What is the Status of the FBI's Investigation into Stolen County Files?

I was informed yesterday that the FBI Investigation into who stole county records is still open.........

"Where's the FBI on their investigation?"  

Curiously--this was a question that was asked of my by the State Attorney's Office  (SAO) two weeks ago when I spoke to them.  I was talking to the SAO about what I could/could not say with respect to the "No True Bill" that had been handed down by the Grand Jury earlier that week--- vindicating me of any wrongdoing surrounding stolen text messages from my phone.

At the time it seemed like a curious question for the State Attorney's office to ask of me---as the FBI investigation into who stole and unlawfully disseminated unredacted personal identification information from the county has been going on for just shy of one full year.  Actually, Tuesday the 11th will make one full year.

On the 11th if June last year--I met with the FBI and the County Administrator in my office where both Administrator Moreno and I signed blanket release forms allowing the search of all the county files the FBI had confiscated that day--"for evidence of any crime."  We both signed it on the spot. 

So why's the SAO asking me what the FBI is doing?  Surely that matter, the FBI's investigation into stolen county files, must have been concluded by now I thought?   

So I asked a question back of the SAO and did not really get a good answer.  "Has the investigation from the FBI not been given over to the State Attorney yet?"  I asked.   

I didn't get a good answer.

So I waited a couple of weeks.

Monday and Wednesday of this week I called my FBI POC, the investigator assigned to this.  I left a series of messages explaining to him that the county has a fairly significant hearing on Monday and "if

Underhill Wins!!!!: (a Pyrrhic Victory)

"If we are victorious in one more such battle, we shall be utterly ruined" -King Pyrrhus of Epirus, 318-272 BC

A ruling in Federal Court was handed down earlier this week.  

It was a pyrrhic victory of epic proportion for disgraced former commissioner Doug Underhill in that he "Won" one aspect of a long brewing, long simmering and percolating case.  

Yes, a judge ruled for him (Underhill) in just ONE (1) aspect of this lawsuit. 

The suit was filed alleging Underhill violated the constitutional rights of constituent(s) by hiding comments and blocking comments on social media accounts he, Underhill, controlled--and the judge did side with Underhill on this.

But --even though the Judge ruled for Underhill on just this one aspect of the suit----another portion of the same ruling was simultaneously devastating to Underhill.

......Because the Judge also ruled for the plaintiff, David Bear, in the other, equally important part of the same suit-----and awarded $130, 425.50 to him (Bear) from Underhill for Underhill's failure to produce requested public records.

From the order:

"The Court previously found Bear entitled to an award of attorney’s fees against Underhill pursuant to the Florida Public Records Act, Fla. Stat. § 119.12, resulting from his failure to respond to a public records request for records within his custody.  The Court also determined that Underhill may be held personally liable for those fees as the responsible “agency,” within the meaning of the statute. ...The Clerk is directed to enter final judgment in favor of Bear and against Underhill on the Public Records Act claims of Counts I and III, including an award of attorney’s fees in the amount of $130,425.50 to Bear, and final judgment in favor of Underhill and against Bear on the First Amendment claim of Count VII, and close the file."

Read the full Ruling Here.

"If we are victorious in one more such battle, we shall be utterly ruined" -King Pyrrhus of Epirus, 318-272 BC

Napkin Man Part IV

The infamous "Napkin Man" has struck again, sending me the below screed lionizing soon to be former county commissioner doug underhill.  Interesting what he, napkin man, thinks is a victory--he (napkin man) obviously must not know that currently the soon to be former commissioner is #1.) under threat of removal by the governor any day now, #2.) is defending multiple lawsuits simultaneously ( including one in his state case where he (underhill) was ordered to provide discovery within one week and also to pay all court costs associated with his rejected motion for continuance), #3.) is accruing tens of thousands in ethics fine penalties and legal fees associated with appealing the recent decsion where the non-partisan Florida Commission on Ethics recommended a $35,000.00 fine and his (underhill's) removal from office, and #4.) sweating out also what could be an forthcoming indictment for perjury according to some familiar with the lies he told under oath during a deposition.  Whew--that's a mouthful--but like Vince from Shamwow used to say "But wait, there's more!"   In addition to living in what could be described as a human-sized crucible/pressure cooker turned up to full blast--he also is coming to grips with reality of loss over his epic failures one after another as a commissioner which led to him not bothering to run again--a good decision for him to make.  All of this following his (underhill's) devastatingly lackluster--actually failed-- legacy as a commissioner where he lost all working ability with his peers, lost all his committee assignments, lost most of his district in the latest re-districting, and lost all ability to be effective.  No wonder he decided to blow off so many meetings and leave an empty chair on the dais to represent his constituents?  And to further solidify his legacy of failure--he ran not one but two opponents against another sitting commissioner in 2016 and 2020 where both of those candidates failed in epic fashion--in large part due to his (underhill's) lack of any coattails whatsoever for them to ride.  He actually hurt both of those candidates' chances, LOL.  Now, as he leaves the commission wounded and with a whimper limping out the door, with no fanfare or sendoff whatsoever for his 8 years of failure,  after libeling and slandering his peers on the board, family members of some members of the board (including me, my brother and my wife), average ordinary citizens and even former and current employees of the county--after all of these machinations he, underhill,  (Like Charlie Crist, apparently) even switches party allegiance by supporting a Democrat in the D4 election for the county commissioner!!!  Wow, what a desperado--switching party allegiance after all that failure, an avalanch of failure, in a desperate attempt at renewed relevance.  But then the failure continues:  He chose, unwisely, to publicly support the Democrat over a Republican and he RAILED against the county's very wise EDATE ballot initiative in last night's election.  He even got about a dozen minions on one chat site to support him in this.  Unsuprisingly given his 0 batting average, non-existent ability to lead,  and utter and total legacy of defeat---his (underhill's) advocacy held no weight whatsoever---Robert Bender beat doug underhill's girl #MyraVanWho? by a healthy double digit smackdown, and the county's EDATE sailed to victory by nearly a 10-point margin.  Beat down central.  Ugly beat down of the sort that you see at some football games.

