Judge in case had questioned whether new filing could ‘cure’ problems that led to his dismissing original
On July 2, following through as she told the Sarasota City commissioners this week that she would, city resident Kelly Franklin had her attorney file an amended defamation complaint against Commissioner Kyle Battie.
The action, allowed by a 12th Judicial Circuit judge in ruling for Battie following a hearing on the initial complaint, focuses on a Jan. 16 presentation that Battie made to the City Commission about racism. He used what Franklin has called a “Hoax Post” that day. It combined a post with photos from her Facebook page and a separate photo taken during the September 2023 ribbon-cutting ceremony for a downtown Sarasota business.
Battie contended that the post was a racist attack on him and the co-owner of that downtown business, the Corona Cigar Co. (See the related article in this issue.)
In her amended complaint, Franklin’s attorney, Richard A. Harrison of Tampa, includes details about Franklin’s engagement with City of Sarasota issues, including her criticism of actions involving the Corona Cigar Co., which is located on North Lemon Avenue.
The amended complaint points out, that “beginning around the summer of 2023, Franklin had been a vocal critic of [the] business
for its operation of an outdoor café on the City-owned sidewalk in front of its bar in apparent contravention of the City’s zoning code and the City’s apparent indifference to those ongoing violations.”
Moreover, the complaint says, “Franklin also criticized Battie’s cozy relationship with the Corona Cigar Company and its owners.”
At one point on Jan. 16, Battie asked the co-owner of the business, Tanya Borysiewicz, whom he described as half African American and half Scottish, to join him at the table facing the commission dais as he made his remarks.
Borysiewicz told the commissioners that her assistant had received in the mail the alleged Facebook post attributed to Franklin. The assistant first had crumbled it and thrown it away, Borysiewicz added, before reconsidering and showing it to her.
“And this here is equating me and her to a primate, a gorilla, an ape, a monkey. … This is on a social media page,” Battie said as he showed the crumbled paper to everyone in the Commission Chambers and those watching on TV or via livestreaming.
Addressing his colleagues, Battie emphasized, “We should not be subjected to this. I should not be subjected to this. … This is sick, abhorrent, egregious.”
He never named Franklin, but her image and name at the top of the alleged Facebook post were clearly visible.
Franklin’s amended complaint also points out, “Throughout the summer and into the fall and winter of 2023, Franklin was critical of the ongoing issue with the Corona Cigar Company’s outdoor operations and with efforts within the City government to amend its zoning code in a manner that Franklin (and others) perceived would accommodate the Corona Cigar Company’s sidewalk café operations to the detriment of the residents of Sarasota.
“The City’s consideration of certain zoning changes to benefit the Corona Cigar Company continued through and into February 2024, and resulted in the adoption by the City on February 20, 2024, of Ordinance No. 23-5502 and Ordinance No. 23-5503, effecting amendments to the City’s zoning code perceived by the Corona Cigar Company as beneficial to their operations on the public sidewalk,” the amended complaint continues.
“The conduct of Battie that forms the basis of this [complaint] occurred against this backdrop of Franklin’s vocal opposition to the operations of the Corona Cigar Company and the City’s pursuit of zoning changes to accommodate those operations,” the complaint stresses.
As he did in Franklin’s original complaint, filed in early February, her attorney, Harrison, included in the amended document the following in regard to Battie’s remarks on Jan. 16. “ ‘Lest anyone present at or watching the meeting fail to make the intended racist connotation of the Hoax Post, the Mayor summed it up: “It was a shock that anyone would post something like that and not realize that that was inappropriate to ever equate somebody who is black to a gorilla.” ’ ”
The CityPAC issue
Moreover, the amended complaint points to Franklin’s membership on the Steering Committee of CityPAC. The document describes that organization as “nonpartisan municipal political committee formed to identify and support candidates for public office in Sarasota who will seek to implement resident-friendly positions on issues relevant to a livable city, to advocate for issues of importance to residents of the City, and to inform voters about issues and candidates who are resident-friendly.”
