Appeal court overturns malice claim against Bonita Springs fire commissioner

Robert H. Sharkey

Photo by Contributed

Robert H. Sharkey

Bonita Springs Fire Commissioner Ed FitzGerald suggests cutting positions from the Bonita Springs Fire Control and Rescue District during a budget workshop in 2011. Lexey Swall/Staff

Photo by Lexey Swall

Bonita Springs Fire Commissioner Ed FitzGerald suggests cutting positions from the Bonita Springs Fire Control and Rescue District during a budget workshop in 2011. Lexey Swall/Staff

— A state appeal court has overturned a ruling that a 2010 Bonita Springs fire commission candidate acted with reckless disregard or malice when he claimed the incumbent fire commissioner had wasted taxpayer money by going to seminars in Paris and at Harvard University.

The emailed claims against Fire Commissioner Ed FitzGerald, sent by candidate Robert Sharkey, turned out to be wrong. However, Sharkey argued he'd relied on Alex Grantt, a former fire commission liaison, who corroborated that he'd heard the information at a fire commission meeting.

"It turned out that Grantt had not been listening attentively enough at the board meetings when the trips to Harvard and Paris were discussed; his information was erroneous," the Lakeland-based 2nd District Court of Appeal ruled Friday in a six-page decision that found Sharkey hadn't acted with "actual malice."

The ruling overturns a July 28 decision and $1,000 fine ordered by a state administrative law judge in Tallahassee. It involves a 2009 Florida election law that prohibits maliciously making false statements about an opposing candidate.

In August 2010, Sharkey sent two emails to about 200 people that detailed two claims of spending abuse by FitzGerald and the Bonita Springs Fire Control and Rescue District. Both claims were false. FitzGerald had requested reimbursement for an $11,000, three-week Harvard class but was turned down; no fire official went to Paris.

Reached at his home Friday, Sharkey said he felt vindicated by the appeal ruling.

"I feel a big burden lifted off my shoulders," said Sharkey, who is running again for commissioner in a four-way race that doesn't include FitzGerald. "I don't think I was wrong. I had no animosity toward Mr. FitzGerald and didn't do anything wrong."

The administrative judge had ruled that Sharkey "acted with reckless disregard" by making false claims and ordered him to pay a fine to the Florida Elections Commission.

The appeal judges noted there was evidence suggesting Sharkey had "entertained serious doubts" because another fire commissioner said he'd told Sharkey he thought one allegation was false.

But the appeal court found that fire commissioner's testimony was "plagued by recollection problems."

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