Jonathan Owens Doesn't Rate a Taxpayer Funded Legal Defense

Because mere possession of personal identification information by those who are unauthorized is a crime, and Jonathan Owens freely admits he possesses such information, his request for a taxpayer funded legal defense should be met with a denial.

Tomorrow morning on our agenda of the regular meeting of the Board of County Commissioners, we will be discussing a request from former employee Jonathan Owens.  

Owens is requesting that county taxpayers fund his legal defense in a civil lawsuit he is facing and also in an ethics complaint he is defending.

Yes, the county does have a policy that provides, in some circumstances, a legal defense for an employee who faces litigation arising from such an employee's normal and routine employment activities.

Jonathan's case does not meet that standard.  

And many believe Jonathan is actually guilty of a crime, a third degree felony, by possessing, unauthorized, the personal identification information on five or more individuals, which is illegal under Florida Law. 

Owens claims he innocently, when he was a county employee, came into possession of a file containing this personal identification information.  Furthermore, he admitted reading this file, keeping it, and disseminating it unredacted to a law firm suing the county.  He admitted his possession of this file in the newspaper and on the radio on Andrew Tallman McKay's program on AM1620 back on August 7th. (transcript here)

This is why law enforcement is investigating this issue--they know it is illegal, too! They (law enforcement and the State Attorney's Office) know this file has pictures, text messages, and other information that should not be possessed by anyone who is not authorized to possess it.  Mere possession under the statute is unlawful.  --and Jonathan is specifically NOT authorized to possess this file, which contains:

a.     Social security numbers for at least 3 individuals.

b.     User names and passwords for e-mail and service accounts.

c.    American Banking Association routing and bank account numbers for multiple accounts.

d.     The address and access codes for the electronic gate and lock on a private residential condominium.

e.     Photographs of the Passports of two persons.

f.      IRS tax returns for two separate persons.

g.     Insurance cards.

h.     Credit and debit card pictures, numbers and PINs.

i.      Pictures of Driver’s Licenses of two separate persons.

j.      W-2 forms for one person.

 

6.         Additionally, the file includes personal and private discussions on the following health matters relating to at least 13 different individual citizens who are not public figures and that are also not in any way connected to Escambia County’s Government:

 

            a.         Colonoscopy.

            b.         Hospitalizations.

            c.         Psychological Diagnoses.

            d.         Miscarriage.

            e.         Cancer.

            f.          Heart attack.

            g.         Parkinson’s Disease.

            h.         Cancer diagnosis and prognosis.

            i.          Suicide.

            j.          COVID Vaccination Status.

            k.         COVID Diagnoses.

Information such as this, above, is not a public record and would not be released under any public records request ever.  If people want public records, they should request them, not steal and distribute them as has happened here.  And because Jonathan has a copy of the stolen files and has admitted this--he must also know this:  mere possession of such information by those who are unauthorized is a crime, and therefore Owens' request for a taxpayer funded legal defense should be met with a denial.

Jonathan Owens wants County Taxpayers to Fund his Legal Defense

Owens sent the County Administrator and the County Attorney the request yesterday.  I'll print it below.

I personally do not feel he is entitled to any taxpayer funded legal representation because what he did is potentially criminal, fell outside the normal course of his job, and he remains in possession of stolen county records that he is not authorized to possess and that are in fact illegal for him to possess under Fl. Stat. 817.5685.  Furthermore, Owens admitted to reading the entire file  (In a radio interview with Andrew Tallman on AM 1620),  he knew it contained private, confidential records, yet he not only never told any county employee he had the file while he was working at the county--he also kept the file upon leaving employment and he also provided it, unredacted, to others---including opposing counsel in an ongoing court case against his former employer---------knowing it contained attorney client privileged conversations about that case in particular.

As Ricky Ricardo from "I love Lucy" might have exclaimed:  "Someone has some 'splainin to do!"

When he "acquired" this file and knew exactly what it was, he should have immediately returned the property the owner and promptly notified the county attorney's office.  He didn't.  He read it, kept it, and gave it to others instead.  He didn't need no stinkin' attorneys then!

But now he wants an attorney??

Nope, I don't believe he'll have three votes for this if it even comes to the board for our action--because he clearly DOES NOT qualify, under our policy, to be able to receive this coverage.  Period. This was not a job related function he was performing, and no, he ain't no whistleblower--there are specific statuatory definitions of what a whistleblower is--and he is not one.  Good luck with that.

Looks here like Jonathan Owens is following in the footsteps of his best friend, soul mate, and former boss,  Disgraced Former Commissioner Doug Underhill.

And like his mentor, partner and former commissioner Underhill----Owens now is also requesting you, the taxpayer to fund a legal defense to his reprehensible, potentially criminal conduct.

I can't make this stuff up!

What D2 resident and former Underhill Secretary Jonathan Owens sent the county yesterday:

Underhill's Amended Compaint and Petition for Writ of Mandamus Gets "Vaporized"by Attorney Rick Figlio

Rick Figlio's assessment of Doug Underhill's latest request for taxpayer money to fund his legal costs looks a lot like this picture, above....

