County Response to Doug Underhill's Request for Payment of Legal Fees Filed This Morning....And it is Devastating

 

Asst. County Attorney Charles Peppler wrote this response that was filed in court this morning.  It was filed in response to a request through the court that the County be mandated and forced to pay for commissioner Underhill's legal fees in one of his numerous lawsuits.

This response eviserates the request from Doug's legal team that essentially sought to have the court force us to pay the fees and that this payment of fees was a foregone conclusion and essentially a ministerial function.

But repayment is not a ministerial function and not a foregone conclusion.

from the response by the county:

"FIRST AFFIRMATIVE DEFENSE

The AWM does not meet the legal requirements necessary to compel the execution of a ministerial duty, as the Board has the discretionary authority to deny Petitioner’s request for legal fees and costs according to the terms of the LR Policy.

SECOND AFFIRMATIVE DEFENSE

Petitioner has violated the LR Policy by not complying within ten days of having been served with a suit or having retained counsel and submitting the information required by Section D., Procedures, contained in the LR Policy, which is a mandatory obligation imposed on Petitioner.

THIRD AFFIRMATIVE DEFENSE

Petitioner is not entitled to seek reimbursement for legal fees and costs, as his conduct in using social media networking sites to interact with Scott Miller violated the County Commissioners’ Technology Policy, adopted on August 20, 2009, which was in force on the date that Petitioner made his online comments concerning Scott Miller. A copy of the Technology Policy is attached to this response as Exhibit 1 and incorporated by reference.

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CONCLUSION

The Alternative Writ in Mandamus must be denied as the Legal Representation Policy involves more than just a ministerial duty to grant attorney’s fees on a rubber stamp basis, but empowers the Board to apply its discretionary authority in reviewing a commissioner’s written request for attorney’s fees and costs. The LR Policy mandates that a commissioner comply with its procedures to obtain publicly-funded legal representation. Moreover, Petitioner has violated the County’s Technology Policy by discussing County business on a Facebook page with a constituent. Based upon the foregoing reasoning and cited authorities, the Alternative Writ in Mandamus must be denied.

Respectfully submitted,

Escambia County Attorney's Office

221 Palafox Place, Suite 430

Pensacola, Florida 32502

(850) 595-4970

/s/ Charles V. Peppler

By: Charles V. Peppler, Deputy County Attorney"

Read the document here.

Clear and Convincing Evidence: A High Standard to Meet

As several of us watch the progression of a case involving alleged misconduct by a former EMS employee as it hurtles toward a DOAH administrative hearing---some interesting facts must be noted.

First of all, this hearing before a hearing officer is an administrative, civil procedure.  Some folks on some chat sites don't know this, they want this former employee's head on a plate.  They think he is up on criminal charges!  

But no, this is a civil, administrative matter.  It is serious, it is important, but it is a civil matter.  

And the question for the hearing officer will be fairly basic.  Is there clear and convincing evidence that this individual did what has been alleged?

And because this individual holds a state certification, he will have to answer to these allegations in one of the following four ways:

  

--Formal hearing before the Division of Administrative Hearings (contest the charges)

--Informal hearing before the board (no dispute)

--hearing waived before board (no dispute)

--settlement by licensee to board for approval

(See the process flow chart, below.)

In perusing the settled case files and reading a couple of interesting recommended orders like this one----one thing becomes exceptionally clear very quickly to even the most casual observer: proving something to the standard of clear and convincing isn't a slam dunk.   Especially if there are facts in dispute, if it is a "he said, she said" issue....And when you are talking about someone's livlihood---their state license---it has to be a high bar to meet to prove even the most sensational allegations.

In speaking with a lawyer I know and trust about the difficulty in proving something to this standard--when issues are contested and with dualing expert testimony submitted, the reply was short and simple  "Jeff, it will be difficult if not impossible to get to clear and convincing with dualing medical experts on complex subjects of contention."  Another attorney I asked put it a bit more bluntly  "It would be an expert vs. expert smack down.  That [clear and convincing] is a very high standard to meet."

So while anyone can throw a bunch of charges against the wall to see what sticks----and while some of these allegations can be framed in such a way to make someone look terrible----at the end of the day and at the end of the process, even these tremendously scary sounding allegations have to be proved.  And the burden of proof in this instance must be clear and convincing.

