Stan Chrzanowski, and Tom Henning, for an award of Idamages, costs of action incurred herein, including reasonable attorney's fees, and such other and further legal and equitable relief as this Court deems just and proper. I 70. Plaintiff, Barbara Burgeson, repeats and realleges each and eveIJ1 allegation of paragraphs I I through 13 and paragraph 24 of this Complaint with the same force I and effect as if fully set COUNT IX TORTIOUS INTERFERENCE WITH EMPLOYMENT RELATIONSHIP AGAINST TOM NNING forth herein. 71. Plaintiff hereby brings action for tortious interference with dmployment relationship I I against Defendant Henning under Florida law. I I 72. Plaintiff has been an employee of Defendant County for over nineteen (19) years. 73. Plaintiff received excellent reviews over the years in her position tith Collier County. 74. On June 28, 2005, Plaintiff made an oral presentation befor the Board of County , Commissioner meeting (hereafter "meeting") regarding approval of Environmental Impact Statement for final plat and construction for the Kraft Constructio headquarters building (hereafter "EIS"). 75. Defendant Henning, County Manager James Mudd, I .. county COFlsslOners I i I I and other interested parties attended the meeting. 15 ;,,2:--:-11<'J. i c.;t<5 20(;9 CJfe;] . 76. On or about May 4, 2005 and continuing through May 9, 200 , Defendant Henning sent angry cmails (See Email attached hereto as Exhibit A) concerning s EIS to County Manager James Mudd, Plaintiff, other County employees. 77. On June 6, 2005, Defendant Henning acknowledged the angry lemails and his frustration , with the government (See Naples Daily News Article of June 6, 2005, flttached hereto as Exhibit I B). I 78. On July 12, 2005, Defendant Henning wrote a letter to COUll Manager James Mudd condcmning Plaintiffs presentation at the meeting (a copy of said Ie er is attached hereto as Exhibit C). 79. Defendant Henning's letter of July 12,2005, to County Manager\James Mudd, stated that Plointiff, oml p=>>mtion _ "p-g ~d om"""""""." I 80. Defendant Henning's letter of July 12, 2005, to County Manager James Mudd, was the I product of Defendant Henning's malice towards the Plaintiff, and waf not in protection of a legitimate competitive, economic, or other interest of Defendant Ilennin~. 81. Defendant Henning's letter of July 12, 2005, to County Manker James Mudd, did I suggest, induce, and effectively necessitate an adverse employee action ~ainst Plaintiff. Writing I the letter was, therefore, outside his discretionary authority, and is Ian act unprotected by qualified inununity Section 2-78(c) of the Collier County Administrator 9rdinance provides, "No county commissioner shall direct or request the ap~1 intment of any person to, or his removal from, office by th county administrator or by any of his subordinates, or in any m er take part in the appointment or removal of officers or employe s in the administrative services of the eounty except as provided, by this article. Neither the board nor any member thereof shall interfere in the performance of any of the duties of any subordinatd of the county administrator, either publicly or privately except: for the purposcs of inquiry and information. A violation of the prclvisions of this section shall constitute malfeasance within the mea(ning of 16 it'::;:Ti ;,j::J. '~'3~5 f',.'1;1iUl 24, 2'}:'J 23 Df...;9 Fla. Const. art. VI, ~ 7(a). A violation of this section sh~also be a violation of this division and shall be punishable by e not to exceed $500.00 or by imprisonment in the county jail no to exceed 60 days, or by both such fme and imprisonment, or as otheIWise may be provided by law." 82. County Manager James Mudd forwarded the letter to Plaintiff Division Administrator with instruction to be used in her annual review. 83. Defendant Henning's letter of July 12, 2005, to County M ger James Mudd, and Defendant Henning's condemnation and criticisms of Plaintiff's speec were the sole or chief catalyst of County Manager James Mudd's adverse employment action a ainst Plaintiff 84. Defendant Henning did knowingly, intentionally, and without ju tification, interfere with an existing employment relationship between Plaintiff and her empl yer, which resulted in damage to Plaintiff. 85. As a result of Defendant Henning's tortious interference with Plaintiffs employment, Plaintiff has suffered a decrease in wages, damage to her professional eputation, humiliation, pain and suffering. WHEREFORE, plaintiff demands judgment against Defendant He . g for back pay, front I pay, general and compensatory damages, punitive damages, and damagds for humiliation, pain and suffering. I COUNT X I CONSPIRACY TO TORTIOUSLY INTERFE~ WITH EMPLOYMENT RELATIONSIDI' AGAI ST DEFENDANTS. TOM HENNING AND COLLIER C UNTY I i 86. Plaintiff, Barbara Burgeson, rcpeats and realleges each and every allegation of paragraphs I I through 13 and paragraph 24 of this Complaint with the same force anll effect as if fully set I forth herein. I I I I 17 1:2:11;' 10. ~Gh5 r.'1ar,:h 24 20U9 :=-a;]t; 24 of 49 87. Plaintiff hereby brings action for civil conspiracy to tortiously' terfere with employment relationship against Defendants, Henning and County, lIDder Florida la 88. Plaintiff has been an employee of Defendant County for over ni teen (19) years. 89. Plaintiff received excellent reviews over the years in her positio with Collier County. 90. On June 28, 2005, Plaintiff made an oral presentation befo e the Board of County I Commissioner meeting (hereafter "meeting") regarding approval of t Environmental Impact Statement for [mal plat and construction for the Kraft constructijn hea. dq. uarters building (hereafter "EIS"). 91. Defendant HeMing, County Manager James Mudd, county rmrmsslOners and other interested parties attended the meeting. I 92. On or about May 4, 2005 and continuing through May 9, 2005,1 Defendant HeMing sent angry emails (Sec Email attached hereto as Exhibit A) concerning thisl EIS to County Manager James Mudd, Plaintiff, other County employees. I 93. On June 6, 2005, Defendant Henning acknowledged the angry tailS and his frustration with the government (See Naples Daily News Artiele of June 6, 2005, ar: ehed hereto as Exhibit B). 94. On July 12, 2005, Defendant Henning wrote a letter to coun, Manager James Mudd condemning Plaintiffs presentation at the meeting (a wpy of said leryer is attached hereto as Exhibit C). l 95. Defendant Henning's letter of July 12, 2005, to County Manager ames Mudd, stated that I Plaintiff's oral presentation was "appalling and embarrassing." 