HomeMy Public PortalAboutPRR 20-2812-11TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
November 10, 2020
Martin E. O’Boyle [e-mail to: records@commerce-group.com]
Re: GS #2812-11 (Request for Public Records Related to Martin O'Boyle Criminal Case)
Request for Public Records Related to Martin O’Boyle Criminal Case
11. All electronic transmissions created by, sent by or received by Scott Morgan
which pertain: (1) to Martin O’Boyle since January 1, 2014; (2) to a
September 22, 2015 Incident at Town Hall regarding Martin O’Boyle; and/or
(3) to State v O’Boyle, 2015MM012872A now pending in the 15th Judicial
Circuit.
Dear Martin E. O’Boyle [e-mail to: meo@commerce-group.com]:
Thank you for your public records request made on August 30, 2020. On September 17, 2020,
the Town responded as follows:
Part of this subpart of your request, parts (2) and (3) were previously answered in
response to GS #2704 made by Martin O’Boyle on April 16, 2019 (“all records….which
mention or refer to Mar[t]in O’Boyle, but limited to the incident at the Town Hall on
September 22, 2015 regarding Martin O’Boyle”). The Town will provide an estimate to
supplement those records to include responsive records from April 16, 2019 to the date of
this request.
Based on our understanding, records responsive to part (1) of this subpart will also be
responsive to parts (2) and (3) as indicated above.
On October 16, 2020, you responded through your Attorney as follows:
This request is not limited in any way and must be responded to as-is. Mr. O’Boyle
acknowledges that some of the records responsive to this subpart will be responsive to
other subparts but would like an estimate, nonetheless in the event he may wish to go
forward with this production while modifying other subparts.
The original request can be found at the following link:
https://portal.laserfiche.com/Portal/DocView.aspx?id=173216&repo=r-430100cc
Subpart 11 of your request can be found at the following link:
https://portal.laserfiche.com/Portal/DocView.aspx?id=173617&repo=r-430100cc
Based on your clarification, you seek all electronic transmissions created by, sent by or received
by Mayor Scott Morgan, which pertain to Martin O’Boyle since January 1, 2014.
The Town now estimates that to fully respond to subpart eleven of your request will require 5.6
hours of administrative support at $48.38 per hour, the labor cost of the personnel providing the
service, per Fla. Stat. § 119.07(4)(d). If the costs of producing these documents will exceed your
deposit, the Town will provide you with an initial production of responsive records and an
estimate for the production of any additional responsive records. If the costs of production are
less than the deposit, the Town will provide you with the responsive records and a refund.
(5.6 hours @ 48.38 =270.93) = Deposit Due: $270.93 in cash or check.
This estimate does not include reviewing previous responses to public records requests and
providing you with those records. If you would like us to include records already publicly
available, please let us know and we will update our estimate.
Upon receipt of your acknowledgement that you will pay for these records, the Town will use its
very best efforts to further respond to your public records request in a reasonable amount of time.
If we do not hear back from you within 30 days of this letter, we will consider this request
closed.
Sincerely,
Reneé Basel
As Requested by Rita Taylor
Town Clerk, Custodian of the Records
Renee Basel
From:Jonathan O'Boyle <joboyle@oboylelawfirm.com>
Sent:Tuesday, November 10, 2020 4:04 PM
To:Renee Basel
Cc:Jonathan O'Boyle
Subject:RE: GS #2812-6 (Request for Public Records Related to Martin O'Boyle Criminal Case)
\[NOTICE: This message originated outside of the Town of Gulfstream -- DO NOT CLICK on links or open attachments
unless you are sure the content is safe.\]
Also we are interested in these as well, lets produce and let us know if there will be any reductions since there is likely
some overlap.
Also, please let us know what funds you need. Thank you.
From: Renee Basel <rbasel@gulf-stream.org>
Sent: Tuesday, November 10, 2020 3:35 PM
To: Jonathan O'Boyle <joboyle@oboylelawfirm.com>
Cc: Suze Courtney <scourtney@commerce-group.com>; records@commerce-group.com
Subject: GS #2812-6 (Request for Public Records Related to Martin O'Boyle Criminal Case)
Good afternoon, Jonathan:
See attached correspondence.
Kindest regards,
Reneé Basel
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Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s). If
you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original
message. Florida has a very broad public records law. Written communications regarding Town of Gulf Stream business
are public records available to the public upon request. Your e-mail communications are therefore subject to public
disclosure. Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in
response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in
writing.
1
Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s). If
you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original
message. Florida has a very broad public records law. Written communications regarding Town of Gulf Stream business
are public records available to the public upon request. Your e-mail communications are therefore subject to public
disclosure. Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in
response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in
writing.
2
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
January 21, 2021
Martin E. O’Boyle [e-mail to: records@commerce-group.com]
Re: GS #2812-11 (Request for Public Records Related to Martin O'Boyle Criminal Case)
Request for Public Records Related to Martin O’Boyle Criminal Case
11. All electronic transmissions created by, sent by or received by Scott Morgan
which pertain: (1) to Martin O’Boyle since January 1, 2014; (2) to a
September 22, 2015 Incident at Town Hall regarding Martin O’Boyle; and/or
(3) to State v O’Boyle, 2015MM012872A now pending in the 15th Judicial
Circuit.
Dear Martin E. O’Boyle [e-mail to: meo@commerce-group.com]:
Thank you for your public records request made on August 30, 2020. On September 17, 2020,
the Town responded as follows:
Part of this subpart of your request, parts (2) and (3) were previously answered in
response to GS #2704 made by Martin O’Boyle on April 16, 2019 (“all records….which
mention or refer to Mar[t]in O’Boyle, but limited to the incident at the Town Hall on
September 22, 2015 regarding Martin O’Boyle”). The Town will provide an estimate to
supplement those records to include responsive records from April 16, 2019 to the date of
this request.
Based on our understanding, records responsive to part (1) of this subpart will also be
responsive to parts (2) and (3) as indicated above.
On October 16, 2020, you responded through your Attorney as follows:
This request is not limited in any way and must be responded to as-is. Mr. O’Boyle
acknowledges that some of the records responsive to this subpart will be responsive to
other subparts but would like an estimate, nonetheless in the event he may wish to go
forward with this production while modifying other subparts.
The original request can be found at the following link:
https://portal.laserfiche.com/Portal/DocView.aspx?id=173216&repo=r-430100cc
A partial production to Subpart 11 of your request can be found at the following link:
https://portal.laserfiche.com/Portal/DocView.aspx?id=173617&repo=r-430100cc
As you previously acknowledged, some of the records responsive to this subpart are also
responsive to other subparts, such as GS #2812-6. Please see our response to that and other
subparts for additional records. Some of these records are being produced to you in an
abundance of caution although they were not prepared, owned, used, or retained within the scope
of the individual’s employment or agency.
The Town now estimates that to fully respond to subpart eleven of your request will require 1.25
additional hours of administrative support at $48.38 per hour, the labor cost of the personnel
providing the service, per Fla. Stat. § 119.07(4)(d).
(1.25 hours @ 48.38 = $60.48) = Deposit Due: $60.48 in cash or check.
Upon receipt of your payment, the Town will use its very best efforts to further respond to your
public records request in a reasonable amount of time. If we do not hear back from you within
30 days of this letter, we will consider this request closed.
Sincerely,
Reneé Basel
As Requested by Rita Taylor
Town Clerk, Custodian of the Records
Renee Basel
From:scottmorgan75@gmail.com
Sent:Friday, November 22, 2019 12:32 PM
To:Patsy Randolph
Subject:11th Circuit Decision
Patsy-- thought you and Mark might be interested in this 72 page decision from the 11th Circuit Court of Appeals.
This court is directly below the US Supreme Court so its opinions carry great weight.
1
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E-MAIL: office@csa-architects.com
ISSUED FOR :
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CONDITION REQUIRED TO
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185 NE 4TH AVENUE SUITE 101
DELRAY BEACH, FL 33483
T:(561) 276-4951 F:(561) 243-8184
E-MAIL: office@csa-architects.com
ISSUED FOR :
BIDS
PERMIT
CONSTRUCTION
SEAL
10/05/2018
PROJECT TITLE
O BOYLE
RESIDENCE
RENOVATION
DECK PLAN
PRESENTATION
23 HIDDEN HARBOR DRIVE
GULF STREAM, FLORIDA
REVISIONS
NUM.
I DESCRIPTION
DATE
9
1 Deck Plan
6/14/19
THESE DRAWINGS ARE PREPARED
PER ESTABLISHED INDUSTRY
STANDARDS AND REPRESENT THE
ARCHITECT AND ENGINEERS DESIGN
CONCEPT. THEY ARE NOT INTENDED
TO PROVIDE EVERY DETAIL OR
CONDITION REQUIRED TO
CONSTRUCT THE BUILDING. THE
CONTRACTOR THROUGH
SUBMITTALS AND OTHER
COORDINATION EFFORTS IS FULLY
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T:(561) 276-4951 F:(561) 243-8184
E-MAIL: office@csa-architects.com
ISSUED FOR :
BIDS
PERMIT
CONSTRUCTION
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10/05/2018
PROJECT TITLE
O BOYLE
RESIDENCE
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PRESENTATION
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GULF STREAM, FLORIDA
REVISIONS
NUM.
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DATE
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THESE DRAWINGS ARE PREPARED
PER ESTABLISHED INDUSTRY
STANDARDS AND REPRESENT THE
ARCHITECT AND ENGINEERS DESIGN
CONCEPT. THEY ARE NOT INTENDED
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CONDITION REQUIRED TO
CONSTRUCT THE BUILDING. THE
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185 NE 4TH AVENUE SUITE 101
DELRAY BEACH, FL 33483
T:(561) 276-4951 F:(561) 243-8184
E-MAIL: office@csa-architects.com
ISSUED FOR :
BIDS
PERMIT
CONSTRUCTION
SEAL
10/05/2018
PROJECT TITLE
O BOYLE
RESIDENCE
RENOVATION
DECK PLAN
PRESENTATION
23 HIDDEN HARBOR DRIVE
GULF STREAM, FLORIDA
REVISIONS
NUM.
I DESCRIPTION
DATE
11
1 Revised Deck Plan
10/3/19
THESE DRAWINGS ARE PREPARED
PER ESTABLISHED INDUSTRY
STANDARDS AND REPRESENT THE
ARCHITECT AND ENGINEERS DESIGN
CONCEPT. THEY ARE NOT INTENDED
TO PROVIDE EVERY DETAIL OR
CONDITION REQUIRED TO
CONSTRUCT THE BUILDING. THE
CONTRACTOR THROUGH
SUBMITTALS AND OTHER
COORDINATION EFFORTS IS FULLY
RESPONSIBLE FOR PROVIDING A
COMPLETE AND OPERATIONAL
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185 NE 4TH AVENUE SUITE 101
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T:(561) 276-4951 F:(561) 243-8184
E-MAIL: office@csa-architects.com
ISSUED FOR :
BIDS
PERMIT
CONSTRUCTION
SEAL
10/05/2018
PROJECT TITLE
O BOYLE
RESIDENCE
RENOVATION
DECK PLAN
PRESENTATION
23 HIDDEN HARBOR DRIVE
GULF STREAM, FLORIDA
REVISIONS
NUM.
I DESCRIPTION
DATE
11
1 Revised Deck Plan
10/3/19
THESE DRAWINGS ARE PREPARED
PER ESTABLISHED INDUSTRY
STANDARDS AND REPRESENT THE
ARCHITECT AND ENGINEERS DESIGN
CONCEPT. THEY ARE NOT INTENDED
TO PROVIDE EVERY DETAIL OR
CONDITION REQUIRED TO
CONSTRUCT THE BUILDING. THE
CONTRACTOR THROUGH
SUBMITTALS AND OTHER
COORDINATION EFFORTS IS FULLY
RESPONSIBLE FOR PROVIDING A
COMPLETE AND OPERATIONAL
,BUILDING WHETHER INDICATED ON
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IN THE FIFTEENTH JUDICIAL,
CIRCUIT, IN AND FOR PALM BEACH (�T�
COUNTY, FLORIDA U 5 i� .Z g
JOEL CHANDLER,
Plaintiff,
v, Case No.: D r.3 C I) OO -7-7S q
TOWN OF GULF STREAM,
Defendant,.
TO: Town of Gulf' Strearn
100 Sea Road
Gulf Stream, FL 33483
SUMMONS
1!MPORTANT
A lawsuit has been filed against you. You. have 20 calendar days after this summons is
served on you to file a written response to the attached complaint with the clerk of this court. A
phone call will not protect you. Your written response, including the case member given above
and the names of the parties, must be filed if you want the court to hear your side of the case. If
you do not file your response on time, you may lose the case, and your wages, money, and
property may thereafter be taken without further warning from the court. There are other legal
requirements. You may want to call an attorney right away. If you do not know an attorney, you
may call an attorney referral service or a legal aid office (listed in the phone book).
If you choose to file a written response yourself, at the same time you file your written
response to the court you must also mail or take a copy of your written response to the
"Plaintiff/Plaintiffs Attorney" named below.
IMPORTANTE
Usted ha sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta
notificacion, para contestar la demanda adjunta, par escrito, y presentarla ante este tribunal. Una
Ilamada telefoncia no to protegera. Si usted desea clue el tribunal considere su defensa, debe
presentar su respuesta por escrito, incluyendo eI nurnero del caso y los norrmbres de las partes
interesadas. Si usted no contests la dernanda a tiernpo, pudiese perder el caso y podria ser
despojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal.
I of'3
Existen otros requisitos legates. Si to desea, puede usted consulter a un abogado, puede llarnar a
Una de las oficinas de asistencia legal qua aparecen an la guia telefonica.
Si desea responder a la demanda por su cuenta, al mismo tiempo en qua presenta su
respuesta ante el tribunal, debera usted enviar par correo o entregar una copia de su respuesta a la
persona denominada abajo como "PlaintifflPlaintiff s Attorney" (Demandante o Abogado del
Demandante).
IMPORTANT
Des Poursuites Judiciares ont etc entreprises contre vows. Vous avez 20 jours consecutifs
a partir de ]a date de 1'assignation de cette citation pour deposer une reponse ecrite a la plainte ci-
jointe aupres de cc tribunal. Un simple coup de telephone est insuffisant pour vous proteger,
Vous etes oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus at
du nom des parties nommees ici, si vous souhaitez qua le tribunal entende votre cause. Si vous
ne deposez pas votre response ecrite dans le relai requis, vous resquez de perdre la cause ainsi
qua votre salaire, votre argent, et vos biens peuvent etre saisis par la suite, sans aucun preavis
ulterieus du tribunal. JI y a d'autres obligations juridiques at vows pouvez requerir les services
irramediats d'un avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a un
service de reference d'avocats ou a un bureau d'assistance juridique (figurant a l'annuaire de
telephones).
Si vous choisissez de deposer vous-meme une reponse ecrite, it vous faudra egalement,
en mere temps qua cette formatite, faixe parvenir ou expedier une copie de votre
reponse ecrite au "Plaintiff/Plaintiff s Attorney" (Plaignant ou a son avocat) nomarae ci-dessous,
WILLUM F. RING, JR. FSQUIPm PA
ATTORNEY FOR PLAWLIPF
V+rilliazn F. Ring, Jr.
Florida Bar No.: 961795
1280 W. Newport Center Dr.,
Deerfield Beach FL, 33432
Telephone: (954) 570-3510
Fax: (954) 360-0807
E-Mail: wrin a ccornmer.c9 group com
2 of 3
STATE OF FLORIDA.
TO EACH SHERIFF OF THE STATE:
You are commanded to serve this surmons and a copy of the Complaint in this lawsuit
on the above -named Defendant.
WITNESS MY HAND AND SEAL of said court.
DATl<� 2011
3 of 3
Clerk of the Court
IN THE CIRCUIT COURT OF THE
FIFTEENTH JMICIAi, CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
Joel Chandler,
Plaintiff,
V.
The Town of Gulf Stream,
Defendant.
CASE NO,: c2,o 13 0,P 00 -7 7 F[
VERIFIED COMPLAINT TO ENFORCE FLORIDA'S
PUBLIC RECORDS ACT AND FOR DECLARATORY AND MONETARY RELIEF
The Plaintiff, Joel Chandler, ("i'laintifF% by and through: the undersigned counsel,
hereby sues The Town of Gulf Stream, ("Defendant"), and as grounds therefore alleges as
follows:
1. This action concerns the Defendant's violation of Plaintiff's civil rights pursuant to
Article 1, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes (2011), (the
"Public Records Act").
2. This action seeks declaratory and monetary relief.
3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its
constitutionals and statutory2 duty to permit access to public records, and compelling the
1 Note Article 1 Section 24, Fla. Const.
Every persons has the right to inspect or copy any public record made or received in
connection with the official business of any public body, officer, or employee of the state, or
persons acting on their behalf, except with respect to records exempted pursuant to this
section or specifically made confidential by this Constitution„ This section specifically
includes the legislative, executive, and judicial branches of government and each agency or
department created thereunder; counties, municipalities, and districts; and each
1 of 10
:?R;?
Defendant to provide access to the requested public records and awarding Plaintiff attorn,ey's
fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section
119.11(1), Florida StatutcO.
Jutrisdieth and Venue
4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the
Florida Constitution, and Section 119.11, Florida Statutes.
5, This Court has personal jurisdiction over the Defendant, because the Defendant is a
public agency in Palm Beach County.
6. The causes of action in the instant case accrued in Palm Beach County; therefore, this
Court is the appropriate venue for the vindication of Plaintiffs civil rights.
The Parties
7. Plaintiff is a Florida citizen who resides in Polk County.
8, Plaintiff is a "person" as that term is used in the Public Records Act. See §
119.07(l)(a), Fla, Stat.4
9. The Defendant is an "agency" pursuant to Section 1 l 9.011(2), Florida Statutes.E
constitutional officer, board, and commission, or entity created pursuant to law or this
Constitution.
s Note § 119.07(1)(a), Fla, Stat.
Every person who bas custody of a public record shall permit the record to be inspected and
copied by any person desiring to do so, at any reasonable time, under reasonable conditions,
and under supervision by the custodian of the public records.
s Note § 119.11(1), Fla, Stat.
Whenever an action is riled to enforce the provisions of this chapter, the court shall set an
immediate hearing, giving the case priority over other pending cases.
+ See Footnote "2".
5 Note § 119M1(2), Fla. Stat.
",Agency" means any state, county, district, authority, or municipal officer, department,
division, board, bureau, commission, or other separate unit of government created or
established by law including, for the purposes of this chapter, the Commission on Ethics, the
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10. The .Defendant has a duty to permit the inspection, copying, and photography of
Defendant's public records by 17y person desiring to do so, at a reasonable time, under
reasonable conditions, and for reasonable costss. (Emphasis added), See § 119.07, Fla. Stat.; Art.
I, § 24, Fla. Const„
Florida's Public Records Act
11. Florida's Public Records Act implements a right guaranteed to members of the public
under the Florida Constitution and it therefore promotes "a state interest of the highest order."
See ATCA 9 v. ,associated Press, 18 So. 3d 1201, 1212 (1 st DCA 2009)7.
Public Service Commission, and the Office of Public Counsel, and any other public or private
agency, person, partnership, corporation, or business entity acting on behalf of any public
agency.
6 NOte vo en, _ .»st:...._ = 2019, Uhiqn, page 144,
The term "reasonable conditions" as used in s.119.07(1)(a),1{.S., "refers not to conditions
which must be ful0lled before review is permitted but to reasonable regulations that would
permit the custodian of records to protect theca from alteration, damage, or destruction and
also to ensure that the person reviewing the records is not subjected to physical constrainta
designed to preclude review." Wait v. Florida Power & Light Company, 372 So. 2d 420, 425
(Fla, 1979). See also State ex rel. Davis v, McMillan, 38 So. 666 (Fla, 1905); and Tribune
Company v. Cannella, 468 So. 2d 1076,1078 (Fla. 1984), appeal dismiased sub nom., DePerle
v. Tribune Company, 105 S.Ct. 2315 (1986) (the sole purpose of custodial supervision is to
protect the records from alteration, damage, or destruction).
Accordingly, the "reasonable conditions" do not include a rule or condition of inspection
which operates to restrict or circumvent a person's right of access. ACO 75-60. '?he courts of
this state have invalidated measures which seek to impose any additional burden on, those
seeking to exercise their rights to obtain records" under Ch. 1.19, F.S. Inf. Op. to"Cook, May
27, 2011. And see Stale v. Webb, 786 So., 2d 602 (Fla. 1st DCA 2001) (requirement that
persons with custody of public records allow records to be examined "at any reasonable time,
under reasonable conditions" is not unconstitutional as applied to public records custodian
who was dilatory in responding to public records requests).
' Note UQAA v,-AJeWQI9tPd Ems, 18 So. 3d 1201, 1212 (let DCA 2009)
We are not persuaded that the Public Records law has an indirect effect on interstate
commerce, but even if some effect had been established, we could not say that the law
violates the dormant Commerce Clause. The Public Records law implementa a right
guaranteed to members of the public under the Florida Constitution and it therefore
Promotes a state interest of the highest order. The negligible impact the law might have on
interstate commerce clearly does not outweigh the goal of ensuring open government.
3 of 10
12. The right of access to public records applies to "any public body, officer, or employee
of the state, or persons acting on their behalf...." Art,1, § 24, Fla. Const.; see also § 119.0I 1(2),
Fla, Stat.8
13. Under the Public Records Act, "[e]very person who has custody of a public record
shall permit the record to be inspected and copied by any person desiring to do so, at any
reasonable time, under reasonable conditions, and under supervision by the custodian of the
public records." See § 119.07(l )(a), Fla, Stat.9
lh, Under the Public Records Act, 1a]ny person shall have the right of access to public
records for the purpose of making photographs of the record..." See § 119.07(3)(a), Fla. Stat,10
15. Defendant, as an agency and custodian of records, has an obligation to provide any
non-exempt public records for inspection, copying and photography upon request. See §
119.07(l)(a)tx, §119.07(3)(a)12, Fla. Stat.; Art,1, § 24, Fla_ Coast,ta
Factu2l_Background
16. On the Morning of April 15, 2013 Plaintiff arrived at the Gulf Stream Town Hall,
("Town Hall'), located at 100 Sea Road, Gulf Stream, Florida in order to snake a public records
request.
17. Specifically, Plaintiff sought to obtain, by personal delivery of written request to Rita
Taylor, the Town Clerk and records custodian for the Defendant (hereinafter, "Town Clerk"),
"copies of all plans which are I 1 X 17 in size and which are in regard to application # 1 on the
e See Footnote'T.
9 See Footnote "2"
IGNote § 119.07(3)(a), Fla. Stat,
Any person shall have the right of access to public records for the purpose of making
photographs of the record while such record is in the possession, custody, and control of the
custodian of public records.
I' See Footnote "2".
32 See Footnote "10".
13 See Footnote "1".
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agenda ofthe Town Commission Meeting Dated April 12, 2013 for the premises known as 3211
North Ocean Boulevard, Gulf Stream, FL." (the "Request") See Exhibit A.
18. The Town Clerk acknowledged receipt of the Request, and informed Plaintiff that the
request would take approximately 10 minutes to fulfill.
19. Approximately 10 minutes later, the Town Clerk returned with copies of the
requested documents in hand,
20. The Town Clerk demanded payment of $6.95 as a condition of access to the public
records.
21, The calculation of $b.95 included a charge of $0.15 per I 1 X 17 page in addition to a
charge for the time spent to retrieve, copy, and re -file the public records.
Count I — Imposition of an Unlawful Fee
22,. Plaintiff re -alleges and, incorporates by reference pmgraphs I though 21 as if fully
alleged herein,
23. Section 119.07(4), Florida Statutes states that "The custodian of public records shall
furnish a copy of the record upon payment of the fee prescribed by law. If a fee is not prescribed
by law, the following fees are authorized."
24. No fee is prescribed by Iaw specifically for I I X 17 copies,
25. Section 119,07(4)(#3), Florida Statutes provides that the authorized fee is, "for all
other copies, the actual cost of duplication of the public record."
25. The actual cost of duplication is defined in Florida Statutes Section 119,011 as "the
cost of the material and supplies used to duplicate the public record, but does not include labor
cost or overhead cost associated with such duplication."
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27. The actual cost of duplication of these I I X 17 copies is significantly less than $0.) 5
per page.
28. The Defendant's refusal to provide Plaintiff with the requested copies unless and until
Plaintiff paid $0.15 for each I I X 17 cagy constituted an imposition of an unlawful fee.
29. The Defendant also imposed a charge for the time spent to retrieve, copy, and re -file
the public records.
30. Under Florida Statutes Section 119.07(4)(d), a special service charge to reimburse the
agency for labor costs is perrissible only, "If the nature or volume of public records requested to
be inspected or copied pursuant to this subsection is such as to require extensive use of
information technology resources or extensive clerical or supervisory assistance by personnel of
the agency involved."
31, The Request, which took only approximately 10 M+uutes to fUlfll, ,vas net
"extensive" pursuant to Section 119.07(4)(d), and therefore the imposition of a charge for the
time spent to retrieve, copy, and re -file the public records was an imposition of an unlawful fee.
Count Ii .- unlawful Withholdin of Aublle Records
32. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 31 as if fully
alleged herein,
33. The Defendant's refusal to allow Plaintiff to inspect the requested public records
violates Article 1, Section 24(a) of the Florida Constitution, Section 119.07(1)(a), Florida
Statutesl4 and is inconsistent with well -established case lawts.
14 See Footnote "V%
18 See $.ell V. Itendrfek 6 So- 868 (Ms. 1889) (public records belong "to the public office and not to the
officer."); See also5t8tp eg .re1�.1]�v�rtnor,�v ( 166 So. 297 (Fla. 1934); See a)so iCv of
G i e v Loll s i it 298 So-2d 478
(let DCA 1974) (records that are made by a city employes in the normal course of conducting the
city's business are materials which are open to the citizens of this state for inspection.,,); See also
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34. Plaintiff made clear to Defendant that Plaintiff was willing to pay the statutorily
authorized fee for the public records,
35. The records being sought by Plaintiff are public records pursuant to Section
119.01 ](12)16, Florida Statutes,
36. There is no statutory exemption that applies to the requested public records and the
Defendant has cited gone..
37. Violations of Section 119,07, Florida Statutes constitute an irreparable public
injUry17.
38. Plaintiff has a clear legal right to insist upon the performance of the Defendant's duty
to permit inspection, copying and photographing of public records.
39. Section 119.11(1), Florida Statutes requires this matter be set for an immediate
hearing. 1 8
40. All conditions precedent to this action have occurred or have been excused or waived,
353 So. 2d 1194 (Fla. 4th DCA 1977) (the Public Records Act
"requires the public official with custody of a public record to disclose it to any member of the public,
including the media, who wishes to inspect it, Non -disclosure is permitted only if there is an
exemption provided" by statute.); See also 388 Sm 2d 276, 278
(Me. 2d DCA 1980) ("Absent a statutory exemption, a court is not free to consider public policy
questions regarding the relative significance of the public's interest in di8CIDSure and the damage to
an individual or institution resulting from such disclosure.").
Is Note § 119.011(12), Fla. Stat.
"Public records" weans all documents, papers, letters, reaps, books, tapes, photographs,
films, sound recordings, data processing software, or other material, regardless of the
physical form, characteristics, or means of transmission, made or received pursuant to law or
ordinance or in connection with the transaction of official business by any agency.
17 Note Daniels v Bryson, 548 So, 2d 679, 680 (Fla. 3d DCA 1989)
The impermissible withholding of documents otherwise required to be disclosed constitutes,
in and of itself, irreparable injury to the person making the public records request. Since the
purpose of Chapter 119 is to afford disclosure of information without delay to any member of
the public snaking a request, nondisclosure prevents access to the information and iB an
injury not ordinarily compensable in damages.
Is See Footnote "3".
7of10
Attorneys' Fees
41., The Public Record Act provides that " (i)f a civil action is filed against an agency to
enforce the provisions of this chapter and if the court determines that such agency unlawfully
refused to permit a public record to be inspected or copied, the court shall assess and award,
against the agency responsible, the reasonable costs of enforcement including reasonable
attorneys' fees." See § 119,12, Fla Stat.
Relief f Requested
WHEREFORE, Plaintiff prays this Court:
(a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;19
(b) Declare that the Defendant's failure to provide Plaintiff with access to the
requested public records was unconstitutional and unlawful under Article 1, Section 24 of
the Florida Constitution20 and the Public Records Act;21
(c) Order the Defendants to allow the inspection, copying and photographing of the
requested records (upon payment of the statutorily authorized fees);
(d) Award Plaintiff his reasonable attomey's fees, costs, and expenses incurred in this
action, as provided in Section 119.12, Florida Statutes;22 and
(e) Grant such further relief as the Court deems proper.
Ue See Footnote "V',
s" See Footnote "1".
41 See Footnote "T.
22 See Verified Complaint at "92".
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Dated: �kl , 20I3
9of10
Respectfully submitted,
WILLIAM F. RING, JR, ESQUIRE PA
A"iTORNEY FOR P , ! T i P
Williams Ring, Jr.
Florida Bar No.: 96I795
1280 W. Newport Center, Dr,
Deerfield Bcaclr ILL, 33432
telephone: (954) 570-.3510
Fax: (954) 360-0807
E-mail; tvri��i7cmm��crcc-grni[.ca���
VERIFICATION
STATE OF FLORIDA
COUNTY OF PALM BEACH
BEFORE ME, the undersigned authority, personally appeared Joel Chandler, who, being
first duly identified and sworn, deposes and says that this VERIFIED COMPLAINT is based
on records and information known to him, and are true and correct to the best of his knowledge,
information, and belief He who is personally known to me/has produced
"Joel Chandler
Commission Number
Dated:
to ofl0
i
Public State of FbAdommiaawn i:e 890098 DQ&7017
as
(SEAL)
l
�7,-*7-74
RECORDS REQUEST (the "Request"){rif.f�%1�
Date of Request;
4I15113
Requestor's Request ID#: 333
REQUEST,EE: CUSTODIAN OF RECORDS TOWN OF GULF STREAM
REQUESTOR: JOEL CHANDLER
REQUESTOR'S CONTACT 1NFORMATION: E-Mail: �XXX
Fax: 954-360-0807; Addr-ess: 1280 West Newport Center Drive, Deerfield Beach, FL 3.3442
REQUEST: PLEASE PROVIDE COPIES OF ALL PLANS WHICH ARE 11 X 17 IN SIZE
AND WHICH ARE IN REGARD TO APPLICATION #1 ON THE AGENDA OF THE TOWN
COMMISSION MEETING DATED APRIL 12 2013 FOR THE PREMISES KNOWN AS
3211 NORTH OCEAN BOULEVARD, GULF STREAM, FL
ADDITIONAL INFORMATION REGARDING REQUEST: Please respond to E-Mail:
joel,chandler@fogwatch.org
THIS REQUEST IS MADE PURSUANT TO PUBLIC RECORDS ACT,
CHAPTER 119 OF THE FLORIDA STATUTES AND IS ALSO REQUESTED UNDER THE
COMP40N LAW RIGHT TO KNOW, THE COMMON LAW RIGHT OF ACCESS; AND
ANY STATUTORY RIGHT TO KNOW (INCLUDING, WITHOUT LIMITATION, ANY
STATUTORY RIGHT OF ACCESS, AS APPLICABLE). THIS REQUEST IS ALSO MADE
PURSUANT TO THE RIGHTS OF THE REQUESTOR PROVIDED IN THE FLORIDA
CONSTITUTION
IT IS RE UESTED THAT THIS RECORDS RE VEST BE, FULFILLED IN ELECTRONIC
FDRM. IF NOT AVAILABLE IN ELECTRONIC FORM, IT IS RE UESTED THAT THIS
REC_ ORDS RE VEST BE FULFILLED ON 11 X 17 PAPER. NOTE: IN ALL CASES NLESS
IMPOSSIBLM THE COPIES SHOULD BE TWO SIDED AND SHOULD BE BILLED IN
ACCORDANCE WITH Section 119.47 4 a 2
ALL ELECTRONIC COPIES ARE REQUESTED TO BE SENT 1IY E-MATT. DELIVERY.
PLEASE PROVIDE THE APPROXIMATE COSTS (IF ANY) TO FULFILL THIS PUBLIC
RECORDS REQUEST IN ADVANCE.
It will be required that the Reguestor approve of any costs, asserted by the Agency (as defined in
Florida Statute, Chapter 119.01 (Definitions)), in advance of any costs imposed to the Requestor by
the Agency.
I:PINPMRR
04..1113 FORM
I
CLOSED -DOOR SESSION
TOWN OF GULFSTREAM
TOWN OF GULFSTREAM
TOWN HALL
SEPTEMBER 13, 2013
6:10 p.m. to 6:35 p.m.
IN ATTENDANCE:
MAYOR JOAN ORTHWEiN
DONNA S. WHITE, Commissioner
W. GARRETT DERI:NG, Commissioner
ROBERT GANGER, Commissioner
THOMAS STANLEY, Commissioner
WILLIAM THRASHER, Town Manager
JOHN C. RANDOLPH, Town. Attorney
JULIE ANDOLPHO, Court Reporter
PLEASANTON, GREENHILL, MEEK & MARSAA
561/8:33.7811
9
1 MR.
RANDOLPH: I
just wanted to announce that
2 this is
a closed -door
session pursuant to Florida
3 statute.
4 Even though it's a closed -door session as you
5 can see from the presence of the court reporter
6 there's a transcript of this meeting being made,
7 and that transcript becomes public upon settlement
8 of the lawsuit or any appeals connected therewith.
9 I would ask, because this is being
10 transcribed, you speak one at a time so that all
11 your comments can be made part of the record.
12 1 would further ask that you keep in mind,
13 because this is a public record afterwards, that
14 you not say anything at this meeting that you would
1s not want to see in the press or have read by
16 someone else after the meeting.
17 It's closed door because I asked your advice
18 with regard to a proposed settlement agreement, and
19 that settlement agreement has been put before you.
20 Basically, it's to pay -- this is the last public
21 records lawsuit pending. All the ethers have been
122 dismissed.
23 Joel Chandler had his own. -- excuse me --
24 question?
25 MR. DERING: Question, I really don't know
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
3
1
what this is all about. Can you tell us what the
2
suit is about?
3
MR. RANDOLPH: Um'hum.
4
MR. DERING: Okay.
5
MR. RANDOLPH: The proposal in this remaining
6
lawsuit is to pay the sum of $2,000 which would be
7
for their attorney tees and costs and to provide
8
the records that were requested to Mr. Chandler,
9
and they say in here to withdraw or strike
10
statements made in our motion and answer which is
1.1
Mr. Chandler is essentially a puppet of Marty
12
O'Boyle. And it says this was insulting to
13
Mr. Chandler.
14
This was a public records lawsuit that was
15
filed as a result of Mr. Chandler coming in along
16
with Mr.O'Boyl.e and I believe one other person.
17
MR. THRASHER: Correct.
18
MR. RANDOLPH; I believe there were three
19
people that came in.
20
Mr. Chandler asked for certain public records
21
which Rita left the room and made, and upon her
22
return she presented him a bill for 15 cents per
23
copy and a bill for her labor in the amount of, I
24
think, $3.50, something like, that is set forth in
25
the complaint.
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
4
1 He challenged her there at that time and said
2 you're not entitled to charge me 15 cents a page
3 and you're not entitled to charge for the labor
4 under the statute. She basically, allegedly, said
5 that, well, I prepared the records for you in
6 response to your request, they're here if you want
7 them. He -- then he left.
8 Subsequently he filed a public records request
9 which was filed by William Ring who also represents
10 and represented Mr.O'Boyle and stated that the Town
11 was violating the public records law by charging
12 more than the statutory rate. His claim was that
13
you can't charge 15 cents per page
you can only
14
charge cost of
duplication for
the
copies that he
15
received which
were 11 by 17.
They
were oversized
16
copies and the
statute states
that
for oversized
17
copies you can
only charge the
cost
of duplication.
18
He claims cost
and duplication
was
less than 15
19 cents per page.
20 There's an argument to be made in regard to
21 what the statute means there. Some contend the
22 statute means he's charged 15 cents a page for
23 regular sized copies but you can charge more for
24 oversized copies. But that's not the way the
25 statute reads. It says you can only charge actual
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
5
1 cost of duplication for oversized copies. That's
2 one of the issues in the lawsuit. The other issue
3 in the lawsuit is she shouldn't have charged for
4 her labor costs because it didn't really require
5 extra -- extraordinary costs of her labor time.
6 She felt it did because she felt it was a
7 cumulative kind of thing attached to other public
8 records requests that were made.
9 We did file a response to this and argued in
10 our response that Mr. Chandler -- we did not say in
11 our response that Mr. Chandler was a puppet of
12 Mr. O'Boyle.
13 The response basically said that we feel that
14 he was here with Mr.O'Boyle and Rita felt that this
1.5 was all part of Mr. O'Boyle's public records
16 request and therefore filed a response saying that
17 and that's why she felt justified in, charging a
18 labor charge because she felt that this was a
19 cumulative charge.
1 20 if we go to -- if we go to court on this it's
21 going to cost you much more than $2,000.
22 Mr. Chandler, by the way, has filed several of
23 these kinds of public records lawsuits throughout
24 the state. His name is well-known in communities
25 throughout the state where he's filed similar
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
N
1
public records requests. several communities have
2
settled with him on a financial basis, some for
3
less money.
4
What I'm asking today is for me to have the
5
authority to -- if you approve it -- to go ahead
6
and settle for up to the $2,000. What I'd Like to
7
do is to have the opportunity to negotiate for a
8
Lesser amount and see whether or not that is
9
acceptable.
10
You cannot settle a case in a setting like
11
this. You have to settle a case in a public
12
setting. You do not make motions at this meeting
13
today to settle this case. You can give me
14
direction to negotiate to settle along the terms
15
that are suggested in here.
16
The public records themselves, which is listed
17
at Item 2, have been made, and those public records
18
will be provided to Mr. C:ha.ndlex .
19
The sum of $2,000 could be paid subject to
20
your giving me direction to do that. I can't tell
21
you how much the -- if we go to court it may cost
22
you $10,000 to settle this case.
23
Another way to handle it would be to just
24
admit the allegations in the complaint.
25
Quite frankly, I think the $2,000 is a little
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
7
1
bit high for just having filed the complaint
2
particularly in light of the fact that several of
3
these complaints were being filed at the same time
4
and I think this was fairly boilerplate.
5
Mr. Ring has stated he kept his fees low in
6
order to be able to settle this case.
7
I think it's reasonable to get this last
8
public records case off our plate, and I would like
9
to have the opportunity to negotiate up to $2,000
10
to do so.
11
Item 3, I don't know how to withdraw, strike
12
or retract the statements that were made in our
13
motion and answer. They're part of the court
14
record and I can't -- I can't get rid of what's
15
already part of the record. So I don't know
16
whether he's seeking some sort of an apology from
17
us or not, We were just basically setting forth
18
our best affirmative defense to the complaint.
19
I'm happy to answer any questions that you may
20
have.
21
MR. GANGER: I have a couple of questions
22
which are mystifying to me.
23
Mr. Ring is Mr.O'Boyle's attorney and Brian
24
Whitmer worked for Mr.O'Boyle and was also named
25
and he withdrew his suit.
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
8
1
MR. THRASHER: Brian Whitmer is the third
2
person --
3
MR. RANDOLPH: He was the third person there
4
and he did dismiss his lawsuit. But when we did
5
this settlement we had agreed that Mr. Chandler was
6
separate and apart from the O'Boyle lawsuits.
7
MR. GANGER: I remember that.
8
MR. RANDOLPH: And, therefore, that one
9
remained. It's unfortunate that it did. It would
10
have been nice to get rid of all of them at once.
11
Nevertheless, this is hanging on and Mr. Chandler
12
is claiming he has no relationship to Mr.O'Boyle.
13
It is interesting.
14
I've stated the fact that Mr.O'Boyle's lawyer
15
filed the complaint on his behalf. Mr. Chandler
16
contends that he was separate and apart and didn't
17
have anything to do with Mr.O'Boyle's public
18
records request.
19
MR. STANLEY: Skip, what -- I'll go first --
20
what are the damages to the Town that we -- on
21
these types of cases if you either, you know, you
22
admit the items in the complaint and then there's a
23
judgment, if you will, entered against the Town?
24
MR. RANDOLPH: None other than the fact that
25
we have to pay attorney's fees and costs.
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
i
1
MR.
STANLEY: Basically whatever accrues at
2
that time
it's just what is justifiable before the
3
judge we
would be responsible to pay with the
4
judgment
which ultimately could be less than what
5
you could
settle for, maybe.
6
MR.
RANDOLPH: Maybe.
7
MR.
STANLEY. Maybe.
8
MR.
RANDOLPH: He can charge for the cost of
9
hawing an
attorney come in and testify as to
10
attorney's
fees.
11
MR.
STANLEY: An award of fees and costs in
12
other words?
13
MR.
RANDOLPH: Yes.
14
MR.
STANLEY: That's the answer to my
15
question.
16
MR.
RANDOLPH: And a judgment that's against
17
the Town
of Gu.lfstream in the public records case
18
which is
published.
19
MR.
STANLEY: Obviously. No one ever wants
20
any judgments,
so I understand.
21
MR.
DERING: You may have said it but I missed
22
it, how many
pages did he ask the staff to copy?
23
MR.
RANDOLPH: Oh, gosh. I did not say it but
24
1 have my
file here on the case.
25
MR.
DERING: Better yet, what was the total
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
10
1 bill at 15 cents?
2 MR. RANDOLPH: "Plaintiff sought to obtain by
3 personal delivery of written request to Rita
4 Taylor, the Town clerk and records custodian,
5 copies of all plans which are 11 by 17 in size and
6 of which are in regard to application Number 1 on
7 the agenda of the Town commission meeting dated
8 April 12, 2013 for the premises known as 3211 North
9 Ocean Boulevard. Town clerk acknowledged receipt
10 of the request and informed plaintiff that the
11 request would take approximately 10 minutes to
12 fulfill. Approximately ten minutes later the Town
13
clerk returned with
copies
of the requested
14
documents. The Town
clerk
demanded $6.95 as a
15
condition
of access to the public records.
The
16
calculation
of 6.95 included a charge of 15
cents
17
per 11 by
17 page in addition to a charge for
the
18
time spent
to retrieve copy and refile the
public
19
records."
It does not have a breakdown of
the
20 number of pages.
21 MR. DERI;NG; I guess I could have asked
22 separately what was the charge.
23 Did she offer at anytime to say, well, if you
24 don't want to pay for them we'll argue that later,
25 but here they are?
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
11
1
MR. RANDOLPH: No. It's my understanding that
2
she did not. He just left without the records.
3
MR. DERING: So we didn't offer, okay. In any
4
of these -- whatever you call them --
5
MR. RANDOLPH: Public records --
6
MR. DERING: -- no. In your answer to his
7
suit, or whatever, did we ever -- is the word
8
puppet in there anywhere?
9
MR. RANDOLPH: No.
10
MR. DERING: Why is he making this claim?
11
MR. RANDOLPH: He's using his own word to
12
describe the manner in which we filed our answer.
13
I'll tell you what we said exactly. "The Town
14
averse that it is the Town's reasonable belief that
15
the public records request that is the subject of
16
this action was filed at the direction of Martin
17
O'Boyle. The Town averse in support of this belief
18
the following facts: At the time plaintiff brought
19
the public records request to the Town he was
20
accompanied by O'Boyle who was delivering his own
21
request at the time and another associate of
22
O'Boyle, Ryas Whitmer, who was also delivering a
23
request that the Town believes was submitted at the
24
direction of O'Boyle. The address listed on the
25
public records request is the same address provided
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
LZ
1 by O'Boyle for
the request that he
had submitted to
2 the Town. The
attorney of record
for plaintiff is
3 also the attorney
of record for four
other actions
4 brought against
the Town by or at
O'Boyle's
5 direction with
respect to various
public records
6 request." And then, the Town averse that more than
7 400 public records requests had been filed, that
8 the Town has produced thousands of pages in
9 response. The about Town averse that the Town
10 staff," blah, blah, blah, "The Town averse that the
11 records custodian was under the impression that the
12 request submitted by O'Boyle, Ryan Whitmer and
13 plaintiff could be treated as cumulative requests
14 for purpose of charging for extensive use of
15 resources." So that's -- the word puppet was never
1.6 used.
17 What I'd like to do is go back to Mr. Ring and
18 negotiate a figure with him up to the amount
19
requested unless
you just say that
you're not
20
willing to go up
to $2,000 and the
alternative is
21
we either go to
court, which is not
a good way to
22 go because of the expense, or we file some sort of
23 a statement admitting all of the allegations in the
24 complaint and leaving the matter of attorney fees
25 up to the court. That's still going to cost us
PLEASANTON, GREENHILL, MEEK & MAR.SAA
561/833.7811
13
1 extra money, so
I'd
like --
2 MR. DERING:
No
question about that. I
:3 guess -- I guess
the
issue is somewhere -- I
4
understand settlement is a whole lot
cheaper, but
5
the issue is if we
keep doing this how
many keep
6
coming out of the woodwork?
7
MR, RANDOLPH:
Well, we feel like
we have a
8
pretty good handle
on public records
request at
9
this time, at least
a better handle.
There are
10
many more public --
I mean, Bill, you
can talk at
11
this meeting -- but
there have been --
I'm not
12
asking you to talk,
I'm just telling
you that --
13
there have been other
public records
requests filed
14
since this time by other groups including Mx.
15
O'Hare who was here, and including others who we
16
don't know who they represent. They might just be
17
people who are following in the footsteps of
18
Chandler to attempt to file a case and get a
1.9
monetary settlement lake is being requested here.
20
But we do have a paralegal, it's actually a law
21
student, who is coming into Town. Hall at a very low
22
rate to assist with the public records thing. So
23
we feel like we have a better handle on this than
24
we did back then when all of these were being --
25
were being filed. Our hope is that if we do that
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
14
1 we can avert future public records request lawsuits
2 by complying exactly with the law as it relates to
3 these things. Now that's not a guarantee that
4 someone is not going to allege that they got some
5 rights to these records and that we may have some
6 disagreement on. But anything you do I suppose
7 could -- could cause a precedent if they see you
8 settled just like any other suit you file may cause
9 a precedent -- that you settle. $2,000 in this
10 case is --
11 MR. GANGER: Your knowledge base probably
12 isn't any different than mine with respect to Mr.
13 O'Boyle's filing of a lawsuit against the county
14 for a $1.89 charge. is that -- is the County going
15 to -- according to the newspaper the county said
16
that they,
you know, will take
that one on. Is
17
there any
precedent in what the
county is doing
18
that could
be helpful to us in
anyway?
19
MR. RANDOLPH: In regard to
-- let me just say
20
something.
This hearing today
has to strictly
21
relate to
the settlement that's
before you.
1 22 MR. GANGER: Okay.
123 MR. RANDOLPH: We should not have discussions
24 in regard to other suits -- other matters.
25 MR. GANGER: I understand that.
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7611
15
1
MR. RANDOLPH: I ask if you want to talk about
2
what they might be doing or if there's anything
3
helpful in that regard that we -- that we discuss
4
that at another time.
5
MR. GANGER: Okay, fine. I withdraw the
6
question.
7
MAYOR ORTHWEIN: I would like to point out
8
that we do have Trey, he's a law student, and Keith
9
is very familiar with public records requests on
10
board now. We are handling things in a much more
11
appropriate way going forward.
12
MR. DERING: We have them available. The
13
issue is he didn't want to pay 15 cents. He wanted
14
to pay whatever the actual cost is which nobody
15
knows.
16
MR. RANDOLPH: I think he alleged it was more
17
like 7 or 8 cents, something like that. The fact
18
is -- I'm not sure -- unless you want to go in and
19
fight this case which would cost you a lot more
20
than $2,000, I'm not sure the -- that it serves
21
very much purpose for us to discuss whether we're
22
right or they were right in regard to this public
23
records request. I think we got some, you know, we
24
got some good arguments to make in court, but
25
that's not the issue before you today if you don't
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7611
M
1 want to go to court and spend money paying me to go
2 to court and possibly pay their attorney fees. The
3 issue today is if you want to get rid of this one
4 and move on.
5 MR. UERING: The issue is if we got any holes
6 in our case or we're pretty ironclad in your
7 opinion legally then you still got to make the
8 judgment --
9 MAYOR ORTHWEIN: T appreciate all your
1.0 comments, but under the situation -- the situation
11. we're dealing with and everything that happened
12 with the public records request this summer I think
13 it's -- it would be prudent on our part to give
14 Skip the direction to pay up to 2,000 and try to
15 settle for Less. We have everything in place now
16 to deal with public records requests. It was
17 unfortunate we got into this situation but we did,
18 and I think we need to move forward and not tie up
19 and pay more legal fees trying to fight something.
20 That is my opinion.
21 MR. GANGER: I completely --
22
MR.
DERING: I'm not here
saying we
should
23
fight it.
I'm here because --
it's got
nothing to
24
do with this,
but
I've
seen these
types of
things
25
happen before
and
you
keep doing
it, guess
what,
PLEASANTON, GREENHILL, MEEK & MARSAA
561./833.7811.
17
1
they keep coming at you. They're paying attorney
2
fees if we win?
3
MR.
RANDOLPH: No.
4
MR.
DERING: No?
5
MR.
RANDOLPH: No. We have to pay their
6
attorney
fees.
7
MR.
DERING: If we win?
8
MR.
RANDOLPH: Right,
9
MAYOR ORTHWEIN: This is something that -- I
10
don't --
11
MR.
DERING: Excuse me a minute. If we go to
12
court we
pay our attorney fees --
13
MR.
RANDOLPH: I don't think so - -
14
MR,
DERING: -- and we pay their attorney fees
15
even if we win"?
16
MR.
RANDOLPH: I think the statute provides,
17
and I'll
have to look at it and get back to you.,
18
but I think
the statute provides -- I don't think
19
it says
the prevailing party gets attorney's fees.
2❑
I think
it says in the event that the person filing
21
the public
records request prevails that they're
22
entitled
to their attorney fees,
23
MR.
DERING: So if they prevail we pay their
24
attorney's
fees. If they don't we pay ours and
25
they pay
theirs?
PLEASANTON, GREENHILL, MEEX & MARSAA
561./833.781.1.
18
I
MR. RANDOLPH: Yes.
2
MR. DERING: Excuse me, I just wasn't clear.
3
MAYOR ORTHWEIN: That's fine if you want to
4
clarify that.
5
MR. GANGER: Joan, you made the point, and
6
it's a point well. taken. This is one you want
7
behind you. I'm 1.00 percent confident Skip will. do
8
his damnedest to get a fair settlement. I think
9
$2,000 is an outrageous amount of money for what --
10
for this purpose. I would start Lower and
11
authorize you to go to $2,000 and do it quickly.
12
As you say here, time is not our friend and --
13
MR. RANDOLPH: That was his .letter.
14
MR. GANGER: I understand. But I think -- I
15
understand where he is, too. This could drag out
16
and cost more and more money and more angst and
17
everything else.
18
MR. RANDOLPH: I will use my discretion in
19
regard to Item 3. I told Ball Ring we can't redact
20
something that's already filed in the court. So he
21
may ask for a -- something else. But if he does
22
I'll have to come back to you. Remember, whatever
23
happens in regard to the settlement has got to be
24
done in public, so if there's a -- a nuance to this
25
that I haven't presented to you today I would come
PLEASANTON, GREENHILL, MEEK & MMARSAA
561/833.7811
19
1
back to you in another short closed -door session
2
and tell you what happened and then we can settle
3
at the public meeting after.
4
If it's your consensus today that you give me
5
the authority to negotiate up to $2,000 on this
6
settlement I will do that and then when you resume
7
at your public part of the meeting there's nothing
8
to announce because you haven't settled yet, but
9
you could say we had the meeting, we've given
10
Mr. Randolph direction in regard to how to proceed
11
period. That's what you would do at the public
12
meeting and then you would adjourn.
13
MR. GANGER: Just for facts, because if
14
somebody reads this in the public record, is this
15
gentleman who brought this a resident or
16
representing a resident?
17
MR. RANDOLPH: No. No, he's not a resident.
18
MR. GANGER: I personally -- that's germane to
19
me.
20
MS. WHITE: Do you know his profession?
21
MR. RANDOLPH: He's an attorney --
22
MS. WHITE: He's an attorney --
23
MR. RANDOLPH: -- maybe he's not.
24
MR. THRASHER: I do not believe he is. This
25
is how he makes his money he and his brother.
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
W
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. RANDOLPH: What's the name of the
organization?
MR. THRASHER: Fogwatch, one word.
MR. RANDOLPH: You're right, he's not an
attorney.
If there's not -- there should be a bullet
here, but if it's the consensus that we proceed as
Mr. Ganger has suggested to allow me to negotiate
to resolve this lawsuit and get a dismissal and
releases up to $2,000 I will go ahead and do that
unless I hear something from you to the contrary.
MAYOR ORTHWEIN. I'm in agreement with that,
obviously, that's what I stated.
MR. STANLEY: I'm in agreement.
MR. RANDOLPH: Okay. We can adjourn this
closed door session at this point. This meeting
will terminate. We'll go back into public session.
if there's still members of the public that are
waiting we should ask them to come in.
MR. GANGER: I don't believe there are. Rita
has to come back for the adjournment.
MAYOR ORTHWEIN: We're adjourned.
(Whereupon the session is concluded at 6:35 p.m.)
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
CERTIFICATE OF REPORTER
STATE OF FLORIDA )
COUNTY OF
I, JULIE ANDOLPHO, Court Reporter, certify
that I was authorized to and did stenographically
report the foregoing proceedings and that such
transcription, Pages 1 through herein is a true
and accurate record of my stenographic notes.
I further certify that I am not a relative or
employee or attorney or counsel of any of the
parties, nor a relative or employee of such attorney
or counsel, or financially interested, directly or
indirectly, in this action.
The certification does not apply to any
reproduction of the same by any means unless under the
direct control and/or direction of the reporter.
Dated this 4 � day of 19W�u6_ , 2013.
Court Reporter.
$1,89 14;14
$10,000 6:22
$2,000 3:6 5:21
6:6,19,25 7:9
12.,20 14:9
15:20 18:9,11
19:5 20:10
$3.50 3:24
$6.95 10:14
1
1 10:6 21:7
10 10;11
100 18:7
11 4:15 10:5,17
12 10:8
13 1:6
15 3;22
4:2,13,18,22
10:1,16 15:13
1.5th 21:20
17 4:15 10:5,17
2
2 6:17
2,000 16:14
2013 1:6 10:8
21,20
21 21.7
3 7:11 18:19
321.1 10: e
4
400 12:7
6
6.95 10;16
6:10 1:6
6:35 1:6 20:23
7
7 15:17
8
8 15:17
A
able 7:6
acceptable 6:9
access 10:15
accompanied 11:20
according 14:15
accrues 9:1
acknowledged 10:9
action 11:16
21:13,14
actions 12:3
actual 4:25 15:14
actually 13:20
addition 10:17
address 11:24,25
adjourn 19:12
20:15
adjourned 20:22
adjournment 20:21
admit 6:24 8:22
admitting 12:23
advice 2:17
affirmative 7:18
afterwards 2:13
against 8:23 9:16
12:4 14:13
agenda 10:7
agreed 8:5
agreement 2:18,19
20:12,14
ahead 6:5 20:10
allegations 6:24
12:23
allege 14:4
alleged 1.5:16
allegedly 4:4
allow 20:8
already 7:15
18:20
alternative 12:20
am 21:10,11,13
amount 3:23 6:8
12:18 18:9
and/or 21:17
Andolpho 1:18
21:4,22
angst 18:16
announce 2:1 19:8
answer 3:10
7:13,19 9:14
11:6,12
anything 2:14
8:17 14:6 15:2
anytime 10:23
anyway 14:18
anywhere 11:8
apart 8:6,16
apology 7:16
appeals 2:8
application 10:6
apply 21:16
appreciate 160
appropriate 15:11
approve 6:5
approximately
10:11,12
April 10:8
argue 10:24
argued. 5 : 9
argument 4:20
arguments 15:24
assist 13:22
associate 11:21
attached 5:7
attempt 13:18
ATTENDANCE 1:10
attorney 1:17 3:7
7:23 9:9
12:2,3,24 16:2
17:1,6,12,14,22
19:21,22 20:5
21:10,12
attorney's 8:25
9:10 17:19,24
authority 6:5
19.5
authorize 18:11
authorized 21:5
available 15:12
averse 11:14,17
12:6,9,10
avert 14:1
award 9:11
B
base 14:11
Page I of 5
basically 2:20
4:4 5:13 7:17
9:1
basis 6:2
BEACH 21:2
becomes 2:7
behalf 8:15
behind 18:7
belief 11:14,17
believe 3:16,18
19:24 20:20
believes 11:23
best 7:18
better 9:25
13:9,23
bill 3.22,23 10:1
13:10 18:19
bit 7:1
blah 12:10
board 15:10
boilerplate 7:4
Boulevard 10:9
breakdown 10:19
Brian 7:23 8:1
brother 19:25
brought 11:18
12:4 19:15
bullet 20:6
C
calculation 10:16
case
6:10,11,13,22
7:6,8 9:17,24
13:18 14:10
15:19 16:6
cases 8:21
cause 14:7,8
cents 3:22
4:2,13,19,22
10:1,16
15:13,17
certain 3:20
certification
21:15
certify 21:5,10
certifying 21:18
challenged 4:1
Chandler 2:23
PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
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8:5,11,15 13:18
charge
4:2,3,13,14,17,
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9:8 10:16,17,22
14:14
charged 4:22 5:3
charging 4:11
5:17 12:14
cheaper 13:4
claim 4:12 11:10
claiming 8:12
claims 4:18
clarify 18:4
clear 18:2
clerk
10:4,9,13,14
closed 2:17 20:16
closed -door 1:1
2:2,4 19:1
21:6,9
coming 3:15
13:6,21 17:1
comments 2:11
16:10
commission. 10:7
Commissioner
1:12,13,14,15
communities 5:24
6:1
complaint 3:25
6:24 7:1,18
8:15,22 12:24
complaints 7:3
completely 16:21
complying 14:2
concluded 20:23
condition 10:15
confident 18:7
connected 2:8
21:12
consensus 19:4
20:7
contend 4:21
contends 6:16
contrary 20:11
control 21:17
copies
4:14,16,17,23,2
4 5:1 10:5,13
copy 3:23 9:22
10:18
correct 3:17 21:8
cost 4:14,17,18
5:1,21 6:21 9:8
12:25 15:14,19
18:16
costs 3:7 5:4,5
8:25 9:11
counsel 21:11,12
county
14:13,14,15,17
21:2
couple 7:21
court 1:18 2:5
5:20 6:21 7:13
12:21,25 1.5:24
16:1,2 17:12
18:20 21:22
cumulative 5:7,19
12:13
custodian 10:4
12:11
0
damages 8:20
damnedest 18:8
dated 10:7
day 21:20
deal 16:16
dealing 16:11
defense 7:18
delivering
11:20,22
delivery 10:3
demanded 10:14
DERING 1 : 13 2 : 2 5
3:4 9,21,25
10:21 11:3,6,10
13:2 15:12
16:5,22
17:4,7,11,14,23
18:2
describe 11:12
different 14:12
direct 21:17
direction 6:14,20
11:16,24 12:5
16:14 19:10
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disagreement 14:6
discretion 16:18
discuss 15:3,21
discussions 14:23
dismiss 8:4
dismissal 20:9
dismissed 2:22
documents 10:14
done 18:24
DONNA 1:12
door 2:17 20:16
drag 18:15
duplication
4:14,17,18 5:1
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either 8:2l 12:21
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18:17,21
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event 17:20
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16:11,15 18:17
exactly 11:13
14:2
excuse 2:23 17:11
18:2
expense 12:22
extensive 12:14
extra 5:5 13:1
extraordinary 5:5
F _
fact 7:2 8:14,24
15:17
facts 11:18 19:13
fair 18:8
fairly 7:4
familiar 15:9
feel 5:13 13:7,23
fees 3:7 7:5 8:25
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16:2,19
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Page 2 0f 5
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felt 5:6,14,17,18
fight 15:19
16:19,23
figure 12:18
file 5:9 9:24
12:22 13:18
14:8
filed 3:15 4:8,9
5:16,22,25
7:1, 3 8:1.5
11:12,16 12:7
13:13,25 18:20
filing 14:13
17:20
financial 6:2
financially 21:13
fine 15:5 18:3
first 8:19
Florida 2:2 21:2
F'ogwatch 20:3
footsteps 13:17
foregoing 21:15
forgoing 21:6
forth 3:24 7:17
forward 15:11
16:18
frankly 6:25
friend 18:12
fulfill 10:12
future 14:1
Ganger 1:14 7:21
8:7 14:11,22,25
15:5 16:21
18:5,14
19:13,18
20:8,20
GAR.RETT 1:13
gentleman 19:15
germane 19:18
gets 17:19
given 19:9
giving 6:20
gosh 9:23
groups 13:14
guarantee 14:3
guess 10:21 13:3
PLEASANTON, GR.EENHILL, MEEK & MARSAA
561/833,7811
16:25
Gu.lfstream 1:1, 5
9:17
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hand 21:20
handle 6.23
13:8,9,23
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hanging 8:11
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19:2
happens 18:23
happy 7:19
haven't 18:25
19:8
having 7:1 9:9
hear 20:11
hearing 14:20
helpful 14:18
15.3
hereby 21:5
hereunto 21:19
he's 4:22 5:25
7:16 11:11 15:8
19:17,21,22,23
20.4
high 7:1
holes 16:5
hope 13:25
I
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13:1
i'11 8:19 11:13
17:17 18:22
I'm 6:4 7:19
13 :11, 12
15:18,20
16:22,23 18:7
20:12,14
impression 12:11
included 10:16
including
13:14,15
inclusive 21:7
informed 10:10
insulting 3:12
interested 21:13
interesting 8:13
ironclad 16:6
isn't 14:12
issue 5:2 13:3,5
15:13,25 16:3,5
issues 5:2
Item 6:17 7:11
18.19
items 8:22
it's 2:4,17,20
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Joel 2:23
JOHN 1:17
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PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
18:3 20:12,22
others 2:21 13:15
ours 17:24
outrageous 18:9
oversized
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PLEA.S'ANTON, GREENHILL, MEEK & MARSAA
561/833.7811
September 1:6
21:20
serves 15:20
session 1:1 2:2,4
19:1
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setting 6:10,12
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STANLEY 1:15 8:19
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state 5:24,25
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Town 1: 1, 5, 16, 17
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transcript 2:6,7
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Whereupon 20:23
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written 10:3
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PLEASANTON, GREENHILL, MEEK & MARSAA
561/833.7811
JON-MSFOSTER.
.I01INSION & S I UBBS, V A
John C. Randolph
Attorney
661-650-0458
Fax: 561-650-5300
jrandolph@jonesfoster com
November 15, 2013
William R. Ring, Esquire
1280 W. Newport Center Drive
Deerfield Beach, Florida 33432
Re: Chandler vs Town of Gulf Stream
Case No 2013 CA 007789 XXXX MB AN
Our File No 13147.24
w
Please find enclosed the check made payable to your trust account in the amount of
$1,500,00 from the Town of Gulf Stream, along with the documents that were requested
by Mr Chandler. Also enclosed is the executed Joint Stipulation of Dismissal With
Prejudice and the Release of All Claims signed by the Mayor of the Town of Gulf
Stream.
Please execute and file the Joint Stipulation of Dismissal with Prejudice and have Mr.
Chandler execute the Release, providing me with copies of each.
Please call me if you have any comments or questions.
Sincerely,
JONES, FOSTER, JOHNSTON & STUBBS, P..A
John C. Randolph
JCR/ssm
cc. William H. Thrasher, Town Manager
Shicc 1934 1 West Palm Beach I jupitcr FhglCo-rnicr'luwcr
505 SMII11 FhgICr I)riN'C. Suite 1100
W'Lq ['nlm Beach. Fkrid;i >3401
Item t± F360 To reofdar ()fease call £3lackl oud Form, at our tail free nl mbe'r. 1356 .1221676 11479
TOWN OF GULF STREAM OPERATING ACCOUNT
Co: William F Ring Jr, Esq PA Trust Account
001-53110-513-10 Legal Services - Admin
�FRAUD
Tf1lAlnl nC !±I 11 C QT0C A It SUNTRUST BANK `1ARMOR'
CHECK DATE
11/13/2013
11479
CHECK NO,
.Y
V
11/13/2013 11479
0
CHECK AMOUNT
0
$*' 1,500,00
a
u
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Mp a
G
ZED SIGNATURE-
a
N
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
JOEL CHANDLER,
Plaintiff,
v,
CASE NO.: 2013 CA 007789 XXXX MB AN
THE TOWN OF GULF STREAM,
Defendant.,
JOINT STIPULATION OF DISMISSAL WITH PRE, UDICE
This Joint Stipulation of Dismissal is made between Plaintiff Joel Chandler ("Chandler")
and Defendant Town of Gulf' Stream (the "Town") (together, the "Parties"), The Parties have
reached an agreement to fully and finally dispose of this action. Among other things, the Parties
have agreed as follows;
That the above styled action is hereby dismissed with prejudice..
2. That the Town hereby withdrawals, retracts, and voluntarily strifes the averments
set forth in paragraph 44 of the Town's Answer to the Complaint that the Plaintiff was acting at
the direction of another party, person or entity..
npick-
Joa 'Connor, Esquire
Flori a Bar No. 0498807
joconnor@ jonesfoster.com
Ashlee A. Richman, Esquire
Florida Bar No. 0091609
arichman @ ionesfoster.com
Jones, Foster, Johnston & Stubbs, P.A.
505 South Flagler Drive
Suite 1100
West Palm Beach, FL 33401
Attorneys for Defencant
William F. Ring, Jr, Esquire
Florida Bar No.: 961795
wring@ commerce-grorup. com
William F. Ring, .Jr. ESQUIRE P.A,
1280 W. Newport Center Dr.
Deerfield Beach, Florida 33442
Telephone: (954) 570-3510
Fax: (954).360-0807
Attorney for Plaintiff
RELEASE OF ALL CLAIMS ("Release")
1. FOR AND IN CONSIDERATION OF the payment to Mr. Joel Chandler (hereinafter "Chandler") of the sum of one dollar
($1.00), and other good and valuable consideration, Chandler has released and discharged, and by these presents does for itself,
its heirs, executors, administrators and assigns, release, acquit and forever discharge the Town of Gulf Stream (hereinafter "Gulf
Stream") from all causes of actions, claims, demands and damages resulting from Chandler's public records request dated April
15, 2013 which bears the identification #333, which is the subject of the lawsuit styled Joel Chandler v. The Town of Gulf Stream,
which was filed on May 6, 2013 in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, which is
designated by the Case Number: 2013 CA 007789 XXXX MB AN,
2. FOR AND IN CONSIDERATION OF the payment to Gulf Stream of the sum of $1.00, and other good and valuable
consideration, the Gulf Stream has released and discharged, and by these presents do for themselves, their successors, heirs,
executors, administrators and assigns, release, acquit and forever discharge Chandler from all causes of actions, claims, demands
and damages resulting from Chandler's public records request dated April 15, 2013 which bears the identification #333, which is the
subject of the lawsuit styled Joel Chandler v. The Town of Gulf Stream, which was filed on May 6, 2013 in the Circuit Court of the
Fifteenth Judicial Circuit in and for Palm Beach County, Florida, which is designated by the Case Number: 2013 CA 007789 XXXX
MB AN.
3. Both Chandler and Gulf Stream understand and agree that the consideration as set forth above is the compromise of a
disputed claim and is not to be construed as an admission of liability on the part of parties by whom liability is expressly denied,
4. This Release is governed by and shall be construed in accordance with the laws of the State of Florida.
5 Chandler and Gulf Stream through their authorized representatives have carefully read this Release and know the
contents thereof, and are signing the same as their own free act.
IN WITNESS WHEREOF, the undersigned has executed this Release of the day and date first written above,
JOEL CHANDLER
By:
TOWN OF GULF ST M}
By:
CYA YOR
WFRESQPAIJC333
10,28,2013
Page 1
RELEASE OF ALL CLAIMS ("Release")
1. FOR AND IN CONSIDERATION OF the payment to Mr. Joel Chandler (hereinafter "Chandler") of the sum of one dollar
($1.00), and other good and valuable consideration, Chandler has released and discharged, and by these presents does for itself,
its heirs, executors, administrators and assigns, release, acquit and forever discharge the Town of Gulf Stream (hereinafter "Gulf
Stream") from all causes of actions, claims, demands and damages resulting from Chandler's public records request dated April
15, 2013 which bears the identification #I333, which is the subject of the lawsuit styled Joel Chandler v. The Town of Gulf Stream,
which was filed on May 6, 2013 in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, which is
designated by the Case Number: 2013 CA 607789 XXXX MB AN.
2. FOR AND IN CONSIDERATION OF the payment to Gulf Stream of the sum of $1.00, and other good and valuable
consideration, the Gulf Stream has released and discharged, and by these presents do for themselves, their successors, heirs,
executors, administrators and assigns, release, acquit and forever discharge Chandler from all causes of actions, claims, demands
and damages resulting from Chandler's public records request dated April 15, 2013 which bears the Identification #333, which Is the
subject of the lawsuit styled Joel Chandler v. The Town of Gulf Stream, which was filed on May 6, 2013 in the Circuit Court of the
Fifteenth Judicial Circuit in and for Palm Beach County, Florida, which Is designated by the Case Number. 2013 CA 007789 XXXX
MB AN.
3. Both Chandler and Gulf Stream understand and agree that the consideration as set forth above is the compromise of a
disputed claim and is not to be construed as an admission of liability on the part of parties by whom liability is expressly denied.
4. This Release Is governed by and shall be construed in accordance with the laws of the State of Florida.
5. Chandler and Gulf Stream through their authorized representatives have carefully read this Release and know the
contents thereof, and are signing the same as their own free act.
IN WITNESS WHEREOF, the undersigned has executed this Release of the day and date first written above.
By:
7
C//
TOWN OF GULF S
By:
Q�kj&�04--
YIYOR
WFRESOPAWC333
10.20 2013
Page 1
Please allow this letter to respond to your September 17, 2014 request for more detailed
information regarding unethical activities committed by Florida attorney Ryan L. Witmer. In
addition to those facts outlined in my prior correspondence of _________ regarding the activities
of the O’Boyle Law Firm, of which Mr. Witmer was a principal and the purported supervising
attorney of the Florida office, I would note the following:
Ryan Witmer and Jonathan O’Boyle graduated from Drexel University School of Law in
2012
Ryan Witmer was admitted to the Florida Bar on November 6, 2013.
Jonathan O’Boyle’s application to the Florida Bar is pending.
