Board Reaches Settlement with David Bear--We're OUT of the Underhill Lawsuit

Nearly two years ago the Board of County Commissioners were sued for something that was not our fault and something for which we were not responsible.

The actions of one commissioner were being used against the other four members of the board.

It was never right--but I understand the reasons why what happened came to pass.  Nobody from the State Attorney's office looked into the withholding of the records---although they were notified of this issue by multiple persons.   And the county's staff did not convince Commissioner Underhill to turn over documents that the county considers to be public records.  Nobody had administrative rights over social media platforms that only Commissioner Underhill controlled----so nothing was happening.

But now, as of last night, those of us who did no wrong and had no culpability in the withholding of public records are OUT of the lawsuit.  It's Done!  And it was WAY past time for this to happen.

One of my top priorities as chairman was to get the settlement talks on the fast track;  they had been occurring for about 8 months but it was a back and forth, excrutiating slow motion ping pong match that was unbearable to live through.

So we have now made the light-speed jump over the last 48 hours to finish this once and for all.   We got a draft of a stipulation of facts and settlement sent to the County Attorney, completed a shade session on this topic particularly, and we culminated this "at-pace" exercise by approving a settlement agreement with David Bear and his attorney yesterday evening at our meeting.  It was our last order of business and we got it done.

Now, the other 4 board members are out of a state case and a federal case leaving one commissioner, Doug Underhill, in both cases in his personal capacity (and in his official capacity in the Federal Case).

This is an appropriate outcome:  After all, it was never about us, it was always about him, and now he can stand alone and answer the charges and accusations alone as he should.

Read the settlement HERE.

Read the stipulation of facts document approved by a 4-0 vote of the board (Doug Underhill abstained) last night HERE.

The media locally, as per usual, have no idea this happend.  They were asleep at the switch talking about the "Insurrection" anniversary.......So what they'll do is poach my site later, copy the documents, and then run a story late this afternoon on this without any attribution or a link to this site where they got the story; sadly, that's what they do and how they operate around here.  Easy, lazy, and borderline unethical....😀  Nevertheless this is a big story though, and they should cover it.  And they will.

The Deposition of William Hopkins

The county's litigation with Matt Selover has concluded.  Matt Selover was treated horribly by some inept, former county employees;  his harrassment complaint was buried, his wages were reduced unfairly, and his due process was severely violated.  The county has now settled the case for $200,000.00 ----and now the depositions and associated documents of the case are a public record.

There have been some unflattering portrayals of this case (and inaccurate, incomplete information as well) in memos from the insurance company's lawyers--leaked to the press and not shared with the BCC when the case was being deliberated by commissioners.  There have been armchair, Monday morning keyboard warrior types spreading a bunch of misinformation about the case on facebook chat sites.  And there have been people lying about the case, the timelines, and the reasons this case was settled.

Because of all the propaganda and noise surrounding this case, and because these transcripts are public records which many have requested, I'll be posting them all here, on this blog, one by one,  so folks can read them for themselves---and make their own judgments about how poorly this former employee was treated.

This transcript, linked below, from former Escambia paramedic William Hopkins-- created a devastating hole in the medical director's purported timeline of the "when" she decided and made it known she would seek to restrict Matt Selover's priviledges and report him to the DOH.  Mr. Hopkins directly contradicted the medical director's assertions that the decision was made to restrict the ability of Selover to remain a paramedic the day of the QA/QI board--April 23rd 2019.  In fact, his testimony appears to back Selover's claim that the Medical Director sought to retaliate against him and only took action against his priviledges AFTER she was made aware of Selover's harrassment complaint against her on May 1st...  from p. 62 of the deposition:

A. All I recall that day was the meeting,

followed by Dr. Edler asking us to write up our review

of how the meeting went and then any kind of

observations that we had and that's all I remember. I

don't really remember what happened after that.

Q. Okay. Did you all in that meeting discuss any

type of reprimand or punishing my client?

MS. GUDAITIS: Object to form.

A. (By the Witness) No.

Q. (By Mr. Talbott) In that meeting, did you

discuss anything about limiting his ability to practice

or do certain procedures?

