Writ of Mandamus Filed by Escambia County against Clerk Pam Childers in Circuit Court

As the board authorized her to do, County Attorney Alison Rogers' office has now moved forward with an action in circuit court to compel the timely completion of a duly authorized payment by the Board of County Commissioners ------which the clerk refused to honor and pay.  It's been almost 5 months now since the board voted to make the payment and also voted that this payment served a bonafide public interest.

Late yeserday afternoon the board was advised that the below complaint had now been filed, and the board was provided the document.

It will be interesting to see which Judge takes this.........and it never should have come to this.

Rick Outzen and I discussed this issue at length recently when he invited me to appear on his morning radio show.  Check out that podcast, here.

Staying in our Lanes

If we all stay in our lanes and do our jobs things will function effectively and efficiently.  If not, we are no better than a third-world dictatorship.....

Yesterday evening at the end of our regular BCC meeting (beginning at about 1:16:45 of this video) the board once again wrestled with an issue that should have never, ever been brought forward on another agenda.  It is a settled matter, all but the final payment of $6,900.00.  Or so it should have been.

Sadly, however, the issue had to be brought back for another go-round last night.

Way back on October 6th--- nearly four months ago---the board voted to pay the last of the costs associated with righting a wrong that was put upon a former employee.  Whether or not anyone agreed with the board's course of action on that matter, the bottom line is the county had to settle with that former employee because of numerous mistakes made by now former staff members that didn't do their jobs correctly, period.  His rights were violated, unfounded accusations were leveled against him, and his due process rights were tossed in a garbage can and lit on fire.   The insurance company and their attorneys wisely advised that the issue be settled for $200,000.00 as the case, if brought to a trial, could have cost the county as much as $800,000.00 in settlement fees + legal costs.

Feckless, glib individuals (to include a claims adjuster for the insurance company and even several former county staffers) who do not understand the way things actually work (apparently including several of the lawyers who purportedly worked on our behalf for the insurance company in defending the eventual lawsuit that was brought by this former employee) attempted to foist blame on me for the outcome.  Of course what they did and how they spread that message via their adjuster and even through former county staff was unethical and contrary to the professional, appropriate way a client is to be treated by their attorney (they are lucky no bar complaint was filed).  

But we were not their real client; never were.  Nope.  We figured that out once we received their emails and assessment of the case documents---after the fact.  You know, the texts and emails they never thought we would see.  No, their real client was always their insurance company that paid their salaries.  They didn't think too much of the commissioners nor did they care for me.  So what.  Do a job.  That's what I say.  Because the seminal, most important axiom of reality these "lawyers" never admitted to nor conceded was the fact that had this matter gone to trial-- I would have NEVER been called to testify at such a trial as I was not a fact witness to the events upon which I have opined and testified truthfully under oath during my deposition.  

They should have known that, and probably did.  

Yet they still assigned blame to a commissioner when the fact of the matter was I told the truth and they were dealt a bum case with fact patterns they didn't have the chops nor the will to overcome.  Period.

Setting that ALL aside, they brazenly claimed that my truthful testimony once I was deposed somehow "tanked the case"  Garbage, rubbish lie.

So after all that smoke cleared, the final settlement costs this former employee incurred in order to get on with his life and career totalled $6,900.00 dollars.  The board of county commissioners voted 3-1 that the payment of this sum be made to settle the costs with the state on behalf of this former employee. Further, the board also voted that in it's view this payment was appropriate and served a public purpose/interest.  

October 6th we voted that.   (See the discussion and vote beginning at 3:17:41 of this video)

But the clerk never paid it.  

Only when she was asked about the delay, 90 days later,  did her office gave a weak set of excuses about why it wasn't paid.

The clerk didn't bother to tell our attorney or any of us she had a problem with the payment for 90 days until she was prodded on it.

Why not?

Well, many of us suspect it is all related to other pending issues she has with the BCC.  Nobody knows for sure except her, but it doesn't matter now, because last night the board once again had to reopen this messy affair and discuss it.  And again, the board made a 3-1 vote.

This time, though, the 3-1 was made to allow our attorney to utilize the court to compel payment of this item.  I predict a writ of mandamus will be filed, and hopefully it will be considered swiftly in the circuit court so the previously BCC approved, lawful and appropriate payment------at long last----- can be made.

As I said in the meeting last night---I believe to not make that payment is an attempt at usurping the board's power.  It isn't right.  We all have to stay in our lanes and if we don't--things devolve and fall apart and we become dysfunctional like a third-world banana republic or worse.

More to come on this.  Much more.

Case between Escambia County Commissioners and Clerk Pam Childers is transferred Once Again....

Recently the board of county commissioners of Escambia County filed a complaint in the circuit court for a writ of mandamus against the clerk of the court Pam Childers.  That complaint was moved to a judge in Okaloosa county on Tuesday.  That particular judge quickly recused.  Now, today, comes word that the case was reassigned to a different Circuit Court Judge in Okaloosa County.  We shall see what comes of this.  Some with whom I have spoken predict that all judges in the first circuit will recuse and this complaint will land in the 14th circuit, in Panama City.

But we will see what happens in the next several days......

 

Escambia Circuit Judges Out of Ruling on BCC Complaint Against Pam Childers

This order, below, was issued by Chief Judge John Miller this afternoon.  The complaint filed against Clerk of the Court Pam Childers on behalf of the BCC has now officially been transferred to Okaloosa County.

The blanket recusal anticipated in the order necessitated this action.

I'm told the Judge in Okaloosa County to whom this was transferred has now recused as well.  Already.

Some observers believe this will eventually have to be sent over to the 14th Circuit in Panama City.  We will see what happens.

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)....."