Prior to his admission to the Florida Bar, Ryan Witmer was employed in Florida as a
paralegal to Florida attorney William Ring, the Vice President of the Commerce Group,
Inc. and the former President of the Citizens’ Awareness Foundation. (See Chandler
Stmt. at 35). Jonathan O’Boyle’s father, Martin O’Boyle, is the President of the
Commerce Group.
Both the Commerce Group and CAFI, which are Florida corporations, along with
numerous other Florida corporations and entities controlled by and/or affiliated with
Martin O’Boyle, are located at 1280 S. Newport Center Dr., Deerfield Beach, Florida.
On November 14, 2013, Jonathan O’Boyle incorporated the O’Boyle Law Firm, P.C.,
formerly known as Jonathan R. O’Boyle P.C. in Pennsylvania in November 2013.
After becoming admitted to the Florida Bar, Ryan Witmer and Jonathan O’Boyle took
steps to set up a Florida law practice dedicated to open government litigation. (Chandler
Stmt. at 22).
To that end, the O’Boyle Law Firm applied to transact business in Florida with the
Florida Division of Corporations on or about January 15, 2014. That application
represented as follows:
o Jonathan O’Boyle is the President and sole officer and director of The O’Boyle
Law Firm;
o A principal office address at address of 1280 W. Newport Center Drive, Deerfield
Beach, FL 33442; and
o A mailing address of 2146 E. Huntingdon Street, Philadelphia, PA 19125
The O’Boyle Law Firm purports to be an interstate law firm with addresses in Florida
and Pennsylvania. (See Transcript of Hearing Before Hon. Thomas Barkdull 4/10/14
attached hereto, at 4-6).
Ryan Witmer and Jonathan O’Boyle were the principals of the O’Boyle Law Firm, at
least until Witmer’s departure a couple of months ago. (See id. at 6).
During all - if not a significant portion - of the time period during which it was
purportedly led by Florida superving attorney Ryan Witmer, the O’Boyle Law Firm was
a captive law firm of the Commerce Group, Inc., CAFI and other entities controlled by or
affiliated with Martin O’Boyle at 1280 W. Newport Center Drive, Deerfield Beach,
Florida. The firm was “housed in the Commerce Group operation” without a separate
entrance or sign on the door acknowledging its status as a law firm. (Chandler Stmt. at
33). Attorneys for the O’Boyle Law Firm shared paralegals and other employees with the
Commerce Group, Inc. and those employees were free to walk through the space shared
by the two entities (see Chandler Stmt. at 32-33; Application of O’Boyle Law Firm to
transact business in Florida , available at www.sunbiz.org, reflecting submission by
paralegal Norma Lenna, nlenna@commerce-group.com. Numerous lawsuits were
thereafter filed by O’Boyle Law Firm attorneys, including Witmer, using email addresses
as the commerce-group.com domain.
CAFI was incorporated as a Florida non-profit corporation on January 27, 2014.
CAFI’s former Executive Director, Joel Chandler, has testified that Jonathan O’Boyle, a
non-Florida lawyer and Witmer’s partner if not superior as President of the O’Boyle Law
Firm was working full-time and directing the activities of the O’Boyle Law Firm in
Florida. (Chandler Stmt. at
Martin O’Boyle loaned monies to Witmer and Jonathan O’Boyle to fund the O’Boyle
Law Firm. He also funded one of its principal clients, CAFI. (Chandler Stmt. at 42).
However, with the exception of dismissed cases, Witmer remains counsel of record in at
least the following suits filed by him while a partner at the O’Boyle Law Firm (this
reflects only my understanding of suits filed against the Town of Gulf Stream and suits
th
filed by CAFI in the 15 Judicial Circuit in and for Palm Beach County):
O’Hare v. Town of Gulf Stream, Case No. 2014CA000818 XXXXMB AG (filed 1/22/14;
voluntarily dismissed 5/9/14)
O’Hare v. Town of Gulf Stream, Case No. 2014CA000824 XXXXMB AA (filed 1/22/14;
pending)
O’Hare v. Town of Gulf Stream, Case No. 2014CA000835 XXXMB AG (filed 1/22/14;
pending; Witmer remains counsel of record)
O’Hare v. Town of Gulf Stream, Case No. 2014CA000894 XXXXMB AN (filed 1/24/14;
pending; Witmer remains counsel of record) (Verhonda Williams also appeared 7/28/14)
O’Boyle v. Town of Gulf Stream, Case No., 2014CA000834 XXXXMB AH (filed
1/31/14; pending)
Citizens Awareness Foundation, Inc. v. Gardens School of Technology Arts, Inc., Case
No. 502014CA005448XXXXMB AJ (filed 5/6/14; pending)
O’Boyle and O’Hare v. Town of Gulf Stream, Case No. 2014CA005628 AA (filed 5/8/14;
pending).
While purportedly under the direction of Witmer and/or Jonathan O’Boyle, other
attorneys at the O’Boyle Law Firm filed several suits on behalf of CAFI against the
th1
Town of Gulf Stream in the 15 Judicial Circuit in and for Palm Beach County:
Citizens Awareness Foundation, Inc. v. Town of Gulf Stream, Case No. 2014CA003396
XXXXMB AB (filed 3/21/14; dismissed 4/25/14)
Citizens Awareness Foundation, Inc. v. South Florida Water Management District, Case
No. 2014CA001392XXXXMB – AG (filed 2/4/14)
Based on Notices of Appearance filed by new attorneys in cases previously directed b
Witmer on behalf of the O’Boyle Law Firm against the Town of Gulf Stream, it appears
that he left the O’Boyle Law Firm at some point during the summer of 2014. The Florida
Bar reflects that he is associated with Borowski Law in New York although that firm’s
website does not reflect such an association. See www.borowskilaw.com.
The Town respectfully submits that the aforementioned facts and those set forth in my prior
correspondence reflect violations of the following Rules Regulating the Florida Bar:
Sharing Space with Non-Lawyers, Sharing Client Confidences: While Witmer was a
founding partner if not the Florida supervising attorney of the O’Boyle Law Firm, he
caused the firm to share space with its clients including the Commerce Group, CAFI and
numerous other legal entities that identify 1280 West Newport Center Drive as their
principal place of business in violation of Rule Reg. Fla. Bar 4-1.6.
Captive Law Firm and Feeder Relationships: Joel Chandler testified that Martin O’Boyle
loaned money to his son Jonathan O’Boyle and Jonathan’s friend Ryan Witmer to fund
the O’Boyle Law Firm and also funded its client, CAFI. Mr. Witmer allowed the
O’Boyle Law Firm to be housed in the offices of Martin O’Boyle’s entities including the
Commerce Group, Inc. and CAFI. The O’Boyle Law Firm under Mr. Witmer’s direction
1
Again, it is entirely unclear when Witmer separated from the O’Boyle Law Firm. He filed his
last suit against Gulf Stream on May 8, 2014 so that date is used for my purposes here. A search
th
of the records of the 15 Judicial Circuit reveals numerous additional public records suits filed
by the O’Boyle Law Firm on behalf of CAFI after that time. Many of those suits were filed
against government contractors and non-profits including the Area Agency on Aging of Palm
Beach and the Treasure Coast, Inc., the Palm Beach County Substance Abuse Coalition, the
Homeless Coalition of Palm Beach County, Inc. and the Florida Family Child Care Home
Association, Inc.
filed dozens of lawsuits on behalf of Mr. O’Boyle and CAFI such that those entities
improperly fed legal work to the O’Boyle Law Firm. Fla. Bar Ethics Op. 02-8 )Jan. 16,
2014; R. Reg. Fla. Bar. 4-7.18(a).
Windfall Fee Scheme: Mr. Chandler’s testimony describes a windfall fee scheme
practiced by the O’Boyle Law Firm while under the direction and control of Witmer
and/or Jonathan O’Boyle. That scheme violated rules on engagement agreements,
excessive fees, and improper solicitation. R. Reg. Fla. Bar 4-1.5(f)(1), (2) and (5); 4-
1.5(a).
Aiding and Abetting the Unlicensed Practice of Law: Chandler testified that Jonathan
O’Boyle and his Ryan Witmer jointly established the O’Boyle Law Firm in Florida and
that Jonathan O’Boyle was working full-time in Florida. Crediting his testimony, Witmer
allowed a non-Florida lawyer, Jonathan O’Boyle to use his Florida law license as a front
to “establish an office or other regular presence in Florida for the practice of law” and to
conduct the unlicensed practice of law in violation of R. Reg. Fla. Bar 4-5.5.
Please allow this letter to respond to your September 17, 2014 request for more detailed
information regarding unethical activities committed by Florida attorney Giovani Mesa.
My prior correspondence of _________, supported by the July 23, 2014 Statement of Joel
Chandler, outlined the improper and unethical activities of the O’Boyle Law Firm and its
principal Jonathan O’Boyle, as well as the improper feeder relationship between the O’Boyle
Law Firm and entities controlled by Martin O’Boyle including the non-profit Citizens’
Awareness Foundation, Inc. (“CAFI”) of which Florida attorney William Ring is a former officer
and director.
Mr. Mesa has been an attorney with the O’Boyle Law Firm since it was authorized to
transact business in Florida on February 10, 2014 (see www.sunbiz.org), if not before. I have
attached a list of cases that reflect all of those public records lawsuits filed by Mr. Mesa as an
attorney with the O’Boyle Law Firm against the Town of Gulf Stream and the cases of which I
th
am aware that Mr. Mesa has filed on behalf of CAFI in the 15 Judicial Circuit in and for Palm
Beach County, Florida. Searches of Westlaw reflect numerous other cases filed by CAFI against
governmental and non-profit entities throughout the state of Florida since the beginning of 2014.
In April 2014, Mr. Mesa appeared before the Honorable Thomas Barkdull in the Circuit
th
Court of the 15 Judicial Circuit on a public records suit brought by the O’Boyle Law Firm on
behalf of client Jason Weeks against the Town of Palm Beach. (An excerpt of that transcript is
attached). The President of the O’Boyle Law Firm, Jonathan O’Boyle, had attended the hearing
with Mr. Mesa and Judge Barkdull inquired as to whether Jonathan was admitted to the Florida
Bar. Jonathan O’Boyle advised that we was acting as Mr. Mesa’s paralegal. Mr. Mesa went on to
advise Judge Barkdull that the O’Boyle Law Firm had just 4 attorneys in Florida including
himself (and this would include Ryan Witmer, Jonathan O’Boyle’s purported partner and co-
founder of the firm). While I have not pulled the dockets on all of the other public records suits
filed on behalf of CAFI around the state of Florida, it is reasonable to believe given the limited
number of attorneys in the O’Boyle Law Firm, that many were filed by Mr. Mesa.
The former Executive Director of CAFI, Joel Chandler has testified that during the time
period that Mr. Mesa has been associated with the O’Boyle Law Firm it was a captive law firm
of the Commerce Group, Inc., CAFI and other entities controlled by or affiliated with Martin
O’Boyle at 1280 W. Newport Center Drive, Deerfield Beach, Florida. The firm was “housed in
the Commerce Group operation” without a separate entrance or sign on the door acknowledging
its status as a law firm. (Chandler Stmt. at 33). Attorneys for the O’Boyle Law Firm shared
paralegals and other employees with the Commerce Group, Inc. and those employees were free
to walk through the space shared by the two entities (see Chandler Stmt. at 32-33; Application
of O’Boyle Law Firm to transact business in Florida, available at www.sunbiz.org, reflecting
submission by paralegal Norma Lenna, nlenna@commerce-group.com. CAFI was not permitted
to refer cases to attorneys other than those at the O’Boyle Law Firm.
Moreover, Chandler has testified that Jonathan O’Boyle, a non-Florida lawyer and
President of the O’Boyle Law Firm was working full-time and directing the activities of the
O’Boyle Law Firm in Florida including assigning cases to himself.
Given Mr. Mesa’s long tenure at the O’Boyle Law Firm and his representation of CAFI
in light of the testimony of Joel Chandler, I believe that Mr. Mesa has committed the Florida Bar
rule violations identified in my initial correspondence including:
Sharing client confidences and space with non-lawyers in violation of R. Reg.
Fla. Bar 4-1.6.
Engaging in an improper feeder relationship with CAFI and other entities
controlled by Martin O’Boyle, father of the O’Boyle Law Firm’s President
Jonathan O’Boyle. Fla. Bar Ethics Op. 02-8 (Jan. 16, 2004).
Improperly prosecuting public records lawsuits against the Town of Gulf
Stream and throughout the State of Florida to collect clearly excessive fees
and fees generated by employment obtained through solicitation not in
compliance with R. Reg. Fla. Bar. 4-1.5(a)
Aiding and abetting Jonathan O’Boyle’s unlicensed practice of law in
violation of R. Reg. Fla. Bar 4-5.5.
Please do not hesitate to contact me should you have any questions or require additional
information.
EXHIBIT
TH
Public Records Suits – 15 Judicial Circuit (Giovani Mesa)
O’Boyle v. Town of Gulf Stream, Case No. . 2014CA001572XXXXMB AJ (filed 2/7/14; pending)
O’Hare v. Town of Gulf Stream, Case No. 2014CA01833XXXXMB AJ (filed 2/21/14; pending)
O’Hare v. Town of Gulf Stream, Case No. 2014CA002311XXXXMB AN (served 3/11/14;
pending)
O’Boyle v. Town of Gulf Stream, Case No. 2014CA002728 XXXXMB AO (filed 3/14/14;
pending)
Citizens Awareness Foundation, Inc. v. Town of Gulf Stream, Case No.2014CA003396 AB (filed
filed 3/20/14; dismissed 4/25/14)
O’Hare v. Town of Gulf Stream, Case No. 2014CA005189 XXXXMB AE (served 5/6/14;
pending)
O’Hare v. Town of Gulf Stream, Case No. 2014CA006848 XXXXMB AB (filed 6/11/14;
pending)
Citizens Awareness Foundation, Inc. v. South Florida Water Management District, Case No.
502014CA001392XXXMB AG (filed 2/4/14)
Citizens Awareness Foundation, Inc. v. Florida Family Child Care Home Ass’n, Case No.
502014CA006758XXXXMB AJ (filed 6/5/14)
Citizens Awareness Foundation, Inc. v. Area Agency on Aging Palm Beach and Treasure Coast,
Inc., Case No. 502014CA006175XXXXMB AD (filed 5/21/14; notice of voluntary dismissal
with prejudice filed 6/18/14)
Citizens Awareness Foundation, Inc. v. Homeless Coalition of Palm Beach County, Case No.
502014006665XXXXMB – AG (filed 6/3/14)
Citizens Awareness Foundation, Inc. v. JPM Management Services, LLC, Case No.
502014CA006659XXXXMB – AO (filed 6/3/14)
Citizens Awareness Foundation, Inc. v. Town of Lake Park, 502014CA009099XXXXMB – AB
(filed 7/24/14)
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO: 502014CA000834XXXXMB AH
MARTIN E. O’BOYLE,
Plaintiff,
vs.
TOWN OF GULF STREAM,
Defendant.
___________________________/
DEFENDANT TOWN OF GULF STREAM’S
PROPOSED FINAL JUDGMENT WITH
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Defendant, Town of Gulfstream (“the Town”), by and through its undersigned counsel, submits its Proposed Final Judgment, with Findings of Fact and Conclusions of Law as directed by this
Honorable Court at the conclusion of the non-jury trial held on September 20, 2016 and states:
THIS CAUSE came before the Court for a non-jury trial on September 20, 2016. The issue tried by the Court was whether the Town violated the Public Records Act, Ch. 119, Fla. Stat. The
Court having heard argument of counsel, considered the testimony of the witnesses and the evidence presented and been otherwise fully advised in the premises, hereby makes the following
Findings of Fact and Conclusions of Law:
FACTS STIPULATED BY THE PARTIES AND ACCEPTED BY THE COURT
The Court accepts the following stipulated facts agreed to by the parties, as set forth in their Joint Pretrial Stipulation, and finds all such facts to be true:
The Town of Gulf Stream is an “agency” subject to the Public Records Act.
Martin E. O’Boyle is a resident of Gulf Stream
On January 21, 2014, at 12:18 p.m., Mr. O’Boyle submitted the following public records request to the Town by facsimile:
A copy of the sign in sheet on the desk in the front lobby of the Gulf Stream Town Hall as it existed at 11:00 a.m. on January 21, 2014.
Later on January 21, 2014 the Town drafted and sent a letter to Mr. O’Boyle that stated, in part, as follows:
Dear Mr. O’Boyle [mail to: records@commerce-group.com],
The Town of Gulf Stream has received your public records request dated January 21, 2014. If your request was received in writing, then the first page of that request is attached to this
cover letter. If your request was verbal, then the description of your public records request is set forth in the space below. Our staff will review your request within the next three
business days, and we will promptly send you the appropriate response or an estimated cost to respond.
Mr. O’Boyle filed suit on January 22, 2014.
The Town produced to Mr. O’Boyle the record responsive to his January 21, 2014 request on January 23, 2014.
ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW AS DETERMINED BY THE COURT AFTER TRIAL
The Town of Gulf Stream
The Town of Gulf Stream is an extremely small municipality, with just under one thousand residents. (Tr. at 138: 14-16).
At the time the public records request at issue (referred to herein as the “Sign-In Sheet Request”) was made in January 2014, the Town had just four employees working in Town Hall. (See
id. at 138:17-21). This included the Town Clerk, Rita Taylor, the Town Manager and two assistant clerks (one of whom served as an accountant). (See id. at 138:22-139:3). Ms. Taylor
has served as Town Clerk for some 24-25 years. (See id. at 137: 18-23).
The Town’s Prior Experience With Records Requests and Lawsuits and Procedures Implemented to Process Verbal and Written Requests.
In 2013, after Mr. O’Boyle had been denied a development approval for his home and at least six months prior to the Sign-In Request (Tr. at 40:20-23), Mr. O’Boyle had begun making hundreds
of public records requests to the Town. (See id. at 141:23-143:6). The unusually high number of requests, which included 320 requests made in just one day, overwhelmed the Town Clerk.
(See id. at 142:3, 143:1-2).
Mr. O’Boyle thereafter filed quite a few public records lawsuits arising out of those hundreds of public records requests. (See id. at 143:7-13). Ultimately, after the Town settled with
Mr. O’Boyle, the unusually high number of records requests came to a stop. (See id. at 143:14-22). That lull did not last long, however, and after a few weeks or months, the Town experienced
a new wave of records requests began in August 2013 (Tr. at 146:3-6; Joint Ex. 2).
From August 27, 2013 through the end of 2013, the Town had received 465 public records requests– an average of more than 115 records requests per month for four months
straight. (See id. at 146:7-17 & Joint Ex. 2). This time the barrage of records requests did not originate with Mr. O’Boyle but another Town resident, Christopher O’Hare. (Tr. at 148:19-149:11;
Joint Ex. 2).
To deal with the hundreds of public records requests coming in, the Town invested in personnel, processes and services. (Tr. 146:18-24). A considerable amount of money was spent to buy
new equipment, computer servers and a Laserfiche system that allowed it to make Town records electronically available on its website. (See id.; Tr. 147:2-24). The two assistants to
the Town Clerk were given certain duties, a part-time temporary worker was hired to scan records onto Laserfiche, and the Town enlisted support from its counsel and the assistance of
a law student to advise it on public records. (See id. at 147:2-148:4-18; 150:25-151:5).
As had Mr. O’Boyle in the spring and summer of 2013, Mr. O’Hare began to file lawsuits against the Town over its responses to his records requests. (Tr. at 149:13-17). From October 2013
to January 22, 2014, the day after Mr. O’Boyle had submitted the Sign-In Sheet Request to the Town on January 21, 2014, Mr. O’Hare had filed 15 lawsuits against the Town, which lawsuits
further inundated the Town Clerk and her office. (Tr. at 190:24-191:2) (taking judicial notice of Defendant’s Request for Judicial Notice dated 9/19/16, filing no. 46633199).
Mindful of the potential for lawsuits arising out of the records requests, the Town developed procedures and processes to ensure that the requests were processed timely and in accordance
with the law. (Tr. at 149:18-22). Beginning on or about August 27, 2013, these procedures included maintaining a detailed written log of public records requests received by the
Town by date received, requestor and nature of the public records requested. (Tr. at 144:9-145:6; 151:9-13; Joint Exs. 2, 3).
The Town logged requests regardless of how they were received, whether verbally or in writing. (Tr. at 164:16-19). If a request were made verbally, that was noted on the log with a reference
to “in person”. (See id. 164:4-8; Joint Ex. 3 at Nos. 641, 653, 767-69). The log maintained by the Town reflects several instances in which the Town logged verbal public records requests,
including from Mr. O’Boyle, with a notation to that effect. (See id. at 164:9-25; Joint Ex. 3 at Nos. 641, 653, 767-69).
By January 2014, the Town had also developed a procedure for acknowledging both verbal and written requests. (Tr. at 158:12-16). The Town would send an acknowledgement letter like that
sent to Mr. O’Boyle in response to the Sign-In Sheet Request. (See id. at 157:2-15). When requests were made in writing, the Town attached the first page of the request to the acknowledgement
letter. (See id. at 158: 17-20). In order to avoid any confusion, when requests were made verbally, the Town restated the request on the same page as the acknowledgement. (See id. at
158:21-159:4). The Town sent a separate acknowledgement letter for each public records request it received because objections had been raised when it previously tried to aggregate responses.
(See id. at 159:5-19).
Ms. Taylor testified that the Town did not refuse to accept verbal public records requests and did not dictate to requestors how a public records request had to be made; instead, the
Town accepted all manners of submission. (Tr. at 145:10-22).
The Circumstances of the January 21, 2014 Sign-In Sheet Request
By January 2014, the Town Clerk was spending 40-50% of her time processing public records requests while another Town employee, Freda DeFosse spent almost 100% of her time working on
public records requests. (Tr. at 152:9-18).
From January 1 to 19, 2014, the Town received 94 public records requests, 86 of which were received in the five-day period from January 14-19, 2014. (Joint Ex. 3 at pp.1-10). This included
some 15 records requests made on January 14, 2014 and another 60 on January 16, 2014. (See id. at pp. 2-9).
The requests that the Town was receiving, and had to process, in the days, weeks and months prior to the Sign-In Sheet Request were very often not requests for specific records. The
following complex request was typical of the 60 requests made on January 16, 2014, just five (5) days before the Sign-In Sheet Request:
Any and all documents, files, photos, folders or other material in digital form that can be reasonably considered a public record which is located on any and all computers in the personal
possession of, or the personal control of, Scott Morgan. (Joint Ex. 3 at No. 525). (Tr. at 154:2-155:19).
The Sign-In Sheet Request was the last of nine (9) written public records requests sent by Mr. O’Boyle to the Town by facsimile during the fifteen (15) – minute period from 12:03 p.m.
to 12:18 p.m. on January 21, 2014. (Joint Ex. 5). Those requests are listed by their time and subject matter as follows:
12:03 p.m. - Provide a copy of all applications for work permits to the Town of Gulf Stream including, without limitation, all insurance certificates, permits from other jurisdictions
and the work permit itself together with any communications relative to any of the foregoing and together with any billings and/or invoices related to any of the foregoing and including
any payments made in connection with any of the foregoing for the period beginning January 1, 2012 through the date of this Request.
12:04 p.m. - Provide a copy of all applications for work permits to the Town of Gulf Stream including, without limitation, all insurance certificates, permits from other jurisdictions
and the work permit itself together with any communications relative to any of the foregoing and together with any billings and/or invoices related to any of the foregoing and including
any payments made in connection with any of the foregoing, all of which are applicable to the Town Commissioners; employees of the Town of Gulf Stream; and the Gulf Stream Police Department.
12:05 p.m. - Provide a copy of all communications where Mark Marsh was the recipient and the sender during the period of January 1, 2012 through the date of this Request.
12:12 p.m. - Provide a copy of all applications for development wherein Mark Marsh was the applicant, signed for the applicant or was designated as the architect for the period beginning
July 1, 2012 through the date of this Request.
12:13 p.m. - Please provide copies of all invoices received by the Town of Gulf Stream for John C. Randolph, Esquire of Jones Forster Johnson & Stubbs, P.A., Attorneys At Law, from April
23, 2013 through the date of this Request.
12:13 p.m. - Please provide copies of all bills from the Special Magistrate, Glenn Torcivia or the law firm in which he works including, without limitation, the Law Office of Glenn J.
Torcivia and Associates.
12:14 p.m. - Provides copies of all communications between any of the Town Commissioners, Marty Minor, Rita Taylor and William Thrasher where the name "O'Boyle" or "Boyle" is used therein
during the period of January 1, 2013 through the date of this Request.
12:17 p.m. - Provide a copy of all notes, memoranda and journals made by William Thrasher, which include the name "O'Boyle" or "Boyle during the period of January 1, 2013 through the
date of this Request.
12:18 p.m. - Provide a copy of the sign in sheet on the desk in the front lobby of the Gulf Stream Town Hall as it existed at 11:00 a.m. on January 21, 2014.
(Joint Ex. 5) (emphasis added).
The Town logged six (6) other public records requests on January 21, 2014, three (3) requests from Louis Roeder, Esq. made before the Sign-In Sheet Request and three (3) requests from
Mr. O’Hare. (Joint Ex. 3 at Nos. 560, 562-63 572-74).
The Town Acknowledged the Sign-In Sheet Request Before Suit was Filed
At 3:21 p.m. on January 21, 2014, the Town Clerk sent Mr. O’Boyle written correspondence acknowledging the Sign-In Sheet Request (“the Acknowledgment Letter”). (Joint Ex. 7). The Town
attached the first page of Mr. O’Boyle’s Sign-In Sheet Request to its Acknowledgement Letter. It did not set forth the description of a verbal public records request in its Acknowledgment
Letter. (Joint Ex. 7). The Acknowledgement Letter clearly indicated that the Town intended to respond to the Sign-In Sheet request.
Mr. O’Boyle’s January 22, 2014 Verified Complaint
On January 22, 2014, one (1) day after the Sign-In Sheet Request was made, Mr. O’Boyle filed his Verified Complaint to Enforce Florida’s Public Records Act and for Declaratory, Injunctive
and Monetary Relief (Filing #9447796) through counsel. Although Mr. O’Boyle testified that he generally told his attorney that his verbal request had been denied (Tr. at 65:4-9), the
Verified Complaint makes no mention of a verbal request. Instead, by the Verified Complaint, Mr. O’Boyle averred that he had submitted a public records request “via e-mail” to the Town.
(Joint Ex. 1, Verified Compl. at ¶ 16). He attached the same written public records request that he had faxed to the Town at 12:18 p.m., along with the Town’s 3:21 p.m. e-mail which
had sent him the Acknowledgement Letter. (See id., Verified Compl. Ex. A; Joint Ex. 7). The written request faxed by Mr. O’Boyle to the Town at 12:18 p.m. had requested that responsive
records be produced to him in electronic form and e-mailed to records@commerce-group.com. (Joint Ex. 4). Consistent with that request, the January 22, 2014 Verified Complaint avers
at paragraph 26:
Martin E. O’Boyle requested the responsive documents be provided in electronic form and provided an E-Mail address to whom the response was to be sent. (Joint Ex. 1).
The Verified Complaint raised two counts: Count I asserted an unreasonable delay of more than one day in producing public records and Count II complained that in sending the Acknowledgement
Letter and advising Mr. O’Boyle that his request would be reviewed within three business days, the Town had imposed an impermissible “automatic delay.” (Joint Ex. 1). Mr. O’Boyle was
clearly frustrated by the fact that his Sign-In Sheet Request was not met with an instantaneous response but, in accordance with the Town’s newly developed procedures to deal with the
hundreds of requests it was receiving, an Acknowledgement Letter. (Tr. at 42:4-18; Joint Ex. 1, Verified Compl. at ¶¶ 33-36).
While the Acknowledgement Letter advised Mr. O’Boyle that the Town would need three (3) days to review his request, the Town produced the record approximately 48 hours later. (Joint
Ex. 8).
As previously noted, the parties stipulated that the Town complied with the Sign-In Sheet Request and produced the responsive document to Mr. O’Boyle on January 23, 2014. That response
was sent by both e-mail to records@commerce-group.com, the address provided by Mr. O’Boyle on his request faxed at 12:18 p.m. on January 21, 2014, and by facsimile to Mr. O’Boyle. (Joint
Ex. 8).
The Claim of a Verbal Public Records Request
At trial, the parties presented competing testimony as to whether Mr. O’Boyle had made a verbal public records request for the sign-in sheet to the Town Clerk approximately one hour
before he reduced the request to writing and faxed it to the Town at 12:18 p.m. on January 21, 2014. Mr. O’Boyle testified that he was present at Town Hall, asked Ms. Taylor if he could
make a copy of the sign-in sheet, and was advised that he had to make his request in writing. (Tr.
at 41:17-25). Ms. Taylor testified that she has never told Mr. O’Boyle that the Town would only process a public records request from him if he put it in writing and did not do so in
this instance. (Tr. 139:13-20).
In determining whether the Town unlawfully withheld public records in response to the Sign-In Sheet Request, the Court finds that it need not reach the credibility issues raised by the
competing testimony of Mr. O’Boyle and Ms. Taylor. Even assuming that Mr. O’Boyle had been told to put his public records request in writing, he testified that he voluntarily and immediately
went back to his office and faxed the Sign-In Sheet Request to the Town “about an hour later” at 12:18 p.m. (Tr. at 41:25-42:3). At that point the requests merged into one and Mr.
O’Boyle waived any right to complain about any response to a verbal records request. By 3:21 p.m. on January 21, 2014, approximately four (4) hours after any verbal request was made
and three (3) hours after receipt of the facsimile, the Town had made clear to Mr. O’Boyle by its Acknowledgment Letter that the Town was processing his Sign-In Sheet Request, not unlawfully
withholding records. (Joint. Ex. 7). And, in fact, the Town responded and produced the responsive record just two (2) days later. (Joint Ex. 8).
SHOULD THE COURT REACH THE ISSUE OF CREDIBILITY, THE TOWN PROPOSES PARAGRAPHS 32-34:
The Court finds Ms. Taylor’s testimony to be more credible and persuasive on the issue of whether a verbal records request was made by Mr. O’Boyle to her on January 21, 2014
than Mr. O’Boyle’s testimony. Ms. Taylor’s testimony that she did not refuse any verbal records request made by Mr. O’Boyle on January 21, 2014 is supported by the following facts:
prior to January 21, 2014, the Town had implemented procedures by which it logged both verbal and public records requests and noted on its log if a given request was made “in person”
and had done this on several occasions including with regard to other requests made verbally by Mr. O’Boyle, yet the Sign-In Sheet Request was not logged as having been made “in person”
but by facsimile (Joint Ex. 3 at No. 571); and,
prior to January 21, 2014, the Town developed a standard form acknowledgement letter by which it acknowledged both written and verbal requests in distinct manners and the Acknowledgment
Letter sent in response to Mr. O’Boyle’s Sign-In Sheet Request attached his request faxed at 12:18 p.m. and otherwise followed the procedure for written requests (Joint Ex. 7).
The Court further finds that Ms. Taylor had no motivation to deny a verbal records request by Mr. O’Boyle, had it been made. By January 2014, the Town had had significant experience
with public records requests, had enlisted the assistance of outside counsel and was diligently implementing procedures to document and respond to every type of request that it received
precisely to avoid lawsuits like this one.
The Court further finds that Mr. O’Boyle’s testimony that he made a verbal records request to the Town on January 21, 2014 is inconsistent with and unsupported by the following facts:
the Verified Complaint sworn to by Mr. O’Boyle on January 22, 2014, the day after he purportedly made the verbal records request and told his attorney that the Town had denied that verbal
request, makes no mention of a verbal records request but instead complains of an “unreasonable delay” in responding to the written request sent by facsimile and an “automatic delay”
occasioned by Mr. O’Boyle’s receipt of the Acknowledgement Letter (Joint Ex. 1);
the Verified Complaint sworn to by Mr. O’Boyle on January 22, 2014 attaches and sues on the written Sign-In Sheet Request faxed to the Town at 12:18 p.m., avers that Mr. O’Boyle “requested
the responsive documents be provided in electronic form and provided an E-Mail address to whom the response was to be sent” (Joint Ex. 1 at ¶ 26) and makes no mention of a request that
Mr. O’Boyle be permitted to photocopy the responsive records while he waited for them at Town Hall, as he testified at trial;
Mr. O’Boyle denied using the email address records@commerce-group.com to make records requests (Tr. at 106:13-107:11), testified he was not quite familiar with Commerce Group, which
emanates out of his office (Tr. at 108:1-4), and stated that he could not recall whether he had used the e-mail address records@commerce-group.com to make the Sign-In Sheet Request,
yet that email address was associated with every public records request made by him to the Town on January 21, 2014 including the Sign-In Sheet Request (Tr. 110:16-111:4, see also Joint
Exs. 3, 4).
The Court further finds that Mr. O’Boyle had a financial motivation to misstate that he made a prior verbal public records request in order to preserve the statutory fee claim made in
this Public Records lawsuit.
In sum, the Court finds more believable the testimony of the Town Clerk Rita Taylor that she never refused a verbal public records request and did not do so in response to any request
made by Mr. O’Boyle on January 21, 2014.
CONCLUSION
As to the one-count for unlawful withholding of public records, the Court finds that the Town did not unlawfully withhold public records in response to the Sign-In Sheet Request, regardless
of whether it was made in writing or verbally on January 21, 2014. To prevail on his complaint, O’Boyle was required to prove that he made a specific request for public records, the
Town received it, the requested public records exist, and the Town improperly refused to produce them in a timely manner. Grapski v. City of Alachua, 31 So. 3d 193, 196 (Fla. 1st DCA
2010). Mr. O’Boyle failed to meet his burden of proof. Just hours after the request was made, the Town informed Mr. O’Boyle that it was processing the request and he would hear from
the Town within three (3) business days. Thus, before he even filed this suit, Mr. O’Boyle knew that the Town had no intention of refusing to respond to the Sign-In Sheet Request, regardless
of whether it had been made verbally and/or in writing. The Town ultimately responded and produced the responsive records just two (2) business days after it was requested. The record
is devoid of any evidence that the Town would not have responded to the Sign-In Sheet Request had Mr. O’Boyle not filed suit the very next day. Indeed there is no evidence that the
Town was served with or had any knowledge that the suit had been filed before it responded on January 23, 2014.
Even if the Amended Complaint raised a claim for unreasonable delay in producing responsive records, which it does not, the Court further finds no such delay under the circumstances.
The Public Records Act requires the Town to provide access to, or copies of, public records within a “reasonable time.” Fla. Stat. § 119.07(1)(a). However, “[it] does not contain a
specific time limit (such as 24 hours or 10 days) for compliance with public records requests.” Government-In-The-Sunshine-Manual (2014 ed.) at p. 141. In determining whether the time
taken by a municipality to respond to a public records request is reasonable, the Court can consider the cumulative impact of requests made by the Plaintiff. See, e.g., Lang v. Reedy
Creek Improvement District, No. CJ-5546 (Fla. 9th Cir. Ct. October 2, 1995), aff’d per curiam, 675 So. 2d 947 (Fla. 5th DCA 1996) (rejecting petitioner’s claim that agency should have
produced requested records within 10, 20 and 60-day periods). The Town is also permitted such time as necessary to determine whether any statutory exemptions apply. See Tribune Co.
v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984).
Here, the Sign-In Sheet Request was the last of several extremely broad public records requests made by Mr. O’Boyle to the Town during a 15-minute time span on January 21, 2014. Three
earlier requests had been made to the Town that same day by Mr. Roeder. And in the weeks prior to this request the Town had been barraged with hundreds of complex requests that it had
to process. Mr. O’Boyle suggests that because he was not the one responsible for this unusually high number of records requests the Town was in receipt of as of January 21, 2014, his
request somehow should have been given priority. The Court finds nothing in the Public Records Act or caselaw that would require the Town to prioritize requests from Mr. O’Boyle over
those from any other individual or entity or to otherwise act differently than it did here. The Town had
implemented detailed procedures to acknowledge and respond to records requests in a chronological and orderly fashion. Its compliance with the Sign-In-Sheet Request less than two (2)
business days after it was made was entirely reasonable under the circumstances.
IT IS HEREBY ORDERED AND ADJUDGED AS FOLLOWS:
Final Judgment hereby is entered in favor of Defendant, Town of Gulf Stream and against Plaintiff, Martin O’Boyle.
Martin O’Boyle and his counsel shall take nothing by this action and the Town of Gulf Stream shall go hence without day.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Email this 30th day of September, 2016 to: NICK TAYLOR, Esquire, The O’Boyle Law Firm, P.C., 1286
West Newport Center Drive, Deerfield Beach, Florida 33442 (ntaylor@oboylelawfirm.com; and oboylecourtdocs@oboylelawfirm.com); ROBERT A. SWEETAPPLE, Esquire, Sweetapple Broker & Varkas,
PA, 20 S. E. 3rd Street, Boca Raton, Florida 33432 (pleadings@sweetapplelaw.com).
Jones Foster Johnston & Stubbs, PA
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33402-3475
Telephone: (561) 659-3000
Facsimile: (561) 650-5300
joconnor@jonesfoster.com
AND
Robert A. Sweetapple, Esquire
Florida Bar No: 0296988
Sweetapple Broeker & Varkas, PA
20 S.E. 3rd Street
Boca Raton, FL 33432
561-392-1230
pleadings@sweetapplelaw.com
By /s/ Joanne M. O’Connor
Joanne M. O’Connor
Florida Bar No: 0498807
Attorneys for Defendant Town of Gulf Stream
IN THE DISTRICT COURT OF APPEAL FOR THE STATE OF FLORIDA
FOURTH DISTRICT
CONSOLIDATED CASE NO.4D16-3386
LOWER TRIBUNAL NOS. 502014CA004474XXXXMB
502014CA005437XXXXMB
(151h Circuit Palm Beach County)
THE TOWN OF GULF STREAM,
Appellant,
V.
MARTIN E. O'BOYLE, JONATHAN
O'BOYLE and WILLIAM RING,
Appellees
MOTION OF APPELLEE MARTIN O'BOYLE FOR APPELLATE
ATTORNEYS' FEES
Pursuant to section 119.12, Fla. Stat. and Fla. R. App. P. 9.410, Appellee
Martin O'Boyle (`O'Boyle") moves the Court to award him reasonable attorneys'
fees and costs in this consolidated appeal of (i) the Final Judgment on his Verified
Complaint for enforcement of his rights under the Florida Public Records Act,
chapter 119, Florida Statutes (`the Act"), in which the trial court held that
Appellant the Town of Gulf Stream ("Town") had violated the Act and (ii) the
Final Summary Judgment in his favor on the Town's Counterclaim to that Verified
Complaint.
1
Section 119.12, Fla. Stat., provides in pertinent part: "If a civil action is filed
against an agency to enforce the provisions of this chapter and if the court
determines that such agency unlawfully refused to permit a public record to be
inspected or copied, the court shall assess and award, against the agency
responsible, the reasonable costs of enforcement including reasonable attorneys'
fees."
In Board of Trustees v. Lee, 189 So. 3d 1290, 128 (Fla. 2016), the Court
held that "if an individual is required to enforce his or her entitlement to public
records through the filing of a civil action and prevails, the purpose of the statute is
frustrated if the prevailing individual must incur the attorney's fees —rather than
the public agency that violated the Public Records Act. . . . Accordingly, we
conclude that a prevailing party is entitled to statutory attorney's fees under the
Public Records Act when the trial court finds that the public agency violated a
provision of the Public Records Act in failing to permit a public record to be
inspected or copied." See also Hewlings v. Orange County, 152 So. 3d 812, 817
(Fla. 5th DCA 2012)(awarding appellate attorneys' fees to a public records
requestor under Rule 9.410).
In Hewlings, the court noted,
The public records law embodies important public policy. It is
designed to provide citizens with a simple and expeditious method of
accessing public records. Appellee made a simple request for the
records related to the investigation of her dog. She asked for copies of
2
the records and expressed a willingness to pay the costs. Instead of
complying with this simple request, Appellant chose to interpose the
additional bureaucratic hurdles of forcing her to come to its offices,
comb through the records, mark the records in a certain manner, wait
for a written estimate of costs, then, after paying the costs, wait again
for the records to be mailed to her. This was a violation of the law.
Because of Appellant's actions in this case, which are also in direct
contravention of the public policy favoring a simple and prompt
resolution of public records requests, this litigation has now spanned
four years and involved discovery depositions, other discovery,
numerous motions hearings, trials, mediations, and two appeals. To
say that Appellant has turned a molehill into a mountain is an
understatement. This case provides a textbook example of why the
legislature authorized an award of fees against obstinate public
entities such as Appellant.
Lastly, we address Appellee's request for fees for this unnecessary
appeal. Appellee filed a motion for sanctions under Florida Rule of
Appellate Procedure 9.410. Appellant's lackadaisical response was as
follows: "Appellant relies on its Initial Brief and Reply Brief as a
demonstration that the appeal is not frivolous and raises issues not
previously decided by this Court." Having carefully reviewed the
briefs, we conclude that Appellant has simply re -argued the same
arguments and same legal question that were already presented and
decided. Accordingly, we grant the motion and impose as a sanction
for this frivolous and abusive appeal an award of attorney's fees in
favor of Appellee. The only issue on remand is the amount of the fee,
which the trial court shall determine after a hearing.
Id. at 817.
Like Ms. Hewlings, O'Boyle has been forced to litigate a simple public
records case for more than three years. The Town also required O'Boyle to expend
resources defending its Counterclaim.
3
Accordingly, for the foregoing reasons, O'Boyle respectfully requests that
his Motion be granted and that the Town be ordered to pay his reasonable appellate
attorneys' fees and costs.
Respectfully submitted,
ELAINE JOHNSON JAMES, P.A.
P.O. Box 31512
Palm Beach Gardens, FL 33420
Telephone: (561) 245-1144
Fax: (561) 244-9580
By: s/ Elaine Johnson James
Elaine Johnson James, Fla. Bar No. 791709
ei amesgelainej ohnsonj ames. com
ejjames50gicloud.com
CERTIFICATE OF COMPLIANCE
The font in this document is Times Roman 14; the document complies with
the requirements of Florida Rule of Appellate Procedure 9.210.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
served via email this 2d day of May 2017 on:
Robert A. Sweetapple, Esq.
20 S.E. 3rd Street
Boca Raton, FL 33432
pleadingsksweetapplelaw. com
Joanne M. O'Connor, Esq.
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33401
j oconnor(a,j onesfoster. com
Richard Conforti, Esquire
Alhambra Circle - Penthouse
150 Alhambra Circle
Coral Gables, Florida 33134
Telephone: (305) 443-4850
rconforti a,dldlawyers.com
Edward C. Nazzaro
100 Sea Rd
Gulf Stream, FL 33483-7427
tnazzaro kgulf-stream. org
5
Respectfully submitted,
ELAINE JOHNSON JAMES, P.A.
P.O. Box 31512
Palm Beach Gardens, FL 33420
Phone: 561.245.1144; Fax: 561.244.9580
By: s/ Elaine Johnson James
Elaine Johnson James, FBN 791709
ejames(a elainejoh� nsonjames.com
Attorney for Appellee, Martin O'Boyle
7
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CASE NOS:4D16-3386 and 4D16-3634
(Consolidated for all purposes)
TOWN OF GULF STREAM,
Appellant, L.T. CASE NOS: 502014CA004474XXXXMB
5 02016 CA00543 7XXXXMB
V.
MARTIN E. O'BOYLE, JONATHAN
O'BOYLE and WILLIAM RING,
Appellees.
APPELLANT TOWN OF GULF STREAM'S RESPONSE TO THE
MOTION OF APPELLEE MARTIN O'BOYLE FOR APPELLATE
ATTORNEY'S FEES
Appellant, Town of Gulf Stream ("Town"), hereby files its response to
Appellee Martin O'Boyle's ("O'Boyle") Motion for Appellate Attorneys Fees.
O'Boyle is seeking fees under Fla. Stat. § 119.12, which pertains to the reasonable
costs of enforcement in Public Records Act cases, and Fla. R. App. P. 9.410, which
pertains to frivolous or bad faith filings. Both these arguments are meritless.
First, section 119.12 does not permit for appellate attorney's fees in
circumstances where a records requestor has already been granted access to records.
In Downs v. Austin, 559 So. 2d 246 (Fla. 1st DCA 1990) ("Downs II"), Appellant
sought results of a polygraph examination under Chapter 119, Florida's Public
Records Act. When the agency denied his request, he filed suit and the trial court
held that the record was exempt under the Act. In the first appeal, Downs v. Austin,
522 So. 2d 931 (Fla. 1st DCA 1988) ("Downs I"), the First District reversed and
directed the trial court to issue the writ of mandamus but denied Downs' request for
attorneys fees. The issue in Downs II was whether Downs was entitled to attorney's
fees in the trial court because he prevailed on appeal in Downs I, resulting in his
being provided with access to the records. On appeal, citing 119.12 (1) Fla. Stat.
(1985), Downs sought attorney fees for his work in the trial court — work expended
to gain access to records — and also for the appeal to get those fees in Downs II.
Downs II reversed the trial court, determining that Downs was entitled to attorney
fees in the trial court, but held that 119.12 did not allow for an award of appellate
fees. The court stated:
Appellant has moved for attorney's fees for services rendered in the
instant appeal, again citing Section 119.12(1), Florida Statutes.
However, this section permits the award of fees only in civil actions
seeking to require an agency to permit the inspection, examination or
copying of a public record. No fee is authorized for efforts expended
to obtain the statutory fee. Rule 9.400(b), Florida Rules of Appellate
Procedure, provides that "[a] motion for attorney's fees ... shall state the
grounds upon which recovery is sought." Because the statute cited in
the attorney's fee motion provides no authority for the award of that fee,
the motion is denied.
Downs v. Austin, 559 So. 2d 246, 248 (Fla. 1 st DCA 1990) (emphasis added). As
the instant appeal does not deal with O'Boyle's attempts to obtain access to records
2
r e c o r d s t h a t h a v e l o n g s i n c e b e e n i n h i s p o s s e s s i o n 1 1 9 . 1 2 F l a . S t a t . d o e s n o t
a u t h o r i z e a n a w a r d o f a p p e l l a t e f e e s .
S e c o n d , t h e T o w n ' s a p p e a l i s i n n o w a y f r i v o l o u s o r i n b a d f a i t h . U n l i k e
O r a n g e C o u n t y v . H e w l i n g s , 1 5 2 S o . 3 d 8 1 2 ( F l a . 5 t h D C A 2 0 1 4 ) ( " H e w l i n g s I I " ) ,
t h e r e i s n o s i n g l e s i m p l e p u b l i c r e c o r d s r e q u e s t h e r e , b u t t h o u s a n d s . A s n o t e d b y
O ' B o y l e i n h i s r e c i t a t i o n o f H e w l i n g s I I , t h a t c a s e i s r e l a t e d t o " a s i m p l e r e q u e s t f o r
t h e r e c o r d s r e l a t e d t o t h e i n v e s t i g a t i o n o f [ r e q u e s t o r ' s ] d o g . S h e a s k e d f o r c o p i e s o f
t h e r e c o r d s a n d e x p r e s s e d a w i l l i n g n e s s t o p a y t h e c o s t s . " I d . a t 8 1 7 ; A p p e l l e e
O ' B o y l e ' s M o t i o n a t 2 - 3 . T h e F i f t h D i s t r i c t n o t e d t h a t i t w a s t h e s e c o n d a p p e a l t a k e n
b y t h e a g e n c y , a n d h a d t h i s t o s a y a b o u t t h e a p p e a l i n H e w l i n g s 1 1 :
A p p e l l a n t s u m m a r i z e s i t s a r g u m e n t i n i t s i n i t i a l b r i e f a s f o l l o w s : ` E v e n
t h o u g h t h e t r i a l c o u r t a g r e e d w i t h H e w l i n g s t h a t O r a n g e C o u n t y
u n j u s t i f i a b l y d e l a y e d i n m a k i n g t h e c o p i e s o f i t s p u b l i c r e c o r d s , t h e r e i s
n o a u t h o r i t y f o r t h e t r i a l c o u r t t o a w a r d a t t o r n e y ' s f e e s t o H e w l i n g s . '
W e a r e a d m i t t e d l y p e r p l e x e d b y t h i s s t a t e m e n t . I t i s a s i f c o u n s e l
f o r A p p e l l a n t , w h o w a s t h e s a m e c o u n s e l i n H e w l i n g s I , s l e p t
t h r o u g h t h e e n t i r e p r i o r a p p e l l a t e p r o c e e d i n g a n d t h e n f a i l e d t o
r e a d e i t h e r t h e o p i n i o n o r o r d e r .
O r a n g e C o u n t y v . H e w l i n g s , 1 5 2 S o . 3 d 8 1 2 , 8 1 5 - 1 6 ( F l a . 5 t h D C A 2 0 1 4 ) ( e m p h a s i s
a d d e d ) . H e w l i n g s I I i s t h e t y p e o f b a d f a i t h o r f r i v o l o u s a p p e a l c o n t e m p l a t e d b y F l a .
R . A p p . P . 9 . 4 1 0 . T h i s a p p e a l r e l a t e s t o t h e w e l l - d o c u m e n t e d b a d f a i t h c o n d u c t o f
O ' B o y l e . E v e n t h e t r i a l c o u r t n o t e d t h e l e g i t i m a t e f a c t u a l u n d e r p i n n i n g s s u r r o u n d i n g
t h e T o w n ' s a l l e g a t i o n s t h a t O ' B o y l e w a s a c t i n g i n b a d f a i t h w i t h h i s p u b l i c r e c o r d s
r e q u e s t s a n d r e s u l t i n g l a w s u i t s . A f t e r t h e t r i a l c o u r t d e n i e d t h e T o w n ' s a f f i r m a t i v e
3
defenses, the public records requests came pouring in again, with the trial court
noting that:
If true, it would seem that O'Boyle and the counter -defendants have
requested that the Town produce virtually every document, whether in
electronic or paper form, generated by the Town and its officials,
attorneys, and a host of others for at least the past three years ... The
number and breadth of these demands only lends credence to the
Town's argument that the requests serve no legitimate purpose other
than to harass and punish the Town and its citizens.
R: 2656-57; Initial Brief of Appellant at 9. The Florida Legislature, too, has taken
note of the abuses of the Public Records Act perpetrated by O'Boyle and others, with
changes to the attorney's fee statue imminent and allowing for fee shifting in cases
of public records requests made with an "improper purpose."i All this supports the
Towns' appeal and proves that it is brought in good faith.
WHEREFORE, Appellant, Town of Gulf Stream, respectfully requests that
this Court deny the Motion of Appellee Martin O'Boyle for Appellate Attorneys'
Fees.
1 See Senate Bill 80 (Last Action: 5/9/2017 - Signed by Officers and presented to
Governor) available at
https://www.flsenate.gov/Session/Bill/2017/80/BillText/er/PDF.
11
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
provided via e-mail this 12' day of May, 2017 to:
Elaine Johnson James, Esq.
Elaine Johnson James, P.A.
P.O. Box 31512
Palm Beach Gardens, FL 33420
ej amesna,elainej ohnsonj ames.com
Robert A. Sweetapple, Esq.
Sweetapple, Broeker & Varkas, P.L.
20 S.E. 3rd Street
Boca Raton, FL 33432
pleadings gsweetgpplelaw. com
P:\DOCS\13147\00060\PLD\1 S96981.DOCX
Edward C. Nazzaro, Esq.
Town of Gulf Stream
100 Sea Rd.
Gulf Stream, FL 33483
tnazzaro k ,gulf- stream. org
Richard N. Conforti, Esquire
Demahy Labrador Drake Victor
Rojas & Cabeza
806 Douglas Rd., 12th Floor
Coral Gables, Florida 33134
rconfortikdldlawyers. com
Respectfully submitted,
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Attorneys for Appellant
505 South Flagler Drive, Suite 1100
West Palm Beach, FL 33401
Telephone: 561-659-3000
Facsimile: 561-650-5300
By: /s/ Joanne M. O'Connor
Joanne M. O'Connor, Esquire
Florida Bar No. 0498807
j oconnorgj onesfoster. com
5
SETTLEMENT AGREEMENT
For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, Martin E. O’Boyle, individually and also in his official capacity as
an officer, partner, officer of a partner, and\or member (as specifically designated on the signature pages) of Airline Highway, LLC; Asset Enhancement, Inc.; CG Acquisition Company,
Inc.; Commerce GP, Inc.; Commerce Group, Inc.; Commerce Realty Group, Inc.; CRO Aviation, Inc.; Our Public Records, LLC; Stopdirtygovernment, LLC; Public Awareness Institute, Inc.;
and Citizens for Open Government, LLC (collectively the “Entities”); including, without limitation, all Directors, Shareholders, Members, Officers, Partners and Agents including all
successors and assigns of all of the above parties and Entities (collectively “O’BOYLE”) fully and forever hereby irrevocably discharges and releases the GULF STREAM from each and every
action, cause of action, lawsuit, appeal, post-judgment proceeding, claim for attorney’s fees, claim for costs, claim for sanctions (whether requested or imposed), public records request,
claim for any award, loss, damage, judgment, remedy, or relief whatsoever in law and in equity, including each and every claim arising under local law, state law, federal law, the Florida
Constitution, and/or the United States Constitution (collectively “CLAIMS”), which CLAIMS O’BOYLE ever had, now has, or which any successor, heir, or assign can or may have against
the TOWN OF GULF STREAM for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement,
and O’BOYLE also hereby knowingly waives all such CLAIMS. The exceptions to the content of this paragraph are addressed in paragraph 9 below.
2. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, O’BOYLE fully and forever hereby irrevocably discharges and releases
each individual [need to see who we agree to release – if we don’t release them – they don’t release us. Patsy Randolph will be specifically excluded from any release. Signatories
must include Tew, Avery, Rita & Thrasher and individual Commissioners – any others?] and each entity (individually a “Joining Party” and collectively the “Joining Parties”) that signs
its signature block on Composite Exhibit “A” (excluding from the definition of Adjoining Parties are GULF STREAM and O’BOYLE) from all CLAIMS which O’BOYLE ever had, now has, or which
any successor, heir, or assign can or may have against the Joining Parties for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the
day of the execution of this Settlement Agreement, and O’BOYLE also hereby knowingly waives all such CLAIMS. . The exceptions to the content of this paragraph are addressed in paragraph
9 below.
3. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, the TOWN OF GULF STREAM (including its representatives, successors
and assigns) (“GULF STREAM”) fully and forever hereby irrevocably discharges and releases O’BOYLE and\or any of the O’Boyle Requestors from all CLAIMS which GULF STREAM ever had, now
has, or which any representative, successor or assign can or may have against O’BOYLE and\or any of the O’Boyle Requestors (including their representatives, successors, heirs, and assigns)
for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement, and GULF STREAM also
4. For and in consideration of good and valuable consideration, its adequacy and receipt of which are acknowledged, each Joining Party (including their heirs, successors and assigns)
fully and forever hereby irrevocably discharges and releases O’BOYLE and the O’Boyle Requestors (including their representatives, successors, heirs, and assigns) from all CLAIMS which
each Joining Party (including their representatives, successors, heirs, and assigns ever had, now has, or can or may have against O’BOYLE and\or any of the O’Boyle Requestors for, upon,
or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement, and the Joining Parties also hereby
knowingly waives all such CLAIMS.
5. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, GULF STREAM and each Joining Party (the “GS Parties”) fully and forever
hereby irrevocably discharges and releases Jonathan O’Boyle, Esq.; Giovani Mesa, Esq.; Nicklaus Taylor, Esq.; Ryan Witmer, Esq.; William F. Ring, Esq.; and The O’Boyle Law Firm, P.C.,
Inc., [add the lawyers, paralegals that work (or worked for the OLF (or any of their people) and those parties involved in the representation of O’Boyle or the others in definition]
(collectively “O’Boyle Attorneys”) from all CLAIMS which the GS Parties ever had, now has, or which any successor or assign can or may have against the O’Boyle Attorneys, including,
without limitation, any claims and other matters arising from their representation of O’BOYLE and\or Christopher O’Hare (and his aliases and any other parties or entities or ficticious
names used by Christopher O’Hare (“O’Hare”), for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement
Agreement, and the TOWN OF GULF STREAM also hereby knowingly waives all such CLAIMS; except that, in the event that Jonathan O’Boyle, Esq.; Giovani Mesa, Esq.; Nicklaus Taylor, Esq.;
Ryan Witmer, Esq.; William F. Ring, Esq.; or The O’Boyle Law Firm, P.C., Inc., seek in the capacity as a litigant, any form of judicial relief against GULF STREAM (each individually
and collectively referred to as a “New Attorney Lawsuit”), then this paragraph 5 will not prevent, limit, reduce, or otherwise hinder GULF STREAM in its rights or in its ability to
defend itself, to assert all defenses and defensive matters, or to seek awards of attorney’s fees, costs, sanctions, and other relief typically available to a defending party in any
such New Attorney Lawsuit (the “Defenses”). GULF STREAM acknowledges the provisions of this Settlement Agreement shall not permit any claims, counter claims or other litigations or
other actions to be brought or threatened by and of the GS Parties against any of the O’Boyle Attorney’s or O’Boyle) [include affiliates, etc] (individually and collectively the “O’Boyle
Group”)
5. By way of clarification and not limitation, the provisions of Paragraphs the provisions of the above paragraphs one through five of this Settlement Agreement, includes the following
matters: Case No.14-CA-000834; Case No. 14-CA-001572; Case No. 14-2CA-02607; Case No. 14-CA-002728; Case No. 14-CA-003396; Case No. 14-003721; Case No. 14-CA-004474/Case No. 4D16-3634;
Case No. 14-CA-005189; Case No. 4D 15-1762; Case No. 14-CA-005628; Case No. 14-CA-6112; Case No. 14-CA0006360; Case No 14-CA-007123; Case No. 14-CA-008076; Case No. 14-CC-008529; Case
No. 14-CA-010216; Case No. 14-CA-011940; Case No. 14-CC-014780 (17th Cir. County Court); Case No. 14-CC-015050; Case No. 16-CA-004546; Case No. 16-CA-005437/Case No. 4D16-3386; Case
No. 14-cv-80317/11th Cir. Case No. 15-13964; Case No. 15-13964; Case No. 14-cv-81250-KAM; Case No. 14-cv-81248-DTKH/11th Cir. Case No. 15-10997; Case No.
15-CA-001498; Case No. 15-CA-001498; Case No. 15-CA-001737; Case No. 14-CA-011941, Case No. 15-cv-80182-KAM, and Case No. 17-CA-005226 (collectively “Litigated Matters”). [Need to confirm
the enumeration is correct]
6. By way of further clarification and not limitation, except for cases which have already concluded by virtue of the entry of an appropriate final order or judgment GULF STREAM and
O’BOYLE will file stipulations for the dismissal with prejudice of the Litigated Matters in the appropriate court to secure a final order of dismissal of each case with each party to
the Litigated Matters to bear its own attorney’s fees and costs, even if a party is otherwise entitled to seek attorney’s fees and costs from another under a fee or cost shifting provision.
All sanctions claims made, ordered, or granted, including, without limitation, those made, ordered, or granted pursuant to section 57.105, Florida Statutes, the inherent authority of
any court, or any other law (whether statutory or common law) (“Sanctions”)shall be withdrawn and dismissed with prejudice; and to the extent that there is any Order or Judgement of
any Court after the date of this Settlement Agreement issued, the applicable GS Party hereby waives payment of same..
7. By way of further clarification and not limitation, this Settlement Agreement amounts to an immediate written withdrawal of each and every public records request issued as of the
date of the execution of this Settlement Agreement to the TOWN OF GULF STREAM by O’BOYLE, including, without limitation, each public records request issued through a relative, employee,
associate, agent, or attorney but only to the extent that any such party was acting on behalf of O’Boyle (collectively “O’Boyle Requestors”). Each of the O’Boyle Requestors separately
release, discharge, and waive all CLAIMS arising from, connected with, related to, or associated with each such public records request but only to the extent made by and of the O’Boyle
Requestors.
The Settlement Agreement entered into by and between the TOWN OF GULF STREAM, Martin E. O’Boyle, Commerce Group, Inc., N984AC Caravan, LLC, and Airline Highway, LLC, on July 26, 2013,
shall remain in full force and effect (the “2013 SA”). Claims that each and every party that is included in the definition of O’Boyle (including, without limitation, Martin E. O’Boyle)
may have or wish to assert against GULF STREAM arising from, touching, related to or in connection with or associated with: (a) the following matters which occurred on September 22,
2015 [insert from State Complaint]; (b) the 2013 SA; and (c) any activities related to the development and\or construction of improvements by the O’Boyle Group in Hidden Harbour Estates,
Gulfsream, Fl., are hereby preserved and not released or waived by this Settlement Agreement.
10. In connection with any claims and\or litigations between the TOWN GULF STREAM and O’BOYLE filed (or asserted) (“Subsequent Claims”) on or after the date of the execution of this
Settlement Agreement, GULF STREAM, each of the Joining Parties and O’BOYLE hereby waive all rights to attorney’s fees and costs from the other party in any such Subsequent Claims, even
if a state or federal statute or rule provides such a remedy. Further, each party hereby waives and releases its respective rights to apply for and to secure court-awarded sanctions
from all parties in connection with any in any such Subsequent Claims other, even if the sanction award is in the form of an award of attorney’s fees, costs, or both. [carve out atty
fees only in connection with the enforcement of this SA, and the Carve Outs in #9 above.]
11. In the event that any O’Boyle Requestors submit a public records request to the TOWN OF GULF STREAM (pursuant to “Chapter 119”), at any time after the day of the execution of this
Settlement Agreement, Martin E. O’Boyle hereby agrees to pay, at the time that the public records request is made, a facilitation fee of $250 to the Town Clerk of the TOWN OF GULF STREAM
(“Facilitation Fee”). Failure to pay the Facilitation Fee will conclusively render such public records request withdrawn. In the event that there are no costs associated with responding
to the applicable public records request or in the event that the costs associated with responding to the applicable public records request are less than the corresponding Facilitation
Fee, the Facilitation Fee (after reduction of the costs associated with responding to the request) will be refunded to Martin E. O’Boyle within ten (10) days. Otherwise, the conduct
of the O’Boyle Requestors and GULF STREAM will be governed by Chapter 119 of the Florida Statutes (“Chapter 119”) .
12. GULF STREAM, the Joining Parties and O’BOYLE have read this Settlement Agreement with the assistance of counsel and understand its terms, obligations, operation, and effect. GULF
STREAM and O’BOYLE acknowledge that their entry into this Settlement shall not be deemed or considered to be any admission or acceptance of blame, liability, or responsibility. GULF
STREAM and O’BOYLE have entered into this Settlement Agreement voluntarily and without having been threatened, coerced, or intimidated. No provision of this Settlement Agreement shall
be construed presumptively against any party hereto.
13. GULF STREAM, each of the Joining Parties and O’BOYLE warrant to each other (a) that no sale, assignment, transfer, or other disposition of any of the CLAIMS which are being released
and waived hereunder has occurred, (b) that each has the full right, power, legal capacity, and authority to enter into this Settlement Agreement and to consummate the transactions
described herein, and (c) that this Settlement Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation in accordance with its
terms.
14. In the event of a default of any obligation under this Settlement Agreement, the party declaring any such default shall provide the party allegedly in default with a notice explaining
the default by email and by U.S. Mail (“Notice”). The failure to cure a default by the 10th day after such Notice was received by the party to whom it was sent shall constitute a breach
of this Settlement Agreement by the defaulting party or parties . Such breach, however, shall not be construed as a breach between all parties, and any such breach shall be enforceable
only against the defaulting party by the party providing the Notice. Notice to the TOWN OF GULF STREAM shall be made to the Town Clerk at the official address for of the Town of Gulf
Stream, 100 Sea Road, Gulf Stream, FL 33483. Notice to O’BOYLE shall be made to Martin O’Boyle (with a copy to William F. Ring, Esq. at 1280 W. Newport Center Drive, Deerfield Beach,
FL, 33442. Copies of Notices to the any or all of the Joining Parties shall be made to the address under the name of each Joining Party on the signature page of this Settlement Agreement
by Certified mail (Return Receipt Requested) or by a recognized overnight delivery carrier.
15. This Settlement Agreement is deemed to have been made, executed, and delivered in the State of Florida and shall be construed in accordance with the laws of the State of Florida.
Accordingly, GULF STREAM and O’BOYLE consent to the exclusive jurisdiction of the Circuit Court for the 15th Judicial Circuit for the State of Florida for all purposes related to this
Settlement Agreement and forgo all other venues.
16. This Settlement Agreement shall be binding upon and inure to the benefit of the TOWN OF GULF STREAM, each of the Joining Parties, O’BOYLE and each of their respective heirs, successors
and assigns. No party may assign its rights or delegate its obligations under this Settlement Agreement without the express prior written consent of the other affected party.
,
8. This Settlement Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute a single agreement, with the same effect
as if the signatures thereto and hereto were upon the same instrument. Any facsimiles, photographs or photocopies of this Settlement Agreement shall be considered, for all purposes,
as if it were an executed original.
17. This Settlement Agreement contains the entire agreement of GULF STREAM, each of the Joining Parties, the O’Boyle Attorney’s (which the parties agree have no obligations under this
Settlement Agreement) and O’BOYLE with respect to all matters covered and the transactions contemplated hereby; any prior writing or oral discussion shall be merged into this Settlement
Agreement.
18.No modification or waiver of any provision of this Settlement Agreement shall be effective unless the same shall be in writing and signed by GULF STREAM, each of the Joining Parties
and Martin E. O’Boyle. [add language that individual parties can make amendments or modifications to the SA, but that such would only be binding between those parties]
19. If any term, covenant, or condition Settlement Agreement or the application thereof shall, to any extent, be invalid or unenforceable, the remaining terms, conditions, and covenants
shall remain valid and enforceable. Each term, covenant, or condition shall be enforced to the fullest extent permitted by law.
IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement as of ________, 2017.
SETTLEMENT AGREEMENT SIGNATURE PAGE
[NEED ADDRESSES FOR EACH PARTY]
___________________________
MARTIN E. O’BOYLE
individually,
[separate line item for each entity so that MEO could sign in his official capacity]
Airline Highway, LLC
Asset Enhancement, Inc.
CG Acquisition Company, Inc.
Commerce GP, Inc.
Commerce Group, Inc.
Commerce Realty Group, Inc.
CRO Aviation, Inc.
Our Public Records, LLC
Stopdirtygovernment, LLC
Public Awareness Institute, Inc.
_______________________________
TOWN OF GULF STREAM
By Scott Morgan as Town Mayor
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
MAYOR SCOTT MORGAN
THOMAS STANLEY
JOAN ORTHWEIN
PAUL LYONS
DONNA WHITE
RITA TAYLOR
WILLIAM THRASHER
EDWARD C. NAZZARO, ESQ.
JOHN C. RANDOLPH, ESQ.
JOANNE M. O’CONNOR, ESQ.
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
By __________________ as its _________________.
Page 1 of 2-page COMPOSITE EXHIBIT “A”
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
[may need modification]
ROBERT A. SWEETAPPLE, ESQ.
SWEETAPPLE, BROEKER & VARKAS, PL
By __________________ as its _________________.
HUDSON GILL, ESQ.
JEFFREY L. HOCHMAN, ESQ.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, P.A.
By __________________ as its _________________.
GERALD F. RICHMAN, ESQ.
ERIC M. SODHI, ESQ.
RICHMAN GREER, P.A.
By __________________ as its _________________.
Page 2 of 2-page COMPOSITE EXHIBIT “A”
SETTLEMENT AGREEMENT
For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, Martin E. O’Boyle, individually and also in his official capacity as
an officer, partner, officer of a partner, and\or member (as specifically designated on the signature pages) of Airline Highway, LLC; Asset Enhancement, Inc.; CG Acquisition Company,
Inc.; Commerce GP, Inc.; Commerce Group, Inc.; Commerce Realty Group, Inc.; CRO Aviation, Inc.; Our Public Records, LLC; Stopdirtygovernment, LLC; Public Awareness Institute, Inc.;
and Citizens for Open Government, LLC (collectively the “Entities”); including, without limitation, all Directors, Shareholders, Members, Officers, Partners and Agents including all
successors and assigns of all of the above parties and Entities (collectively “O’BOYLE”) fully and forever hereby irrevocably discharges and releases the GULF STREAM from each and every
action, cause of action, lawsuit, appeal, post-judgment proceeding, claim for attorney’s fees, claim for costs, claim for sanctions (whether requested or imposed), public records request,
claim for any award, loss, damage, judgment, remedy, or relief whatsoever in law and in equity, including each and every claim arising under local law, state law, federal law, the Florida
Constitution, and/or the United States Constitution (collectively “CLAIMS”), which CLAIMS O’BOYLE ever had, now has, or which any successor, heir, or assign can or may have against
the TOWN OF GULF STREAM for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement,
and O’BOYLE also hereby knowingly waives all such CLAIMS. The exceptions to the content of this paragraph are addressed in paragraph 9 below.
2. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, O’BOYLE fully and forever hereby irrevocably discharges and releases
each individual [need to see who we agree to release – if we don’t release them – they don’t release us. Patsy Randolph will be specifically excluded from any release. Signatories
must include Tew, Avery, Rita & Thrasher and individual Commissioners – any others?] and each entity (individually a “Joining Party” and collectively the “Joining Parties”) that signs
its signature block on Composite Exhibit “A” (excluding from the definition of Adjoining Parties are GULF STREAM and O’BOYLE) from all CLAIMS which O’BOYLE ever had, now has, or which
any successor, heir, or assign can or may have against the Joining Parties for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the
day of the execution of this Settlement Agreement, and O’BOYLE also hereby knowingly waives all such CLAIMS. . The exceptions to the content of this paragraph are addressed in paragraph
9 below.
3. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, the TOWN OF GULF STREAM (including its representatives, successors
and assigns) (“GULF STREAM”) fully and forever hereby irrevocably discharges and releases O’BOYLE and\or any of the O’Boyle Requestors from all CLAIMS which GULF STREAM ever had, now
has, or which any representative, successor or assign can or may have against O’BOYLE and\or any of the O’Boyle Requestors (including their representatives, successors, heirs, and assigns)
for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement, and GULF STREAM also
4. For and in consideration of good and valuable consideration, its adequacy and receipt of which are acknowledged, each Joining Party (including their heirs, successors and assigns)
fully and forever hereby irrevocably discharges and releases O’BOYLE and the O’Boyle Requestors (including their representatives, successors, heirs, and assigns) from all CLAIMS which
each Joining Party (including their representatives, successors, heirs, and assigns ever had, now has, or can or may have against O’BOYLE and\or any of the O’Boyle Requestors for, upon,
or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement, and the Joining Parties also hereby
knowingly waives all such CLAIMS.
5. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, GULF STREAM and each Joining Party (the “GS Parties”) fully and forever
hereby irrevocably discharges and releases Jonathan O’Boyle, Esq.; Giovani Mesa, Esq.; Nicklaus Taylor, Esq.; Ryan Witmer, Esq.; William F. Ring, Esq.; and The O’Boyle Law Firm, P.C.,
Inc., [add the lawyers, paralegals that work (or worked for the OLF (or any of their people) and those parties involved in the representation of O’Boyle or the others in definition]
(collectively “O’Boyle Attorneys”) from all CLAIMS which the GS Parties ever had, now has, or which any successor or assign can or may have against the O’Boyle Attorneys, including,
without limitation, any claims and other matters arising from their representation of O’BOYLE and\or Christopher O’Hare (and his aliases and any other parties or entities or ficticious
names used by Christopher O’Hare (“O’Hare”), for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement
Agreement, and the TOWN OF GULF STREAM also hereby knowingly waives all such CLAIMS; except that, in the event that Jonathan O’Boyle, Esq.; Giovani Mesa, Esq.; Nicklaus Taylor, Esq.;
Ryan Witmer, Esq.; William F. Ring, Esq.; or The O’Boyle Law Firm, P.C., Inc., seek in the capacity as a litigant, any form of judicial relief against GULF STREAM (each individually
and collectively referred to as a “New Attorney Lawsuit”), then this paragraph 5 will not prevent, limit, reduce, or otherwise hinder GULF STREAM in its rights or in its ability to
defend itself, to assert all defenses and defensive matters, or to seek awards of attorney’s fees, costs, sanctions, and other relief typically available to a defending party in any
such New Attorney Lawsuit (the “Defenses”). GULF STREAM acknowledges the provisions of this Settlement Agreement shall not permit any claims, counter claims or other litigations or
other actions to be brought or threatened by and of the GS Parties against any of the O’Boyle Attorney’s or O’Boyle) [include affiliates, etc] (individually and collectively the “O’Boyle
Group”)
5. By way of clarification and not limitation, the provisions of Paragraphs the provisions of the above paragraphs one through five of this Settlement Agreement, includes the following
matters: Case No.14-CA-000834; Case No. 14-CA-001572; Case No. 14-2CA-02607; Case No. 14-CA-002728; Case No. 14-CA-003396; Case No. 14-003721; Case No. 14-CA-004474/Case No. 4D16-3634;
Case No. 14-CA-005189; Case No. 4D 15-1762; Case No. 14-CA-005628; Case No. 14-CA-6112; Case No. 14-CA0006360; Case No 14-CA-007123; Case No. 14-CA-008076; Case No. 14-CC-008529; Case
No. 14-CA-010216; Case No. 14-CA-011940; Case No. 14-CC-014780 (17th Cir. County Court); Case No. 14-CC-015050; Case No. 16-CA-004546; Case No. 16-CA-005437/Case No. 4D16-3386; Case
No. 14-cv-80317/11th Cir. Case No. 15-13964; Case No. 15-13964; Case No. 14-cv-81250-KAM; Case No. 14-cv-81248-DTKH/11th Cir. Case No. 15-10997; Case No.
15-CA-001498; Case No. 15-CA-001498; Case No. 15-CA-001737; Case No. 14-CA-011941, Case No. 15-cv-80182-KAM, and Case No. 17-CA-005226 (collectively “Litigated Matters”). [Need to confirm
the enumeration is correct]
6. By way of further clarification and not limitation, except for cases which have already concluded by virtue of the entry of an appropriate final order or judgment GULF STREAM and
O’BOYLE will file stipulations for the dismissal with prejudice of the Litigated Matters in the appropriate court to secure a final order of dismissal of each case with each party to
the Litigated Matters to bear its own attorney’s fees and costs, even if a party is otherwise entitled to seek attorney’s fees and costs from another under a fee or cost shifting provision.
All sanctions claims made, ordered, or granted, including, without limitation, those made, ordered, or granted pursuant to section 57.105, Florida Statutes, the inherent authority of
any court, or any other law (whether statutory or common law) (“Sanctions”)shall be withdrawn and dismissed with prejudice; and to the extent that there is any Order or Judgement of
any Court after the date of this Settlement Agreement issued, the applicable GS Party hereby waives payment of same..
7. By way of further clarification and not limitation, this Settlement Agreement amounts to an immediate written withdrawal of each and every public records request issued as of the
date of the execution of this Settlement Agreement to the TOWN OF GULF STREAM by O’BOYLE, including, without limitation, each public records request issued through a relative, employee,
associate, agent, or attorney but only to the extent that any such party was acting on behalf of O’Boyle (collectively “O’Boyle Requestors”). Each of the O’Boyle Requestors separately
release, discharge, and waive all CLAIMS arising from, connected with, related to, or associated with each such public records request but only to the extent made by and of the O’Boyle
Requestors.
The Settlement Agreement entered into by and between the TOWN OF GULF STREAM, Martin E. O’Boyle, Commerce Group, Inc., N984AC Caravan, LLC, and Airline Highway, LLC, on July 26, 2013,
shall remain in full force and effect (the “2013 SA”). Claims that each and every party that is included in the definition of O’Boyle (including, without limitation, Martin E. O’Boyle)
may have or wish to assert against GULF STREAM arising from, touching, related to or in connection with or associated with: (a) the following matters which occurred on September 22,
2015 [insert from State Complaint]; (b) the 2013 SA; and (c) any activities related to the development and\or construction of improvements by the O’Boyle Group in Hidden Harbour Estates,
Gulfsream, Fl., are hereby preserved and not released or waived by this Settlement Agreement.
10. In connection with any claims and\or litigations between the TOWN GULF STREAM and O’BOYLE filed (or asserted) (“Subsequent Claims”) on or after the date of the execution of this
Settlement Agreement, GULF STREAM, each of the Joining Parties and O’BOYLE hereby waive all rights to attorney’s fees and costs from the other party in any such Subsequent Claims, even
if a state or federal statute or rule provides such a remedy. Further, each party hereby waives and releases its respective rights to apply for and to secure court-awarded sanctions
from all parties in connection with any in any such Subsequent Claims other, even if the sanction award is in the form of an award of attorney’s fees, costs, or both. [carve out atty
fees only in connection with the enforcement of this SA, and the Carve Outs in #9 above.]
11. In the event that any O’Boyle Requestors submit a public records request to the TOWN OF GULF STREAM (pursuant to “Chapter 119”), at any time after the day of the execution of this
Settlement Agreement, Martin E. O’Boyle hereby agrees to pay, at the time that the public records request is made, a facilitation fee of $250 to the Town Clerk of the TOWN OF GULF STREAM
(“Facilitation Fee”). Failure to pay the Facilitation Fee will conclusively render such public records request withdrawn. In the event that there are no costs associated with responding
to the applicable public records request or in the event that the costs associated with responding to the applicable public records request are less than the corresponding Facilitation
Fee, the Facilitation Fee (after reduction of the costs associated with responding to the request) will be refunded to Martin E. O’Boyle within ten (10) days. Otherwise, the conduct
of the O’Boyle Requestors and GULF STREAM will be governed by Chapter 119 of the Florida Statutes (“Chapter 119”) .
12. GULF STREAM, the Joining Parties and O’BOYLE have read this Settlement Agreement with the assistance of counsel and understand its terms, obligations, operation, and effect. GULF
STREAM and O’BOYLE acknowledge that their entry into this Settlement shall not be deemed or considered to be any admission or acceptance of blame, liability, or responsibility. GULF
STREAM and O’BOYLE have entered into this Settlement Agreement voluntarily and without having been threatened, coerced, or intimidated. No provision of this Settlement Agreement shall
be construed presumptively against any party hereto.
13. GULF STREAM, each of the Joining Parties and O’BOYLE warrant to each other (a) that no sale, assignment, transfer, or other disposition of any of the CLAIMS which are being released
and waived hereunder has occurred, (b) that each has the full right, power, legal capacity, and authority to enter into this Settlement Agreement and to consummate the transactions
described herein, and (c) that this Settlement Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation in accordance with its
terms.
14. In the event of a default of any obligation under this Settlement Agreement, the party declaring any such default shall provide the party allegedly in default with a notice explaining
the default by email and by U.S. Mail (“Notice”). The failure to cure a default by the 10th day after such Notice was received by the party to whom it was sent shall constitute a breach
of this Settlement Agreement by the defaulting party or parties . Such breach, however, shall not be construed as a breach between all parties, and any such breach shall be enforceable
only against the defaulting party by the party providing the Notice. Notice to the TOWN OF GULF STREAM shall be made to the Town Clerk at the official address for of the Town of Gulf
Stream, 100 Sea Road, Gulf Stream, FL 33483. Notice to O’BOYLE shall be made to Martin O’Boyle (with a copy to William F. Ring, Esq. at 1280 W. Newport Center Drive, Deerfield Beach,
FL, 33442. Copies of Notices to the any or all of the Joining Parties shall be made to the address under the name of each Joining Party on the signature page of this Settlement Agreement
by Certified mail (Return Receipt Requested) or by a recognized overnight delivery carrier.
15. This Settlement Agreement is deemed to have been made, executed, and delivered in the State of Florida and shall be construed in accordance with the laws of the State of Florida.
Accordingly, GULF STREAM and O’BOYLE consent to the exclusive jurisdiction of the Circuit Court for the 15th Judicial Circuit for the State of Florida for all purposes related to this
Settlement Agreement and forgo all other venues.
16. This Settlement Agreement shall be binding upon and inure to the benefit of the TOWN OF GULF STREAM, each of the Joining Parties, O’BOYLE and each of their respective heirs, successors
and assigns. No party may assign its rights or delegate its obligations under this Settlement Agreement without the express prior written consent of the other affected party.
,
8. This Settlement Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute a single agreement, with the same effect
as if the signatures thereto and hereto were upon the same instrument. Any facsimiles, photographs or photocopies of this Settlement Agreement shall be considered, for all purposes,
as if it were an executed original.
17. This Settlement Agreement contains the entire agreement of GULF STREAM, each of the Joining Parties, the O’Boyle Attorney’s (which the parties agree have no obligations under this
Settlement Agreement) and O’BOYLE with respect to all matters covered and the transactions contemplated hereby; any prior writing or oral discussion shall be merged into this Settlement
Agreement.
18.No modification or waiver of any provision of this Settlement Agreement shall be effective unless the same shall be in writing and signed by GULF STREAM, each of the Joining Parties
and Martin E. O’Boyle. [add language that individual parties can make amendments or modifications to the SA, but that such would only be binding between those parties]
19. If any term, covenant, or condition Settlement Agreement or the application thereof shall, to any extent, be invalid or unenforceable, the remaining terms, conditions, and covenants
shall remain valid and enforceable. Each term, covenant, or condition shall be enforced to the fullest extent permitted by law.
IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement as of ________, 2017.
SETTLEMENT AGREEMENT SIGNATURE PAGE
[NEED ADDRESSES FOR EACH PARTY]
___________________________
MARTIN E. O’BOYLE
individually,
[separate line item for each entity so that MEO could sign in his official capacity]
Airline Highway, LLC
Asset Enhancement, Inc.
CG Acquisition Company, Inc.
Commerce GP, Inc.
Commerce Group, Inc.
Commerce Realty Group, Inc.
CRO Aviation, Inc.
Our Public Records, LLC
Stopdirtygovernment, LLC
Public Awareness Institute, Inc.
_______________________________
TOWN OF GULF STREAM
By Scott Morgan as Town Mayor
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
MAYOR SCOTT MORGAN
THOMAS STANLEY
JOAN ORTHWEIN
PAUL LYONS
DONNA WHITE
RITA TAYLOR
WILLIAM THRASHER
EDWARD C. NAZZARO, ESQ.
JOHN C. RANDOLPH, ESQ.
JOANNE M. O’CONNOR, ESQ.
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
By __________________ as its _________________.
Page 1 of 2-page COMPOSITE EXHIBIT “A”
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
[may need modification]
ROBERT A. SWEETAPPLE, ESQ.
SWEETAPPLE, BROEKER & VARKAS, PL
By __________________ as its _________________.
HUDSON GILL, ESQ.
JEFFREY L. HOCHMAN, ESQ.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, P.A.
By __________________ as its _________________.
GERALD F. RICHMAN, ESQ.
ERIC M. SODHI, ESQ.
RICHMAN GREER, P.A.
By __________________ as its _________________.
Page 2 of 2-page COMPOSITE EXHIBIT “A”
SETTLEMENT AGREEMENT
For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, Martin E. O’Boyle, individually and also in his official capacity as
an officer, partner, officer of a partner, and\or member (as specifically designated on the signature pages) of Airline Highway, LLC; Asset Enhancement, Inc.; CG Acquisition Company,
Inc.; Commerce GP, Inc.; Commerce Group, Inc.; Commerce Realty Group, Inc.; CRO Aviation, Inc.; Our Public Records, LLC; Stopdirtygovernment, LLC; Public Awareness Institute, Inc.;
and Citizens for Open Government, LLC (collectively the “Entities”); including, without limitation, all Directors, Shareholders, Members, Officers, Partners and Agents including all
successors and assigns of all of the above parties and Entities (collectively “O’BOYLE”) fully and forever hereby irrevocably discharges and releases the GULF STREAM from each and every
action, cause of action, lawsuit, appeal, post-judgment proceeding, claim for attorney’s fees, claim for costs, claim for sanctions (whether requested or imposed), public records request,
claim for any award, loss, damage, judgment, remedy, or relief whatsoever in law and in equity, including each and every claim arising under local law, state law, federal law, the Florida
Constitution, and/or the United States Constitution (collectively “CLAIMS”), which CLAIMS O’BOYLE ever had, now has, or which any successor, heir, or assign can or may have against
the TOWN OF GULF STREAM for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement,
and O’BOYLE also hereby knowingly waives all such CLAIMS. The exceptions to the content of this paragraph are addressed in paragraph 9 below.
2. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, O’BOYLE fully and forever hereby irrevocably discharges and releases
each individual [need to see who we agree to release – if we don’t release them – they don’t release us. Patsy Randolph will be specifically excluded from any release. Signatories
must include Tew, Avery, Rita & Thrasher and individual Commissioners – any others?] and each entity (individually a “Joining Party” and collectively the “Joining Parties”) that signs
its signature block on Composite Exhibit “A” (excluding from the definition of Adjoining Parties are GULF STREAM and O’BOYLE) from all CLAIMS which O’BOYLE ever had, now has, or which
any successor, heir, or assign can or may have against the Joining Parties for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the
day of the execution of this Settlement Agreement, and O’BOYLE also hereby knowingly waives all such CLAIMS. . The exceptions to the content of this paragraph are addressed in paragraph
9 below.
3. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, the TOWN OF GULF STREAM (including its representatives, successors
and assigns) (“GULF STREAM”) fully and forever hereby irrevocably discharges and releases O’BOYLE and\or any of the O’Boyle Requestors from all CLAIMS which GULF STREAM ever had, now
has, or which any representative, successor or assign can or may have against O’BOYLE and\or any of the O’Boyle Requestors (including their representatives, successors, heirs, and assigns)
for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement, and GULF STREAM also
4. For and in consideration of good and valuable consideration, its adequacy and receipt of which are acknowledged, each Joining Party (including their heirs, successors and assigns)
fully and forever hereby irrevocably discharges and releases O’BOYLE and the O’Boyle Requestors (including their representatives, successors, heirs, and assigns) from all CLAIMS which
each Joining Party (including their representatives, successors, heirs, and assigns ever had, now has, or can or may have against O’BOYLE and\or any of the O’Boyle Requestors for, upon,
or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement, and the Joining Parties also hereby
knowingly waives all such CLAIMS.
5. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, GULF STREAM and each Joining Party (the “GS Parties”) fully and forever
hereby irrevocably discharges and releases Jonathan O’Boyle, Esq.; Giovani Mesa, Esq.; Nicklaus Taylor, Esq.; Ryan Witmer, Esq.; William F. Ring, Esq.; and The O’Boyle Law Firm, P.C.,
Inc., [add the lawyers, paralegals that work (or worked for the OLF (or any of their people) and those parties involved in the representation of O’Boyle or the others in definition]
(collectively “O’Boyle Attorneys”) from all CLAIMS which the GS Parties ever had, now has, or which any successor or assign can or may have against the O’Boyle Attorneys, including,
without limitation, any claims and other matters arising from their representation of O’BOYLE and\or Christopher O’Hare (and his aliases and any other parties or entities or ficticious
names used by Christopher O’Hare (“O’Hare”), for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement
Agreement, and the TOWN OF GULF STREAM also hereby knowingly waives all such CLAIMS; except that, in the event that Jonathan O’Boyle, Esq.; Giovani Mesa, Esq.; Nicklaus Taylor, Esq.;
Ryan Witmer, Esq.; William F. Ring, Esq.; or The O’Boyle Law Firm, P.C., Inc., seek in the capacity as a litigant, any form of judicial relief against GULF STREAM (each individually
and collectively referred to as a “New Attorney Lawsuit”), then this paragraph 5 will not prevent, limit, reduce, or otherwise hinder GULF STREAM in its rights or in its ability to
defend itself, to assert all defenses and defensive matters, or to seek awards of attorney’s fees, costs, sanctions, and other relief typically available to a defending party in any
such New Attorney Lawsuit (the “Defenses”). GULF STREAM acknowledges the provisions of this Settlement Agreement shall not permit any claims, counter claims or other litigations or
other actions to be brought or threatened by and of the GS Parties against any of the O’Boyle Attorney’s or O’Boyle) [include affiliates, etc] (individually and collectively the “O’Boyle
Group”)
5. By way of clarification and not limitation, the provisions of Paragraphs the provisions of the above paragraphs one through five of this Settlement Agreement, includes the following
matters: Case No.14-CA-000834; Case No. 14-CA-001572; Case No. 14-2CA-02607; Case No. 14-CA-002728; Case No. 14-CA-003396; Case No. 14-003721; Case No. 14-CA-004474/Case No. 4D16-3634;
Case No. 14-CA-005189; Case No. 4D 15-1762; Case No. 14-CA-005628; Case No. 14-CA-6112; Case No. 14-CA0006360; Case No 14-CA-007123; Case No. 14-CA-008076; Case No. 14-CC-008529; Case
No. 14-CA-010216; Case No. 14-CA-011940; Case No. 14-CC-014780 (17th Cir. County Court); Case No. 14-CC-015050; Case No. 16-CA-004546; Case No. 16-CA-005437/Case No. 4D16-3386; Case
No. 14-cv-80317/11th Cir. Case No. 15-13964; Case No. 15-13964; Case No. 14-cv-81250-KAM; Case No. 14-cv-81248-DTKH/11th Cir. Case No. 15-10997; Case No.
15-CA-001498; Case No. 15-CA-001498; Case No. 15-CA-001737; Case No. 14-CA-011941, Case No. 15-cv-80182-KAM, and Case No. 17-CA-005226 (collectively “Litigated Matters”). [Need to confirm
the enumeration is correct]
6. By way of further clarification and not limitation, except for cases which have already concluded by virtue of the entry of an appropriate final order or judgment GULF STREAM and
O’BOYLE will file stipulations for the dismissal with prejudice of the Litigated Matters in the appropriate court to secure a final order of dismissal of each case with each party to
the Litigated Matters to bear its own attorney’s fees and costs, even if a party is otherwise entitled to seek attorney’s fees and costs from another under a fee or cost shifting provision.
All sanctions claims made, ordered, or granted, including, without limitation, those made, ordered, or granted pursuant to section 57.105, Florida Statutes, the inherent authority of
any court, or any other law (whether statutory or common law) (“Sanctions”)shall be withdrawn and dismissed with prejudice; and to the extent that there is any Order or Judgement of
any Court after the date of this Settlement Agreement issued, the applicable GS Party hereby waives payment of same..
7. By way of further clarification and not limitation, this Settlement Agreement amounts to an immediate written withdrawal of each and every public records request issued as of the
date of the execution of this Settlement Agreement to the TOWN OF GULF STREAM by O’BOYLE, including, without limitation, each public records request issued through a relative, employee,
associate, agent, or attorney but only to the extent that any such party was acting on behalf of O’Boyle (collectively “O’Boyle Requestors”). Each of the O’Boyle Requestors separately
release, discharge, and waive all CLAIMS arising from, connected with, related to, or associated with each such public records request but only to the extent made by and of the O’Boyle
Requestors.
The Settlement Agreement entered into by and between the TOWN OF GULF STREAM, Martin E. O’Boyle, Commerce Group, Inc., N984AC Caravan, LLC, and Airline Highway, LLC, on July 26, 2013,
shall remain in full force and effect (the “2013 SA”). Claims that each and every party that is included in the definition of O’Boyle (including, without limitation, Martin E. O’Boyle)
may have or wish to assert against GULF STREAM arising from, touching, related to or in connection with or associated with: (a) the following matters which occurred on September 22,
2015 [insert from State Complaint]; (b) the 2013 SA; and (c) any activities related to the development and\or construction of improvements by the O’Boyle Group in Hidden Harbour Estates,
Gulfsream, Fl., are hereby preserved and not released or waived by this Settlement Agreement.
10. In connection with any claims and\or litigations between the TOWN GULF STREAM and O’BOYLE filed (or asserted) (“Subsequent Claims”) on or after the date of the execution of this
Settlement Agreement, GULF STREAM, each of the Joining Parties and O’BOYLE hereby waive all rights to attorney’s fees and costs from the other party in any such Subsequent Claims, even
if a state or federal statute or rule provides such a remedy. Further, each party hereby waives and releases its respective rights to apply for and to secure court-awarded sanctions
from all parties in connection with any in any such Subsequent Claims other, even if the sanction award is in the form of an award of attorney’s fees, costs, or both. [carve out atty
fees only in connection with the enforcement of this SA, and the Carve Outs in #9 above.]
11. In the event that any O’Boyle Requestors submit a public records request to the TOWN OF GULF STREAM (pursuant to “Chapter 119”), at any time after the day of the execution of this
Settlement Agreement, Martin E. O’Boyle hereby agrees to pay, at the time that the public records request is made, a facilitation fee of $250 to the Town Clerk of the TOWN OF GULF STREAM
(“Facilitation Fee”). Failure to pay the Facilitation Fee will conclusively render such public records request withdrawn. In the event that there are no costs associated with responding
to the applicable public records request or in the event that the costs associated with responding to the applicable public records request are less than the corresponding Facilitation
Fee, the Facilitation Fee (after reduction of the costs associated with responding to the request) will be refunded to Martin E. O’Boyle within ten (10) days. Otherwise, the conduct
of the O’Boyle Requestors and GULF STREAM will be governed by Chapter 119 of the Florida Statutes (“Chapter 119”) .
12. GULF STREAM, the Joining Parties and O’BOYLE have read this Settlement Agreement with the assistance of counsel and understand its terms, obligations, operation, and effect. GULF
STREAM and O’BOYLE acknowledge that their entry into this Settlement shall not be deemed or considered to be any admission or acceptance of blame, liability, or responsibility. GULF
STREAM and O’BOYLE have entered into this Settlement Agreement voluntarily and without having been threatened, coerced, or intimidated. No provision of this Settlement Agreement shall
be construed presumptively against any party hereto.
13. GULF STREAM, each of the Joining Parties and O’BOYLE warrant to each other (a) that no sale, assignment, transfer, or other disposition of any of the CLAIMS which are being released
and waived hereunder has occurred, (b) that each has the full right, power, legal capacity, and authority to enter into this Settlement Agreement and to consummate the transactions
described herein, and (c) that this Settlement Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation in accordance with its
terms.
14. In the event of a default of any obligation under this Settlement Agreement, the party declaring any such default shall provide the party allegedly in default with a notice explaining
the default by email and by U.S. Mail (“Notice”). The failure to cure a default by the 10th day after such Notice was received by the party to whom it was sent shall constitute a breach
of this Settlement Agreement by the defaulting party or parties . Such breach, however, shall not be construed as a breach between all parties, and any such breach shall be enforceable
only against the defaulting party by the party providing the Notice. Notice to the TOWN OF GULF STREAM shall be made to the Town Clerk at the official address for of the Town of Gulf
Stream, 100 Sea Road, Gulf Stream, FL 33483. Notice to O’BOYLE shall be made to Martin O’Boyle (with a copy to William F. Ring, Esq. at 1280 W. Newport Center Drive, Deerfield Beach,
FL, 33442. Copies of Notices to the any or all of the Joining Parties shall be made to the address under the name of each Joining Party on the signature page of this Settlement Agreement
by Certified mail (Return Receipt Requested) or by a recognized overnight delivery carrier.
15. This Settlement Agreement is deemed to have been made, executed, and delivered in the State of Florida and shall be construed in accordance with the laws of the State of Florida.
Accordingly, GULF STREAM and O’BOYLE consent to the exclusive jurisdiction of the Circuit Court for the 15th Judicial Circuit for the State of Florida for all purposes related to this
Settlement Agreement and forgo all other venues.
16. This Settlement Agreement shall be binding upon and inure to the benefit of the TOWN OF GULF STREAM, each of the Joining Parties, O’BOYLE and each of their respective heirs, successors
and assigns. No party may assign its rights or delegate its obligations under this Settlement Agreement without the express prior written consent of the other affected party.
,
8. This Settlement Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute a single agreement, with the same effect
as if the signatures thereto and hereto were upon the same instrument. Any facsimiles, photographs or photocopies of this Settlement Agreement shall be considered, for all purposes,
as if it were an executed original.
17. This Settlement Agreement contains the entire agreement of GULF STREAM, each of the Joining Parties, the O’Boyle Attorney’s (which the parties agree have no obligations under this
Settlement Agreement) and O’BOYLE with respect to all matters covered and the transactions contemplated hereby; any prior writing or oral discussion shall be merged into this Settlement
Agreement.
18.No modification or waiver of any provision of this Settlement Agreement shall be effective unless the same shall be in writing and signed by GULF STREAM, each of the Joining Parties
and Martin E. O’Boyle. [add language that individual parties can make amendments or modifications to the SA, but that such would only be binding between those parties]
19. If any term, covenant, or condition Settlement Agreement or the application thereof shall, to any extent, be invalid or unenforceable, the remaining terms, conditions, and covenants
shall remain valid and enforceable. Each term, covenant, or condition shall be enforced to the fullest extent permitted by law.
IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement as of ________, 2017.
SETTLEMENT AGREEMENT SIGNATURE PAGE
[NEED ADDRESSES FOR EACH PARTY]
___________________________
MARTIN E. O’BOYLE
individually,
[separate line item for each entity so that MEO could sign in his official capacity]
Airline Highway, LLC
Asset Enhancement, Inc.
CG Acquisition Company, Inc.
Commerce GP, Inc.
Commerce Group, Inc.
Commerce Realty Group, Inc.
CRO Aviation, Inc.
Our Public Records, LLC
Stopdirtygovernment, LLC
Public Awareness Institute, Inc.
_______________________________
TOWN OF GULF STREAM
By Scott Morgan as Town Mayor
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
MAYOR SCOTT MORGAN
THOMAS STANLEY
JOAN ORTHWEIN
PAUL LYONS
DONNA WHITE
RITA TAYLOR
WILLIAM THRASHER
EDWARD C. NAZZARO, ESQ.
JOHN C. RANDOLPH, ESQ.
JOANNE M. O’CONNOR, ESQ.
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
By __________________ as its _________________.
Page 1 of 2-page COMPOSITE EXHIBIT “A”
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
[may need modification]
ROBERT A. SWEETAPPLE, ESQ.
SWEETAPPLE, BROEKER & VARKAS, PL
By __________________ as its _________________.
HUDSON GILL, ESQ.
JEFFREY L. HOCHMAN, ESQ.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, P.A.
By __________________ as its _________________.
GERALD F. RICHMAN, ESQ.
ERIC M. SODHI, ESQ.
RICHMAN GREER, P.A.
By __________________ as its _________________.
Page 2 of 2-page COMPOSITE EXHIBIT “A”
SETTLEMENT AGREEMENT
1. For and in consideration of good and valuable consideration, the adequacy and
receipt of which are acknowledged, Martin E. O’Boyle, individually and also in his official
capacity as an officer, partner, officer of a partner, and\\or member (as specifically designated on
the signature pages) of Airline Highway, LLC; Asset Enhancement, Inc.; CG Acquisition
Company, Inc.; Commerce GP, Inc.; Commerce Group, Inc.; Commerce Realty Group, Inc.;
CRO Aviation, Inc.; Our Public Records, LLC; Stopdirtygovernment, LLC; Public Awareness
Institute, Inc.; and Citizens for Open Government, LLC (collectively the “Entities”); including,
without limitation, all Directors, Shareholders, Members, Officers, Partners and Agents
including all successors and assigns of all of the above parties and Entities (collectively
“O’BOYLE”) fully and forever hereby irrevocably discharges and releases the GULF STREAM
from each and every action, cause of action, lawsuit, appeal, post-judgment proceeding, claim for
attorney’s fees, claim for costs, claim for sanctions (whether requested or imposed), public
records request, claim for any award, loss, damage, judgment, remedy, or relief whatsoever in
law and in equity, including each and every claim arising under local law, state law, federal law,
the Florida Constitution, and/or the United States Constitution (collectively “CLAIMS”), which
CLAIMS O’BOYLE ever had, now has, or which any successor, heir, or assign can or may have
against the TOWN OF GULF STREAM for, upon, or by reason of any matter, cause, or thing
whatsoever, from the beginning of the world to the day of the execution of this Settlement
Agreement, and O’BOYLE also hereby knowingly waives all such CLAIMS. The exceptions to
the content of this paragraph are addressed in paragraph 9 below.
2. For and in consideration of good and valuable consideration, the adequacy and
receipt of which are acknowledged, O’BOYLE fully and forever hereby irrevocably discharges
and releases each individual \[need to see who we agree to release – if we don’t release them –
they don’t release us. Patsy Randolph will be specifically excluded from any release.
Signatories must include Tew, Avery, Rita & Thrasher and individual Commissioners – any
others?\] and each entity (individually a “Joining Party” and collectively the “Joining Parties”)
that signs its signature block on Composite Exhibit “A” (excluding from the definition of
Adjoining Parties are GULF STREAM and O’BOYLE) from all CLAIMS which O’BOYLE
ever had, now has, or which any successor, heir, or assign can or may have against the Joining
Parties for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of
the world to the day of the execution of this Settlement Agreement, and O’BOYLE also hereby
knowingly waives all such CLAIMS. . The exceptions to the content of this paragraph are
addressed in paragraph 9 below.
3. For and in consideration of good and valuable consideration, the adequacy and
receipt of which are acknowledged, the TOWN OF GULF STREAM (including its
representatives, successors and assigns) (“GULF STREAM”) fully and forever hereby
irrevocably discharges and releases O’BOYLE and\\or any of the O’Boyle Requestors from all
CLAIMS which GULF STREAM ever had, now has, or which any representative, successor or
assign can or may have against O’BOYLE and\\or any of the O’Boyle Requestors (including their
representatives, successors, heirs, and assigns) for, upon, or by reason of any matter, cause, or
thing whatsoever, from the beginning of the world to the day of the execution of this Settlement
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Agreement, and GULF STREAM also
4. For and in consideration of good and valuable consideration, its adequacy and
receipt of which are acknowledged, each Joining Party (including their heirs, successors and
assigns) fully and forever hereby irrevocably discharges and releases O’BOYLE and the
O’Boyle Requestors (including their representatives, successors, heirs, and assigns) from all
CLAIMS which each Joining Party (including their representatives, successors, heirs, and
assigns ever had, now has, or can or may have against O’BOYLE and\\or any of the O’Boyle
Requestors for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning
of the world to the day of the execution of this Settlement Agreement, and the Joining Parties
also hereby knowingly waives all such CLAIMS.
5. For and in consideration of good and valuable consideration, the adequacy and
receipt of which are acknowledged, GULF STREAM and each Joining Party (the “GS Parties”)
fully and forever hereby irrevocably discharges and releases Jonathan O’Boyle, Esq.; Giovani
Mesa, Esq.; Nicklaus Taylor, Esq.; Ryan Witmer, Esq.; William F. Ring, Esq.; and The O’Boyle
Law Firm, P.C., Inc., \[add the lawyers, paralegals that work (or worked for the OLF (or any of
their people) and those parties involved in the representation of O’Boyle or the others in
definition\] (collectively “O’Boyle Attorneys”) from all CLAIMS which the GS Parties ever had,
now has, or which any successor or assign can or may have against the O’Boyle Attorneys,
including, without limitation, any claims and other matters arising from their representation of
O’BOYLE and\\or Christopher O’Hare (and his aliases and any other parties or entities or
ficticious names used by Christopher O’Hare (“O’Hare”), for, upon, or by reason of any matter,
cause, or thing whatsoever, from the beginning of the world to the day of the execution of this
Settlement Agreement, and the TOWN OF GULF STREAM also hereby knowingly waives all
such CLAIMS; except that, in the event that Jonathan O’Boyle, Esq.; Giovani Mesa, Esq.;
Nicklaus Taylor, Esq.; Ryan Witmer, Esq.; William F. Ring, Esq.; or The O’Boyle Law Firm,
P.C., Inc., seek in the capacity as a litigant, any form of judicial relief against GULF STREAM
(each individually and collectively referred to as a “New Attorney Lawsuit”), then this
paragraph 5 will not prevent, limit, reduce, or otherwise hinder GULF STREAM in its rights or
in its ability to defend itself, to assert all defenses and defensive matters, or to seek awards of
attorney’s fees, costs, sanctions, and other relief typically available to a defending party in any
such New Attorney Lawsuit (the “Defenses”). GULF STREAM acknowledges the provisions
of this Settlement Agreement shall not permit any claims, counter claims or other litigations or
other actions to be brought or threatened by and of the GS Parties against any of the O’Boyle
Attorney’s or O’Boyle) \[include affiliates, etc\] (individually and collectively the “O’Boyle
Group”)
5.By way of clarification and not limitation, the provisions of Paragraphs the provisions
of the above paragraphs one through five of this Settlement Agreement, includes the following
matters: Case No.14-CA-000834; Case No. 14-CA-001572; Case No. 14-2CA-02607; Case No.
14-CA-002728; Case No. 14-CA-003396; Case No. 14-003721; Case No. 14-CA-004474/Case
No. 4D16-3634; Case No. 14-CA-005189; Case No. 4D 15-1762; Case No. 14-CA-005628; Case
No. 14-CA-6112; Case No. 14-CA0006360; Case No 14-CA-007123; Case No. 14-CA-008076;
Case No. 14-CC-008529; Case No. 14-CA-010216; Case No. 14-CA-011940; Case No.
14-CC-014780 (17th Cir. County Court); Case No. 14-CC-015050; Case No. 16-CA-004546;
-2-
Case No. 16-CA-005437/Case No. 4D16-3386; Case No. 14-cv-80317/11th Cir. Case
No. 15-13964; Case No. 15-13964; Case No. 14-cv-81250-KAM; Case No.
14-cv-81248-DTKH/11th Cir. Case No. 15-10997; Case No. 15-CA-001498; Case No.
15-CA-001498; Case No. 15-CA-001737; Case No. 14-CA-011941, Case No.
15-cv-80182-KAM, and Case No. 17-CA-005226 (collectively “Litigated Matters”). \[Need to
confirm the enumeration is correct\]
6. By way of further clarification and not limitation, except for cases which have
already concluded by virtue of the entry of an appropriate final order or judgment GULF
STREAM and O’BOYLE will file stipulations for the dismissal with prejudice of the Litigated
Matters in the appropriate court to secure a final order of dismissal of each case with each party
to the Litigated Matters to bear its own attorney’s fees and costs, even if a party is otherwise
entitled to seek attorney’s fees and costs from another under a fee or cost shifting provision. All
sanctions claims made, ordered, or granted, including, without limitation, those made, ordered,
or granted pursuant to section 57.105, Florida Statutes, the inherent authority of any court, or any
other law (whether statutory or common law) (“Sanctions”)shall be withdrawn and dismissed
with prejudice; and to the extent that there is any Order or Judgement of any Court after the date
of this Settlement Agreement issued, the applicable GS Party hereby waives payment of same..
7. By way of further clarification and not limitation, this Settlement Agreement
amounts to an immediate written withdrawal of each and every public records request issued as
of the date of the execution of this Settlement Agreement to the TOWN OF GULF STREAM by
O’BOYLE, including, without limitation, each public records request issued through a relative,
employee, associate, agent, or attorney but only to the extent that any such party was acting on
behalf of O’Boyle (collectively “O’Boyle Requestors”). Each of the O’Boyle Requestors
separately release, discharge, and waive all CLAIMS arising from, connected with, related to, or
associated with each such public records request but only to the extent made by and of the
O’Boyle Requestors.
The Settlement Agreement entered into by and between the TOWN OF GULF STREAM,
Martin E. O’Boyle, Commerce Group, Inc., N984AC Caravan, LLC, and Airline
Highway, LLC, on July 26, 2013, shall remain in full force and effect (the “2013 SA”).
Claims that each and every party that is included in the definition of O’Boyle (including,
without limitation, Martin E. O’Boyle) may have or wish to assert against GULF
STREAM arising from, touching, related to or in connection with or associated with: (a)
the following matters which occurred on September 22, 2015 \[insert from State
Complaint\]; (b) the 2013 SA; and (c) any activities related to the development and\\or
construction of improvements by the O’Boyle Group in Hidden Harbour Estates,
Gulfsream, Fl., are hereby preserved and not released or waived by this Settlement
Agreement.
10. In connection with any claims and\\or litigations between the TOWN GULF STREAM
and O’BOYLE filed (or asserted) (“Subsequent Claims”) on or after the date of the execution of
this Settlement Agreement, GULF STREAM, each of the Joining Parties and O’BOYLE hereby
waive all rights to attorney’s fees and costs from the other party in any such Subsequent Claims,
even if a state or federal statute or rule provides such a remedy. Further, each party hereby
-3-
waives and releases its respective rights to apply for and to secure court-awarded sanctions from
all parties in connection with any in any such Subsequent Claims other, even if the sanction
award is in the form of an award of attorney’s fees, costs, or both. \[carve out atty fees only in
connection with the enforcement of this SA, and the Carve Outs in #9 above.\]
11. In the event that any O’Boyle Requestors submit a public records request to the TOWN
OF GULF STREAM (pursuant to “Chapter 119”), at any time after the day of the execution of
this Settlement Agreement, Martin E. O’Boyle hereby agrees to pay, at the time that the public
records request is made, a facilitation fee of $250 to the Town Clerk of the TOWN OF GULF
STREAM (“Facilitation Fee”). Failure to pay the Facilitation Fee will conclusively render such
public records request withdrawn. In the event that there are no costs associated with responding
to the applicable public records request or in the event that the costs associated with responding
to the applicable public records request are less than the corresponding Facilitation Fee, the
Facilitation Fee (after reduction of the costs associated with responding to the request) will be
refunded to Martin E. O’Boyle within ten (10) days. Otherwise, the conduct of the O’Boyle
Requestors and GULF STREAM will be governed by Chapter 119 of the Florida Statutes
(“Chapter 119”) .
12. GULF STREAM, the Joining Parties and O’BOYLE have read this Settlement
Agreement with the assistance of counsel and understand its terms, obligations, operation, and
effect. GULF STREAM and O’BOYLE acknowledge that their entry into this Settlement shall
not be deemed or considered to be any admission or acceptance of blame, liability, or
responsibility. GULF STREAM and O’BOYLE have entered into this Settlement Agreement
voluntarily and without having been threatened, coerced, or intimidated. No provision of this
Settlement Agreement shall be construed presumptively against any party hereto.
13. GULF STREAM, each of the Joining Parties and O’BOYLE warrant to each other (a)
that no sale, assignment, transfer, or other disposition of any of the CLAIMS which are being
released and waived hereunder has occurred, (b) that each has the full right, power, legal
capacity, and authority to enter into this Settlement Agreement and to consummate the
transactions described herein, and (c) that this Settlement Agreement has been duly and validly
executed and delivered and constitutes a legal, valid and binding obligation in accordance with
its terms.
14. In the event of a default of any obligation under this Settlement Agreement, the party
declaring any such default shall provide the party allegedly in default with a notice explaining
the default by email and by U.S. Mail (“Notice”). The failure to cure a default by the 10th day
after such Notice was received by the party to whom it was sent shall constitute a breach of this
Settlement Agreement by the defaulting party or parties . Such breach, however, shall not be
construed as a breach between all parties, and any such breach shall be enforceable only against
the defaulting party by the party providing the Notice. Notice to the TOWN OF GULF STREAM
shall be made to the Town Clerk at the official address for of the Town of Gulf Stream, 100 Sea
Road, Gulf Stream, FL 33483. Notice to O’BOYLE shall be made to Martin O’Boyle (with a
copy to William F. Ring, Esq. at 1280 W. Newport Center Drive, Deerfield Beach, FL, 33442.
Copies of Notices to the any or all of the Joining Parties shall be made to the address under the
name of each Joining Party on the signature page of this Settlement Agreement by Certified mail
-4-
(Return Receipt Requested) or by a recognized overnight delivery carrier.
15. This Settlement Agreement is deemed to have been made, executed, and delivered in the
State of Florida and shall be construed in accordance with the laws of the State of Florida.
Accordingly, GULF STREAM and O’BOYLE consent to the exclusive jurisdiction of the Circuit
Court for the 15th Judicial Circuit for the State of Florida for all purposes related to this
Settlement Agreement and forgo all other venues.
16. This Settlement Agreement shall be binding upon and inure to the benefit of the TOWN
OF GULF STREAM, each of the Joining Parties, O’BOYLE and each of their respective heirs,
successors and assigns. No party may assign its rights or delegate its obligations under this
Settlement Agreement without the express prior written consent of the other affected party.
,
8. This Settlement Agreement may be executed in counterparts, each of which shall
be an original and all of which taken together shall constitute a single agreement, with the same
effect as if the signatures thereto and hereto were upon the same instrument. Any facsimiles,
photographs or photocopies of this Settlement Agreement shall be considered, for all purposes,
as if it were an executed original.
17. This Settlement Agreement contains the entire agreement of GULF STREAM, each of
the Joining Parties, the O’Boyle Attorney’s (which the parties agree have no obligations under
this Settlement Agreement) and O’BOYLE with respect to all matters covered and the
transactions contemplated hereby; any prior writing or oral discussion shall be merged into this
Settlement Agreement.
18.No modification or waiver of any provision of this Settlement Agreement shall be effective
unless the same shall be in writing and signed by GULF STREAM, each of the Joining Parties
and Martin E. O’Boyle. \[add language that individual parties can make amendments or
modifications to the SA, but that such would only be binding between those parties\]
19. If any term, covenant, or condition Settlement Agreement or the application thereof
shall, to any extent, be invalid or unenforceable, the remaining terms, conditions, and covenants
shall remain valid and enforceable. Each term, covenant, or condition shall be enforced to the
fullest extent permitted by law.
IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement as
of ________, 2017.
-5-
SETTLEMENT AGREEMENT SIGNATURE PAGE
\[NEED ADDRESSES FOR EACH PARTY\]
___________________________
MARTIN E. O’BOYLE
individually,
\[separate line item for each entity so that MEO could sign in his official capacity\]
Airline Highway, LLC
Asset Enhancement, Inc.
CG Acquisition Company, Inc.
Commerce GP, Inc.
Commerce Group, Inc.
Commerce Realty Group, Inc.
CRO Aviation, Inc.
Our Public Records, LLC
Stopdirtygovernment, LLC
Public Awareness Institute, Inc.
_______________________________
TOWN OF GULF STREAM
By Scott Morgan as Town Mayor
-6-
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
MAYOR SCOTT MORGAN
THOMAS STANLEY
JOAN ORTHWEIN
PAUL LYONS
DONNA WHITE
RITA TAYLOR
WILLIAM THRASHER
EDWARD C. NAZZARO, ESQ.
JOHN C. RANDOLPH, ESQ.
JOANNE M. O’CONNOR, ESQ.
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
By __________________ as its _________________.
Page 1 of 2-page COMPOSITE EXHIBIT “A”
-7-
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
\[may need modification\]
ROBERT A. SWEETAPPLE, ESQ.
SWEETAPPLE, BROEKER & VARKAS, PL
By __________________ as its _________________.
HUDSON GILL, ESQ.
JEFFREY L. HOCHMAN, ESQ.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, P.A.
By __________________ as its _________________.
GERALD F. RICHMAN, ESQ.
ERIC M. SODHI, ESQ.
RICHMAN GREER, P.A.
By __________________ as its _________________.
Page 2 of 2-page COMPOSITE EXHIBIT “A”
-8-
SETTLEMENT AGREEMENT
1. For and in consideration of good and valuable consideration, the adequacy and
receipt of which are acknowledged, Martin E. O’Boyle, individually and also in his official
capacity as an officer, partner, officer of a partner, and\\or member (as specifically designated on
the signature pages) of Airline Highway, LLC; Asset Enhancement, Inc.; CG Acquisition
Company, Inc.; Commerce GP, Inc.; Commerce Group, Inc.; Commerce Realty Group, Inc.;
CRO Aviation, Inc.; Our Public Records, LLC; Stopdirtygovernment, LLC; Public Awareness
Institute, Inc.; and Citizens for Open Government, LLC (collectively the “Entities”); including,
without limitation, all Directors, Shareholders, Members, Officers, Partners and Agents
including all successors and assigns of all of the above parties and Entities (collectively
“O’BOYLE”) fully and forever hereby irrevocably discharges and releases the GULF STREAM
from each and every action, cause of action, lawsuit, appeal, post-judgment proceeding, claim for
attorney’s fees, claim for costs, claim for sanctions (whether requested or imposed), public
records request, claim for any award, loss, damage, judgment, remedy, or relief whatsoever in
law and in equity, including each and every claim arising under local law, state law, federal law,
the Florida Constitution, and/or the United States Constitution (collectively “CLAIMS”), which
CLAIMS O’BOYLE ever had, now has, or which any successor, heir, or assign can or may have
against the TOWN OF GULF STREAM for, upon, or by reason of any matter, cause, or thing
whatsoever, from the beginning of the world to the day of the execution of this Settlement
Agreement, and O’BOYLE also hereby knowingly waives all such CLAIMS. The exceptions to
the content of this paragraph are addressed in paragraph 9 below.
2. For and in consideration of good and valuable consideration, the adequacy and
receipt of which are acknowledged, O’BOYLE fully and forever hereby irrevocably discharges
and releases each individual \[need to see who we agree to release – if we don’t release them –
they don’t release us. Patsy Randolph will be specifically excluded from any release.
Signatories must include Tew, Avery, Rita & Thrasher and individual Commissioners – any
others?\] and each entity (individually a “Joining Party” and collectively the “Joining Parties”)
that signs its signature block on Composite Exhibit “A” (excluding from the definition of
Adjoining Parties are GULF STREAM and O’BOYLE) from all CLAIMS which O’BOYLE
ever had, now has, or which any successor, heir, or assign can or may have against the Joining
Parties for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of
the world to the day of the execution of this Settlement Agreement, and O’BOYLE also hereby
knowingly waives all such CLAIMS. . The exceptions to the content of this paragraph are
addressed in paragraph 9 below.
3. For and in consideration of good and valuable consideration, the adequacy and
receipt of which are acknowledged, the TOWN OF GULF STREAM (including its
representatives, successors and assigns) (“GULF STREAM”) fully and forever hereby
irrevocably discharges and releases O’BOYLE and\\or any of the O’Boyle Requestors from all
CLAIMS which GULF STREAM ever had, now has, or which any representative, successor or
assign can or may have against O’BOYLE and\\or any of the O’Boyle Requestors (including their
representatives, successors, heirs, and assigns) for, upon, or by reason of any matter, cause, or
thing whatsoever, from the beginning of the world to the day of the execution of this Settlement
-1-
Agreement, and GULF STREAM also
4. For and in consideration of good and valuable consideration, its adequacy and
receipt of which are acknowledged, each Joining Party (including their heirs, successors and
assigns) fully and forever hereby irrevocably discharges and releases O’BOYLE and the
O’Boyle Requestors (including their representatives, successors, heirs, and assigns) from all
CLAIMS which each Joining Party (including their representatives, successors, heirs, and
assigns ever had, now has, or can or may have against O’BOYLE and\\or any of the O’Boyle
Requestors for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning
of the world to the day of the execution of this Settlement Agreement, and the Joining Parties
also hereby knowingly waives all such CLAIMS.
5. For and in consideration of good and valuable consideration, the adequacy and
receipt of which are acknowledged, GULF STREAM and each Joining Party (the “GS Parties”)
fully and forever hereby irrevocably discharges and releases Jonathan O’Boyle, Esq.; Giovani
Mesa, Esq.; Nicklaus Taylor, Esq.; Ryan Witmer, Esq.; William F. Ring, Esq.; and The O’Boyle
Law Firm, P.C., Inc., \[add the lawyers, paralegals that work (or worked for the OLF (or any of
their people) and those parties involved in the representation of O’Boyle or the others in
definition\] (collectively “O’Boyle Attorneys”) from all CLAIMS which the GS Parties ever had,
now has, or which any successor or assign can or may have against the O’Boyle Attorneys,
including, without limitation, any claims and other matters arising from their representation of
O’BOYLE and\\or Christopher O’Hare (and his aliases and any other parties or entities or
ficticious names used by Christopher O’Hare (“O’Hare”), for, upon, or by reason of any matter,
cause, or thing whatsoever, from the beginning of the world to the day of the execution of this
Settlement Agreement, and the TOWN OF GULF STREAM also hereby knowingly waives all
such CLAIMS; except that, in the event that Jonathan O’Boyle, Esq.; Giovani Mesa, Esq.;
Nicklaus Taylor, Esq.; Ryan Witmer, Esq.; William F. Ring, Esq.; or The O’Boyle Law Firm,
P.C., Inc., seek in the capacity as a litigant, any form of judicial relief against GULF STREAM
(each individually and collectively referred to as a “New Attorney Lawsuit”), then this
paragraph 5 will not prevent, limit, reduce, or otherwise hinder GULF STREAM in its rights or
in its ability to defend itself, to assert all defenses and defensive matters, or to seek awards of
attorney’s fees, costs, sanctions, and other relief typically available to a defending party in any
such New Attorney Lawsuit (the “Defenses”). GULF STREAM acknowledges the provisions
of this Settlement Agreement shall not permit any claims, counter claims or other litigations or
other actions to be brought or threatened by and of the GS Parties against any of the O’Boyle
Attorney’s or O’Boyle) \[include affiliates, etc\] (individually and collectively the “O’Boyle
Group”)
5.By way of clarification and not limitation, the provisions of Paragraphs the provisions
of the above paragraphs one through five of this Settlement Agreement, includes the following
matters: Case No.14-CA-000834; Case No. 14-CA-001572; Case No. 14-2CA-02607; Case No.
14-CA-002728; Case No. 14-CA-003396; Case No. 14-003721; Case No. 14-CA-004474/Case
No. 4D16-3634; Case No. 14-CA-005189; Case No. 4D 15-1762; Case No. 14-CA-005628; Case
No. 14-CA-6112; Case No. 14-CA0006360; Case No 14-CA-007123; Case No. 14-CA-008076;
Case No. 14-CC-008529; Case No. 14-CA-010216; Case No. 14-CA-011940; Case No.
14-CC-014780 (17th Cir. County Court); Case No. 14-CC-015050; Case No. 16-CA-004546;
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Case No. 16-CA-005437/Case No. 4D16-3386; Case No. 14-cv-80317/11th Cir. Case
No. 15-13964; Case No. 15-13964; Case No. 14-cv-81250-KAM; Case No.
14-cv-81248-DTKH/11th Cir. Case No. 15-10997; Case No. 15-CA-001498; Case No.
15-CA-001498; Case No. 15-CA-001737; Case No. 14-CA-011941, Case No.
15-cv-80182-KAM, and Case No. 17-CA-005226 (collectively “Litigated Matters”). \[Need to
confirm the enumeration is correct\]
6. By way of further clarification and not limitation, except for cases which have
already concluded by virtue of the entry of an appropriate final order or judgment GULF
STREAM and O’BOYLE will file stipulations for the dismissal with prejudice of the Litigated
Matters in the appropriate court to secure a final order of dismissal of each case with each party
to the Litigated Matters to bear its own attorney’s fees and costs, even if a party is otherwise
entitled to seek attorney’s fees and costs from another under a fee or cost shifting provision. All
sanctions claims made, ordered, or granted, including, without limitation, those made, ordered,
or granted pursuant to section 57.105, Florida Statutes, the inherent authority of any court, or any
other law (whether statutory or common law) (“Sanctions”)shall be withdrawn and dismissed
with prejudice; and to the extent that there is any Order or Judgement of any Court after the date
of this Settlement Agreement issued, the applicable GS Party hereby waives payment of same..
7. By way of further clarification and not limitation, this Settlement Agreement
amounts to an immediate written withdrawal of each and every public records request issued as
of the date of the execution of this Settlement Agreement to the TOWN OF GULF STREAM by
O’BOYLE, including, without limitation, each public records request issued through a relative,
employee, associate, agent, or attorney but only to the extent that any such party was acting on
behalf of O’Boyle (collectively “O’Boyle Requestors”). Each of the O’Boyle Requestors
separately release, discharge, and waive all CLAIMS arising from, connected with, related to, or
associated with each such public records request but only to the extent made by and of the
O’Boyle Requestors.
The Settlement Agreement entered into by and between the TOWN OF GULF STREAM,
Martin E. O’Boyle, Commerce Group, Inc., N984AC Caravan, LLC, and Airline
Highway, LLC, on July 26, 2013, shall remain in full force and effect (the “2013 SA”).
Claims that each and every party that is included in the definition of O’Boyle (including,
without limitation, Martin E. O’Boyle) may have or wish to assert against GULF
STREAM arising from, touching, related to or in connection with or associated with: (a)
the following matters which occurred on September 22, 2015 \[insert from State
Complaint\]; (b) the 2013 SA; and (c) any activities related to the development and\\or
construction of improvements by the O’Boyle Group in Hidden Harbour Estates,
Gulfsream, Fl., are hereby preserved and not released or waived by this Settlement
Agreement.
10. In connection with any claims and\\or litigations between the TOWN GULF STREAM
and O’BOYLE filed (or asserted) (“Subsequent Claims”) on or after the date of the execution of
this Settlement Agreement, GULF STREAM, each of the Joining Parties and O’BOYLE hereby
waive all rights to attorney’s fees and costs from the other party in any such Subsequent Claims,
even if a state or federal statute or rule provides such a remedy. Further, each party hereby
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waives and releases its respective rights to apply for and to secure court-awarded sanctions from
all parties in connection with any in any such Subsequent Claims other, even if the sanction
award is in the form of an award of attorney’s fees, costs, or both. \[carve out atty fees only in
connection with the enforcement of this SA, and the Carve Outs in #9 above.\]
11. In the event that any O’Boyle Requestors submit a public records request to the TOWN
OF GULF STREAM (pursuant to “Chapter 119”), at any time after the day of the execution of
this Settlement Agreement, Martin E. O’Boyle hereby agrees to pay, at the time that the public
records request is made, a facilitation fee of $250 to the Town Clerk of the TOWN OF GULF
STREAM (“Facilitation Fee”). Failure to pay the Facilitation Fee will conclusively render such
public records request withdrawn. In the event that there are no costs associated with responding
to the applicable public records request or in the event that the costs associated with responding
to the applicable public records request are less than the corresponding Facilitation Fee, the
Facilitation Fee (after reduction of the costs associated with responding to the request) will be
refunded to Martin E. O’Boyle within ten (10) days. Otherwise, the conduct of the O’Boyle
Requestors and GULF STREAM will be governed by Chapter 119 of the Florida Statutes
(“Chapter 119”) .
12. GULF STREAM, the Joining Parties and O’BOYLE have read this Settlement
Agreement with the assistance of counsel and understand its terms, obligations, operation, and
effect. GULF STREAM and O’BOYLE acknowledge that their entry into this Settlement shall
not be deemed or considered to be any admission or acceptance of blame, liability, or
responsibility. GULF STREAM and O’BOYLE have entered into this Settlement Agreement
voluntarily and without having been threatened, coerced, or intimidated. No provision of this
Settlement Agreement shall be construed presumptively against any party hereto.
13. GULF STREAM, each of the Joining Parties and O’BOYLE warrant to each other (a)
that no sale, assignment, transfer, or other disposition of any of the CLAIMS which are being
released and waived hereunder has occurred, (b) that each has the full right, power, legal
capacity, and authority to enter into this Settlement Agreement and to consummate the
transactions described herein, and (c) that this Settlement Agreement has been duly and validly
executed and delivered and constitutes a legal, valid and binding obligation in accordance with
its terms.
14. In the event of a default of any obligation under this Settlement Agreement, the party
declaring any such default shall provide the party allegedly in default with a notice explaining
the default by email and by U.S. Mail (“Notice”). The failure to cure a default by the 10th day
after such Notice was received by the party to whom it was sent shall constitute a breach of this
Settlement Agreement by the defaulting party or parties . Such breach, however, shall not be
construed as a breach between all parties, and any such breach shall be enforceable only against
the defaulting party by the party providing the Notice. Notice to the TOWN OF GULF STREAM
shall be made to the Town Clerk at the official address for of the Town of Gulf Stream, 100 Sea
Road, Gulf Stream, FL 33483. Notice to O’BOYLE shall be made to Martin O’Boyle (with a
copy to William F. Ring, Esq. at 1280 W. Newport Center Drive, Deerfield Beach, FL, 33442.
Copies of Notices to the any or all of the Joining Parties shall be made to the address under the
name of each Joining Party on the signature page of this Settlement Agreement by Certified mail
-4-
(Return Receipt Requested) or by a recognized overnight delivery carrier.
15. This Settlement Agreement is deemed to have been made, executed, and delivered in the
State of Florida and shall be construed in accordance with the laws of the State of Florida.
Accordingly, GULF STREAM and O’BOYLE consent to the exclusive jurisdiction of the Circuit
Court for the 15th Judicial Circuit for the State of Florida for all purposes related to this
Settlement Agreement and forgo all other venues.
16. This Settlement Agreement shall be binding upon and inure to the benefit of the TOWN
OF GULF STREAM, each of the Joining Parties, O’BOYLE and each of their respective heirs,
successors and assigns. No party may assign its rights or delegate its obligations under this
Settlement Agreement without the express prior written consent of the other affected party.
,
8. This Settlement Agreement may be executed in counterparts, each of which shall
be an original and all of which taken together shall constitute a single agreement, with the same
effect as if the signatures thereto and hereto were upon the same instrument. Any facsimiles,
photographs or photocopies of this Settlement Agreement shall be considered, for all purposes,
as if it were an executed original.
17. This Settlement Agreement contains the entire agreement of GULF STREAM, each of
the Joining Parties, the O’Boyle Attorney’s (which the parties agree have no obligations under
this Settlement Agreement) and O’BOYLE with respect to all matters covered and the
transactions contemplated hereby; any prior writing or oral discussion shall be merged into this
Settlement Agreement.
18.No modification or waiver of any provision of this Settlement Agreement shall be effective
unless the same shall be in writing and signed by GULF STREAM, each of the Joining Parties
and Martin E. O’Boyle. \[add language that individual parties can make amendments or
modifications to the SA, but that such would only be binding between those parties\]
19. If any term, covenant, or condition Settlement Agreement or the application thereof
shall, to any extent, be invalid or unenforceable, the remaining terms, conditions, and covenants
shall remain valid and enforceable. Each term, covenant, or condition shall be enforced to the
fullest extent permitted by law.
IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement as
of ________, 2017.
-5-
SETTLEMENT AGREEMENT SIGNATURE PAGE
\[NEED ADDRESSES FOR EACH PARTY\]
___________________________
MARTIN E. O’BOYLE
individually,
\[separate line item for each entity so that MEO could sign in his official capacity\]
Airline Highway, LLC
Asset Enhancement, Inc.
CG Acquisition Company, Inc.
Commerce GP, Inc.
Commerce Group, Inc.
Commerce Realty Group, Inc.
CRO Aviation, Inc.
Our Public Records, LLC
Stopdirtygovernment, LLC
Public Awareness Institute, Inc.
_______________________________
TOWN OF GULF STREAM
By Scott Morgan as Town Mayor
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COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
MAYOR SCOTT MORGAN
THOMAS STANLEY
JOAN ORTHWEIN
PAUL LYONS
DONNA WHITE
RITA TAYLOR
WILLIAM THRASHER
EDWARD C. NAZZARO, ESQ.
JOHN C. RANDOLPH, ESQ.
JOANNE M. O’CONNOR, ESQ.
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
By __________________ as its _________________.
Page 1 of 2-page COMPOSITE EXHIBIT “A”
-7-
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
\[may need modification\]
ROBERT A. SWEETAPPLE, ESQ.
SWEETAPPLE, BROEKER & VARKAS, PL
By __________________ as its _________________.
HUDSON GILL, ESQ.
JEFFREY L. HOCHMAN, ESQ.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, P.A.
By __________________ as its _________________.
GERALD F. RICHMAN, ESQ.
ERIC M. SODHI, ESQ.
RICHMAN GREER, P.A.
By __________________ as its _________________.
Page 2 of 2-page COMPOSITE EXHIBIT “A”
-8-
SETTLEMENT AGREEMENT
For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, Martin E. O’Boyle, individually and also in his official capacity as
an officer, partner, officer of a partner, and\or member (as specifically designated on the signature pages) of Airline Highway, LLC; Asset Enhancement, Inc.; CG Acquisition Company,
Inc.; Commerce GP, Inc.; Commerce Group, Inc.; Commerce Realty Group, Inc.; CRO Aviation, Inc.; Our Public Records, LLC; Stopdirtygovernment, LLC; Public Awareness Institute, Inc.;
and Citizens for Open Government, LLC (collectively the “Entities”); including, without limitation, all Directors, Shareholders, Members, Officers, Partners and Agents including all
successors and assigns of all of the above parties and Entities (collectively “O’BOYLE”) fully and forever hereby irrevocably discharges and releases the GULF STREAM from each and every
action, cause of action, lawsuit, appeal, post-judgment proceeding, claim for attorney’s fees, claim for costs, claim for sanctions (whether requested or imposed), public records request,
claim for any award, loss, damage, judgment, remedy, or relief whatsoever in law and in equity, including each and every claim arising under local law, state law, federal law, the Florida
Constitution, and/or the United States Constitution (collectively “CLAIMS”), which CLAIMS O’BOYLE ever had, now has, or which any successor, heir, or assign can or may have against
the TOWN OF GULF STREAM for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement,
and O’BOYLE also hereby knowingly waives all such CLAIMS. The exceptions to the content of this paragraph are addressed in paragraph 9 below.
2. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, O’BOYLE fully and forever hereby irrevocably discharges and releases
each individual [need to see who we agree to release – if we don’t release them – they don’t release us. Patsy Randolph will be specifically excluded from any release. Signatories
must include Tew, Avery, Rita & Thrasher and individual Commissioners – any others?] and each entity (individually a “Joining Party” and collectively the “Joining Parties”) that signs
its signature block on Composite Exhibit “A” (excluding from the definition of Adjoining Parties are GULF STREAM and O’BOYLE) from all CLAIMS which O’BOYLE ever had, now has, or which
any successor, heir, or assign can or may have against the Joining Parties for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the
day of the execution of this Settlement Agreement, and O’BOYLE also hereby knowingly waives all such CLAIMS. . The exceptions to the content of this paragraph are addressed in paragraph
9 below.
3. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, the TOWN OF GULF STREAM (including its representatives, successors
and assigns) (“GULF STREAM”) fully and forever hereby irrevocably discharges and releases O’BOYLE and\or any of the O’Boyle Requestors from all CLAIMS which GULF STREAM ever had, now
has, or which any representative, successor or assign can or may have against O’BOYLE and\or any of the O’Boyle Requestors (including their representatives, successors, heirs, and assigns)
for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement, and GULF STREAM also
4. For and in consideration of good and valuable consideration, its adequacy and receipt of which are acknowledged, each Joining Party (including their heirs, successors and assigns)
fully and forever hereby irrevocably discharges and releases O’BOYLE and the O’Boyle Requestors (including their representatives, successors, heirs, and assigns) from all CLAIMS which
each Joining Party (including their representatives, successors, heirs, and assigns ever had, now has, or can or may have against O’BOYLE and\or any of the O’Boyle Requestors for, upon,
or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement Agreement, and the Joining Parties also hereby
knowingly waives all such CLAIMS.
5. For and in consideration of good and valuable consideration, the adequacy and receipt of which are acknowledged, GULF STREAM and each Joining Party (the “GS Parties”) fully and forever
hereby irrevocably discharges and releases Jonathan O’Boyle, Esq.; Giovani Mesa, Esq.; Nicklaus Taylor, Esq.; Ryan Witmer, Esq.; William F. Ring, Esq.; and The O’Boyle Law Firm, P.C.,
Inc., [add the lawyers, paralegals that work (or worked for the OLF (or any of their people) and those parties involved in the representation of O’Boyle or the others in definition]
(collectively “O’Boyle Attorneys”) from all CLAIMS which the GS Parties ever had, now has, or which any successor or assign can or may have against the O’Boyle Attorneys, including,
without limitation, any claims and other matters arising from their representation of O’BOYLE and\or Christopher O’Hare (and his aliases and any other parties or entities or ficticious
names used by Christopher O’Hare (“O’Hare”), for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the execution of this Settlement
Agreement, and the TOWN OF GULF STREAM also hereby knowingly waives all such CLAIMS; except that, in the event that Jonathan O’Boyle, Esq.; Giovani Mesa, Esq.; Nicklaus Taylor, Esq.;
Ryan Witmer, Esq.; William F. Ring, Esq.; or The O’Boyle Law Firm, P.C., Inc., seek in the capacity as a litigant, any form of judicial relief against GULF STREAM (each individually
and collectively referred to as a “New Attorney Lawsuit”), then this paragraph 5 will not prevent, limit, reduce, or otherwise hinder GULF STREAM in its rights or in its ability to
defend itself, to assert all defenses and defensive matters, or to seek awards of attorney’s fees, costs, sanctions, and other relief typically available to a defending party in any
such New Attorney Lawsuit (the “Defenses”). GULF STREAM acknowledges the provisions of this Settlement Agreement shall not permit any claims, counter claims or other litigations or
other actions to be brought or threatened by and of the GS Parties against any of the O’Boyle Attorney’s or O’Boyle) [include affiliates, etc] (individually and collectively the “O’Boyle
Group”)
5. By way of clarification and not limitation, the provisions of Paragraphs the provisions of the above paragraphs one through five of this Settlement Agreement, includes the following
matters: Case No.14-CA-000834; Case No. 14-CA-001572; Case No. 14-2CA-02607; Case No. 14-CA-002728; Case No. 14-CA-003396; Case No. 14-003721; Case No. 14-CA-004474/Case No. 4D16-3634;
Case No. 14-CA-005189; Case No. 4D 15-1762; Case No. 14-CA-005628; Case No. 14-CA-6112; Case No. 14-CA0006360; Case No 14-CA-007123; Case No. 14-CA-008076; Case No. 14-CC-008529; Case
No. 14-CA-010216; Case No. 14-CA-011940; Case No. 14-CC-014780 (17th Cir. County Court); Case No. 14-CC-015050; Case No. 16-CA-004546; Case No. 16-CA-005437/Case No. 4D16-3386; Case
No. 14-cv-80317/11th Cir. Case No. 15-13964; Case No. 15-13964; Case No. 14-cv-81250-KAM; Case No. 14-cv-81248-DTKH/11th Cir. Case No. 15-10997; Case No.
15-CA-001498; Case No. 15-CA-001498; Case No. 15-CA-001737; Case No. 14-CA-011941, Case No. 15-cv-80182-KAM, and Case No. 17-CA-005226 (collectively “Litigated Matters”). [Need to confirm
the enumeration is correct]
6. By way of further clarification and not limitation, except for cases which have already concluded by virtue of the entry of an appropriate final order or judgment GULF STREAM and
O’BOYLE will file stipulations for the dismissal with prejudice of the Litigated Matters in the appropriate court to secure a final order of dismissal of each case with each party to
the Litigated Matters to bear its own attorney’s fees and costs, even if a party is otherwise entitled to seek attorney’s fees and costs from another under a fee or cost shifting provision.
All sanctions claims made, ordered, or granted, including, without limitation, those made, ordered, or granted pursuant to section 57.105, Florida Statutes, the inherent authority of
any court, or any other law (whether statutory or common law) (“Sanctions”)shall be withdrawn and dismissed with prejudice; and to the extent that there is any Order or Judgement of
any Court after the date of this Settlement Agreement issued, the applicable GS Party hereby waives payment of same..
7. By way of further clarification and not limitation, this Settlement Agreement amounts to an immediate written withdrawal of each and every public records request issued as of the
date of the execution of this Settlement Agreement to the TOWN OF GULF STREAM by O’BOYLE, including, without limitation, each public records request issued through a relative, employee,
associate, agent, or attorney but only to the extent that any such party was acting on behalf of O’Boyle (collectively “O’Boyle Requestors”). Each of the O’Boyle Requestors separately
release, discharge, and waive all CLAIMS arising from, connected with, related to, or associated with each such public records request but only to the extent made by and of the O’Boyle
Requestors.
The Settlement Agreement entered into by and between the TOWN OF GULF STREAM, Martin E. O’Boyle, Commerce Group, Inc., N984AC Caravan, LLC, and Airline Highway, LLC, on July 26, 2013,
shall remain in full force and effect (the “2013 SA”). Claims that each and every party that is included in the definition of O’Boyle (including, without limitation, Martin E. O’Boyle)
may have or wish to assert against GULF STREAM arising from, touching, related to or in connection with or associated with: (a) the following matters which occurred on September 22,
2015 [insert from State Complaint]; (b) the 2013 SA; and (c) any activities related to the development and\or construction of improvements by the O’Boyle Group in Hidden Harbour Estates,
Gulfsream, Fl., are hereby preserved and not released or waived by this Settlement Agreement.
10. In connection with any claims and\or litigations between the TOWN GULF STREAM and O’BOYLE filed (or asserted) (“Subsequent Claims”) on or after the date of the execution of this
Settlement Agreement, GULF STREAM, each of the Joining Parties and O’BOYLE hereby waive all rights to attorney’s fees and costs from the other party in any such Subsequent Claims, even
if a state or federal statute or rule provides such a remedy. Further, each party hereby waives and releases its respective rights to apply for and to secure court-awarded sanctions
from all parties in connection with any in any such Subsequent Claims other, even if the sanction award is in the form of an award of attorney’s fees, costs, or both. [carve out atty
fees only in connection with the enforcement of this SA, and the Carve Outs in #9 above.]
