Sarasota city manager expresses hope that City Commission will cover legal fees if resident follows through with litigation against Commissioner Battie

Attorney for resident alleges Jan. 16 presentation had been planned for a month

Editor’s note: This story was revised early in the morning of Feb. 2 to reflect the fact that Robert Bartolotta was the Sarasota city manager when a 2012 investigation into potential wrongdoing at City Hall was launched.

Sarasota City Manager Marlon Brown. Image courtesy City of Sarasota

Sarasota City Manager Marlon Brown has told the city commissioners via email that he hopes they will consider supporting Commissioner Kyle Battie if a resident Battie accused of taking racist action against him pursues litigation against him, as her attorney indicated in recent correspondence to Mayor Liz Alpert, Brown and City Attorney Robert Fournier.

In the meantime, Tampa attorney Richard A. Harrison, who is representing the Laurel Park resident, Kelly Franklin, has contended the following — with emphasis —in a Jan. 28 email to the city commissioners, Brown and Fournier: “BATTIE HAD PLANNED THE JANUARY 16 ATTACK ON MS. FRANKLIN FOR NEARLY A MONTH.”

Harrison provided a timeline of events and links to documents that he and his team had uncovered, he wrote, adding that the materials support Franklin’s assertion that she was not involved in creating the alleged racist Facebook post that Battie showed his colleagues during their Jan. 16 meeting.

Further, Harrison acknowledged that the details “will no doubt come as a shock to many of you and may well impact decisions that you are being asked to make on behalf of the City as soon as your next meeting on February 5.”

On Feb. 5, when the commissioners conduct their next regular meeting, City Attorney Fournier is scheduled to discuss with them how they wish to proceed in regard to the Jan. 16 incident, if a lawsuit is filed. That item, IX.4, is part of the Unfinished Business on the Feb. 5 agenda.

The Agenda Request Form for the discussion says, “The prospect of a lawsuit against an individual commissioner raises the issue of the responsibility for payment of attorney fees to outside counsel to provide a defense. Article XI, Section 1 of the City Charter addresses the indemnification of individual City Commissioners by the full City Commission for liability arising out of the performance of their duties on behalf of the City of Sarasota.”

As The Sarasota News Leader has reported, during the commission’s regular meeting on Jan. 16, the alleged Facebook post that Battie produced appeared to have come from a page maintained by Franklin. It included a photo from the September 2023 ribbon-cutting to celebrate the grand opening of the Corona Cigar Co. on North Lemon Avenue in downtown Sarasota.

The comment above the photo read, “Gorillas in the midst of being gorillas are on my mind.”

Tanya Borysiewicz, co-owner of the business, told the commissioners that her secretary had found the printout of the alleged Facebook post in an envelope sent to Borysiewicz, who, Battie noted, is half African American and half Scottish. She also was visible in the photo with Battie.

In his Jan. 24 email, City Manager Brown pointed out that Battie “was acting in his capacity as Mayor during the ribbon cutting and the photo whether real or false was taken of him in that capacity and his presentation of it [on Jan. 16] was in his capacity as a sitting City Commissioner.”

This is the alleged Facebook post that Commissioner Kyle Battie showed his colleagues on Jan. 16. File image

Then Brown added, “I expect that I too will be targeted because of this express hope [that the commission agree to pay for legal representation for Battie, if a complaint is filed].

Battie never named Franklin, even though her photo and name were clear on the crumpled paper that he showed everyone, using the overhead projector.

Later in the day, Mayor Alpert reopened that item of business, explaining that all of the commissioners had received an email from Franklin, asserting that she had not created the post; that, instead, it appeared to be a mashup of a post from the Corona Cigar Co.’s Facebook page and a post she included on her Facebook page in late December 2022.

Her husband, Ron Kashden, told the commissioners that the couple had taken a trip to Rwanda to see the gorillas for which the African nation has become known worldwide. Kashden indicated that Franklin enjoys the pursuit of photography, so she took a number of photos on the trip.

Other members of the public chastised Battie for providing no evidence that he had tried to ascertain whether the alleged Facebook post was real before making his presentation that day. They also emphasized that the photo was not included in backup agenda material for the meeting.

A Jan. 19 letter that Tampa attorney Harrison sent to Alpert, Brown and Fournier said that he and Franklin “do not presently anticipate bringing any legal action against the City based on these events [Harrison’s emphasis].” However, he wrote that Franklin “demands that the City immediately conduct a complete and thorough investigation of this matter and document and [report] findings publicly. Among other things, it seems apparent that Commissioner Battie misused city assets and resources to pursue a purely personal attack against Ms. Franklin for some as of yet unidentified personal or political benefit to himself.”

