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| The Escambia Board of County Commissioners voted 4-1 to hire a first rate legal team to appeal the recent circuit court decision directing us to pay Doug Underhill's $24K legal defense bill--a bill that was generated initially by Underhill's alleged racially charged, venom-infused, libelous social media attack on a local businessman. |
First of all--I do believe Doug should pay his attorney for the work done on his behalf. That should happen immediately regardless of what the eventual disposition of this matter becomes. Maybe Doug has alreadt paid his attorney?--I don't know but if he hasn't yet--he should. The attorney did his job and should be paid.
But the idea that the taxpayers have to cover this cost is the issue that is the subject of contention.
Our policy states the board "may" pay the legal fees of a commissioner and does not say we "shall." We have discretion, there is a distinction there. Obviously if the conduct at issue is done in the course of one's duty as a commissioner--it is highly likely that the fee would be paid by the county once a commissioner is exonerated of the charges. Or the fees could possibly be covered even beforehand, prospectively.
But there are a couple of tests that would have to be met before a public dollar payment would ever be appropriate. A two-pronged test.
1. Was the conduct at issue that drew the lawsuit done in the course of the commissioner's official duties?
2. Did the conduct at issue serve a public purpose?
Neither of those tests were passed, so far as I am concerned, in the Scott Miller case. The Judge in that case (and I'm paraphrasing) essentially ruled that commissioners have "Blanket Immunity" to say whatever they want when off the dais and on social media like facebook or twitter. Blanket immunity to say anything about anybody no matter what. Blanket Immunity for elected officials to essentially libel businesses and community members?
That was the ruling.
Many disagree and believe it to be badly flawed.
And it apparently--this order in the Miller Case---- subsequently eclipsed the need for a more specific, nuanced ruling by the judge in that case on the all-important two-prong test above. Those two prongs were not addressed but rather glossed over in favor of the blanket immunity concept while intimating the conversation on facebook was part of a commissioner's duty. (no mention of the public purpose prong)
Stick with me though, because this next part is opaque but it is nvertheless important.
The two prong test remains important because to pass this test allows us, the BCC, to pay appropriately from county funds if we decide to do so. It isn't automatic. But the ruling jumps our policy to the common law.
And I have not seen a ruling anywhere saying "Doug Underhill's back and forth with Scott Miller on Facebook served the public interest and was done in the course of his official duties as a commissioner." But that's precisely what Judge Shakleford's ruling (written by Doug's attorneys and signed by the judge, by the way) states emphatically--based upon the earlier ruling.
So it is fatally flawed in my opinion. Fatally flawed.
Because to jump over our existing county policy, usurp our discretion and consideration, and never actually fully and completely answer the all-important two-prong Thornber test and instead simply say (and I'm paraphrasing) "Common Law dictates that a public official's legal fees be paid when such a public official is exonerated of the alleged misconduct that necessitated the payment for a legal defense in the first place" would require that the actual, alleged misconduct be adjudicated first. And it never was--it was glossed over and not addressed. Remember--It was eclipsed with a "blanket immunity" ruling.
So the seminal, open question that needs to be answered and has not yet been answered and ruled upon by any judge is this: Is one commissioner's alleged act of libeling a white pensacola business owner and his company by accusing such a businessman of being a racist who is trying to injure physically and swindle black residents out of their homes and property----does that conduct serve any public purpose? Is that a county commissioner's job duty to make such specific, non-proven racially charged allegations against citizens on social media? And the individual that Doug Underhill levied these charges against has not been indicted, charged, or ever accused of intentionally trying to injure residents and steal their property by law enforcement officials. Never. If what Doug said was true--this individual most assuredly would have faced some sort of criminal consequences---yet it has not happened.
So was this conduct done in the public's interest? Was it done in the course of his official duty?
Or, rather, was it just another freelance, venom-infused and disgustingly libelous social media attack on a citizen by that same someone who also happens to hold public office?
No, I haven't seen that question ruled on yet.
I don't think he (Underhill) passes either prong of the two part test.
And part of the reason I don't think this conduct is within the scope of Underhill's official duties as a commissioner is because Underhill himself, in a separate lawsuit he is battling currently, has emphatically argued his public records from social media are NOT public records because what he writes on facebook is NOT official actions taken on behalf of the county and so therefore none of those screenshots are public records.