11. In the event that any O’Boyle Requestors submit a public records request to the TOWN OF GULF STREAM (pursuant to “Chapter 119”), at any time after the day of the execution of this
Settlement Agreement, Martin E. O’Boyle hereby agrees to pay, at the time that the public records request is made, a facilitation fee of $250 to the Town Clerk of the TOWN OF GULF STREAM
(“Facilitation Fee”). Failure to pay the Facilitation Fee will conclusively render such public records request withdrawn. In the event that there are no costs associated with responding
to the applicable public records request or in the event that the costs associated with responding to the applicable public records request are less than the corresponding Facilitation
Fee, the Facilitation Fee (after reduction of the costs associated with responding to the request) will be refunded to Martin E. O’Boyle within ten (10) days. Otherwise, the conduct
of the O’Boyle Requestors and GULF STREAM will be governed by Chapter 119 of the Florida Statutes (“Chapter 119”) .
12. GULF STREAM, the Joining Parties and O’BOYLE have read this Settlement Agreement with the assistance of counsel and understand its terms, obligations, operation, and effect. GULF
STREAM and O’BOYLE acknowledge that their entry into this Settlement shall not be deemed or considered to be any admission or acceptance of blame, liability, or responsibility. GULF
STREAM and O’BOYLE have entered into this Settlement Agreement voluntarily and without having been threatened, coerced, or intimidated. No provision of this Settlement Agreement shall
be construed presumptively against any party hereto.
13. GULF STREAM, each of the Joining Parties and O’BOYLE warrant to each other (a) that no sale, assignment, transfer, or other disposition of any of the CLAIMS which are being released
and waived hereunder has occurred, (b) that each has the full right, power, legal capacity, and authority to enter into this Settlement Agreement and to consummate the transactions
described herein, and (c) that this Settlement Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation in accordance with its
terms.
14. In the event of a default of any obligation under this Settlement Agreement, the party declaring any such default shall provide the party allegedly in default with a notice explaining
the default by email and by U.S. Mail (“Notice”). The failure to cure a default by the 10th day after such Notice was received by the party to whom it was sent shall constitute a breach
of this Settlement Agreement by the defaulting party or parties . Such breach, however, shall not be construed as a breach between all parties, and any such breach shall be enforceable
only against the defaulting party by the party providing the Notice. Notice to the TOWN OF GULF STREAM shall be made to the Town Clerk at the official address for of the Town of Gulf
Stream, 100 Sea Road, Gulf Stream, FL 33483. Notice to O’BOYLE shall be made to Martin O’Boyle (with a copy to William F. Ring, Esq. at 1280 W. Newport Center Drive, Deerfield Beach,
FL, 33442. Copies of Notices to the any or all of the Joining Parties shall be made to the address under the name of each Joining Party on the signature page of this Settlement Agreement
by Certified mail (Return Receipt Requested) or by a recognized overnight delivery carrier.
15. This Settlement Agreement is deemed to have been made, executed, and delivered in the State of Florida and shall be construed in accordance with the laws of the State of Florida.
Accordingly, GULF STREAM and O’BOYLE consent to the exclusive jurisdiction of the Circuit Court for the 15th Judicial Circuit for the State of Florida for all purposes related to this
Settlement Agreement and forgo all other venues.
16. This Settlement Agreement shall be binding upon and inure to the benefit of the TOWN OF GULF STREAM, each of the Joining Parties, O’BOYLE and each of their respective heirs, successors
and assigns. No party may assign its rights or delegate its obligations under this Settlement Agreement without the express prior written consent of the other affected party.
,
8. This Settlement Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute a single agreement, with the same effect
as if the signatures thereto and hereto were upon the same instrument. Any facsimiles, photographs or photocopies of this Settlement Agreement shall be considered, for all purposes,
as if it were an executed original.
17. This Settlement Agreement contains the entire agreement of GULF STREAM, each of the Joining Parties, the O’Boyle Attorney’s (which the parties agree have no obligations under this
Settlement Agreement) and O’BOYLE with respect to all matters covered and the transactions contemplated hereby; any prior writing or oral discussion shall be merged into this Settlement
Agreement.
18.No modification or waiver of any provision of this Settlement Agreement shall be effective unless the same shall be in writing and signed by GULF STREAM, each of the Joining Parties
and Martin E. O’Boyle. [add language that individual parties can make amendments or modifications to the SA, but that such would only be binding between those parties]
19. If any term, covenant, or condition Settlement Agreement or the application thereof shall, to any extent, be invalid or unenforceable, the remaining terms, conditions, and covenants
shall remain valid and enforceable. Each term, covenant, or condition shall be enforced to the fullest extent permitted by law.
IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement as of ________, 2017.
SETTLEMENT AGREEMENT SIGNATURE PAGE
[NEED ADDRESSES FOR EACH PARTY]
___________________________
MARTIN E. O’BOYLE
individually,
[separate line item for each entity so that MEO could sign in his official capacity]
Airline Highway, LLC
Asset Enhancement, Inc.
CG Acquisition Company, Inc.
Commerce GP, Inc.
Commerce Group, Inc.
Commerce Realty Group, Inc.
CRO Aviation, Inc.
Our Public Records, LLC
Stopdirtygovernment, LLC
Public Awareness Institute, Inc.
_______________________________
TOWN OF GULF STREAM
By Scott Morgan as Town Mayor
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
MAYOR SCOTT MORGAN
THOMAS STANLEY
JOAN ORTHWEIN
PAUL LYONS
DONNA WHITE
RITA TAYLOR
WILLIAM THRASHER
EDWARD C. NAZZARO, ESQ.
JOHN C. RANDOLPH, ESQ.
JOANNE M. O’CONNOR, ESQ.
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
By __________________ as its _________________.
Page 1 of 2-page COMPOSITE EXHIBIT “A”
COMPOSITE EXHIBIT “A”
JOINING PARTY SIGNATURE BLOCKS
[may need modification]
ROBERT A. SWEETAPPLE, ESQ.
SWEETAPPLE, BROEKER & VARKAS, PL
By __________________ as its _________________.
HUDSON GILL, ESQ.
JEFFREY L. HOCHMAN, ESQ.
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, P.A.
By __________________ as its _________________.
GERALD F. RICHMAN, ESQ.
ERIC M. SODHI, ESQ.
RICHMAN GREER, P.A.
By __________________ as its _________________.
Page 2 of 2-page COMPOSITE EXHIBIT “A”
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT,
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 502014CA006848XXXXMB AB
CHRISTOPHER F. O’HARE
Plaintiff,
vs.
TOWN OF GULF STREAM,
Defendant.
_____________________________
TRIAL BRIEF OF DEFENDANT TOWN OF GULF STREAM
(Deleted introductory paragraphs)
PROCEDURAL AND FACTUAL BACKGROUND
In 2012 and 2013, the Town denied certain variances and improvements to the homes of
two of its residents, Martin E. O’Boyle (“O’Boyle”) and O’Hare. From late 2013, these two men
and their agents have inundated the Town with more than 2,250 public records requests. The
individual requests have been designed to manufacture litigation, waste Town time, or both – with
1
requests frequently seeking “all public records” relating to a general topic. A long-time litigious
public records advocate, Joel Chandler (“Chandler”), taught the men and their agents how to
1
See Exhibit A. Brittany Adams Long, 2016 Amendments to the Public Records Act: Relief for Government
Contractors from Predatory Requests, But Not for Public Agencies, FLA. BAR J., Nov. 2016 at 31 (noting
two types of “intentional misuses of the Public Records Act” including “using public records requests to
create confusion that results in a lawsuit so the party can settle or recover attorney’s fees” and “when a
person inundates a governmental entity with public records requests with the intent of preventing the
government from functioning effectively.”) The article notes Gulf Stream is “\[o\]ne of the most egregious
examples” of intentional misuse of the Public Records Act, stating that “\[s\]ome of the requests were
completely frivolous.” Id.
1
further craft their public records requests to be so confusing, time consuming, or difficult to comply
2
with that Chandler referred to them as “kill-shots.”
3
After success in making public records requests in 2013, O’Boyle saw an opportunity, and
4
O’Hare an ally, with O’Boyle’s son, Jonathan O’Boyle (“J. O’Boyle”), a recent law graduate
licensed to practice outside Florida. In early 2014, the O’Boyle Law Firm (“OLF”) was formed
with an office in Florida, supplied with cases from litigation manufactured by O’Hare, O’Boyle,
and their agents against the Town. To further exploit the Public Records Law, an alleged not-for-
profit corporation named Citizens Awareness Foundation, Inc. (“CAFI”) was formed and funded
by O’Boyle, with Chandler serving as the Executive Director. The sole purpose of CAFI was to
serve as a Plaintiff to manufacture hundreds of additional public records cases to be exclusively
handled by the OLF. Once formed, CAFI targeted the Town with hundreds of additional public
records requests, but didn’t stop there. The “kill shot” tactic was used by CAFI across the state
5
against a variety of charitable organizations that received public funds.
As part of his position at CAFI, Chandler was expected to generate 25 new public records
cases each week. Chandler, an expert at manufacturing public records violations, provided the
OLF with a steady stream of litigation. OLF operated what Chandler called a “windfall scheme,”
wherein offers for the settlement of lawsuits would well exceed the fees and costs it had invested
2
See Exhibit B. Ryan Witmer, OLF Lawyer, to Chandler e-mail exchange dated Jan. 15, 2014.
3
The Town previously settled litigation resulting from O’Boyle’s public records requests for $180,000.
The settlement also allowed O’Boyle to make the changes to his home that were previously denied.
4
O’Hare had initially been proceeding pro-se in many of his cases. See, e.g., Verified Complaint to Enforce
Florida’s Public Records Act and for Declaratory, Injunctive, and Monetary Relief, Case No.
502013CA018095XXXXMBAB.
5
Examples of defendants in CAFI cases include the Florida Council Against Sexual Abuse, Florida Healthy
Kids Corporation, Homeless Coalition of Palm Beach County, and The Hope Foundation for Autism. See
Exhibit C. Letter to the Town of Gulf Stream Commissioners, Report on the Alleged Systematic Abuse of
Public Records Laws by Martin O’Boyle, Jonathan O’Boyle, Christopher O’Hare, Citizens Awareness
Foundation, Inc., and The O’Boyle Law Firm, (August 18, 2016).
2
in a case. This, combined with CAFI’s failure to serve any other purpose than to funnel cases to
6
the OLF, caused Chandler to leave CAFI while calling the scheme “criminal and fraudulent.”
It is against the backdrop of this conduct as a whole that any violation of the Public Records
Act must be determined. When the public records requests at issue here were made, Plaintiff’s
intentional misuse of the Public Records Act was in full swing. Plaintiff and others working in
concert against the Town were averaging 5 public records requests each business day from
7
January through April of 2014.
On April 2, 2014, O’Hare e-mailed a public records request to the Town, (hereafter,
“Request 1”) seeking:
Any contract, letter of intention, or any other agreement for
representation between the Town of Gulf Stream and Mr. Robert
Sweetapple or between the Town of Gulf Stream and any entity
providing Mr. Sweetapple’s services of the Town.
See Joint Pretrial Stipulation ¶ 2D.
After the Town received an additional 94 public records requests, on April 24, 2014, O’Hare
emailed the second public records request at issue in this case to the Town, (hereafter, “Request
2”) seeking:
Itemized billing for services provided by Jones+Foster law firm for
all work billed to the town during the time period from January 1,
2014 through the date you receive this request.
See Joint Pretrial Stipulation ¶ 2J.
Although deluged for months with non-stop public records requests and with only four
office staff employees, the Town promptly responded to both requests within one day. The Town
6
See Exhibit D. Affidavit of Joel Chandler, 9 at ¶ 63 (hereafter, “Chandler Aff.”).
7
See Exhibit E. 2013 Public Records Request Log; Exhibit F. 2014 Public Records Request Log. This
included more than 850 public records requests in the preceding 8 months, and 410 requests from January
through April 24, 2014, the date of the last request at issue in this case.
3
8
responded to Request 1 by informing O’Hare that there were no records responsive to his request.
The Town responded to Request 2 by informing O’Hare that the public records responsive to his
request were available online, as the Town had recently acquired software that enabled the Town
to digitize, organize, and post online the majority of its public records. Upon being told the
responsive records were already publicly available, Plaintiff responded “I do not find the full
9
production of public records that you claim your email provides.” The Town responded with
specific, step-by-step instructions on how to find the records on the Town’s website, to which
10
Plaintiff responded that “This sounds very complicated.”
More than one month later, attorneys from the O’Boyle Law firm, likely reviewing the best
“kill shot” responses to public records requests provided by Plaintiff, attempted to access the
records, which were no longer available online. Plaintiff did not inform the Town that the records
were no longer available and instead filed suit on June 6, 2014, alleging the Town violated the
Public Records Act, Fla. Stat. § 119.01 et seq. Plaintiff amended his complaint on July 21, 2014,
to which the Town promptly answered on August 5, 2014.
I. PUBLIC RECORDS ACT ABUSES
a. Martin E. O’Boyle’s use of Public Records Litigation to Extract Settlements – a
template for O’Hare
The pattern and practice of retaliating against small municipalities and other governments
for perceived injustices is familiar to O’Boyle. After he was cited for a zoning violation in the
8
See Minutes of the Special Meeting held by the Town Commission, (March 28, 2014) available at
http://www2.gulf-stream.org/weblink/0/doc/5978/Page1.aspx. The Town Commission had only, on
Friday, March 28, 2014, approved the use of Mr. Sweetapple’s services by the Town, and therefore there
was not yet a public record responsive to Request 1.
9
See Exhibit C to Plaintiff’s Amended Complaint to Enforce Public Records Act.
10
Id.
4
town of Longport, New Jersey, O’Boyle and his family members filed hundreds of public records
requests pursuant to New Jersey’s Open Public Records Act. The small town was inundated with
these requests from September 2007 through early July 2008, during which time the stress
11
attributed to these requests hospitalized the town’s clerk. Similar to the stress attributed to the
flood of public records requests made to the Town of Gulf Stream, two of the original four office
personnel have quit their jobs to escape the stress they attributed to the actions of O’Boyle, O’Hare,
and their co-conspirators.
O’Boyle lodged the same barrage of public records requests at Dave Aronberg and Bruce
Colton of the State Attorney’s Offices in Florida’s 15th and 19th Judicial Districts after his
daughter was charged with DUI. In early 2013, O’Boyle and entities controlled by him submitted
more than 1,300 public records requests resulting in litigation filed by a company formed by
O’Boyle named Sweet Aron Boy Blimp Co. LLC. This included more than 1,000 requests over a
three-day period.
In the Spring of 2013, O’Boyle was denied certain variance requests for work on his Gulf
Stream home. At one point, O’Boyle inundated the Town by faxing approximately 320 public
records requests in one day, to the point where the Town was unable to use the scanner, copy
12
machine, or fax machine. Within months, O’Boyle and his agents generated 16 lawsuits based
on a continued deluge of requests. In an effort to avoid further litigation, the Town settled all of
the pending lawsuits in July of 2013, allowed O’Boyle to make the improvements he sought to his
home, and paid him $180,000.
11
See O’Boyle v. Isen, A-1185-11T1, 2014 WL 340104, at *1 (N.J. Super. Ct. App. Div. 2014).
12
See Exhibit D. Kelly Avery Dep. May 18, 2016 (2014-ca-006112-AG) at 199.
5
b. Christopher F. O’Hare’s Disagreement with the Town and attempts to use Public
Records Litigation to Extract Settlements working with O’Boyle
In 2012, O’Hare was denied a permit for a metal roof on his Gulf Stream home. Shortly
after the Town’s 2013 settlement with O’Boyle, O’Hare started making public records requests in
the same manner as O’Boyle. During the remainder of 2013, O’Hare made an average of 25 public
records requests per week. On one Tuesday in October of 2013 O’Hare made 89 public records
requests, or the equivalent of one public records request every five minutes that the Town Hall was
13
open. This is the same time that the Town was conducting diligent searches for records
responsive to O’Hare’s other requests. Also making public records requests of the Town in 2013
were J. O’Boyle and Chandler, a man whose experience and expertise in this area of the law has
14
resulted in subsequent exemptions being added to the Public Records Law by the legislature.
c. Joel Chandler; Citizens Awareness Foundation, Inc. (“CAFI”) formed and funded
by O’Boyle; and the O’Boyle Law Firm (“OLF”)
Chandler describes public records litigation wherein he would “go for the throat and get
paid quickly;” that he had found more than 100 public records cases with “nearly perfect facts”
15
that he referred to as a “kill-shot.” Chandler further explains that a way to get around filing fees
would be to create a not-for-profit with no assets, income or bank account and then filing for
indigent status. Id. In late January 2014, shortly after this revelation, CAFI is formed.
13
See Exhibit E. 2013 Public Records Request Log; Exhibit F. 2014 Public Records Request Log.
14
See HB 7049, House of Representatives Final Bill Analysis, available at
https://www.flsenate.gov/Session/Bill/2014/7049/Analyses/h7049z1.GVOPS.PDF (explaining the
exemption that resulted from Chandler v. School Board of Polk County, Case No. 2008CA-004389 and the
subsequent interpretation by the Florida Attorney General’s office); see also Op. Att’y Gen. Fla. Informal
(November 10, 2008).
15
See Exhibit X. Witmer to Chandler e-mail exchange dated Jan. 15, 2014.
6
In a January 28, 2014 memo from O’Boyle to attorney Robert Tweel, O’Boyle discusses
the formation of CAFI, that it is intended as a 501(c)(3) with employees traveling the state to make
public records requests, and that the law firm that will be used “almost exclusively” will be the
16
O’Boyle Law Firm, with offices at the same address. O’Boyle’s formation of CAFI was covered
by the Florida Bar News on February 1, 2015, in an article titled “A new scam: Public records
17
shakedown.” Citing to an investigative report by the non-profit news organization Florida Center
for Investigative Reporting (“FCIR”), the article noted that CAFI and a sister organization had
brought 140 lawsuits in 27 counties across Florida and that CAFI cases were handled exclusively
by the OLF. Id. The Florida Bar News article further noted that O’Boyle formed CAFI and loaned
J. O’Boyle $400,000 to start the OLF a few weeks later, with both the OLF and CAFI offices
located in the same offices as O’Boyle’s real estate development firm. Id.
Although the January 28, 2014 memo from O’Boyle to attorney Robert Tweel and the
research done by FCIR clearly shows O’Boyle was involved in the formation and funding of CAFI,
18
O’Boyle has repeatedly falsely denied any involvement with CAFI in sworn deposition.
Similarly, O’Hare has been repeatedly evasive regarding his pattern and practice of inundating the
Town with public records requests from dozens of email addresses. When asked about any of the
hundreds of public records requests O’Hare has made personally through a variety of pseudonyms,
O’Hare has repeated ad nauseam that they “look like records I would be interested in inspecting,
19
but I don’t recall making these requests.” O’Boyle, O’Hare, and CAFI would all make public
records requests of the Town at the same time, making timely compliance increasingly difficult.
16
See Exhibit X. O’Boyle Memorandum Re: Citizens Awareness Foundation, Inc., Jan. 28, 2014.
17
See Exhibit G. Jan Pudlow, A new scam: Public records shakedown, F L. B AR N EWS (Feb. 1, 2015).
18
See Exhibit X. O’Boyle Dep. Vol II 174:20-24; 178:21-179:2; 208:4-8, Sept. 15, 2014. To this end,
O’Boyle has stated that “I know nothing about CAFI.” Id.
19
See Exhibit X. O’Hare Dep. 112:6-8, Sept. 30, 2016.
7
As CAFI’s Executive Director, Chandler brought expertise in the minutia of Florida’s
Public Records Laws. However, instead of serving as a bona-fide not-for-profit corporation,
Chandler soon realized that CAFI was used by O’Boyle and the OLF “for the sole purpose of
20
generating attorney’s fees for the O’Boyle Law Firm.” To this end, CAFI was “required to file
at least one hundred lawsuits a month; that all lawsuits had to be directed to the O’Boyle Law
Firm.” In his position, Chandler was evaluated on his “ability to deliver a minimum of 25 case\[s\]
21
per week to the O’Boyle Law Firm.”
However, instead of CAFI controlling the litigation in which it was the Plaintiff, “all offers
22
for settlement \[were\] made pursuant to the policies of the O’Boyle Law Firm.” This email,
outlining the policy of the OLF with respect to CAFI cases, was in response to an email from
Chandler wherein a non-profit defendant, explaining the “dire financial condition of \[the\]
organization” asked for help in better understanding the Public Records Act and offered to settle
the case for an amount greater than the OLF had incurred in fees and costs. Id. However, in this
case the attorneys at the OLF were instructed to demand more than three times the fees and costs
23
the firm had incurred at that point.
Chandler called this the “windfall scheme,” stating that it was the policy and practice of
the OLF to demand settlement of cases against government entities and state contractors for
24
attorney’s fees in excess of the fees actually earned.
20
Chandler Aff. at 4 ¶ 24.
21
Chandler Aff. At 6 ¶ 21.
22
Email from Nick Taylor of the OLF to Chandler, 6/27/14.
23
Id.
24
Chandler Aff. at 7 ¶ 45-46.
8
d. The O’Boyle Law Firm’s Illegal Fee Agreements with Public Records Plaintiffs
The Public Records Act is about providing access to records, and allows for the recovery
of attorney’s fees when a requestor has been unlawfully denied access to those records. However,
at least one OLF client has testified that he earns income based on the cases in which he serves as
a Plaintiff. Jeffrey Gray (“Gray”) served as a Plaintiff against many organizations receiving public
funds, including the Practical Academic Cultural Education Center for Girls, Inc. (“PACE”). A
January 2014 email between an OLF lawyer and Chandler foreshadows this arrangement, stating
that CAFI and the OLF need to “figure out the economics of \[the scheme\] – who gets paid and
25
how.”
In deposition, Gray testified that he would receive settlements from “\[w\]hatever vendor
26
that I sue” and when questioned further, identified these payments as a source of income. In
2014, Gray served as an individual Plaintiff in approximately 30 lawsuits, so many that he could
27
not remember the exact number, dates, or location of the suits. Of these lawsuits, Gray testified
28
that the OLF was representing him in 25 to 30. Gray stated that he has never paid the OLF for
2930
his Public Records Litigation. Gray and his wife are unemployed.
e. The Specific Public Records Request at Issue
After the settlement with O’Boyle, the Town determined that, although there was no reason
to keep an exhaustive log of incoming public records requests – after all, the Town has fewer than
1,000 residents and normally received only a few public records requests each year – measures
such as this were taken to prevent any future Public Records Act abuses. The Public Records
25
See Exhibit X. Email exchange between Ryan Witmer of the OLF to Chandler, Jan. 15, 2014.
26
See Exhibit X. Jeffrey Gray Dep. 30:20-25, Aug. 8, 2014.
27
Id. at 35:1-24.
28
Id. at 40:18-24.
29
Id. at 46:13-17.
30
Id. at 30:14-19; 32:13-22.
9
Request Log has tracked the Town’s public records requests activity on an ongoing basis by
calendar year, starting August 27, 2013. By the time Request 2 was received on April 24, 2014,
the Logs included more than 850 public records requests in the preceding 8 months, with 410 of
those requests from January through April 24, 2014, for an average of five public records
requests every business day for nearly a four-month period.
The requests at issue here were for, Request 1:
Any contract, letter of intention, or any other agreement for
representation between the Town of Gulf Stream and Mr. Robert
Sweetapple or between the Town of Gulf Stream and any entity
providing Mr. Sweetapple’s services of the Town.
And request 2:
Itemized billing for services provided by Jones+Foster law firm for
all work billed to the town during the time period from January 1,
2014 through the date you receive this request.
These requests were responded to within one day: with respect to Request 1, a statement that
there was no such record; and with respect to Request 2, directions to the Town’s web site about
where responsive records were located and already available to the public.
II. ARGUMENT
31
a. The Letter from Mayor Morgan to Attorney Sweetapple was not a public record
The Public Records Act defines public records as “all documents . . . made or received
pursuant to law or ordinance or in connection with the transaction of official business by any
agency.” F LA. S TAT. § 119.011 (12). The Florida Supreme Court has interpreted this definition
to encompass all materials made or received by an agency in connection with official business
31
Although Scott Morgan is the current Mayor of the Town of Gulf Stream, he had only recently been
elected to the Town Commission and was not yet the Mayor of the Town. See Minutes of the Special
Meeting held by the Town Commission, (March 28, 2014) available at http://www2.gulf-
stream.org/weblink/0/doc/5978/Page1.aspx (reflecting Scott Morgan’s role as a commissioner, not the
Mayor, at the March 28, 2014 meeting).
10
which are used to perpetuate, communicate or formalize knowledge. Shevin v. Byron, Harless,
Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980).
However, when a document is private or personal, it “simply fall\[s\] outside the current
definition of public records.” State v. City of Clearwater, 863 So. 2d 149, 153 (Fla. 2003).
“Such \[records\] by definition \[are\] not created or received ‘in connection with the official business’
of the \[Agency\] or ‘in connection with the transaction of official business . . . .’” Id.
Here, the March 28, 2014 letter from Morgan to Attorney Sweetapple (hereafter, “March
Letter”) was sent between two individuals who already had an attorney-client relationship, dealt
exclusively with that relationship, and was for the sole purpose of waiving a conflict of interest in
Attorney Sweetapple simultaneously representing the Town and Morgan.
The March Letter is on Morgan’s personal letterhead, not Town letterhead, and states as
follows:
Dear Bob:
Please accept this letter as my acknowledgment of your
representation of the Town of Gulf Stream in connection with
lawsuits filed against it by Martin O'Boyle. These matters include
the above-referenced action in which you have also represented me
as a witness.
I waive any conflict of interest concerns, and hereby agree
to your representation of the Town in these actions and of the joint
representation of us both in the matter docketed as 2014 CA
32
001572.
The content of the letter makes it clear that Morgan is personally acknowledging Attorney
Sweetapple’s representation of the Town for the purposes of waiving any conflict of interest. This
record is a private, personal communication between a lawyer and his client. The only knowledge
formalized was that Morgan in his personal capacity and not as a representative of the Town
32
See Exhibit X. March 14, 2014 letter from Mayor Morgan to Attorney Sweetapple.
11
waived conflict of interest. Therefore, because the email was personal and not sent in connection
with the official business of the Town, it is not a public record. See City of Clearwater, 863 So.
2d at 153 (stating that personal records are not public records).
b. The Letter from Mayor Morgan to Attorney Sweetapple was not responsive to Request 1
Even if the March Letter was a public record, it was not responsive to Request 1. In that
request, Plaintiff asked for:
Any contract, letter of intention, or any other agreement for
representation between the Town of Gulf Stream and Mr. Robert
Sweetapple or between the Town of Gulf Stream and any entity
providing Mr. Sweetapple’s services of the Town.
See Joint Pretrial Stipulation ¶ 2D. Agreement is defined as “a contract duly executed and legally
binding” by Merriam Webster and as “a manifestation of mutual assent by two or more persons“
33
by Black’s Law Dictionary. The two entities are Attorney Sweetapple and the Town. Town
Commissioners do not unilaterally enter into agreements for representation that bind the Town.
The Town Manager is responsible for handling these matters after commission approval, and it
was not until April 16, 2014 that the Town Manager received correspondence from Mr. Sweetapple
that was responsive to Request 1.
Morgan was not yet Mayor of the Town, having only been recently elected to the Town
Commission. Morgan had no authority to, nor would he have thought to be able to, create a public
record that was a “contract, letter of intention, or any other agreement for representation between
the Town of Gulf Stream and Mr. Robert Sweetapple.” Individual commissioners do not enter
into agreements on behalf of the Town. Therefore, when the request was made, there were no
33
AGREEMENT, Merriam Webster, available at http://www.merriam-webster.com/dictionary/agreement.
See AGREEMENT, Black's Law Dictionary (10th ed. 2014).
12
responsive records and it was not error to advise Plaintiff that there was “no such record”
responsive to his request.
c. Bad Faith
As explained in the November 2016 Florida Bar Journal article, there are two types of
“intentional misuses of the Public Records Act.” See Brittany Adams Long, 2016 Amendments to
the Public Records Act: Relief for Government Contractors from Predatory Requests, But Not for
Public Agencies, F LA. B AR J., Nov. 2016 at 31. Any relief sought by Plaintiff should be foreclosed
by the bad faith actions of O’Hare, O’Boyle, and their agents working in concert against the Town
by participating in both these intentional misuses to manufacture litigation for the sole purpose of
generating attorney’s fees.
i. “Gotcha” Tactics
The first intentional misuse of the Public Records Act is “using public records requests to
create confusion that results in a lawsuit so the party can settle or recover attorneys’ fees.” Id.
This “gotcha” tactic has been employed by Plaintiff on numerous occasions. Any relief sought by
Plaintiff should be denied because the Public Records Act should not be applied in a way that
encourages the manufacture of public records requests designed to result in violations for the
purpose of generating attorney’s fees. See Citizens Awareness Found., Inc. v. Wantman Group,
Inc., 195 So. 3d 396, 401 (Fla. 4th DCA May 25, 2016) (“The public records law should not be
applied in a way that encourages the manufacture of public records requests designed to obtain no
response, for the purpose of generating attorney’s fees.”).
Section 119.07(1)(c) of the Public Records Act imposes a good faith requirement on an
agency’s compliance with responses to public records. While the Florida Supreme Court recently
determined that this did not graft a good faith exception into the attorney’s fee section of the Act
13
t h e C o u r t f o u n d t h a t t h e l e g i s l a t i v e i n t e n t t o c h a n g e u n r e a s o n a b l y r e f u s e d t o u n l a w f u l l y
3 4
r e f u s e d r e l a t e d s o l e l y t o w h e t h e r t h e P l a i n t i f f p r e v a i l e d o n a s u i t o v e r a r e f u s a l t o p r o v i d e r e c o r d s
t h e s e c t i o n o f t h e A c t c o n t a i n i n g t h e g o o d f a i t h r e q u i r e m e n t r e g a r d i n g i n s p e c t i o n a n d c o p y i n g o f
r e c o r d s s h o u l d b e r e a d a s a w h o l e t o p r o h i b i t a r e q u e s t o r f r o m u s i n g b a d f a i t h t o t r i c k a n a g e n c y
i n t o a n a l l e g e d v i o l a t i o n , a s r e c e n t l y t o u c h e d o n b y t h e 4 t h D C A i n W a n t m a n G r o u p . A s o u n d a n d
l o g i c a l i n t e r p r e t a t i o n o f t h e P u b l i c R e c o r d s A c t w o u l d d i c t a t e t h a t t h e g o o d f a i t h l a n g u a g e r e q u i r e d
o f a n a g e n c y p r o h i b i t s a r e c o r d s r e q u e s t o r f r o m a c t i n g i n b a d f a i t h t o m a n u f a c t u r e l i t i g a t i o n . T h e
P u b l i c R e c o r d s A c t i s a b o u t a c c e s s t o p u b l i c r e c o r d s , a n d u s e s l i t i g a t i o n a s a t o o l o f e n f o r c e m e n t
i n t h e e v e n t o f a r e f u s a l t o p r o v i d e r e c o r d s . H o w e v e r , l i t i g a t i o n s h o u l d o n l y s e r v e a s a m e a n s t o
a n e n d , a n d n e v e r a n e n d i n i t s e l f .
H e r e , P l a i n t i f f , h i s c o - c o n s p i r a t o r s a n d a g e n t s a c t e d w i t h t h e s o l e p u r p o s e o f g e n e r a t i n g
p u b l i c r e c o r d s l i t i g a t i o n t o f u n n e l t o t h e O L F u s i n g k i l l s h o t a n d g o t c h a t a c t i c s t o g e n e r a t e a t
l e a s t 1 0 0 n e w l a w s u i t s a m o n t h a c r o s s t h e s t a t e , w i t h n o l i m i t t o t h e l i t i g a t i o n t h a t c o u l d b e b r o u g h t
3 5
a g a i n s t t h e T o w n .
A t i s s u e i n t h i s c a s e a r e t w o o f m o r e t h a n 1 0 0 p u b l i c r e c o r d s r e q u e s t s r e c e i v e d b y t h e T o w n
i n A p r i l o f 2 0 1 4 . R e q u e s t 1 w a s f o r a p u b l i c r e c o r d t h a t d i d n o t y e t e x i s t , s p e c i f i c a l l y a c o n t r a c t ,
l e t t e r o f i n t e n t i o n , o r a n y o t h e r a g r e e m e n t f o r r e p r e s e n t a t i o n b e t w e e n t h e T o w n o f G u l f S t r e a m
a n d M r . R o b e r t S w e e t a p p l e . H o w e v e r , t h e T o w n C o m m i s s i o n h a d o n l y , t h r e e b u s i n e s s d a y s p r i o r
3 6
t o t h e r e q u e s t , a p p r o v e d t h e T o w n s u s e o f M r . S w e e t a p p l e . A n y c o n t r a c t , l e t t e r o f i n t e n t i o n ,
3 4
B d . o f T r u s t e e s , J a c k s o n v i l l e P o l i c e & F i r e P e n s i o n F u n d v . L e e , 1 8 9 S o . 3 d 1 2 0 ( F l a . 2 0 1 6 ) . T h e C o u r t
i n L e e w a s a n a l y z i n g t h e w o r d u n l a w f u l a n d i n d o i n g s o e m p h a s i z e d t h a t t h e r e m u s t f i r s t b e a r e f u s a l ,
s p e c i f i c a l l y t h a t \ [ t \ ] h e d i s t i n c t i o n c r e a t e d b y s e c t i o n 1 1 9 . 1 2 i s t h u s b e t w e e n u n l a w f u l r e f u s a l s a n d l a w f u l
r e f u s a l s . I d . a t 1 2 6 .
3 5
S e e C h a n d l e r A f f . 7 a t � 4 5 - 4 6 .
3 6
S e e M i n u t e s o f t h e S p e c i a l M e e t i n g h e l d b y t h e T o w n C o m m i s s i o n , ( M a r c h 2 8 , 2 0 1 4 ) a v a i l a b l e a t
h t t p : / / w w w 2 . g u l f - s t r e a m . o r g / w e b l i n k / 0 / d o c / 5 9 7 8 / P a g e 1 . a s p x .
1 4
or any other agreement” that would be a responsive record would have been sent by or received
by the Town Manager, who did not have any responsive record and therefore the Town answered
that no such record existed. It was not until April 16, 2014, that the Town Manager received
correspondence from Mr. Sweetapple that was responsive to Request 1. Any other finding would
require an unconscionable reading of the Town’s obligations under the Public Records Act
including what constitutes a public record and what constitutes a responsive public record.
Request 2 was for a public record that was already available to the public on the Town’s
web site. The Town was able to quickly respond to and close the request by directing Plaintiff to
the Town web site at a time when five new requests were being received every day, and lawsuits
had already been brought with allegations of delay.
However, web sites are not static. Plaintiff, himself, owns and operates a web site and is
37
aware of this fact. Content on websites can be added, moved around, and even removed. With
respect to specific web addresses – hyperlinks – this widely recognized problem is called “link
38
rot” and occurs when a web page is moved, taken down or reorganized.
Plaintiff – who owns and operates his own website – only said “This sounds very
complicated” when given step-by-step instructions to the location of the responsive public
39
records. Worth noting, there was no statement after the Town’s specific instructions were
provided to Plaintiff that the records were not there or that they were not responsive. The Town
37
See www.townofgulfstream.com/my-story.
38
Link rot is nothing new and something the general public – and the legal community – if familiar with.
See Jeff John Roberts, Google Link in Supreme Court Case Shows Struggle on Citation, F ORTUNE, June
22, 2016 available at http://fortune.com/2016/06/22/google-link-supreme-court-citation/ (stating that link
rot “describes the pervasive breakdown of hyperlinks, meaning readers of older web pages frequently click
on broken links that end up leading nowhere.”); Adam Liptak, In Supreme Court Opinions, Web Links to
Nowhere, N EW Y ORK T IMES, Sept. 23, 2013 available at
http://www.nytimes.com/2013/09/24/us/politics/in-supreme-court-opinions-clicks-that-lead-nowhere.html
(“According to a new study, 49 percent of the hyperlinks in Supreme Court decisions no longer work.”).
39
See Exhibit C to Plaintiff’s Amended Complaint to Enforce Public Records Act.
15
provided Plaintiff with responsive records, available for a reasonable amount of time, and were
immediately available for Plaintiff to download and save permanently, had he chosen to do so.
More than a month later, Plaintiff’s lawyers found that the records were no longer posted
on the web site. However, Plaintiff was provided access to responsive records for a reasonable
amount of time under the circumstances.
These requests and others were the sole creation of Plaintiff, done in bad faith with the goal
of manufacturing litigation for the purpose of generating attorney’s fees. For this reason, Plaintiff
is entitled to no relief under the Public Records Act. See Wantman Group, Inc., 195 So. 3d 396,
401 (stating that public records law should not be applied in a way that encourages manufacturing
litigation for attorney’s fees).
ii. Prevention of Government Functioning
The second intentional misuse of the Public Records Act is “when a person inundates a
governmental entity with public record requests with the intent of preventing the government from
40
functioning effectively.” The Florida Bar Journal article cites to the Town of Gulf Stream as
“\[o\]ne of the most egregious examples” of this kind of intentional misuse of the Public Records
41
Act, and for good reason, as this case plainly illustrates. The actions of O’Hare, O’Boyle, and
their agents were in bad faith and have worked to effectively shut down the Town’s government,
at times monopolizing staff and resources for their own benefit, as shown by the conduct of making
an additional 94 public records requests in the 16 business days between Request 1 and Request
2. This amounts to nearly six public records requests each day that would need to be
40
Long, supra.
41
Id.
16
acknowledged, cataloged, and responded to in good faith by the Town’s four office staff while
42
simultaneously trying to keep the government running.
As acknowledged by the Florida Supreme Court more than 100 years ago, although an
Agency is not permitted to deny access to public records, common sense should be a factor in
determining how a requestor must be accommodated:
\[An agency\] must have some discretion to exercise as to the manner
in which persons desiring to inspect, examine, and copy the records
may exercise their rights. \[Agency\] must transact the current
business of the office, and allow all persons reasonable facilities to
exercise their rights in \[Agency’s\] office. \[Agency\] cannot give the
right to one person or one corporation to occupy \[Agency’s\]
office to the exclusion of others, and each person must exercise
his rights in the office consistently with the exercise of similar
rights by others. . . . This right does not permit the \[Agency\] to be
unduly annoyed by a large force, or by work at unseasonable hours,
or by the monopoly of furniture, office room, or records to the
exclusion of other persons, or interfere with his right to prescribe a
reasonable use of the same. . . . We do feel called upon to specify
the number of persons that \[Agency\] must accommodate, or to
prescribe the rules which \[Agency\] may require \[requestor\] to
observe. These should be made with reference to the
circumstances, and with a view to the reasonable use by
\[requestor\] of books and office.
State v. McMillan, 38 So. 666, 668 (Fla. 1905) (emphasis added).
Although the main issue in McMillan was whether a requestor could use the agency’s
office to access records to copy, compile, and sell for profit; the Court noted that this may have
been a substantial undertaking – including many individuals inside the Agency’s office at one time
– and that by allowing such a practice without any restrictions could exclude others from exercising
their rights to obtain not only records, but government services. Id. This was a reasonable
limitation on the right to an individual’s otherwise unfettered access to public records that was
imagined in 1905.
42
See Exhibit F. 2014 Public Records Request Log.
17
While times have changed – we are now in an age that public records requests can be made
anonymously via email after hours and without a requestor stepping foot inside the Town offices
– this sound logic still rings true. Using the Public Records Act to inundate the Town with
hundreds of requests over a short time period, many so broad as to require thorough searches and
coordination with outside agencies, occurring many times a day, has given O’Hare the right to
occupy the Town and its government “to the exclusion of others.” Id.
The virtual closing of the Clerk’s Office with a barrage of public records requests
effectively forces the Town to make a choice. Either it must drop everything and fill the requests
as quickly – and flawlessly – as possible under the threat of imminent litigation, or continue to
provide government services to its other taxpayers. While the intent of the requestor with respect
to an individual public records request is irrelevant, the pattern and practice of sending hundreds
or thousands of public records requests with bad faith to manufacture litigation, taken as a whole,
is relevant in determining whether the requestor’s actions prohibit the Town from compliance with
the Public Records Act while simultaneously preventing others from their constitutional right of
access to public records and to enjoy and benefit from other government services provided by the
Town. (next paragraph deleted)
d. Unlawful Refusal
Defendant maintains that there was no “unlawful refusal” as contemplated by the Public
Records Act. See Fla. Stat. § 119.12. “If a civil action is filed against an agency to enforce
the provisions of this chapter and if the court determines that such agency unlawfully
refused to permit a public record to be inspected or copied, the court shall assess and award,
against the agency responsible, the reasonable costs of enforcement including reasonable
attorneys’ fees.” Id. (emphasis added).
18
i. 2016 Florida Supreme Court – Lee and the Prevailing Party Standard
The Florida Supreme Court recently held that “a prevailing party is entitled to statutory
attorney’ fees under the Public Records Act when the trial court finds that the public agency
violated a provision of the Public Records Act in failing to permit a public record to be inspected
or copied.” Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 122
(Fla. 2016) (emphasis added). The Court in Lee was analyzing the word “unlawful” and in doing
so emphasized that there must first be a “refusal,” stating that “\[t\]he distinction created by section
119.12 is thus between unlawful refusals and lawful refusals . . .” Lee, 189 So. 3d at 126.
Therefore, to unlock the prevailing party entitlement to attorney’s fees as announced by Lee for
failing to permit a public record to be inspected or copied, a court must first find a refusal by the
agency to provide public records, and then that the refusal was unlawful. See Citizens Awareness
Found., Inc. v. Wantman Group, Inc., 195 So. 3d 396, 399 (Fla. 4th DCA May 25, 2016) (citing §
119.12 and stating that the court must find a refusal, and that the refusal must be unlawful).
ii. Defining “refusal” under Fla. Stat. § 119.12
In Lee, the “failing to permit” language is critical because it is referencing the ‘refusal’
term within § 119.12. The issue in Lee was whether good faith was relevant to an agency’s outright
refusal to provide public records or impose a fee or other barrier to access that was “unlawful”
under the statute. The Court determined that when a refusal was “unlawful” – changing the
language in § 119.12 from “unreasonably refused” to “unlawfully refused” – the legislature’s clear
intent was to award the prevailing party Plaintiff attorneys fees when there was a refusal as it is
defined by case law interpreting the term “refused.” See Lee, 189 So. 3d at 126.
In fact, the Court’s opinion in Lee cited to and approved Office of State Attorney for
Thirteenth Judicial Circuit of Florida v. Gonzalez, 953 So. 2d 759, 764 (Fla. 2d DCA 2007). In
19
analyzing the “unlawfully refused” language, the court in Gonzalez stated that “attorney’s fees are
awardable for unlawful refusal to provide public records under two circumstances: first, when a
court determines that the reason proffered as a basis to deny a public records request is improper,
and second, when the agency unjustifiably fails to respond to a public records request by delaying
until after the enforcement action has been commenced.” Id. This outlines two bases for
determining whether, under Lee, an unlawful refusal has occurred, denying access or delaying
access. The Lee court outlines an additional basis that case law has developed – when there is a
barrier to access that is not allowed under the Public Records Act, e.g. imposing unlawful fees or
conditions prior to allowing access to records. See Lee, 189 So. 3d at 129 (stating, that, with
respect to the unlawful refusal, “\[Agency\] imposed conditions that were in violation of section
119.07(1)(a) prior to allowing \[Plaintiff\] to inspect or copy the public records.”)
Binding precedent in this district acknowledges that “\[b\]y its terms, \[§ 119.12\] places
several conditions on the right to an award of fees. The court must determine that the agency has
‘refused’ to provide the records and the refusal must be ‘unlawful.’” Wantman Group, 195 So. 3d
at 399 (emphasis added). Imposing attorney’s fees on an agency that refuses to provide public
records – and making any unlawful refusal subject to this penalty – furthers “the state’s public
policy of encouraging a prompt disclosure of the public records.” Gonzalez, 953 So. 2d at 765.
To take this public policy to the extreme and find that a good faith response after a diligent search
constitutes a refusal to provide records under the Public Records Act is absurd. However, a
common sense approach is supported not only by reason, but case law and statutory interpretation.
iii. Jackson Shaw – Case law supporting the Common Sense Approach to Attorney’s Fees
in Public Records Act Cases
In finding that there was no unlawful refusal when an agency timely produced some – but
not all – documents responsive to a request, the court in Jackson Shaw stated that “\[w\]ith no
20
evidence that \[the agency\] ignored or otherwise failed to respond to the request, the Court cannot
say that an inadvertent failure to include all documents in its otherwise timely and
substantial response equates to an ‘unjustified delay’ or ‘unlawful refusal’ to permit a public
record to be inspected.” Jackson-Shaw Co. v. Jacksonville Aviation Auth., 510 F. Supp. 2d 691,
738 (M.D. Fla. 2007) (interpreting § 119.12 of the Public Records Act) (emphasis added). The
court explained that a contrary finding would not further the public policy behind the Public
Records Act. Id.
Jackson-Shaw illustrates a common sense approach to the Public Records Act. The Public
Records Act is about access to public records, not attorney’s fees. If attorney’s fees were awarded
in all cases in which a Plaintiff prevailed, the legislature would have written the statute differently.
iv. Statutory Interpretation – “unlawfully refused” does not mean “prevailing party”
It has been observed – in public records cases – that “the use of such differing terms shows
that the legislature ‘well knows how to express itself.’” Bd. of County Com’rs of Highlands
County v. Colby, 976 So. 2d 31, 36 (Fla. 2d DCA 2008) (analyzing the use of the term “labor cost”
instead of “wages” in the Public Records Act and finding the use of different terms meant the terms
should be accorded different meanings). Cf. Rollins v. Pizzarelli, 761 So.2d 294, 298-99
(Fla.2000) (contrasting language in PIP statute with that in worker’s compensation and medical
malpractice statutes to support conclusion that legislature intended different meanings when using
different terms).
The Court in Lee also noted that the Legislature had opportunities to change the language
of § 119.12 and did not change it to require a “good faith” standard. Lee, 189 So. 3d at 127 (“the
Legislature has had multiple opportunities to explicitly require a ‘good faith’ standard in section
119.12 and knows how to use ‘good faith’ standards in attorney’s fee provisions). The same can
21
be said for the lack of including ‘prevailing party’ language in the Public Records Act, as the
legislature knows how to write a statute that allows for ‘prevailing party’ attorney’s fees. See,
e.g., Fla. Stat. § 57.105(1), (5). If the legislature wanted the standard in Public Records Act cases
to be prevailing party, it would have changed the language from “unreasonably refused” to include
for a “prevailing party” standard; however, the legislature did not use that standard, and instead
changed the language to “unlawfully refused.”
In analyzing the Public Records Act statute, the court in Colby stated that the legislature
“\[c\]learly” suggested a different meaning when using different terms. Colby, 976 So. 2d at 36.
The Court in Lee also acknowledged that different terms are given different meanings when
applied by the court. Under § 119.12, the intent is not to provide attorney’s fees unless the court
“determine\[s\] that the agency has ‘refused’ to provide the records and the refusal must be
‘unlawful.’” Wantman Group, 195 So. 3d at 399.
Based on the use of the term “unlawfully refused” instead of “prevailing party,” the
legislature clearly intended a different meaning and Lee did not expand the already understood
“refusal” language contained within the statute. In addition to Wantman Group, this further
supports a reading of the prevailing party standard as stated in Lee that applies to cases where there
has been a refusal to provide records, as defined by case law interpreting the act as it relates to a
refusal.
Although Plaintiff alleged he was not provided responsive documents to Request 1 and
Request 2, the Town responded promptly and in good faith after performing a search and inquiry
of what responsive documents existed and how they could be accessed. There was no refusal with
respect to Request 1 because it was determined that the document responsive to the request did not
22
43
yet exist. There was no refusal to Request 2 because the Town told Plaintiff where the documents
could be found online, and then directed Plaintiff to the exact location on the Town’s website when
Plaintiff indicated he was initially unable to find fully responsive records. The Town acted
reasonably and in good faith, and never refused access or imposed unlawful conditions on
Plaintiff’s access to the requested records. Therefore, there was no refusal as defined by the Public
Records Act.
Rest of page deleted
43
“Nothing in the Public Records Act appears to require that an agency respond to a so-called ‘standing’
request for production of public records that it may receive in the future. See Inf. Op. to Worch, June 15,
1995.” G OVERNMENT IN THE S UNSHINE M ANUAL, at 153 (2016) (emphasis added).
23
24
Case: 17-14177 Date Filed: 11/21/2019 Page: 1 of 73
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 17-14177
D.C. Docket No. 9:16-cv-81371-DMM
DENISE DEMARTINI,
versus
TOWN OF GULF STREAM,
WANTMAN GROUP, INC.,
ROBERT A. SWEETAPPLE,
RICHMAN GREER, P.A.,
GERALD F. RICHMAN,
[PUBLISH]
Plaintiff -Appellant,
Defendants -Appellees,
Defendants.
Appeal from the United States District Court
for the Southern District of Florida
(November 21, 2019)
Case: 17-14177 Date Filed: 11/21/2019 Page: 2 of 73
Before ROSENBAUM, HULL and JULIE CARNES, Circuit Judges.
HULL, Circuit Judge:
Plaintiff Denise DeMartini appeals the district court's grant of summary
judgment (1) to the defendant Town of Gulf Steam, Florida on her First
Amendment retaliation claim brought under 42 U.S.C. § 1983 and (2) to the
defendant Wantman Group, Inc., a government contractor, on her malicious
prosecution claim brought under Florida law.
To place this appeal in context, we begin with what happened in a prior
lawsuit and appeal involving the same parties here. See Town of Gulf Stream v.
O'Boyle, 654 F. App'x 439 (11 th Cir. 2016) (unpublished).
I. PRIOR LAWSUIT AND APPEAL
The Town of Gulf Stream ("the Town") is a "tiny town of under 1,000
residents and just 17 full time employees" in Palm Beach County, Florida. Id. at
441. In their prior lawsuit, the Town and its contractor, the Wantman Group Inc.
("Wantman") sued Denise DeMartini (the plaintiff here), Martin O'Boyle, and
others under the Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. §§ 1962(c), 1964(c), for a fraud and extortion scheme. Id. at 440-42.
O'Boyle resides in the Town. From 1984 until 1995, and then again from
2003 to 2015, DeMartini worked for O'Boyle's real estate company, CRO Realty,
2
Case: 17-14177 Date Filed: 11/21/2019 Page: 3 of 73
Inc. O'Boyle was DeMartini's direct supervisor and described her as his "left
hand" woman.
At the direction of O'Boyle, Citizens Awareness Foundation, Inc. ("CAFI")
was created as a not -for -profit corporation, whose stated purpose included testing
and enforcing municipalities' compliance with Florida public records law.
O'Boyle was the sole funder of CAFI and he used it as a tool to file thousands of
public records requests to the Town under Florida's public records law. Plaintiff
DeMartini worked as CAFI's Treasurer and later Director. O'Boyle's CRO Realty
paid DeMartini for her work on behalf of CAFI.
In the prior lawsuit, the Town alleged that plaintiff DeMartini, O'Boyle, and
others "pummeled the town with nearly 2,000 public records requests, many of
them frivolous, with no intention of actually reviewing the results." Id. The Town
also alleged that, if the Town failed to timely respond then the O'Boyle Law Firm
would sue the Town, allegedly "engag[ing] in a pattern of frivolous litigation
activity." Id. at 441, 444. The O'Boyle Law Firm was formed by O'Boyle's son,
funded by O'Boyle, and was in the same building as O'Boyle's real estate
company. Here is how O'Boyle and DeMartini orchestrated their scheme through
CAFL'
'In the prior lawsuit, this Court stated that "[w]e derive these facts from the complaint's
well -pled allegations, which we accept as true for purposes of the motions to dismiss." Gulf
Stream, 654 F. App'x at 441 n.2.
Case: 17-14177 Date Filed: 11/21/2019 Page: 4 of 73
A. First Step: Public Records Requests
As its first step, CAFI would issue public records requests "on a grand
scale" to the Town, pursuant to Florida's Public Records Act, Fla. Stat. § 119.07.
Id. at 444. Specifically, § 119.07 provides that a custodian of a public record, such
as the Town, (1) shall permit the record to be inspected and copied, at any
reasonable time, under reasonable conditions, (2) must acknowledge requests to
inspect or copy records promptly, and (3) must respond to such requests in good
faith. Fla. Stat. § 119.07(1)(a), (c).
As relevant here, CAFI sent the Town "nearly 2,000 public records
requests." Gulf Stream, 654 F. App'x at 441-42. These public records requests
were deliberately vague and ambiguous in order to induce a violation of § 119.07.
See id. Our prior decision listed examples of CAFI's requests as production of:
Id.
(1) "All email addresses created or received by the Town of Gulf
Stream";
(2) "All phone numbers in the [T]own's records"; and
(3) "Any and all records containing a social security number."
One of CAFI's requests went to Wantman, a contractor of the Town. Id. at
442. Florida's public records law applies also to private entities, such as
Wantman, that contract with government agencies. See Fla. Stat. § 119.0701.
M
Case: 17-14177 Date Filed: 11/21/2019 Page: 5 of 73
CAFI sent Wantman a public records request by e-mail, which directed that a
response be sent to this e-mail address: Vendor. Contract.Publishing@gmail.com.
Citizens Awareness Found., Inc. v. Wantman Grp., Inc., 195 So. 3d 396, 397-98
(Fla. Dist. Ct. App. 2016). CAFI's request was sent to the e-mail address of Robin
Petzold, the consultant on the government contract, with the additional language
"DidTheyReadlt.com" attached at the end of her e-mail address, rendering the
e-mail address unrecognized by Wantman's computer network. Id. at 397-98,
401.' The subject line of the e-mail stated that it was a public records request, and
it indicated that it was sent from "An Onoma." Id. at 398. The e-mail's suspicious
appearance led Petzold to believe that it was illegitimate and spam, and she did not
respond to it. Id. at 401.
B. Second Step: State Lawsuits Filed
The second step of CAFI's strategy involved the O'Boyle Law Firm's filing
many lawsuits. If the Town or Wantman did not respond promptly or adequately
to the public records requests, CAFI, through the O'Boyle Law Firm, would
threaten litigation, or actually file a lawsuit, against the Town or another entity.
CAFI, through the O'Boyle Law Firm, would demand unreasonable settlements,
which included excessive amounts of attorney's fees and costs. Gulf Stream, 654
'Neither the government contract nor Wantman's website identifies Petzold as a
custodian of public records. Citizens Awareness, 195 So. 3d at 401.
5
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F. App'x at 441. The demands were based on threats that CAFI would initiate
expensive and burdensome litigation or make pending litigation more expensive
and burdensome. Id. The end game of the scheme was not to have the Town's
public records actually released, but to obtain attorney's fees for the O'Boyle Law
Firm. Id.
In that regard, Florida's Public Records Act, Fla. Stat. § 119.12, contains an
attorney's fees provision that potentially applied when CAFI filed its lawsuits
against the Town to enforce the production of public records. Section 119.12
provides that the state court shall award the reasonable costs of enforcement,
including reasonable attorney's fees, against the custodian if the state court
determines that: (a) the custodian unlawfully refused to permit a public record to
be inspected or copied; and (b) the complainant provided written notice identifying
the public record request to the custodian at least five business days before filing
the civil action. Fla. Stat. § I I9.12(1)(a), (b). "Unlawful refusal under [§] 119.12
includes not only affirmative refusal to produce records, but also unjustified delay
in producing them." Yasir v. Forman, 149 So. 3d 107, 108 (Fla. Dist. Ct. App.
2014) (quotation omitted).3 In short, if the Town or Wantman did not promptly
3As discussed later, the complainant does not recover attorney's fees (and instead has to
pay attorney's fees) if the state court determines that the complainant requested to inspect or
copy a public record or participated in the civil action for an "improper purpose." Fla. Stat.
§ 119.12(3). And "improper purpose" means a request to inspect or copy a public record or to
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respond in five days, CAM would file a lawsuit and demand attorney's fees. And
it was the policy and practice of the O'Boyle Law Firm to demand settlement of
cases with a provision for attorney's fees in excess of the fees actually incurred by
the O'Boyle Law Firm for the cases.
As an example of the abusive litigation, in May 2014, when Wantman failed
to respond to CAFFs e-mail request for records within the required time frame,
CAFI filed suit after waiting merely 18 days and demanded several thousand
dollars to settle the claim.4 Citizens Awareness. 195 So. 3d at 401. After the suit
was filed, Wantman voluntarily provided the requested records. Id. at 398.
Nevertheless, CAFI persisted with the lawsuit. Id. at 397. The Florida state court
concluded that Wantman's delay in providing the records was not so unjustifiable
that it amounted to an unlawful refusal to provide the records to justify an award of
attorney's fees. Id. at 397, 401. Affirming the trial court's ruling, the Florida
appellate court noted that Wantman believed the request was "illegitimate" and
stated that "[t]he public records law should not be applied in a way that encourages
the manufacture of public records requests designed to obtain no response, for the
purpose of generating attorney's fees." Id. at 401.
participate in the civil action primarily to cause a violation of this chapter or for a frivolous
purpose. Id.
4Gerald Richman and the law firm Richman Greer represented Wantman in that lawsuit.
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C. Joel Chandler's Role in CAFI
In January 2014, O'Boyle recruited Joel Chandler to be CAFI's Executive
Director. While acting as CAFI's Executive Director, Chandler became convinced
that CAFI was being used for improper purposes and that the organization was
engaged in potentially fraudulent and illegal activities. As a result, Chandler
resigned from CAFI in June 2014, approximately five months after he accepted the
position.
Within a few days after resigning from CAFI, Chandler contacted Robert
Sweetapple, who was the Town's special counsel handling the public records
requests. Chandler told counsel Sweetapple that he believed CAFI, O'Boyle, and
the O'Boyle Law Firm were victimizing the Town with their public records
activities, and that those activities involved criminal, fraudulent, and unethical
conduct. Chandler also disclosed this information to the Town's attorney, Joanne
O'Connor, as well as to the media.
In July 2014, Chandler met with Sweetapple, the Town's special counsel,
and provided Sweetapple with documents and a sworn statement detailing CAM's
fraudulent conduct. Chandler also gave Sweetapple a sworn video statement
concerning his involvement with CAFI, O'Boyle, and the O'Boyle Law Firm.
Chandler advised Sweetapple about CAFI's two-step "windfall scheme" of (1)
issuing deliberately vague and ambiguous public records requests to the Town and
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other entities and (2) then demanding excessive amounts of attorney's fees and
other costs to settle the dispute when the Town or other entities failed to respond to
the public records requests in a timely manner.
Chandler informed counsel Sweetapple that O'Boyle had orchestrated
hundreds of public records requests and directed the O'Boyle Law Firm to file
numerous lawsuits on behalf of CAFI, many times without Chandler's
authorization. Chandler reported that the O'Boyle Law Firm had settled cases on
behalf of CAFI without having fee arrangements or contingency agreements in
place, without closing statements, and without providing any accounting of the
settlements to CAFI.
Chandler also explained that he became uneasy with DeMartini's close
rapport with O'Boyle as well as her dual roles at the O'Boyle Law Firm and as a
director of CAFI. Chandler's grievances against DeMartini included the
following: (1) she chastised him for not supplying the O'Boyle Law Firm with
sufficient cases from CAFI; (2) she worked with another employee to reject
Chandler's pitch to refer CAFI's litigation to law firms besides the O'Boyle Law
Firm; (3) CAFI adopted a policy that permitted DeMartinia non -lawyer —to
authorize public records requests and litigation; and (4) she demanded that
Chandler produce a "minimum of 25 lawsuits" per week for the O'Boyle Law
Firm.
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After obtaining Chandler's sworn statement, Sweetapple compared it to the
information he had already obtained through his own investigation and concluded
that Chandler's account of CAFI's "windfall scheme" was credible.
D. RICO Civil Suit
With all of this information in hand, the Town decided to take action. In
October 2014, the Town held a regular meeting of its Commission to consider
specific ways to thwart O'Boyle's "malicious and frivolous lawsuits and public
records requests." At the October 2014 meeting, the Town's attorney, Joanne
O'Connor, advised the Commission that: (a) more than 1,500 public records
requests had been submitted to the Town since August 27, 2013; (b) the Town
believed that an overwhelming majority of those requests were submitted by
O'Boyle, one other prolific requester, or entities that they controlled; (c) these
requests resulted in 36 lawsuits against the Town; and (d) the requests had
"barraged" the small town staff and, since January 2014, the Town had spent
$370,000 in legal fees in defending those actions and responding to those requests.
At the October 2014 meeting, Scott Morgan, the Town's Mayor, explained
that the Town was considering filing a RICO action and retaining attorney Gerald
Richman and his law firm, Richman Greer, as special counsel. At the meeting,
Richman introduced himself, explaining to the Town that he was a past president
of the Florida bar and an active trial lawyer with experience in RICO lawsuits.
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Richman encouraged the Town to file a RICO action against the O'Boyle Law
Firm, CAFI, and certain individuals. Richman stated that the "best way to
counteract" O'Boyle's operation was to "file a RICO action in federal court."
Richman explained that the RICO action would seek injunctive relief and damages
against the O'Boyle Law Firm, CAFI, and the individuals involved.
Mayor Morgan asked special counsel Richman about damages, and Richman
responded that a successful RICO action would provide for attorney's fees and
damages related to the costs of defending the public records lawsuits. After
Richman discussed his fee arrangement, Thomas Stanley, a Town Commissioner,
asked Richman about other litigation costs. Richman explained that there would
be costs for depositions, interrogatories, and experts as the case progressed, but
initially the costs would be related to the complaint, service, and class certification.
Joan Orthwein, another Town Commissioner, asked special counsel Richman what
the overall cost of the RICO litigation would be, and Richman estimated that it
would cost between $20,000 and $25,000 in fees the first few months. Donna
White, also a Town Commissioner, asked Richman how long the RICO action
would last, but Richman did not speculate.
Mayor Morgan stated that the Town "ha[d] suffered enough" by expending
funds, time, resources, and morale and was encountering "difficulties [with]
retaining and hiring employees as a result of the scandalously malicious and
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frivolous lawsuits and public records requests filed by ... O'Boyle under related
entities." The Mayor explained that the Town could "either take the approach of
defending these individual cases as they come in, and bleed to death by a thousand
cuts, or ... take steps necessary to stop those cases by advancing this case." The
Mayor commented that there was a "conspiracy ... to advance actions that
essentially do nothing other than shake down municipal agencies and related
contractors for funds" and "all the talk of open public access ... is nonsense." He
explained that "by putting a stop to it with this RICO action, we then put a stop to
the individual lawsuits on the public records requests." The Mayor was
"confident" that the RICO lawsuit would stop the individual lawsuits and public
records requests.
Commissioner Orthwein responded, "I agree, because I don't see an end just
defending one by one. I think we have to take it all as a group and go forward
because just defending is not doing anything.... I think it's very important that we
just don't bleed to death, we protect ourselves."
After the discussion, the Commission voted to retain Richman and his law
firm, Richman Greer, as special counsel to represent the Town and to commence
the civil lawsuit. Richman also contacted Wantman about whether it would join
the RICO lawsuit. Richman had previously represented Wantman in other matters,
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including a prior public records lawsuit involving CAFI. Based on discussions
with Richman, Wantman decided to join the Town in the RICO civil suit.
On October 27, 2014, Sweetapple, as the Town's special counsel, obtained
Chandler's affidavit, which outlined the existence of O'Boyle's "windfall scheme"
and DeMartini's participation.
In February 2015, attorney Richman filed a civil complaint on behalf of the
Town and Wantman against O'Boyle, CAFI, DeMartini, and others, alleging
violations of RICO, 18 U.S.C. §§ 1962(c), 1964(c).5 In their complaint filed in
federal district court, the Town and Wantman, as named plaintiffs on behalf of a
putative class, alleged that the defendants (1) filed large numbers of frivolous
public records requests, which were often intentionally inconspicuous, (2) then
filed lawsuits when the requests were not addressed on time or otherwise, and
(3) then extorted their victims by demanding settlements, including payment of
their allegedly incurred attorney's fees and costs, or face protracted litigation and
additional frivolous public records requests and lawsuits. The complaint alleged
the defendants' pattern of frivolous public records requests and frivolous lawsuits
was extortionate under the Hobbs Act, 18 U.S.C. § 1951. The complaint also
5Before and after filing the RICO suit in federal court, the Town also filed counterclaims
naming DeMartini and others as third -party defendants in eight pending state court actions that
had been brought against the Town by O'Boyle and others alleging violations of Florida's public
records law.
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alleged that DeMartini was the self-appointed "key employee" for all of O'Boyle's
companies, and that she "direct[ed] the flow of litigation" and "call[ed] the shots."
Upon motion to dismiss by the defendants, the federal district court
dismissed the Town and Wantman's class action RICO complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court
concluded that the defendants' filing lawsuits, or even threatening to sue, did not
constitute a predicate act under RICO. In so ruling, the district court relied on
Eleventh Circuit precedent in Raney v. Allstate Ins. Co., 370 F.3d 1086, 1087-88
(11 th Cir. 2004) (holding that the filing of a lawsuit did not state a claim for
extortion as a predicate act under RICO), and United States v. Pendergraft, 297
F.3d 1198, 1207 (1 lth Cir. 2002) (holding that neither the threat to litigate nor the
fabrication of evidence behind the threat of a lawsuit made the action "wrongful"
within the meaning of the Hobbs Act, and, thus, could not be a predicate act under
RICO).
On appeal, the Town and Wantman attempted to distinguish our above
precedent based on CAFI's thousands of abusive public records requests, the large
volume of lawsuits actually filed or threatened to be filed, and the systematic use
of those lawsuits as part of the O'Boyle -led scheme to defraud with the intent to
deceive. Gulf Stream, 654 F. App'x at 444. This Court assumed that the
defendants had "engaged in a pattern of frivolous litigation activity while abusing,
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on a grand scale, their statutory right to request public documents from the
government." Id. Ultimately, however, this Court affirmed the district court's
dismissal of the Town and Wantman's complaint. Id. at 445. We stressed that the
law encourages citizens to use the courts to redress wrongs and enforce rights,
including to resolve public records disputes. Id. at 443-44. Moreover, citizens
have a constitutional right to petition the government for redress under the First
Amendment. Id. This Court concluded that, regardless of the scope and scale of
the public records litigation, the courts are equipped with procedures to deal with
parties who file frivolous litigation. Id. Therefore, this Court determined that a
threat to file litigation against the government does not trigger liability under the
Hobbs Act. Id. at 443. Nonetheless, this Court characterized the activities of
CAFI, O'Boyle, and the O'Boyle Law Firm as "troubling." Id. at 441.
Meanwhile, Mayor Morgan sent a letter to town residents regarding the
Town's operating budget, including a planned increase in the Town's budget for
legal fees. After describing the status of the RICO civil lawsuit, Mayor Morgan
said, "I have stated numerous times that if the litigants will discontinue their
lawsuits, I will recommend discontinuing our RICO action." And when the Town
lost on appeal, Mayor Morgan conceded during a public hearing held in July 2016
that the Town's RICO suit was "new to the law." In filing the RICO suit, the
Town knew that it "would either prevail or expose the case." But "something had
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to be done to try to stop the public record lawsuits that at that time numbered 53
against the Town." Mayor Morgan also reported that the Town had not had a
public records lawsuit since the RICO action was filed.
E. DeMartini's § 1983 Retaliation Case
Approximately two months after this Court affirmed the district court's
dismissal of the Town and Wantman's RICO civil action, DeMartini filed the
instant § 1983 action against them. In relevant part, DeMartini's amended
complaint alleged that the Town and Wantman's RICO lawsuit constituted
unlawful retaliation against her. Her amended complaint contained: (1) a First
Amendment retaliation claim under § 1983 against the Town; and (2) a malicious
prosecution claim under Florida law against Wantman.
As to her § 1983 First Amendment retaliation claim, DeMartini alleged that
the speakers at the Town's October 2014 Commission meeting made clear that the
Town was not concerned with the merits of its RICO lawsuit or its likelihood of
success. Rather, the Town's sole motivation in voting for the RICO lawsuit was to
stop CAFI's filing of public records lawsuits. DeMartini noted that, after this
Court affirmed the dismissal of the Town's RICO complaint, Mayor Morgan
6DeMartini's amended complaint also alleged Florida malicious prosecution claims
against Richman and his law firm Richman Greer and slander per se claims against Sweetapple
and Richman. The district court granted summary judgment for these defendants. On appeal,
DeMartini does not raise these claims against these defendants, and, therefore, we do not address
them.
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admitted at a July 2016 Commission meeting that the Town's RICO lawsuit served
its purpose because new public records lawsuits had not been filed, which "was
exactly what we tried to accomplish."
DeMartini contended that she engaged in speech that was constitutionally
protected by associating with CAFI, which had filed the multiple public records
lawsuits against the Town. DeMartini alleged that: (1) the filing of these public
records lawsuits against the Town, at her direction, constituted constitutionally
protected activity; (2) the Town retaliated against her protected activity by filing
the RICO lawsuit; and (3) the Town's retaliatory conduct adversely affected her
protected activity and caused her to incur substantial damages, primarily due to the
loss of her employment.
As to her Florida malicious prosecution claim against Wantman, DeMartini
alleged that Wantman disliked her petitioning the government by using Florida's
public records law and weaponized the RICO suit as a means to punish her for that
expression. She claimed that Wantman sued her without having any evidence that
she had any involvement or participation in the extortionate scheme alleged in the
RICO complaint.
The district court denied the defendants' motions to dismiss. Later, the
defendants moved for summary judgment on all claims and DeMartini filed a
cross -motion for partial summary judgment against Wantman. The district court
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granted the defendants' motions for summary judgment and denied DeMartini's
cross -motion against Wantman. The district court concluded the defendants had
probable cause to initiate a civil RICO lawsuit which precluded plaintiff's § 1983
First Amendment retaliation claim and her Florida malicious prosecution claim.
DeMartini timely appealed.'
II. SECTION 1983 FIRST AMENDMENT RETALIATION CLAIM
A. First Amendment
"A constitutional claim brought pursuant to § 1983 must begin with the
identification of a specific constitutional right that has allegedly been infringed."
Paez v. Mulvey, 915 F.3d 1276, 1285 (1 lth Cir. 2019). Plaintiff DeMartini alleges
that the defendants violated her First Amendment rights —to make public records
requests and to bring lawsuits —by filing the RICO civil action against her in
retaliation for her exercising those First Amendment rights.