During his Jan. 16 remarks, Battie also presented on the overhead projector a list of the advisers for CityPAC, which regularly publishes summaries of City Commission action following meetings. Those newsletters routinely use symbols for sun and storms to rate the individual commissioners on their decisions during the meetings.
At one point, Battie asked Mayor Alpert for “one moment again,” and then proceeded to refer to Franklin — without naming her —as the “publisher of this whatever it is, CityPAC.” He continued, as shown in the city staff’s close-captioning of the meeting, “Do these people, does she represent all of them?” referring once more to Franklin. “People that we know in this community, is this what we’re about? Sick.”
“[T]his is sick,” Franklin wrote in an email sent at 10:07 a.m. on Jan. 16 to Donna Moffitt, chair of CityPAC, City of Sarasota public records show. Franklin copied the commissioners, the CityPAC Steering Group, City Manager Marlin Brown, City Auditor and Clerk Shayla Griggs and Eileen Normile, a former city commissioner who also is on the organization’s Steering Committee.
On Feb. 5, during the citizens comments portion at the start of the City Commission meeting that day, Moffit, who identified herself as the CityPAC chair, told the commissioners, “Placing the names of CityPAC advisers on the overhead projector without any evidence was defamatory and profoundly disrespectful to both the members of CityPAC and the broad and diverse public you are sworn to protect and to serve.”
Moffitt also pointed out, “In Sarasota, for the last three years, any resident who speaks or questions something a developer desires is dismissed often … in ways meant to insult, demean or polarize along racial, gender or age-based lines. That, plus the visible and tangible impacts of breakneck growth and poor planning, are why CityPAC was formed …
“Clearly,” Moffitt continued, “some folks were uncomfortable with the daylight [CityPAC’s publications have] brought to the dynamics of decision making at City Hall and chose to perpetuate a vicious and divisive hoax that harmed everyone who witnessed it, as well as our social fabric.”
Reasserting that Franklin was not associated with the ‘Hoax Post’
Attorney Harrison reprised another portion of Franklin’s original complaint in the amended one, stressing that the “Hoax Post” Battie presented on Jan. 16 “has never existed. It is a fabrication.”
Further, he included in the new complaint the argument he made in the original, under the heading, “Factual Background – Battie’s Intentional and Well-Orchestrated Attack.”
Harrison begins that section as follows: “Battie’s vicious personal attack on Franklin was not a spontaneous, heat of the moment response to what Battie genuinely perceived to be a racist post.
“To the contrary,” Harrison continues, “this was an event that Battie plotted, planned, and coordinated for almost a month before delivering his scripted performance on January 16, 2024.”
Using texts received through a public records request, Harrison points out that Battie “received the Hoax Post from Borysiewicz [of the Corona Cigar Co.] on December 19, 2023.” Later that day, Harrison continues, “Borysiewicz messaged Battie,” asking him to call her. “Later the same day, at 9:38 p.m., Borysiewicz texted Battie numerous other images pulled from Franklin’s personal Facebook™ page,” which Harrison provides in the complaint.
Among them, he notes, is “Franklin’s original gorilla collage with Franklin’s original text …”
Then Harrison writes, “To be clear: by the end of the day on December 19, 2023, Battie had in his possession both the Hoax Post and Franklin’s original, actual, completely innocuous post with the identical text as was used in the Hoax Post.
“On December 20, 2023, for reasons that are unknown to Franklin as of the date this Complaint is filed, Battie transferred certain photographs, including Franklin’s original gorilla photo gallery, from one of his phone numbers to another phone owned and controlled by him.
“On January 2, 2024,” Harrison adds, “the Commission held a regularly scheduled meeting. Battie made no mention of the Hoax Post or of anything related to it.