18 lleiTi !'b. 61<5 f',~arch 24 ;~JU9 ?age 25:)f .4 9 96. Defendant Henning's letter of July 12,2005, to County M or James Mudd, was the product of Defendant Henning's malice towards the Plaintiff, and as not in protection of a legitimate competitive, economic, or other interest of Defendant Henni 97. Defendant Henning's letter of July 12, 2005, to County M' er James Mudd was the product of Defendant Henning's malice towards the Plaintiff, and not in protection of a legitimate competitive, economic, or other interest of Defendant Henni~g's. 98. Defendant Henning's letter of July 12, 2005, to County M Mudd did suggest, induce, and effectively necessitate an adverse employment a 'on to Plaintiff. Writing the letter was, therefore, outside his discretionary authority, and i by qualified immunity Section 2-78(c) of the Collier County Administrator rdi!lllllce provides, "No county commissioner shall direct or request the aptointment of any person to, or his removal from, office by ~county administrator or by any of his subordinates, or in any m er take part in the appointment or removal of officers or employes in the administrative services of the county except as ProVid~ by this article. Neither the board nor any member thereof shall i terfere in the performance of any of the duties of any subordin e of the county administrator, either publicly or privately exce for the purposes of inquiry and information. A violation of the p~:,i~iOns of this section shall constitute malfeasance within the m . g of Fla. Canst. art. VI, 9 7(a). A violation of this section shall ialso be a violation of this division and shall be punishable by rule not to exceed $500.00 or by imprisonment in the county jail not tp exceed 60 days, or by both such fine and imprisonment, or as 9therwise may be provided by law." I I I 99. County Manager James Mudd forwarded the letter to Plaintiff's Division Administrator with instruction to be used in her annual review. I 00. Defendant Henning's letter of July 12, 2005, to County Manaker James Mudd, and Defendant Henning's condemnation and criticisms of Plaintiffs speech ~ere the sole or chief catalyst of County Manager James Mudd's adverse employment action aga1nst Plaintiff. I I I 19 ';.:!a 1::;:;;11 rho ,:"')-.5 I [',-1ar::::h 24 2:}C}9 I P~ge 20 cf ,9 101. D,f""'rn' H~illg did koo'".gly, ill'rn"oruilly, "'" wij j_~''''' ill""''''''' with an existing employment relationship between Plaintiff and her e pI oyer, which resulted in 102. Defendant Henning individually, acting outside his discretion authority of the Collier damage to Plaintiff. County Board of Commissioners, in combination or agreement with Defendant County, maliciously conspired to tortiously interfere with Plaintiffs emPIOymet 103. It is unlawful in Florida to tortiously interfere with an emPlo~nt relationship, supra. 104. As a result of Defendant Henning's and Defendant County civill conspiracy, Plaintiff has I suffered a decrease in wages, damage to her professional reputatior' humiliation, pain and suffering. I I WHEREFORE, Plaintiff demands judgment against Defendant fIerming and Defendant County for back pay, front pay, general and compensatory damagesr punitive damages, and damages for humiliation, pain and suffering. : COUNT XI I CONSPIRACY TO VIOLATE THE COUNTY ADMINISTRATOR'S ORDINANCE AGAINST DEFENDANTS. TOM HENNING AND COLLIER COUNTY! 105. Plaintiff, Barbara Burgeson, repeats and realleges each id every allegation of paragraphs 1 through 13 and paragraph 24 of this Complaint with the sre force and effect as if fully set forth herein. . I 106. Plaintiff hereby hrings action for civil conspiracy to violate the !County Administrator's I I Ordinance, supra, against Defendant HeMing and Defendant County under Florida law. I 107. Plaintiff has been an employee of Defendant County for over nin1teen (19) years. 108. Plaintiff received excellent reviews over the years in her position rith Collier County. 20 Item [,b. 3f\5 r.:acsh 24. 2009 27 of '19 109. On June 28, 2005, Plaintiff made an oral presentation befi re the Board of County Commissioner meeting (hereafter "meeting") regarding approval of n Environmental Impact Statement for fmal plat and construction for the Kraft Constructi n headquarters building (hereafter "EIS"). 110. Defendant Henning, County Manager James Mudd, county +mmiSSiOners and other interested parties attended the meeting. III. On or about May 4, 2005 and continuing through May 9, 2005, Defendant Henning sent I angry emails (See Email attached hereto as Exhibit A) concerning this lEIS to County Manager James Mudd, Plaintiff, other County employees. 112. On June 6, 2005, Defendant Henning acknowledged the angry e ils and his frustration with the government (See Naples Daily News Article of June 6, 2005, a hed hereto as Exhibit ~ ! 113. On July 12,2005, Defendant Henning wrote a letter to counJ Manager James Mudd condemning Plaintiff's presentation at the meeting (a copy of said le:~r is attached hereto as I Exhibit C). I 114. Defendant Henning's letter of July 12,2005, to County Manager ames Mudd, stated that Plaintiff's oral presentation was "appalling and embarrassing." 115. Defendant Henning's letter of July 12,2005, to County Manage James Mudd, was the I product of Defendant Henning's malice towards the Plaintiff, and waslnot in protection of a legitimate competitive, economic, or other interest of Defendant Henning. 116. Defendant Henning's letter of June 9, 2005, to County Manager James Mudd, was the product of Defendant Henning's malice towards the Plaintiff, and was ~ot in protection of a I legitimate competitive, economic, or other interest of Defendant HeIlIlij1g's letter of July 12, I 21 ::~,,-l I,J::J. "~.'r,J r"t;;:Jrch 24, 20C9 '-8 of"3 2005, to County Manager James Mudd, did suggest, induce, and ffectively necessitate an adverse employee action for Plaintiff. Writing the letter was, therefo outside his discretionary authority, and is an act unprotected by qualified immunity. Section 2.7 (c) of the Collier County Administrator Ordinance provides, "No county commissioner shall direct or request the a pointment of any person to, or his removal from, office by e county administrator or by any of his subordinates, or in any anner take part in the appointment or removal of officers or empJo ees in the administrative services of the county except as provi d by this article. Neither the board nor any member thereof shall' terfere in the performance of any of the duties of any subordi te of the county administrator, either publicly or privately exce t for the purposes of inquiry and information. A violation of th:frovisions of this section shall constitute malfeasance within the eaning of Fla. Const. art. VI, S 7(a). A violation of this section sh . also be a violation of this division and shall be punishable by f'~e not to exceed $500.00 or by imprisonment in the county jail notlto exceed 60 days, or by both such fine and imprisonment, or as !otherwise may be provided by law." I! 117. County Manager James Mudd forwarded the letter to Plaintiff~ Division Administrator i with instruction to be used in her annual review. I , , 113. Defendant Henning's letter of July 12, 2005, to County Mar\ager James Mudd, and Defendant Henning's condemnation and criticisms of Plaintiff's speec~ were the sole or chief I catalyst of County Manager James Mudd's adverse employment action a~t Plaintiff. 