These same lawyers argue this in one case, and the opposite in another.
You can't make this stuff up--no wonder most people, myself included, do not like lawyers. (I say this with a modest degree of facetiousness 😏 ). But not really though. Well, maybe.
Meanwhile------ No, you can't have it both ways.
So no, it isn't frivolous for us to appeal this circuit court order.
There's a lot of meat on the bone of these questions and rulings--and now we have the A-team lawyers aboard and we are going to the first DCA. We will see what happens from there.
Meanwhile, since this could take a minute or two, Doug should go ahead and pay his lawyers. They do deserve to be paid. By him.
19 comments:
Well since you put it that way it makes perfect sense to throw taxpayer money at more lawyers to keep from paying legal fees for a case he has already won. The worst outcome would be paying his attorneys more for defending this appeal plus the board's attorneys. It's only taxpayer money being thrown away. We didn't need the money anyway.
Anonymous: Looking at the 4-1 vote from the board to move forward with the appeal--your apparent course of action to pay the fees wouldn't have been supported. And first rate lawyers are looking at this whole thing and believe there is a path to be successful on appeal to the 1st DCA. Really smart, first rate lawyers. So I disagree with your cynical assessment. As I said at the meeting yesterday--at the end of this matter, after the complete legal aspect has played out, if ordered to pay Doug's lawyers I will do so, as that will at that point be my only option. Meanwhile, back at the ranch, many cases are overturned or reveresed on appeal. And the appeals process is an important aspect of our system. Yes, yes, yes, I know that the party who holds a victory at the circuit level always hopes the ruling is simply acknowledged and followed with no appeal by the other party. Yes, we understand this. But to your point about what the worst outcome would be--I simply disagree with you. The worst outcome would be if we didn't follow the legal advice and appeal but rather simply paid $24k in taxpayer cash expeditiously----because an appeal, once successful, means $0 taxpayer dollars will be spent defending someone who goes online and creates this ridiculous drama-theater. So, we will see what happens at the DCA in a year or so. Meanwhile, I sure hope Doug is up to date with his payments to his lawyers--they deserve to get paid by their client and not held up.
Underhill owns a ton of real estate in your head. Reading your blog and your attacks makes me think that the county should bring back the old social media policy
The truth is Commissioner Underhill abstained from the vote and Commissioner May exited the chamber and returned when you announced the vote at 3-0 in favor. A minor detail but you were mistaken when you said it was 4-1 or you were just testing to see if I was paying attention. Underhill questioned Ms. Rogers asking who she had spoken to about the viability of such a case and the only person she said she spoken to was Mr. Figlio I seriously doubt she would have brought this to the board. If other attorneys stated there was a chance the county would be successful, then those were not the attorneys MS. Rogers spoke with. All of this seems to be petty and spiteful. My personal opinion is this is nothing more than a way for you and the other board members to inflict financial stress to the commissioner well after he is long out of office. With the current backlogs in court, I would imagine it would be several years before this is heard in court. Your continued statements about hoping his attorney have been paid is further proof this is all vindictive and personal.
True May conveniently has to miss these votes. 3 to 0.
It is appropriate for the board to hold Underhill accountable for his behavior. Underhill probably won't learn as he and his wife are still blaming others and still on social media prattling on. It really is pathetic. He brought it upon himself. This particular case was a discussion about ST aerospace and Underhill just insulted Miller's character. Underhill is still going on with his side of the story that he was holding the man accountable, no he wasn't, he was being a jerk on social media. He called David Bear Baby Bear, silver spoon in his mouth, sent people in ahead on Pino calling her crazy and deny their son stole the other kids phone and pinched his juggler. It is on video.
He has maligned citizens, employees, his own colleagues plus the attorney. If he thinks he is in the right, we'll he isn't.
Glad you all finally grew a set, better late than never.
You gave him many chances and he blew it over and over.
Maybe in addition to giving him the small book entitled, "How not to be a dick" It's in paperback, perhaps a copy of "Seven habits of highly effective people" would be helpful. He practices none of them.
And furthermore, in a hole he can't stop digging.
If they think Barry or Rogers did wrong by going to the ethics committee for an opinion was wrong, or trying to participate in a retirement plan is nefarious the Underhills are simply continuing along the same type of behavior that put them in the position they are in. It is absurd they keep on with the talking points and narrative and that anyone in their right mind can't see through them and still defends them.