The First Amendment provides that "Congress shall make no
law ... abridging the freedom of speech, or ... the right ... to petition the
government for a redress of grievances." U.S. Const. Amend. I. The Amendment
7We review a grant of summary judgment de novo and apply the same legal standards
that governed the district court's decision. Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d
1287, 1293 (1 lth Cir. 2013). Summary judgment is appropriate only "if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). Also, we may affirm for any reason supported by the
record, even if not relied upon by the district court. United States v. Al -Arian, 514 F.3d 1184,
1189 (11th Cir. 2008).
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protects "not only the affirmative right to speak, but also the right to be free from
retaliation by a public official for the exercise of that right." Suarez Corp. Indus. v.
McGraw, 202 F.3d 676, 685 (4th Cir. 2000). "The First Amendment right to
petition the government for a redress of grievances includes a right of access to the
courts." Bank of Jackson Cty. v. Cherry, 980 F.2d 1362, 1370 (1 lth Cir. 1993);
see Cal. Motor Transp. Co., v. Trucking Unlimited, 404 U.S. 508, 510, 92 S. Ct.
609, 612 (1972) (stating "[t]he right of access to the courts is indeed but one aspect
of the right of petition"). The right to petition the government for a redress of
grievances is "one of the most precious of the liberties safeguarded by the Bill of
Rights," and is "high in the hierarchy of First Amendment values." Lozman v.
City of Riviera Beach, Fla., 585 U.S. _, _, 138 S. Ct. 1945, 1954-55 (2018)
(internal quotation marks omitted) (quoting BE & K Const. Co., v. NLRB, 536
U.S. 516, 5241 122 S. Ct. 2390, 2395 (2002)); see also Connick v. Myers, 461 U.S.
138, 145, 103 S. Ct. 1684, 1689 (1983). The right to petition the government for
redress of grievances is such a fundamental right as to be "implied by `[t]he very
idea of a government, republican in form."' BE & K Const., 536 U.S. at 524-25,
122 S. Ct. at 2396 (quoting United States v. Cruikshank, 92 U.S. 542, 552 (1875)).
In short, a citizen's public records requests and lawsuits against the government
can clearly constitute protected First Amendment activity.
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B. Elements of Retaliation Claim
To state a § 1983 First Amendment retaliation claim, a plaintiff generally
must show: (1) she engaged in constitutionally protected speech, such as her right
to petition the government for redress; (2) the defendant's retaliatory conduct
adversely affected that protected speech and right to petition; and (3) a causal
connection exists between the defendant's retaliatory conduct and the adverse
effect on the plaintiff's speech and right to petition. Bennett v. Hendrix, 423 F.3d
1247, 1250 (llth Cir. 2005).'
In § 1983 First Amendment retaliation cases, the Supreme Court has
recognized that retaliatory animus by a governmental actor is a subjective
condition that is "easy to allege and hard to disprove." See Nieves v. Bartlett, 587
U.S. _, _, 139 S. Ct. 1715, 1725 (2019) (internal quotation marks omitted)
(quoting Crawford -El v. Britton, 523 U.S. 574, 585, 118 S. Ct. 1584, 1590 (1998));
see also Hartman v. Moore, 547 U.S. 250, 2571126 S. Ct. 1695, 1702 (2006) (The
defendant inspectors argue that "a plaintiff can afflict a public officer with
disruption and expense by alleging nothing more, in practical terms, than action
8When reviewing an official's retaliatory conduct for adverse effect on protected speech,
we consider whether the Town's alleged retaliatory conduct "would likely deter a person of
ordinary firmness from the exercise of First Amendment rights." Bailey v. Wheeler, 843 F.3d
473, 481 (1 lth Cir. 2016). However, we have acknowledged that special concerns arise when an
official's "own First Amendment rights are implicated" in the commission of an alleged
constitutional tort. Dixon v. Burke Cty., 303 F.3d 1271, 1275 (1 lth Cir. 2002).
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with a retaliatory animus, a subjective condition too easy to claim and too hard to
defend against."). For this reason, courts have identified two general approaches to
retaliation claims against governmental actors, with the particular approach chosen
dependent on the type of alleged retaliation at issue. One approach, typically used
when a governmental employee claims that he was fired because he engaged in
First Amendment activity, looks to whether the defendant governmental
employer's retaliatory motivation was the but -for cause of the adverse employment
decision. If not —that is, if the defendant would have taken the same action had
there not also been a retaliatory animus motivating that conduct —then the
defendant is not liable. Mt. Healthv Citv School Dist. Bd. of Educ. v. Dovle. 429
U.S. 274, 285-87, 97 S. Ct. 568, 575-76 (1977); see Lozman, 585 U.S. at , 138
S. Ct. at 1955.
The second approach —taken when the governmental defendant has utilized
the legal system to arrest or prosecute the plaintiff —has been to require the
plaintiff to plead and prove an absence of probable cause as to the challenged
retaliatory arrest or prosecution in order to establish the causation link between the
defendant's retaliatory animus and the plaintiff's injury. Nieves, 587 U.S. at ,
139 S. Ct. at 1726; Hartman, 547 U.S. at 260-61, 265-66, 126 S. Ct. at 1704,
1706-07.
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These four major Supreme Court precedents —Mt. Healthy, Hartman,
Lozman, and Nieves —expand upon the causal connection requirement in First
Amendment retaliation cases and are necessary background to our ultimate
conclusion. We start with the First Amendment retaliation decisions in Mt.
Healthy and Hartman.
C. 1977 Mt. Healthy: "But -For" Test When Retaliatory Employment
Actions are Alleged
Mt. Healthy involved a government employer's discharge of a public
employee. Mt. Healthy, 429 U.S. at 276, 97 S. Ct. at 570. Specifically, in Mt.
Healthy, a city board of education (the "school board") decided not to rehire an
untenured school teacher after various incidents indicating unprofessional
demeanor. Id. at 281-83, 97 S. Ct. at 573-74. One incident was a telephone call
the teacher made to a local radio station to report on a new school policy. Id. at
2821 95 S. Ct. at 573. The plaintiff teacher sued the school board, claiming that the
board's refusal to renew his employment contract violated his First Amendment
rights. Id. at 276, 97 S. Ct. at 570. Because the school board did not suggest that
the teacher violated any established policy in making the call, the Supreme Court
accepted a finding by the district court that the call was protected speech under the
First Amendment. Id. at 284, 97 S. Ct. at 574.
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In Mt. Healthy, the Supreme Court went on to hold, however, that since the
other incidents, standing alone, would have justified the plaintiff teacher's
dismissal, relief could not be granted to the teacher if the school board could show
that the discharge would have been ordered even without reference to the teacher's
protected speech. Id. at 285-87, 97 S. Ct. at 575-76. In terms of precepts in the
law of torts, the Supreme Court held that even if retaliation might have been a
"substantial factor" or a "motivating factor" for the board's decision not to rehire
the plaintiff, still there was no liability unless the alleged constitutional violation
was a but -for cause of the employment termination. See id.
After a bench trial, the district court awarded reinstatement with backpay to
the plaintiff teacher. Id. at 276, 97 S. Ct. at 570. The Supreme Court vacated the
district court's favorable judgment for the plaintiff teacher because, as to causation,
the district court should have gone on to determine whether the school board had
shown that "it would have reached the same decision as to [the plaintiff's]
reemployment even in the absence of the [plaintiff's] protected [speech]." Id. at
285-87, 97 S. Ct. at 575-76. Although the plaintiff had shown that his conduct
(the call) was protected speech and that his conduct was a substantial or motivating
factor in the school board's decision not to rehire him, the school board was not
liable if it showed it would have reached the same decision in the absence of the
plaintiff's protected speech. See id.
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D. 2006 Hartman: First Amendment —Retaliatory Criminal Prosecution
Claims Require the Absence of Probable Cause
After adopting the "but for" test when a public employee alleges retaliation
by the governmental employer based on the employee's protected First
Amendment activity, the Supreme Court addressed the test that should apply when
a citizen alleges that he or she has been criminally prosecuted in retaliation for
First Amendment activity. In Hartman, the Supreme Court recognized the
importance that the existence of probable cause plays in assessing causation in a
retaliatory prosecution claim and held that a viable retaliatory prosecution claim
requires the plaintiff to plead and prove the absence of probable cause. Hartman,
547 U.S. at 252, 265-66, 126 S. Ct. at 1699, 1707. The Supreme Court's analysis
in reaching that holding is instructive.
The plaintiff in Hartman engaged in an extensive lobbying campaign
opposing a particular postal service policy. Id. at 252-53, 126 S. Ct. at 1699-
1700. The Postal Service criminally prosecuted the plaintiff for violating federal
statutes in that lobbying. Id. at 253-54, 126 S. Ct. at 1700. After being acquitted,
the plaintiff filed a § 1983 suit against the prosecutor and five postal inspectors,
alleging that they violated his First Amendment rights when they instigated his
criminal prosecution in retaliation for his criticisms of the Postal Service. Id. at
254, 126 S. Ct. at 1700.
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In Hartman, the Supreme Court held that, to establish the causal connection
required for a § 1983 First Amendment retaliation claim predicated on a retaliatory
criminal prosecution, a plaintiff must plead and prove more than the subjective
retaliatory animus of a government official and a plaintiff's subsequent injury; the
plaintiff must also plead and prove the absence of probable cause for the
underlying retaliatory criminal prosecution. Id. at 260-61, 265-66, 126 S. Ct. at
1704, 1706-07.9
In reaching this conclusion, the Supreme Court reasoned that when the
claimed retaliation for protected First Amendment conduct is a criminal charge, a
constitutional tort action for retaliation will differ in two ways from the standard
First Amendment retaliation claim, such as a public employee's claim that he was
fired for criticizing the government. Id. at 260, 126 S. Ct. at 1704. What is
different about a criminal prosecution case is that: (1) "the requisite causation
between the defendant's retaliatory animus and the plaintiff's injury is usually
more complex than it is in other retaliation cases, and the need to show this more
complex connection supports a requirement that no probable cause be alleged and
9Prior to Hartman, both this Court and the Fifth Circuit had already held that the presence
of probable cause defeats a § 1983 First Amendment claim for retaliatory criminal prosecution.
See Wood v. Kesler, 323 F.3d 872, 882-883 (1 lth Cir. 2003) (concluding a plaintiff's § 1983
claim for retaliatory criminal prosecution in violation of the First Amendment is "defeated by the
existence of probable cause"); Keenan v. Teieda, 290 F.3d 252, 260 (5th Cir. 2002) (noting that
"retaliatory criminal prosecutions in violation of the First Amendment are actionable only if a
plaintiff can also prove the common-law elements of malicious prosecution, including the
absence of probable cause to prosecute").
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proven"; and (2) "there will always be a distinct body of highly valuable
circumstantial evidence available and apt to prove or disprove retaliatory
causation, namely evidence showing whether there was or was not probable cause
to bring the criminal charge." Id. at 261, 126 S. Ct. at 1704.
As to causation, the Supreme Court in Hartman explained that in retaliatory
criminal prosecutions, the causal connection is more complex because it "is not
merely between the retaliatory animus of one person and that person's own
injurious action, but between the retaliatory animus of one person [the postal
inspector] and the action of another [the prosecutor]." Id. at 262, 126 S. Ct. at
1705. The Supreme Court also emphasized that "to the factual difficulty of
divining the influence of an investigator or other law enforcement officer upon the
prosecutor's mind, there is an added legal obstacle in the longstanding presumption
of regularity accorded to prosecutorial decisionmaking." Id. at 263, 126 S. Ct. at
1705. The Supreme Court concluded that the absence of probable cause was
needed to "bridge the gap between the nonprosecuting government agent's [the
postal inspector] motive and the prosecutor's action, and to address the
presumption of prosecutorial regularity." Id. at 263, 126 S. Ct. at 1706.10 Thus,
1OThe Supreme Court contrasted the dual actors in retaliatory criminal prosecution cases
with "the requisite causation in ordinary retaliation claims, where the government agent
allegedly harboring the animus is also the individual allegedly taking the adverse action."
Hartman, 547 U.S. at 259, l26 S. Ct. at l703.
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even when a government officer's retaliatory animus is clear, it "does not
necessarily show that the [officer] induced the action of a prosecutor who would
not have pressed charges otherwise." Id. at 263, 126 S. Ct. at 1705.
Ultimately, the Supreme Court in Hartman concluded: "Because showing an
absence of probable cause will have high probative force, and can be made
mandatory with little or no added cost," it makes sense to require such a showing
as an element of a plaintiff's case, and we hold that it must be pleaded and
proven." Id. at 265-66, 126 S. Ct. at 1707. Under Hartman, if there is probable
cause for the underlying criminal prosecution, then the § 1983 First Amendment
retaliatory criminal prosecution case ends as a matter of law. See id. The Supreme
Court, in effect, imposed an "`objective' fact requirement" on the plaintiff —to
plead and prove the absence of probable cause —in order to prove the chain of
causation from animus to injury. See id. at 258, 265-665 126 S. Ct. at 1702, 1707.
E. 2018 Lozman: Holding That, Given the Unique Facts of the Case, the
Existence of Probable Cause Did Not Bar Lozman's First Amendment
Retaliatory Arrest Claim
More recently, in Lozman, the Supreme Court examined whether the
existence of probable cause will also defeat a § 1983 First Amendment claim for
11The Supreme Court found the plaintiff's duty to plead and prove the absence of
probable cause would essentially be "cost free" because the issue of probable cause will be "an
evidentiary issue in practically all such cases." Hartman, 547 U.S. at 265, 126 S. Ct. at 1707.
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retaliatory arrest.12 Lozman, 585 U.S. at _, _, 138 S. Ct. at 1951, 1955.
Although granting certiorari on that broad question, ultimately the Supreme Court
itself limited its Lozman decision to the particular facts in that case. Id. at _, 138
mt—
S. Ct. at 1955.
The Court first reviewed its own prior decisions in both Mt. Healthy and
Hartman and its prior stated reasons for them. See id. at _, 138 S. Ct. at 1952-53.
After doing so, the Court concluded that "[o]n facts like these, Mt. Healthy
provides the correct standard for assessing a retaliatory arrest' and plaintiff
"Lozman need not prove the absence of probable cause to maintain a claim of
retaliatory arrest against the City." Id. at , 138 S. Ct. at 1955. The Supreme
Court cautioned, however: "The Court need not, and does not, address the elements
required to prove a retaliatory arrest claim in other contexts." Id. The Supreme
Court added "whether in a retaliatory arrest case the Hartman approach should
apply, thus barring a suit where probable cause exists, or, on the other hand, the
inquiry should be governed only by Mt. Healthy is a determination that must await
a different case." Id. at _, 138 S. Ct. at 1954. The Court explained the reason
12Previously in 2012, the Supreme Court granted certiorari on the question "whether a
First Amendment retaliatory arrest claim may lie despite the presence of probable cause to
support the arrest," but the Supreme Court declined to address that question in that earlier case.
See Reichle v. Howards, 566 U.S. 658, 663, 132 S. Ct. 2088, 2093 (2012).
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was that "Lozman's claim is far afield from the typical retaliatory arrest claim" and
"the mine run of arrests." Id.
Because the "unique" facts in Lozman drove that decision, we detail them.
See id. In Lozman, the plaintiff Lozman had filed a previous civil lawsuit
contending that the City violated the state's open -meetings laws. Id. at _, 138
S. Ct. at 1949. In June 2006, the City Council held a meeting at which
Councilmember Wade suggested the City use its resources to "intimidate"
Lozman, who had filed the open -meeting lawsuit. Id. A different Councilmember
asked whether there was "a consensus of what Ms. Wade [was] saying" and others
responded in the affirmative. Id. Lozman alleged this formed an official plan to
retaliate against him. Id. On the other hand, the City maintained that the only
consensus reached during the meeting was to invest the money and resources
necessary to prevail in the litigation against it. Id.
Five months later, in November 2006, plaintiff Lozman came to a City
council meeting and gave remarks about the recent arrest of a former county
official. Id. When Councilmember Wade directed Lozman to stop, he continued
speaking, this time about the arrest of a former city official in West Palm Beach.
Id. Councilmember Wade directed a police officer to "carry him out"i.e., arrest
him. Id. at _, 138 S. Ct. at 1949-50. Before the Supreme Court, there was no
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dispute that the officer had probable cause to arrest the plaintiff for interrupting the
meeting. Id. at _, 138 S. Ct. at 1951.
Nonetheless, plaintiff Lozman alleged that the high-level City policymakers
in advance of the meeting had devised a retaliatory plan to arrest him because of
his open -meetings lawsuit against the City and prior public criticism of public
officials. Id. Pursuant to that alleged official policy, when Lozman spoke up at the
next council meeting, Councilmember Wade directed police officers to arrest him.
Id. at _, 138 S. Ct. at 1949-50. After a 19-day trial, the jury returned a verdict for
the City on all claims. Id. at 1950.
During the trial, the district court charged the jury that plaintiff Lozman
must "prove that the arresting officer was himself motivated by impermissible
animus against Lozman's protected speech and that the officer lacked probable
cause to make the arrest." Id. The district court "allowed the jury to decide
whether there was probable cause to arrest [Lozman] for the public -disturbance
offense." Id. On appeal, this Court affirmed the verdict for the City because the
existence of probable cause defeated Lozman's First Amendment retaliatory arrest
claim. Id. We also assumed that the district court erred in instructing the jury that
the officer, rather than the City, must have harbored retaliatory animus. However,
we concluded that error was harmless given that the jury had found the officer had
probable cause for the arrest. Id. The Supreme Court granted certiorari on the
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question of "whether the existence of probable cause defeats a First Amendment
claim for a retaliatory arrest." Id. at _, 138 S. Ct. at 1950-51.
For purposes of its discussion, the Supreme Court assumed Lozman's "arrest
was taken pursuant to an official city policy," but added "whether there was such a
policy and what its content may have been are issues not decided here." Id. at _,
138 S. Ct. at 1951. Even though there was probable cause for Lozman's arrest, the
Court ultimately concluded that the "unique" facts of the case warranted allowing
Lozman to proceed on his claim that the City had engaged in an "official" policy of
retaliation against him based on his First Amendment activity. Id. at , 138 S. Ct.
at 1954-55.
Explaining its reasoning, the Court identified five considerations that
justified allowing Lozman's First Amendment retaliation claim to proceed even
though there was probable cause for his arrest. Id. at _, 138 S. Ct. at 1949, 1954-
55. Those five considerations were: (1) plaintiff Lozman had alleged "more
governmental action than simply an [officer's] arrest" because he claimed that the
City "itself retaliated against him pursuant to an `official municipal policy' of
intimidation"; (2) the plaintiff had alleged that the City's retaliation plan was
"premeditated" and formed months earlier (before the arrest); (3) the plaintiff had
"objective evidence" of a policy motivated by retaliation, as he had a transcript of a
closed -door meeting where a Councilmember stated that the City should use its
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resources to "intimidate" Lozman and others who filed lawsuits against the City;
(4) there was less of a concern about the causation problem and opening the
floodgates of frivolous retaliation claims because the City's official policy of
retaliation was formed months earlier, there was little relation between the
"protected speech that prompted the retaliatory policy and the criminal offense
(public disturbance) for which the arrest was made," and "it was unlikely that the
connection between the alleged animus and injury will be weakened by an
official's le _ iti�mate consideration of speech"; and (5) the plaintiffs speech —the
right to petition —was "one of the most precious of the liberties safeguarded by the
Bill of Rights" and was "high in the hierarchy of First Amendment values." Id.
Although holding that plaintiff Lozman could sue for retaliatory arrest "[o]n
facts like these," the Supreme Court emphasized that its holding was limited to the
alleged facts of Lozman's case and cautioned that it was not deciding whether, as a
general matter, the causation standard in Mt. Healthy or the lack -of -probable -cause
element in Hartman applied to retaliatory arrest claims. Id. at _, 138 S. Ct. at
1954-55. The Supreme Court also left it to this Court on remand to decide
whether Lozman "is ultimately entitled to relief or even a new trial." Id. at , 138
S. Ct. at 1955. Because the Supreme Court had only assumed that there was an
official retaliatory policy and that the arrest was taken pursuant to that official city
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policy, the Supreme Court stated that on remand, among other matters, this Court
may wish to consider:
(1) whether any reasonable juror could find that the City actually
formed a retaliatory policy to intimidate Lozman during its June 2006
closed -door session; (2) whether any reasonable juror could find that
the November 2006 arrest constituted an official act by the City; and
(3) whether, under Mt. Healthy, the City has proved that it would have
arrested Lozman regardless of any retaliatory animus —for example, if
Lozman's conduct during prior city council meetings had also violated
valid rules as to proper subjects of discussion, thus explaining his arrest
here.
Id.
F. 2019 Nieves: First Amendment Retaliatory Arrest Claims Generally
Require the Absence of Probable Cause
Shortly after Lozman, the Supreme Court had an opportunity to decide the
question that it had left open in that case: which standard, the Mt. Healthy standard
or the Hartman standard, should govern a § 1983 First Amendment retaliatory
arrest case. In this case, Nieves, the Court opted for the Hartman test: the presence
of probable cause will typically invalidate a First Amendment retaliatory arrest
claim. Nieves, 587 U.S. at , 139 S. Ct. at 1723-24, 1726. The Court
explained that because, generally speaking, "retaliatory arrest claims involve [the
same] causal complexities akin to those" in Hartman, which concerned a First
Amendment claim based on a retaliatory criminal prosecution, likewise "[t]he
presence of probable cause should generally defeat a First Amendment retaliatory
arrest claim." Id.
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In Nieves, plaintiff Bartlett was arrested by two police officers, Luis Nieves
and Bryce Weight, for disorderly conduct and resisting arrest during a rowdy
winter sports festival held in Alaska. Id. at _, 139 S. Ct. at 1720-21. According
to Officer Nieves, he was speaking with a group of festival attendees when a
seemingly intoxicated Bartlett started shouting at the attendees not to talk to the
police. Id. at _, 139 S. Ct. at 1720. When Officer Nieves approached him,
Bartlett yelled at Officer Nieves to leave. Id. Rather than escalate the situation,
Officer Nieves left. Id. Bartlett disputed that account, claiming that he was not
drunk and did not yell at Officer Nieves. Id.
Officer Weight stated that, several minutes later, Bartlett approached him in
an aggressive manner while Officer Weight was questioning a minor about
underaged drinking, stood between Officer Weight and the minor, and yelled with
slurred speech that Officer Weight should not speak with the minor. Id. When
Bartlett stepped toward him, Officer Weight pushed Bartlett back. Id. Officer
Nieves saw the confrontation and initiated Bartlett's arrest. Id. at , 139 S. Ct. at
1720-21. When Bartlett was slow to comply, the officers forced him to the ground
and threatened to tale him. Id. at , 139 S. Ct. at 1721. Bartlett denied being
aggressive and claimed that he stood close to Officer Weight in order to speak over
the music and was slow to comply because he did not want to aggravate a back
injury. Id. After being handcuffed, Bartlett claimed that Officer Nieves said: "Bet
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you wish you would have talked to me now." Id. (alteration accepted). The
officers then took Bartlett to a holding tent and charged him with disorderly
conduct and resisting arrest. Id. After a few hours, Bartlett was released from
custody, and the state later dismissed the criminal charges against him. Id.
Subsequently, in a § 1983 action, Plaintiff Bartlett sued the officers for
violation of his First Amendment rights by arresting him in retaliation for his
speech —his refusal to speak with Officer Nieves earlier in the evening and his
intervention in Officer Weight's discussion with the minor. Id. The officers stated
that they arrested Bartlett because he interfered with an investigation and initiated
a physical confrontation with Officer Weight. Id. The district court granted
summary judgment to the officers because (1) "the officers had probable cause to
arrest Bartlett," and (2) "the existence of probable cause precluded Bartlett's First
Amendment retaliatory arrest claim." Id. The Ninth Circuit disagreed, holding
that Bartlett had presented enough evidence that his speech was a "but -for cause"
of the arrest. Bartlett v. Nieves, 712 F. App'x 613, 616 (9th Cir. 2017)
(unpublished).
In Nieves, the Supreme Court reversed the Ninth Circuit and held "[b]ecause
there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a
matter of law." Nieves, 587 U.S. at , 139 S. Ct. at 1728. The Court
acknowledged that retaliatory arrests cases do not present a "presumption of
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prosecutorial regularity" or "multiple government actors," which are factors that
are found in retaliatory prosecution cases and support a probable cause standard.
Id. at , 139 S. Ct. at 1724. Nonetheless, the Court concluded that, like in
retaliatory prosecution cases, the causal inquiry in retaliatory arrests cases is
complex because "protected speech is often a `wholly legitimate consideration' for
officers when deciding whether to make an arrest." Id. at —, 193 S. Ct. at 1723-
24. Thus, the Court concluded that "[t]he plaintiff pressing a retaliatory arrest
claim must plead and prove the absence of probable cause for the arrest." Id.
In addition, the Supreme Court in Nieves reasoned that, "`[l]ike retaliatory
prosecution cases, evidence of the presence or absence of probable cause for the
arrest will be available in virtually every retaliatory arrest case."' Id. at —, 139
S. Ct. at 1724 (quoting Reichle, 566 U.S. at 668, 132 S. Ct. at 2095). "And
because probable cause speaks to the objective reasonableness of an arrest, its
absence will —as in retaliatory prosecution cases —generally provide weighty
evidence that the officer's animus caused the arrest, whereas the presence of
probable cause will suggest the opposite." Id. (internal citation omitted).
The Supreme Court therefore concluded that "[t]he presence of probable
cause should generally defeat a First Amendment retaliatory arrest claim." Id. at
—, 139 S. Ct. at 1726. On the other hand, the Supreme Court also instructed that if
the plaintiff demonstrates the absence of probable cause, "the Mt. Healthy test
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governs: The plaintiff must show that the retaliation was a substantial or
motivating factor behind the arrest, and, if that showing is made, the defendant can
prevail only by showing that the arrest would have been initiated without respect to
retaliation." Id. at—, 139 S. Ct. at 1725 (internal citations, alterations, and
quotation marks omitted).
Examining specifically the arrest of the plaintiff Bartlett, the Supreme Court
in Nieves concluded that, "[b]ecause there was probable cause to arrest [plaintiff]
Bartlett, his retaliatory arrest claim fails as a matter of law." Id. at _, 139 S. Ct. at
1728. In reaching this conclusion, the Supreme Court examined the two "common
law torts that provide the closest analogy to retaliatory arrest claims": false
imprisonment and malicious prosecution. Id. at , 139 S. Ct. at 1726 (internal
quotation marks omitted). Although the parties disputed which tort was the better
analog, the Supreme Court concluded that both common law torts suggested the
same result, which is that a plaintiff must show the absence of probable cause. Id.
The Supreme Court explained that "[i]t has long been settled law that malicious
prosecution requires proving the want of probable cause." Id. (internal quotation
marks omitted). And for a false imprisonment claim, "the presence of probable
cause was generally a complete defense for peace officers." Id.' 3 Relying in part
13"At common law, peace officers were privileged to make warrantless arrests based on
probable cause of the commission of a felony or certain misdemeanors." Nieves, 587 U.S. at _,
139 S. Ct. at 1726. "Although the exact scope of the privilege varied somewhat depending on
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on these two common law analogs, the Supreme Court held the defendant officers
were entitled to summary judgment on plaintiff Bartlett's § 1983 First Amendment
claims for retaliatory arrest because there was probable cause to arrest him. Id. at
139 S. Ct. at 1726-28.
One final observation about Nieves. Although probable cause defeated
plaintiff Bartlett's retaliatory arrest claim, the Supreme Court issued a caveat,
albeit in dicta, about that holding. The Supreme Court explained that, although
probable cause generally defeats a retaliatory arrest claim, "a narrow qualification
is warranted for circumstances where officers have probable cause to make arrests,
but typically exercise their discretion not to do so." Id. at , 139 S. Ct. at 1727.14
In those types of cases, "an unyielding requirement to show the absence of
probable cause could pose a risk that some police officers may exploit the arrest
power as a means of suppressing speech." Id. (internal quotation marks omitted).
Therefore, in Nieves the Supreme Court carved out a narrow exception to
the jurisdiction, the consistent rule was that officers were not liable for arrests they were
privileged to make based on probable cause." Id. at _, 139 S. Ct. at 1727.
14The Supreme Court noted that given the present power of police officers to make
warrantless arrests for misdemeanors for even very minor offenses, such as jaywalking, the
existence of probable cause for an arrest on such an offense would do little to disprove that a
retaliatory motive prompted the arrest for an arrestee who had, for example, vocally complained
about police conduct. Nieves, 587 U.S. at _, 139 S. Ct. at 1727. In such a circumstance, the
no -probable -cause pleading requirement would not apply to a plaintiff who showed that similarly
offending individuals who had not engaged in protected speech had not been arrested by that
officer for the same violative conduct. Id.
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"the no -probable -cause requirement." Id. The exception applies "when a plaintiff
presents objective evidence that he was arrested when otherwise similarly situated
individuals not engaged in the same sort of protected speech had not been." Id.
The Supreme Court stated that the plaintiff's showing of such objective evidence
would address the causal concern that non -retaliatory reasons prompted the arrest
and avoid a subjective inquiry into the officer's individual statements and
motivations. Id. If the plaintiff makes this requisite "objective evidence" showing
that others similarly situated were not arrested by the individual officer, the
plaintiff's First Amendment retaliatory arrest claim may move forward "in the
same manner as claims where the plaintiff has met the threshold showing of the
absence of probable cause." Id."
15Chief Justice Roberts wrote the opinion of the Nieves Court, joined in full by Justices
Breyer, Alito, Kagan, and Kavanaugh, and by Justice Thomas in all but the part regarding the
selective arrest exception. Justice Gorsuch concurred in part and dissented in part, concluding
that there is no basis in law to graft a no -probable -cause requirement onto a § 1983 First
Amendment retaliatory arrest claim. Nieves, 587 U.S. at _, 139 S. Ct. at 1730-31. In Justice
Gorsuch's view, the absence of probable cause is not an absolute requirement for a First
Amendment retaliatory arrest claim and its presence is not an absolute defense. Id. at _, 139
S. Ct. at 1732.
Nevertheless, Justice Gorsuch suggested that probable cause could bear on a retaliatory
arrest claim in at least two ways: (1) to show causation; and (2) in light of separation of powers
and federalism concerns where state and federal executive officials, not judges, are vested with
the decision to bring criminal charges. Id. at _, 139 S. Ct. at 1732-34. As to causation, Justice
Gorsuch noted the opinion's exception for evidence of selective arrests and also the open
question of whether direct evidence of discrimination, such as a prosecutor's admission of
discriminatory purpose, might be enough to allow a retaliatory arrest claim to proceed in cases
where probable cause exists for the arrest. Id. at _, 139 S. Ct. at 1733.
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To recap, the presence of probable cause will (1) defeat a § 1983 First
Amendment retaliation claim for an underlying retaliatory criminal prosecution,
Hartman, and also (2) will generally defeat a § 1983 First Amendment retaliation
claim for an underlying retaliatory arrest, Nieves, except (a) when the "unique"
five factual circumstances in Lozman exist together, or (b) where the plaintiff
establishes retaliation animus and presents "objective evidence" that he was
arrested for certain conduct when otherwise similarly situated individuals
(committing the same conduct) had not engaged in the same sort of protected
speech and had not been arrested, Nieves. While these Supreme Court decisions
provide significant guidance, the Supreme Court has not addressed a § 1983 First
Amendment claim predicated on a retaliatory civil lawsuit. Although there is scant
circuit precedent, we discuss those few decisions because they demonstrate how
circuit courts have assessed what a plaintiff must prove to establish the required
causal connection in § 1983 First Amendment retaliation cases when predicated on
civil lawsuits.
G. Other Circuit Precedent
We have located only three circuit decisions involving § 1983 First
Amendment retaliation claims predicated on a retaliatory civil lawsuit or
counterclaim. See Greenwich Citizens Comm.. Inc. v. Ctvs. of Warren & Wash.
Indus. Dev. Agency, 77 F.3d 26 (2d Cir. 1996) (counterclaim); Harrison v.
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Springdale Water & Sewer Comm'n, 780 F.2d 1422 (8th Cir. 1986)
(counterclaim); Bell v. Sch. Bd. of Norfolk, 734 F.2d 155 (4th Cir. 1984) (civil
declaratory judgment action). Although Mt. Healthy was decided in 1977 well
before these decisions, two of them, Harrison and Bell, do not cite Mt. Healthy.
And, of course, all three cases were decided long before the probable cause
decisions in Hartman, Lozman, and Nieves. Nonetheless, each of the three circuits
gave some consideration to whether the underlying civil action was frivolous in
deciding whether the § 1983 plaintiff had shown the requisite causation between
the defendant's retaliatory animus and the plaintiff's injury.
For example, in Greenwich, the plaintiffs filed a state court lawsuit against a
county government and other defendants in an effort to stop a waste incinerator
project. Greenwich, 77 F.3d at 28. The plaintiffs' lawsuit caused the market for
the municipal bonds (to fund the project) to deteriorate. Id. The defendants filed
various state tort counterclaims against the plaintiffs. Id. at 29. The Greenwich
plaintiffs then filed a separate § 1983 First Amendment retaliation claim, alleging
the defendants' state court counterclaims were filed in retaliation to the plaintiffs'
exercise of their protected First Amendment rights. Id. The jury agreed, but the
Second Circuit remanded for a new trial.
As to causation, the Second Circuit concluded that the § 1983 plaintiffs had
shown that the defendants "would not have filed their state court counterclaims
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`but for' the Greenwich plaintiffs' filing of their state court lawsuit." Id. at 31
(applying the Mt. Healthy causation test). However, the Second Circuit held that
the § 1983 plaintiffs were also "required to persuade the jury that the [defendants']
counterclaims were filed, not as a legitimate response to litigation, but as a form of
retaliation, with the purpose of deterring the [plaintiffs'] exercise of First
Amendment freedoms." Id. (emphasis added). The Second Circuit posited that
one way the plaintiffs could prove that the defendants acted with a retaliatory
purpose was to show that the defendants' state court counterclaims were
"frivolous." Id. at 31 n.5. The Second Circuit determined that the district court
erred by omitting from the jury charge "the element of retaliatory intent in
describing what the Greenwich plaintiffs had to prove. Id. at 3316; see also
Gorman-Bakos v. Cornell Coop Extension of Schenectady Cty., 252 F.3d 545, 556
(2d Cir. 2001).
Similarly, in evaluating the plaintiffs' First Amendment retaliation claim in
Harrison, the Eighth Circuit considered whether the defendant's counterclaim was
frivolous. Harrison, 780 F.2d at 1424. The plaintiffs had sued the defendant
Sewer Commission in state court for injunctive relief and damages from sewage
16The Second Circuit noted that the defendants "do not advance, nor do we consider, the
argument that they may not be held liable for filing their counterclaims under the theory that
such liability would impair their own First Amendment rights to conduct legitimate litigation."
Greenwich, 77 F.3d at 33 n.6.
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discharge in the creek near their blueberry farm. Id. The Commission filed a
counterclaim to condemn and take the plaintiffs' property. Id. The plaintiffs then
filed a separate § 1983 action in federal court, contending that the Commission's
condemnation counterclaim was filed in retaliation for the plaintiffs' bringing their
state court lawsuit against the Commission. Id. at 1425, 1428.17
Reversing the district court's dismissal, the Eighth Circuit held that the
plaintiffs had stated a § 1983 cause of action for infringement of their First
Amendment "right of access to the courts." Id. at 1426-28. Pivotal to the Eighth
Circuit's ruling was the fact that, notwithstanding its filing of a state court
condemnation counterclaim to take plaintiffs' property, the Commission in fact had
no plan to use the plaintiffs' property, but instead the counterclaim "was filed as a
tactical move" to pressure the plaintiffs into settling their civil damages lawsuit
against the Commission. Id. at 1428. To the Eighth Circuit, these facts rendered
the Commission's counterclaim "frivolous." Id. at 1428.
In Bell, the Fourth Circuit similarly considered whether the defendant school
board's prior civil action was a legitimate or "genuine" strategy in assessing a
plaintiff's subsequent § 1983 First Amendment retaliation claim. Bell, 734 F.2d at
156, 157 n.6. In Bell, at a public meeting, the plaintiff opposed the school board's
17The Sewer Commission was a public agency created by the City of Springdale,
Arkansas. Harrison, 780 F.2d at 1424.
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new neighborhood plan. Id. The school board filed a declaratory judgment suit
naming the plaintiff as a representative of the class opposed to the new plan. Id.
The plaintiff objected to being a class representative and requested dismissal. Id.
The school board agreed to the dismissal. Id. at 156-57. The plaintiff then filed a
§ 1983 action alleging the school board's suit was brought to deter her from
speaking out against the school plan. Id. at 157.
Affirming the district court's dismissal of plaintiff's § 1983 action, the
Fourth Circuit pointed out that (1) when the plaintiff advised she did not want to be
a class representative, the board dismissed her, and (2) the board's declaratory
judgment lawsuit "appears to have been part of a genuine strategy aimed at
acquiring a court determination of the validity of the plan." Id. at 157 & n.6.' �
"The Town also cites the Fifth Circuit's decision in Johnson v. La. Dep't of Agric., 18
F.3d 318, 309 (5th Cir. 1994), but the underlying prosecution in that First Amendment retaliation
case reads more like a criminal prosecution, than a civil action. In that case, the plaintiff Johnson
operated a crop -dusting business, and the Louisiana Department of Agriculture ("Department")
charged the plaintiff with violations of pesticide laws, imposed penalties and revoked the
plaintiff's license to apply pesticides. Id. at 319-20. The plaintiff appealed to a Louisiana state
court where the liability findings were generally affirmed although the sanctions were often
reduced. Id. at 320. Later, plaintiff Johnson filed a § 1983 First Amendment retaliation claim,
alleging the Department and others had prosecuted him in retaliation for his protected speech and
because he refused to make a large enough contribution to the Agriculture commissioner's
reelection campaign.
On appeal, the Fifth Circuit analyzed plaintiff Johnson's § 1983 First Amendment claim
predicated on retaliatory administrative proceedings as one for malicious prosecution in violation
of his First Amendment rights. Id. In affirming the dismissal of plaintiff's § 1983 First
Amendment retaliation claim, the Fifth Circuit said that, "if the First Amendment protects
against malicious prosecution," plaintiff Johnson "must not only allege a deprivation of a
constitutional right but must also establish all the elements of the common law tort action" of
malicious prosecution. Id. The Fifth Circuit affirmed because plaintiff Johnson had "failed to
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In sum, even before the probable cause decisions in Hartman and Nieves,
other circuits were considering whether the underlying civil lawsuit was frivolous
before allowing a plaintiff to move forward on a § 1983 First Amendment
retaliation claim predicated on that civil lawsuit. With this extensive background,
we return to this case.
III. ISSUES ON APPEAL
The parties primarily focus on two issues: (1) whether plaintiff DeMartini in
her § 1983 First Amendment retaliation claim predicated on an underlying civil
lawsuit is required to plead and prove the absence of probable cause for that civil
lawsuit; and (2) if so, whether the Town lacked probable cause to initiate its civil
RICO lawsuit against DeMartini.
DeMartini argues that her § 1983 First Amendment retaliation claim is
governed by Lozman, which held that plaintiff Lozman could bring a § 1983 First
Amendment retaliation claim for retaliatory arrest even though there was probable
cause for his arrest. DeMartini contends that the circumstances of her case are like
those in Lozman because the record amply demonstrates the Town adopted an
official municipal policy of retaliation against her. DeMartini argues Hartman's
and Nieves's probable cause requirement does not apply because the Town
satisfy the common law requirement that `the underlying criminal proceeding ... terminate in
the plaintiff's favor."' Id. at 320-21.
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unanimously voted to bring its RICO civil action "for the sole purpose of stopping
the protected activity" of filing public records requests and lawsuits.
Alternatively, even if Hartman and Nieves's probable cause requirement
applies, DeMartini argues that the Town lacked probable cause for its RICO
lawsuit. DeMartini contends that the Town's RICO action was "baseless" and
frivolous given Eleventh Circuit precedent that a threat to file a civil lawsuit is not
a valid RICO predicate.
Not surprisingly, the Town responds that the "causation landscape" here is
more similar to that in Hartman because attorneys here functioned in the same role
as that of a prosecutor in Hartman. Just as the dual actors in Hartman, the
individuals filing the civil lawsuit (outside counsel) were not the same individuals
allegedly harboring the animus (the Town's Commissioners). The Town also
stresses, however, that the Supreme Court limited Lozman to its unique factors,
several of which are missing here. And like the Supreme Court did in Nieves, this
Court should look to the closest common law analog to DeMartini's First
Amendment retaliation claim based on a civil lawsuit, which is a claim for
"wrongful institution of legal process" and also requires proving the want of
probable cause.
If DeMartini is correct that the Town lacked probable cause to file its civil
RICO lawsuit, we would not have to address whether the presence of probable
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cause defeats DeMartini's § 1983 First Amendment retaliation claim as a matter of
law. Thus, we first examine whether the Town had probable cause to file its civil
RICO lawsuit.
IV. TOWN'S PROBABLE CAUSE FOR ITS CIVIL LAWSUIT
"Probable cause to institute civil proceedings requires no more than a
`reasonabl[e] belie[f] that there is a chance that [a] claim may be held valid upon
adjudication."' Prof l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc.,
508 U.S. 49, 62-63, 113 S. Ct. 1920, 1929 (1993) (alternations in original)
(quoting Restatement (Second) of Torts § 675, cmt. E (Am. Law Inst. 1977)).
Therefore, "it is not necessary to show that the instigator of a lawsuit was certain
of the outcome of the proceeding, but rather that he had a reasonable belief, based
on the facts and circumstances known to him, in the validity of the claim." Mee
Indus. v. Dow Chem. Co., 608 F.3d 1202, 1211 (1 lth Cir. 2010) (quotation marks
omitted). This standard, which requires less certainty than probable cause as
defined in the criminal context, is "not a high bar to meet." Id. at 1218.
To establish a RICO violation under § § 1962(c) and 1964(c), the Town had
to prove that DeMartini engaged in "an enterprise ... through a pattern ... of
racketeering activity that included at least two racketeering acts" that caused injury
to the Town's "business or property." See Ray v. Spirit Airlines, Inc., 836 F.3d
1340, 1348 (llth Cir. 2016) (quotations omitted). For RICO purposes, a
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"racketeering act" must constitute a violation of one of the laws described in 18
U.S.C. § 1961(1). Raney, 370 F.3d at 1087. Those laws include extortion, mail
fraud, and wire fraud, among other crimes. 18 U.S.C. § 1961(1). In support of its
RICO action, the Town alleged that the RICO co-conspirators had engaged in
(1) extortion as defined by the Hobbs Act, 18 U.S.C. § 1951, and (2) mail and wire
fraud in violation of 18 U.S.C. §§ 1341, 1343.
Importantly, prior to filing its RICO action, the Town obtained substantial
information that supported a reasonable belief that CAFI, O'Boyle, the O'Boyle
Law Firm, and other individuals including DeMartim had committed fraud
through their participation in an extortionate scheme involving fraudulent public
records requests, false settlement demands, and subsequent multiple lawsuits
designed to obtain attorney's fees as opposed to the requested records. See Mee,
608 F.3d at 1211. Specifically, upon resigning as Executive Director of CAFI,
Chandler provided sworn testimony to Sweetapple, the Town's special counsel,
indicating that CAFI, O'Boyle, the O'Boyle Law Firm, and DeMartini were
engaged in a fraudulent and unlawful effort to extort money from the Town via a
public records litigation "windfall scheme." As described by Chandler, the scheme
involved two steps: (1) pummeling the Town with voluminous and intentionally
vague public records requests that were designed to elicit either no response, an
incomplete response, or an untimely response, and then (2) demanding that the
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Town pay an excessive settlement to avoid litigation under Florida's public records
law, including demanding attorney's fees in excess of the fees and costs the
O'Boyle Law Firm actually incurred to settle the case.
Furthermore, Chandler specifically implicated DeMartini in the scheme,
describing to special counsel Sweetapple her key role within CAFI and the
O'Boyle Law Firm, her importance to O'Boyle's operations, and her direct
participation in the extortionate activities.
DeMartini does not dispute that employees of CAFI and the O'Boyle Law
Firm dumped thousands of public records requests on the Town —costing the
Town $370,000 in attorney's fees. For a Town of about 1,000 people, those
attorney's fees equaled about $370 per resident. Nor does DeMartini contest that
the Town had hired an attorney —Gerald Richman —who investigated the O'Boyle -
led scheme for over a year. Nor does DeMartini contest that the Town's
investigation kicked into high gear when Chandler left his post as CAFI's
Executive Director and reported his concerns about CAM's fraudulent scheme to
Town officials in extensive written and videotaped statements. And DeMartini
does not dispute that Chandler gave detailed insight into the scheme, including that
CAFI was deliberately making vague public records requests so that the O'Boyle
Law Firm could garner thousands of dollars in attorney's fees.
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Likewise, DeMartini fails to contest certain details concerning what the
Town knew about her personal involvement in CAM's scheme. For example,
DeMartini does not contest that she participated in the O'Boyle -led scheme, with
O'Boyle describing her as his "left hand." Indeed, Chandler provided the Town
with emails showing DeMartini's alleged role at CAFI and the O'Boyle Law Firm.
Nor does DeMartini deny that Chandler informed the Town's officials that
DeMartini was pressuring him to come up with 25 lawsuits per week and chastised
him for his proposal to refer CAFI's work to other law firms besides the O'Boyle
Law Firm. Nor does DeMartini deny that Chandler told the Town that he was
troubled by CAFI's policy that permitted DeMartini—a non -lawyer —to authorize
public record requests and litigation.
Instead, DeMartini makes two primary objections to the district court's
finding that the Town had probable cause to file its civil RICO lawsuit: (1) the
Town should not have relied on Chandler's sworn testimony because he might not
be viewed as a credible witness in the case; and (2) settled precedent in the
Eleventh Circuit clearly established that frivolous litigation can never serve as a
Hobbs Act violation, even if the plaintiff was using the litigation for extortionate
purposes. Neither contention has merit.
As to the first objection, while it is true that the Town might rightly have
considered how a jury might view Chandler's testimony in a RICO lawsuit —given
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that he was previously a vocal supporter of public records requests and had sued
municipalities for public records requests in his past role as a director at CAFI—
the Town and its outside counsel never questioned Chandler's veracity or
reliability about the inner workings of CAFI. And it was this inside -knowledge
that gave great heft to the Town's allegations in its RICO complaint. Indeed, given
that Chandler had worked as CAFI's Executive Director, he had first-hand
knowledge of O'Boyle and DeMartim's scheme, and his affidavits corroborated
much of what the Town had already suspected after being the target of over a
thousand public records requests from CAFI. Accordingly, because Chandler had
a strong basis for his personal knowledge, the Town reasonably relied on his sworn
statements to form their reasonable belief that the whole scheme was designed
solely to extort monies from the public coffers.
As to DeMartini's second objection, she argues that this Court's precedent in
Pendergraft and Raney precluded the Town's theory that a RICO action could be
based on DeMartini's litigation activity, and thus eliminated any probable cause it
may have had for asserting a RICO claim. We reject DeMartini's argument.
Pendergraft and Raney made it unlikely, but not impossible, for the Town to
succeed. The Town had a reasonable belief that there was a legitimate and
material distinction between their RICO claim and the ones that came before it in
that O'Boyle, DeMartim, and others had abused their statutory right to request
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public documents from the government "on a grand scale." Gulf Stream, 654 F.
App'x at 444. Given the huge number of requests and the obvious pattern that they
were being filed to strip the Town of money while allowing the O'Boyle Law Firm
to profit handsomely, it was not unreasonable for the Town to believe in good faith
that this Court might carve out an exception to the general rule. See Prof 1 Real
Estate Inv'rs., 508 U.S. at 65, 113 S. Ct. at 1930-31 ("Even though it did not
survive PRE's motion for summary judgment, Columbia's copyright action was
arguably `warranted by existing law' or at the very least was based on an
objectively `good faith argument for the extension, modification, or reversal of
existing law."' (quoting Federal Rule of Civil Procedure 11)). In fact, the Town
cited to out -of -circuit caselaw in which actual or threatened litigation was
acknowledged to be a component of the activities giving rise to a RICO claim.
Moreover, distinguishing existing precedent is the essence of good lawyering. See
Armco, Inc. v. S. Rock, Inc., 778 F.2d 1134, 1138 (5th Cir. 1985) (finding that the
defendant had probable cause to file a civil lawsuit because, even though it
suspected "it would eventually lose," the defendant plausibly distinguished
existing case law). The Town had a mountain of fraudulent and extortionate
conduct to present in the hopes of creating an exception to the general rule in
Pendergraft and Raney. Consequently, there is no merit to DeMartini's contention
that the Town lacked a reasonable belief that it might prevail in the RICO lawsuit.
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Simply put, the Town did not need to be certain of success on its civil RICO
claim in order to have probable cause to assert it. See Mee, 608 F.3d at 1211. Our
inquiry is whether all of the facts and circumstances available to the Town —
including Chandler's extensive sworn testimony —gave the Town a reasonable
belief that it had a tenable RICO claim against DeMartini. Id. We conclude the
Town had such a reasonable belief.
Although the district court and this Court ultimately rejected the Town's
proffered distinction, its argument was not unreasonable, as probable cause may be
based on "an objectively `good faith argument for the extension, modification, or
reversal of existing law."' See Prof 1 Real Estate Inv'rs, 508 U.S. at 65, 113 S. Ct.
at 1930-31. Consequently, the Town had a reasonable basis to believe its claim
was valid.19
Indeed, while this Court affirmed on appeal the district court's dismissal of
the Town and Wantman's civil RICO complaint, we denied the defendants' motion
for sanctions under Federal Rule of Appellate Procedure 38. Gulf Stream, 654 F.
App'x at 445 n.7. Rule 38 provides that "[i]f a court of appeals determines that an
appeal is frivolous, it may ... award just damages and single or double costs to the
19We note that our prior panel decision now having decided that a civil RICO claim does
not lie here based on the facts of this case, the Town would presumably lack probable cause
should it seek again to file another civil RICO lawsuit against persons filing public records
requests and related lawsuits, even if the requests were filed in bad faith with the motivation
behind the claims being to extort money.
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appellee." Fed. R. App. P. 38. In so ruling, we rejected defendants' argument that
the appeal was frivolous in light of Pendergraft and Raney. Gulf Stream, 654 F.
App'x at 445 n.7. For all of these reasons, we conclude that the Town had
probable cause to file the civil RICO lawsuit.
V. WHETHER PROBABLE CAUSE DEFEATS DEMARTINI'S
RETALIATION CLAIM
Because the Town had probable cause to file its civil RICO lawsuit, we must
answer the final question: whether the existence of probable cause for a civil
lawsuit defeats a § 1983 First Amendment retaliation claim predicated on that
underlying civil lawsuit.
Based on the factors discussed in the Supreme Court's Hartman and Nieves
decisions, we conclude that, as with § 1983 First Amendment retaliation claims
arising in the criminal prosecution and arrest context, the presence of probable
cause will generally defeat a § 1983 First Amendment retaliation claim based on a
civil lawsuit as a matter of law. See Hartman, 547 U.S. at 260-61, 265-66, 126 S.
Ct. at 1704, 1706-07; Nieves, 587 U.S. at _, 139 S. Ct. at 1726. This principle
will particularly be apt when the alleged retaliatory civil ligation by the
government is itself taken as a reasonable response to the plaintiff's own litigation,
or threat of litigation, against the government. Just as a citizen may have the right
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to sue the government, the government likewise has the right, and duty, to engage
in legitimate responsive litigation to defend itself against such challenges.
In a First Amendment claim predicated on a retaliatory civil lawsuit by the
government, the causation landscape is akin to that in Hartman because an attorney
(whether in-house or outside counsel) has filed the underlying civil lawsuit.
Notably, before taking action here, the Town engaged attorneys to investigate
CAFI, O'Boyle, and DeMartini's public records scheme. The involvement of
counsel widens the causation gap between any alleged retaliatory animus by the
Town and DeMartim's injury. Counsel's pivotal role in advising the Town that it
had a good faith basis to sue supports a requirement that DeMartini show the
absence of probable cause for the Town's underlying lawsuit in order to establish
that the Town's alleged animus caused DeMartini's injury. Like the prosecutor in
Hartman who filed the criminal action, the individuals recommending and filing
the civil lawsuit here (counsel) were not the same individuals who allegedly
harbored the retaliatory animus (the Town's Commissioners).
In fact, two separate outside attorneys, Robert Sweetapple and Gerald
Richman, conducted investigations, evaluated the facts, and only then
independently recommended the filing of the civil RICO lawsuit. Like the
prosecutor in Hartman, Sweetapple and Richman were obligated to exercise their
own individual judgment and were bound by the Florida Rules of Professional
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Conduct. Specifically, they were each (1) required to "exercise independent
professional judgment and render candid advice" to the Town, (2) limited to the
filing of a claim having "a basis in law and fact ... that is not frivolous," and
(3) prohibited from "us[ing] the law's procedures ... to harass and intimidate
others." See R. Reg. Fla. Bar, 4-2.1, 4-3.1, Preamble.
Counsel's investigation, legal recommendation, and filing of the RICO
lawsuit widen the causal gap between the Town's alleged animus and DeMartini's
injury. At bottom, as in Hartman, difficulty in proving the more complex chain of
causation here supports a conclusion that a lack of probable cause is a necessary
element in DeMartini's § 1983 First Amendment retaliation claim. As in
retaliatory criminal prosecution cases, the absence of probable cause is necessary
to bridge the gap between the defendant's alleged animus and plaintiff's injury.
See Hartman, 547 U.S. at 259, 126 S. Ct. at 1703 ("[T]he need to prove a chain of
causation from animus to injury, with details specific to retaliatory -prosecutions
cases.... provides the strongest justification for the no -probable -cause
requirement."). And as in Hartman, the absence of probable cause will have high
probative force and adds little to no cost, as the facts surrounding the Town's prior
civil RICO lawsuit are already known by DeMartini.
In addition, in § 1983 First Amendment cases predicated on a retaliatory
civil lawsuit, the fact that probable cause existed to bring the underlying civil
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lawsuit shows that the defendant had a legitimate interest in considering the
plaintiff's speech in the first place. For example, here, the protected speech that
the Town allegedly retaliated against here —the nearly 2,000 abusive public
records requests and 36 lawsuits —was the same conduct (or protected speech) for
which the Town had its own legitimate, objective reasons and motivation for
challenging by filing its civil RICO lawsuit. Unlike in other retaliation cases, in
addition to having legal probable cause for its civil RICO lawsuit, the Town had a
legitimate, objective factual reason and motivation for considering CAFI and
DeMartini's public records requests and lawsuits in deciding to file the civil RICO
lawsuit. The Town's action was made in response to what it reasonably believed
were the abusive intent and practices underlying CAM and DeMartini's harassing
public records requests and related lawsuits. While public records requests and
lawsuits typically constitute protected speech under the First Amendment, here the
Town had a legitimate interest and motivation in protecting itself, its coffers, and
its taxpaying citizens —independent of any motivation to retaliate —by litigation
against CAFI and DeMartini.
To that end, it is clear that: (1) CAFI had filed nearly 2,000 public records
requests and 36 lawsuits; (2) its requests were not designed to actually obtain the
records but to enable CAFI to obtain money through settlements and excessive
attorney's fees; and (3) the Town had spent $370,000 in attorney's fees in
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responding to CAM's requests and lawsuits, which were bleeding the Town's
coffers dry, one abusive lawsuit at a time. Nor is this a case where the government
was attempting to thwart a citizen from using public records laws to prevent the
citizen from validly obtaining public information. Neither CAFI nor DeMartini
have pointed to any public information that the Town ever withheld or that they
were unable to obtain. Rather, given CAFI and DeMartini's sustained pattern of
abusive requests and lawsuits, the Town's elected officials had a legitimate,
objective reason to take legal action in response to CAFI's conduct —conduct that
it reasonably believed was part of an illegal and fraudulent scheme to improperly
extort settlement money and attorney's fees.
Further, that DeMartini's protected speech was a "wholly legitimate
consideration" for the Town when deciding to file the civil RICO lawsuit also
renders the causation landscape more complex, just like it did in Nieves. Indeed,
as the Supreme Court recognized in Nieves, where protected speech is a "wholly
legitimate consideration" for the government when deciding to act, as when a
subject's speech is itself a proper basis for the arrest, "the causal inquiry is
complex," such that, generally speaking, probable cause is a necessary element of a
retaliatory arrest claim. See Nieves, U.S. at , 139 S. Ct. at 1723-24 (internal
quotation marks omitted). Here, in considering its available litigation responses to
DeMartini, the Town necessarily had to consider her record requests and
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lawsuits —protected speech though it may be —and the surrounding circumstances.
Therefore, like in Nieves, the causal complexity warrants that a plaintiff, like
DeMartini, must plead and prove the absence of probable cause for her First
Amendment retaliation claim to move forward. Otherwise, it would be extremely
difficult, if not impossible, to determine whether the filing of the RICO lawsuit
was caused by the Town's legitimate consideration of the protected speech, its
alleged retaliatory animus, or both.
This type of First Amendment retaliation case —one predicated on an
underlying civil lawsuit that the government had probable cause to bring —requires
our Court to address the intersection of (1) the fundamental principles that prohibit
the government from retaliating against a citizen for exercising her First
Amendment rights to free speech and to petition the government for redress; and
(2) other principles that define a government's access to the court to file lawsuits to
remedy wrongs on behalf of its citizens. That CAFI's fraudulent scheme involved
conduct protected by the First Amendment does not, in and of itself, mean that
§ 1983 automatically exposed the Town to strict liability civil damages because it
took action to protect itself from that fraud. The imposition of strict liability on the
government when the government has legitimate and objective reasons, based on
probable cause, to initiate the underlying lawsuit is not warranted, as outlined
above.
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For all of these reasons, we conclude that applying the objective, lack -of -
probable -cause requirement to a § 1983 First Amendment retaliation case
predicated on the filing of a civil lawsuit is appropriate because it strikes the proper
balance between protecting a plaintiff's important First Amendment rights while,
at the same time, ensuring that the Town has a similar ability to access the courts to
protect itself and its citizens from non -meritorious litigation. Therefore, the
presence of probable cause will generally defeat a plaintiff s § 1983 First
Amendment retaliation claim predicated on an underlying civil lawsuit, or
counterclaim for that matter.
Lastly, we must discuss whether there are possible exceptions to this general
rule. To date, the Supreme Court has not identified any exceptions to the no -
probable -cause requirement in § 1983 First Amendment retaliation claims
predicated on criminal prosecutions. Arguably, retaliation claims predicated on
prior civil lawsuits would not be subject to exceptions either.
We recognize, however, that the Supreme Court has, in two cases, identified
potential exceptions to the no -probable -cause requirement in § 1983 First
Amendment retaliation claims predicated on a criminal arrest. First, in Nieves, the
Supreme Court acknowledged a potential exception when a retaliatory -arrest
plaintiff not only establishes the arresting officer's retaliatory animus but also
presents objective evidence that the plaintiff was arrested when people who had
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committed the same conduct, but who had not engaged in the same sort of
protected speech, had not been arrested by that officer. Nieves, 587 U.S. at —, 139
S. Ct. at 1727. Second, in Lozman, the Supreme Court delineated five "unique"
factual circumstances, which, if proven, would combine together to create an
exception to the general no -probable -cause requirement for a plaintiff bringing a
First Amendment retaliation claim predicated on retaliatory arrest. Lozman, 585
U.S. at , 138 S. Ct. at 1949, 1954-55.
Whatever role these exceptions, articulated in a retaliatory arrest context,
might play in a case in which the plaintiff is alleging that a retaliatory civil lawsuit
has been filed against her, it is clear they play no role here. As to any Nieves
exception, there is no claim or evidence that other individuals engaged in similar
conduct, without ramifications, as did DeMartini and CAFI when they carried out
the fraudulent public records request scheme.
And, in any event, Lozman is so materially different from this case that its
five -pronged exception would not apply either. Pivotal factual ingredients to
Lozman's holding are missing here. In Lozman, the speech allegedly retaliated
against —the prior open meeting lawsuit and criticisms of city officials —occurred
five months earlier and was not the same conduct that, the defendant City claimed,
gave rise to Lozman's arrest. See id. at —, —, 138 S. Ct. at 1949, 1954-55. The
Lozman Court found this fact persuasive because it circumvented the difficulties in
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the type of retaliation claims the Supreme Court had been concerned about, that is,
arrests very close in time to the protected speech, where it would be difficult, if not
impossible, to tell whether the arrest "was caused by the officer's legitimate or
illegitimate consideration of speech."20 Id. at_, 138 S. Ct. at 1953.
Because the speech the Town allegedly retaliated against here —the public
records requests and subsequent lawsuits —was the same protected speech for
which the Town filed a civil lawsuit supported by probable cause, DeMartini's
retaliation claim is precisely the type of claim that the Supreme Court in Lozman
was concerned would prove indecipherable for purposes of proving causation and
therefore would create a serious risk of "dubious" First Amendment retaliatory
claims. See id.
In addition, the Supreme Court assumed for purposes of its decision that the
City's ordering of Lozman's arrest was not a legitimate response to Lozman's five -
months -earlier open meetings lawsuit and criticisms. As the Supreme Court
explained, "it is difficult to see why a city official could have legitimately
considered [at the time of arrest] that Lozman had, months earlier, criticized city
officials or filed a lawsuit against the City." Id. at , 138 S. Ct. at 1954. In
contrast, the Town here had a legitimate, non -retaliatory litigation purpose in
20The separation in time and type of conduct would purportedly allow the jury to readily
decide if plaintiff Lozman's arrest was due to Lozman's conduct at the meeting or due to
Lozman's prior lawsuit and criticisms five months earlier.
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considering CAM and DeMartini's public records requests and lawsuits at the time
it filed its civil RICO lawsuit. Namely, to stem the hemorrhaging of public
resources that DeMartini's bad faith requests had caused. Further, the Town
engaged attorneys who investigated, recommended, and filed the Town's RICO
lawsuit. There was no similar counsel in Lozman to complicate the causation
chain.
Accordingly, because the factual circumstances in Lozman are so materially
distinguishable from this case and because the Supreme Court carefully limited its
Lozman decision to its "unique facts," we conclude that Lozman's exception to the
no -probable cause requirement does not help DeMartini's First Amendment
retaliation claim, even if it were potentially applicable.
For all of these reasons and under the totality of the circumstances, we
conclude that DeMartini has not shown that the district court erred in granting
summary judgment to the Town on her § 1983 First Amendment retaliation claim
predicated on the Town's civil RICO lawsuit."
21 Separate from the elements of a First Amendment retaliation claim, all plaintiffs who
sue a municipality under § 1983 must show that execution of the municipality's policy or custom
caused the alleged injury. Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 694-95,
98 S. Ct. 2018, 2037-38 (1978); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106
S. Ct. 1292, 1298 (1986) (explaining that, in order to recover under § 1983, the plaintiff suing the
municipality must show that the "municipality has officially sanctioned or ordered" the action
causing the alleged injury). A plaintiff may show a municipality's policy or custom in several
ways, including (1) showing the municipality's action was "an official policy enacted by [the
municipality's] legislative body"; (2) demonstrating that a "final policymaker[] ... acquiesced in
a longstanding practice that constitutes the entity's standard operating procedure; or (3) proving
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Our conclusion —that probable cause generally defeats a First Amendment
retaliation claim predicated on an underlying civil lawsuit —is also confirmed by
common-law doctrine. The Supreme Court has instructed that, "[w]hen defining
the contours of a claim under § 1983, we look to common-law principles that were
well settled at the time of its enactment." Nieves, 587 U.S. at , 139 S. Ct. at
1726 (quotation marks omitted); Manuel v. City of Joliet, Ill., 580 U.S. at —, 137
S. Ct. 911, 921 (2017) (stating that common-law principles guide the definition of
§ 1983 claims); Kalina v. Fletcher, 522 U.S. 118, 123, 118 S. Ct. 502, 506 (1997)
(examining common-law doctrine when identifying the elements of the § 1983
cause of action and defenses available to state actors).
The Supreme Court has told us that when § 1983 was enacted in 1871, there
was no common-law tort for retaliatory arrest based on First Amendment protected
speech, and thus we should look to the common-law torts that provide the "closest
analogy" to such retaliatory arrest claims. See Nieves, 587 U.S. at —, 139 S. Ct. at
1726 (internal quotation marks omitted). In Nieves, rather than deciding whether a
common-law malicious prosecution claim or a false imprisonment claim was the
"a subordinate public official [made] an unconstitutional decision" that was "then adopted by
someone who does have final policymaking authority." Hoefling vCity of Miami, 811 F.3d
1271, 1279 (1 Ith Cir. 2016) (quotation marks omitted).
In this case, DeMartini relies on the first method to proceed against the Town under
Monell. Because our probable cause holding decides this case, we need not, and do not, address
whether the Town's vote did or did not satisfy the threshold Monell showing of an existence of
an official policy.
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better analog to a retaliatory arrest claim, the Supreme Court concluded that the
presence of probable cause defeated both types of claims at common law and
would generally defeat a First Amendment retaliatory arrest claim. Id. at _, 139
S. Ct. at 1726-27.
Similarly, in DeMartini's case, there was no common-law tort for a First
Amendment retaliatory civil lawsuit claim when § 1983 was enacted. Yet Nieves's
guidance leads us to ask what "common law tort[] ... provide[s] the `closest
analogy"' to a § 1983 First Amendment retaliation claim predicated on an
underlying retaliatory civil lawsuit? See Nieves, 587 U.S. , 139 S. Ct. at 1726
(quoting Heck v. Humphrey, 512 U.S. 477, 484, 114 S. Ct. 2364, 2371 (1994)).
The closest analogy to DeMartini's § 1983 First Amendment retaliation
claim is a "wrongful civil proceedings" claim. See Prof 1 Real Estate Inv'rs, 508
U.S. at 62, 113 S. Ct. at 1929. As the Supreme Court has explained, "[t]he notion
of probable cause, as understood and applied in the commonlaw tort of wrongful
civil proceedings, requires the plaintiff to prove that the defendant lacked probable
cause to institute an unsuccessful civil lawsuit and that the defendant pressed the
action for an improper, malicious purpose." Id. Likewise, the Restatement
(Second) of Torts defines the tort of wrongful civil proceedings as:
One who takes an active part in the initiation, continuation or
procurement of civil proceedings against another is subject to liability
to the other for wrongful civil proceedings if (a) he acts without
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probable cause, and primarily for a purpose other than that of securing
the proper adjudication of the claim in which the proceedings are based,
and (b) except when they are ex parte, the proceedings have terminated
in favor of the person against whom they are brought.
§ 674 (Am. Law. Inst. 1977) (emphasis added).
It has long been settled law, and DeMartini does not dispute, that wrongful
civil proceedings claims require proving the absence of probable cause. See T.
Cooley, Law of Torts 187-89 (1879); Prof 1 Real Estate Inv'rs, 508 U.S. at 63, 113
S. Ct. at 1929 ("Because the absence of probable cause is an essential element of
the tort, the existence of probable cause is an absolute defense." (citing Crescent
City Live Stock Co. v. Butchers' Union Slaughter —House Co., 120 U.S. 141, 149,
7 S. Ct. 472, 476 (1887)). Our holding here —that probable cause defeats
DeMartini's § 1983 First Amendment retaliation claim —is also consistent with,
and supported by, this common law.
VI. FLORIDA MALICIOUS PROSECUTION
On appeal, DeMartini also argues that the district court erred in granting
summary judgment to Wantman on her malicious prosecution claim under Florida
law. Although DeMartini agrees that the "lack of probable cause" is a necessary
element of a Florida malicious prosecution claim, she nevertheless argues that
Wantman lacked such probable cause to file the civil RICO lawsuit against her.
Case: 17-14177 Date Filed: 11/21/2019 Page: 67 of 73
To prevail on a common-law tort of malicious prosecution under Florida
law, a plaintiff must establish the following elements:
(1) an original criminal or civil judicial proceeding against the present
plaintiff was commenced or continued; (2) the present defendant was
the legal cause of the original proceeding against the present plaintiff
as the defendant in the original proceeding; (3) the termination of the
original proceeding constituted a bona fide termination of that
proceeding in favor of the present plaintiff, (4) there was an absence of
probable cause for the original proceeding; (5) there was malice on the
part of the present defendant; and (6) the plaintiff suffered damage as a
result of the original proceeding.
Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994) (emphasis
added); Durkin v. Davis, 814 So. 2d 1246, 1248 (Fla. Dist. Ct. App. 2002); see
Paez, 915 F.3d at 1291-92 (discussing these same elements of the common-law
tort of malicious prosecution available under Florida law). The failure of a
plaintiff to establish any one of these six elements is fatal to a claim of malicious
prosecution. Mancusi, 632 So. 2d at 1355. Thus, as a necessary element, the
existence of probable cause will defeat a claim for malicious prosecution. Id.
Under Florida law, to show probable cause to initiate a civil proceeding, "it
is not necessary to show that the instigator of a lawsuit was certain of the outcome
of the proceeding, but rather that he had a reasonable belief, based on facts and
circumstances known to him, in the validity of the claim." Wright v. Yurko, 446
So. 2d 1162, 1166 (Fla. Dist. Ct. App. 1984). Stated another way, "the instigator
must have had `[a] reasonable ground of suspicion, supported by circumstances
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sufficiently strong in themselves to warrant a cautious man in the belief that the
person accused is guilty of the offense with which he is charged."' Mee, 608 F.3d
at 1211 (alteration in original) (quoting Goldstein v. Sabella, 88 So. 2d 910, 911
(Fla. 1956)). A lack of probable cause can be shown "[w]here it would appear to a
`cautious man' that further investigation is justified before instituting a
proceeding," and such investigation is not undertaken. Harris v. Lewis State B
482 So. 2d 1378, 1382 (Fla. Dist. Ct. App. 1986).
In the context of a civil suit, probable cause is "measured by a lesser
standard than in a criminal suit." Wright, 446 So. 2d at 1166. And the Florida
Supreme Court has explained that "[w]hat facts and circumstances amount to
probable cause is a pure question of law," while the existence of those facts or
circumstances "in any particular case is a pure question of fact." City of Pensacola
v. Owens, 369 So.2d 328, 330 (Fla. 1979) (internal quotation marks omitted).
Here, the district court properly granted summary judgment to Wantman on
DeMartini's malicious prosecution claim because Wantman, like the Town, had
probable cause to file the RICO suit against her. It is undisputed that: (1) Gerald
Richman represented the Town and Wantman in the lawsuit; (2) Richman
investigated CAFI's fraudulent scheme at length; (3) Richman called Wantman
about the lawsuit; and (4) Wantman agreed to join the Town in filing the lawsuit
based on discussions with Richman. Indeed, based on a year -long investigation,
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including reviewing Chandler's statements, Richman had obtained substantial
information that supported a reasonable belief that CAFI, O'Boyle, the O'Boyle
Law Firm, and other individuals —including DeMartini—had committed fraud
through their participation in an extortionate scheme involving fraudulent public
records requests, false settlement demands, and subsequent multiple lawsuits
designed to obtain attorney's fees as opposed to the requested records."