119. Defendant Henning did knowingly, intentionally, and withoutjuffication, interfere with I an existing employment relationship between Plaintiff and her employer, which resulted in I damage to Plaintiff. \ 120. As a result of Defendant Henning's and Defendant County's ciyil conspiracy, Plaintiff I has suffered a decrease in wages, damage to her professional repU1atiol' humiliation, pain and suffering. . 22 i1em t+), 3:<'5 f\~3r':;h 24 2CJCi9 29 of:'9 ., 121. Defendant Henning, individually, acting out side his discretio authority as chairman of the Collier County Board of Commissioners, in agreement or COTbination with Defendant County, maliciously conspired to violate the County Administrator's Ordinance, supra, by demoting plaintiff or interfering with plaintiff's duties. \ 122. The County Administrator's Ordinance, supra, is a criminal \ordinance and violation thereof may lead to criminal penalties. Defendant County or Defehdant Henning acted to interfere in plaintiff's duties. 123. Defendant Henning acted to interfere in plaintiff's duties by sending the letter dated Junly 12,2005. WHEREFORE, plaintiff dcmands judgment against Defendant He . g for back pay, front pay, general and compensatory damages, punitive damages, and damag s for humiliation, pain and suffering. 'I I COUNT XII b DEl<'AMA nON OF PLAINTIFF'S CHARACTER AGAINST T M HENNING I 124. Plaintiff, Barbara Burgeson, repeats and realleges each and! every allegation of paragraphs I through 13 and paragraph 24 of tills Complaint with the san11! force and effect as if fully set forth herein. 125. Plaintiff hereby brings action for defamation against Defendant HeTg. 126. On July 12, 2005, Defendant Henning wrote a letter to County 1{anager James Mudd I , defaming Plaintiff (a copy of said letter is attached hereto as Exhibit C). I 127. Defendant Henning's letter of July 12, 2005, to County Manager J~S Mudd, stated that "r~","" HOMing coo,""",, PI"",,,,, ,"" p"""","o, ~ ".,,,!l"~ '"" r",""~"i,g." 23 I:.';,'] It-2:-:1 :Jo, "i6F5 f\i1arch 24 2009 P3g.:? 30 of .:::\9 128. Plaintiff's was performing her job and duties for the benefit of her employer and was well versed on the EIS issues and after a review of the video of th meeting her Department manager agreed that she was acting in the best interest of her employer. 129. Pursuant to Collier County ordinances, writing the letter was outside Defendant Henning's discretionary authority and interest. Therefore, writing the letter was an act unprotected by absolute or qualified privilege. Section 2-78(e) of the Collier County Administrator Ordinance provides, "No county commissioner shall direct or request the appointment of any person to, or his removal from, office by tile county administrator or by any of his subordinates, or in any mber take part in the appointment or removal of officers or employes in the administrative services of the county except as provid d by this article. Neither the board nor any member thereof shall i terfere in the performance of any of the duties of any subordin e of the county administrator, either publicly or privately exce t for the purposes of inquiry and information. A violation of the p~ovisions of this section shall constitute malfeasance within the m~aning of Fla. Const. art. VI, S 7(a). A violation of this section shall ~Iso be a violation of this division and shall be punishable by fiqe not to exceed $500.00 or by imprisonment in the county jail notf' exceed 60 days, or by both such fine and imprisonment, or as erwise may be provided by law. " 130. Defendant Henning publicized his defamatory letter to County ranager Janles Mudd. Further, Defendant Henning was aware that his letter would become PUbli1 record. 131. County Manager James Mudd forwarded the letter to Plaintiffs 9ivision Administrator I with instruction to be used in her annual review. I 132. Defendant Henning's letler of July 12, 2005, to County Mana~er James Mudd, and Defendant Henning's condemnation and criticisms of Plaintiff were the s91e or chief catalyst of County Manager James Mudd's adverse employment action against Plaintiff. I 24 ilsm ;'k). 161-',5 ~,~arch 24. 2009 31 of .::(9 i 133. Defendant Henning did knowingly, intentionally, and withbut justification, defame Plaintiff, which resulted in damage to Plaintiff. 134. As a result of Defendant Henning's defamation of Plainti Plaintiff has suffered a decrease in wages, damage to her professional reputation, humiliation, ain and suffering. WHEREFORE, plaintiff demands judgment against Defendant Hing for back pay, front pay, general and compensatory damages, punitive damages, and dam1ges for humiliation, pain and suffering. ! i I DEMAND FOR JURY TRIAL I 135. Plaintiff, Barbara Burgeson, demands a Trial by Jury on all issuls so triable. J~ I DATED this ~_ day of March, 2009. Respectfully submitted, I I BERKE & LUBELL, P.A. I 1003 Del Prado Blvd., Ste. :!l 00 I Cape Coral, FL 33990 I Telephone: (239) 549-6689 j Facsimile Number: (239) 519-3331 I I I Bill B. erke, Esq. Florida Bar No. 558011 Email: berkeIaw@yahoo.co 25 From: Sent: To: Subject: -';-,:L.] iie::1 i~').;=:h5 :.-1arcil ~_A,. :2'J[:':) Pa(~'2 32 of':;9 EXHIBIT"A" burgeson_b Wednesday, August 01,200710:12 AM burgeson_b FIN: Kraft Construction SPD/EIS SchmittJoseph Monday, May 09, 20058:44 AM lorenz_wi burgeson_b; white.-e; student_m; HammondBi/I; murray_s; Ii inger_s FW: Kraft Construction 5PD/El5 I I Interesting philosophical analysis. Warm up the rubber stamps and throw put the rules! ; I I From: Sent: To: Subject: Susan Bill JM- Need the complete history on this project - history on the SDP and BPs Joseph K. Schmitt Administrator Community Development and Environmental Services Division 239-403-2385 'Working to make Collier County a great place to live, work and recreate!" From: Sent: To: Subject: Joe, mudd.J Monday, May 09, 2005 8:26 AM SchmittJoseph FW: Kraft Construction 5PD/ElS Jim We are not winning this dialogue. --Original Message--- From: hennln!Lt Sent: Saturday, May 07, 20054:53 PM To: mudd..J Subject: RE: Kraft Construction 5PD/EI5 Nobody stated 3.05.07 did not apply. This section deals with how much is preserved. 