Underhill types his lies so often, I think he has started to believe them. He is typing, telling the world he was holding someone accountable (on facebook ECW). If he wanted to do that -- as a board he should have put it on an agenda for a vote.
So glad you are not caving into him.
He just blames and blames and deflects.
Will he learn from this, not likely.
Doug wants so badly to be framed as a martyr; he isn't one. He has danced the rain dance for years on this board--now it's raining all over him and I am supposed to feel sorry for him because he can't find an umbrella? No. He's libeled me and my family over and over, lying about me and my fellow board members, calling us all corrupt and intimating we are in the pockets of local business leaders and developers when that is simply not true. He calls fellow military veterans "pussy" online when they ask him questions, he calls young students who are lawfully exercising their first amendment rights of free speech "miscreants and insurgents" he describes women that are marching in the yearly women's march as wearing "vagina hats" he libels area businessmen wrongfully accusing them of purposely harming minorities and attempting to conspire to swindel them out of their properties, he accuses one member of one family in particular of nefarious conduct continuously--even going so far as attacking that individual's wife online with attmpted character assassination and he (underhill) and his wife consistently lie about me and spin ridiculous conspiracy theories about members of my family including my brother who is an honorable man unlike doug who is not. Doug does not make a pimple on my brother's ass and couldn't carry his jock strap let alone measure up to him. His weak, insecure attacks project his own shortcomings, and those that know both men recognize this as a fact of reality, instantaneously. period. My brother went to the war and fought, on the ground in an AMTRACK behind a fifty caliber machine gun--he didn't fly over the battlefield on a surveilance plane wearing a headset. he is a marine and he does not deserve the lies, attacks, and accusations the underhills sling his way. And of course he is dignified and would never respond to the insidious, ridiculous claims they make. But I will. they are the underhills, obviously grasping at straws Straight up lies about my brother intimating he somehow was a part of a conspiracy to somehow target their son. What a bunch of BS, he agreed to substitute for a different judge to be on duty and that arrangement was made 3 months before the incident they continuously reference. let's see--how in the world could my brother be so prescient to know, three months in advance, to agree to substitute at a different judge's request, just to be the duty judge on a day when just by doing his job it would result in an outcome the underhills didn't want? He is a smart guy, Gary Bergosh, but not even he could look that deep into the crystal ball to know that, and more importantly he would never do anything vindictive as they describe. So, yes, to summarize doug brings all of this on himeslf, doug his vindictive cohorts and his water carrying sycophants. Doug will be gone soon---and a LOT of people will celebrate his departure and the associated dysfunction he generates consistently. No, he's no martyr. He's simply a troublemaker who's finally getting his just due.
Desperation Dildo Doug and his Bowlcut Buffoon Betty have been waging their toxic disinformation warfare for so many years that they have poisoned their own minds into what could actually be a constant, low-level psychotic break. They and their dwindling band of wannabe Q insurrectionists over on ECW are detached from reality on a level that is laughable and frightening at the same time.
Betty *actually* seems to believe that I orchestrated a conspiracy that would have necessitated buy-in from two commissioners, the sheriff's department, a state rep, the State's Attorney's Office, the prosecutor, and not one but two judges to get her son arrested. Think about that. We're so used to their insanity at this point that it's not often we step back and realize just how crazy they actually are. The kind of crazy you don't come back from.
Most people--including myself--didn't even know about the arrest until Doug and Wendy dragged their sons up to the fourth floor in a performative rage, thundering around the hallways, staging one of Doug's mock tribunals, and forcing a director at the County to go down in an affidavit against another employee. (The last part probably pre-orchestrated, as that Director has been Doug's biggest knob polisher at the County for the length of his tenure). People who are intimately familiar with their marital dynamic claim that Wendy is the brains of the operation. If that's true, God help them, as the woman doesn't even know that judges are on a rotation with family court.
Ten to one their own behavior is probably what sealed whatever happened for their poor son. I wonder how many lawyers they burned through. And of course, as it should be, nobody has any idea, as these matters are rightfully sealed for juveniles. The only people who keep dragging the poor kid through the social media mud are his own parents. Now Wendy has "outed" the judge who made the decision in the case, as well. Are there no repercussions for them playing havoc with what should be sealed information? Them never being held properly accountable for their atrocious behavior by any entity that could do so is exactly how this monster was grown to begin with.