‘Battie acted with intent, forethought, planning, and legal malice towards Kelly Franklin’

In his follow-up, Jan. 28 email to the commissioners, Brown and Fournier, Harrison laid out the following timeline, with emphasis:

  • “Battie received a text from Tanya Borysiewicz, one of the Corona Cigar Company owners, just before noon on December 19, 2023. That text included the photo of the Hoax Post along with a request for Battie to call her.
  • “Later that same day, Borysiewicz texted Battie additional posts and photos from Kelly Franklin’s personal Facebook™ page, including her actual post using the ‘Gorillas in the midst’ text in conjunction with a collage of photos of gorillas that she had taken during a safari.
  • “Thus, by the end of the day on December 19, 2023, Battie knew that the text in the Hoax Post came from an actual but completely innocent post about actual gorillas.
  • “Interestingly, Battie did not raise this matter at your January 2, 2024 Commission meeting.
  • “On January 10, Battie requested the agenda changes for the January 16 meeting.
  • “On January 15, the eve of your Commission meeting, Borysiewicz texted Battie indicating that she was flying over from Orlando and suggesting that they meet to ‘go over this situation.’
  • “Battie and Borysiewicz met at the Corona Cigar Company on the evening of January 15.
  • “On January 16, Battie attacks Ms. Franklin and Tanya Borysiewicz speaks on his behalf. Neither of them shares with you that they both had Kelly’s actual gorilla post as early as December 19.”
This is part of the alleged text from Tanya Borysiewicz sent to Commissioner Kyle Battie on Dec. 19, 2023. Image courtesy attorney Richard A. Harrison

Harrison added, “ ‘Facts,’ as President John Adams reportedly once said, ‘are stubborn things.’ And these facts dispel forever any notion that the events of January 16 were innocent or spontaneous. They demonstrate conclusively that Battie acted with intent, forethought, planning, and legal malice towards Kelly Franklin.”

Harrison continued, “And now you have the facts. Consider them and do as you will, but don’t get sandbagged and blindsided (again) by Battie, who is clearly not looking out for the best interests of the City or of you, his fellow Commissioners.”

These are details about a text that Commissioner Kyle Battie reportedly was found to have exchanged with Tanya Borysiewicz on Dec. 20., 2023.
Image courtesy attorney Richard A. Harrison

Moreover, Harrison wrote, “I’m sure you will agree, as I’m confident any Florida court would, that it is not within the proper scope or function of an elected City Commissioner to plan, plot, and carry out an attack on a private citizen over what — even if taken at face value — was private speech on a citizen’s personal social media, unconnected to any governmental proceeding or business of the City.”

Harrison then added, “I look forward to seeing you at your meeting on February 5.”

Provisions of the City Charter and state law

In the backup material for the Feb. 5 discussion, City Attorney Fournier included the section from the City Charter that City Manager Brown referenced in his email. That section says, “The city commissioner shall provide for the indemnification of its members, the Charter officials [the city manager, the city attorney and the city auditor and clerk], employees and persons appointed as board or ad hoc committee members for liability arising out of the performance of their duties on behalf of the City of Sarasota. The provisions of the indemnification, including those acts for which the indemnity will be provided and the extent of the indemnification, shall be solely within the discretion of the city commission.”

A second document in the backup materials is a Jan. 15, 2012 memo from Fournier to the City Commission regarding the expense of legal counsel for the city manager and the deputy city manager in a case at that time.

City Attorney Robert Fournier. File image

Fournier explained, “Florida case law recognizes that public officials are entitled to legal representation at public expense to defend themselves against either civil claims or criminal charges, provided that the conduct that brought about the claims or charges was undertaken in the course of performance of official duties while serving a public purpose. This entitlement to attorney’s fees arises independently of any statute, ordinance or charter provision. The rationale behind this legal rule is that if a public official is charged with any misconduct while performing his or her official duties and while serving a public purpose, then there is significant public interest associated with the just and legally correct resolution of the dispute and therefore public funds should be … utilized by the public official to pay reasonable and necessary legal fees incurred in successfully defending against unfounded allegations of official misconduct.”

Fournier then referenced the relevant section of the City Charter before pointing out, “The final determination of whether the conduct in question was undertaken while performing official duties and serving a public purpose must wait until the issues currently under investigation are resolved or adjudicated.”

Further, Fournier wrote that it is his opinion that “the Commission’s discretionary authority to decide ‘the extent of the indemnification’ would allow the Commission to partially indemnify for legal expenses in the event that some of the conduct in question is found to violate the law while other conduct is found to be lawful.”

On Jan. 25, as shown in the city’s public email folder, Fournier responded via email to a city resident who had questioned why the 2012 memo was in the Feb. 5 agenda packet. Fournier explained that he wrote the memo in regard to circumstances involving legal expenses for the city manager at that time, Robert Bartolotta. That situation, Fournier noted, was similar to the one involving Commissioner Battie. Therefore, he did not see the need to prepare a new memorandum.

The Feb. 5 City Commission meeting will begin at 9 a.m. in the Commission Chambers of City Hall, which is located at 1565 First St. in downtown Sarasota.