3.05.05 deals with how you preserve. You cannot u' e the code with It's a year in the process, no spd and no building permit. COES is still broken with no relief in site. if it's someone's intent to slow growth by allowi g "big government thumb sitters" to waste our time let's do it the right way. I'll introduce ~ r~+o of ~r^""h ........,.,in^~~e....... ..h.... Df"f'" ;. ........,.,..............1 . .0" ...,..... .......e "I' 'wa"'J.;:::..&.,.u", ...- ,C,;.\~'-' :::f V\lVl UIUllelll\.; LU LIIIJ u......v, II jJC1~~C;U Y U LiUllll U ~l""" government taxsucking fat out I . , :tSrli :'JC1, ~!~<5 Mai"~;h 24, 20U9 33'~)f";9 ~-Origjnal Message--.n From: mudd..,j Sent: Friday, May 05, 2005 3:59 PM To: henning_t SUbject: RE: Kraft Construction 5PD/EIS Commissioner, Section 3.05.05 deals specifically with the criteria for removal of prote ted vegetation. The section applies once the plan Is approved to allow for vegetation remo aL This section does not negate the requirements specified in 3.05.07 - preservation stand rds and the required preservation standards for native vegetation. VR, Jim Mudd .--..()rigina! Message--- From: hennin9-t Sent: Wednesday, May 04, 2005 8:02 PM To: mudd..,j Cc: studenLm; weigeLd SUbject: RE: Kraft Construction SPD/ElS Importance: High << File: 3.05.05 Criteria for Removal of protected veget tion.doc>> Attached is excerpt from the LOC and highlighted. Pleas explain why this does not apply. Commissioner Henning ----Original Message--- From: mudd,.j Sent: Wednesday, May 04, 20055:57 PM To: hennin9-t Subject: FW: Kraft Construction 5PD/EIS Commissioner, FYI. Joe was moving this item along until legal staff and one of is directors raised objections. VR, Jim Mudd --Original Message-- From: SchmittJoseph Sent: Wednesday, May 04, 2005 5:49 PM To: mudd.J Ce: ochsJ Subject: RE: Kraft Construction 5PDjElS Jim, The item schedule was a review of the final plat and construction Jlans because the site required and EIS .- "The EAC shall review all land deve/oprl,ent petitions which require the following: an environmental impact statemert (E1S) per section 3,8 of the LDC,. The original EIS for the 2 PUDs were 9ver 5 years old. In sum, J pushed the envelope on this project trying to get it thrOU9? tile process. There is a long history on the PUDs. You may recall, this is the oni that recently I County, company frustrated by permitting process: naplesnews.com :~\lg1;lgR9 !\-1:Jrch 24. 2009 r'age 34 Clf 1;9 naplesnews. carrl County, company frustrated by permUting process I By ERIC STAATS, emstaats@naplesnews.com EXHIBIT "3" Monday, June 6, 2005 Collier County Commissioner Tom Henning sent an angry e-Jail last month to County Manager Jim Mudd. Henning's complaint: County environmental reviewers are frustrating plans by Kr ,ft Construction Co., one of the region's biggest construction companies, to build its new corporate headquart rs along Pine Ridge Road. "CDES (Community Development and Environmental Services department) is stili roken with no relief in site (sic)," Henning wrote In the May 7 e-mail. "If It's someone's intent to slow growth by allowing 'big government thumb sitters to waste our time, let's do it the right way," Henning continued. "I'll introduce a rate of growth ordinance to the BCC (Board of County commissioliers). If passed, you cut the big wasteful government tax-sucking fat out." A rate of growth ordinance would limit the number of building permits issued eachjyear in Collier County. Henning said last week he has no plans to Introduce such an ordinance because h1 doesn't think It would have enough support and doesn't think it would reduce government waste. Henning aCknowledged that the e-mail was "very strongly worded." He said it refl~cts his "frustration about government bureaucracy. " ! ''There's something wrong and it's affecting everybody," he said. 1 The e-mail picks up on a theme county commissioners raised in October 2004, du ng their deliberations on Mudd's job performance. Those discussions focused on what commissioners said w s a need to Improve the county's permitting process. i Community Development Administrator Joe Schmitt defended his department last Leek, saying it works better now than when he took it over in 2002. I I "I certainly don't think it's broken," he said. The May 7 e-mail capped a week of terse e-mails from Henning on the question of rhether Kraft's plans violate the county's development rules. ! In the e-malls, Henning questions county reviewers' interpretation of rules for env;Lnmental preservation at the Kraft site. r Kraft wants to count part of a water management system toward a requirement to reserve native vegetation on the site, but county reviewers have balked. The l.4-acre preserve would be cleared, filled and then replanted. It would be dlvi ed by 27-foot-wlde berms and 5l/2.-foot-tall retaining walls to meet water management requirements, accord ng to a county report on http://www.naplesnews.comlnews/2005/jun/06/ndn ~oounty _company Jrustri ed_by yer... 2/26/2009 County, company fiustrated by permitting process: naplesnews.com ",P~r["2o:0 ,.;;;."';t;"'l;;fV. .'0,,:::) March 24, 2009 Pclge 35 of 49 .. . ~ .- the project. Water management and a native vegetation preserve do not mix, said Jennifer H cker, environmental policy specialist at the Conservancy of Southwest Florida. "There are fundamental incompatibilities there," she said. Some might consider the difference to be nit-picking, but Hecker said allowing Kr ft to count water management areas as native plant preserves could set a bad precedent for larger projects, where more might be at stake. "I just think it's significant from a policy standpoint and not Just In a project senst" she said. Internal county debate over the question prompted the county to pull the Kraft pr ject off the May agenda of the county's Environmental Advisory Council. The EAC has the final say on the Kraft project unless the EAC rejects It. At that pdlnt, Kraft could appeal to Collier County commissioners. I Kraft's project was put on the July 1 ",genda of the EAC, but that day's meeting wfs canceled. It has not been rescheduled for EAC review. Henning said he started asking questions when Kraft's consultant Wayne Arnold, planning director, mentioned troubles with the project "In passing" after the proje agenda in May, former Collier County was pulled from the EAC At one point in Henning's e-mail exchanges with Mudd, Commissioner Jim Coletta 'umped to Schmitt's defense, according to e-malls from Coletta's office. "I can