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| When this guy, Luka Doncic, is loose in the paint--it's a sure thing. It's a SLAM DUNK. Doug Underhill's argument for payment of his legal fees by the board, however, is the opposite of this. In fact, after reading a 12-page destruction of his argument for the BCC to be compelled to pay via a writ of mandamus---it appears less like a slam dunk and more like the Washington Generals trying to beat the Harlem Globetrotters.......Good luck with that! |
When Basketball phenom Luka Doncic gets free in the lane and he has the ball---yeah it is going to be a thunderous slam dunk. Doesn't matter who he is playing or who is in his way (or under him). He's jamming it home even over the biggest names you hear about in the NBA. Even those guys get out of the way and accept what's coming...
A recent request for legal fee payment for Commissioner Doug Underhill's lawyer, which to board let die in silence with no action, was answered with a subsequent legal filing where it was intimated it was/should be all but a "sure thing" these fees would/should be paid by the county.
I never thought it was a slam dunk. Not even close. And I always thought the Writ of Mandamus was inappropriate--as the board has discretion and to pay these fees is no ministerial function. So no, it wasn't going to be a sure thing slam dunk.
After all, we're not talking about Luka Doncic.
Now I have received an email containing a 12-page legal opinion on this matter supporting the board's position that the payment of fees is not guaranteed--among other arguments. This is from Tallahassee lawyer Rick Figlio. This opinion was prepared at the behest of a local citizen, recently provided to the County Attorneys, and also provided to the County Commissioners.
And this 12 page position paper totally and completely annihilates and destroys the weak and feckless arguments for mandamus presented on Doug's behalf by his thus far not fully paid attorneys.
Complete annihilation in stunning fashion. You don't even need to be a lawyer to understand it--that's how well it is written. from the document:
- In his Petition, Underhill argues that the Board has a
nondiscretionary duty to pay his legal fees on the basis of the Board’s
policy. That is meritless.
- Underhill failed to
comply with the procedures set forth in the policy that outlines
conditions precedent to any claim for legal representation. He was
required to submit a written request to the county, through the county
attorney, within 10 days of knowing about the case or engaging an
attorney. He never made that written request. I did a public
records request for this specific written request last summer and Alison
said there was no such request from Underhill (I have the emails in case
any of you need to see them).
- Underhill argues the
county is required to pay his legal fees based on the language in the
policy. This is a misstatement and mischaracterization of the
facts. He relied on the section of the policy related to county
employees that states the Board will pay reasonable
attorney’s fees and costs for county employees named in a civil suit.
The Petition ignores the portion of the policy that states that
requests made by Commissioners will be considered on a case-by-case
basis. Consideration on a case-by-case basis means you have discretion,
not an obligation to pay his legal fees (assuming he followed the policy
of making the written request, which he did not).
- Mandamus is a civil remedy to compel the county to
discharge a ministerial duty. To prevail, Underhill must plead
ultimate facts showing (1) the county has a clear legal duty to reimburse
his legal fees; (2) Underhill has a clear legal right to have the his
legal fees reimbursed; and (3) Underhill does not have another legal
remedy available. Additionally, if Underhill cannot demonstrate
satisfaction of all conditions precedent (he failed to follow the policy)
to legal entitlement, mandamus is unavailable. Similarly, even if
Underhill can demonstrate eligibility to the reimbursement of his legal
fees, eligibility is not the same as a clear legal entitlement to that
reimbursement, and the former cannot serve as the basis for a petition for
mandamus.
- Under the policy, the Board could determine that
Underhill acted in bad faith in making the comments protected by absolute
immunity in the Defamation Suit and find him ineligible for attorneys’
fees. The Board could also determine that, as a commissioner, the facts at
issue in the Defamation Suit, do not warrant expenditure of public funds to
defend the suit. If Underhill had followed the procedural requirements of
making a request for attorneys’ fees, the Board could have chosen to use
in-house representation, or prospectively pay for legal counsel. The Board
could have also denied Underhill’s request based on the fact it exceeded
the $250 per hour limitation on reasonable attorneys’ fees.
4 comments:
Wow! This is a interesting read . I was already wondering if this was going to be handled in the shade like most litigation is handled or brought against the county and kept under seal until the case is resolved or a majority of the board votes to release the information . Im thinking after this That’s a big no! Next thing I would love to see is a blog on your thoughts based on the facts of what happened in wedgewood. Who is responsible ? Why have they not been held accountable? What is the story on it and the players involved that a lot of folks don’t even understand . All I know is who ever was running it got shut down for violations and it is it has been cleaned up by the tax payers. The neighbor hood is supposedly polluted and people got sick or are sick from it supposedly .I would Love to see a Netflix special on it like they have done on similar alleged environmental crimes where a lot of folks got rich on it . I posted under Anonymous but hate someone not knowing who posted . My name is Steve and I m never ashamed of what I ask or say . Try to always think twice before posting stuff .
I second Steve's WOW! It seems to be a very convincing argument for denial of his writ of Mandamus, and I happen to agree that he is not entitled to compensation. So what possibly would be the Boards actions if the Court ruled that the Board needs to exercise their options as stated in policy? One of which is to deny his request, "The Board could determine that Underhill acted in bad faith" is the closest to the truth of the matter and should weigh heavily in any consideration given to his request.
I hope that the court tosses his request, but I fully expect the Board to deny his request if forced to make a decision. Not following set precedent aside, it's the right thing to do just on face value.
Is Underhill immune for taking the DOH complaints about the employees in public safety to attempt to politcize it back in March 2018? He also posted the DOH results to ECW yesterday and then employee medical director chimed in. Notwithstanding political candidate D2 responded to their rhetoric yet again. The texts on her page about blush and flush and Gemini are now in the public domain. Perhaps at the root of the problem is people shouldn't drink and drive, and the county shouldn't fire employees as results of lawsuits, as in the medical director prior to this one. See when the public and newspapers get involved, it just gets worse. New D2 candidate puts the Q in Drama Queen.
No wonder its difficult to keep employees at the county.
March 2019 not 2018..when DU asks "all the hard questions" and published video of medical director and said he wishes he had a daughter like that or something gushy as in commissioner favoritism, toxic workplace scenario... type actions and then the exodus of employees followed... why would he open the Pandora box again..things that make you go hmmmm...
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