We recognize that DeMartini stresses that Wantman's President and Federal
Rule of Civil Procedure 30(b)(6) representative, David Wantman, testified at his
deposition that (1) he had "no idea" who DeMartini was, and (2) aside
from discussing the matter with attorney Richman, Wantman did not independently
investigate DeMartini's role in CAFI's fraudulent scheme. But the fact remains
that DeMartini does not dispute that Richman investigated CAM's scheme, advised
the Town and later Wantman about that scheme, and Wantman only agreed to join
the lawsuit after discussions with Richman.
Arising from their attorney —client relationship, Wantman and Richman had a
principal and agent relationship. See Durrett v. Jenkins Brickyard, Inc., 678 F.2d
911, 916 (11th Cir. 1982) (explaining that an attorney is his client's agent and
22As noted earlier, DeMartini also brought a claim for malicious prosecution against
Gerald Richman. The district court granted summary judgment to Richman on that claim
because DeMartini failed to cite evidence from which a reasonable jury could infer that Richman
lacked probable cause for filing the RICO civil lawsuit. On appeal, DeMartini does not
challenge that ruling.
69
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representative). Information obtained by an agent is imputed to the agent's
principal. See First Ala. Bank of Montgomery, N.A., First State Ins. Co., 899 F.2d
1045, 1074, 1079 (1 lth Cir. 1990) (stating that generally the agent's knowledge is
imputed to the principal and is treated as the principal's knowledge). Everything
that Richman knew about DeMartini's role in the scheme was imputed to
Wantman. Accordingly, Wantman had probable cause to file the RICO suit
against DeMartini.23
VII. CONCLUSION
For the foregoing reasons, we affirm the district court's grant of summary
judgment to the Town on DeMartini's § 1983 First Amendment retaliation claim
and to Wantman on her Florida malicious prosecution claim.
AFFIRMED.
23The district court properly denied DeMartini's cross -motion for summary judgment
against Wantman. As described above, there is no genuine issue of material fact that Wantman
had probable cause to file the RICO action.
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ROSENBAUM, Circuit Judge, concurring:
I concur in much of the panel's well -reasoned opinion. I write separately to
address the Majority Opinion only to the extent that it might be understood to suggest
that probable cause supporting the filing of a civil lawsuit predicated on prior civil
litigation may be all that is ever required to defeat a § 1983 First Amendment
retaliation claim. See Maj . Op. at 60 ("To date, the Supreme Court has not identified
any exceptions to the no -probable -cause requirement in § 1983 First Amendment
retaliation claims predicated on criminal prosecutions. Arguably, retaliation claims
predicated on prior civil lawsuits would not be subject to exceptions either."). With
any such suggestion, I firmly disagree.
Presumably, the Majority Opinion bases any suggestion that a finding of
probable cause may be all that is ever required in a case such as this one on Hartman
v. Moore, 547 U.S. 250 (2006), since that is the sole alleged retaliatory criminal -
prosecution case it discusses. But Hartman does not stand for the proposition that a
showing of probable cause justifying a criminal prosecution necessarily forecloses a
First Amendment retaliation claim in all cases. To the contrary, Hartman expressly
explains that the showing of probable cause supporting a criminal prosecution "is
not necessarily dispositive." Id. at 265. That is so because "showing ... [the]
presence [of probable cause] does not guarantee that [retaliation] was not the but -for
fact in a prosecutor's decision." Id. Indeed, Hartman notes that "[a] prosecutor's
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disclosure of retaliatory thinking on his part ... would be of great significance ....
So would evidence that a prosecutor was nothing but a rubber stamp for his
investigative staff or the police." Id. at 264. Nevertheless, Hartman reasons,
because such incidents "are likely to be rare," it makes sense for the rule to provide
that probable cause supporting a criminal prosecution generally forecloses the
viability of a First Amendment retaliation suit. See id.
But criminal prosecutions can result in the loss of liberty, can affect
reputation, and can be costly to the person prosecuted. As a result, they can be an
effective way to punish a speaker with whom the government disagrees and to chill
and slow down others who would consider voicing their discontent with the
government. So Hartman explicitly leaves the door open for First Amendment
retaliation claims based on probable -cause supported criminal actions that would not
have been brought but for an intent on the part of the government to retaliate against
the defendant for engaging in protected First Amendment activity.
The same is true of civil lawsuits. Probable cause supporting the filing of a
civil lawsuit predicated on prior civil litigation may, as a general rule, be all that is
required to defeat a § 1983 First Amendment retaliation claim. But civil litigation
is costly and stressful. It can also result in delays to the matters being litigated. So
like a criminal prosecution, litigation can also be a highly effective way to punish
and chill protected First Amendment activity.
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To ensure that the government is never permitted to weaponize litigation to
punish and chill protected speech, in every § 1983 First Amendment retaliation case
involving the filing of a lawsuit in response to prior civil litigation, even though
supported by probable cause, we must always at least evaluate the surrounding
circumstances, keeping in mind the considerations the Supreme Court has identified
in Hartman and in retaliatory -arrest cases such as Lozman v. City of Riviera Beach,
138 S. Ct. 1945 (2018), and Nieves v. Bartlett, 139 U.S. 1715 (2019). Of course, the
Majority Opinion did just that here, and it demonstrated why, in this case, those
considerations do not warrant an exception to the general rule that probable cause
supporting the filing of a lawsuit predicated on prior civil litigation defeats a § 1983
First Amendment retaliation claim. I therefore concur.
73
Renee Basel
From:scottmorgan75@gmail.com
Sent:Tuesday, November 1, 2016 3:12 PM
To:Joanne O'Connor; Hudson Gill; Trey Nazzaro
Subject:3-2-15 email re conference
From: scottmorgan75@gmail.com
Sent: Monday, March 02, 2015 2:37 PM
To: Robert Sweetapple ; Gerry Richman ; Eric Sodhi ; Joanne O'Connor
Subject: Telephone Conference- Gulf Stream v. O'Boyle et al.
Gerry,
Would you have your office schedule a status telephone conference for some time this week?
Thanks.
Scott W. Morgan
(561) 752-1936
1
Renee Basel
From:scottmorgan75@gmail.com
Sent:Tuesday, November 1, 2016 3:12 PM
To:Hudson Gill; Joanne O'Connor; Trey Nazzaro
Subject:3-3-15 email
From: scottmorgan75@gmail.com
Sent: Tuesday, March 03, 2015 5:14 PM
To: Dottie Costonis
Subject: Re: Telecon re GULF STREAM, TOWN OF - O'BOYLE, Et Al.
OK
Scott W. Morgan
HUMIDIFIRST
1315 Neptune Dr.
Boynton Beach, FL 33426
(561) 752-1936
From: Dottie Costonis
Sent: Tuesday, March 03, 2015 5:08 PM
To: joconnor@jonesfoster.com ; rsweetapple@sweetapplelaw.com ; mailto:cbailey@sweetapplelaw.com ;
mailto:scottmorgan75@gmail.com ; dsmith@sweetapplelaw.com
Cc: Gerald F. Richman ; Eric M. Sodhi
Subject: RE: Telecon re GULF STREAM, TOWN OF - O'BOYLE, Et Al.
Mr. Richman’s meeting is running late and he wanted to know if everyone would be available at 5:30p.m. for the call?
Please let me know if that will work for everyone.
Thanks,
-Rodney
Dottie Costonis / Legal Assistant to Gerald F. Richman
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
1
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3506
Email: DCostonis@richmangreer.com
www.RichmanGreer.com
U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and
cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service.
Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and
confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email
is prohibited. Please immediately notify us by email and delete the original message.
From: Dottie Costonis
Sent: Tuesday, March 03, 2015 3:38 PM
To: 'joconnor@jonesfoster.com'; 'rsweetapple@sweetapplelaw.com'; Cynthia Bailey (cbailey@sweetapplelaw.com); Scott
Morgan (scottmorgan75@gmail.com); dsmith@sweetapplelaw.com
Cc: Gerald F. Richman; Eric M. Sodhi
Subject: RE: Telecon re GULF STREAM, TOWN OF - O'BOYLE, Et Al.
Please see call-in information for Status Conference today at 5:15p.m. We can use call in number 561-803-3535;
Conference number: 652; Access Code: 250.
Thanks,
-Rodney
(Please let me know if there is an issue with time)
From: Dottie Costonis
Sent: Tuesday, March 03, 2015 12:42 PM
To: 'joconnor@jonesfoster.com'; 'rsweetapple@sweetapplelaw.com'; Cynthia Bailey (cbailey@sweetapplelaw.com); Scott
Morgan (scottmorgan75@gmail.com)
Cc: Gerald F. Richman; Eric M. Sodhi
Subject: RE: Telecon re GULF STREAM, TOWN OF - O'BOYLE, Et Al.
Good afternoon all,
Mr. Richman is available after 5p.m.(EST) today for the status conference. This looks like our only chance for this week
seeing that Mr. Richman is unavailable tomorrow and Mr. Sweetapple is out of town for deposition on Thursday and
Friday. Please let me know if this time works for you.
Thanks,
-Rodney
From: Dottie Costonis
Sent: Tuesday, March 03, 2015 10:51 AM
To: 'joconnor@jonesfoster.com'; 'rsweetapple@sweetapplelaw.com'; Cynthia Bailey (cbailey@sweetapplelaw.com); Scott
Morgan (scottmorgan75@gmail.com)
2
Cc: Gerald F. Richman; Eric M. Sodhi
Subject: RE: Telecon re GULF STREAM, TOWN OF - O'BOYLE, Et Al.
Good morning,
Please provide your availability for a status telephone conference for this week.
Thanks,
3
Renee Basel
From:scottmorgan75@gmail.com
Sent:Tuesday, November 1, 2016 3:11 PM
To:Hudson Gill; Joanne O'Connor; Trey Nazzaro
Subject:3-5-15 email
From: scottmorgan75@gmail.com
Sent: Thursday, March 05, 2015 11:24 AM
To: Ingrid Bascobert ; joconnor@jonesfoster.com ; Bill Thrasher ; grichman@richmangreer.com ; Eric Sodhi ; Robert
Sweetapple
Subject: Re: O'Hare/O'Boyle Public Records Requests
Thank you, Ingrid.
I forwarded your email to Eric.
This spreadsheet is interesting because it confirms a pattern of PRR activity. Using a 5 day work week and
removing holidays, these two men have, individually or through their agents, have maintained a fairly constant
stream of public records requests, averaging about 5 per day since September 2013.
Scott W. Morgan
(561) 752-1936
From: Ingrid Bascobert
Sent: Thursday, March 05, 2015 11:04 AM
To: joconnor@jonesfoster.com ; Bill Thrasher ; scottmorgan75@gmail.com ; grichman@richmangreer.com
Subject: O'Hare/O'Boyle Public Records Requests
Hello,
Attached is an excel spreadsheet of all the public records requests from O'Hare and O'Boyle from 2013-2015.
The excel doc includes a spreadsheet of each year (2013, 2014, 2015), as well as a spreadsheet with the total number of
requests, a spread sheet of high volume requests, and a spreadsheet of aliases used by both O'Hare and O'Boyle. I hope
this finds you well and that it is useful! Additonally, I do not have an email address for Mr. Eric Sohdi so I would greatly
appreciate it if one of you could forward this email to him. Thank you so much.
Regards,
____________________________________
INGRID B. BASCOBERT
Administrative Assistant
Sweetapple, Broeker & Varkas, P.L.
rd
20 SE 3 Street
Boca Raton, FL 33432
(561) 392-1230 (t) x. 306
(561) 394-6102 (f)
ibascobert@sweetapplelaw.com
1
STATEMENT OF CONFIDENTIALITY
The information in this e-mail is confidential and may be legally privileged. If you are not the named addressee, or if this
message has been addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate,
maintain, save or otherwise use this email. Please contact the sender at the above number immediately. Delivery of this
message to any person other than the intended recipient(s) is not intended in any way to waive privilege or
confidentiality.
2
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401
TOWN OF GULF STREAM
Appellant / Petitioner(s)
BY ORDER OF THE COURT:
November 02, 2017
CASE NO.: 411316-3386, 411316-3634
L.T. No.: 502016CA005437XXXXMBAG,
502014CA004474XXXXM B
v. MARTIN E. O'BOYLE, et al.
Appellee / Respondent(s)
ORDERED that the appellee, Martin O'Boyle's May 2, 2017 motion for attorney's
appellate fees is granted. On remand, the trial court shall set the amount of the attorney's
fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then
services rendered in connection with the filing of the motion, including, but not limited to,
preparation of a responsive pleading, shall be taken into account in computing the amount of
the fee.
Served:
cc: Robert A. Sweetapple
Kenneth R. Drake
Richard N. Conforti
ms
Elaine Johnson James
Daniel Desouza
Nickalaus Bernard Taylor
LOAN WEISSBLUM, Clerk
Fourth District Court of Appeal
Joanne M. O'Connor
Edward C. Nazzaro
Clerk Palm Beach
COURT
i FOURT11
Qr7 DISTRICC
Ln��
4
o F V�o
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TOWN OF GULF STREAM,
Appellant,
V.
MARTIN E. O'BOYLE, JONATHAN R. O'BOYLE,
WILLIAM RING, RYAN WITMER, CHRISTOPHER O'HARE,
DENISE DEMARTINI, PUBLIC AWARENESS INSTITUTE, INC.,
CITIZENS AWARENESS FOUNDATION, INC.,
OUR PUBLIC RECORDS, LLC, STOPDIRTY GOVERNMENT, LLC,
COMMERCE GROUP, INC., and THE O'BOYLE LAW FIRM, P.C., INC.,
Appellees.
Nos. 4D 16-3386 and 4D 16-3634
[November 2, 2017]
Consolidated appeal from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Donald W. Hafele and Richard L. Oftedal,
Judges; L.T. Case Nos. 502014CA004474XXXMB and
502016CA005437XXXMB.
Robert A. Sweetapple and Berkley S. Vitale of Sweetapple, Broeker 8v
Varkas, PL, Boca Raton, Joanne M. O'Connor of Jones, Foster, Johnston
& Stubbs, P.A., West Palm Beach, and Edward C. Nazzaro, Gulf Stream,
for appellant.
Elaine Johnson James of Elaine Johnson James, P.A., Palm Beach
Gardens, for appellee Martin E. O'Boyle.
Kenneth R. Drake and Richard N. Conforti of DeMahy, Labrador, Drake,
Victor, Rojas & Cabeza, Miami, for appellees, Jonathan O'Boyle and
William Ring.
PER CURIAM.
Affirmed.
LEVINE, FORST and KUNTZ, JJ., concur.
Not final until disposition of timely filed motion for rehearing.
Renee Basel
From:scottmorgan75@gmail.com
Sent:Wednesday, October 12, 2016 4:54 PM
To:Jeff Hochman
Subject:80317 O'Boyle v Gulf Stream "Sign Case"
Jeff,
Just a quick question---in this case was there any attorney activity (pleadings, discovery, subpoenas, etc.) by
The O’Boyle Law Firm before Feb. 10, 2014?
Scott W. Morgan
1
AFFIDAVIT OF JOEL EDWARD CHANDLER
BEFORE ME, the undersigned authority, personally appeared JOEL CHANDLER, who
after being duly sworn, deposes and says that:
1. My name is JOEL CHANDLER.
2. I am over eighteen (18) years of age.
3. I am a resident of Polk County, Florida.
4. I have personal knowledge of every assertion made in this affidavit.
5. Citizens Awareness Foundation, Inc., (herein "CAFI"), was formed as a Florida
not -for -profit corporation by Martin O'Boyle in concert with his son, Jonathan
O'Boyle.
6. Jonathan O'Boyle is an attorney admitted in Pennsylvania and New Jersey, but not
admitted to practice in Florida.
7. In January 2014, I was solicited by Martin O'Boyle to lead a not -for -profit corporation
that was, he said, intended to promote open government. That not -for -profit
corporation was created at Martin O'Boyle's direction and became known as the
"Citizens Awareness Foundation, Inc." or "CAFI."
8. During my discussions with Martin O'Boyle, wherein he sought to hire me to serve as
the leader of CAFI, we explicitly agreed that CAFI would have an independent Board
of Directors; that the Board of Directors would be entirely free from the influence of
Martin O'Boyle or the O'Boyle Law Firm; that I would have absolute and sole
discretion regarding the commencement and resolution of open government litigation
on behalf of CAFI, and; subject only to the independent Board of Directors, I would
have the authority to select and retain law firms for the purpose of engaging in open
government litigation.
9. During January or February of 2014, I participated in a telephone conversation with
Martin O'Boyle and Robert "Bob" Tweel, a tax attorney from West Virginia. Martin
O'Boyle and I discussed with Mr. Tweel the absolute necessity that CAFI be a
legitimate not -for -profit entity. This included, but was not limited to, the requirement
that CAFI use a variety of law firms to represent it so as to avoid the appearance of
self -dealing.
10. Martin O'Boyle indicated to Mr. Tweel and to me that he was going to loan all
necessary monies to fund CAFI and, after 501(c)(3) status was acquired, write off as a
charitable donation all of the monies he had loaned to CAFI. After leaving this
meeting I was particularly encouraged that Martin O'Boyle was genuine in his interest
to establish a bona fide not -for -profit entity of which I would serve as the Executive
Director and that CAFI would afford me the opportunity to more effectively continue
my work as a civil rights activist and advocate for open government.
11. Martin O'Boyle appointed Brenda Russell, William Ring and Denise DeMartini to the
CAFI Board.
12. Brenda Russell is Martin O'Boyle's long time secretary. She was never present for
meetings. In fact, no formal meetings of the Board were ever called or held. For a brief
time, Brenda Russell collected my travel and business receipts, all of which were
subject to the approval of Martin O'Boyle.
13. William Ring is Martin O'Boyle's longtime business associate and corporate attorney.
14. Denise DeMartini is the long-time employee of Martin O'Boyle or entities that he
controls.
15. All of my negotiations for employment by CAFI were with Martin O'Boyle. At no
FA
time did I engage in any negotiations regarding the details of my employment,
including my compensations, with anyone other than Martin O'Boyle.
16. At Martin O'Boyle's direction I drafted and signed a proposed memorandum of
understanding regarding my employment by CAFI. I have never received a copy of the
proposed memorandum of understanding signed or approved by the board of CAFI.
17. I served as the Executive Director of CAFI for approximately five (5) months, through
the end of June 2014.
18. I resigned because of repeated instances of conduct perpetuated by Martin O'Boyle,
Jonathan O'Boyle, William Ring, Denise DeMartini, and some of the attorneys at the
O'Boyle Law Firm, P.C., Inc., (herein the "O'Boyle Law Firm"), as set forth herein,
which I believe may be criminal, fraudulent and unethical.
19. My relationship with the O'Boyle Law Firm was not limited to my capacity as the
Executive Director of CAFI. As the individual plaintiff in several open government
lawsuits, I had retained the O'Boyle Law Firm as my personal legal counsel.
20. My communications with the attorneys of the O'Boyle Law Firm, including Jonathan
O'Boyle, affected both CAFI and me, as an individual client.
21. Martin O'Boyle and Jonathan O'Boyle told me that Martin O'Boyle was funding the
O'Boyle Law Firm.
22. Martin O'Boyle told me that he was also funding CAFI.
23. The Martin O'Boyle business entities, including Commerce Group, Inc., CAFI, and the
O'Boyle Law Firm operated from the same physical location and were controlled by
Martin O'Boyle.
24. Despite assurances that CAFI would be independent and not -for -profit, Martin
3
O'Boyle and the O'Boyle Law Firm used CAM for the sole purpose of generating
attorney's fees for the O'Boyle Law Firm.
25. Throughout my tenure with CAFI, I repeatedly demanded that lawsuits not be filed or
settled without my direct authorization.
26. In spite of Martin O'Boyle's initial assurances to the contrary, I was not permitted to
retain legal counsel on behalf of CAFI, other than the O'Boyle Law Firm. William
Ring, CAFI's President and Martin O'Boyle's proxy, communicated this to me.
27.On numerous occasions, I learned that the O'Boyle Law Firm, on behalf of CAFI, had
filed lawsuits, without my knowledge or authorization.
28. The O'Boyle Law Finn routinely settled cases without written fee agreements,
contingency agreements or closing statements. No accountings of the monies received
were provided to me despite my repeated requests for that documentation.
29. Repeatedly, I advised Martin O'Boyle, William Ring and Jonathan O'Boyle that my
other personal attorneys had advised it was a serious Bar violation to disburse
settlement funds without client approval or closing statements.
30. Despite my protests, the O'Boyle Law Finn continued to file and settle lawsuits on
behalf of CAFI and to collect and keep settlement payments. At no time was I ever
presented with any form of accounting for legal fees or the disbursement of settlement
payments.
31. During the O'Boyle Law Finn's representation of CAFI and me, I was personally
present, or present by telephone, at numerous O'Boyle Law Finn meetings. Denise
DeMartini, Martin O'Boyle's executive assistant and Director of CAFI, conducted
these aw firm meetings. During these meetings, and in my presence, many pending
4
cases were discussed. These discussions included the details of cases to which neither
CAFI nor I were parties. Denise DeMartini is not a member of the Florida Bar.
32. It became commonplace for Martin O'Boyle to express his opinions and to offer his
advice with respect to litigation strategies and on the conduct of CAFI lawsuits as well
as the cases of other firm clients. Jonathan O'Boyle actively participated in these
discussions and, in my presence, directed the work of O'Boyle Law Firm attorneys and
made litigation decisions.
33. During the course of my employment I learned that Martin O'Boyle directed his
secretary to file in excess of 100 public records requests to the Town of Gulf Stream,
under the pretense that these were being filed on behalf of CAR He also ordered that
lawsuits be filed by CAFI against the Town of Gulf Stream. This was done without my
authority and litigation was filed over my objection.
34. When I complained about the fact that Martin and Jonathan O'Boyle were not
honoring the commitment that I would have sole authority to make public records
requests and conduct litigation, I was told by William Ring that this was "the way Big
Daddy wants it", i.e., Martin O'Boyle. Otherwise, "Big Daddy will turn-off the spigot
of money".
35. Jonathan O'Boyle advised me that he was not a member of the Florida Bar but would
be become a member within days. During the five months that I worked with CAR,
Jonathan O'Boyle worked full-time at the O'Boyle Law Firm providing legal advice,
directing the administration of cases, and assuming responsibility for cases.
36. The O'Boyle Law Firm and Jonathan O'Boyle prosecuted and filed some cases
without my permission and settled some cases without my knowledge or consent.
�1
37. No retainer agreements were ever entered into with me on behalf of CAFI. No
contingency agreements were entered into with me on behalf of CAFI. No closing
statements were ever presented to me and it appears that all monies that were solicited
from defendants were paid directly to the O'Boyle Law Firm.
38. Martin O'Boyle, through his entities, funded all of the filing fees and expenses of
CAFI as well as the expenses of the O'Boyle Law Firm. CAFI has now filed scores, if
not hundreds, of cases against state and local agencies throughout Florida as well as
various state contractors.
39. The employees of all of Martin O'Boyle's entities, including The Commerce Group,
Inc., CAFI and the O'Boyle Law Firm were shared. Denise DeMartini and William
Ring worked for Martin O'Boyle, CAFI and the O'Boyle Law Firm.
44. Although Martin O'Boyle named Denise DeMartini a director of CAFI, she also
directed the operations of the O'Boyle Law Firm and conducted law firm meetings.
41. Denise DeMartini repeatedly stated that CAFI was required to file at least one hundred
lawsuits a month; that all lawsuits had to be directed to the O'Boyle Law Firm for
prosecution, and; that as my direct supervisor, she would evaluate my performance
based upon my ability to deliver a minimum of twenty-five case per week to the
O'Boyle Law Firm.
42. Through William Ring, Martin O'Boyle insisted that the O'Boyle Law Firm handle all
litigation.
43. Martin O'Boyle told me he had unlimited money to pay filing fees for CAFI cases and
I was to file as many cases as possible.
44. When 1 asked Martin O'Boyle to quantify how many cases he was willing to finance
2
he said it was virtually unlimited. When I again tried to clarify by asking him if he was
willing to finance three thousand (3,000) cases in a single year, he said "sure."
45. When I learned it was the policy and practice of the O'Boyle Law Firm to demand
settlement of cases against government entities and state contractors for attorney's fees
in excess of the fees actually earned I was livid. In fact, I confronted William Ring,
Denise DeMartini and Jonathan O'Boyle in May of 2014 and stated in unequivocal
terms that I would resign if it didn't stop.
46. In one telephone conversation with Jonathan O'Boyle I warned him at least six times
that I was going to resign and that I objected to Denise DeMartini's demands that I
produce 100 cases per month, her control of the O'Boyle Law Firm and the windfall
scheme of collecting more monies in attorney's fees from defendants, than had
actually been earned.
47. Despite these complaints, William Ring, Denise DeMartini and Jonathan O'Boyle told
members of the fine that I had authorized the windfall scheme. When I learned of this
I confronted those involved. Nick Taylor, Esquire confirmed that despite my objection,
the windfall scheme would continue as firm policy. Shortly thereafter, I announced my
resignation.
48. Ryan Witmer and Giovanni Mesa announced they were also going to resign.
49. William Ring announced he was going to become a member of the O'Boyle Law Firm
at about that time.
50. After I resigned, Martin O'Boyle contacted me by telephone and demanded that I
withdraw an email I had sent to Nick Taylor regarding Jonathan O'Boyle's unlicensed
practice of law and Jonathan O'Boyle's authorship of the windfall scheme. During that
7
call, which was my last conversation with Martin O'Boyle, he repeatedly threatened to
bring great "unpleasantness" to my life if I failed to renounce my email to Nick Taylor.
51. Thereafter, Martin O'Boyle repeatedly attempted to contact me by telephone and email
seeking my assistance to facilitate CAM in filing additional lawsuits.
52. After resigning from CAFI I sent an email to numerous newspaper and television news
reporters announcing my resignation. I copied that announcement to dozens of
individuals, including Robert Sweetapple, Esquire, to notify them of my disassociation
and disapproval of the O'Boyles and their activities.
53. Within a few days of my resignation from CAFI, I granted an interview with a reporter
from the Lakeland Ledger and provided many of the details contained within this
affidavit.
54. Prior to emailing Robert Sweetapple, I had never met him, spoken to him, nor had he
or any members of his firm contacted me.
55. Prior to my emailing the law firm of Jones Foster, I had never had any contact with
Joanne O'Connor, Esquire, or any member of that law firm.
56. My subsequent contact with Robert Sweetapple and Joanne O'Conner was entirely the
result of own initiative.
57. I sent my email to Robert Sweetapple because I knew he represented the Town of Gulf
Stream, which I believed was being victimized by Martin O'Boyle and the O'Boyle
Law Firm and I was concerned that the conduct of Martin O'Boyle and the O'Boyle
Law Firm might be illegal and fraudulent.
58. I believed that I had a duty to make all victims, including the Town of Gulf Stream,
aware of what I learned during my association with Martin and Jonathan O'Boyle. For
8
example, Martin O'Boyle's orchestration of more than one hundred public records
requests being served upon the Town of Gulf Stream, allegedly under the name of
CAFI, but without my authorization; Martin O'Boyle's direction that lawsuits be filed
by the O'Boyle Law Firm in the name of CAFI against the Town of Gulf Stream but
without my authorization, and; in spite of my objections, Martin O'Boyle's use of
CAFI as a weapon in his personal vendetta against the Town.
59. Prior to contacting Robert Sweetapple to make him aware of my concerns regarding
Martin and Jonathan O'Boyle's conduct, I met with numerous private attorneys. As a
result of those meetings I concluded that I had a duty to disassociate myself from the
O'Boyles and to make full disclosure of any illegal and fraudulent activities. I have
also contacted numerous other victims and their attorneys to advise them of the
conduct of the O'Boyles and to provide them with evidence of such conduct.
60. Before speaking with Robert Sweetapple on the phone I spoke with Joanne O'Connor
by telephone and made her aware of the misconduct.
61. I then provided to Robert Sweetapple evidence of what I believe may be fraudulent
and criminal conduct as well as a detailed chronology of events.
62. Thereafter, I spoke with Robert Sweetapple and gave him permission to meet with me
and to take a voluntary sworn video statement concerning my involvement with Martin
O'Boyle, Jonathan O'Boyle, CAFI and the O'Boyle Law Firm.
63. At all times Robert Sweetapple made me aware of the application of the lawyer -client
privilege, both as it pertained to CAFI and to me personally. I determined, based upon
independent legal advice, that I was fully permitted and had a duty to disclose what I
believe to be the criminal and fraudulent conduct of Martin O'Boyle, Jonathan
0
O'Boyle, CAM and the O'Boyle Law Firm. I also voluntarily waived privileged
matters that arose from the joint representation by the O'Boyle Law Firm.
64. In spite of the many contrary assurances made by Martin O'Boyle to me, including the
exercise of my independent judgment and meaningful economic resources to be used
to promote the public's right to access government records and meeting, in reality
CAFI's sole purpose is to serve as an exclusive in-house mechanism whereby the
O'Boyle Law Firm can generate legal fees by filing hundreds of open government
lawsuits.
65. The egregiousness of the scheme was exacerbated by the O'Boyle Law Firm's policy
of demanding excessive and unearned legal fees from defendants as a condition of
settlement.
66. Simply put, CAFI is a profit -generating scheme funded by Martin O'Boyle to produce
fees for his son's legal practice.
67. Allegations that Joanne O'Conner, Robert Sweetapple or their firms purposely
solicited and obtained confidential information from me is false. The allegation that
this was done to gain an unfair advantage in litigation is further false.
68. The information that I provided to Robert Sweetapple and Joanne O'Connor was not
intended to provide an unfair advantage to the Town of Gulf Stream, but to make the
Town and all other victims aware of what I believe to be the fraudulent, criminal and
professionally unethical conduct of Martin O'Boyle, Jonathan O'Boyle, CAFI and the
O'Boyle Law Firm.
69. Robert Sweetapple and Joanne O'Connor did not solicit privileged information from
me. I voluntarily contacted them and made my own determination, after meetings with
10
independent counsel, as to what information and documents to provide to victims.
70_ My sole motivation for contacting the media, victims and their attorneys, proving
evidence, inviting the taking of my sworn statements and authoring this affidavit is to
protect the essential civil right of all Floridians to know what their government is
doing in their name and at their expense. It is my considered opinion that the
unconscionable conduct of Martin O'Boyle, Jonathan O'Boyle, CAM and the O'Boyle
Law Firm serves as an example of the abuse of our legal system and will be used by
opponents of open government as an excuse to limit the public's right to know.
FURTHER AFFIANT SAYETH NAUGHT.
-17
SWORN TO AND SUBSCRIBED before me thisl�,I day of October, 2014.
°�A�d'¢? AMBER COLSQN I{ELLY
Notary P&Ic - State o1 Florida
=_y _ My Comm. Expires May 31. 2015
M":��o �d11••' Commission # EE 166909
Personally known
Produced Identification
Identification produced: lk
11
jAqf�,� ,
NOTARY PUBLIC
Printed Name ofNotary�
My Commissions Expires:
��" ' : z 9 " i ��, i m ^ ��a J @ f . 1 - �� : ��" " 1 o f . ��
Renee Basel
From:scottmorgan75@gmail.com
Sent:Tuesday, November 1, 2016 3:11 PM
To:Hudson Gill; Trey Nazzaro; Joanne O'Connor
Subject:another 3-5-15 email
From: scottmorgan75@gmail.com
Sent: Thursday, March 05, 2015 11:15 AM
To: Eric Sodhi
Subject: Fw: O'Hare/O'Boyle Public Records Requests
Eric,
Please see below.
Scott W. Morgan
HUMIDIFIRST
1315 Neptune Dr.
Boynton Beach, FL 33426
(561) 752-1936
From: Ingrid Bascobert
Sent: Thursday, March 05, 2015 11:04 AM
To: joconnor@jonesfoster.com ; Bill Thrasher ; scottmorgan75@gmail.com ; grichman@richmangreer.com
Subject: O'Hare/O'Boyle Public Records Requests
Hello,
Attached is an excel spreadsheet of all the public records requests from O'Hare and O'Boyle from 2013-2015.
The excel doc includes a spreadsheet of each year (2013, 2014, 2015), as well as a spreadsheet with the total number of
requests, a spread sheet of high volume requests, and a spreadsheet of aliases used by both O'Hare and O'Boyle. I hope
this finds you well and that it is useful! Additonally, I do not have an email address for Mr. Eric Sohdi so I would greatly
appreciate it if one of you could forward this email to him. Thank you so much.
Regards,
____________________________________
INGRID B. BASCOBERT
Administrative Assistant
Sweetapple, Broeker & Varkas, P.L.
rd
20 SE 3 Street
Boca Raton, FL 33432
(561) 392-1230 (t) x. 306
(561) 394-6102 (f)
ibascobert@sweetapplelaw.com
STATEMENT OF CONFIDENTIALITY
1
The information in this e-mail is confidential and may be legally privileged. If you are not the named addressee, or if this
message has been addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate,
maintain, save or otherwise use this email. Please contact the sender at the above number immediately. Delivery of this
message to any person other than the intended recipient(s) is not intended in any way to waive privilege or
confidentiality.
2
Excerpts from Town Commission Meeting September 12, 2014:
Mr. O'Boyle: When.we come to the section in the budget, litigation costs
I assume we will be able to speak at that time?
Mayor Morgan: When we are discussing the budget, yes.
Mr. O'Boyle: I have in my hand a document and before I speak of the
document I just want to ask, is.....does Gulf Stream
believe in open and transparent government?
Mayor Morgan: This is not a question and answer period Mr. O'Boyle. If
you want to continue making comments you may.
Mr. O'Boyle: I understand. I ask the question, does Gulf Stream
believe in open and transparent government?
Mayor Morgan: We're not going to engage in question and answer. I've
made that clear to you on several occasions. Tt's
rather obvious, frankly, but if you would like to sit down and ask
these questions with Town Staff those may be proper.
Mr. O'Boyle: My question is .... I don't think it's that difficult a
question. I think the people in the audiance, including my-
self, are entitled to know the answer to that question. We had this
dialogue last time, you don't want to answer it and the rest of the
Commission don't want to answer it on goggle.
Mayor Morgan: Of course we have open dialogue, but if you would -like -
to continue .....Q & A ...... you'll have your time and
we will deal with it as we have in the past. If you want to comment on
that topic you are certainly welcome to do it.
Mr. O'Boyle: Well then, let me tell you the document I have. I have
here a hand written confidentiality agreement. Now you
don't have confidentiality agreements in open and transparent government.
1 have it here and it's signed by that fellow right up there. Now my
question is, and maybe you won't answer this one either and I understand
that. What is this all about?
Mayor Morgan: Do you want to talk about something else Mr. O'Boyle. I'm
not going to engage in questions and answers. Please take
advantage of the opportunity to speak, voice your opinion, we welcome it
as we do from all our residents.
Mr. O'Boyle: That's fine.l think the difference is, you don't like the
way I do it. I understand that and that's fine. Mr. O'Hare
you are a party to this agreement. Would you object if the Mayor
answered a question about this agreement?
Mr. O'Hare: I have no objection.
Mr. O'Boyle: And I assume the answer is you still won't answer any
questions.
Mayor Morgan: Of course not.
Mr. O'Boyle: I understand. This was signed by, this is a little hard
for me to read, Joanne O'Connor, Christopher O'Hare,
Scott Morgan, Lou Roeder, and Mark Hanna. So you have 4 lawyers, Mr.
Morgan and Mr. O'Hare. Now at this meeting, I don't know what happened.
But, what I do know is Ms. O'Connor went to the meeting, my Sons a lawyer,
Excerpts from Town Commission Meeting September 12, 2014:
Page -2-
he represents Mr. O'Hare. Mrs. O'Connor knows that. She went there and
she delt with Mr. O'Hare without consulting with my son and that is a
violation of rule 4-4.2 of the Florida Bar Ethics. Now, if we can go
beyond that, 4-3.3 requires that Mr. Randolph, that you report this to
the Bar. And I'm going to ask you to kindly report it to the Bar, I'm
going to ask you to provide me with evidence that you have done it by
next Wednesday evening. And if you .... or give me a reasonable date there-
after, I want to be fair with you. And if you don't, I'm going to file
an ethics complaint against you and Ms. O'Connor and I thank you for all
those questions you answered there.
Mayor Morgan: I thank you. Would anyone else like to speak. Mr. O'Hare.
Mr. O'Hare: Thank you Mr. Chair for the opportunity to speak. I don't
hear very well. Did you move Item IX.B. to the front of
the agenda, the Resolution to adopt the policy for the public records?
Mayor Morgan: Yes, A & B. went to VI.B., right before the Communications.
Mr, O'Hare: I wish I had a chance to talk on that because I looked thru
that policy and thru some of the experts I hired I know there
are at least 3 items that have already been adjudicated by judges. During
violations there's plenty of case law that show the're in violgr_:L.on,.-I
wish I sould have pointed that out to you before you adopted i.t. That's
all. Thank you.
Excerpts from Town Commission Tentative Budget Hearing September 12, 2014:
Mr. O'Boyle: Marty O'Boyle. Well it's clear to me that I'm the whip-
ping boy and I accept that. But it's also clear to me that
the audiance has not a clue what's going on. Not even a clue. It's all
on the surface. The young lady said something about having to be spent
because of frivolous. What's frivolous?
Mayor Morgan: I ask that you not address your questions to the audiance
but please make your comments here. Now we don't get
involved in questions and answers between residents at these public meet-
ings. It's an opportunity for you to ask questions of us where previously
it was not an opportunity.for you to ask questions. (unable to hear this
portion as O'Boyle is talking over the Mayor).
O'Boyle: I understand you don't want her to answer and I don't blame you.
I disagree with you. You may, Mayor, want to share with the
people in this town that the town, at the expense of the taxpayer has
hired an investigator to investigate my family. You may want to share
that with them. Maybe that would help them understand a little bit more.
And I would ask you to please do that. I have either 9 or 12, and I
don't know which one it is, public record requests this year, none of
which to my knowledge have been adjudicated. However, if we looked at
the cost, my cost, their cost, I'll bet their cost is 3 times my cost.
The reason is, not because they are defending but are agressively
pursuing. There's a big difference. You can hide behind the word
defending but when you look at the dollars and cents, if there was an
expert, I think you would say that. Also, there is a rumbling on the
Excerpts from Town Commission Tentative Budget Heaxing September 12, 2014
Page -3-
street, so to speak, that there is a big charge coming against me and my
family. And, I don't know whether it's true or not. I think it is.
And if it is, I can assure everyone in this room that it will cost you
one million dollars more. Not a hundred thousand, not two hundred
thousand, one million dollars. So, I'm not going to be messed around
with by you guys. Let's make that straight and I'll spend the money,
I have the money and you want to fight you're going to get a fight. I
told you last time I thought the best thing is for everyone to sit down
and see if there's a way to resolve things. You rejected that, you have
every right to reject it, I understand that so we are moving on. But
if you pursue something that I'm thinking you are going to pursue, you'll
be ready for me or maybe you won't be ready for me. But, after awhile,
I been down this road before and I spent over a million dollars in
similar situations. So, I don't really want to spend that money, on the
other hand I will. Nobody's going to mess with my family, nobody. That
includes you Mr. Morgan. So, the legal costs, the legal costs are
absol.utly out of control. But, one has to ask why are they out of control.
They won't answer questions, we go across the hall, we get stonewalled,
they play hide the ball, whatever the case is, we file a law suite and
they file motions to dismiss, depositions, production, motions to dis-
qualify, motions for sanctions, motions, motions, motions and I'll bet
there probably in the twenty to thirty thousand range for 3�. worth of
paper. In any event, I think it's foolishness, I think the people ought
to get together, not to say they are going to settle the differences,
but you never, never will settle them until you start talking.,
Thank you. --�
Mayor Morgan: Thank you sir. Any other comments from the public?
Mr. O'Hare.
Mr. O'Hare: There is a 4.2% increase in.salary -for police, 7.4% increase
for benefits, that's a good thing. Those guys have got a
tough job, especially with the leadership and misdirection and I
recommend they get every bit of that raise. But, Mr. Thrasher is getting 8.1
in salary increase and an 8.2% benefits increase. Really? Really? Legal.
You got %40,000 budgeted for. 2015, not enough. The Palm Beach County
Tax Collector tells me the tax revenue money won't be available to you
til March 2015, being 6 months from now. Given the pace of legal
expenditures each month, because of soon to be upcoming litigation
this pace will quicken and I expect the Town's reserves will be
depleted by christmas. Something that I think this budget should include
is a brokers fee for a possible bond or any other way you are going to
come up with money for the shortfall.cause I think you are going to run
out by christmas. In the Town's own defense Town leaders have blamed all
their money troubles on Mr. O'Boyle and myself and I would like to offer
the real -reason -the budget shortfalls because town leaders would rather
spend public money than admit the Town made a mistake. I just recently
made an offer to settle for the filing fee. Town never responded in
time. The amount of money the town will spend on the attorney responding
is less than the money I asked for and admission that the record existed
and please give it to me. Just doesn't make economic sense to spend
more money having a lawyer tell me no instead of just settling and give
me the record, that's all I want is the record.
Mayor Morgan: Is that an offer that was withdrawn yesterday knowing that
we had a Commission Meeting today at which it would have
been presented?
Me. O'Hare: It expired after 6 days. I can appreciate that sir. I seem
to recall that when there was an issue, an emergency came up
Excerpts from Town Commission Tentative Budget Hearing September 12, 2014
Page -4-
that handicaped people had to be given a 6 month approval for any
improvements to their home, the Commission met 24 hours later to adopt
that emergency measure so I figured 24 hours for this was --.enough.
Mayor Morgan: You thought we should do that for your filing fee set-
tlement case? Is that what you are suggesting?
Mr. O'Hare: We have to decide. Are handicapped people more important
than the rule of law? But either way, we are digressing.
I just got a few other budget items.
Mayor Morgan: I just wanted to clarify that for the record. Please
proceed.
Mr. O'Hare: Oh, that the offer expired yesterday. Yes. Thank you.
As I said before the public record policy is filled with a
few things I think are going to end up in court. Town remodeling without
a permit. The Town has done extensive plumbing repairs and alterations.
They put in an intercom system but I got the permit record from Delray
Beach and you didn't get.a permit for it. So, your going to owe
Cripple fines when you get that permit. Thats just a waste of our
money. And you are required to get a permit. You've got permits for a _
lot of other things. I don't know why you didn't get a permit,for that.
Now the beauty of getting a permit is the inspector comes and h� says
this has to be handicap accessible. You can't have an intercom_up here
when someones in a wheelchair down here. So that's going to have to Se
redone. Mr. Thrasher, come on. You should have known that. Comprehensive
Land Use Plan. Let's get rid of anybody that might park a message out
there. And, we'll take that away from beach parking. The Comprehensive
Land Use Plan says that has to be beach parking,.you can't reduce your
recreational element. You just violated the Comprehensive Land Use Plan
by getting rid of that parking. So lets spend some money on a hedge so
if he does park over there you can't see it because theres a hedge
blocking it. Thats great. Except, when you look at the Comprehensive
Land Use Plan Recreational Element, we have 178 acres of recreation=.and
open space. But that's only for people that belong to the private club.
The amount of open space available to the average residentis 0. We
have a beach and you get to park here to go to the beach and you have
taken some of that parking away. But, there is not one public bench
or mini park or pocket park. Insted of spending the money on lawyers
it would be great if the kids had a swing set. You can't go to Gulf
Stream School. Thats private. It just seems like a mis-appropriation
of public money. Like I just said, there are issues coming up you don't
even know about yet. Your money is going to go soon. Your ADA ramp was
never built. But, probably the biggest thing is the vague law issue. I
brought this up in the past. The Town appointed a Board to come up with
some revisions to the Code. Didn't result in anything. If your going
35 MPH, the law says 35 MPH, thats a clear unambiguous law. No parking
on the Town's right-of-way. Thats a clear law. But a home design that
can't be approved unless the town decides it matches what the town
thinks is the character of the neighborhood, without clearly defining
that character, Chats.a vague law. Lets get it up in court. Thats more
expense and its not frivolous either. Finally, the new town manager.
In an email to Barron Signs last year Mr. Thrasher, when asked about
getting comparative bids for a street side project, he wrote I don't care
I just need to hold on to my job for 3 more years. So, I guess he has
a retirement thing coming up. If Mr. Thrasher intends to retire in
2015 the Commission needs to budgets for the search for his replacement.
Excerpts from Town Commission Tentative Budget Hearing September 12, 2014
Page -5-
Mayor Orthwein once asked me how do you go about finding a new town manager?
Typically, you got to hire a consultant, he advertises, shortlists maybe
half dozen people, you'll interview, short list to maybe a couple, start
negotiating, finally find somebody. Could take months, costs a lot of
money. Needs to be in the budget unless, Mr. Thrasher your not planning
on retiring, or maybe you are. Almost done. Theres a lot of other
litigation. I know your going into an executive meeting and I hope Mr.
Randolph shares it with you. This trespassing on Polo Cove which
violates all maritime law, constitutional law, right to navigational
waters, your going to lose that one. My roof, the solar, your going to
lose that one. The anti Bush, what else have we got? There are a couple
other big ones. Y can't think of them right now. Theres a lot on the
board and a lot comin'. Be so much easier justto get this settled
instead of spending more money each time the lawyers write a letter
than it would take to settle some of these things. Thank you.
February 28, 2017
Pam Bondi, Attorney General
Department of Legal Affairs
Office of the Attorney General
107 W. Gaines Street
Tallahassee, Florida 32301
Sarah Shullman, Bureau Chief
Consumer Protection Division
Office of the Florida Attorney General
110 S.E. 6th Street
Ft. Lauderdale, Florida 33301
Re: Request for Formal Investigation – Citizens Awareness Foundation, Inc.
Dear Attorney General Bondi and Bureau Chief Shullman:
I am special counsel to the Town of Gulf Stream, Florida, as well as counsel for my law
firm, Sweetapple, Broeker & Varkas, P.L. I write to request a formal investigation of the activities
of Citizens Awareness Foundation Inc., (“CAFI”), an alleged Florida not-for-profit-corporation
and revocation of its corporate status pursuant to Florida Statute 617.2003. This review should
result in a conclusion that CAFI is not a bona fide not-for-profit entity. It is acting for purposes
inconsistent with those stated in its Articles of Incorporation as an alter ego of Martin O’Boyle
and The O’Boyle Law Firm. It is a pre-textual client created to obtain, by unfair or deceptive
practices, hundreds of thousands of dollars in alleged legal fees from state and local governments
and their private contractors.
I. CAFI
Based on discovery obtained in litigation in state and federal court, it is now clear that
CAFI was caused to be formed by Martin O’Boyle. Enclosed as Exhibit A is a memorandum dated
January 28, 2014 from Mr. O’Boyle to attorney Robert G. Tweel, Esquire, which is a public record
and was produced in the course of a federal lawsuit brought by Mr. O’Boyle, which was
subsequently dismissed. Mr. O’Boyle sets forth that the Directors of the corporation are Denise
Pam Bondi, Attorney General February 28, 2017
Sarah Shullman, Bureau Chief Page 2 of 11
DeMartini, William F. Ring, Jr., and Brenda Russell. Discovery has revealed that all of these
individuals were or are in the employ of Mr. O’Boyle or one of his entities. In paragraph 7 of the
memorandum Mr. O’Boyle states that the corporation is intended to be a 501(c)(3) entity. It does
not appear that any such not-for-profit status was ever applied for or obtained.
As stated by Mr. O’Boyle, the corporation, “will have employees that will travel the State
to make public records requests; and to either obtain the public records or if the governmental body
does not provide the records (e.g.: they play “hide the ball”) that the Corporation will obtain
counsel (likely on a contingency basis) to take legal action. In that connection, the Corporation
will have as its offices 1280 West Newport Center Drive, Deerfield Beach, FL 33442.”
In the following paragraph of the memoranda, Paragraph 8, Mr. O’Boyle reveals that “the
law firm that will be used almost exclusively (they are a firm that specializes in public records
litigation) will be the O’Boyle Law Firm (led by my son) and his offices will be at the same
address.”
A copy of the Articles of Incorporation for Citizens Awareness Foundation, Inc., filed with
the Secretary of State on January 27, 2014 is attached hereto as Exhibit B. Article III provides that
the specific purpose of the corporation is “1) to provide programs and information, to meet the
educational needs of individuals who engage/are involved with government; and 2) to encourage
citizens to monitor and to participate in the process of government.” Instead, the purpose of the
entity was to generate hundreds of public records requests, lawsuits and attorneys’ fees for The
O’Boyle Law Firm.
Mr. Martin O’Boyle thereafter paid and enlisted Mr. Joel Chandler to travel the State
making verbal and written public records requests directed to State agencies, municipalities and
numerous charities, schools and other agencies having a statutory public record obligation.
II. The Victims
Under the guise of being a Florida not-for-profit Corporation, CAFI has instituted well
over 100 lawsuits throughout the state of Florida against State agencies, local municipalities, bona
fide Florida not-for-profit entities and private corporations, who are state contractors. These
entities include:
Name
1. Board of County Commissioners Miami-Dade County
2. Broward County Sheriff’s Office
3. City of Aventura
4. City of Brooksville
5. City of Dania Beach
6. City of Dunedin
7. City of Fernandina Beach
8. City of Florida City
9. City of Madeira Beach
Pam Bondi, Attorney General February 28, 2017
Sarah Shullman, Bureau Chief Page 3 of 11
10. City of Miami
11. City of Miami Beach
12. City of Tallahassee
13. City of Tampa
14. Department of Management Services
15. Duval County School Board
16. Florida Department of Agriculture
17. Jacksonville Aviation Authority
18. Miami Dade County
19. Miami Dade School Board
20. Miami Dade Water and Sewer Department
21. Office of the State Attorney, Fourth Judicial Circuit of Florida
22. Sarasota County
23. Sheriff of Columbia County (Mark Hunter)
24. South Florida Water Management District
25. Stellar Leadership Academy, Inc.
26. Town of Cutler Bay
27. Town of Gulfstream
28. Town of Lake Park
29. Town of Miami Lakes
30. Village of Bal Harbour
31. Village of Pine Crest
32. Academie Da Vinci Charter School, Inc.
33. Alliance for Aging, Inc.
34. Alpha Charter of Excellence, Inc.
35. Area Agency on Aging of Central Florida, Inc.
36. Area Agency on Aging of Palm Beach Treasure Coast, Inc.
37. Aspira of Florida, Inc.
38. Behavioral Choices, Inc.
39. Broward Behavioral Health Coalition, Inc.
40. Cape Coral Preparatory and Fitness Academy, Inc.
41. Catholic Charities Diocese of Venice, Inc.
42. Chautauqua Charter School, Inc.
43. Civilsurv Design Group, Inc.
44. Excelsior Academies, Inc.
45. Expressions Learning Arts Academy, Inc.
46. Florida Atlantic University
47. Florida Family Child Care Home Association, Inc.
48. Florida State University Schools, Inc.
49. Forza Education Management, LLC d/b/a Gulf Coast Charter Academy South
50. Gardens School of Technology Arts, Inc.
51. Homeless Coalition of Palm Beach County, Inc.
52. Human Services Associates, Inc.
53. Learning Gate Community School
Pam Bondi, Attorney General February 28, 2017
Sarah Shullman, Bureau Chief Page 4 of 11
54. Lutheran Services Florida, Inc.
55. Manatee Glens Corporation
56. Marco Island Academy, a Public Charter High School, Inc.
57. Mascotte Elementary School, Inc.
58. Miami’s River of Life, Inc.
59. New Beginnings High School, Inc.
60. Northeast Florida Area Agency Foundation, Inc.
61. Nova Southeastern University, Inc.
62. Palm Beach County Substance Abuse Coalition, Inc.
63. Phoenix Programs of Florida, Inc. d/b/a Phoenix Houses of Florida
64. Ramz Academy, Inc.
65. Rising Leaders Academy, Inc.
66. River City Education Organization, Inc.
67. Seniors First, Inc.
68. Stellar Leadership Academy, Inc.
69. Team Success a School of Excellence, Inc.
70. The Hope Foundation for Autism
71. The Hope Foundation for Autism
72. The Seaside Playgarden, Inc.
73. UCP Transitional Learning Academy
74. Urban Oasis Project, Inc.
75. Vision of Mater Academy, Inc.
76. The Hope Foundation for Autism
77. The Seaside Playgarden, Inc.
78. UCP Transitional Learning Academy
79. Urban Oasis Project, Inc.
80. Vision of Mater Academy, Inc.
81. 3M Electronic Monitoring \[Inc.\]
82. Abington Holdings Limited, Inc.
83. ADA Engineering, Inc.
84. AECOM Technical Services, Inc.
85. Albeck Gerken, Inc.
86. AES Engineering, Inc.
87. AMEC Environment & Infrastructure, Inc.
88. A&P Consulting Transportation Engineer
89. ATCI Communications, Inc.
90. Atkins North America, Inc.
91. Avart Ammann & Whitney, Inc.
92. Barnes and Noble College Booksellers, LLC
93. Bayard Advertising Agency, Inc.
94. Bluefield Ranch Mitigation Bank \[LLC\]
95. Boro Building and Property Maintenance, Inc.
96. Brannon & Gillespie, LLC
97. Cape Leisure Corp.
Pam Bondi, Attorney General February 28, 2017
Sarah Shullman, Bureau Chief Page 5 of 11
98. Charter Schools Associates, Inc.
99. Charter Schools USA, Inc.
100. Child Welfare Training Solutions, LLC
101. Coral West Adult Day Care, Inc.
102. Cross Environmental Services, Inc.
103. David J. Giannone, Inc. d/b/a Complete Marine
104. Dewberry Engineers, Inc.
105. Dragados USA, Inc.
106. Envirospec, Inc.
107. Family Preservation Services of Florida, Inc.
108. Fifth Street Counseling Center, Inc.
109. First Care Home Services, Inc.
110. GEO Group, Inc.
111. Hubbard Construction, Inc.
112. IBI Group, Inc.
113. Johnson’s Excavation & Services, Inc.
114. JPM Management Services, LLC
115. Marine Exhibition Corporation
116. Marks Brothers, Inc.
117. Metric Engineering, Inc.
118. Pomcor Longview, LLC
119. Psychological Assessment and Treatment Services, LLC
120. Psychological Management Group, P.A.
121. Ranger Construction Industries, Inc.
122. Robertson Consulting Group, Inc.
123. Royalaire Mechanical Services, Inc.
124. Silver Seas Hotel, Inc. d/b/a Lighthouse Point Yacht & Racquet Club
125. Stantec Consulting, Inc.
126. Wantman Group, Inc.
III. The Law
Chapter 617.2003 of the Florida Statutes governing not-for-profit corporations provides:
617.2003 Proceedings to revoke articles of incorporation or charter
or prevent its use.—If any member or citizen complains to the Department
of Legal Affairs that any corporation organized under this act was organized
or is being used as a cover to evade any of the laws against crime, or for
purposes inconsistent with those stated in its articles of incorporation or
charter, or that an officer or director of a corporation has participated in a
sale or transaction that is affected by a conflict of interest or from which he
or she derived an improper personal benefit, either directly or indirectly,
and shall submit prima facie evidence to sustain such charge, together with
sufficient money to cover court costs and expenses, the department shall
Pam Bondi, Attorney General February 28, 2017
Sarah Shullman, Bureau Chief Page 6 of 11
institute and in due course prosecute to final judgment such legal or
equitable proceedings as may be considered advisable either to revoke the
articles of incorporation or charter, to prevent its improper use, or to recover
on behalf of the corporation or its unknown beneficiaries any profits
improperly received by the corporation or its officers or directors.
(emphasis supplied).
Pursuant to Florida Statute 617.1430, the authority of an alleged not-for-profit Corporation
can be annulled.
617.1430 Grounds for judicial dissolution.—A circuit court may
dissolve a corporation:
(1)(a) In a proceeding by the Department of Legal Affairs if it is
established that:
1. The corporation obtained its articles of incorporation through fraud;
or
2. The corporation has continued to exceed or abuse the authority
conferred upon it by law.
(b) The enumeration in paragraph (a) of grounds for judicial dissolution
does not exclude actions or special proceedings by the Department of Legal
Affairs or any state official for the annulment or dissolution of a corporation
for other causes as provided by law.
(2) In a proceeding brought by at least 50 members or members holding
at least 10 percent of the voting power, whichever is less, or by a member
or group or percentage of members as otherwise provided in the articles of
incorporation or bylaws, or by a director or any person authorized in the
articles of incorporation, if it is established that:
(a) The directors are deadlocked in the management of the corporate
affairs, the members are unable to break the deadlock, and irreparable injury
to the corporation is threatened or being suffered;
(b) The members are deadlocked in voting power and have failed to
elect successors to directors whose terms have expired or would have
expired upon qualification of their successors; or
(c) The corporate assets are being misapplied or wasted.
(3) In a proceeding by a creditor if it is established that:
(a) The creditor’s claim has been reduced to judgment, the execution
on the judgment returned unsatisfied, and the corporation is insolvent; or
(b) The corporation has admitted in writing that the creditor’s claim is
due and owing and the corporation is insolvent.
(4) In a proceeding by the corporation to have its voluntary dissolution
continued under court supervision.
Pam Bondi, Attorney General February 28, 2017
Sarah Shullman, Bureau Chief Page 7 of 11
IV. Joel Chandler’s Testimony
As set forth in the enclosed affidavit of Mr. Joel Chandler, the law firm acting on behalf of
a purported not-for-profit entity, CAFI, has demanded more in attorney’s fees than were incurred
in order to exact a settlement. A copy of Mr. Chandler’s affidavit is attached hereto as Exhibit C.
In an email between Mr. Chandler and Mr. Martin O’Boyle dated February 12, 2014, Mr.
Chandler recites his meeting with Florida Senate President Don Gaetz regarding attempts to amend
the law to include an award of attorney’s fees for litigating over attorney’s fee and public records
cases. He states, “That alone would create a cottage industry for folks like us and Barbara
Petersen.” Mr. Chandler closes his email, “More cases are coming and I’m having the time of my
life.” See Exhibit D.
In an email dated January 14, 2014 from Mr. Chandler to Ryan Witmer, who was Jonathan
O’Boyle’s law partner, Mr. Chandler recites that he was “able to bring \[a lawyer\] 101 cases in the
space of about six weeks. Each case had nearly perfect facts and was what I referred to as a ‘triple
A’ or a ‘kill-shot’.” See Exhibit E.
In an email to Nick Taylor, Esquire dated Friday, June 27, 2014 (Exhibit F), Mr. Chandler
recites his concern about a windfall scheme to collect fees that aren’t owed.
V. Denise DeMartini’s Testimony
The sworn testimony of Ms. DeMartini, (Exhibit G), an alleged Director of CAFI, reveals
that:
1. She was in the employ of Martin O’Boyle’s entities, as well as The O’Boyle Law Firm.
(Pages 12-13)
2. CAFI had no specific office space that was used. (Page 32, Line 13)
3. CAFI was funded by Mr. O’Boyle (Page 35, Line 3)
4. Money was given from Martin O’Boyle to The O’Boyle Law Firm (Page 44, Line 2)
5. DeMartini set up databases for The O’Boyle Law Firm (Page 45, Line 5)
6. This was done at the request of Martin O’Boyle as part of her employment with CRO
Realty (Page 46, Line 1)
7. Ms. DeMartini, during the first half of 2014, was performing work for CRO Realty,
The O’Boyle Law Firm, and for CAFI. (Page 51, Lines 5 -12)
8. Upon Mr. Chandler’s resignation, Ms. DeMartini was involved in verbally authorizing
settlements on behalf of CAFI (Page 52, Line 13)
Pam Bondi, Attorney General February 28, 2017
Sarah Shullman, Bureau Chief Page 8 of 11
9. Mr. O’Boyle requested the individuals to serve on the board of CAFI (Page 56, Line 2
- 6)
10. Ms. DeMartini sent an email dated April 14, 2014 regarding her understanding that
Joel Chandler had agreed with Mr. O’Boyle to file 100 lawsuits per month on behalf of
CAFI (Page 57-59)
11. It was apparent to Ms. DeMartini that all of these cases would be sent to The
O’Boyle Law Firm. Joel Chandler told Ms. DeMartini she could expect 25 suits for
CAFI a week (Page 66, Line 3-6)
In an email dated April 28, 2014, (Exhibit H), Denise DeMartini wrote Mr. Chandler
demanding 100 lawsuits a month. DeMartini states, “I am in the law meeting now and have been
told that you have only provided 8 new cases for this week. We were expecting a minimum of 25
a week.”
VI. Martin O’Boyle’s Testimony
Despite all of this evidence, Mr. O’Boyle under oath has testified that he has nothing to do
with CAFI. The following excerpts are taken from his deposition taken on September 15, 2014,
attached as Exhibit I.
Q: Let me break it down for you. You’re the one who solicited,
having Mr. Chandler come work for a not-for-profit entity to make
public records requests claims and lawsuits, right?
A: No.
M. O’Boyle Dep., Vol. II, 168:12-16, Sept. 15, 2014.
1. At his deposition in this case, Martin O’Boyle professed a complete non-involvement with
CAFI “other than loaning them money and returning Joel’s e-mail. Yeah a phone call.”
Q: And I’m going to give you a chance to try to retract your
statement.
A: Lucky Me.
Q: Are you telling us under oath that you were not involved in any
of the activities of Citizens Awareness Foundation other than
loaning them money?
A: Other than loaning them money and returning Joel’s e-mail.
Yeah. A phone call.
M. O’Boyle Dep., Vol. II, 167:5-12.
2. Mr. O’Boyle continuously swore that he knew nothing about CAFI.
Pam Bondi, Attorney General February 28, 2017
Sarah Shullman, Bureau Chief Page 9 of 11
Q.· ·So in this lawsuit, can you tell me if – if there is any legal
counsel that has been approved by CAFI other than the O'Boyle
Law Firm?
A.· ·I have nothing to do with CAFI.· I'll say it again and I'm
saying it the last time.· If you ask me again, I won't answer.
M. O’Boyle Dep. Vol. II, 174:1-7
Q.· ·On January 27th, CAFI was incorporated, and the board was
designated to be William Ring, Denise De martini and Brenda
Russell, correct?
A.· ·I have nothing to do with CAFI, and I'm not going to --
that's the last question I'm answering.
M. O’Boyle Dep. Vol. II, 174:20-24
Q.· ·CAFI's address, sir, is listed as the same address as Commerce
Group; are you aware of that?
A.· ·I know nothing about CAFI.
M. O’Boyle Dep. Vol. II, 175:6-8
Q.· ·So Brenda Russell is your secretary, and she is one of the
directors of CAFI?
A.· ·I don't know if she is a director of CAFI.
Q.· ·I told you who the three directors are.
A.· ·That's what you told me.· I don't believe you.
Q.· ·So you don't know who they are?
A.· ·I just told you I know nothing about CAFI.
M. O’Boyle Dep. Vol. II, 178:21-179:2
THE WITNESS: I know nothing about CAFI.· And let me say
it 100 times in a row and that way we can save you all this time.
M. O’Boyle Dep. Vol. II, 199:9-11
Q.· ·Who else has funded CAFI, Mr. O'Boyle?
A.· ·I don't know.
Q.· ·Are you aware of anyone besides you that has provided funds
to that entity?
A.· ·I know nothing about CAFI.
M. O’Boyle Dep. Vol. II, 208:4-8
Pam Bondi, Attorney General February 28, 2017
Sarah Shullman, Bureau Chief Page 10 of 11
VII. Evolving Law : CAFI v. Wantman Group, Inc. and Christopher O’Hare v.
Town of Gulf Stream
CAFI has been the subject of much litigation and courts have linked CAFI's activities to
bad faith misconduct. It has long been recognized that “one who has acted in bad faith, resorted to
trickery and deception, or been guilty of fraud, injustice, or unfairness, will appeal in vain to a
court of conscience, even though in his wrongdoing he may have kept himself strictly within the
law.” Dale v. Jennings, 107 So. 175, 180 (Fla. 1925) (discussing unclean hands). Consistent with
this principle, Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., 195 So. 3d 396 (Fla.
4th DCA 2016), makes clear that a Trial Court is not precluded from recognizing that bad faith
conduct can be addressed by defendants and the courts, through affirmative defenses or otherwise,
and regardless of whether the public records requestor formally complied with the statutory
requirements or not. In O’Hare v. Gulf Stream, No. 2014-ca-008142 MB (Fla. 15th Cir. Ct. Jan.
12, 2017), the trial court considered whether “Defendant’s procedure and method and conduct of
making \[public records\] request\[s\] constituted bad faith and prevent\[ed\] the requirement of a
timely response.” Following Wantman, the court found that the defendant’s bad faith conduct
could be considered in determining whether or not the Town unlawfully refused to comply with
the public records act. Id. Both of these CAFI cases were unsuccessfully brought by The O’Boyle
Law Firm.
Judge Barkdull ruled from the bench:
The conduct in this case was clearly an attempt to generate,
improperly generate, litigation, and inappropriately generate
attorney’s fees, based upon that. And that has specifically been
disavowed by the Fourth DCA in the case of Citizens Awareness
versus Wantman Group found at 195 So. 3d 396. I’m going to
specifically quote from Citizens. Public records law should not be
applied in a way that encourages the manufacture of public records
requests designed to obtain no response for the purpose of
generating attorney’s fees.
Id. The court continued:
This was clearly in a bad faith attempt and gotcha requests, and an
attempt to generate litigation and fees, which is inappropriate under
the Citizen’s case. This Court, nor any other court, should tolerate
such wholly inappropriate action under the Statute.
See Transcript of Judge Barkdull’s ruling attached hereto as Exhibit J.
VIII. Proposed Remedy
It is respectfully suggested that that an investigation should be opened to determine the
bona fides of CAFI as a not-for-profit Corporation. A review of its financial, business and other
Pam Bondi, Attorney General February 28, 2017
Sarah Shullman, Bureau Chief Page 11 of 11
records should be undertaken, as it appears CAFI is nothing more than an alter ego of Martin
O’Boyle and contrived client of The O’Boyle Law Firm, existing for the purpose of generating
profit for that law firm. It appears that this is a scam and an unfair or deceptive practice to obtain
monies from state municipalities and state contractors. These monies should be recovered and
reimbursed to all victims. (See attached Florida Bar Article titled A New Scam: Public Records
Shakedown).
The above further constitutes prima facie evidence that CAFI is not being operated for the
purposes stated in its Articles of Incorporation.
As required by Florida Statute 617.2003, please advise of the necessary funds to cover
court costs and expenses to the Department of Legal Affairs and advise of the deposit required. I
will present this estimate to my client for approval and payment. Upon payment of such deposit,
the Department is required to institute proceedings pursuant to Florida Statute 617.2003. These
proceedings should seek the revocation of CAFI’s Articles of Incorporation and recovery of all
funds obtained by The O’Boyle Law Firm as a beneficiary of this scam.
Very truly yours,
ROBERT A. SWEETAPPLE
RAS:cjm
Encl.
SCOTT W. MORGAN___________________
1140 N. Ocean Blvd.
Gulf Stream, FL 33483
561-243-1432
scottmorgan75@gmail.com
March 7, 2017
To the Voters of Gulf Stream,
Three years ago, you elected me to the Gulf Stream Town Commission, where I have
been privileged to serve as mayor. A new election will be held on March 14 at Town Hall, and I
urge you to cast your vote to re-elect our Commission and continue the forward progress of our
town.
Let me explain why:
In 2014, when we took office, Gulf Stream's financial reserves were being drained by the
continuous legal assault of two residents. Staff morale had plummeted, infrastructure projects
were on a financial hold, and all effort seemed to be directed to handling the multitude of
public records requests and lawsuits being filed by Martin O'Boyle and Chris O'Hare. Since then,
and as a result of the Commission's unwavering determination to protect and preserve our
Town, Gulf Stream has exposed the O'Boyle/O'Hare money-making scheme for what it was, and
we have effectively stopped a statewide municipal shake-down from an O'Boyle created law
firm and its interrelated agents.
A state court recently ruled in Gulf Stream's favor, citing the bad faith nature of these
public records requests and lawsuits, which were designed only to generate money and filed in
a way to overwhelm the town, forcing it to pay. Not only did we win the case, but we believe
fees will be awarded to Gulf Stream as well. Plus, I believe the judge's sound reasoning will be
persuasive in other courts with other cases. You should know that of the approximately 56
lawsuits and ethics charges filed against us, Gulf Stream has already won a third of them while
the remaining cases are making their way up the court trial calendars for resolution. The
uncertainty created by the public records litigation is over, and I can tell you that morale at
Town Hall is better than it has been for years.
I am also pleased to report that despite the cost of these lawsuits, our Commission
succeeded in building up Gulf Stream's financial reserves to the highest level in its history- over
$3 million. This financial stability allows the Town to now commence necessary infrastructure
work, including roadwork and an expansion of Town Hall. More importantly, it provides the
essential financial cushion to protect Gulf Stream against a future water line repair, which is a
realistic concern, given the age of many of our water lines.
At the same time, we have concluded the Phase 1 undergrounding, and are moving on
schedule to complete Phase 2. It has been disruptive, we know, but soon it will be over and Gulf
Stream will be a better place for it, and your property values will reflect it.
The Commission has also put teeth into the enforcement policy of contractors working
in Gulf Stream. Under new policies, the general contractor is now liable for the parking, noise,
and assorted other construction violations previously lodged only against the sub-contractor
(who often ignored them). Escalating fines are paid by the G.C., motivating him to help us
correct sub-contractor misbehavior.
Along that same line, we passed two ordinances to reduce massing of new construction
and to add architectural elements that encourage custom built homes rather than boxy,
oversized spec houses.
I ask for your vote because I will continue to do everything I can to preserve what is
unique and special about Gulf Stream—our homes, our friends and the quality of life we enjoy
in this quiet town by the sea. I also encourage you to vote for the re-election of our other
Commissioners- Paul Lyons, Joan Orthwein, Tom Stanley and Donna White.
Sincerely,
Scott W. Morgan
Paid by Scott W. Morgan for Non-P artisan Office of Town Commissioner, and this letter has not been
approved by any candidate other than Scott Morgan.
SCOTT W. MORGAN___________________
1140 N. Ocean Blvd.
Gulf Stream, FL 33483
561-243-1432
scottmorgan75@gmail.com
March 7, 2017
To the Voters of Gulf Stream,
Three years ago, you elected me to the Gulf Stream Town Commission, where I have
been privileged to serve as mayor. A new election will be held on March 14 at Town Hall, and I
urge you to cast your vote to re-elect our Commission and continue the forward progress of our
town.