only hope that someone is not inappropriately asking for you to set aside tte GMP (growth management plan) and/or LDC (land development code) to accommodate a devel per's wishes," the e-mail to Schmitt said. "Staff needs to stick by what they believe to be correct." I Henning said he does not consider his e-malls to be Inappropriate Intervention in ~he matter. He said he has no opinion about whether county reviewers are right. His only concern is the pacelOf the review, Henning said. Kraft's project has been going through the county approval process for almost a y ar, starting In June 2004 with a petition for a variance from rules that required buffers between projects. Kraft needed the variance because it is building across the boundary line between Itwo already approved Planned Unit Developments south of Pine Ridge Road between Interstate 75 and UVlngston Road. Kraft submitted a site plan for the project in August 2004, but the county could tafe no action on it until county commissioners approved the variance, Schmitt said. That happened in Dec mber 2004. Kraft applied for a building permit in April 2005. . In e-mails to Mudd, Schmitt said the county usually does not allow building permiJ applications to be reviewed until site plan issues are sorted out. He granted an exception for Kraft. I "I certainly understand the importance of this project and the fact that Kraft is an Important part of the community and as such I attempted to do everything within my powers and author' ity to reach an agreeable solution," Schmitt wrote In a May S e-mail. .."- Kraft, With annual revenues of more than $300 million, is recognized as one of thjl fastest-growing companies in Florida - and one of the most connected in local circles. httpjlwww"",I~,om/"""""OO5f)_6100n _ ",mtr _ _ ,,_'- -f"'" - by J<'... 2/2612009 County, company frustrated by permitting process; naplesnews.com :tEJ'a~ ~((;-tt3 March 24, 2009 ?age 36 (;f ~19 4., . It has built condos for WC! Communities and Signature Communities, new school for the Collier County School District, new buildings for Collier County government and, as part of a joi t venture, has a hand in buiiding Ave Maria University. Kraft President Fred Pezeshkan is past chairman of the Economic Development C uncil of Collier County. Pezeshkan said last week that his company is not asking for anything that the co e does not allow. He said he is frustrated by the process. At one point, he said, he called Henning and Commission Chairman Fred Coyle as ing for help. I "It's a problem that needs to be fixed," Pezeshkan said last week. i I The Kraft project is classified as a fast-track project, a designation the EDC pushe to get added to county codes In 1997 as a way to encourage businesses to expand in or relocate to Collie County, Fast-track projects must meet certain requirements, including wage levels. Kraft's project Is one of 20 fast-track projects in the county's permitting review pi eline, said EDC Executive Director Tammie Nemecek. She said concerns about slow review of fast-track projects in general prompted th EDC to undertake an analysis of the county's permitting system. Results are expected this summer, she' said. i , "The permitting process for a lot of our fast-tracks has not been at a pace that thel' companies desire," Nemecek said. I After Henning sent his stinging May 7 e-mail, Mudd e-mailed Schmitt the next Mon(jay morning: "Joe, we are not Winning this dialogue." I Schmitt replied the next day: "In sum, I find It hard to understand why Commissiol'er Henning continues to profess that CDES is broken.' I Schmitt wrote that it was Kraft's decisions on how to proceed, not county reviewe I, who were to blame for the long review time. 1 "Regrettably, you will continue to be criticized for the mlsperceptions of CDES," SC1mitt wrote to Mudd. "We are not perfect by any stretch, and you know that I've worked hard to move this organization to a high performing organization, but the comments made by the commissioner and his lac~ of confidence in the leaders of this organization are disheartening to me and my entire leadership." i I @ Naples News http;//www.naplesnews.comlnews/2005/junJ06/ndn county company frustrated by "cr.__ 2/26f2009 - - - 1---" . - , DATE: TO: FROM: SUBJECT: MEMORANDU ,6,gerida item r~o. '161<5 J\1arch 24. 2009 P,<oe 37 of 49 ReCl!lVeO OQUiorfV ~"'Gjlt O~~ 9~"2:'" '/1:.2I~~- JUL f 2 2005 ACTION 6J;::> FI~/,d: ~'lC JSJ>'.< ~~I~ a3L) - ~ -=", '/.lH';$ /...J m_fW..-c_'.J. 6 ~If/~<- .A'~r~A""-;$ July 12, 2005 Jim Mudd, County Manager Tom Henning Commissioner, District 3 Barbara Burgeson, Principal Environmental Specialist ~''''~ O-~---=r At the BCC meeting of June 28, 2005 I was dissatisfied by Barbara Burges's corrunents regarding agenda item 10L As you may recall, this item involved the app~val of the Environmental Impact Statement eElS) relating to the Final Plat and Cons ction Plans for the proposed Kraft Construction headquarters building, As a County Commissioner, I base my decisions largely on the staff reco~dations that are included in the Executive Swnrnary of an agenda packet item, It is difficult or a Commissioner to examine every single aspect of every single project that co es before us; therefore, staff reconnnendations playa very important role in my decision- king process. What confused me was the information Ms. Burgeson solicited during the hebg phase of the Kraft project. The agenda item clearly defines that staff reconnnends appro~ of the ElS, with stipulations, yet Ms. Burgeson contradicted that report pointing out that staff onsiders the stipulations disagreeable andlor contradictory to the LDC and GMP. As I sta d in the meeting, I didn't understand the point of corning to the [mal hearing and arguing with taff over stipulations. It is my opinion that this public display was appalling and emb ,.assing and just another example of what is broken at CDES. \ It pains me (0 imagine how the County is represented by staff, to the EAC; ho~ can it be possible to get a fair and honest recommendation from this committee if they are fed , inconsistent and contradicting reports? , I I TRrnst t? I -7 AI "---./b-''-'\r-... ~ Tom Henning Commissioner, District 3 EXHIBIT "e" u i:::;;n r~J. ~.