City commissioners agree to pay balance of Battie’s legal expenses in defamation case

Decision on authorizing further funding delayed until next meeting this month

Commissioner Kyle Battie. File image

It took about an hour and 15 minutes — with public comments from four people — before four members of the Sarasota City Commission on July 1 voted unanimously to pay the balance of the legal fees “due right now,” as Commissioner Erik Arroyo phrased it, in a defamation case involving Commissioner Kyle Battie.

Commissioner Debbie Trice seconded the motion.

Battie was unable to participate in the vote because of the conflict of interest, City Attorney Robert Fournier noted, though he added that Battie had the right to engage in the discussion that afternoon.

Prior to the vote, Battie thanked his colleagues, emphasizing that he had not made any public comments about the case, including refraining from speaking with members of the news media covering it.

Nonetheless, Battie said, he and his family both had been criticized in public. “I’ve taken hits,” he added. “I’ve been called names … pretty much like a public lynching … This comes with the territory,” he said, but “It’s shameful …”

Referring to Franklin’s and her attorney’s plans to file an amended complaint in the case, Battie pointed out, “If she continues to pursue this, this is on her. … I’ll continue to go on and stand my ground, as I’m sure they probably will, as well.”

An item will be included on the City Commission’s July 15 agenda in regard to whether the board will authorize any further payments in the 12th Judicial Circuit Court case, the commissioners’ agreed. (See the related article in this issue.)

Fournier had included in the agenda packet for the July 1 session copies of the four invoices that he had received from Battie’s attorney, Brian Goodrich, with the Bentley Goodrich Kison firm in Sarasota. They added up to $26,619.11. However, since the commissioners on Feb. 5 had authorized the payment of fees up to $15,000, Fournier noted that that decision left a balance of $11,619.11.

He also explained that he had talked with the chief claims officer for the city’s insurance carrier and had received affirmation that the company would pay the $1,619.11 balance after the city’s $25,000 deductible were covered.

Although the commissioners did not formally vote on whether city staff should seek the insurance carrier’s coverage for the rest of the fees, City Manager Marlon Brown pointed out, “All we have to do is show we have paid the $25,000,” for the company to pick up the remaining $1,619.11.

“That could be determined administratively,” Fournier concurred.

Commissioner Erik Arroyo. File image

Arroyo had argued, for the sake of the board members’ investment of time that day, that they go ahead and authorize initial funds for Battie’s continuing legal expenses in the case. However, Vice Mayor Jen Ahearn-Koch and Commissioner Debbie Trice were reluctant to proceed with that step, even though Kelly Franklin, who filed the defamation case against Battie in February, had made it clear in public comments that day that her Tampa attorney, Richard A. Harrison, planned to file an amended complaint against Battie on July 2.

An attorney herself, Mayor Liz Alpert engaged in a discussion with City Attorney Fournier at one point about the fact that Circuit Judge Stephen Walker, who is presiding over Franklin’s complaint against Battie, had dismissed the case against Battie “without prejudice,” which meant that an amended lawsuit was possible.

Even though Walker took that step, Alpert noted language in his order that she found indicative of his belief that Harrison, Franklin’s attorney, would be unable to provide sufficient support for a new argument that could prevail in the face of the judicial precedents that Battie’s attorney, Goodrich, had used in his Motion to Dismiss the case.

Walker wrote, “It may be unlikely that [Franklin] will be able to cure the defects addressed [in Walker’s June 12 ruling]. Still,” Walker added in his order, “prudence dictates that dismissal without prejudice is the appropriate course.”

Fournier told the commissioners, “They’ll have to figure that out,” referring to new arguments that Franklin and Harrison might include in the amended complaint.

“I think the judge was just being extremely cautious by allowing them to file an amended complaint,” Alpert said.

Fournier responded, “I think that at least nine out of 10 times,” a defendant who loses in a ruling on the initial round in a lawsuit gets an opportunity to amend the complaint.

City Attorney Fournier did remind the commissioners this week that the City Charter calls for the commission to pay the legal fees of any member of the body who has been found to have been acting in his or her official capacity “while serving a public purpose.”

In early February, City Attorney Robert Fournier discusses the commission’s options for covering Commissioner Kyle Battie’s litigation expenses as City Auditor and Clerk Shayla Griggs listens. File image

However, given Franklin’s intent to file an amended complaint, Fournier continued, the potential exists that the ultimate decision in the case could change. Therefore, he told the commissioners, they could await the resolution of the case before deciding whether to cover any additional legal fees beyond the $15,000 they authorized in February.

Commissioner Trice suggested that if the board members waited until their July 15 meeting to decide whether how to handle further legal fees, they at least would have had an opportunity by then to learn what new arguments Franklin’s attorney had made in the amended complaint.

Walker had written in his June ruling for Battie, with emphasis, “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].”

Further, Walker explained that the Second District Court of Appeal relied on the judicial precedent that the 1970 Florida Supreme Court set in Hauser v. Urchisin. The Supreme Court, Walker added, “rejected the proposition that if an officer in a legislative department of government departs from official duty and indulges in defamation statements wholly irrelevant and foreign to the scope of his duties, he is not entitled to protection [emphasis added].”