Like a devastating wrecking ball job--- with the "building" being Doug Underhill's amended complaint and petition for Writ of Mandamus in the circuit court (another attempt to get his legal fees paid by the taxpayers)---Tallahassee powerhouse attorney Rick Figlio demolishes every argument Underhill makes. Piece by piece, item by item, line by line, down to the granular and then the atomic detail.  I mean, it is an absolute evisceration.

Local businessman David Bear requested this written opinion from his attorney Figlio, and recently received it.  

I am copying the opinion here for interested persons to download and read what a well-written, concise, and solid opinion this is.  It's going to spell trouble for Doug and his quest for taxpayer funding for his legal costs and fees---if the county's response looks anything like this well written rebuttal (which the county's opinion now should 😜).  Big trouble for the quest for cash from Underhill.

Highlights from the document:

“I believe that each of the counts of the Amended Complaint

has little legal merit. I would characterize Count II, seeking recovery of fees under section 111.07,

Florida Statutes, and Count III, seeking mandamus, as specious because each of these counts relies

on either a fundamental misconstruction of Florida statutes, settled precedent, or both..

 

the Board’s decision to pay legal fees is an

inherently discretionary act, which would preclude issuance of a writ of mandamus as a matter of

axiomatic Florida law. It is also clear from the attachments to the Amended Complaint that no

amount of argument or evidence can overcome the Amended Complaint’s plain deficiencies..

 

Count I likewise fails to state a claim for which relief

can be granted. In order to be entitled to reimbursement under the common law, Underhill must

plead and prove that the litigation for which he seeks reimbursement (1) arose out of or in

connection with the performance of his official duties and (2) served a public purpose. Thornber

v. City of Ft. Walton Beach, 568 So. 2d 914, 917 (Fla. 1990). The claim’s failure relates to the

second prong, as the Amended Complaint acknowledges that the Defamation Suit alleged that

Underhill committed the intentional tort of defamation against one of his constituents and further

acknowledges that Underhill was not vindicated in the action, but rather was able to escape liability

irrespective of guilt by virtue of the trial court’s finding that he was immune from suit. Put simply,

commission of the intentional tort of defamation against a constituent cannot be said to “serve a

public purpose,” and the Amended Complaint does not allege Underhill was innocent—only that

he was immune..

 

Underhill’s request for mandamus must fail. Mandamus is a civil

remedy to compel a public official to discharge a ministerial duty. Browning v. Young, 993 So. 2d

64, 65 (Fla. 1st DCA 2008). To prevail, the party petitioning for mandamus must plead ultimate

facts showing (1) the public official has a clear legal duty to perform a ministerial act; (2) the

petitioner has a clear legal right to have the duty performed; and (3) the petitioner does not have

another legal remedy available. See RHS Corp. v. City of Boynton Bch., 736 So. 2d 1211, 1213

(Fla. 4th DCA 1999) (affirming dismissal of petition for mandamus to compel city to inspect

certain property and enforce land development regulations against a private property owner).

Here, Commissioner Underhill does not, and cannot, allege facts to support a clear legal

entitlement to the payment of his attorneys’ fees, and, therefore, cannot state a cause of action for

mandamus. A party seeking mandamus must demonstrate a clear legal right to performance of the

act requested. Butler v. City of Melbourne Police Dep’t, 812 So. 2d 547, 548 (Fla. 3d DCA 2002).

A “clear legal right” must be one not subject to differing reasonable interpretations. See Sancho

v. Joanos, 715 So. 2d 382, 385 (Fla. 1st DCA 1998)....."

Payment of Legal Fees Request May Not Necessarily be a Slam Dunk Part II: The Absolute and Total Annihilation of Mandamus Argument

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

Payment of Legal Fees Request May Not Necessarily be a "Slam-Dunk"

Sometimes even when it looks like a "slam-dunk" is a "sure-thing"---- it doesn't mean it will ultimately happen though....

The awkward and uncomfortable silence (at 3:04:20 of the meeting linked) that followed Commissioner Doug Underhill's motion for payment of his legal fees to his lawyer last Thursday was certainly something I neither relished nor enjoyed.  The Sound of Silence.  Like Simon and Garfunkel's tune.  Silence that was deafening.  

But, to channel Yoda: "Silence there was" -- when Underhill made the motion for payment (at 3:04:20 of the meeting linked) of nearly $25,000 in legal fees.  Complete, total, unambiguous silence.  So his request died for a lack of a second, and his attorney remains unpaid for nearly a year and a half's work.

The case has been ruled upon by a local circuit judge and also affirmed unanimously at the 1st District Court of Appeals.  This is why this request is coming now for us to act.