-~2rch 24 Page za = ,.,,-,0 20U9 ,jf ~9 . RESOLUTION NO. 95-~ A RESOLUTION B:E:'1''I'ING FORTH THE POLICY OP' THE llOAIto o:r COUNTY COHlUBSIONERS WITH REGARD '1'0 PROV:IDINCJ A LEGAL DEPENSB AND PAYING LEGAL EXPENSES 0' COUNTY COMMISSIONERS, COUNTY STAFF AND COUNTY ADVISORY BOARD HEHBERS. WHER~~S, the Boa~d at County Commission~rs and the Collier county management and legal staff are constantly presented with tJHl necessity for making decisions regarding all phases of County policy, management and legal counsel, respectivelYi and WHER.E:AS, local govern~ents and their employees have recently become subject to increasing numbers of la~suits based upon state and federal laws; and WHEREAS, it is essential to the effective operation of County government that policy, management and legal decisions he made competently, in the public interest, and ....ith the threat of per;onal liaDility for board and staff members for making said decisions being maintained at a minimum so as to avoid the "chilling effect" en. the proper and diligent performance of public duties recognized by the Florida Supreme Court in Thor~ber v. City of Fort Walton Beach, 568 So.2d. 914 (1990); and WHEREAS, Florida statutory and case law, as well as Attorney General opinions (hereafter referred to as lIAGO"), set forth the requirements and discretion which are afforded to the local governing body to formulate a policy regarding the provision of counsel ~nd paYlnent of legal expenses for Board members, County staff and advisory board members who are involved in litigation arising out of or in connection with the performance of official duties and while serving a valid public purpose; and WHEREAS, Collier County insurance pOlicies currently include County employees as well as Board members and members of the Administrator's and County Attorney's staff within the scope of coverage, provided that said persons are acting within the scope of their employment and do not act criminally or fraudulently; and -1- co:=:::; i:t~r,~, [\jc. i Gf<5 f\b!'ch 24, 2D09 3'J e)f -49 WHEREAS, the Soard ot County Commissioners (herea~ter also referred to as "Board") desires to hereby set forth and f~rmalize its poliey with regard to the provis ion of legal counsel and the payment of legal expenses incurre.d by County Commissioners and administrative and legal staff so as to promote competent decisions and conduct in the public interest while reducing the threat, intimidation and chilling effect on pe.rformance ot o!!icial duties created by potential personal liability for County Commissioners and County staff members while acting in the scope of their official duties and ",hile servinq a valid public purpose. WHEREAS # the various advisory boards, quasi-judicial boards and regulatory boards (hereafter also collectively referred to as nadvisory board(s) ") fonned by the Board of County commiss~oners, and the members thereof who are appointed by the Board of County Commissioners, serve a critical function with regard to the operation of collier County Government; and WHEREAS, the members of such boards serve on a volunteer' basis without compensation for t.'1e time spent in performing their duties and functions; and WHEREAS, said boards and board members are regarded by the Board of county commissioners as being within the umbrella of legal protection afforded to the Board of county Commissioners and other collier county employees; and w~EREAS, the Board hereby desires to set forth and fonnalize its policy with regard to thE! provision ot. legal counsel and the payment of legal expenses incurred by advisory board members so as to promote competent decisions and conduct in the public interest while reducing ~~e threat, intimidation and chilling effect on performance ot. official duties created by potential personal liability for advisory board members whila acting in the scope of their official duties and while serving a valid public purpose. NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: -2- '::..;-::~ :te~',"; :.!o. :'_j~;'J 0= r 1::w.:h :':.:1. 2003 :0 ,A -~'d 1. oetinit.ion' ot "county perso:c.(s)": As usee! in this Resolution. the term "County person's)" shall mean and include the members of the Board of County Commissioners, the county , Administrator and his staft, the County Attorney and his staff, all employees of the Board of County Commissioners as well as the Collier county Airport Authority Director and his staft, the Director and staff of any other county-created authority, the officers and staff of any dependent or other special district for which the collier county Board of County commissioners is the governing body or eX-officio the qoverninq body thereof, and any person appointed by the Board of county commissioners to a Collier county Advisory Board, quasi-judicial board or regulatory board formed by the Board of County Commissioners of Collier County. Florida. 2a Purs~ant to Section 111.07, Florida Statutes, and Thornber v. city of Fort Walton Beach, 568 So.2d 914 'Flaa 1990), the Board hereby resolves tc provide legal representation to County persons in civil actions and in civil rights actions subject to the limitations set forth herein a a. Legal representation shall be provided in civil actions and in civil rights lawsuits only if the litigation involving the county person to be represented arises out of or in connection with the performance of official duties and while said County person was serving a valid public purpose. No representation shall be provided in tort actions if the County person acted or failed to act in bad faith, with malicious purpose, or in a manner exhibiting wanton and ....illful disregard of human rights, safety or property. No representation shall be provided to any County person in a civil action or civil rights action where said County person acted or failed to a....+- '.dth intent ...- hann~ N- representation shall be provided in any case -3- item i,b, 16J<5 f'kclrch 24. 2009 Pa-g8 41 of .";9 == where the County person has willfully failed to follow the legal advice furnished by the Oftice o'! the County Attorney, unless the Board of . County Commissioners specifically finds,'. at a public meeting, that said failure to follow legal advice was for reason(s) within the County person's scope of employment and served a valid public purpose. b. Collier county shall at all times have the discretion to determine whether to directly represent such individual through the County Attorney's office or to select counsel to represent said County person in the civil action or civil rights action. If a County person chooses to obtain private legal counsel without prior authorization from Collier County, all fees and/or costs incurred by such person shall be the sole responsibility of said person and collier County shall accept no responsibility tor payment of legal fees and/or costs. c. Any legal fees and/or costs properly payable under this POlicy must be reasonable in amount. d. Pursuant to section 111.07, Florida statutes, any attorney's fees and/or costs paid or incurred by the County