So it will be a Doctor vs. Doctor game of rock em' sock em' robots.  The hearing officer will read one doctor's "charge sheet" and see another doctor refute every single allegation in his written counter.  Each and every one.  So with two well qualified doctors completely disagreeing--how the heck will the hearing officer ever meet the "clear and convincing" standard to find this employee violated the state licensing regulations he is alleged to have violated? 

But then the really interesting timelines will come in that make getting to clear and convincing even more difficult.  The timing of the harrassment complaint is devastating to the doctor making allegations about the employee.  This is because these "allegations" from the doctor against an employee were made AFTER the harrassment complaint was made by the employee against the doctor.  And that timeline will be easily illustrated and backed with proof. 

But then the most obvious of obvious, million dollar questions will most assuredly be asked by the DOAH hearing officer once he gets through with the dualing doctor testimony:  

"If you allege this particular employee was so inept, dangerous, and reckless in his conduct, why did you not counsel him, discipline him, or restrict his privileges to address these alleged shortcomings until AFTER you found out he filed a harrassment complaint against you?"  "Furthermore, why did you save up and document all of these purported incidents where this medic, according to you, acted with recklessness jeopardizing patient safety--but during this same timeframe where you gathered these allegations you never once recommended he be disciplined nor conseled--and you NEVER restricted his privileges or reported this to DOH?"

Throw in the emails and initial HR documents that point to retaliation, or at a minimum the appearance of retaliation, on the part of the doctor making these allegations against the employee-----and there appears to be no pathway to getting the allegations against this medic sustained to the level of "clear and convincing."   

And by the time this thing even goes to DOAH, there will likely be a huge, 6-figure settlement paid to this employee by the county that will be out there in the domain of public records that can and will be included in the hearing--complete with transcripts.  And these will only help this employee.  

I predict he clears his name and defeats these allegations and charges, because clear and convincing is a high standard to meet. 

62nd Coffee with the Commissioner This Wednesday Morning 6:30-7:30 AM

 

Join us for our 62nd Coffee with The Commissioner event this Wednesday, June 16th, 2021 from 6:30-7:30AM.

We will have County Administrator Janice Gilley, Escambia County Emergency Manager Eric Gilmore, and Escambia County Information Technology Director Bart Siders on the call. Janice will give an update on county happenings, Eric will give an update from Public Safety, and Bart will discuss the County's proactive approach to network security.

Our special guest on the webinar will be Dr. Eman El-Sheikh, who is Associate Vice President at the University of West Florida. She leads the Center for Cybersecurity and is also a Professor of Computer Science at UWF. With Colonial Pipeline, JBS, the City of Pensacola, and more recently the city of Mobile all being targeted by cyber-criminals--this will be a discussion about what we can do to protect our networks and how the field of cybersecurity is growing in our area. Dr. El-Sheikh will highlight what the UWF Center for Cybersecurity is doing to support cybersecurity awareness, education and workforce development across public and private sectors, and current challenges and opportunities in this field. Please join us for this great and very timely and relevant discussion!

To join the meeting, go to the following Facebook page at 6:30 a.m. on Wednesday, March 10 and watch the live stream:

www.facebook.com/CommissionerBergosh/.

Residents and citizens are encouraged to send virtual questions and comments they would like to discuss with District 1 Commissioner during the event through Facebook or email to district1@myescambia.com

Another BIG Settlement Coming in Public Safety. This One DID NOT Have to Happen Though.............

 This settlement, below, will be on next Thursday's agenda for consideration by the Escambia Board of County Commissioners.

The conduct that led to this issue was a series of blunders by management--to include an abject failure by administration to honor an employee's basic due process rights.

There was also an allegation of harrassment against this employee that the county did NOT properly investigate and settle as stipulated in board policy.

While this settlement, if approved by the board on Thursday, will be paid 100% by an insurance policy we carry--nevertheless this will impact our rates going forward in a major way.   And this employee did deal with the stress of the whole ordeal.  He told me, in October/November of 2019 before it went to court "I don't want to sue the county--I just want to get back to work and work for Escambia County Public Safety!"  But unfortunately that did not work out that way.

And this all came on the heels of the other harrassment case we settled in Public Safety just a year earlier!

Saddest and most disappointing of all---this never even had to go to the courts.  It could have (should have) been addressed properly in November of 2019.  But some HR and admin folks didn't listen and couldn't see what was coming.  Even when they were told, even when they were shown.  Nope. They, instead, got BAD advice from a guy that did not and does not even work for Escambia County, a " healthcare consultant" of sorts.  His advice on this was about as good as the Titanic's navigator in the North Atlantic......