A. A meeting? No.

Q. During that meeting, did you talk about

reporting him to the Department of Health?

A. At that meeting, no.

Q. At some other time, did you talk about

reporting him to the Department of Health?

A. There was a time when Dr. Edler stated that

she may have to do that based upon what she seen, but it

was more of a statement, not more of a -- a asking us

for permission. She was kind of hemming and hawing

about whether or not to do it, so I don't know, I mean,

obviously, I know what her final answer is today, but at

the time I didn't know what her final answer was.

Our attorney, Matt Shaud, sent the following email indicating this entire transcript is/was a public record.  I have removed the pages as recommended---even though legally this was not necessary to do:

"Commissioner Bergosh:

 Attached please find William Hopkins’ deposition transcript.  It does not appear to be subject to any applicable exemptions, but as Charlie noted below, this transcript also contains testimony regarding a xxxxxxxxxxxxxxxxxxxxxxxxx.  Those references are on pages 26-28, 43-44, and 88-90.

 Thank you,

 Matt Shaud

Assistant County Attorney"

Read the transcript here

The Deposition(s) of Jana Still

I received authorization to release the three volumes of Jana Still's (former HR Director for Escambia County) depositions in the now concluded Matt Selover lawsuit.

Her deposition, conducted by Pensacola attorney J.J. Talbot, was not helpful, whatsoever, to the county's case.  In fact, upon re-reading it juxtaposed with all of the other pertinent information in the case, it now appears more than likely that she was brought in and thrown to the wolves and instructed to "handle" the mess that was already well underway by the time she was brought in to work on it in November of 2019.  She was brought in to fix it, and her efforts were a belly-flop-job, a disaster.  It went south on her very badly...and cost us time, money, and several employees.

From county legal, as to my ability to release these particular records:

"Commissioner Bergosh:

Attached please find Jana Still’s deposition transcript.  There does not appear to be any applicable exemptions.  However, this transcript also contains testimony regarding the xxxxxxxxxxxxx and the resulting xxxxxxxxxxxxxxxxxxxxxxx.

 You may want to exercise your discretion to omit the following portions of the transcript:

• Volume II, page 129, lines 9-11; and
• Volume II, page 133, lines 15-18

Thank you,

 Kia M. Johnson

Assistant County Attorney"

Read the transcripts here, here, and here...

The Deposition of Rayme Edler

The deposition of Rayme Edler, who would have been called to testify and who was a fact witness, was damaging, very damaging to the County's case.  Very Damaging.  Read it, below

Our case with former employee Matt Selover has settled, and therefore much of the discovery documents, depositions, etc., once redacted appropriately, will be released here.  

The deposition of Rayme Edler was devastatingly bad for the county.  It was a horror show.  Although she had two lawyers falling over themselves to object to just about every question asked of her---Attorney J.J. Talbot was pedestrian, balanced, and methodical in the extraction of damaging information from Edler during this deposition.  And unlike me, Rayme Edler would have been called to testify in any trial had we not settled.  I never would have been called as I was not a fact witness, not an expert, and my opinions were not and are not relevant to the facts of the case. (a fact ignored by the attorney for the insurance company in her memo to the county, and a fact omitted from the PNJ coverage of this settlement)   And had it gone to trial--by the insurance company's own estimation--the County could have been on the hook for up to $820,000.00 PLUS Legal fees.  (That devastating fact was conveniently left out of the PNJ's hit piece on me published Monday).

With respect to the medical director at the time of this incident, I received the below opinion from Charlie Peppler about releasing her deposition transcript, which I will be linking to this blog post.

From Deputy County Attorney Charlie Peppler:

"Comm’r,

   I have reviewed Dr. Edler’s depo transcript and there does not appear to be any exemptions applicable.  You may wish to exercise your own discretion about testimony given by Dr. Edler XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX on pages 173 through 177.  Perhaps, redacting those pages with an explanation that they involve personal, sensitive matters of a former employee, but, again, that is your call, I couldn’t find an exemption for this testimony. (In my own opinion, I don’t think the trial judge would let this testimony into evidence on the grounds of relevance, but that is not the issue at this point).  Other attorneys in our office are reviewing the depos of William Hopkins and Jana Still and they will get with you when they have finished their review. Regards,  Charlie

Charles V. Peppler"

Read the deposition of Rayme Edler, with pages 173-177 removed on the advice of Peppler, here.

