Franklin contends that Commissioner Battie never mentioned her name when making public meeting remarks about hoax, racist Facebook post
Following a nearly 30-minute-long hearing on Feb. 11, a 12th Judicial Circuit Court magistrate said she would issue a recommended order “in the very near future” on the City of Sarasota’s motion to dismiss a petition asking the court to require the City Commission to correct the minutes reflecting a Jan. 16, 2024 presentation by Commissioner Kyle Battie.
Magistrate Medisa Turner explained that she would review all of the materials that had been filed, as well as the arguments made before her that day via Zoom.
The case was assigned to 12th Judicial Circuit Judge Stephen Walker.
The plaintiff, Laurel Park resident Kelly Franklin — who is representing herself in the litigation — has pointed out that although Sarasota City Commissioner Kyle Battie showed his colleagues — and all of the people in the City Commission Chambers and those watching via TV or livestreaming — a racist “hoax post” that Battie indicated had appeared on Franklin’s Facebook page, he never cited her name. However, her name was included in the formal city minutes of that Jan. 16 2024 meeting.
During closing remarks on Feb. 11, Franklin told Magistrate Turner that the showing of the alleged Facebook post to the public “was done to attack the wife of a political candidate, and the doubt surrounding this incident … [affected] the outcome of the [November 2024] city election and continues to cast unfair aspersions on my reputation and, by extension, on my husband’s.”
Franklin’s husband, Ron Kashden, had filed to oppose then-Mayor Liz Alpert, who was running for re-election to the District 3 seat in 2024. Alpert won 53.18% of the votes cast in that race, the Sarasota County Supervisor of Elections Office reported the day after the election.
Franklin decided last year to file a Petition for Writ of Mandamus to try to force the City Commission to amend the Jan. 16, 2024 meeting minutes as a means not only of removing the resulting stain on her reputation, she told Turner, but also “to prevent this kind of stunt from ever being used against any other political candidate or their family.”
Franklin added, “There is no doubt that I ever published this [Facebook post].” The city has had forensic evidence of that for the past two years, she stressed.
The alleged Facebook post was a combination of a genuine post she had put on her Facebook page, showing photos she had taken of gorillas on a trip to Rwanda, plus a photo taken during the September 2023 ribbon-cutting for the formal opening of the Corona Cigar Co. on Lemon Avenue in downtown Sarasota, Franklin has pointed out.
Commissioner Battie, who is African American, and Tanya Borysiewicz, co-owner of the Corona Cigar Co., were visible in the ribbon-cutting photo. During his Jan. 16, 2024 remarks, Battie explained that Borysiewicz is half African American.
Jay Daigneault, the Clearwater attorney representing the city, said during the Feb. 11 oral arguments that the city has conceded, for the purpose of its Motion to Dismiss Franklin’s writ, that “the social media post is a hoax.”
Yet, he continued, if the case moves forward beyond the hearing that day, the city would engage in discovery to try to determine the source of the alleged social media post.
Daigneault also told Turner, “We don’t really need to get into the substance of that post, other than to say that it was distasteful, at the very least, and kind of ugly.
“[Franklin] contends that that social media post did not come from her social media page,” he added. For purposes of the hearing, he continued, the court legally was required “to take [Franklin’s] pleading as true,” even though the issue of the source of the social media post was not relevant to her writ. He did acknowledge that the source matters to Franklin.
Franklin told Turner, “I really resent the statement that [Daigneault made] that the city does not accept the objective truth that I had nothing to do with this. The city has accepted that truth since [the purported social media post] was originally presented [in the Commission Chambers].”
A failure to meet the legal standards
During the hearing, Daigneault contended that the arguments Franklin has made in calling for the amendment of the Jan. 16, 2024 meeting minutes do not meet the legal standards for such the type of petition she had filed with the court.
“As you know, your honor,” he pointed out to Turner, “ ‘mandamus’ is a rather extraordinary remedy” authorized by judicial rules of procedure.
He noted the three elements of such pleadings:
- “The first is that the petitioner must have a clear legal right to the relief requested.” He reiterated that point.
- The second, Daigneault explained, is that the respondent — the city in this case — “must have an indisputable legal duty to perform the requested action.” That duty must be “defined and concrete,” he added.
- “The third is that the petitioner must have no other adequate remedy” under the law.
Daigneault contended, “This petition fails on all three elements.”
First, he said, “There is no clear legal right to relief,” referencing a judicial president that he had cited in the city’s Motion to Dismiss the case.
Franklin based her understanding of the city’s duty,” he said, “on a handful of things.”
First, he noted her argument related to the state’s public records law. “[The state law] doesn’t discuss minutes at all,” Daigneault told the magistrate. “It doesn’t mandate that minutes be kept; it doesn’t mandate that minutes mean anything.”
The word “minutes” does not even appear in that statute, he stressed. “It certainly then cannot convey a clear legal right to the petitioner to have accurate minutes.”
The second element, Daigneault continued, involves Section 286.0111 of the Florida Statues. It and Section 119 are considered Florida’s Sunshine Laws, he noted.
Section 286 requires that minutes be “promptly recorded and … open to public inspection,” he added. ‘That’s it! That’s all that the statute requires.”
As he had explained in the city’s motion, Daigneault continued, Franklin essentially is asking “for the court to engraft onto a statute language that doesn’t exist in it.” He added, “It’s asking the court to say that this statute says [that any member of the public has the right] to accurate minutes of the City Commission meeting.”