Let me explain why:
In 2014, when we took office, Gulf Stream's financial reserves were being drained by the
continuous legal assault of two residents. Staff morale had plummeted, infrastructure projects
were on a financial hold, and all effort seemed to be directed to handling the multitude of
public records requests and lawsuits being filed by Martin O'Boyle and Chris O'Hare. Since then,
and as a result of the Commission's unwavering determination to protect and preserve our
Town, Gulf Stream has exposed the O'Boyle/O'Hare money-making scheme for what it was, and
we have effectively stopped a statewide municipal shake-down from an O'Boyle created law
firm and its interrelated agents.
A state court recently ruled in Gulf Stream's favor, citing the bad faith nature of these
public records requests and lawsuits, which were designed only to generate money and filed in
a way to overwhelm the town, forcing it to pay. Not only did we win the case, but we believe
fees will be awarded to Gulf Stream as well. Plus, I believe the judge's sound reasoning will be
persuasive in other courts with other cases. You should know that of the approximately 56
lawsuits and ethics charges filed against us, Gulf Stream has already won a third of them while
the remaining cases are making their way up the court trial calendars for resolution. The
uncertainty created by the public records litigation is over, and I can tell you that morale at
Town Hall is better than it has been for years.
I am also pleased to report that despite the cost of these lawsuits, our Commission
succeeded in building up Gulf Stream's financial reserves to the highest level in its history- over
$3 million. This financial stability allows the Town to now commence necessary infrastructure
work, including roadwork and an expansion of Town Hall. More importantly, it provides the
essential financial cushion to protect Gulf Stream against a future water line repair, which is a
realistic concern, given the age of many of our water lines.
At the same time, we have concluded the Phase 1 undergrounding, and are moving on
schedule to complete Phase 2. It has been disruptive, we know, but soon it will be over and Gulf
Stream will be a better place for it, and your property values will reflect it.
The Commission has also put teeth into the enforcement policy of contractors working
in Gulf Stream. Under new policies, the general contractor is now liable for the parking, noise,
and assorted other construction violations previously lodged only against the sub-contractor
(who often ignored them). Escalating fines are paid by the G.C., motivating him to help us
correct sub-contractor misbehavior.
Along that same line, we passed two ordinances to reduce massing of new construction
and to add architectural elements that encourage custom built homes rather than boxy,
oversized spec houses.
I ask for your vote because I will continue to do everything I can to preserve what is
unique and special about Gulf Stream—our homes, our friends and the quality of life we enjoy
in this quiet town by the sea. I also encourage you to vote for the re-election of our other
Commissioners- Paul Lyons, Joan Orthwein, Tom Stanley and Donna White.
Sincerely,
Scott W. Morgan
Paid by Scott W. Morgan for Non-P artisan Office of Town Commissioner, and this letter has not been
approved by any candidate other than Scott Morgan.
SCOTT W. MORGAN___________________
1140 N. Ocean Blvd.
Gulf Stream, FL 33483
561-243-1432
scottmorgan75@gmail.com
March 7, 2017
To the Voters of Gulf Stream,
Three years ago, you elected me to the Gulf Stream Town Commission, where I have been privileged to serve as mayor. A new election will be held on March 14 at Town Hall, and I urge
you to cast your vote to re-elect our Commission and continue the forward progress of our town.
Let me explain why:
In 2014, when we took office, Gulf Stream's financial reserves were being drained by the continuous legal assault of two residents. Staff morale had plummeted, infrastructure projects
were on a financial hold, and all effort seemed to be directed to handling the multitude of public records requests and lawsuits being filed by Martin O'Boyle and Chris O'Hare. Since
then, and as a result of the Commission's unwavering determination to protect and preserve our Town, Gulf Stream has exposed the O'Boyle/O'Hare money-making scheme for what it was,
and we have effectively stopped a statewide municipal shake-down from an O'Boyle created law firm and its interrelated agents.
A state court recently ruled in Gulf Stream's favor, citing the bad faith nature of these public records requests and lawsuits, which were designed only to generate money and filed
in a way to overwhelm the town, forcing it to pay. Not only did we win the case, but we believe fees will be awarded to Gulf Stream as well. Plus, I believe the judge's sound reasoning
will be persuasive in other courts with other cases. You should know that of the approximately 56 lawsuits and ethics charges filed against us, Gulf Stream has already won a third of
them while the remaining cases are making their way up the court trial calendars for resolution. The uncertainty created by the public records litigation is over, and I can tell you
that morale at Town Hall is better than it has been for years.
I am also pleased to report that despite the cost of these lawsuits, our Commission succeeded in building up Gulf Stream's financial reserves to the highest level in its history- over
$3 million. This financial stability allows the Town to now commence necessary infrastructure work, including roadwork and an expansion of Town Hall. More importantly, it provides the
essential financial cushion to protect Gulf Stream against a future water line repair, which is a realistic concern, given the age of many of our water lines.
At the same time, we have concluded the Phase 1 undergrounding, and are moving on schedule to complete Phase 2. It has been disruptive, we know, but soon it will be over and Gulf Stream
will be a better place for it, and your property values will reflect it.
The Commission has also put teeth into the enforcement policy of contractors working in Gulf Stream. Under new policies, the general contractor is now liable for the parking, noise,
and assorted other construction violations previously lodged only against the sub-contractor (who often ignored them). Escalating fines are paid by the G.C., motivating him to help
us correct sub-contractor misbehavior.
Along that same line, we passed two ordinances to reduce massing of new construction and to add architectural elements that encourage custom built homes rather than boxy, oversized
spec houses.
I ask for your vote because I will continue to do everything I can to preserve what is unique and special about Gulf Stream—our homes, our friends and the quality of life we enjoy in
this quiet town by the sea. I also encourage you to vote for the re-election of our other Commissioners- Paul Lyons, Joan Orthwein, Tom Stanley and Donna White.
Sincerely,
Scott W. Morgan
Paid by Scott W. Morgan for Non-Partisan Office of Town Commissioner, and this letter has not been approved by any candidate other than Scott Morgan.
Renee Basel
From:scottmorgan75@gmail.com
Sent:Saturday, March 11, 2017 3:04 PM
To:Robert Sweetapple
Subject:Campaign Letter
1
Excerpts from Minutes of Town Commission Meeting of December 12, 2014:
Mr. O'Hare stated:
Thank you Mayor and Commissioners, if it hasn't been said yet, may I
be the first Merry Christmas and the staff as well, and for any of
you that are Jewish, Happy Chanukah_ The Town has made a bunch of
ascertains lately through Council and public meetings that ray request
for public records are somehow a scam. I have perpetrated for the
purpose of making money, extorting money from the Town. The Mayor has
repeatedly called my claims in Court to be malicious and scandalous.
The Town has publicly announced that I am somehow guilty of organized
crime, really? The Town has a star witness Mr. Joel Chandler in this
regard. And I have each sent you each recently, Mr. Mayor and each
Commissioner an email from Mr. Joel Chandler that I have nothing to
do with any of this, that I am completely innocent. I have suffered
and continue to suffer from the Town's accusations and Mr. would like to give you thMayor I
is opportunity, given Mr. Chandler's email
and given the lack of any evidence that I have anything to do with
organized crime for you to publicly retract that accusation now and'
stop this continued suffering and damage."�"
Mayor Morgan: Let's let the facts play out, Mr —O'Hare, and let's
let the law play out as well.
Mr. O'Hare: Play out is very expensive sir.
Mayor Morgan: Thank you Mr. O'Hare. Any other comments from the
public.
--------------------------------------------
XI.A. Items by Mayor and Commissioners.
Mayor Morgan: I have an item. As you all know, on behalf of the Town,
I filed complaints with the Florida Bar against members
of the O'Boyle .Law Firm for unethical misconduct and against Jonathan
O'Boyle specifically for unlicensed practice -of law. Doing that with,
and I have always considered it, and I son't think there is any question
about it, the implicit direction of this Commission to work with our
attorneys or special counsel and our existing Jones Foster law firm,
in defending the cases against us and advancing all claims that the
attorneys felt were necessary. The counsel for Mr. O'Boyle has raised
a question of that saying that the Mayor was not authorized by the
Commission to file those complaints. I don't think it's an issue, but
just to make sure we cover all bases I'm requesting a retroactive
Commission approval od rhw Mayor's submission of these complaints to the
Bar Association and I would like to have that discussed now. Perhaps Mr.
Randolph could touch on it.
Attny. Randolph: Yes, as the Mayor has indicated, I believe it was
implicit by your previous action to authorize the Mayor to take such
actions. But, because the issue has been raised,~1 believe it would be
appropriate for you to ratify retroactively the actions that have been
taken by the Mayor in that regard. To be specific, what we would look for
Excerpts from Minutes of Town Commission Meeting of December 12, 2014
Page -2-
XI.A. Items by Mayor and Commissioners Continued from page -1-.
is a motion that the Town Commission -ratify Mayor Morgan's August 25,
2014 filing of a complaint against the O'Boyle Law Firm, William Ring,
Giovanni Mesa, Nicholas Taylor, Rhonda Williams and Ryan Whitmer with
the Florida Bar's Attorney, Consumer Assistance Program (ACAP), and a
complaint against Jonathan O'Boyle with the Florida Bar's Unlicensed
Practice of Law Division. Included in that motion would also be that the
Town Commission authorizes Mayor Morgan and/or the Town's legal counsel
at Jones, Foster, Johnston and Stubbs PA, Richman Greer PA and Sweet -
apple, Broker and Vargas. PL to communicate with ACAP, the Florida Bar
and counsel for the respondents on behalf of the Town in regard to
those complaints. So, if you wish to ratify that action based upon
your previous direction, such a motion would be appropriate.
Vice Mayor Ganger: Comment first and then a motion. The comment is that
I believe personally and I believe my colleagues all accept that
implicitly that way back, and I mean a considerable period of time, this
is precisely what we had expected to have happen and therefore, I think
the complaints are kind of procedural. I move, and I can't repeat that
but I move that the motion be accepted.
Commissioner Orthwein: I second it.
Mayor: Rita.
Clerk Taylor: Commissioner Ganger ----interruption from Mr. O'Hare
Mr. O'Hare: Mr. Mayor, may I comment before you vote? It is before the
public and I have an opportunity to comment, please.
Mayor Morgan: Of course you may.
Mr. O'Hare: For years Jones, Foster has represented thie Town without
an agreement and at a public records request, no agreement
exists. Thats an ethics violation of the Florida Statutes and I'm
glad you're finally fixing that and it's about time. In regard to
retroactively covering you sunshine violation, I don't think that',s
going to work. Thank you.
Mayor Morgan: Thank you Mr. O'Hare.
Clerk Taylor: I'll start over. Comm. Ganger, yes, Comm. Stanley, yes,
Comm. White, yes, Comm. Orthwein, yes, Mayor Morgan, yes.
Town Manager Thrasher: May I make a comment in regards to that topic?
I sat thru those meetings and it was certainly
my understanding as Town Manager that it was your responsibility to act
in a manner you thought would protect our Town, which I think you did.
In no way did I feel as tho I should step in and sign anything of that
nature. So, my understanding of the meeting and my understanding of the
actions you have taken are exactly what was asked of you and in -that
regard, thank you.
Commissioner Orthwein: I agree with Bill Thrasher. We talked about it
at a meeting and we gave Mayor Morgan explicit
directions to be head of the Council for our litigation, and I think he
is acting lile he should.
Mayor Morgan: Thank you very much. To another item.
Excerpt from Minutes of Town Commission Meeting of January 9, 2015 :
Mr. O'Hare: About 6 months ago, Mr. Sweetapple, on behalf of Mayor Morgan, told me
to dismiss all my complaints against the Town, in exchange the Town
would exclude me from the 40 page RICO Action that was prepared at that
time against Mr. O'Boyle and myself. It was a take it or leave it offer.
A few months ago Mayor Morgan made the very same take it or leave it offer
to me again. I don't hear very well so sometimes I have to go back and
read the minutes to see what happened at the last meeting. Now I
learned after examining those minutes the Commission has given no
authority to Mr. Morgan to act on their behalf in these legal matters,
except for some Bar complaint which I don't know anything about. Mayor
Morgan has acted without Commission knowledge, direction or approval.
Does the Commission want that to continue or are you going to give him
authority to act on your behalf with the attorneys? No answer.
The threat of an impending RICO claim against me is terribly debilitating.
Its disturbing to me and my family not knowing if people are casting me
in the role of the Town's ugly description. It is stressful and de-
stabilizing not knowing if I will be charged with organized crime and
have to defend myself. I'm asking you all again, will you here and now
retract your previous claims that I conspired to defta
,Ud the Town?
Mayor: This is a public comment section, not Q & A.
Mr. O'Hare: Thank you very much.
Mr. O'Boyle: I come here today in peace-. I come here with a hope that the Town
Commission wishes to end the litigation and expense between us. I see
it spiraling out of control, something I don't want to see happen, and
I assume the Commission does not want to see happen. The bills are
going to be in area none of us has probably ever imagined. So, its in
this spirit that I request that the Commission or Council, as the case
may be, agree to a sit down with our Counsel, with us. There's no lose
and all win. If nothing could be resolved we've lost nothing. If
something can be resolved we've saved me, you, them, a great deal of
money. There are other thorny items that could certainly be put into
a settlement agreement with the plethora of lawyers up there now. Despite
what I just said I ask that you please don't make a mistake that my
desire for peace is laced with fear. So I'm clear, I want you to
know that I fear not our Mayor. And, I fear not our Commission, and I
fear not our solicitor, and I fear not your illusive RICO action. But,
none the less, I think it's in everyones best interest to try to come to
a resolution recognizing no loss, all gain.
Excerpts from Town Commission Meeting July 11, 2014:
Mr. O'Hare: Thank you Mr. Mayor for the opportunity to speak. I know
a lot about budgets. In the private sector I'm not so
concerned about saving money, if I need money I go out and get it, find -
it somewhere. Government is different. You can only collect so much
between fees, taxes, anne)(ation of more property, bonds, lines of credit.
Your real control of your budget is spending. I know $28,000 seems like
a lot for a copy machine but maybe that's justified but I don't know.
$4,000 a month for Mr. Thrashers car and another $100 to clean it once
in a while, seems excessive but I'm in the private sector, I don't know.
The big issue everybody is talking about is law suits. If you will just
bear with me a few seconds I would like to explain something. When the
talking stops and there is no negotiation, you ask a judge to make a
decision. It's reasonable. If someone sues this town frivolously you
should kick their butts. You should sue them for everything they got.
But, when you know a case comes to you and it's like really indefensible
but you're gonna churn fees just to ...I don't want to say its ego but
just to say you can't do this to us, thats just a silly expense of public
money. It's just ridiculous, all the suits that really shouldn't
be there in the first place. I asked for Miss Avery's notes from the
last meeting so I could compare it to the minutes which have a dis-
crepancy that disn't show any vote on the last Ordinance we talked about.
I couldn't get it. You can't just not give her record. The State has
laws, the Constitution has laws. Every time you break the law somebody
likd me, or somebody should like me come in and say let.'s get -a-j-udge
to decide. It just seems part of the democratic process. All -the stuff
could go away, the budget could get back to normal if you just tell
staff to follow the law. Thank you.
Mayor Morgan: Any other questions or comments?' Mr. O'Boyle.
Mr. O'Boyle: My name is Martin O'Boyle. The discussion regarding the
budget was interesting. Whose watching the store? Whose
watching whats approved and whats not approved, whats paid and whats
not paid etc. In my office I have a CPA and department heads. The
department heads approve a bill that comes into their department and then
goes to the CPA who approves it and then goes to one of the senior
officers who then signs the check. Whats the process?
Mayor Morgan: I'm sure the process depends on the type of bill coming
in. Whether it's contractural, something incidental, but
staff I'm sure reviews them and issues checks. Some checks need to be
signed by the Mayor, others do not. As you can expect, it's a rather
broad and complicated arrangement.
Mr. O'Boyle: Is there a written process, handbook which would lay out
how this works or is it, as I would say, magic? How does it work?
Mayor Morgan: Why don't you set up an appointment with staff who will
be happy to take as much time as you need. Do you have
a continent on the millage rate Mr. O'Boyle?
Mr. O'Boyle: I think what we were talking about was the budget. At
least that's what I heard Ms. Randolph,,Mr. Graziano, if
I said your name right, and Mr. O'Hare, I know I got his name right.
But, I'll move on because obviously that's what you want me to do. I
want you to know, the reason I was asking is, I made a request for Mr.
Thrasher's expenses and to and behold, receipts from Duncan Donuts,
and I just thought that was great. Then I just looked at it closer
Excerpts from Town Commission Meeting July 11, 2014
Page -2-
and it was charged to Building Maintenance. So, I'm gonna take a ride
out back and see if I can find a donut in a corner of one of those
buildings back there.
You, Mr. Mayor, made a comment that says the law suits have to be addressed.
I agree with you and my question is how? How do you intend to address
them?
Mayor Morgan: Is that a question? They will be addressed in the way
they have been addressed and they will continue to be
addressed.
Mr. O'Boyle: And so that is a slug fest where the town is just
hemorrhaging cash.
Mayor Morgan: I don't think so Mr. O'Boyle. You're on the other side.
But I think you've seen the method by which we are
going to defend these actions. That.will continue until we get
resolution on these cases. As Mr. O'Hare rightly stated,eventually a
judge will decide these cases.
Mr. O'Boyle: And I emphatically concurr. I've been in budiness 44
years and this isn't my first rodeo. And I can tell you
I've had many discussions akin to what I just asked you and the other
side would say why don't we sit down and see what we can do. Thi-s-
Commission doesn't want to do that. they want to fight. And when
they want to fight, it's OK. It's alright with me, I don't mind it.
But they have to spend his money, her money, I don't know who else's
money, but your money. I think it's foolishness and I'll give you an
example of what I think is really foolishness. I got in town last night,
late, and T read my email this morning, early. There was a hearing
yesterday in connection with a public records suit and the Town of
Gulf Stream made a motion to the court and this is a matter that is
before the 4th district of appeals. And they made a motion before the
court to ask that the court approve costs for a transcript for $450.
We calculated that that was about $1,700 to make that motion. Now, my
understanding is there will be a motion, another one, at the appealet
court asking them to study that. And again, T'm getting this third
hands so I may not be getting this precisely right. But why would you
spend $1,700 when on your very best day, best day you win $450.00?
Why would you do that other than just plain ego, hostility, what ever
you want to call:.it? Certainly not sense. That doesn't fit into
that equation. Why would you do it? You want to lower the legal fees,
you want to get rid of the lawyer fees? What you spent you could have
settled with this guy, let him put on a roof which he hasn't had for
years, settled with him. He wouldn't be here. You would have spent 2
the money and everyone would have been happy. How come that can't be?
Mr. O'Hare, when was the last time you got called by the Commission,
they wanted to sit down and talk with you? That's what I thought. If
you really want to get the legal fees under control, you gotta try to
get the legal fees under control. You can't sit back and if you want
to be storm troopers you are certainly welcome to do that. No one is
going to stop anyone here. I don't think that is what Mr. Randolph
wants. He's a gentleman, I think he's a good guy, I don't think that
is what he wants but I can't speak for him and I won't speak for him.
But, I would just advise as a resident that if you want to try to get
them under control you ought to try to get them under control. Ms.
Randolph said it's a shame that the money -is used in such a fashion
but it is what it is. I agree Ms. Randolph with what you said, it's a
shame for the money to be used in such a fashion, but it is what it is.
Excerpts from Town Commission Meeting July 11, 2014
Page -3-
It's what people in this room are making it and it ought to change. And,
there's got to be an effort for it to change. Mr. Morgan, you made a
comment which -.you said in your opinion these law suits are frivolous.
Your not a Florida lawyer. Your not familiar with the public records law.
Your not familiar with Chapter 119, your not familiar with the common law.
How could you made such a statement?
Mayor Morgan: You're asking me the question? First I would say in
response to your question you should look in a mirror
when you ask them.
Mr. O'Boyle: I have, I have.
Mayor Morgan: In my opinion, whether or not you have a valid claim
under the public records law, and some of them are and
some of them are not, you've been doing this for a while. But what I
see is, and this is just my opinion, what I see is an attempt to
create public records requests that are vague and ambiguous, over-
burdening our staff such you get in your mind a delay that you could
qualify a law suit under this public records law and then try to get
attorneys fees. Thats all you ever seem to try to claim for. So
that's the explanation when I said in my opinion I think they are
frivolous. Whether or not the actual claim has or has not merit is
the point, it's the law suits being brought, for what purpose I'm
not quite sure other than to harass this Town, overburden our 5.taff
and cost this town money. That's the way I see it.
Mr. O'Boyle: I appreciate that and thank you. But, let me help you out
a little bit. I think it was the day before yesterday,
but certainly this week. I lose track of time. We received a response
from Mr. Thrasher to a request made April 15th. -Now, the law says you
have to respond promptly. April 15th to July 10th is not very promptly.
So, when you say that what we are doing is that we're firing them in
so you can't get them done timely so we could file a suit, how do
you explain that situation?
Mayor
Morgan:
I'm not going
to
address each and every one of these cases.
Ar. O'Boyle:
Don't want you
to,
just that one.
Mayor Morgan: It's just my overall general opinion of what you and
Mr. O'Hare are trying to do. But, let's not debate
this back and forth. The issue before the Commission, and with input
from you and other residents of the town is what we should be doing
right now with respect to the millage rate for setting our budget. This
is certainly a factor so if you would just .....you can address that, but
the give and take here has probably gone far enough.
Mr. O'Boyle: And I understand that but it seems to me that the debate
amoung the Commissioners was solely around....I think Mr.
Ganger said the uncertainty of the budget, the legal fees. And what I
am saying, the guy that wants to do nothing but file law suits is.....
why don't you sit down and try to solve it then you won't have to worry
about the millage rate. Why don't you do that? You don't want to do that.
Mayor Morgan: Now you're getting into legal issues with respect to
various cases some of which have different points of
evidence, different points of discovery, some are on a trial list. As I've
stated before, I think the best way, and I think Mr. O'Hare agreed, the
best way to finally resolve these matters is to get some of them into court.
Excerpts from Town Commission Meeting July 11, 2014
Page -4-
Hopefully we will be able to do that.
Mr. O'Boyle: I don't know that Mr. O'Hare agrees with that. The best way
to try and resolve these is, rather than try to settle
them amicably is to spend the money and get them in the court, get.them
into the appeals court, go to the supreme court, perhaps the United
States Supreme Court, transcripts, lawyers...... that's not the way to
do it.
Mayor Morgan: Mr. O'Boyle, I've given you some wide -latitude, I've tried
to answer some of your questions, we often do not in public comment, thats
not the time, this is. So I have tried to give you at least my opinion,
I can't speak for the rest of the Commission. I hope I have been able
to give you at least insight into my opinion.
Mr. O'Boyle: You have and my last statement -is, when people come up
here and ask the Commission questions and the Commission
refuses to answer and then they go across the hall and make a public
records request so that they could get the answer and then the public
records request, for whatever reason, play hide the ball, can't get them
done timely and then there's a law suite and then you sit up there and
whine about it. You shouldn't do that. You should answer questions. Let's
all be adults. Let's try to resolve things amicably and if we can't,
slug fest is fine with me. Thank you all for allowing me to speak..
Mayor Morgan: Thank you sir. Are there any other comments fr-om—the..
public? Comments again from the Commissioners?
Excerpts from Town Commission Regular Meeting & Public Hearing 11-14-14:
Mr. O'Hare was recognized and stated:
Thank you Mr. Mayor, thank you for the opportunity to speak. I have
had the pleasure of meeting most of the police officers in Town. They
are better than officers I have seen in other jurisdictions. They
are hardworking, honest and forthright, very helpful. I applaud you
for giving them the pay raise that you did. But, three years ago I
criticized a police officer when I heard him call workers at my home,
beaners. A few weeks later this officer searched the inside of my
home uninvited and without a warrant. He took pictures of the inside
of my home from over my rear fence. This officer came back later and
again tried to enter my home uninvited and without a warrant but
found the doors locked. He then spied into my private home by
looking over the rear fence yet again. This same officer then
fabricated a false police report and lied about what he did and why
he did it. My complaints to the Town about this produced no results,
not even an apology. Instead Mr. Thrasher waged a campaign against
me of retaliation and abuse by denying my permits, inciting my,
neighbors against me and fabricating false code violations, butte,
wouldn't be silenced. I've made numerous public record requests, ,I ,
tried to call attention to the Towns' abuse with a website and
political art. Got nowhere with the Town. I complained to the
Courts and have been retaliated against yet again, this time by a
propaganda campaign aimed at silencing me once more by accusing me of
harassing the Town and wasting the Town's money and resources, but
I'm not going to be silent. In a desperate attempt to force me to
give up my complaints and finally be silenced, each Commissioner here
has voted to accuse me of criminal racketeering and used the Courts
as a weapon to retaliate against me and suppress my free speech.
Each member of this commission has collaborated to concoct a
fictitious legal complaint against me solely in retribution and
retaliation for themselves having been brought before the Courts. I
have been warned by Mayor Morgan through his attorney, who used to be
my attorney, that I must withdraw all of my complaints or be drawn
into a long and expensive RICO lawsuit. This is extortion and I will
not be silenced by it. This RICO accusation is untrue and it is a
ringing bell that cannot be unrung. It is a callous and malicious
attempt to destroy my character, it will not go unpunished. The Town
has chosen to fight a long and costly battle with Town money. I've
made numerous attempts to resolve this and have been rebuffed. I am
speaking today because I have a responsibility to try to mitigate
some of the propaganda damaae inflicted on me by this commission, but
I'm just a citizen and I'm fighting a juggernaut of power and money,
I'm not going to be silenced.
Excerpts from Town Commission Regular Meeting & Public Meeting 10-10-14:
Mr. O'Hare: Mr. Chairman may I comment for a moment?
Mayor Morgan: You may Mr. O'Hare.
Mr. O'Hare: I understand that the purpose of the RICO is to get rid of
the Public Record.Requests. I have a question regarding the
RICO. Mr. Richman, who I'm sure is a great attorney. He's certainly
well respected. Indicates that I'm going to be indicted in this RICO
action. But 3 months ago Mr. Sweetapple said to my.lawyer, if you
dismiss all you charges, we son't include you in this RICO action. So
I understand what the real purpose of this is and it's really to get
rid of all the other complaints. I've been in litigation, I hate it.
It's expensive. You get bills every month for $50,000 to $100,000.
This, because I'm innocent, will go to a jury trial. Mr. Richman has
been very careful not to tell you what that will cost even tho
Commissioner White asked him "what's it going to cost". On the down
side we didn't get an answer. But, I can tell you what it's going to
cost. Bills every ..... I mean when these lawyers all get together and
spend 22 hours preparing for trial each day, you're going to get bills
of $100,000, $200,000 a month. The time the trial actually takes place.
Then, of course, a settlement probably takes place just before the jury...
..I mean you're going to spend just $50,000 just selecting jurors you
hope are going to be favorable to your case. You're talking about
millions of dollars and it's not your money. It's their money..So many
of these cases could be resolved by just admitting guilt, paying —the —
attorneys fees ..... I mean a typical public records case settles for...
..what was Joel Chandlers? Was it $1,500 to make him go away? And yet
you spend $20,000 saying no, we're not guilty and we're not gonna
cooperate. Thats just not a good use of public money. If you make a
mistake eventually the judge is going to say you -made a mistake. Give
'em the record, pay the attorneys fees and let's -go on to the next
thing. But instead you spend piles and piles of public money and this
is another example. I bet you five million dollars from now this is
still going on. It's just a shame. I like this town. Maybe this is my
attempt to try to steer you in the right direction. Maybe it's got a
little out of hand but my god, this town is going to be destroyed.
I'm sorry mam, what's your name?
Mayor Morgan: We don't get into colloquy between residents. But, we
certainly appreciate your comments and your advice, Mr. O'Hare.
Mr. O'Hare: I really think you need to reconsider. Thank you.
Renee Basel
From:scottmorgan75@gmail.com
Sent:Monday, July 23, 2018 4:12 PM
To:Cynthia Miller
Subject:Re: Deposition subpoena in State of Florida v. O'Boyle
Glad I checked, Cynthia.
I don’t get back in town on Aug 6 until about 5:00 pm so that date won’t work. Aug. 7 or 8 would be better.
Sorry for the mis-q on the date.
Scott W. Morgan
HUMIDIFIRST
1315 Neptune Dr.
Boynton Beach, FL 33426
(561) 752-1936
From: Cynthia Miller
Sent: Monday, July 23, 2018 3:38 PM
To: scottmorgan75@gmail.com
Subject: RE: Deposition subpoena in State of Florida v. O'Boyle
Good afternoon,
st
I have been in contact with Mr. Salnick’s office and advised that you are unavailable in the 31. We have suggested
th
August 6 at 2:00 p.m. and I am waiting to receive a confirmation from his office. I just followed up with his assistant
and should know for sure if that day works by tomorrow.
CYNTHIA J. MILLER
Attorney
Sweetapple, Broeker & Varkas, P.L.
4800 North Federal Highway, Suite B105
Boca Raton, FL 33431
(561) 392-1230(t)
(561) 394-6102(f)
cmiller@sweetapplelaw.com
www.sweetapplebroeker.com
STATEMENT OF CONFIDENTIALITY
The information in this e-mail is confidential and may be legally privileged. If you are not the named addressee, or if this
message has been addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate,
maintain, save or otherwise use this email. Please contact the sender at the above number immediately. Delivery of this
message to any person other than the intended recipient(s) is not intended in any way to waive privilege or
confidentiality.
From: scottmorgan75@gmail.com \[mailto:scottmorgan75@gmail.com\]
Sent: Monday, July 23, 2018 3:32 PM
1
To: Cynthia Miller
Subject: Re: Deposition subpoena in State of Florida v. O'Boyle
Hi Cynthia,
Have you been able to reschedule this deposition?
Thanks.
Scott
From: Robert Sweetapple
Sent: Wednesday, July 11, 2018 10:18 PM
To: scottmorgan75@gmail.com ; Cynthia Miller
Subject: Re: Deposition subpoena in State of Florida v. O'Boyle
Happy to. Cynthia please get this rescheduled or prepare motion for PO.
Regards, Bob Sweetapple
On Jul 11, 2018, at 12:15 PM, "scottmorgan75@gmail.com" <scottmorgan75@gmail.com> wrote:
Thanks Bob. Do you want to handle it?
If so, I’m not available on the 31st but could do it August 6, 7, 8 or afternoon of 9.
If those dates work for you, would you contact Mr. Salnick and see about re-scheduling?
Thanks.
Scott
From: Robert Sweetapple
Sent: Tuesday, July 10, 2018 9:08 PM
To: scottmorgan75@gmail.com
Cc: Trey Nazzaro ; Jeff Hochman ; Joanne O'Connor
Subject: Re: Deposition subpoena in State of Florida v. O'Boyle
You have been subpoenaed in your official capacity and can request that the town provide you
with counsel.
Regards, Bob Sweetapple
On Jul 10, 2018, at 3:27 PM, "scottmorgan75@gmail.com" <scottmorgan75@gmail.com>
wrote:
I was served with the attached subpoena and witness fee this afternoon.
2
I doubt any of you are involved in this matter but thought I should let you know
and seek your advice on how it should be handled.
Scott Morgan
561-573-6006
<Florida v O'Boyle.pdf>
3
Renee Basel
From:Robert Sweetapple <rsweetapple@sweetapplelaw.com>
Sent:Tuesday, December 26, 2017 9:30 PM
To:Steve Plunkett
Cc:scottmorgan75@gmail.com
Subject:Re: Don't forget me
I am planning on meeting with you tomorrow. Is 1:30 or 2 ok?
Regards, Bob Sweetapple
On Dec 26, 2017, at 6:29 PM, Steve Plunkett <gplunk99@gmail.com> wrote:
Hi Bob,
Please call Wednesday -- with New Year's approaching, I'm running out of time to talk with you and
compile a story by our deadline. Without your info, I'll just have what O'Boyle's people have told me,
and that would make Mayor Morgan unhappy.
Thanks,
Steve Plunkett
Coastal Star
954-501-8643
---------- Forwarded message ----------
From: Robert Sweetapple <rsweetapple@sweetapplelaw.com>
Date: Sun, Dec 17, 2017 at 9:50 AM
Subject: Re: O'Boyle v Gulf Stream v O'Boyle etc
To: Steve Plunkett <gplunk99@gmail.com>
You too. I will call you on the 26th.
Regards, Bob Sweetapple
On Dec 16, 2017, at 1:10 PM, Steve Plunkett <gplunk99@gmail.com> wrote:
the 26th or 27th would be good. have a great xmas!
On Sat, Dec 16, 2017 at 12:33 PM, Robert Sweetapple
<rsweetapple@sweetapplelaw.com> wrote:
Hi Steve
I am preparing a Year End Report and will share it with you and be happy to discuss. I
will be back in town the 23rd. Let me know a good day.
Regards, Bob Sweetapple
On Dec 13, 2017, at 2:31 PM, Steve Plunkett <gplunk99@gmail.com> wrote:
1
Hi Bob, it's Steve Plunkett with the Coastal Star. Mayor Morgan said
he's talked with you about showing the total progress the town has
made closing out the O'Boyle cases to put the recent 4th DCA ruling in
perspective.
When's a good time to gather information and/or talk? I can be ready
when you are.
Steve Plunkett
Coastal Star
954-501-8643
2
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132 MPH NOMINAL WIND SPEED (3 SEC GUST)
RISK CAT=11 EXP='C'
PORCH LIVE LOAD= 100 PSF
PORCH DEAD LOAD= 15 PSF
NET UPLIFTS= 26 PSF
1 SITE PLAN Enlarged
A1.02 1B•=1- 12'-O'WIDEDOCK
Notes:
1. Backup generator to be installed.
2. Propane tank(s) to be Installed
3. At Improvements and equipment shown to be Installed hereon
Shall be Installed in accordance with the Town of Gulf Stream
Code in existence as of January 1, 1981.
4. Martin O'Boyle reserves the right to make such other
Installations and Improvements provided such other
Installations and Improvements shall be Installed In
accordance with the Town of Gulf Stream Code in existence as
of January 1, 1981.
s
CURRIE
SOWARDS
AGUILA
architects
Architecture, Planning,
Interiors, &
5ustalnable Oeslgn
AA260015M
185 HE 4TH AVENUE SUFTE:01
DEIMY eFApl, FL J3483
T:(561) 276-4951 F:(561) 243-81e1
E—L: I-*.. xrrAi[eRz.mm
155'uE0 TCR :
CURRENT 5-10-2018
PERVIT 4-07-2017
C=F `1RU;110N
FFJ)CCT TUEE
OBOYLE
RESIDENCE
KITCHEN AND
DOCK
RENOVATION
23 HIDDEN HARBOR DRIVE
GULF STREAM, FLORIDA
aL n= D.u5
NUM DESCRIPTION DATE
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PER ESTABLISHED INDUSTRY
STANDAROSANOREPRESENTTHE
ARCHITECT AND ENGINEERS DESIGN
CON CEPT.THEYARENOTINTENDED
TO PROVIDE EVERY DETAIL OR
CONDITION REOUIRED TO
CONSTRUCT THE BUILDING, THE
CONTRACTORTHROUGH
SUBMITTALS ANOOTHER
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EDGE OF SEA WALL / 4
PROPERTY LINE
(3) 2X8
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8.540.625 GLULAM OR
7A24 VERSALAM
FBC 2014
170 MPH ULTIMATE WIND SPEED (3 SEC GUST)
132 MPH NOMINAL WIND SPEED (3 SEC GUST)
RISK CAT=11 EXP='C'
PORCH LIVE LOAD= 100 PSF
PORCH DEAD LOAD= 15 PSF
NET UPLIFTS= 26 PSF
1 SITE PLAN Enlarged
A1.02 1B•=1- 12'-O'WIDEDOCK
Notes:
1. Backup generator to be installed.
2. Propane tank(s) to be Installed
3. At Improvements and equipment shown to be Installed hereon
Shall be Installed in accordance with the Town of Gulf Stream
Code in existence as of January 1, 1981.
4. Martin O'Boyle reserves the right to make such other
Installations and Improvements provided such other
Installations and Improvements shall be Installed In
accordance with the Town of Gulf Stream Code in existence as
of January 1, 1981.
s
CURRIE
SOWARDS
AGUILA
architects
Architecture, Planning,
Interiors, &
5ustalnable Oeslgn
AA260015M
185 HE 4TH AVENUE SUFTE:01
DEIMY eFApl, FL J3483
T:(561) 276-4951 F:(561) 243-81e1
E—L: I-*.. xrrAi[eRz.mm
155'uE0 TCR :
CURRENT 5-10-2018
PERVIT 4-07-2017
C=F `1RU;110N
FFJ)CCT TUEE
OBOYLE
RESIDENCE
KITCHEN AND
DOCK
RENOVATION
23 HIDDEN HARBOR DRIVE
GULF STREAM, FLORIDA
aL n= D.u5
NUM DESCRIPTION DATE
_t Bid}Dppl Comments 5N'1]
2 Cmt Dxkb Prop line BI1D'i]
] Ovmer request 6l9'18
PER ESTABLISHED INDUSTRY
STANDAROSANOREPRESENTTHE
ARCHITECT AND ENGINEERS DESIGN
CON CEPT.THEYARENOTINTENDED
TO PROVIDE EVERY DETAIL OR
CONDITION REOUIRED TO
CONSTRUCT THE BUILDING, THE
CONTRACTORTHROUGH
SUBMITTALS ANOOTHER
COORDINATION EFFORTS IS FULLY
RESPONSIBLE FOR PROVIDING A
COMPLETE AND OPERATIONAL
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\� `PRIVATE
CANAL
EDGE OF SEA WALL / 4
PROPERTY LINE
(3) 2X8
HTS-20 EA. SIDE EA, END
8.540.625 GLULAM OR
7A24 VERSALAM
FBC 2014
170 MPH ULTIMATE WIND SPEED (3 SEC GUST)
132 MPH NOMINAL WIND SPEED (3 SEC GUST)
RISK CAT=11 EXP='C'
PORCH LIVE LOAD= 100 PSF
PORCH DEAD LOAD= 15 PSF
NET UPLIFTS= 26 PSF
1 SITE PLAN Enlarged
A1.02 1B•=1- 12'-O'WIDEDOCK
Notes:
1. Backup generator to be installed.
2. Propane tank(s) to be Installed
3. At Improvements and equipment shown to be Installed hereon
Shall be Installed in accordance with the Town of Gulf Stream
Code in existence as of January 1, 1981.
4. Martin O'Boyle reserves the right to make such other
Installations and Improvements provided such other
Installations and Improvements shall be Installed In
accordance with the Town of Gulf Stream Code in existence as
of January 1, 1981.
s
CURRIE
SOWARDS
AGUILA
architects
Architecture, Planning,
Interiors, &
5ustalnable Oeslgn
AA260015M
185 HE 4TH AVENUE SUFTE:01
DEIMY eFApl, FL J3483
T:(561) 276-4951 F:(561) 243-81e1
E—L: I-*.. xrrAi[eRz.mm
155'uE0 TCR :
CURRENT 5-10-2018
PERVIT 4-07-2017
C=F `1RU;110N
FFJ)CCT TUEE
OBOYLE
RESIDENCE
KITCHEN AND
DOCK
RENOVATION
23 HIDDEN HARBOR DRIVE
GULF STREAM, FLORIDA
aL n= D.u5
NUM DESCRIPTION DATE
_t Bid}Dppl Comments 5N'1]
2 Cmt Dxkb Prop line BI1D'i]
] Ovmer request 6l9'18
PER ESTABLISHED INDUSTRY
STANDAROSANOREPRESENTTHE
ARCHITECT AND ENGINEERS DESIGN
CON CEPT.THEYARENOTINTENDED
TO PROVIDE EVERY DETAIL OR
CONDITION REOUIRED TO
CONSTRUCT THE BUILDING, THE
CONTRACTORTHROUGH
SUBMITTALS ANOOTHER
COORDINATION EFFORTS IS FULLY
RESPONSIBLE FOR PROVIDING A
COMPLETE AND OPERATIONAL
1BUADrt�G wHUHER INDICATED CN
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a-
Exhibit A
Martin O 'Boyle v. Town of Gulf Stream
Case No. 2014CCOI5050, Palm Beach County
3. Admits Plaintiffs right to seek expeditious resolution of this matter pursuant to Fla.
Stat.§ 119.11(1). Denies all remaining allegations in this numbered paragraph.
PARTIES, JURISDICTION AND VENUE
4. Admits .
5. Admits only to the extent that the allegations in this numbered paragraph accurately
reflect the contents of the document referenced therein. Denies with respect to all allegations in
conflict with the document.
6. Admits.
7. Admits that venue in Palm Beach County is appropriate. Denies that Plaintiffs civil
rights have been violated and need vindication.
8. Denies.
FACTS RELEVANT TO ALL COUNTS
9. Admits only to the extent that the allegations in this numbered paragraph accurately
reflect the contents of the document referenced therein. Denies with respect to all allegations in
conflict with the document.
10. Admits that Defendant did not respond to this request, which Plaintiff subsequently
withdrew as set forth in the First Affirmative Defense.
11. Admits only to the extent that the allegations in this numbered paragraph accurately
reflect the contents of the document referenced therein. Denies with respect to all allegations in
conflict with the document.
2
LAW OFFICES OF SWEET AP PLE, BROEKE R & V ARK AS , P.L.
20 S .E . 3 RD S TREET, B OCA RATON, FLORIDA 3 3432
Martin O 'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
12. Admits only to the extent that the allegations in this numbered paragraph accurately
reflect the contents of the document referenced therein. Denies with respect to all allegations in
conflict with the document.
13. Admits that Defendant has been unable to respond to this request, as a result of
Plaintiff and the Counter-Defendants' conspiracy as set forth in the Counterclaim.
14. Admits.
COUNT I -UNLAWFUL WITHHOLDING OF PUBLIC RECORDS
15. Defendant realleges and incorporates by reference its response s to paragraphs 1
through 14, as though fully set forth herein.
16. Admits only to the extent that the allegations in this numbered paragraph accurately
reflect the contents of the document referenced therein. Denies with respect to all allegations in
conflict with the document.
17. Denies.
18 . Without knowledge, and therefore denies and demands strict proof thereof.
19. Admits.
20 . Denies.
21. T he allegations in this numbered paragraph consist of a single incomplete sentence,
which appears to contradict Plaintiffs assertion that no public records were provided by the Town.
To the extent this numbered paragraph requires a response, the Town is without knowledge and
therefore denies and demands strict proof thereof.
22. Denies.
3
LAW OFFICES OF SWEETAPPLE, BROEKER & V AR.KAS, P.L.
20 S.E. 3 RD STREET, B OCA RATON, FLORIDA 334 32
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
RELIEF REQUESTED
With the exception of the immediate hearing requested in sub -paragraph (a), Defendant
denies that Plaintiff is entitled to any of the re lief sought in the "WHEREFORE" clause that follows
paragraph 22 including sub-paragraphs (b) through subparagraph (t).
COUNT II -UNLAWFUL WITHHOLDING OF PUBLIC RECORDS
23. Defendant re -alleges and incorporates by reference its responses to paragraphs 1
through 8 and 11through13, as though fully set forth herein.
24. Admits only to the extent that the allegations in this numbered paragraph accurately
reflect the contents of the document referenced therein . Denies with respect to all allegations in
conflict with the document.
25. Denies.
26. Without knowledge, and therefore de nies and demands strict proof thereof.
27. Denies.
28. Denies.
29. The allegations in this numbered paragraph consist of a single incomplete sentence,
which appears to contradict Plaintiffs assertion that !!Q public records were provided by the Town.
To the extent this numbered paragraph requires a response, the Town is without knowledge and
therefore denies and demands strict proof thereof.
30. Denies.
RELIEF REQUESTED
With the exception of the immediate hearing requested in sub-paragraph (a), Defendant
4
LAW O FF ICES OF SWEETAPPLE, BROEKER & V ARK.AS , P.L.
20 S.E. 3RD STREET, B OCA RATON, FLORIDA 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CCOl5050, Palm Beach County
denies that Plaintiff is entitled to any of the relief sought in the "WHEREFORE" clause that follows
paragraph 58 including sub-paragraphs (b) through subparagraph (f).
GENERAL DENIAL
Defendant denies each and every allegation not specifically admitted herein.
AFFIRMATIVE DEFENSES
First Affirmative Defense-Waiver
Plaintiff waived his right to receive any public records. On August 1, 2014, Plaintiff
submitted via email a public records request for certain public records of the Town. Plaintiff titled
the email 'Public Records Request #762" and assigned the Requestor's Request ID# as 762. A copy
of the request is attached as Exhibit A. Immediately after filing this request, Plaintiff sent an email
to the Town clerk, Rita Taylor, entitled 'Recall: Public Records Request #762. In the body of the
email, Plaintiff stated "Records would like to recall the message, "Public Records Request #762." A
copy of this email is attached as Exhibit B. Thus, by his own conduct, Plaintiff withdrew public
records request #762 and waived any right to receive responsive documents from the Town. The
clerk 's decision not to respond to the withdraw request was reasonable.
Second Affirmative Defense -Unclean Hands
Plaintiff has unclean hands as set forth herein and in the Counterclaim. Plaintiff, along with
his son, Jonathan O'Boyle, Christopher O'Hare, William Ring, Denise DeMartini, Ryan Witmer,
"The O'Boyle Law Firm, P.C.," (collectively "Counter-Defendants") and others have entered into a
conspiracy and enterprise to inundate the Town of Gulf Stream with nearly two thousand public
records requests with the purpose of generating attorney fee entitlements to the above described law
5
LAW OFFICES OF SWEET APPLE, B ROEKER & V ARKAS, P. L.
20 S .E . 3RD STREET, B OCA RATO N, FLORIDA 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beac h County
firm. These requests are being submitted by these individuals and by bogus not-for-profit
corporations formed and funded by Plaintiff and the Co-conspirators. In addition, the requests are
being propound ed through fictitious names and other entities created by Plaintiff and the other
Counter-Defendants for the purpose of disguising their involvement of the conspirators in their
scheme. Typically, the requests are for obscure or purely haras sing documents for which the
requester has no real interest. Under the guise of seeking open government pursuant to Florida law,
Counter-Defendants have effectively crippled the clerk of the tiny Town of Gulf Stream, who has
been unable to timely and competently respond to the barrage of ill-conceived requests. The
conspiracy, including the operation of numerous bogu s not-for-profit corporations and the purported
O'Boyle Law Firm, is run from the same boiler room owned, operated and funded by Plaintiff.
Plaintiff should not be heard to complain about the timeliness or completeness of publ ic records
responses in light of the fact that Pl aintiff is actively attempting to subvert and prevent any such
compliance by deliberately creating a barrage of requests calculated to create delay giving ri se to
litigation.
By way of example, Counter-Defendant O'Hare began making public records requests to the
Town in Jul y 2013. Initially, those public records requests were made by O'Hare in his own name
or us ing anonymous email addresses that the Town knew to be associated with O'Hare , The Public
Records Act authorizes a custodian to collect a fee, prior to discl osing the records, for the cost of
copying the records. Fla. Stat. §119.07(4) (providing the custodian "shall furnish a copy ... of the
record upon payment of the fee prescribed by law"). The custodian may also collect a special
service charge for requests that "require extensive use of information technology resources or
6
LAW OFFICES OF SWEETAPPLE, BROEKER & VARKAS , P.L.
20 S .E . 3 RD STREET, BOCA RATON, FLORIDA 33432
Martin O 'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
extensive clerical or supervisory assistance .... "Fla. Stat. §119.07(4)(d). Although O 'Hare would
make numerous requests in a single day, the Town initially did not assess any special service
charges to him for extensive use of information technology resources or extensive clerical or
supervisory assistance before making responsive records available.
In January 2014, in res ponse to sixty (60) individual public records requests O 'Hare
submitted to the Town on January 16, 2014, the Town wrote to O 'Hare to advise that since
August 2013, O'Hare had made more than 500 public records requests, that the Town had already
spent more than 200 hours responding to Mr. O 'Hare 's prior requests, that O'Hare had failed to
retrieve the vast majority of documents gathered by the Town in response to his requests, and that
O 'Hare had failed to pay the copy charges associated with those documents that had been made
available or to pay estimates associated with other request. Thereafter, the Town began to assess
special service charges against O 'Hare for his extensive use of information technology resources
and/or extensive clerical or supervisory assistance associated with responding to his requests. To
avoid those special service charges associated the time spent responding to requests from a single
individual and make the Town believe that numerous individuals were requesting records , O 'Hare
began making public records requests in a single day or within a few days to the Town using
fictitious or fraudulent personal identification. The fraudulent a liases used by O'Hare, many of
which mock the names of Town officials including Town Manager Bill Thrasher, Mayor Scott
Morgan and Commissioners Donna White, Joan Orthwein and Robert Ganger, include:
Irnawaty Tirtarahardja irnawatyt@ gmail.com 1
7
L AW O FFI CES OF SWEETAPPLE, B ROE KER & V ARKAS, P .L .
20 S .E . 3RD S TREET, B OCA RATON, F LORI DA 334 3 2
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
Janto Djajaputra jantodjaj aputra@gmail.com2
Rodrigo Tejera tejeratejeratejera@gmail.com3
Nevada Smith nevadasmithcowboy@gmail.com4
Frank Smith frank.smith.iconoclast@gmail.com5
Hokuikekai Keihanaikukauakahihuliheekahaunaele
110i0i001110ii0111100i0ii0llll@gmail.com
Buffy Howell buffyhowell@gmail.com
bobbygangrene@gmail.com
billytrasher@gmail.com
scottymorgin@gmail .com
gonnawhite@gmail.com
Frederick.freddy.farnsworth@gmail.com
groanorthwein@gmail.com
discover.the.record@gmail.com
Bobby Gangrene
Billy Trasher
Scotty Morgin
Gonna White
Freddy Farnsworth
Groan Orthwein
Americo Vespuchi
Patrick Henry
Wyatt Burp
Prigs Hypocrites
Harry LaF arge
no. gov.secrets@gmail.com
ok.coral.record@gmail.com
prigs.and.hypocrites@gmail.com
lafargetech@gmail.com 6
1 When a cursor hovers over this email address, a link appears to chrisoharegulfstream@gmail.com
. O 'Hare has filed at least one public records lawsuit seeking reco very under the Public Records Act
for a public records request filed in the name of Irnawaty Tirtarahardja. See 0 'Hare v. Gulf Stream,
Case No. 2014CA008327XXXXMB AF (15th Judicial Circuit in and for Palm Beach County).
2 When a cursor hovers over this email address, a link appears to chrisoharegulfstream@gmail.com
,_Moreover, O 'Hare has filed public records lawsuits seeking recovery under the Public Records Act
for a public records request filed in the name of Janto Djajaputra. See O'Hare v. Gulf Stream, Case
No. 2014CA006848XXXXMB AB (15th Judicial Circuit in and for Palm Beach County); O 'Hare v.
Gulf Stream , Case No. 2014CA007516XXXXMB AD (15 1h Judicial Circuit in and for Palm Beach
County).
3 When a cursor hovers over this email address, a link appears to c@gmail.com. O'Hare has filed at
least one public records lawsuit seeking recovery under the Public Records Act for a public records
request filed in the name of Rodrigo Tejera. See 0 'Hare v. Gulf Stream, Case No.
2014CA006848XXXXMB AB (15th Judicial Circuit in and for Palm Beach County).
4 When a cursor hovers over this email address, a link appears to chrisoharegulfstream@gmail.com
5 When a cursor hovers over this email address, a link appears to c@gmail.com.
8
LAW O FF ICES OF SWEETAPPLE, BROEKER & VARKAS, P .L.
20 S.E. 3RD STREET, BOCA RATON, FLORIDA 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
For instance, on each of September 30, 2014 and October 1, 2014, O 'Hare submitted five (5) public
records requests to the Town. Just one of those requests was made in his own name, while the other
four (4) were made using the aliases Billy Trasher, Bobby Gangrene, Gonna White and Scotty
Morgin. Similarly, on November 12 , 2014, O'Hare submitted four (4) public records requests to the
Town using the aliases Americo Vespuchi, Prigs Hypocrites, Wyatt Burp, and Patrick Henry.
Although a person may request public records anonymously, O'Hare deliberately chose not to do
so. Instead, he used multiple aliases to misrepresent his identity and to fraudulent induce the Town
not to assess special service charges against him associated with the extensive use of resources and
clerical or supervisory assistance.
O'Hare has made hundreds of additional public records requests to the Town using fictitious
or fraudulent personal identification. He also began filing public records lawsuits against the Town
in October 2013 and has since filed some 27 such lawsuits against the Town, including one suit
together with Counter-Defendant Martin O'Boyle. O'Hare has filed at least four (4) additional cases
against the Town during this same period, including two in federal court.
As part of the scheme Plaintiff, O'Boyle has made hundreds of public records requests in the
past year in his name and in the name of bogus entities including Citizen's Awareness Foundation,
Inc.
Third Affirmative Defense -Equitable Estoppel
Plaintiff is equitably estopped by his conduct as set forth above in the Second Additional
6 O'Hare has filed at least one public records lawsuit seeking recovery under the Public Records
Act for a public records request filed in the name of Harry LaFarge. See 0 'Hare v. Gulf Stream,
Case No. 2014CC012274XXXMB AB (15 1h Judicial Circuit in and for Palm Beach County).
9
L AW OFFICES OF SWEETAPPLE , BROEKER & V ARKA S, P.L.
20 S.E. 3 RD S TREET, B OCA RATON, FLORID A 33432
Martin O 'Boyle v. Town of Gulf Stream
Case No. 2014CCOI5050, Palm Beach County
Affirmative Defense, and in the Counterclaim, from complaining about the timeliness or
completeness of the Town's responses to his public records request.
Fourth Affirmative Defense -Compliance With Florida Sunshine Laws
At all times material, Defendant's efforts for compliance with Plaintiffs requests were
reasonable under the calculated burdensome circumstances created by Plaintiff and the other
Counter-Defendants' conduct. Plaintiff may not be heard to complain or seek attorney's fees where
he himself has devised a scheme to frustrate and prevent compliance.
Fifth Affirmative Defense -Unlicensed Practice of Law
Plaintiff is not entitled to any attorney 's fees allegedly incurred or owed to the purported
O 'Boyle Law Firm. That firm is not a bona fide interstate or Florida law firm. It is instead a front
used by Jonathan O'Boyle to practice law in the state of Florida on a full-time basis, despite the fact
that he is not admitted to do so . The firm is funded , owned, and operated by Plaintiff, Martin E.
O 'Boyle, a non-lawyer. This court should revoke the charter of the O'Boyle Law Firm to conduct
business in Florida and order said firm to disgorge all attorney's fees it has collected.
Counterclaim for Declaratory Judgment and Injunctive Relief
Defendant/Counter-Plaintiff, Town of Gulf Stream (''the Town"), by and through its
undersigned counsel, hereby brings this counterclaim for Declaratory Judgment and Injunctive
Relief against Plaintiff/Counter-Defendant Martin E. O 'Boyle, and Counter-Defendants Ryan
Witmer ("Witmer"), an individual , Christopher O 'Hare ("O'Hare"), an individual, William Ring
("Ring"), an individual, Jonathan O'Boyle, an individual, Denise DeMartini ("DeMartini"), an
individual, and The O 'Boyle Law Firm, P.C. ("O'Boyle Law Firm"), and states as follows :
10
L AW OFFICES OF SWEETAPPLE, B ROEKER & VARKAS, P .L.
20 S.E. 3RD STREET, BOCA RATON, FLORIDA 33432
Martin O 'Bo yle v. Town of Gulf Stream
C ase No. 2014CC015050, Palm Beach County
Jurisdiction and Parties
1. This is an action for declaratory relief pursuant to Chapter 86, Florida Statutes, and an action
for temporary and permanent injunction pursuant to Fla. R. Civ. P . 1.610.
2. The Court has jurisdiction over this action pursuant to Fla. R. Civ. P. l. l 70(a) and Florida
Statutes § 86.011.
3. Counter-Plaintiff, the Town, is a Florida municipal corporation in Palm Beach County,
Florida.
4 . Counter-Defendant, Martin E. O 'Boyle, is a resident of Florida, residing in Palm Beach
County. Martin O 'Boyle is also: (i) the President and owner of Commerce Group, Inc.
("Commerce Group"); (ii) the sole member of Stopdirtygovernment, LLC ("Stopdirtygovernment");
(iii) the sole member of Our Public Records, LLC ("OPR"); (iv) a director of Public Awareness
Institute, Incorporated ("PAI"); and (v) a client of Counter-Defendant O'Boyle Law Firm.
5. Counter-Defendant Witmer is an attorney licensed to practice law in the state of Florida, and
is a former partner in the purported O'Boy le Law Firm. Upon information and belief since
engaging in the scheme in Florida, Mr. Witmer has left The O 'Boyle Law Firm and moved to New
York.
6 . Counter-Defendant Ring is a resident of Broward County, Florida, is an attorney licensed to
practice law in the state of Florida, and upon information and belief, i s practicing with, and is a
partner or shareholder of Counter-Defendant, the O'Boyle Law Firm, as well as its registered agent.
Ring is also: (i) Vice-President of Commerce Group; (ii) the founding Pres ident of Citizens
11
L AW O FFICES OF SWEETAPPLE, BROEK ER & V ARKAS , P.L.
20 S .E . 3 RD STREET, B OCA RATON, FLORIDA 3343 2
Martin O'Boyle v . Town of Gulf Stream
Case No . 2014CC015050, Palm Beach County
Awareness Foundation, Inc . ("CAFI"), (iii) and the re gistered agent for OPR and
Stopdirtygovernment.
7. Counter-Defendant O'Hare is a resident of Florida, residing m Palm Beach County.
O'Hare is also a client of Counter-Defendant O'Boyle Law Firm.
8. Counter-Defendant Jonathan R. O'Boyle is a resident of Florida, residing in Palm Beach
County, and is an attorney that is not licensed to practice law in Florida; however, he is the
founding principal of Counter-Defendant O 'Boyle Law Firm, and currently its President , sole
director and manager. Jonathan O'Boyle is the son of Counter-Defendant Martin O'Boyle, and is
also a director of PAI.
9. Counter-Defendant DeMartini is a resident of Florida, residing in Martin County. DeMartini
is also; (i) an employee of Commerce Group; and (ii) the current President and director of CAFI.
DeMartini manages the O 'Boyle Law Firm on behalf of her long-time employer, Martin O 'Boyle.
10. Counter-Defendant O'Boyle Law Firm, is a foreign corporation that purports to b e a
bona-fide interstate law firm , currently identifying its principal address located at 1001 Broad
Street, Johnstown, Pennsylvania. In its Application to the Florida Department of State on February
10 , 2014, the firm identified its principal address at 2146 E. Huntingdon St., Philadelphia, PA.
Defendant Jonathan O 'Boyle is the sole officer and director of the O'Boyle Law Firm , but is not
licensed to practice law in the state of Florida. The O'Boyle Law Firm's Florida address is 1286
West Newport Center Drive, Deerfield Beach, FL 33442, which is directly adjacent to the offices of
CAFI, PAI, QPR, Stopdirtygovemment, and the Commerce Group.
12
LAW OFFICES OF SWEETAPPLE, BROEKER & V ARKAS, P.L.
2 0 S.E. 3RD S TREET, B OCA RATON, FLOR IDA 3 3432
Martin O'Boyle v . Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
11 . All conditions precedent to this Counterclaim have been performed, occurred, or otherwise
waived by the Counter-Defendants.
Factual Allegations
12. Pursuant to Chapter 119, Florida Statutes, commonly referred to as the Sunshine law, the
legislature has determined that: "It is the policy of this state that all state, county, and municipal
records are open for personal inspection and copying by any person. Providing access to public
records is a duty of each agency."
13. Florida prides itself on the transparency required of its elected officials, and its elected
officials often pride themselves on providing such transparency to those that have elected them to
serve.
14 . Accordingly, pursuant to section 119.07, all qualifying entities: "shall permit the record(s) to
be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable
conditions .... " In furtherance of this transparency, "a custodian of public records and his or her
designee must acknowledge requests to inspect or copy records promptly and respond to such
requests in good faith. A good faith response includes making reasonable efforts to determine
from other officers or employees whether such a record exists and, if so, the location at which the
record can be accessed."
15 . In addition to criminal penalties, public officers (or "contractors") are subject to prevailing
party attorneys ' fees in civil court upon a showing of "unlawful refus[al ] to permit a public record
to be inspected or copied ... " Notably, this prevailing party fee provision is one-sided and can only
13
L AW OFFICES OF SWEETAPPLE, B ROEKER & V ARK AS, P.L.
20 S .E . 3 RD STREET, B OCA RATON, FLORIDA 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
be invoked by the party making the public records request, and not the agency or contractor
responding to the request.
16. Commencing in at least 2013 , and currently ongoing, Counter-Defendants have entered into
a scheme to inundate the Town with nearly two thousand public records requests.
17. One purpose of this assault has been to frustrate the Town's abilities to comply with the
requests in a timely and complete manner. This allowed Counter-Defendants to then generate
lawsuits to be filed by the purported O'Boyle Law Firm who would prosper by taking advantage of
the Town's delay (though justified) in compliance and thereby seeking attorney's fees.
18. Prior to the initiation of the conspiracy or scheme to create litigation by subverting the
purpose of section 119.07, Counter-Defendant Martin O'Boyle already had an extensive history
filing public requests in New Jersey , Florida and elsewhere. Martin O'Boyle has previously used
the public records request process in abusive fashion to file nearly two thousand requests and to file
vexatious and frivolous lawsuits to cripple local governments into granting his development.
19 . By way of example, in the case of Martin E. 0 'Boyle v. Peter !sen, 2014 WL 340104
(N.J.Super.A.D.)7, the Superior Court of New Jersey , Appellate Division, noted:
From September 2007 through early July 2008, plaintiff [Martin O 'Boyle] and members of
his family filed multiple requests pursuant to the Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to -13 . Longport's only clerk worked part-time, and she did not address
the requests within the time required by statute. At one point , the clerk went to the
emergency room because of the stress she attributed to the flood of OPRA requests. And , in
February 2008, the Borough's solicitor notified plaintiff that it would not accept any
additional OPRA requests he filed, explaining that the numerous requests were substantially
7 In the !sen case, Martin O'Boyle sued a resident of Longport for claiming Martin O'Boyle was
"the enemy of Longport". The suit for defamation was dismissed by summary judgment and
affirmed by the appellate court.
14
L AW O FFI CES OF SWEETAPPL E, BROEKER & V ARKAS, P .L.
20 S .E . 3 RD STREET, B OCA RATO N, F LO RID A 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
disrupting governmental services. The solicitor claimed that Longport had received 190
requests on October 16 and 17 and thirty filed October 31, 2007.
20. When his daughter was being prosecuted for driving under the influence in Palm Beach
County, Florida, Martin O'Boyle inundated the Palm Beach County State Attorney 's Office both
individually and through some of the other Counter-Defendants with over 1,300 requests for public
records in an effort to stop the prosecution.
21. Despite the fact that Jonathan O'Boyle was not a Florida lawyer, he opened and ran the
O'Boyle Law Firm, as a foreign profit corporation on February 10, 2014. This law firm was opened
and operated from his father's corporate offices of the Commerce Group, located in Deerfield
Beach, Florida. Both Martin O'Boy le and Commerce Group financed all activities of the O'Boyle
Firm.
22 . Upon information and belief, at the time of registering the O 'Boyle Law Firm as a Florida
foreign profit corporation, and identifying a principal office address as 2146 E. Huntingdon St.,
Philadelphia, PA, the O'Boyle Law Firm had no real business presence in Philadelphia,
Pennsy 1 vania.
23. It further appears that at that time:
a. The O'Boyle Law Firm did not own or lease any commercial space in Pennsylvania.
b. The O'Boyle Law Firm did not have a business telephone line in Pennsylvania.
c. The O 'Boyle Law Firm had no employees and paid no salaries in Pennsylvania.
d. The O'Boyle Law Firm did not pay city or state taxes in Pennsylvania.
e . The O'Boyle Law Firm did not obtain an occupational license to conduct business in
the City of Philadelphia.
15
LAW OFFICES OF SWEETAPPLE, BROEKER & V ARKAS, P.L.
20 S.E. 3RD STREET, B OCA RATON, FLORIDA 33432
Martin O'Boyle v. Town of Gulf Stre am
Case No. 2014CCO l 5050, Pahn Beach County
f . The O 'Boyle Law Firm's sole principal, officer and director, Jonathan O'Boyle, used
his Florida cell phone number (561 -758-1 223), as the firm telephone number.
g. Jonathan O'Boyle is a member of the Pennsylvania Bar, but not of the Florida Bar.
h. Jonathan O'Boyle advised the Pennsylvania Bar that he is an out-of-state attorney
with an address in Gulf Stream, Florida.
i. Jonathan O'Boyle advised the Pennsylvania Bar that his address is in the Town of
Gulf Stream, Florida at 23 N. Hidden Harbour Drive , his parent's home address .
J. At all times material, Jonathan O'Boyle was residing in the state of Florida and
practicing law without a license at the described Florida offices .
24 . Counter-Defendant Witmer, a licensed Florida attorney , was an alleged partner of the
O'Boyle Law Firm .
25. Now that Counter-Defendant's had the law firm in place, Martin O'Boyle, Jonathan
O'Boyle, Witmer, and the O'Boyle Law Firm required "clients" -pre-textual plaintiffs that they
could use in sending out frivolous and fraudulent public records requests and accompanying
lawsuits. Accordingly, Martin O'Boyle and Jonathan O 'Boyle, along with Ring and DeMartini,
used existing and newly formed bogus not-for-profit entities as a front to make public records
requests and create litigation for the O'Boyle Law Firm which then could be used to either defraud
or extort defendants into paying inflated settlement amounts and to profit from the proceeds derived
thereby.
26. Martin O 'Boyle, Jonathan O'Boyle and Witmer knew that they could not own and control
the non-profit they now intended to create as well as the law firm to which all of the so-called
16
L AW OFFICES OF SWEETAP PLE, B ROE KER & V ARKAS , P.L .
2 0 S .E . 3RD STREET, B OCA RATON, FLORIDA 3343 2
Martin O 'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
"clients" would be referred. To further legitimize their scheme to defraud and extort, they needed
someone experienced in initiating and pursuing public records litigation. They found that someone
in Joel Chandler ("Chandler").
27. In or about 2013, Chandler had previously met with Counter-Defendant O'Hare to discuss
public records litigation. O'Hare was upset with the Town over the denial of his zoning application
regarding construction of a metal roof.
28. In an attempt to force the Town to approve his roof, O 'Hare recruited Chandler and entered
into the conspiracy with the other Counter-Defendants to inundate the Town with public records
requests .
29. O'Hare met regularly with Martin O 'Boyle and Jonathan O'Boyle and agreed to work in
concert with them and to file hundreds of public records requests in his own name as well as under
fictitious names with the clerk for the Town of Gulf Stream.
30. O'Hare further agreed that after the Town was incapacitated and unable to timely and fully
respond to the public records requests , the O'Boyle Law Firm would represent O'Hare in litigation
against the Town in order to generate money for the firm.
31. Chandler instructed O'Hare on how to set up public records cases against the Town that
were "Triple A" or "kill shots ."
32. O'Hare began making public records requests to the Town in July 2013.
33 . Initially, those public records requests were made by O'Hare in his own name or using
anonymous email addresses that the Town knew to be associated with O'Hare.
17
L AW O FF ICES OF S WEETAP PLE, B ROE KER & V ARKA S, P .L.
20 S .E . 3RD STREET, B OCA RATON, FLORID A 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CCOl5050, Palm Beach County
34. The Public Records Act authorizes a custodian to collect a fee, prior to disclosing the
reco rds, for the cost of copying the records. Fla. Stat. § 119 .07(4) (providing the custodian "shall
furnish a copy ... of the record upon payment of the fee prescribed by law"). The custodian may also
collect a special service charge for requests that "require extensive use of information technology
resources or extensive clerical or supervisory assistance .... " Fla. Stat.§ 119.07(4)(d).
35. Although O'Hare would make numerous requests in a single day, the Town initially did not
assess any special service charges to him for extensive use of information technology resources or
extensive clerical or supervisory assistance before making responsive records available.
36. In January 2014, in response to sixty (60) individual public record s requests O'Hare
submitted to the Town on January 16 , 2014, the Town wrote to O'Hare to advise that since
August 2013, O'Hare had made more than 500 public records requests, that the Town had already
spent more than 200 hours responding to Mr. O'Hare's prior requests, that O'Hare had failed to
retrieve the vast majority of documents gathered by the Town in response to his requests, and that
O'Hare had failed to pay the copy charges associated with those documents that had been made
available or to pay estimates associated with other request.
37. Thereafter, the Town began to assess special service charges against O'Hare for his
extensive use of information technology resources and/or extensive clerical or supervisory
assistance associated with responding to his requests.
38. To avoid those special service charges associated the time spent responding to requests from
a single individual and make the Town believe that numerous individuals were requesting records,
O'Hare began making public records requests in a single day or within a few days to the Town
18
LAW OFFICES OF SWEETAPPLE, BROEKER & VARKAS, P.L.
20 S.E. 3RD STREET, BOCA RATON, FLORIDA 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CCOI5050, Palm Beach County
using fictitious or fraudulent personal identification. The fraudulent aliases used by O'Hare, many
of which mock the names of Town officials including Town Manager Bill Thrasher, Mayor Scott
Morgan and Commissioners Donna White, Joan Orthwein and Robert Ganger, include:
Irnawaty Tirtarahardja irnawatyt@gmail.com8
Janto Djajaputra jantodjajaputra@gmail.com9
Rodrigo Tejera tejeratejeratejera@gmail.com 10
Nevada Smith nevadasmithcowboy@gmail.com 11
Frank Smith frank.smith.iconoclast@gmail.com 12
Hokuikekai Keihanaikukauakahihuliheekahaunaele
llOiOiOOlllOiiOllllOOiOiiOllll@ gmail .com
Buffy Howell buffyhowell@gmail.com
Bobby Gangrene bobbygangrene@gmail.com
Billy Trasher billytrasher@gmail.com
Scotty Morgin scottymorgin@gmail.com
Gonna White gonnawhite@gmail.com
Freddy Farnsworth Frederick.freddy.farnsworth@ gmail.com
8 When a cursor hovers over this email address , a link appears to chrisoharegulfstream@gmail.com
. O 'Hare has filed at least one public records lawsuit seeking recovery under the Public Records Act
for a public records request filed in the name of Irnawaty Tirtarahardja. See 0 'Hare v. Gulf Stream,
Case No. 2014CA008327XXXXMB AF (15 1h Judicial Circuit in and for Palm Beach County).
