New ‘Motion to Dismiss’ case already filed
Following approximately 45 minutes of discussion this week, the members of the Sarasota City Commission voted unanimously to continue paying the legal fees for Commissioner Kyle Battie in a defamation case that began in February.
On July 2, Richard Harrison, the Tampa attorney representing city resident Kelly Franklin, filed an amended complaint in the case, after 12th Judicial Circuit Court Judge Stephen Walker dismissed the original lawsuit in June.
The July 15 motion that City Commissioner Erik Arroyo made called for the city to keep paying Battie’s bills until Walker issues a new ruling in the litigation.
City Attorney Robert Fournier indicated that he expects Franklin will pursue an appeal with Florida’s Second District Court of Appeal if Walker again dismisses the case, based on a motion that Battie’s attorney filed on July 12 in response to the amended complaint. (See the related article in this issue.) Nonetheless, Fournier acknowledged, “It’s impossible to predict.”
It would be up to the commission at that point, Fournier noted, to decide whether to continue to cover the legal fees through an appeal.
Arroyo made clear his view that any local government body should agree to pay for an attorney for a member of that body against whom a complaint has been filed.
The only person to appear before the commissioners to address the legal fees issue on July 15 was Ron Kashden, Franklin’s husband.
Kashden emphasized that Battie never had expressed regret about his allegation during a Jan. 16 presentation, during a regular meeting, that Franklin had written a racist Facebook post attacking him and Tanya Borysiewicz, whom Battie had described as half African American and half Scottish. She is the co-owner of the Corona Cigar Co. in downtown Sarasota.
Franklin has maintained that someone created a “mashup” of a genuine Facebook post that she had created in December 2022, showing gorillas she had photographed on a trip to Rwanda, plus a photo showing Battie — when he was mayor — participating in the September 2023 ribbon cutting for the Corona Cigar Co. Borysiewicz was in the latter photo.
“Mr. Battie has not shown any remorse,” Kashden continued during his July 15 remarks to the commissioners. In fact, Kashden pointed out, during the July 1 board meeting, Battie said, “ ‘This is on her.’ To my ears.” Kashden added, “that’s synonymous with ‘She deserved it; she had it coming.’ These are chilling phrases,” he pointed out, “words that have been used to justify … horrible acts.”
Kashden also addressed the judicial precedents that Judge Walker cited in dismissing Franklin’s original complaint.
Walker wrote the following in his order dismissing that complaint: “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].”
Therefore, Kashden continued on July 15, Commissioner Arroyo, “from the dais, could accuse Commissioner [Debbie] Trice of stealing $1 million from the Rosemary District,” whose association she led prior to her November 2022 election to the board. Yet, Kashden pointed out, “Knowingly false and knowingly malicious statements made by a commissioner during these meetings might be questionably legal in Florida, but we all know what could be said is different from what should be said.”
Support for colleagues stressed
“It seems that the goal of all of this is to change the immunity that’s been given to public officials in Florida,” Arroyo pointed out during the ensuing City Commission discussion.
Battie also took the opportunity to address Kashden’s remarks regarding, as Battie put it, his “showing no contrition [and] throwing sound bites out or what have you …”
Battie indicated that his comments during his Jan. 16 presentation have been likened to conspiracy theorists’ statements that the Sandy Hook school shootings in December 2012 that left 20 children and six school employees dead never occurred.
Referring to Franklin and Kashden, Battie added, “They have unlimited resources [to pursue the litigation against him].” Their only resolution is to try to shame me and my name … and vilify [me] as much as possible.”
Moreover, Battie said, when he had made the comment on July 1, “ ‘It’s on her,’ ” what he meant was “The ball is in her court in terms of what she is going to do.”
He then reiterated his earlier point: “They have resources. They can stall out the city for who knows how long. … Then it gets to a point of rich against poor …”
At one time during the board members’ July 15 exchanges with City Attorney Fournier, Fournier indicated that the fact that the commissioners were asked to pay his legal fees from the outset implied that Battie did not have the resources on his own to cover those expenses.
After seconding Arroyo’s July 15 motion in regard to continuing to pay the legal fees, Commissioner Trice said, “I’m disappointed that this [litigation] has not been resolved yet. … I would wish … that the two parties would agree to mediation.”
Moreover, Trice told her colleagues, “I don’t know how anybody can prove ‘malicious’ [on Battie’s part, for the Jan. 16 remarks on racism in the city and the need for civility].” She added, “Maybe there’s malice on both sides …”
The options
Just as he had after Franklin filed her original complaint, Fournier told the commissioners on July 15 that they had three options regarding payment of Battie’s attorney’s fees: wait until the litigation had concluded and then pay the full bill; pay the bills as they came due; or specify a maximum amount of city funding for the legal fees, with notification provided to them if any overage occurred, so they could consider exceeding the figure they had set.
In February, they initially agreed to pay $15,000. As The Sarasota News Leader reported, the city’s insurance carrier agreed to cover $1,619.11 of the $26,619.11 that Battie’s attorney, Brian Goodrich of the Sarasota firm Bentley Goodrich Kison, had incurred. That figure was the balance left after the city met its $25,000 deductible.
The payment was a result of Judge Walker’s finding in Battie’s favor, Fournier explained at the time.
Fournier also had pointed out that the Sarasota City Charter requires the board to cover the legal fees of any commissioner sued over actions taken in an official capacity who prevails in the case, as Battie did.
When Vice Mayor Jen Ahearn-Koch asked on July 15 about the “downside to waiting till the end [of the litigation]” to pay Battie’s legal fees, Fournier told her, “It sort of depends on your point of view,” reminding her that the City Charter gives the commissioners discretion in how they pay.
She responded that it seemed the typical way of dealing with such a situation is to pay at the end.
“Those are all value judgments that you as commissioners have to make,” Fournier replied.
“[Battie] will still be represented, though. Right?” she asked Fournier.
Fournier and Mayor Liz Alpert, who is an attorney, explained that Battie’s attorney could decide to stop representing Battie, if the commissioners wanted to wait until the litigation had ended to determine what to do.
“It could be difficult for [Battie] to obtain counsel,” Fournier pointed out, without any indication that the attorney would be paid as the case continued.
If the board members agreed on a “wait-and-see” approach to paying the bills, Commissioner Arroyo added, that would be indicating they favored allowing one of their colleagues to defend himself or herself by paying potentially tens of thousands of dollars, “and then [the commissioner] would get reimbursed” if the ruling went in the commissioner’s favor. “I don’t think that’s a good policy to have,” Arroyo said.
Having read Franklin’s amended complaint, Mayor Alpert told her colleagues that she thinks the likelihood is strong that Judge Walker will dismiss it, as well. She also said she did not find it fair “to have someone with unlimited resources continue to pursue a suit and then we don’t even the playing field.”
Fournier noted his belief that the city’s insurance carrier would cover the city’s payment if Battie prevails again.
At one point, facing Ahearn-Koch, Arroyo said that if she were to be sued the next day, “Should you be forced to pay up all those fees, for months at a time … for acting within your public duty?”
What happened to Battie could happen to any of the other board members, Arroyo stressed.