So I say all that to say--I don't know what weird metaverse reality in which "napkin-man" resides--and I don't know what he considers a brilliant victory--but he (napkin man) is either delusional, off his meds, or hallucinating and  very badly mistaken if he somehow thinks underhill was a victor in any way whatsoever.  As Private Hudson stated bluntly in Aliens and might point out to "napkin man" "I don't know if you are keeping up with current events pal--but he just got his A$$ kicked in there!

"Napkin -man must also think Monty Python's flesh wound = a victory.

Napkin man is a strange bird......I hope he keeps sending me his thoughts.  They are amusing.  I wonder if napkin man's real fake identity is Tallman?

Appeal will Move Forward--No Cash for Doug

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.

Yesterday the board voted 4-1 to move forward with an appeal of Judge Shakleford's order directing that we pay Doug Underhill's legal fees of more than $24K.

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

Request for a Censure

I have been asked to add an item to the next regular board agenda to "censure" Doug Underhill for his comments regarding the recent marches for firearms law changes. 

My response to these request(s) is below.

When is it Appropriate for the Taxpayers to Pay Legal Bills for a Commissioner?

Should the taxpayers pay for the legal defense of a County Commissioner?

I've been sued three times in my life.  Each and every time it sucked.

I was sued by a drunk-driver's insurance company 4 years after the drunk-driver totaled my VW rabbit in 1985 on Navy Blvd.  State Farm paid for my representation and settled the claim in 1989.

I was sued in 2002 over an alleged ADA violation in a retail space I rented in San Diego California.  I paid more than $30K out of my pocket to correct the facility deficiencies and to settle the suit.  Lloyd's of  London, my commercial liability insurance carrier at the time, initially refused to provide defense or coverage -- so I hired a lawyer to sue them for bad faith and they begrudgingly sent some money to help defend what was a frivolous lawsuit.  It sucked. It sucked badly.

I was sued by an individual from Polk County Florida in my official capacity as a school board member over our Board's refusal to comply with what turned out to be an unlawful public records request made of the Escambia County School District in 2009.  In this instance, as a sitting school board member, the suit was brought against me for something I did in my official capacity as an elected official---and therefore the school district provided a legal defense.  We were victorious in this matter.

I list these three items because the circumstances of a lawsuit dictate who pays for legal defense.

Doug Underhill, the sitting Commissioner for Escambia County in District 2, is seeking taxpayer funding of his legal defense for a current suit that is being brought against him and another individual for an incident that was not a part of an official act.  The revelation of the private chat occurred after Doug was a commissioner, however the chat occurred before Doug was a commissioner.  This is a sticky wicket for sure--and I understand the request for coverage but before coverage is provided, there are some serious questions that must be asked, because to pay for these fees, if in contravention to statutes, puts commissioners at risk of making an illegal expenditure.

I have done significant reading and research on this issue, and I do not feel we can legally justify paying Commissioner Underhill’s legal fees in connection with the lawsuit by Gene Valentino—because the action that brought the litigation was not done in connection with any official duty by Doug ( he was not elected to the position when the action at issue occurred) and I don’t believe a legitimate case can be made that the taxpayers via the BCC paying for Doug’s defense serves any legitimate public purpose.  Both prongs must be met for a public official to be provided with legal defense paid from public monies.

 111.07 Fl Statutes, AGOs  91-59 and 2013-15 as well as Thornber vCity of Fort Walton Beach speak to this topic.

Even though Doug has stated at a previous meeting (July 26th) that he would be paying for his own legal representation in this matter.....

......I get it that he is able to change his mind.  But just because he has changed his mind doesn't change the fact that we have to be smart and we can't violate law.

I’ll be suggesting that the board move very cautiously should we even entertain the idea of saying yes to paying Commissioner Underhill's legal fees.  I’ll suggest that we first seek an opinion from the comptroller-as she has potential liability under Ch 129 (129.09)-so we should ask for her opinion on whether or not she feels this is indeed an appropriate expenditure;  I will want her on board before action is taken. 

A Clerk of the Court has liability under 129.09 for paying an illegal charge.

Additionally, I believe an Attorney General’s Opinion should be sought by the BCC asking about the legality of this expenditure specifically before the board takes any action; we have liability that includes potential removal from office for malfeasance under 129.08 if we “pay an illegal charge against the county.”  Doug wasn’t the commissioner at the time of the event, and the defense of what he is being sued for does not serve a public purpose so far as I can tell.  I don’t feel it is appropriate to pay his fees for that case, and moreover I think it could be illegal to do so.

A County Commissioner has liability under 129.08 for paying an illegal charge against the county.