for any County person who is found to be personally liable by virtue of acting outside the scope of employment, in bad faith, with malicious purpose, or in a manner exhibiting wanton an~ willful disregard of human rights, safety or"property, may be recovered by the County in a civil action against such County person. e. Notwithstanding anything else stated in this section or this Resolution, the Board shall have the sale and absolute discretion allowed by -4- !ls:-rl r,!c, ':::r'5 ~ f\';srch 2t1, 2QC19 ?3G8 42 Df ,~9 Section 111.07, Florida statutes, as well as by applicable case lav, to not provide legal representation and to instead reimburse any County person for reasonable attorney-, fees "nd/cr ccst= in ~~e event '~~at said county person prevails in the civil or civil rights action. J. Pursuant to Sections 111.011 and 111..072, Florida statutes, the county shall pay tor tinal judgments, sattlements dnd/or costs involving county persons in civil actions and in civil rights actions subject to the limitations provided herein. a. Collier county shall pay final jud'gments, settlements and/or cost.s involving County persons only where the litigation arose out of or in connection with the performance by t.-"e County person of official duties and ~hile serving a valid public purpose. No final judgment, settlement or costs shall be paid for by the County in a civil action or a civil rights action if the County person against ~hom the final jUdgment, settlement and/or costs have been imposed has acted or failed to act with intent to harm. The County shall not pay any final judgment, settlement and/or costs in tort actions where a County person has acted or failed to act with bad faith, malice or with wanton and willful disregard of human rights, safety or property. No judgment and/or costs shall be paid in any case where the County person has willfully failed to follow the legal advice furnished by the Office of the County Attorney, unless the Board of county cO!1'l....missioners specifically fines, at a public meeting, that said failure to follow legal -5- '. .' i::?:fn !',JD. ~ CH~5 i\'1arch 24, ;'iCC9 PC:lge -i3 of 49 ~ advice was for reasons within the County person's scope of employment and served a valid public purpose. b. Any final judgments, settlements and/or .costs paid or incurred r.y the County shall be in strict adherence with the sovereign immunity recovery limits set forth in section 768.28, Florida statutes. c. It the County person has had private legal representation in the case, contrary to the provisions of section (2) (b) of this POlicy,fany final judgment, settlement and/or costs imposed shall be the sole responsibility of said person and Collier no shall accept County responsibility final for or the payment judgment, settlement and/or costs. d. Pursuant to section 111.071(4), this section is n2t intended to be a waiver of sovereign imm.unity or a waiver of any other defense or immunity to such lawsuits. 4. In casos where a County person is tor:::::a1.1y charged with a criminal violation, the County shall pay the leqal fees an"-/or co~t3 incurred by said County person only under the followinq circumstances: a. The charges against the County person arose out of or in connection with the performance of official duties and while serving a valid public purpose. b. The County person has been acquitted or the charges dismissed. Lomelo v. city of Sunrise, 423 So. :2d. 974 (4th DCA 19B2), pet. for rev. dismissed at 431 So.2d. 988 (Fla. 19B3), and AGO 89-33. The and/or charged are legal fees costs reasonable in amount. -6- !lS:ii !,jO. 3~\5 c::z:::::::::; f'.'L:;i'c::n .'24, 2009 PU;18 ..:~.l Jf 49 d. The County person has first notitied the County administration and legal staft of the pendency of the charges and has permitted the County the opportunity to either directly provide counsel or to allow said County person to choose his/her own counsel.. e. The charges have not resulted from the willful failure of the County person to follow the legal advice furnished by the Office cf the County Attorney, unless the Board o~ County commissioners specifically finds, at a public meetinq, that said failure to follow legal advice was for reasons within the county person's scope of employment and served a valid J public purpose.. f. The legal fees and/or costs incurred by a county person during the investigatory, pre-charge stages of a criminal case shall be paid by the, County only for proceedings involving potential c:.-io.inal liability for the county pe:.-son and where the allegations are ultimately determined to be unfounded and to have arisen from conduct related to the performance of official duties and ~hile serving a valid pUblic purpose.. AGO 94-11. The provisions of Subsections 4b, c, d and e of this Resolution shall also govern these cases. g. In the event that the County person has been provided legal representation by the County and the County person is found guilty of a criminal charge, the county ;:.ay recover from the County person in a civil action all legal fees and/or casts paid or incurred by the County.. 5. The County shall pay legal teas and/or costs incurred by County persons in cases involving :for:r.al ethics charges -7- 't'2m '\)'J. -: ;3 v:' 5 ~,,~arch 24, 2009 Page .:~5 of 49 = subject to the ~imitations provided herein: a. The ethics charges arose from conduct related to the performance ot oft icial duties and 'While serving a valid public purpose. Ellison v~Reid, 397 So. 2d. 352 (1st DCA 1981) and AGO's 85-51 and 90-74. b. The County person has prevailed and successfully defended aqainst the ethics charges. c. The legal fees and/ or costs charged are reasonable in amount. d. The County person has first notified the County administration and legal staff of the pendency of the charges and has permitted the county the opportuni ty to either directly provide counsel or to allo~ said County person to choose his/her own counsel. e. The charges have not. resulted from the _willful failure of the County person to follow the legal advice furnished by the Office of the County Attorney, unless the Board of County CO:mnlissioners specifically finds, at a public ~eeting, that said failure to follow legal advice was for reasons within the County person's scope of employment and served a valid public purpose. t. The legal fees and/or costs incurred by a County person during the investigatory, pre-charge stages of an ethics complaint shall be paid by the County only for proceedings involving potential civil and/or criminal liability and/or ethics sanctions for the County person and where the allegations are ultimately determined to be unfounded and to have arisen from conduct related to the performance of of'ficial duties and while serving a valid public purpose. AGO -8- item I\,'J_ -1 S~<5 !'