Daigneault also told Turner that Franklin based part of her argument on the specifications in Robert’s Rules of Order, in concert with the city’s Rules of Procedure.
The City Commission has adopted Robert’s Rules of Order “as its governing rules of procedure,” he acknowledged. Yet, “Robert’s Rules simply does not require an accurate and complete recording of the minutes,” as Franklin alleges it does, he continued.
Neither Robert’s Rules of Order nor the city’s Rules of Procedure conveys “a clear legal right” to Franklin, he told Turner.
“In fact,” he added, Robert’s Rules of Order “really demonstrate why this petition can’t be granted.”
Daigneault read, with emphasis, from Section 48:15 of Robert’s Rules: “If the existence of an error or material omission in the minutes becomes reasonably established after their approval, even many years later, the minutes can then be corrected be means of a motion to amend something that previously [was] adopted.”
He added, “I can’t stress this enough: There is a material and dispositive legal difference between something that ‘shall be done’ and something that can be done.”
“The city here doesn’t dispute that it could, that it has the lawful ability to amend the minutes, but that ability resides within the City Commission’s discretion,” Daigneault said, “and it has declined to exercise that discretion.”
When discretion becomes a factor in a mandamus case, he pointed out, “The case is over.”
In regard to the duty of the city in accord with the Sunshine Laws, Daigneault said, discretion also is the key factor. Because the city has discretion in deciding to amend minutes, “Mandamus is not an appropriate remedy. … This is not something that the city is compelled to do,” he told Turner.
Judicial precedents — even from the Florida Supreme Court — have made clear that the city has no legal obligation to maintain or provide accurate information in public records, Daigneault said.
“If cities across the state of Florida were required to go back and ensure the accuracy of everything that was said at a public meeting,” he continued, “I can assure you now that local government in Florida would grind to a rather unceremonious halt.”
Turning to the third and final element of mandamus cases, Daigneault told Turner that he recognizes that Franklin “is understandably upset about what’s happened …” However, she already had filed suit against Commissioner Battie “for having made this presentation,” Daigneault said.
The judge in that case ruled in Battie’s favor, citing judicial precedents that give elected government leaders absolute immunity for actions they take in the course of their duties.
‘Fixing this is easy’
Taking her turn to make her argument, Franklin told Turner that her professional background is in publishing. “I’m about factually correct information and standing behind it,” she said. “And that’s why this particular attack against me for publishing information about the city government’s deliberations is so very painful.”
“Fixing this is very easy,” she pointed out. “If you inadvertently publish a falsehood in the background that I come from … you take responsibility, and you correct that error. And that’s all I’m asking for …”
Her mandamus petition, she explained, pertains to “a narrow question”: whether she has pleaded a “legally sufficient claim that the City of Sarasota is maintaining a materially inaccurate official record and has a ministerial duty under its adopted procedures, to correct it.”
Franklin explained, “The relief I seek is narrow: an order requiring the city to place an item correcting an admittedly erroneous authorship attribution in the Jan. 16, 2024 City Commission meeting minutes on a properly noticed agenda, using the city’s existing procedure for amending previously approved minutes.”
Franklin further contended that her petition met all three elements of mandamus, which Daigneault had cited.
During that January 2024 meeting, Franklin told Turner, Battie “displayed an image of a supposed social media post and voiced doubts 17 times about its authenticity … Other commissioners urged verification before drawing conclusions.”
She added, “The very next day,” the city received an exhibit she had included with her petition, which was “an unedited, time-stamped captioning record that contains no statement attributing the image to my social media page.”
Another exhibit she had provided to the court, Franklin continued, confirmed that city staff relied on that captioning in creating the minutes of the Jan. 16, 2024 meeting. “Yet,” she pointed out, “the published minutes state … ‘Commissioner Battie displayed a photograph from Kelly Franklin’s social media page,’ a phrase absent from both captioning and transcript and added later as narrative, not record.”
Franklin maintained, “Meeting minutes must truthfully reflect what occurred, and not falsely ascribe authorship of a nonexistent post after the fact.”
She cited Article 1, Section 24, of the Florida Constitution, which — she said — guarantees “the public’s right to be informed about official acts,” as well as Article 2, Section 8, which says, “Public office is a public trust.”
In discussing Section 286 of the Florida Statutes — as city attorney Daigneault had — Franklin stressed, “The attorney general explains that such minutes are a summary ‘reflecting the events of the meeting’ and that corrections must occur at a noticed meeting — not through undisclosed rewriting.”
She further emphasized, “Misstating authorship after the fact rewrites events — that’s the opposite of what minutes must do,” again quoting from Section 286 of the state Constitution.
Moreover, Franklin told Turner, “Section 839.13 of the Florida Statutes makes it a crime to falsify or alter official minutes, underscoring a non-discretionary duty of accuracy.”
Then she pointed out that, through the Privacy Act, “federal law recognizes heightened concern for accuracy in government records about individuals, and the Copyright Act explicitly protects against false attribution on moral grounds. These authorities reinforce a duty of accuracy,” she continued, “especially when the inaccuracy is a conceded false attribution to a named person.”
Franklin also explained the provision in Roberts Rules of Order for correcting “errors [that] sometimes find their way into approved minutes …”
That source, she stressed, is titled Robert’s Rules of Order, not “License to Lie.” She further maintained that Robert’s Rules of Order makes it clear that it is not at the discretion of a local government body that a known falsehood in the minutes be corrected.