And now, we are going to have to swallow ANOTHER big settlement in Public Safety.......due to botched managament and oversight.  I can't wait to have this and other related discussions this coming Thursday.

What Could This Mean Though?

 

A fairly short and to the point email was put out by our attorney yesterday afternoon--see it above.  But it stood out to me as the subject of the email is/was a former EMS employee who resigned years ago.

And after this employee left, a series of follow on administrators have characterized what this individual was "alleged" to have done in very, very sinister terms.  I never got into the weeds of what he was accused of doing, as he quit and moved on, and the subsequent charges that were leveled against him continued on in the courts.

So this email notice, here above, came as somewhat of a surprise to me.  Again, when the narrative I got (along the lines of) "Oh man, it's bad.  It's really, really bad.  Oh boy, this is some bad, bad stuff"  is juxtaposed with how the thing actually got resolved----it makes one think that the seriousness of the initial narrative may have been exaggerated?  Or did the prosecution run into a snag?  I mean, how does "the sky is falling--commissioner" turn into two misdemeanor charges (to which "no contest" is pled) and adjudication is subsequently withheld??

Wow.  Wonder if this is the shape of things to come with some other, upcoming high profile cases which I was told were "extremely serious!!"...........guess we will all find out soon enough.

Are We in Junior High School Again?

Using hearsay to create a strawman:  Are we back in Junior High School Again?

Last evening (after I went to bed) an email was sent to commissioners apparently leveling some accusations at three of us.  It was hearsay that appears to have been put into an email in order to create a record which, in turn, will no doubt make its way on to various chat sites later this morning...

But hearsay is just that.  Unreliable, unverified, unsubstantiated statements that rightfully elicit doubt.  That's why when judges instruct juries, they give them a primer on hearsay--how it is not to be considered except in very rare, exceptionally unusual circumstances.  (This hearsay at issue doesn't rise to this level)

Often, as I suspect will be the case here in this instance, this sort of hearsay is used to create a strawman, which is then subsequently used to attack the purported subject of the hearsay.  See how that works?

Certain media outlets have perfected and vaulted the informal fallacy of the "straw man" into an artform.  Local facebook chat sites and a dozen or so commenters also revel in this misinformation.

So this latest one, this email from 9:00 last night, suggests I said something disparaging about the Clerk of the Courts.  This is not true, I deny this fully, categorically.   it's a lie.  It's hearsay.  

The genesis for this hearsay email (sent out 4 full days after the meeting, no less) was a discussion on the 401(a) plan at last Thursday's meeting.  FULL DISCLOSURE:  I do not take this 401(a) plan, I have not signed on to this plan, it does not impact my FRS account at all.  I was vested in the FRS pension plan at the end of 2011 due to my service on the school board, before the FRS changed vesting timelines to 8 years after 2011, and before anyone else currently on the BCC Dais held any elected office.  So it's not about me, that's number one.

Number two is this:  The team on that dais, the five of us, the deciders, the BCC--we had already--- as a team ----talked through the issue and decided obtaining a written legal memorandum before proceeding was the way we were going to go.  Our debate on this topic was over, it ended when commissioner Barry pulled the motion and we moved forward in the agenda.

ONLY THEN did the clerk speak up.  After the debate had ended.  After the angst, the debate, and all discussion.  After the smoke cleared.  It was over.

And by the time she did speak, anything she added was superfluous to the discussion, anything she felt like saying was already a MOOT POINT, as again, the leadership team, the BCC had already as a group decided on a course of action.

Chairman Bender was being congenial in allowing her to be recognized after the issue had passed, in a very gracious gesture.  But she is the clerk, she is not and was not a decider on this issue.  If she disagrees with the attorney's opinion, she as clerk could seek her own opinion.  If the board votes for something for which she has a disagreement--she has certain methods at her disposal with which she can respond.

But chiming in after an agenda item was dropped and after no vote was taken and AFTER a leadership team decision was made....that WAS completely unnecessary.

First Half of Escambia's American Rescue Plan Allotment is in the Bank!

 What amounts to half of our full allotment of American Rescue Plan funds has arrived and is in the County's Bank Account.  Commissioners were informed of this yesterday.

A discussion of uses and allocations of this nearly $31 Million dollar cash infusion will occur at an upcoming Board of County Commissioners meeting.