\.~8I"Ch 24, 2009 Page .F3Jf :~9 = 94-11. The provisions of Subsections 5b, c, c:1 anc:1 e of this Resolution shall also govern these cases. g. In the event that the County person has", been provided legal representation by the County and the County person is found by the Florida Ethics commission or other appropriate tribunal having jurisdiction over the case to have committed ethical violations, the County may recover from the County person in a civil action all legal fees and lor costs paid or incurred by the County. h. Nothing in this section shall be construed to preclude the County Attorney from requesting formal or informal ethics opinions on behalf of one or more commissioners. 6. The County shall pay legal tees and/or costs incurred by County persons in cases involving non-county administrative and/or regulatory procoedings and/or ~ormal charqes SUbject to the limitations provided herein: a. The proceedings and/or charges arose from conduct related to the performance of official duties and ~hile serving a valid public purpose. b. The County person has prevailed and successfully defended against the proceedings and/or charges. c. The legal fees and/or costs charged are reasonable in amount. d. The County person has first notified the County Administration and legal staff of the pendency of the proceedings and/or charges and has permitted the County the opportunity to directly provide counselor to allow said County person to choose hiS/her own counsel. e. The charges and/or proceedings have not resulted f~am the willful failure of the County person to -9- Itern !~o. 1 bl<5 r';la'ch 24. 2009 Pa;Y8: 47 af 49 c=::; follow the legal advice furnished by the Office of the County Attorney, unless the Board of County CotlU'llissione.rs specifically finds, at a public meeting, that said failure to follow legal advice vas for reasons 'Jithin the County person's scope of employment and served a valid public purpose. f. The legal fees andjor costs incurred by the County person during the pendency ot the proceedings andjor the investigatory, pre-charge stages of an administra ti ve or regulatory case shall be paid by the County only for proceedings and/or charges involving potential civil and/or criminal Hahili ty and/or administrativej ..regulatory sanctions for the County person and where the allegations are ultimately determined to be unfounded and to have risen from -conduct related to the performance of official duties and while serving a valid public purpose. AGO 94-11. The provisions of Subsections 6b, c, d and e of this Resolution shall also govern these cases. g. In the event that the County person has been provided legal representation by the County and the County person is found, by an administrative or regulatory agency or other appropriate tribunal having jurisdiction over the case, to .' have civil or criminal liability andjor to have violated administrative or regulatory rules, the county may recover from the County person in a civil action all legal fees and/or costs paid or incurred by the County. 7. The County shall pay legal fees andjor costs incurre~ by indivi~ual members of the Board of County commissioners tor instituting, as oppose~ to dofend!ng, litigation only vhere all -10- = ;t8:T] 1',J8. ']Cji<S 20(19 :if 49 ot the fOllowing circumstances are present: a. The litigation arises from or in connection vith the Board members performance ot official duties and the litigation serves a valid public purpose. b. This section shall apply only to members ot the Board ot County Commissioners and not to any other "County person" defined in Sect.ion 1 of this Resolution. c. The Board member must prevail in said litigation. d. The legal fees and/or costs are reasonable in amount. e. The Board member shall have first notified the Board of County commissioners, the County Administrator and the county Attorney prior to the commencement of the litigation and shall have permitted the County the opportunity to either directly provide counselor to allow said commissioner to choose his/her o~n counsel. f. The litigation has not resulted from the willful failure to follow the legal advice furnished by the Office of the County Attorney I unless the Board of County COl:Ull.issioners specifically finds, at a public meeting, that said failure to follow legal advice was for reasons within the commissioner's scope of employment and served a valid public purpose. g. In the event that the Commissioner has been provided legal representation by the County and the commissioner does not prevail in the litigation, then the County may recover from the Commissioner in a civil action all legal fees and/or costs paid.or incurred by the county. 8. All preliminary decisions administering and -11- - = ::2:TI r\Jo. ': :3f<:5 Pc-larc.h 24 20=;9 PaJe j9 cJf ..:~J .' implementing this policy shall initially be made by the County Administrator and/or his designee and the Office o~ the County A trorney in respective c.ooperation and consultation 'Io1ith each other's offices.. Both aitlees are hereby delegated. the powe.r to make any lawful and reasonable investigation and evaluation of cases arising under this pOlicy. Said evaluation shall take into account all available relevant information in addition to the nature, type, number and subs't.ance at the allegations contained in any pleadings tiled and/or served in any legal proceeding. All final determinations regarding the implementation and administration ot this policy shall be made only by the Board of County Commissioners which is in accordance with AGO's 85-51, 89-22, 90-74 and 91-58. The Board shall also make all final determinations regarding the provision of a leqal de!ense and/or paying legal expeI".ses ot County persons fo= any type or legal claim or suit arising from a County person's performance of official duties while serving a valid public purpose if said type of claim or suit is net specifically addressed by this Resolution. 9. Co11ier County Board of County Commissioners Resolution Nos. 85-126 and 85-178 are hereby repealed and superseded in their entirety. This Resolution adopted after motion, second and maJority vote favoring same. . 'DAl'ED'i':'~>1;tfs . AttEST' ,.;- "'. 'D'W!GHT.~~.:,J3R6c:K, Clerk .. , . ~ ; .. ( . ". <;. ~.~ ... :"'1.,245"9 'ilf .;.(: '\,1 . . ~' Approved as to form and legal': su'!'! lciency: SOARD OF COL"NT~ COMM:ISSIONERS ::~h~ rTTYE J'. ~H.EWS I Cha~rman a~;,^, (r().1~f{/ .Ram~ro Mant;,l~ch Chief Assistant County Attorney 5373 -12- -