The basis for the litigation

Franklin’s defamation complaint was a reaction to a Jan. 16 City Commission presentation that Commissioner Battie had made, in which he showed everyone what she attested was a “mashup” of one of her Facebook posts, which included photos she had taken of gorillas during a trip to Rwanda, and a photo showing Battie and the half African American female owner of the Corona Cigar Co.’s ribbon cutting ceremony in September 2023, when Battie was mayor.

Battie’s Jan. 16 remarks focused on continuing racism in the city and the need for civility.

In her July 1 public comments to the City Commission in regard to the legal fees issue, Franklin pointed out, “Public records requests prove Kyle Battie received my Rwanda photo, along with the faked mashup, from the bar owner in mid-December.

“Yet,” she continued, “suddenly, on January 10th, after the notice for the January 16th meeting had already been published, a blind item was rushed onto the agenda.

“The offensive image was not included in the meeting backup [materials],” Franklin pointed out.

“No attempts were made to verify its authenticity before deploying it as a prop in a perverse political theater,” she added.

“Because the publication occurred in city chambers during a City Commission meeting,” she continued, “a Circuit judge has found that a decades-old Florida Supreme Court ruling potentially creates absolute immunity for any elected official in Florida to falsely vilify a critic.

“We, the people,” Franklin said, “cannot afford to allow this intentional and malignant abuse of power to manufacture a ‘license to lie’ loophole for municipal officials. And that is the precedent that will be set if this ruling is allowed to stand,” she added.

This is a portion of an invoice that attorney Brian Goodrich submitted to the city, regarding his representation of Commissioner Kyle Battie. Image courtesy City of Sarasota

A ‘new twist’ in regard to Battie’s legal fees

Yet another issue that Fournier explained to the board members on July 1 was that Battie’s attorney, Goodrich, had filed what is called an “offer of judgment” to Franklin.

“This is sort of a mechanism,” Fournier said “to set you up to claim attorneys’ fees” if Battie ultimately prevails in the litigation.

Fournier had learned of the offer in an email from Franklin’s attorney, Harrison.

Since the city has been paying Battie’s legal fees, Fournier pointed out, the city could request the reimbursement of those payments, if the final judgment is in Battie’s favor and Goodrich files a request with the court for Franklin to cover Battie’s attorney’s fees.

Circuit Court records show that Goodrich filed the Offer of Judgment on the same day that Judge Walker ruled for Battie. Goodrich’s formal notice gave Franklin 30 days to respond.

The Miami law firm Bernstein & Maryanoff explains, “An offer of judgment is a formal proposal to resolve a civil claim. One party makes the offer to the other as a proposal to formally settle the case. The offer is legally binding if the other side accepts it. If a party refuses an offer of judgment, and they receive a considerably worse outcome at trial, the party may owe the offering party reasonable attorney fees.”

During his remarks at the outset of the July 1 agenda item, Fournier told the commissioners that Harrison, Franklin’s attorney, had sent him a letter on June 26, asking whether Fournier were aware of Goodrich’s filing of that offer. Harrison characterized the offer as “nominal.”

Attorney Richard A. Harrison. Image from his law practice website

Moreover, Harrison had asked Fournier, “[D]oes the City of Sarasota now intend to pursue Ms. Franklin for the recovery of legal fees it might incur in defending Battie in this action, or allow Battie to do so on the City’s behalf?

“If so,” Harrison pointed out, “this would represent a dramatic turn of events given that Ms. Franklin has never made a claim against the City and has gone out of her way to make clear that her claims are against Battie, individually.”

Fournier emphasized to the commissioners that no one with the city had authorized Battie’s attorney to pursue the offer of judgment and that the commissioners were unaware of the action.

In public comments during the discussion, Harrison told the board members, via Zoom, that they “should not allow Battie to put the city in direct conflict with a citizen …”

At one point, Vice Mayor Ahearn-Koch asked Commissioner Arroyo to include in his motion to pay the current legal fees balance the condition that the city would pay the remainder of Battie’s legal fees if Battie withdrew the offer of judgment, but Arroyo refused to do so.

Commissioner Trice also suggested that the board members take that step. She characterized the potential that Battie’s attorney would seek the reimbursement of legal fees from Franklin as a complication in the matter.

Arroyo countered that he saw the potential reimbursement of the legal fees as a means of deterring lawsuits again elected officials. The failure to make an effort to win back the fees, he added, would be “equally unfair to our taxpayers.”

Moreover, Arroyo stressed that a refusal to pay a commissioner’s legal fees would be “a terrible precedent to set.” He likened it to “hanging [city commissioners] out to dry.”

Arroyo initially made a motion for the board members to authorize payment of the $11,619.11 owed to Goodrich, Battie’s attorney, on the condition that Battie would reimburse the city if he prevails in the litigation.

However, after Fournier suggested that he make the reimbursement issue part of a second motion, Arroyo proceeded with the motion that ended up winning the 4-0 vote. Arroyo did not proceed to make a separate motion regarding the reimbursement issue.

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