But back in November of 2019-- I made a motion to set aside an amount of money to repay these legal fees to Doug Underhill if he was successful in the suit AND if he demonstrated that he had paid his attorneys and was current on his bills to his lawyer.  At that meeting, at that time, Doug Underhill did not second my motion, and my motion to set aside these funds, under the conditions in my motion, died for lack of a second.  One could speculate as to the "why" the Commissioner who's fees were in questions would not have seconded a motion to assist with payment of these fees---because it was an odd thing to occur.  But it happened, and now we fast forward a year and three months and the motion this time was made by Doug-----and it died for lack of a second.

And now--because the board did not take action to pay the overdue legal invoices Thursday--this will undoubtedly head back to circuit court.  We will be sued for payment of these fees.

So we will see what that filing looks like.  The county will answer and will defend against this, I am told.  If a writ of mandamus is received, it is my understanding it may be appealed.

The question will come down to whether or not our local ordinances and rules will be upheld--or will a state statute be cited successfully to trump our policy and unilaterally compel payment of these fees to the attorney who represented Commissioner Underhill but who has not yet been paid by Commissioner Underhill.

A quick review of the relevant county policies in force during the time the conduct at issue occurred which drew the lawsuit reveals the then social media policy was not being followed by the Commissioner who got sued.  

Looking at the Board's revised rule/policy on repayment of legal fees--it remains unclear as to whether or not 1.) repayment/payment of fees policy was followed and 2.) the policy compels the board to pay if a commissioner requests repayment due to the successful defense of an issue in court (i.e. it appears as if the board will have five different courses of action to take under our policy---to include denying the payment of fees and making alternative findings.)

An additional question this whole mess dredges to the surface is the hypothetical conundrum that may ensue if the court does in fact issue a writ of mandamus to the BCC to pay Commissioner Underhill's unpaid fees.  Questions such as:

1.  Would the board have to take additional vote(s) to pay---or could the board vote to appeal the writ of mandamus? (could this thing go back and forth through the various courts and courts of appeal like Forest Gump's ping-pong balls going back and forth over the net?)

2.  Would/could the clerk of the court independently at her own discretion proactively/pre-emptively pay the legal fees once such a judgment is/was issued to the BCC ordering the payment?   

OR

3.  would the BCC have to vote again to authorize the payment by the clerk to Doug's lawyer all the past due bills --- as ordered (hypothetically) by Judge Pitre?

Too many questions.  One thing that is certain though:  Payment of these past-due, unpaid bills from the BCC directly to Doug's lawyer may not necessarily be a "slam-dunk......."

BCC Says NO to Paying Commissioner Doug Underhill's Legal Fees

The BCC said no to paying for Commissioner Doug Underhill's legal fees at our regular meeting last night....

There was a discussion item on last night's BCC agenda, the subject of which was the payment of legal fees for Commissioner Doug Underhill.  The board had previously rejected the idea of paying these fees prior to the case being heard in circuit court.

The local court case happened and the judge ruled in favor of Commissioner Underhill.

$15,600.00 in fees and costs were presented last night for the board to consider paying.  The wrinkle now for me is the fact that an appeal to the district court of appeals has been filed in this case.

 Absent that appeal, I believe the BCC would have paid the legal bill for the successful defense of the lawsuit brought against Commissioner Underhill in the circuit court.  This would have been appropriate under statute and board policy.  Had we refused to do this, I have every confidence that such a non-payment would have itself been challenged in court and we would have lost that case. 

And then we would have been paying fees on top of fees to attorney Ed Fleming.

So I brought a motion for the board to consider last night which would have allowed for the amount owed currently to be set aside in a reserve account after full payment of the current bill to Ed Fleming by Commissioner Underhill was verified.  This ammount would be held until such time as the court of appeals came back with a dispositive ruling on the case.  If the appeal was ruled in favor of Underhill--the fees held in reserve would have immediately been paid to him.  I felt like this was fair given the circumstance and I felt it would insure timely payment to Ed Fleming for his services rendered in this current case.

But the board did not want to support this sort of an arrangement, I did not get a second on this motion I made.

After much subsequent discussion by the board, Commissioner Underhill made a motion of his own, that the full legal bill be paid immediately.  His motion died for a lack of a second.

After much further back and forth dialogue on this topic by the four of us on the dias, the outcome is crystal clear now.  The BCC simply says NO to paying Commissioner Doug Underhill's legal fees. 

I suspect we will next address this topic if and when the appelate court renders a decision on the circuit court case, which could take months or even years......

Commissioner Underhill Will Be Requesting a County-Funded Legal Defense

The board has been advised via an email from this Saturday that at an upcoming meeting we will be asked to approve a county-funded legal defense for Commissioner Doug Underhill.  He is currently being sued for libel.

Two years ago the board was asked to provide a legal defense for Doug Underhill and at that time the board voted no.  (That issue discussed at length here).

This time around, the circumstances are different.  Nevertheless-I'm not convinced that there are three votes on the board to fund this.  We will see this week I suppose.

(I've been contacted by numerous citizens who have told me NO WAY to paying legal fees)