“On or about January 10, 2024,” Harrison points out, “Battie requested that two items be added to the agenda for the regularly scheduled January 16 Commission meeting.
“The first,” he notes, “was a new business item relating to ‘Comprehensive Review of City of Sarasota Zoning Code.’
“The second was a new business item relating to ‘Civility, Respect and Rhetoric,’ ” Harrison adds, providing a copy of the memo that City Auditor and Clerk Griggs sent to the commissioners on Jan. 10, “documenting Battie’s requested agenda changes …”
“Contrary to custom and standard operating procedure of the Commission, Battie did not furnish any supporting documents or other backup materials to the City Clerk to be included with the meeting agenda package for distribution to the City Commissioners with respect to either of these requested new agenda items,” Harrison points out.
“On January 15, 2024,” Harrison writes, “Borysiewicz, who lives in Orlando, texted Battie that ‘I will be flying into Sarasota around 5:30. Do you want to get together to go over this situation?’ She added, ‘I don’t want to turn up blind.’ ”
Then Harrison includes a copy of another text that Battie sent Borysiewicz at 6:21 p.m. on Jan. 15. That said, “At Corona now.”
Continuing to contend Battie’s actions were outside scope of official duties
In his June 12 ruling for Battie in the Franklin case, Circuit Judge Stephen Walker concurred with arguments that Battie’s attorney, Brian Goodrich of the Bentley Goodrich Kison firm in Sarasota, had made in a Motion to Dismiss the complaint.
Walker wrote, “As far as public officials are concerned, [i]t seems to be well settled in this State that words spoken or written by public servants in judicial and legislative activities are protected by absolute privilege from liability for defamation. However false or malicious or badly motivated the accusation may be, no action will lie therefore in this State. Nor is it questioned that such absolute immunity in this State extends to county and municipal officials in legislative or quasi-legislative activities as well as to members of the State Legislature and activities connected with State legislation [emphasis added].”
Walker pointed out that Franklin’s attorney, Harrison, had contended that the Grady decision was not the controlling factor in Franklin’s case because, “Battie was acting beyond the scope of his employment or function as a City Commissioner …”
However, Walker continued, “The facts in Grady are important to illustrate the court’s [ruling].” The appellant in that case, Walker noted, was John L. Grady, “the developer of Suncoast Estates, a residential development in Lee County. Appellee, Wade Scaffe, served as a member of the Lee County Board of County Commissioners. The issue before the Commission was an application by a Suncoast Estates homeowner for a permit allowing her to move a mobile home onto her lot. After the Commission concluded the vote on that permit request. and wholly unrelated to that matter, Commissioner Scaffe made derogatory and defamatory statements about Mr. Grady,” Walker explained.
“Grady asserted that Commissioner Scaffe’s remarks were not germane to any matter then being discussed by the County Commission; that any discussion concerning Suncoast Estates had terminated and the Commission had moved on to other business,” Walker pointed out. “Mr. Grady’s position aligns with the argument [Franklin] now asserts in her Complaint and the Response [filed by attorney Goodrich on Battie’s behalf].”
Nonetheless, Harrison includes another section in the amended complaint that appeared in the original: “At all times material to this action, Battie was acting beyond the scope of his employment or function as a City Commissioner, in bad faith and with malicious purpose and in a manner exhibiting wanton and willful disregard of Franklin’s rights.”
Harrison adds, “Neither the City Commission nor Battie has any lawful or legitimate governmental or legislative function that involves monitoring, policing, regulating, analyzing, calling out, or legislating over the private speech of citizens — even speech that is hurtful or offensive, or that would full under what is colloquially referred to as ‘hate speech.’ Such speech is fully and robustly protected under the First Amendment.
“Thus,” Harrison contends, “the Hoax Post, taken at face value as presented by Battie, was outside the scope of any lawful scope or function of either the City Commission or Battie, as an individual city commissioner.
“As such,” he writes, “Battie is personally liable … for his actions.”