Robert’s Rules of Order cited as basis for demand for correction; potential of new litigation threatened
Although litigation over the issue was closed earlier this year, a city resident who has maintained that Sarasota City Commissioner Kyle Battie defamed her during a Jan. 16, 2024 presentation to his colleagues is seeking a correction to the minutes of that meeting, contending that their inaccuracy has continued to damage her reputation.
If such corrective action does not take place, Kelly Franklin has talked of no recourse but further litigation — this time, against the city itself.
During the Aug. 4 regular meeting of the City Commission, Ron Kashden of Sarasota, Franklin’s husband, formally requested that those minutes be amended to remove Franklin’s name from them.
He began by noting, “Many of the actions you take as commissioners are discretionary. However, some of the functions you perform are deemed so fundamental to proper governance that they are considered obligatory. In other words, you have a duty to act.”
Kashden then pointed out, “One of those primary obligations is to review, and approve, the official public meeting record, which takes the form of published minutes. City staff prepares the minutes, but it is also your duty to review them, and correct any issues.
“This responsibility is so essential,” he continued, “that it is referenced not just in Florida Sunshine Law, but also embedded in Robert’s Rules of Order, cited as the guiding procedural framework in the city’s charter. That is why one of the first items on the agenda at each meeting is the correction and approval of the minutes from prior meetings.”
Moreover, Kashden explained, “Your duty to provide an accurate public record does not end with the approval of meeting minutes. If errors in previously approved minutes are identified, then it is required, as per Robert’s Rules of Order, to correct substantive inaccuracies. “
The minutes for the Jan. 16, 2024 meeting, he said, “contain inaccurate information and attribution errors which have harmed, and continue to harm, my family. Specifically, in those approved minutes, there is a reference to a Facebook post which the minutes ascribe to my wife. Proof that the attribution is erroneous has been given to the city, and is not in dispute.
“It is your obligation as commissioners,” Kashden pointed out, “to correct the official record and expunge the erroneous attribution. I request that you abide by your duty and your sworn obligation to retract the false statements and correct the record.”
He was going to submit to City Auditor and Clerk Shayla Griggs a proposed motion to amend the minutes, he added, with hope that the commissioners would address the matter during their next meeting, on Aug. 18. No such item was included on that agenda when The Sarasota News Leader reviewed it on Aug. 13.
As the News Leader has reported, on Jan. 16, 2024, Commissioner Battie showed everyone in the Commission Chambers that day — and all of those watching the meeting via live-streaming or other means — what appeared to be a racist Facebook post that combined photos Franklin had taken on a trip to Rwanda to observe gorillas in the wild and a photo of Battie, while he was mayor, participating in a ribbon-cutting ceremony for the opening of the Corona Cigar Co. on Lemon Avenue in downtown Sarasota.
Neither Battie nor the co-owner of that business, Tanya Borysiewicz — whom he invited to address the commission, as well — mentioned Franklin’s name during their remarks. Battie described Borysiewicz as half African American.
Borysiewicz told the commissioners that the printed copy of the alleged Facebook post had been sent to her at the Corona Cigar Co. She also was shown in the photo from the ribbon-cutting ceremony.
Following public remarks later during that Jan. 16, 2024 meeting, Mayor Liz Alpert said she believed that the purported Facebook post was a “mash-up” of a post that Franklin had created about her trip to Rwanda and a completely separate post related to the Corona Cigar Co.’s opening. Moreover, Alpert added that she did not believe that Franklin was responsible for the “mash-up” and was owed an apology.
Commissioner Debbie Trice, who is African American, agreed about the need for the apology. Nonetheless, Trice pointed out that “the next time Commissioner Battie gets something like that, he should still bring it to this commission and maybe white-out the source of it or the theoretical source of it. But it is critical that we recognize that this is inappropriate in the city of Sarasota.”
Franklin has asked numerous times since that meeting for an apology, but none of the commissioners ever has offered a formal one during a meeting.
Franklin ended up filing a defamation complaint against Battie in the 12th Judicial Circuit Court. Circuit Judge Stephen Walker ruled for Battie on the basis of judicial precedents that have made it clear, Walker pointed out, that elected local government officials in Florida have “absolute immunity” from being found guilty of defamation in regard to comments they make.
As Kashden was reading his statement on Aug. 4, this reporter heard Battie make a remark to the effect that the issue had been adjudicated.
A demand for retraction and corrections of the Jan. 16, 2024 minutes
Two weeks before Kashden provided his comments to the City Commission, Franklin sent a letter by certified mail to interim City Manager Dave Bullock, City Auditor and Clerk Shayla Griggs and City Attorney Joe Polzak, demanding a correction of the Jan. 16, 2024 minutes, the News Leader learned.
She noted that she and Kashden had met with Bullock and Polzak on June 24 to make the request in person.
In her letter, Franklin pointed out, “At that meeting, Mr. Polzak and Mr. Bullock were provided with copies of the forensic analysis of the date/time stamp pictured in the falsified social media [post] compared against my actual Facebook posts from that period. This technical analysis of the metadata proves what commissioners Liz Alpert, Jen Ahearn-Koch, and Debbie Trice have acknowledged — that I was not the author of the fake post.”
Franklin added, “This was not the first time I provided to the City of Sarasota forensic proof of documenting the falsified nature of the image projected in chambers, as I emailed this documentation to the prior city attorney and to the city auditor and clerk on March 9, 2024.”
Then Franklin stressed, “In 18 months, the city has taken no corrective action and assumed no responsibility for the grievous harm the calculated and coordinated publication of the falsified and defamatory image in city chambers has had on me personally and on our local democracy.
“The uncorrected publication of the hoax Facebook post with my name and likeness continues to harm my reputation, and hinders my ability to participate effectively in local civic discussions,” she added, noting, “Search engines give great weight to publications with a .gov address, and it is important the correction be published in the same forum as the defamatory statement.”
Then Franklin pointed out, “While absolute immunity prevailed in trial court for Mr.Battie’s speech in chambers, the city’s liability for the city’s willing refusal to correct knowingly false libelous statements within an official document has not been tested.
“Failure to act at this point would suggest that my only recourse is to file a tort suit for specific relief, as well as nonfeasance and negligence for refusing to investigate the true authorship of the image and how it came to be published in city hall,” she continued.