I probably would have just given Ed Fleming his money and been done with this chapter...if Doug willingly paid him already, that might be a first. But now that the appeal is moving forward, I hope that Mr. Figlio can put this thing right.
A reminder of the two hard and fast rules about Doug: (1) he will never stop talking; and (2) he can always get worse. I can't wait to see what his deposition in the federal suit was like yesterday--hopefully it will be made public. My prediction is that he will use his protected speech to do a whole lot more libeling and lying and get it public on the court docket (just like Edler did when she was suing me). From what is public so far, it looks like Doug never got the memo that releasing the Kraken didn't have very favorable results. Just a sad local saga mimicking players on a much bigger stage. While Doug doesn't have as far to fall, and he's got a pretty hard head to land on, his paeons to provisioning farming don't bode well. Especially since his father apparently never taught him that you can't irrigate crop with a garden hose.
Wendy white knighting.. maybe she should stick to posting pictures of goat's asses instead of defending a jackass of a husband.
Love the alliteration. Melissa has a very special set of skills, skills she has acquired over a very long career, skill that make her a nightmare for people like them, if they would just let it go, that may be the end of it. ;)
Don't confuse her ability to write as intelligence. Her time could be better spent writing spy novels.
Anonymous 10:01 AM, congrats on being born of superior intelligence to Joseph Conrad and John Le Carré.
I doubt, however, that even an author of their caliber would be able to wring a compelling narrative out of the quotidian dreck of Underhill drama. It's not exactly the stuff of legend or even fable, apart from the travesty of unreality in their own fevered minds.
10:01 you pulled a lever--can you do it again
The entire ordeal surrounding Underhill and ECW definitely is one of the roots and epitome of dysfunction in Escambia county. It is good you hired the same attorney that is familiar with him trying to use his position as a sword and a shield to bully and bludgeon, not only well known leaders in the county but simple citizens trying to figure things out.
I read over the Bear lawsuit last night and also see Underhill still trying to use that pulpit on ECW and his press secretary turned attorney is pathetic. Spin Spin. He says you are afraid of transparency when what is going on is he won't turn over his records on ECW. He said they spent an hour in the deposition talking about ECW. Well of course they did, that is what most of the suits are about. She is suggesting you get sued also.
Someone must not want all their PMs exposed. And for the dummy saying they would give anything to hear the deposition, well you don't have to give much, just open your eyes and read.
https://docs.justia.com/cases/federal/district-courts/florida/flndce/3:2019cv04424/110908/140
Yeah, not that hard to read what is going on -- rule of thumb, don't trust what Underhill spins with the help of his partners on ECW.
So is Owens as a public employee allowed to use social media now? I see he has joined the bandwagon.
Here are some of the dates when records are supposed to be disclosed. Some of it drags into the summer. I'm sure Figglio can use the info from all this to sort it out.
The court jesters are simply trying to win in the court of public opinion.
I don't see the BOCC as being spiteful, I see them as body working to find solutions.
Must be quite the "Underhill dilemma".."Uh UH Uh Uh do I use my position as a sword or a shield today" .. "Or maybe I'll just
Keep talking ..." Uh Uh Uh..
Conflicted.. always starting conflict.
But of course, it is not his fault, it is everybody else's fault/s
After elected if he would have simply done a job and been a cog in the wheel, he could have served the public and made a buck or two in the process.
I'm waiting for the redacted comments release, Funny to watch them squirm actually.
Then after he releases the comments to Bear saying ECW is official business and throws ECW admin under the bus. (Naraccist discard) He will then try to oppose the appeal voted on March 24. But low and behold by then he won't be an elected official so it will be moot.
Can't others predict the plot on this screenplay drama?
Popcorn time.
Better yet. Change the channel.
They are still having a hard time on ECW and must have sent info to Tallman.. about the 51% retirement contribution. So what. It can go into the FRS and keep,it solvent paying out to beneficiary or into th3 annuity. Same amount from county coffers and still the clerk was the one who started the lawsuit fiasco.
No I'm not Bergosh and I also didn't forget Underhill and gang used a county employee to sue a citizen.
Talk about abuse of power. Look there.
Nasty bunch of misfits.
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