Final Legal Analysis Listed Potential Selover Award Damages at More Than $800K

The County saved potentially $600K or more (according to attorneys working the case on behalf of the County's insurance carrier) due to our settlement with wronged first responder Matt Selover.  PNJ did not report that; instead, their article on the front page of this morning's paper essentially blames everything about this case on Jeff Bergosh......

Unlike the dishonest, feckless partisan fake news PNJ, their writer Jim Little and their rancid trash heap article in print on the front page of today's paper---I will link the documentation I have that illustrates the totality of the problems with the County's defense of the Paramedic Matt Selover's Lawsuit the county settled for just under $200K last month.

Fake news PNJ cherry pick a 35 page document from January of this year to find a couple of paragraphs they believe to be unflattering to yours truly, and they make a story of that only and exclusively.  

And, they conveniently do not link their source docuement--a 35 page memo from the Lydecker-Diaz law firm delineating all the multiple problems with the defense and urging a settlement in the case to reduce financial exposure to their real client---not the BCC---the insurance company that ultimately paid the settlement.

PNJ didn't show the document, but I did.  

And PNJ's subsequent post on their facebook page was panned by readers unanimously and universally---including by Matt Selover himself, you know, the first responder at the center of the matter.  He went in and made some very apropos comments correcting the PNJ's flawed narrative on their own facebook page.

But setting that wreckage aside--there was a follow-on memo from the same firm sent over to the BCC's deputy county attorney Charlie Peppler in early May---and that memo apparently didn't get leaked to the PNJ as the previous one did.  I wonder why?  (I know why, and so will those who read it!)

Actually--none of the board members knew about it so far as I can tell--which is problematic as we should have been given it ahead of our last shade meeting in early June.  It might have influenced decisionmaking.  But it was withheld from the board, we did what we did, and it is all over now.

But that memo, linked here, did describe our potential liablility as potentially exceeding $800K--and again urged a settlement for a myriad of good reasons---the same ones and more from their first memo---yet none of these valid reasons made it into the fake news PNJ article.  Nope.  Just "Jeff Bergosh's fault"  (I wonder why?).  No, I don't wonder why, I know why. PNJ are biased, weak, lazy, owned by the powerful, and fake to their rotten core.  That's why.

From the memo the PNJ didn't show you:

"individuals at the County thought restricting his [Selover's] privileges may be discipline and trigger due process. This prompted John Dosh (Dosh), former Interim Public Safety Director, and Matthew Coughlin, former Interim County Administrator) to seek a legal opinion regarding Dr. Edler’s authority to demote Selover. As such, Deputy County Attorney Charles Peppler, drafted same and concluded that Dr. Edler lacked the authority to demote Selover.  Critically, this is a weakness in our case as our defense is that the actions taken by the County do not amount to a disciplinary action." 

"Should a jury find that the County is liable, but believe Plaintiff’s expert’s economic loss findings, we estimate Plaintiff’s recoverable damages in a range between $788,162.00-$820,162, not taking into account attorney fees."  

"Overall, we have concerns regarding the atmosphere at the County at the time of Selover’s complaint, the turnover occurring with the administration and having things fall through the cracks, the differences in opinions evidenced in emails, and the County failing to follow their harassment policy.  For example, the County failed to follow their harassment policy timeline, but did not let Selover appeal again despite the County taking six months to issue their opinion on Selover’s complaint. Moreover, at the time Selover’s privileges were restricted, there was a disagreement over whether restricting Plaintiff’s clinical privileges or any paramedic’s clinical privileges was considered “discipline” thereby triggering due process. We have two county attorney’s opinions stating that it was discipline."

 "Critically, she [former HR Director Jana Still] testified that after rendering the final opinion, Selover asked to appeal, but since the complaint was a harassment complaint, and subject to the unlawful harassment policy only, it only provided for 5 days to appeal—which Selover and Dr. Edler had at the

Fascinating View Inside Insurance Company Lawyer's Legal Strategy for their "Client" in the Selover Suit

Ever wonder how an insurance company's lawyer, attempting to minimize her client's exposure, would advise a County that was exercising said insurance company's policy?  Read this post and attached document and you will know.  And it's fascinating. 

Although it appears this document (memo) from the County's Insurance Comapany's Law Firm was sent to our County Attorney's office on January 27th---I just got a copy of it late yesterday afternoon.  It is a detailed, behind the scenes legal analysis of the case against the county brought by Matt Selover for multiple egregious violations of his due process rights and the shameful way he was treated. This is the kind of document the public rarely gets to see, however because we are a public entity subject to the open records laws and because the litigation in this case is concluded---it now becomes a public record and open for release.  Heck, I never even knew this document existed I only was made aware of it by a source unaffiliated with the county who actually called me and asked me "What I thought about the memo?"

Well, I didn't, because I hadn't, because I'd not seen it.  

But apparently others had seen it -------and this was probably the genesis of some late night calls between our former HR director and a bean-counter insurance bureaucrat last month.... oh well.

So, now being aware of its existence--I called the county attorney late yesterday afternoon and got it in 5 minutes flat.  And I spent hours last night reading it.  

But why was this memo never shared with myself and my counterparts at our June shade session, though?  Why were some staffers and apparently at least one other commissioner provided this document---but not the rest of us?  Who leaked this memo unlawfully to outside entities before the lawsuit was settled and this document was actually subject to release?

I will get answers to these questions, I have already asked.  I do have idea, though.  And thankfully, that individual is no longer employed with the county.  Let's put it that way.

Meanwhile-this document will make it's way to the written press very soon--- and I am fairly certain portions and snippets will be cut and pasted into an article that will purport to make me the "bad guy" of this case.  "That guy Bergosh supported Selover and would not go along with our defense strategy!!" will be the flavor.

So be it.  

The facts are clear, though: we wronged this first responder, disciplined him inappropriately, denied him due process, retaliated against him after he filed a harrassment complaint against his medical director, bungled that complaint and subsequently damaged him emotionally and physically--all the while stomping all over his rights and abandoning county policy and past practice.  That's why we settled with him, and the insurance company (not Escambia taxpayers) paid him a $200,000.00 settlement. 

Here are some "low"lights from this insurance company lawyer's memo--illustrating just how weak her case was and why:

"Critically, one of our biggest weaknesses is the fact that between April 23, 2019 and May 1, 2019, there is no documentation whatsoever supporting the Board's alleged decision to 1) restrict Selover's clinical privileges and 2) that Dr. Edler decided to report Selover to the-Department of Health."

"After he [Selover] filed the complaint, he testified that he worked without any issue for 22 or 23 days until he was advised his clinical privileges were restricted on May 15, 2019. He testified John Dosh and Leon Salter advised him that Dr. Edler restricted his job duties on May 13, 2019. Notably, as noted above, this is a significant weakness in our case as this occurred over three weeks after the QA/QI meeting."

"Dr. Edler told the [April 23, 2019 QA/QI] board to write up their thoughts and she would decide what to do. He [William Hopkins] recalls her telling him to write up the meeting and their observations, but it seems like they did not decide what actions to take regarding Selover at the meeting. They did not discuss reprimand or about limiting his ability to practice or do certain procedures.   They also did not talk about reporting him to the FDOH." 

"We believe Plaintiff may be able to establish that Plaintiff through high-ranking officials­ ratified the alleged due process violations allegedly committed by Dr. Edler because it did not reverse her actions despite having reason to do so based on Peppler's legal memorandum and Spainhower's report. Accordingly, should this court determine that Selover's due process rights were violated, the County may be subject to municipal liabili ty."

"..there is a chance that the Court will find that his [Selover's] position change from paramedic to EMT-regardless of no pay change-constituted disciplinary action or adverse employment action since be was perceived by his peers to only be an EMT, his ability to work overtime as a paramedic was limited, and his pay was essentially reduced. We have highlighted in depositions that the policies and procedures define "demotion" as having your pay rate decreased-which did not happen to Selover. However, Bergosh's deposition highlights the