9 When a cursor hovers over this email address, a link appears to chris oharegulfstream@gmail.com
~Moreover, O 'Hare has filed public records lawsuits seeking recovery under the Public Records Act
for a public records request filed in the name of Janto Djajaputra. See 0 'Hare v. Gulf Stream, Case
No. 2014CA006848XXXXMB AB (15th Judicial Circuit in and for Palm Beach County); O'Hare v.
Gulf Stream , Case No. 2014CA007516XXXXMB AD (15th Judicial Circuit in and for Palm Beach
County).
10 When a cursor hovers over this email address, a link appears to c@ gmail.com. O 'Hare has filed
at least one public records lawsuit seeking recovery under the Public Records Act for a public
records request filed in the name of Rodrigo Tejera. See 0 'Hare v. Gulf Stream, Case No.
2014CA006848XXXXMB AB (15th Judicial Circuit in and for Palm Beach County).
11 When a cursor hovers over this email address, a link appears to
chrisoharegulfstream@ gmail.com.
12 When a cursor hovers over this email address, a link appears to c@gmail.com.
19
LAW O FFICES OF SWEET APPLE, BROEKER & V ARKAS, P .L.
20 S .E . 3 RD STREET, B OC A RATON, F LORIDA 3343 2
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CCOl5050, Palm Beach County
Groan Orthwein
Americo Vespuchi
Patrick Henry
Wyatt Burp
Prigs Hypocrites
Harry Lafarge
groanorthwein@gmail.com
discover. the.record@gmail.com
no.gov.secrets@gmail.com
ok. coral .record@gmail.com
prigs.and.hypocrites@ gmail .com
lafargetech@ grnail.com 13
39. For instance, on each of September 30 , 2014 and October 1, 2014, O'Hare submitted five (5)
public records requests to the Town. Just one of those requests was made in his own name, while
the other four (4) were made using the aliases Billy Trasher, Bobby Gangrene, Gonna White and
Scotty Margin. Similarly, on November 12 , 2014, O'Hare submitted four (4) public records
requests to the Town using the aliases America Vespuchi, Prigs Hypocrites, Wyatt Burp, and
Patrick Henry.
40. Although a person may request public records anonymously, O'Hare deliberately chose not
to do so. Instead, he used multiple aliases to misrepresent his identity and to fraudulent induce the
Town not to assess special service charges against him associated with the extensive use of
resources and clerical or supervisory assistance.
41. O 'Hare has made hundreds of additional public records requests to the Town using fictitious
or fraudulent personal identification.
42 . O 'Hare began filing public records lawsuits against the Town in October 2013 and has since
filed some 27 such lawsuits against the Town, including one suit together with Counter-Defendant
Martin O'Boyle. O'Hare has filed at least four (4) additional cases against the Town during this
same period, including two in federal court.
13 O 'Hare has filed at least one public records lawsuit seeking recovery under the Public Records
Act for a public records request filed in the name of Harry LaFarge . See 0 'Hare v . Gulf Stream,
Case No. 2014CC012274XXXMB AB (15 1
h Judicial Circuit in and for Palm Beach County).
20
LAW OFFICES OF S WEETAPPLE, B ROE KER & V ARK AS , P.L.
20 S.E. 31U> S TREET, B OCA RATON, FLORlDA 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
43. Chandler also met with Martin O 'Boyle, Jonathan O'Boyle, and Witmer to instruct them in
"Triple A" or "ki ll shots."
44. Chandler bragged to Counter-Defendant Witmer that in 2012, he was able to bring an
attorney 101 public records cases "in the space of about 6 weeks. Each case had perfect facts and
are what [Chandler] refer[s] to a s a "Triple A" or "kill shot."
45 . Chandler also advised the Counter-Defendants that they needed to "figure out the economics
of this -who gets paid and how-and then how many cases we want to do and roll with it."
46. Chandler finally advised Counter-Defendants that "[t]he less conspicuous method is just to
pay the filing fees and go for the throat and get paid quickly."
47 . Chandler was invited to the O'Boyle home in Gulf Stream, Florida where both Martin and
Jonathan O'Boyle resided. At the initial meetings Chandler, the O 'Boyles, and Witmer discussed
the O'Boyle Law Firm's capacity for handling public records request litigation throughout the state.
48 . As a result of the meetings, Martin O'Boyle incorporated an all eged not-for-profit entity by
the name of CAFI. Now, Martin O'Boyle was funding not only the O'Boyle Law Firm, but also one
of the feeder organizations-CAFI.
49. Martin O 'Boyle, on his own and through his other entities, then provided cash funding to
CAFI and the O'Boyle Law Firm as well as other considerations such as free rent, use of
employees , and vehicles. To do this, Martin O'Boyle used both his own personal assets and the
assets of his business, Commerce Group . Martin O 'Boyle effectively owned the O'Boyle Law Firm.
21
LAW OFFICES OF SWEET APPLE, BROEKER & V ARKAS, P .L.
20 S.E. 3 RD STREET, BOCA RATON, FLORIDA 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CCOl5050, Palm Beach County
50. Martin O'Boyle caused the entity, CAFI, to be incorporated in Florida and directed that his
three close business as sociates, William Ring, Denise DeMartini , and Brenda Russell be named as
the Board of Directors.
51. Martin O'Boyle also agreed to hire Chandler to serve as the Executive Director of CAFI at a
six-figure salary as well as substantial benefits. Chandler's duty was to travel the s tate making
hundreds of public records requests to public entities and state contractors . Thereafter, any evidence
that would serve as a pretext for a lawsuit was to be forwarded immediately to Jonathan O'Boyle
for the filing of litigation . Both CAFI and the O'Boyle Law Firm were operating from a room
located in Commerce Group 's offices .
52. Prior to meeting the O'Boyles, Chandler had earned approximately $5,000 .00 during the
year 2013. Upon opening the alleged foundation , Martin O 'Boyle agreed to pay Chandler
$120 ,000 .00 per year and to provide him with a car to drive around the state to make public records
requests. Martin O 'Boyle advised Chandler that he would entirely fund the foundation and law firm
on an unlimited basis including the payment of all court filing fees . Unbeknownst to Chandler,
both Martin O 'Boyle and Jonathan O 'Boyle were also going to require that all of CAFI's clients be
represented by the O'Boyle Law Firm, that Chandler would not have exclusive control over whether
a claim is settled and for how much , and that the O'Boyle Law Firm, CAFI, Martin O'Boyle and
Jonathan O 'Boyle intended to obtain fraudulent settlements from unwitting defendants by claiming
their fees and costs were for an amount in excess of what they actually were .
53. On January 27, 2014, CAFI was incorporated and Chandler was hired to act as Executive
Director. No board meetings were called nor did any occur. Instead, Martin O'Boyle undertook to
22
L AW OFFICES OF SWEET APPLE, B RO EKE R & V ARKAS , P .L .
2 0 S .E. 3 RD S TREET, BOCA RATON, FLORIDA 334 32
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
direct the foundation personally, along with operatives that he placed on the board-Ring and
De Martini.
54. Martin O'Boyle threatened to stop the flow of money when his orders were not followed by
CAFI .
55. As instructed, and in furtherance of the scheme, Chandler began creating public records
requests and legal claims and referred these to the alleged O 'Boyle Law Firm.
56 . From January 2014 to at least July 2014, Jonathan O'Boyle permanently resided at his
parents ' home in Gulf Stream, Florida. During that time Jonathan O 'Boyle helped dire ct the
O'Boyle Law Firm from his father's offices at Commerce Group , including removing attorneys
who were handling CAFI cases. At no time did Chandler direct that specific attorneys be removed
from CAFI cases or authorize such personnel change. These decisions were made and directed by
Jonathan O 'Boyle.
57 . Despite the fact that Jonathan O'Boyle was not a Florida licensed attorney, he also offered
Chandler legal counsel with regard to Chandler's own personal cases pending in the State of
Florida. Jonathan O'Boyle further advised Chandler that he had assigned a Florida pending case to
himself to handle.
58. In March 2014, Chandler's suggestion was rejected and he was directed by Ring and
DeMartini that all public record request lawsuits by CAFI, OPR, PAI, and Stopdirtygovernment
LLC must be referred to the O'Boyle Law Firm for filing.
23
LAW OFFICES OF SWEETAPPLE, BROEKER & V ARKAS, P.L.
20 S .E. 3RD STREET, BOCA RATON, FLORlDA 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CCOI5050, Palm Beach County
59. Towards the end of March and in early April 2014, Chandler learned that Ring and Martin
O'Boyle were making public records requests directed to the Town of Gulf Stream, allegedly at the
behest of CAFI , without his knowledge or consent.
60 . In April 2014, when Chandler inquired as to why he was not informed about all lawsuits
filed by CAFI, the organization over which he was the executive director, DeMartini explained to
Chandler that she was Martin O'Boyle's key employee and the director on the board of CAFI, to
whom Chandler was to report. DeMartini further explained that she would be directing the flow of
litigation to the O 'Boyle Law Firm.
61. Also during April, DeMartini advised Chandler that Martin O'Boyle had approved the CAFI
mission statement. DeMartini, a non-lawyer, attended law firm meetings with Chandler and
participated in reviews of all client matters, not just CAFI cases. She made personnel decisions for
the O 'Boyle Law Firm and managed the alleged law firm's finances while claiming to be a board
member of CAFI.
62. During April 2014, DeMartini demanded that Chandler produce a minimum quota of25 new
public records lawsuits a week for the alleged O 'Bo yle Law Firm to file .
63. During this time Chandler also learned from an attorney at the O 'Boyle Law Firm that
Jonathan O 'Boyle had been drafting lawsuits and filing them under the attorney 's name without the
attorney's knowledge or consent. Chandler was informed that this was done on more than one
occasion and that Jonathan O 'Boyle directed lawyers in the firm on settlement strategies.
24
L AW O FFICES OF SWEETAPPLE, B ROEKER & V ARK.AS, P .L.
2 0 S .E . 3 RD S TREET, B OCA RATON, FLORIDA 33 432
Martin O'Boyle v. Town of Gulf Stream
Case No. 20 14CCOJ5050, Palm Beach County
64 . In May 2014, DeMartini notified Chandler, who was also an individual client of the
O'Boyle Law Firm, that DeMartini had full access to all of the O'Boyle Law Firm's internal records
and client files. She shared all client reports with Chandler, not just reports concerning CAFI.
65. Based upon Chandler's learning that public records requests were being filed in the name of
the foundation without his knowledge, Chandler again directed that all public records request s on
behalf of CAFI be made by himself, or at the very least, that he be advised they were being made .
66 . On May 16 , 2014, DeMartini asked Chandler for a recap of the number of cases that were
referred by the foundation to the O 'Boyle Law Firm during January through May. DeMartini
expressed her frustration to Chandler that he "had" only generated 211 cases in the 12 weeks since
CAFI was created.
67 . On May 19 , 2014, Chandler met with Ring and DeMartini and again demanded that public
records requests and lawsuits cease being filed without his knowledge or approval. After consulting
with Martin O 'Boyle, Ring and DeMartini agreed that this would no longer occur and confirmed
that Chandler had the sole authority to make public records requests as well as to commence or to
settle public records request lawsuits. Despite this, the O'Boyle Law Firm again filed another
lawsuit against the Town of Gulf Stream, allegedly on behalf of CAFI without Executive Director
Chandler's knowledge or approval.
68 . During May 2014 Chandler learned that the O'Boyle Law Firm had no written fee
agreements or engagement letters between the O'Bo yle Law Firm and CAFI.
69. At the end of May 2014, DeMartini repeatedly requested that Chandler prepare verified
complaint forms to be used by the O'Boyle Law Firm in public records request litigation. She
25
LAW OFFICES OF SWEETAPPLE, BROEKER & VARKAS, P .L .
20 S.E. 3RD STREET, BOCA RATON, F LORI DA 33432
Martin O'Boyle v . Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
specifically requested a template that could be used by the O 'Boyle Law Firm. Chandler refused to
comply with this demand.
70. By the end of May, DeMartini and Jonathan O'Boyle continued to express their frustration
with Chandler because he insisted on reviewing and verifying all lawsuits to be filed on behalf of
the foundation. DeMartini and Jonathan O'Boyle expressed concern that Chandler's review was
slowing down the flow of litigation generated by the firm.
71. By this point it had become clear to Chandler that DeMartini, Ring and the O'Boyles were
only concerned with the volume of cases that could be generated and with the profits that could be
had from fraudulent settlement demands, rather than any public service. Chandler's repeated
attempts to inform Ring and DeMartini of opportunities to work with civil rights groups, public
agencies, student groups and journalists on open government issues were ignored.
72. On June 11, 2014, Chandler met with his private attorneys concerning what he perceived as
serious ethical issues regarding CAFI and the O 'Boyle Law Firm. His attorneys unanimously
recommended to Chandler that he resign from the alleged foundation.
73. On June 30, 2014 Chandler arrived at the Commerce Group/CAFI/O'Boyle Law Firm office
and presented his letter of resignation to Ring. Immediately thereafter, Martin O 'Boyle demanded
that Chandler retract his email confirming Jonathan O'Boyle's complicity in the scheme. Martin
O'Boyle threatened Chandler that if he did not retract his email concerning Jonathan O'Boyle's
involvement in the "windfall" scheme, Chandler would "force us to respond by making your life
very unpleasant." Thereafter, Chandler refused to retract the emails and Martin O'Boyle repeated
his threats several times.
26
LAW OFFICES OF SWEETAPPLE, B ROEKER & V ARKAS, P.L.
20 S.E. 3RD STREET, BOCA RATON, FLORIDA 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CCOI5050, Palm Beach County
74. By June 30, 2014, Chandler exited the scheme and conspiracy. He publically exposed the
enterprise, contacted the Town's legal counsel, and provided an email "drop box" to the Town of
Gulf Stream's legal counsel containing evidence of the fraudulent and criminal conduct.
75. As of the date of the filing of Defendant's Answer , Affirmative Defenses, and Counterclaim,
Plaintiff has individually through bogus entities and alter egos filed hundreds of public records
requests during the past year to the Town. Counter-Defendants have collectively, as part of the
conspiracy to subvert the lawful operation of the Town Clerk, filed nearly two thousand public
records requests against the Town during the same period.
Count I -Declaratory Judgment
76. Counter-Plaintiff re-alleges and incorporates by reference the allegations set forth m
paragraphs 1 through 75 above.
77. There exists a bona-fide adverse interest between the parties concerning whether
Counter-Defendants have the right, power, or privilege to act in the manners described above.
78. Counter-Plaintiff has doubt about the existence or non-existence of Counter-Defendants'
rights or privileges and are entitled to have these doubts removed.
79. Counter-Plaintiff maintains the following while Counter-Defendants dispute same:
a. That the O'Boyle Law Firm is not a lawful interstate law firm.
i. It is in fact funded, owned, and controlled by non-lawyer Martin O'Boyle.
The purported O 'Boyle Law Firm is engaged in fraud and operating contrary
to Florida law and Florida bar rules. Its charter should be revoked.
27
LAW OFFICES OF SWEET APPLE, BROEKER & V ARKAS, P .L.
20 S.E. 3RD S TREET, BOCA RATO N, F LORIDA 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CCOI5050, Palm Beach County
b . Counter-Defendants are acting individually and in concert as part of a conspiracy to
subvert the lawful operation of the Town's clerk's office.
L The Court should act to so declare and enjoin the above-described conduct as
authorized by the Florida Supreme Court in Davis v. McMillan, 38 So. 666
(Fla. 1905).
c. Counter-Defendant O'Hare's conduct amounts to fraudulent misrepresentation and is
in violation of Florida law, particularly Flori da Statutes§ 119.07(4)(d). O 'Hare made
false statements or misrepresentations of material fact to the Town regarding his
identity. At the time that O'Hare made public records requests to the Town using
fraudulent and fictitious identification, he knew that that identification was false.
O'Hare misrepresented his identity to the Town with the intent to induce the Town to
act in reliance by foregoing the assessment of a special service charge to which the
Town would otherwise have been entitled under Fla. Stat. § 119 .07(4)(d). The Town
acted in justifiable reliance on O'Hare's fraudulent misrepresentations. The Town
has a duty to respond to all public records requests but is not permitted to inquire as
to the true identity of the requester. Because of the extensive public records and
other litigation that O'Hare had filed against the Town, the Town would have faced
significant risk of yet another lawsuit it if had questioned the fraudulent
misrepresentations made to it by O'Hare. As a result, while the Town would have
otherwise been able to aggregate all requests made by O'Hare within a short period
of time and , at the very least, on the same day when determining whether to assess a
28
LAW OFFICES OF SWEETAPPLE, B ROEKER & V ARKAS, P.L.
20 S.E. 3 RD STREET, BOCA RATON, FLORIDA 33432
Martin O'Boyle v. Town of Gu lf Stream
Case No . 2014CC015050, Palm Beach County
special service charge for the extensive use of information technology resources
and/or extensive clerical and supervisory assistance, it was induced not to assess
those charges to which the Town would otherwise have been entitled under Fla. Stat.
§ 119.07(4)(d). The Town instead expended significant resources responding to
public records requests and producing documents that were, in fact , requested by
O'Hare at no cost to him.
d. Counter-Defendants' are abusing process in an effort to force the Town to accede to
O'Hare 's roofing application and generate legal fees for the purported O'Boyle Law
Firm.
80 . All adverse parties are before the Court by proper process.
WHEREFORE, Counter-P lainti ff respectfully requests the Court to enter judgment
declaring that:
a. The O'Boyle Law Firm is not a lawful interstate law firm. It is in fact funded,
owned, and controlled by non-lawyer Martin O 'Boyle and the purported O'Boy le
Law Firm is engaged in fraud and operating contrary to Florida law and Florida bar
rules , and its charter should be revoked.
b. Counter-Defendants are acting individually and in concert as part of a conspiracy to
subvert the lawful operation of the Town's clerk's office. See Davis v. McMillan, 38
So. 666 (Fla. 1905).
c. Counter-Defendant O'Hare's conduct is fraudulent misrepresentation in violation of
Florida law, including, but not limited to , Florida Statutes§ 119 .07(4)(d).
29
L AW O FFICES OF SWEETAPPLE , BROEK ER & V ARK AS, P .L .
2 0 S.E. 3 RD STREET, B OCA RATON, FLORID A 33432
Martin O'Boyle v. Town of Gulf Stream
Case No. 20!4CC015050, Palm Beach County
d. Counter-Defendants' are abusing process in an effort to force the Town to concede to
O'Hare's roofing application and generate legal fees for the purported O'Boyle Law
Firm.
Counter-Plaintiff further prays the Court to retain jurisdiction to enter supplemental relief
including claims for damages or disgorgement of monies or attorney's fees recovered by
Counter-Defendants.
Count II -Preliminary Injunction
81. Counter-P laintiff re-alleges and incorporates by reference the allegations set forth m
paragraphs 1 through 75 above.
82. As a result of Counter-Defendants' fraudulent scheme as described abov e, Counter-P laintiff
has suffered and will continue to suffer irreparable harm. This includes the monopolization of the
Town's clerk's office in fulfilling public records request and the inability of the Town to reasonably
comply with the inundation being perpetrated by Counter-D efendants .
83. Counter-Plaintiff has no adequate remedy at law because without an injunction
Counter-Plaintiff is unable to keep its clerk's office operating on a reasonable basis .
84. Counter-Plaintiff has a substantial likelihood of success on the merits because
Counter-Defendants ' actions, as described abo ve, are fraudulent and intended to cripple the Town's
operations , close the clerk's office, and extort the Town.
85. The entry of an injunction will not disserve the public interest because it will prevent the
misuse of Florida's Sunshine Law by Counter-Defendants.
30
LAW OFFICES OF SWEETAPPLE, BROEKER & V ARKA S, P .L.
20 S .E. 3RD STREET, B OCA RATON, F LORIDA 3343 2
Martin O'Boyle v. Town of Gulf Stream
Case No. 2014CCOl5050, Palm Beach County
WHEREFORE, Counter-Plaintiff prays this Court to enter a preliminary injunction against
Counter-Defendants and order that they cease their fraudulent scheme of using the Florida Sunshine
Law, which allows for open government for all, as a way of closing the Town government.
Counter-Plaintiff respectfully requests all other relief that the Court deems proper and just.
Count III -Permanent Injunction
86 . Counter-Plaintiff re-alleges and incorporates by reference the allegations set forth m
paragraphs 1 through 75 and 81 through 85 above.
87. Counter-Defendants actions violate Counter-Plaintiffs clear legal right to properly maintain
the Town's clerk 's office for all citizens. Counter-Defendants are attempting to monopolize the
Town 's clerk and close the office, all for the purpose of extorting the Town.
88 . Counter-Plaintiff has no adequate remedy at law because without an injunction
Counter-Plaintiff has no way to keep its clerk's office operating on a reasonable basis.
89. A permanent injunction is necessary to prevent irreparable harm to the Town.
WHEREFORE, Counter-Plaintiff prays this Court to enter a permanent injunction against
Counter-Defendants and order that they cease their fraudulent scheme of using the Florida Sunshine
Law, which allows for open government for all, as a way of closing the Town government.
Counter-Plaintiff respectfully requests all other relief that the Court deems proper and just.
Jury Demand
Counter-Plaintiff hereby demands trial by jury to determine disputed issues of fact attendant
to the declaratory judgment.
31
LAW OFFICES OF SWEETAPPLE, BROE KER & YARK.A S, P.L.
20 S.E. 3RD STRE ET, B OCA RATON, FLORIDA 33432
Martin O 'Boyle v. Town of Gulf Stream
Case No. 2014CC015050, Palm Beach County
Respectfully submitted ,
ROBERT A. SWEETAPPLE, ESQUIRE
20 S.E. 3rd Street
Boca Raton, FL 33432
Telephone: (561) 392 -1230
Email: pleadings@sweetapplelaw.com
By: --+--*-~---'--~------=" ""C'"-~--=:c::::::::::__l --=:_-===---ROBERT A. SWEETAPPLE
Florida Bar No.: 0296988
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via the
E-Filing Portal this 21st day of January, 2015 to: The O 'Boy le Law Firm, P.C., Vrenda Cain,
Esquire and Nicklaus Taylor, Esquire (Telephone: 954-574-6885; E-mail:
oboylecourtdocs@oboylelawfirm .com; ntaylor@ oboylelawfirm.com;vcain@ oboylelawfirm.com);
Joanne O'Connor, Es quire , Jones, Foster, Johnston & Stubbs, P .A., 505 South Flagler Drive, Suite
1100,West Palm Beach, Florida33402(Telephone:561-659-3000;Email:joconnor@jonesfoster.com).
32
By: _,_~_._=(;_e:.-_&? ___ -_
ROBERT A. SWEETAPPLE
Florida Bar No . 0296988
LAW OFFICES OF SWEETAPPLE, BROEKER & V ARKAS, P .L.
20 S.E. 3RD STREET, B OCA RATON, FLORIDA 33432
RECORDS REQUEST (the "Request")
Date of Request:. 8/1/2014
Requestor's Request ID#: __ 7_6_2 ___ _
Custodian of Records Town of Gulfstream
REQUESTEE: --~---~-~~-~-~~------
REQUESTOR: Martin E. O'Boyle
REQUESTOR'S CONTACT INFORMATION: E-Mail: records@comrnerce-group.com
Fax: 954-360-0807; Address: 1280 West Newport Center Drive, Deerfield Beach, FL 33442
REQUEST: Provide a copy of all communications and Public Records (as defined in F.S.
Chapter 119) sent by, created by or recieved by Robert Sweetapple or anyone with the firm
Sweetapple, Broeker, Varkas, P.L. (the "Sweetapple Records"}, which Sweetapple Records
include the name Chandler or the person commonly known as Joel Chandler (including his
sons and brothers, of which one brother is named Robert Chandler} as well as copies of the foregoing
Public Records (and related communications which were disemminated to any party), including
without limitation, any official of the Town of Gulfstream, including without limitation, any
member of the Town Commission, the office staff including the Town Manager; the Town Attorney
(John Randolph or anyone with the firm of Jones Foster) for the period beginning on 211/14
through the date of this Request.
ADDITIONAL INFORMATION REGARDING REQUEST: ---------
THIS REQUEST IS MADE PURSUANT TO PUBLIC RECORDS ACT,
CHAPTER 119 OF THE FLORIDA STATUTES AND IS ALSO REQUESTED UNDER THE
COMMON LAW RIGHT TO KNOW, THE COMMON LAW RIGHT OF ACCESS; AND
ANY STATUTORY RIGHT TO KNOW (INCLUDING, WITHOUT LIMITATION, ANY
STATUTORY RIGHT OF ACCESS, AS APPLICABLE). THIS REQUEST IS ALSO MADE
PURSUANT TO THE RIGHTS OF THE REQUESTOR PROVIDED IN THE FLORIDA
CONSTITUTION.
IT IS REQUESTED THAT TIIlS RECORDS REQUEST BE FULFILLED IN ELECTRONIC
FORM. IF NOT AVAILABLE IN ELECTRONIC FORM, IT IS REQUESTED THAT Tms
RECORDS REQUEST BE FULFILLED ON 11 X 17 PAPER. NOTE: IN ALL CASES <UNLESS
IMPOSSIBLE) THE COPIES SHOULD BE TWO SIDED AND SHOULD BE BILLED IN
ACCORDANCE WITH Section 119.07(4) {a) (2)
ALL ELECTRONIC COPIES ARE REQUESTED TO BE SENT BY E-MAIL DELIVERY.
PLEASE PROVIDE THE APPROA.riMATE COSTS (IF ANY) TO FULFILL THIS PUBLIC
RECORDS REQUEST IN ADVANCE.
It will be required that the Requestor approve of any costs, asserted by the Agency (as defined in
Florida Statute, Chapter 119.01 (Definitions)), in advance of any costs imposed to the Requcstor by
the Agency.
I: P/NJ>R/FRR
04 .22 .13 FORM EXHIBIT
-----Original Message ----
From: Records [mailto:records@commerce-group.com ]
Sent: Friday, August 01, 2014 10:16 AM
To: Rita Taylor
Cc: Marty O'Boyle; William Ring ; Beth Kanaly; Jonathan O'Boyle; Giovani Mesa; Nick Taylor; Albert
Medina; Verhonda Williams
Subject: Recall : Public Records Request #762
Records would like to recall the message, "Public Records Request #762".
EXHIBIT
Exhibit B
Article VI
The name and address of the incorporator is:
WILLIAM RING
1280 WEST NEWPORT CENTER DRIVE
DEERFIELD BEACH, FL 33442
Electronic Signature oflncorporator: WILLIAM RING
N14000000853
FILED
January 27, 2014
Sec. Of State
tscott
I am the incorporator submitting these Articles of Incorporation and affirm that the facts stated herein are
true. I am aware that false information submitted in a document to the Department of State constitutes a
third degree felony as provided for in s.817.155, F.S. I understand the requirement to file an annual report
between January 1st and May 1st in the calendar year following formation of this corporation and every
year thereafter to maintain "active" status.
Article VII
The initial officer(s) and/or director(s) of the corporation is/are:
Title: P
WILLIAM RING
1280 WEST NEWPORT CENTER DRIVE
DEERFIELD BEACH, FL. 33442
Title: S
BRENDA RUSSELL
1280 WEST NEWPORT CENTER DRIVE
DEERFIELD BEACH, FL. 33442
Title: T
DENISE DEMARTINI
1280 WEST NEWPORT CENTER DRIVE
DEERFIELD BEACH, FL. 33442
Article VIII
The effective date for this corporation shall be:
01/20/2014
140723jc -vol_ I.txt
1 IN RE: SWORN STATEMENT OF JOEL CHANDLER
2 BY: THE TOWN OF GULF STREAM
3
4
5
6
7
8
9
10
11
12
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14
15
16
17
18
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1 Taken by:
SWORN STATEMENT OF
DATE TAKEN:
TIME:
PLACE:
JOEL CHANDLER
Wednesday, July 23, 2014
10:48 a.m. -3:56 p.m.
Sclafani Williams court
Reporters
402 south Kentucky Avenue
suite 390
Lakeland, Florida
STENOGRAPHICALLY REPORTED BY:
Julie A. Kelley, FPR
Florida Professional Reporter
Page 1
1
2
Exhibit C
140723jc -vol_ I.txt
2 Robert A. sweetapple, Esquire
Sweetapple, Broeker & varkas, PL
3 199 East Boca Raton Road
Boca Raton, Florida 33432
4 (561) 392-1230
5
6
7
8
9
10
11
12
13
14
15
16 ALSO PRESENT:
17 Robert Cruz, Videographer
18
19
20
21
22
23
24
25
1 INDEX
2 WITNESS
3 JOEL CHANDLER
4 called by The Town of Gulf stream:
Page 2
3
PAGE
140723jc -vol_ I.txt
5 Direct Examination by Mr. sweetapple 4
6 STIPULATIONS 191
7 CERTIFICATE OF OATH 192
8 REPORTER'S CERTIFICATE 193
9
10
11
12
13
14
15
16
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18
19
20
21
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25
1
2
E X H I B I T S
(No exhibits were marked.)
PROCEEDINGS
THE VIDEOGRAPHER: Today's date is July 23rd,
3 2014. The time is 10;44 a.m.
4 would the court reporter kindly swear in the
5 witness.
6 (Whereupon the witness was sworn.)
7 JOEL CHANDLER, having been first duly sworn,
Page 3
4
140723jc -Vol_ I.txt
8 testified as follows:
9 THE WITNESS: I do.
10 EXAMINATION
11 BY MR. SWEETAPPLE:
12 Q. Good morning, Mr. chandler. My name is Bob
13 sweetapple and I'm an attorney. I am one of the
14 attorneys who represents the Town of Gulf stream.
15 You're familiar with the town of Gulf stream I take it?
16
17
A.
Q.
I am.
okay. And we have not met prior to today; is
18 that correct?
19
20
A.
Q.
That's correct.
okay. You contacted me with regard to
21 allegations of conduct of Mr. o'Boyle and the O'Boyle
22 Law Firm and offered to provide a voluntary statement.
23 Are you here voluntarily today?
24
25
A.
Q.
I am.
okay. By the same token, I know that you --
1 you have indicated to me that you spoke with your
2 attorneys, private attorneys, before coming here. Have
3 you spoken with your own legal counsel before corning?
4
5
A.
Q.
I have.
All right. And have you elected to come here
6 without legal counsel?
7
8
A.
Q.
I have.
okay. And as I understand it, for some period
9 of time, you worked for a foundation, or an alleged
10 foundation, by the same of the Citizens Awareness
Page 4
5
11
12
13
Foundation?
140723jc -vol_ I.txt
Yes. A.
Q. okay. I do not want to have you do anything
14 that would invade any privilege that foundation has by
15 way of a lawyer/client privilege with any law firm, any
16 Florida law firm or any law firm. If in the course of
17 my questioning or your providing information to me you
18 come to a point where that may be happening, please
19 stop, all right, and stop me if that ever occurs because
20 I don't know what your statement is going to consist of
21 in its entirety by any means.
22 A. okay.
23 Q. By the same token, I know that you have spoken
24 with attorneys because you told me that. You have a
25 right to a privilege with regard to anything you've
1 discussed with attorneys. You have the right to waive
2 that. You've indicated to me that the o'soyle Law Firm
3 has or does represent you with regard to a couple of
4 public records requests. You're the client I take it in
5 those. If you choose to waive the privilege, that's
6 your prerogative. I'll leave that to your decision and
7 discussions with your attorneys.
8 A. I understand.
9 Q. okay. I thought the best way to handle this
10 would be for you to just tell me what it is that you
11 wanted to make the Town of Gulf Stream aware of, keeping
12 in mind that the town does have, I believe, two cases
13 with the citizens Awareness Foundation. I'm not counsel
Page 5
6
140723jc -vol_ I.txt
14 in those cases at this time, but I did --I think you
15 are aware of that fact.
16 A. Yeah, I don't know how many there are, which is
17 part of the reason we're here today.
18 Q. okay. But you were aware that the foundation
19 has filed suits against
20
21
A.
Q.
I just don't know how many.
okay. I don't know either. I'm just going by
22 what I've heard.
23
24
A.
Q.
Right.
All right. Maybe the best way to handle this
25 if this is comfortable for you is just to have you
1 describe for me the matters that are of concern to you
2 that you want to make me aware of. And if you don't
3 mind, if I have a question, I'll interrupt, And if
4 it's --if it's messing up your train of thought, just
5 let me know and I'll wait. But if not, I'll try to
6 follow up and if something is not clear, I'll get you to
7 answer it. And then when you're done with your
8 statement, I'll probably have some questions for you.
9
10 way.
11
12
A.
Q.
A.
sure, feel free to interrupt anywhere along the
okay, please.
Yeah, I, as you know, I think, I went to
13 work --I was hired as the Executive Director of the
14 Citizens Awareness Foundation, Inc. and I've --the
15 genesis of that relationship comes from an e-mail that I
16 received from Marty o'Boyle and got an e-mail from him
Page 6
7
140723jc -vol_ I.txt
17 on January 4th of 2014 and he invited me to meet with
18 him regarding the what became the citizens Awareness
19 Foundation, Inc. He invited me to his home in Gulf
20 stream, which is where I had been previously. I
21 actually met Marty sometime in 2013 I believe, early
22 part of the year. My meeting --original meeting with
23 him was with Barbara Peterson who's president of the
24 First Amendment Foundation. she was having breakfast
25 with him, thought that I might have some interest in
1 talking to him because as she understood it, he was
2 interested in open government issues as I am. Not --
3 nothing really significant happened at that original
4 meeting in west Palm Beach. we actually met at a --I
5 think it was a Holiday Inn In west palm Beach near the
6 airport. we met for an hour or so and that was sort of
7 that.
B And then sometime after that, I was contacted
9 by Marty's attorneys asking for my input on a number of
10 public records issues they were having in west Palm
11 Beach or Palm Beach county. so I traveled at their
12 expense down to west Palm Beach. And again, this was
13 sometime in 2013. I think it was probably around the
14 Fall. And I reviewed a very large number of public
15 records requests they had made. It was a very casual
16 relationship at that point. And we sort of stayed in
17 contact. We seemed to hit it off. He's a very, very,
18 very pleasant man, very charming.
19 And then in January, on January 4th of 2014, he
Page 7
8
20
140723jc -Vol_ I.txt
asked me to come down to West Palm Beach or to Gulf
21 stream to meet with him, which I ultimately did. we
22 exchanged a series of e-mails leading up to that. He
23 invited me to stay at his home. I met him at his home,
24 I believe it was on it would have been around January
25 22nd I think maybe, in that vicinity. we met at his
1 home and he asked that the two of us meet privately and
2 that's when he first told me about his vision for
3 creating a foundation. And the idea, as I understood
4 it, was he wanted to provide to me meaningful economic
5 resources so that I could be more effective in my civil
6 rights advocacy. And r have for a number of years,
7 probably eight or nine years, worked full time as a
8 civil rights activist. And my primary focus is open
9 government issues. I work with a number of civil rights
10 organizations. I'm very active in a number of minority
11 communities trying to help people better understand
12 their civil rights with respect to access to public
13 records and open meetings.
14 so what Marty proposed essentially was that he
15 would create or I don't want to say that he would
16 create, that he would provide the economic resources for
17 the creation of a foundation that would be originally a
18 not-for-profit and that the intention was to immediately
19 begin the process of filing as a 501-C3 with the IRS to
20 become a non-profit.
21 when we talked, his original proposal was that
22 I would be hired, we didn't really have a title at the
Page 8
9
140723jc -vol_ I.txt
23 time, just that I would be hired to head up this
24 organization and that he would pay me a salary, or the
25 foundation would pay me a salary, which he would --my
1 understanding was he was going to provide all the
2 economic resources. He would be the sole owner, at
3 least in the beginning, and then he would pay me that
4 I would be paid a salary, that I would be provided with
5 a car, that I would be provided with a budget to --to
6 engage in activism and advocacy for open government.
7 We negotiated over a period of several days
8 some of the economic arrangements and ultimately what we
9 agreed to is that I would be paid $120,000 a year, that
10 I would have a very unclear budget. I repeatedly asked
11 what my travel budget would be, what my --you know,
12 what could I plan to spend on advocacy and the response
13 I kept getting was --was whatever it takes. He said
14 that he was prepared to spend $300,000 or more, whatever
15 it takes, to make it possible for me to do what I do.
16 My understanding, or what I believe our
17 agreement was, was essentially that I would be --well
18 for years I had been working for free making very, very,
19 very little money, but I would now have a salary so I
20 wouldn't have to worry about how to feed my family or
21 keep the lights on, that I would be provided with
22 meaningful transportation, and that I would basically be
23 given the resources to do what I had been doing and just
24 be able to do more of it.
25 And what that looks like is meeting with
Page 9
10
140723jc -vol_ I.txt
l student groups on college campuses to inform them,
2 encourage them, to exercise their constitutionally
3 protected civil right to access to public records and
4 open meetings, that I would meet with minority groups,
5 that I would become the public face of this organization
6 and encourage people to exercise their rights. In
7 addition to that, I would continue to do what I've been
8 doing for many years, which is to audit State and local
9 agencies for their compliance with the Public Records
10 Act.
11 Since I've been doing this since 2008, I have
12 personally been the plaintiff in probably something on
13 the order of about 200 public records lawsuits, and
14 that's not an exact number, that's just an
15 approximation. I have won 99 point something percent of
16 those cases and about half of those I've done pro se.
17 so because of that, I've appeared as an expert witness
18 in a number of public records cases. And whether it's
19 deserved or not I don't know, but I guess I'm widely
20 regarded as something of an expert on the issue.
21 Because of that apparent expertise, I think Marty felt
22 that by allowing me to have the resources to go out and
23 do more of the advocacy that I've already been doing,
24 that as a result of that, unfortunately, sometimes
25 litigation is necessary.
Page 10
11
12
140723jc -vol_ I.txt
1 The idea, obviously, was that his son Jonathan
2 was --had already started, not long before this meeting
3 in January, what I understood to be an interstate law
4 firm, the o'Boyle Law Firm. And it was pretty obvious
5 that --that the idea was that if Marty gave me, through
6 this organization, significant economic resources to do
7 what I was already doing anyway, that as a result of
8 that there would probably be public records litigation
9 that would have to be referred to some law firm. And
10 I --it seemed pretty obvious to me that the intent was
11 that as a result of the economic support that I would
12 receive from Marty through this foundation, that his son
13 would --would have public records lawsuits, which that
14 in and of itself did not make me uncomfortable. I did
15 think at the time it was necessary to put in place some
16 safeguards to be sure that this was above board and that
17 there were no ethical or potential legal issues. And
18 there were a number of things that I insisted upon.
19 There were a number of conditions that I put on the
20 arrangement that I had with Marty.
21 And just to kind of give you a sense of the
22 chronology, we met -I think it was on January 22nd.
23 It was a Wednesday. And by the following Monday, which
24 I believe was January 27th, CAFI, the citizens Awareness
25 Foundation, Inc., was actually incorporated. so we
1 arranged --we agreed to my relationship with a yet
2 undefined entity which was created on the 27th and I
3 literally went to work the same day that the foundation
Page 11
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140723jc -vol_ r.txt
4 was created.
5 And I was frankly very excited because it had
6 been a long time since I had had a regular paycheck. My
7 wife was very enthusiastic about that, the prospect of
8 having a regular income. My real enthusiasm was not for
9 the paycheck, it was for the resources to do what I
10 perceived to be real meaningful, valuable advocacy for
11 the public.
12 some of the safeguards that r insisted upon was
13 that, number one, the foundation would be utterly and
14 entirely independent of any influence from Marty and any
15 influence from the O'Boyle Law Firm. And to further
16 that concern or to safeguard that concern, part of the
17 arrangement was that there would be an independent
18 board. In addition to there being an independent board,
19 that I would have absolute sole discretion with respect
20 to the commencement of open government litigation. I
21 would be the only person that made a decision about
22 whether the foundation was going to engage in
23 litigation. I would be the sole person with authority
24 to retain law firms that --part of that would be that I
25 would obviously be serving the pleasure of the board,
1 but the board was to give me discretion about making
2 arrangements to engage with law firms and that I would
3 be the only person acting on behalf of the foundation to
4 make decisions about the settlement or litigation
5 strategies.
6 The other condition that I placed on the --our
Page 12
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140723jc -vol_ I.txt
7 arrangement was that I would be --have sole discretion
8 about where I went and that there would be no, as I put
9 it, enemies list, that there would be no particular
10 agency or entity or person that the foundation would
11 litigate against and that there would be no agency that
12 would be off limits. So I didn't want there to be any
13 kind of an arrangement where I was expected or directed
14 to go after one particular entity or that I would be
15 told that there was somebody I couldn't go a~er. And
16 when I say "go after", what I mean by that is to
17 these audits that I engage in, and which I still do, is
18 I literally will show up at a publically operated agency
19 or a contractor that acts on behalf of a State or local
20 agency and I'll make a public records request for
21 non-exempt public records and see what happens. And if
22 they comply with the Public Records Act, I'll
23 congratulate them and thank them for doing the right
24 thing. And if they violate the Public Records Act and
25 the facts of the cases --of the case are very clear and
1 unequivocal, then I will oftentimes litigate to enforce
2 the public's right to know. Unfortunately in Florida,
3 the only meaningful enforcement of the public's right to
4 know is civil litigation. That's an observation that
5 both the courts and the governor have made.
6 so on the first day, on January 27th, I went
7 out and started doing my thing. I started in --in
8 south Florida in Miami-Dade county and I think I went to
9 12 agencies the first day and of the 12 agencies I went
Page 13
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10 to, there were 10 that were just just egregiously
11 violated the Public Records Act. I mean black and
12 white, unequivocal violations of the Public Records Act.
13 And I ended up referring those first ten cases to the
14 on behalf of the foundation to the O'Boyle Law Firm.
15 They --
16
17
Q.
A.
can you tell me who at the o'Boyle Law Firm?
Yeah, I dealt with Jonathan O'Boyle and I dealt
18 with Ryan Whitmer. I also dealt with --there were two
19 other attorneys that were working there at the time,
20 Marrett Hanna and Giovanni Mesa.
21 Q. okay. And --and did you --did the foundation
22 and the law firm enter into any type of written
23 agreement, retainer agreement of any sort?
24 A. No, none that I'm aware of. In fact, that was
25 an issue that I repeatedly raised. I cautioned them
1 about the potential ramifications of not having a fee
2 agreement or at least an engagement letter for each
3 individual case. My concern was that under 119.12 that
4 entitlement to attorney's fees might be in peril if they
5 didn't have a written fee agreement. But they didn't
6 seem to take that very seriously. To my knowledge,
7 there's never been one.
8 Q. So that --your advice was to have a written
9 fee agreement?
10 A. Yeah. And just so we're clear, I never give
11 legal advice to the public. I am very frequently
12 engaged by, not always for pay, but very frequently
Page 14
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13 engaged or contacted by attorneys asking for my input on
14 public records issues. And that was a very frequent
15 occurrence with the O'Boyle Law Firm. In fact, the
16 very --one of the very first things I did --within the
17 first week I actually did a, for lack of a better term,
18 a public records seminar. There were a couple of civil
19 rights activists that I've known for a while who came
20 down. They were in from North Florida. They came down
21 and sat in as well as Giovanni Mesa, one of the --who
22 was a new attorney at the time and didn't really have
23 much experience with open government litigation --
24 Q. so as far as you know, the foundation has not
25 been a party to any fee agreements with the o'Boyle Law
1 Firm at any time?
2
3
A.
Q,
4 I just
5 A.
Not that I'm aware of.
okay. All right, please continue. I'm sorry.
No, that's quite all right. so the --you
6 know, I --my time was spent, the first week, going out
7 and actually doing audits of public agencies. I
8 contacted the --in fact I did a press release. I was
9 contacted by a number of media outlets. I'm frequently
10 contacted by reporters who very often are frustrated in
11 their attempts to get access to public records. I --
12 somewhere in this general timeframe of late January,
13 early February, I actually spoke with one of my
14 attorneys, Greg Thomas, in fact I met with him in Tampa,
15 he and couple of his associates, to kind of lay out
Page 15
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16 exactly what the arrangement was because what I was
17 concerned about was not only whether what we were doing
18 was legal, I believed that it was, I was also concerned
19 whether it was ethical and I believed what we were doing
20 was ethical because of the safeguards I put in place,
21 but I was also very concerned about the public
22 perception. What I did not want to do is to be involved
23 with something that appeared to be a mechanism for doing
24 nothing more than generating lawsuits.
25 unfortunately, my experience has been that when
1 you do meaningful public records, open government
2 advocacy, a lot of public agencies either just don't
3 understand what their obligations are and because of
4 that they violate the Public Records Act or the sunshine
5 Laws, or I think it's fair to say many of them
6 deliberately do it. so as a result, it's really common
7 to get litigation. It's just a it's sort of part and
8 parcel to what I do. If I were to audit ten publically
9 operated agencies, municipalities, police departments,
10 Sheriff's, on average about 60 percent of those would
11 comply with the Public Records Act. The other 40
12 percent wouldn't. They just wouldn't produce the
13 records. If I were to audit ten state contractors whose
14 contracts explicitly make them subject to the Public
15 Records Act, nine out of ten would just violate the law.
16 so I think --my perception was that Marty, not
17 unfairly, perceived that by giving me the economic
18 resource to do what I was doing, as a result of that
Page 16
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19 there would be litigation that came out of it and
20 litigation has got to go someplace. one of the issues
21 that I've had over the years with private attorneys is
22 their capacity to handle the amount of litigation that
23 comes from what I do. You know, the cost of filing fees
24 and attorneys being willing to take cases on a
25 contingency basis has always been a very significant
1 limiting factor to the amount of litigation that I've
2 been involved with.
3 In spite of being involved with literally
4 hundreds of public records lawsuits, I've only filed a
5 tiny fraction of those that could have been filed just
6 because I simply didn't have the resources to --to
7 litigate the other ones. when I asked Marty about that,
8 you know, what are we --what's your --I think the way
9 I put it to him was what's your tolerance for pain,
10 what
11 many
Q.
A.
12
13
14
15
Q.
A.
how much money are we talking about, I mean how
For what, for filing fees?
For filing fees.
Okay.
Yeah, how many --how --you know, and his
16 response was how many do you think you would get? And
17 my immediate response, just sort of a knee-jerk without
18 really thinking about it, would be 100 and he sort of
19 was like yeah, that doesn't seem --like so what, that
20 doesn't seem like very many. And he was a little I
21 don't remember his exact words, but it was something to
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22 the effect that --that, you know, 100 in a year is not
23 very many and r said, no, no, no 100 a month. I mean if
24 I went out and did what I do full time, it would not
25 surprise me if what resulted were 100 cases a month.
1 And his response, I was really sort of shocked,
2 pleasantly surprised, his response was yeah, sure,
3 that's not a problem. So then I was like, again, just
4 trying to get a trying to get a sense of the depth of
5 the water, what if there were --that would be 1,200 in
6 a year. what if there were --what if there were 2,000
7 in a year? Sure, no problem. What if there were 3,000
8 in a year? sure, no problem, whatever it takes. And I
9 was --it was both frustrating and very windsome,
10 frankly, every time I asked the question well --you
11 know, what's -how much can I spend on travel?
12 \'lhatever it takes. Wel 1, how much can I spend on
13 advocacy? Whatever it takes. All right, well, what if
14 I want to sponsor --the First Amendment Foundation
15 does, every year, they do sunshine seminars all around
16 the state of Florida and they're free to the public and
17 public officials go to them. can I sponsor those?
18 sure. \'/ell, can I buy hundreds of sunshine manuals
19 which cost $18.95 a piece and I just want to give them
20 away, not ask for a penny, I just want to give them to
21 anybody that wants one? sure, buy all you want. I mean
22 it was this sort of blank check, do whatever you think
23 you need to do, you do what you do and and I think
24 the understanding was that as a result of that cases
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25 would --would flow to the O'Boyle Law Firm.
1 But one of the safeguards that I insisted on
2 was that I would be able to refer cases to other law
3 firms because I did not want this to be, you know, the
4 kind of arrangement where all I was doing was generating
5 lawsuits for anybody, but particularly for one law firm.
6 My understanding of our arrangement, what I insisted
7 upon, was I would go do what I do, you'll provide the
8 economic resources for me to do that more effectively,
9 and if litigation flows from that, that's fine, if
10 litigation doesn't flow from that, that's fine. This is
11 not about going out and getting lawsuits. This is about
12 doing meaningful advocacy, knowing that historically
13 unfortunately litigation very often comes from that. I
14 made it very clear that I would not have any kind of a
15 quota for lawsuits. I would --my income, and this was
16 a very critical part of it, my income was completely
17 unaffected by litigation. I didn't get any more or any
18 less whether we got lawsuits or didn't get lawsuits. I
19 got no more resources or no fewer resources whether we
20 got lawsuits or didn't get lawsuits.
21 And, you know, this was a very agreeable,
22 amicable --Marty and I, as I said, met at his home
23 literally sitting next to his pool. And then after that
24 we went and met Jonathan, his son, for dinner and we
25 kind of talked more about the details of this and away
Page 19
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1 we went.
2 Q. okay. so Jonathan was involved in the early
3 meetings with regard to forming this foundation?
4 A. Yeah, my sense of things was that --I --
5 leading up to my trip from Lakeland down to Gulf Stream
6 to meet with Marty, I also had a number of phone calls
7 and e-mail exchanges with Jonathan O'Boyle and Ryan
8 Whitmer who --Ryan was the --as I understood it was
9 his law partner and I had met Ryan before, a very
10 charming guy, a very nice guy. And they were very
11 excited. I've dealt with a lot of lawyers over the
12 years. I change lawyers like most people change socks.
13 And, you know, my perception was you're a couple young
14 guys. They're setting up a law practice. They seemed
15 very excited about open government litigation. And my
16 understanding is they had done a little bit, not very
17 much. They --the big change for me was that I was
18 dealing with people that had real meaningful economic
19 resources because I kept asking the question, not only
20 to Marty, but to the attorneys, what is your capacity?
21 Because when somebody says to me, and I've had attorneys
22 ask me this before, well, you know, like I would love to
23 do litigation, how many cases are we talking about? You
24 know, I would --will ask attorneys what's your --
25 what's your tolerance for pain, how many can you handle?
1 And they almost always are shocked by the --just the
Page 20
22
23
140723jc -vol_ I.txt
2 sheer volume of cases that are out there. There's just
3 almost a limitless number of cases when it comes to open
4 government because there's just so many violations of
5 the law
6 Q.
7 there.
8
9
A.
Q.
okay. Now the --I'd like to just interrupt
Yeah.
Because you didn't start working for the --the
10 foundation wasn't even formed until the 27th of January?
11
12
A.
Q.
Right.
So you met with Jonathan O'Boyle prior to the
13 foundation being formed?
14 A. No, we --we talked on the yes and no.
15 We --he and I spoke on the phone. Ryan and I spoke on
16 the phone. we had a conference ca 11. We exchanged
17 e-mails. we met with --when Marty and I had dinner
18 with Jonathan. I believe it was on the 22nd. And the
19 foundation wasn't actually officially incorporated until
20 the 27th. And there were a series of --there were a
21 number of reasons for that. one was Marty had
22 originally proposed that we use, and r don't even
23 remember the name of it now, there was some
24 not-for-profit that had already been created. My
25 objection to using that was that Mart --that Jonathan
1 was actually on the board and I thought it was entirely
2 inappropriate for an attorney who might represent the
3 foundation to be on the board of the foundation. I
4 thought that clearly showed a potential conflict of
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5 interest
6 Q. What was the name of that not-for-profit?
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
A.
Q.
A.
I have no idea.
And had it just been recently formed?
No, my --my sense was that it had been
created --it had actually been --existed for some
time, but they had never really done much with it.
Q. And did you discuss with Jonathan that would be
a conflict
A.
Q.
A.
Q.
A.
Q.
I did.
And with Martin?
Yes.
okay.
Yeah.
All right. And at the time that you --you
were having the dinner and talking to Jonathan or
communicating with him prior to actually going to work
for the foundation
A. uh-huh.
Q. --did he disclose to you that he was not a
25 member of the Florida Bar?
1 A. I don't recall. I --you know, I had met with
2 Jonathan and Ryan a couple of times back in 2013. You
3 know, we had dinner, sort of a social talk shop kind of
4 thing. And I remember that both of them --I think
5 Jonathan is licensed in Pennsylvania and New Jersey and
6 I think Ryan passed the Bar in New York maybe. Both of
7 them had just sat for the Bar in Florida. I think Ryan
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140723jc -vol_ I.txt
B had gotten his law license in Florida maybe in November
g and Jonathan was still waiting to --he had passed the
10 Bar, but he hadn't yet gotten licensed. I don't know
11 exactly when I learned that. I don't --I don't
12 remember whether that issue came up or not.
13 Q. Before the foundation was formed, did Ryan or
14 Jonathan tell you that they had formed the O'Boyle Law
15 Firm?
16
17
A.
Q.
Yes.
And did they tell you they had opened it
18 whether or not they had opened it in Florida?
19
20
A.
Q.
Yes.
okay. And did you discuss with them who was
21 working at the O'Boyle Law Firm prior to your forming
22 the foundation? Did Jonathan ever tell you that he was
23 working there?
24 A. I don't remember him ever using those words.
25 It was very clear to me that I was talking to the two
1 principals of the law firm. I mean that seemed very,
2 very apparent. It was never presented to me as Ryan is
3 the only attorney that I'm dealing with. I mean this
4 again goes back to the issue of, you know, what's your
5 capacity, how many lawsuits are we talking about --
6 Q.
7 early --
8
9
10
A.
Q.
A.
All right. we'll get into that. This is very
Yeah.
I'm just trying to nail down --
Yeah.
Page 23
26
11
140723jc -vol_ I.txt
--the facts concerning your --your dialogue Q.
12 prior to your becoming employed by this foundation.
13 A. Yeah, part of the --part of the issue was
14 and, you know, I am sort of perpetually on the hunt for
15 attorneys who can either assist me as a plaintiff, but
16 more importantly who are available to assist citizens
17 when they have issues with public records access. I get
18 contacted by citizens all the time, almost every day,
19 and I don't --I'm not a lawyer referral service. I
20 don't ask for anything in return. I don't get any kind
21 of a kickback. I don't get any kind of referral fee.
22 It's just, you know, they are people who need help and
23 most of them don't have the resources to hire an
24 attorney and wouldn't know where to start.
25 So before I even met with Marty, so between the
1 4th of January when I first got this invitation to come
2 down to see him and the 22nd when I went, I had several
3 telephone conversations with Jonathan and Ryan. Part of
4 those were --the initial conversations had nothing to
5 do with the foundation. It was hey, we're starting a
6 law firm, you know, if you need if you want us to
7 take cases, we're available to do that. we kind of
8 talked about, you know, working together in that
9 capacity, either them representing me or me potentially
10 referring clients to them, again, for no compensation on
11 my part. And we even discussed the possibility of them
12 hiring me on a --an ad-hawk basis to consult on public
13 records cases, which I've done for a number of law
Page 24
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140723jc -vol_ I.txt
14 firms. And during that telephone conversation, I
15 actually said to them that, you know, if --a better way
16 of doing this, for a whole host of reasons in my
17 opinion, is to have a non-profit that's actually doing a
18 lot of this litigation as opposed to having individuals
19 doing it. And their response was, you know, sort of to
20 laugh, well, you're really going to enjoy the
21 conversation you're getting ready to have with Marty. I
22 mean they --they clearly knew that the was --this was
23 part of what Marty had intended. And in fact I was so
24 confident of that, the week leading up to my visit with
25 him, I sat down and --in front of my computer and I --
1 I came up with a budget. I really believed this is what
2 they were going to propose, that --that, you know, they
3 would create some sort of foundation and I'm going to
4 have resources. And ironically, the budget I came up
5 with was virtually identical to what Marty proposed.
6 Now, I was only going to --thinking maybe I'd get paid
7 $60,000 a year and I think I was guessing about $250,000
8 a year in total budget. It ended up being closer to
9 300,000 and paying me 120. But, yeah, it was clear that
10 there was and again, I don't --even now I have no
11 objection to that --the concept of a man who's wealthy
12 funding a not-for-profit that does real meaningful civil
13 rights advocacy and operating completely independent of
14 his influence and completely independent of any outside
15 influence, period.
16 Q. And I understand that was the rules you laid
Page 25
28
17
18
19
20
21
22
23
24
25
down --
A. Right.
140723jc -vol_ I.txt
Q. --from the very beginning?
A. Right.
Q. Now, what what I want to be clear on is even
before --before this concept of --of Marty funding and
forming, causing to be formed, a not-for-profit, you had
discussions with Jonathan O'Boyle regarding having his
firm represent you and your entities --or you or your
1 associates or people that you were assisting --
2 A. Yes.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Q. --in public records litigation and the state?
A. Yes.
Q. And who was it that said, during these
conversations prior to talking to Marty, who was it that
brought up the idea of a --forming a not-for-profit,
was that Jonathan, Ryan, you?
A. I --I brought it up and --and simply because,
you know, I really do believe that if you're going to do
a lot of advocacy for all the reasons that --that, you
know, the protections you get from having a corporation
and for --and also frankly from a credibility
perspective, to actually have a legitimate entity that's
going to defend the public's right to know. I thought
that would just be a better way of doing it. And when
I --as soon as I mentioned it, they, you know, not in a
bad way, but they, you know, laughed like, you know,
obviously you and Marty are --are, you know, already
Page 26
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140723jc -Vol_ I.txt
20 thinking the same way. You're really going to like this
21 conversation you have with Marty.
22
23
24
Q.
A.
Q.
so that was Jonathan that said that
It was Jonathan and Ryan, yeah.
Okay. So Jonathan due that your --his father
25 was going to propose that to you, it seemed from your
1 conversation?
2
3 yes.
4
5
A.
Q.
A.
That --that was very much my understanding,
okay.
Now --and I was --when r was setting up this
6 meeting to go down --when I went down there, I actually
7 had expected that I was going to meet with Marty and
8 Jonathan and --and probably Ryan. And when I mentioned
9 that to Marty in an e-mail, his response was I want to
10 meet with you privately first, which was fine, and
11 that's why he and I met at his home and then from there
12 we went --he and I went and met Jonathan at a --at a
13 restaurant.
14 Q. okay. And before you continue, I'd like to
15 follow up on just one other area --
16
17
18
19
A.
Q.
A.
Q.
sure.
--if you don't mind, and I'm sorry if I'm --
No, please do.
--taking you off track. With regard to the
20 proposal that some other not-for-profit or foundation be
21 used, you mentioned that Jonathan proposed one, but he
22 was on the board of it and you rejected that idea.
Page 27
30
23
24
A.
Q.
I did.
Okay.
140723jc -vol_ I.txt
Did you discuss that with just Jonathan
25 or did you discuss that with Marty or Ryan --
1 A. No, we were --we were actually in a in a
2 conference room at Marty's business, commerce Group,
3 which is where all of these --you know, the foundation,
4 the Citizens Awareness Foundation, never had its own
5 offices. we --you know, the --Marty, I thought very
6 generously, allowed me to sort of camp out at empty
7 desks in the building and convenient --it was very
8 convenient actually because the office in Deerfield
9 Beach also housed the law firm
10 Q. so the commerce Group office is at what
11 address?
12
13
14
15
16
17
A. I believe it's --I think it's 1280 West
Newport center Drive, Deerfield Beach, 34422 I think.
Q. And what suite number is the Commerce Group in
or does it have a suite number?
A. I don't think there's a suite number.
Q. okay. And so the --you worked out of the
18 commerce Group offices?
19 A. well, I worked from my home in Lakeland, but
20 when I
21
22
23
24
25
Q. Okay
A. Yeah, but when I went down to Deerfield Beach,
that's where I went
Q. Okay --
A. --was to the commerce Group offices.
Page 28
31
1
2
3
4
5
6
7
140723jc -Vol_ I.txt
Q. And was the law firm, the O'Boyle Law Firm, in
the same offices as --
A. Yes.
Q.
A.
Q.
A.
--the Commerce Group?
Yes.
They weren't in a separate suite?
No, they were literally in a --in a back room.
8 It was sort of funny because they --they --right
9 across the hallway I think --I think the address across
lO the hall is 1286, r think, and the this is a
11 facility. r don't know whether Marty owns it or leases
12 it, but he has control of it. And they were, at the
13 very beginning stages of --of remodeling the space
14 across the hall from the Commerce Group, and while that
15 was going on, the O'Boyle Law Firm had set up shop in a
16 back room and it was just a very --it was a large room
17 that literally --we joked about it. The wires were
18 hanging down from the ceiling. There were no cubicles.
19 rt was just there were desks and it was really,
20 really inconvenient and very annoying actually because
21 if I'd sit in to have --sit down and have a
22 telephone --have a face-to-face conversation with an
23 attorney, you know, one desk over, six feet away,
24 there's another attorney, you know --it's just --it
25 was very chaotic.
Page 29
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33
140723jc -vol_ r.txt
1 Q. And the commerce Group employees could walk in
2 and out of the law firm --
3 A. They did walk in and out. In fact, they shared
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
employees.
Q. okay
A. The -
Q.
A.
And let me follow up on that.
Yeah.
Q. was there ever a separate sign and a separate
door for the law offices when --
A. No.
Q. No. So they were just --the law office was
part of the commerce Group operation?
A. It was housed in the commerce Group operation.
Q. Now, let's get to employees and that because I
understand your insistence that the --the total
independence --
A. Yes.
Q.
A.
Q.
--which I fully appreciate.
uh-huh.
But what I didn't --I didn't --I don't know
22 the names of any of these people that are involved,
23 so
24
25
A.
Q.
Yeah.
--I understand that Jonathan was on the board
1 of the originally proposed foundation, which you
2 rejected. were there any other people on that board
3 that you thought --
Page 30
34
4
5
6
7
A.
Q.
A.
Q.
8 formed
9
10
11
12
13
14
15
16
17
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
140723jc -vol_ r.txt
r don't know.
--constituted a conflict?
r don't know.
okay. And as far as when the foundation was
The Citizens Awareness Foundation.
Yes. can you tell me what the names of the --
Yes.
--board members were and who they were?
Yes. William Ring, Bill Ring
who --who is Mr. Ring?
He is the
I've seen it once.
Yeah, he is the --he's an attorney. I
18 understand he's not really practiced law in the
19 traditional sense much. He, I have been told, has been
20 working with Marty for about 30 years.
21
22
23
Q.
A.
Q.
okay. In his business?
In his business, the commerce Group.
so Mr. Ring was not a member of the O'Boyle Law
24 Firm as far as you were advised?
25
1
2
A.
Q.
A.
Not at the time he was not.
okay. All right --
And in fact, Bill had actually represented me
3 in one public records lawsuit against the Town of Gulf
4 Stream.
5
6
Q.
A.
William Ring is Bill?
Yeah, Bill Ring. My understanding, I don't
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7 know if this is accurate or not, but I was told that he
8 had never even filed a lawsuit before. So when --when
9 I retained him to represent me in a lawsuit --
10
11
12
13
14
15
Q.
A.
Q.
A.
Q.
A.
Keep in mind you don't have to disclose
No, I'm happy to.
--unless you choose to --
No, I'm happy to.
okay.
I mean literally it was, you know, can you help
16 us draft a lawsuit. And I've done a lot of drafting
17 Q. He asked you to draft the --help him draft
18 A. It was either he or --or Ryan Whitmer who at
19 the time Ryan I think had already sat for the Bar,
20 hadn't been licensed yet, so was essentially functioning
21 as his paralegal.
22
23
24
25
1
2
Q.
A.
Q.
A.
Q.
A.
As Mr. Ring's paralegal?
As Mr. Ring's paralegal, yeah.
And --and who asked you to draft the lawsuit?
I think Ryan did.
for Mr. Ring?
For yeah, on behalf --yeah, I don't think
3 there was anything appropriate --inappropriate about
4 it. He was communicating to me from Bill Ring, you
5 know, can you help us. I had --have done a lot of pro
6 se litigation. I --you know, there's a --in fact I've
7 very frequently this is an issue that comes up in --
8 with opposing counsel very often, that they see the same
9 template over and over again and my --you know, my
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10 response is well of course you do, I don't get --my
11 I don't --my time is not compensable so why would I
12
13
14
15
16
draft a lawsuit from
you know, by the way
something percent of
Q. Right --
A. It's a good
scratch for every lawsuit.
it works. I've won 99 point
the time. It's a --
template. They actually --
17 with the lawsuit against Gulf Stream where they
And,
I think
18 represented me as the Plaintiff, I think it was my
19 template they used.
20 Q. okay. Did that case get settled or --
21 A. I want to say that it did, and it wasn't for
22 much. It was like --the number that sticks in my head
23 was like $1,200 or something. It's just whatever the
24 legal fees were. I --I got nothing out of it. It was
25 just --
1 Q. Did you have a written fee agreement with
2 Mr. Ring?
3 A. I don't recall whether we did or not.
4 Q. Do you know if he ever had time records or time
5 billings? Did you ever get a bill --
6 A. couldn't tell you.
7 Q. Did you ever get a bi 11?
8 A. I don't recall seeing a closing statement.
9 Q. And so did you ever see any representation as
10 to how much time he had spent?
11
12
A.
Q.
I don't recall seeing anything like that.
Do you know if he did any work besides use your
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13 template to file a lawsuit?
14
15
A.
Q.
16 settled?
couldn't tell you.
so that --that case was pending and has been
17 A. Yeah, I understand it's been settled.
18 Q. And the counsel of record was not the O'Boyle
19 Law Firm. It was William Ring?
20 A. Yeah, this was -this was long before --I say
21 long before. This was sometime in 2013.
22 Q. '13. Any other cases that were filed by
23 Mr. Ring or anyone involving your --the O'Boyle's in
24 any way prior to the foundation being formed?
25 A. No, and --and in all fairness, that --Bill's
1 representation of me did not involve the O'Boyle's. I
2 mean he --he was not representing me as as I
3 understand, in fact there's an e-mail which which
4 says this, that Bill actually formed, you know, a firm
5 in order to represent me in this case.
6
7
8
Q.
A.
Q.
okay. what was the name of the firm?
I don't remember.
okay. so as far as you're concerned,
9 throughout this time Mr. Ring has his own firm he's
10 working for, but he's also Mr. O'Boyle's business
11 associate?
12
13
14 the
15
A.
Q.
A.
Yes.
okay. So the --Mr. Ring is on the board from
He's the --he was president of the board from
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16 the very beginning.
17 Q. And --and I guess he was --I don't want to
18 guess. Is it accurate to --strike that.
19 Who appointed Mr. Ring to the board, was
20 that --
21
22
A.
Q.
I have no idea. I mean I
Did Martin O'Boyle decide who was going to be
23 on the board?
24 A. That was very much my understanding, yes. I
25 I had no input. I didn't --I had nothing to do with
1 that. I was
2 Q. who was told --
3
4 was
A. I didn't have anything to do with the name. It
I was not at all affectionate towards the name.
5 I was not enthusiastic about it, but it --it is what it
6 is and
7 Q. okay. so Mr. Martin o'Boyle told you who was
8 on the board; is that correct?
9
10
11
12
13
A.
Q.
A.
Q.
A.
Yes.
okay.
so Bill was on the board and then --
Go on.
and then a woman by the name of Denise
14 DeMartini.
15
16
Q.
A.
And who is she?
she is also, I understand it, a long-time
17 employee of --of the commerce Group. she's been with
18 Marty for --I think she's been there longer than Bill.
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19
20
21
22
23
24
25
Q.
A.
140723jc -Vol_ I.txt
okay. so
And I had never met her. she works from her
home as I understand it in Merritt Island, so I --you
know, I would hear her name. I never met her.
Q. okay.
A. And when I talked to her the first time
because all this was happening very quickly. You know,
1 we --we met on the 22nd. I literally stayed at Marty's
2 house for like ten days straight. we were, you know
3 I was looking at trying to hire employees and, you
4 know --I mean this was a very fast paced sort of series
5 of events. And at one point I --I you know, I
6 needed to get a website set up for the foundation and
7 get business cards and, you know, get a logo and that
8 sort of thing and I mentioned something to the --about
9 this to Marty and he suggested that I contact Denise
10 because that --you know, she's really good at that kind
11 of stuff, so I actually called and talked to Denise
12 and --by the way, let me correct --I don't --I wasn't
13 in Marty's house for ten days. I was --I was in south
14 Florida for ten days. I was at his home for several
15 days and then I when I went down to Miami/Dade, I
16 started staying in hotels.
17 When I called Denise to ask for her help on a
18 logo, she --and I mentioned to her about being a board
19 member. She seemed shocked that she was a board member.
20 She made it very clear she didn't even know she was a
21 board member.
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22 Q.
140723jc -Vol_ I.txt
And what did you tell her?
23 A. well, like congratulations, you know, you're
24 apparently you're on the board. And then the other
25 board member, the third and final board member, was a
1 woman named Brenda Russell. And Brenda has been Marty's
2 personal secretary for many, many years. I think she's
3 probably been there longer than Bill or Denise. That's
4 my impression. A very sweet lady. At least from my
5 perception, her involvement with the foundation was
6 minimal. she was really --she was the person that I
7 gave my, in the beginning, gave me receipts to, you
8 know, for reimbursement and credit card stuff. That
9 was --I never dealt with Brenda in any capacity.
10 When --when I did meet with the board, she was never
11 present. Her, you know, involvement seemed, you know,
12 minimal.
13 It was striking to me in the beginning --Bill
14 was the person who seemed to have the most knowledge and
15 experience about government issues, which r would
16 describe as being pretty minimal. Denise seemed
17 completely and utterly unknowledgeable about any
18 government issues at all. And Brenda was the same way.
19 we
20
21
22
23
24
Q. And all three of them were employees of the
commerce Group?
A. Yes.
Q. okay.
A. Yes.
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25 Q. And that's one of the reasons you insisted on
1 having absolute independence?
2 A. That's exactly right. Look, I --I understand
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
that, you know, here you have this very wealthy man,
Marty O'Boyle, who is financing this not-for-profit,
hopefully going to become a nonprofit, and is --is, you
know, prepared to dump hundreds of thousands of dollars
It wasn't just a -a year, in perpetuity by the way.
this is $300,000 to begin with. It was whatever it
And I also understood takes for as long as it takes.
from --both from Marty, from Ryan, and from Jonathan
that Marty was financing the law firm. I had --I don't
know the details, but as I understand it, he was loaning
them the money and was.
Q. who told you that?
A. Marty, Jonathan, and Ryan did on all --all
three of them on separate occasions.
Q. so did --they told you that --that Marty was
funding the law firm?
A. Yes.
Q. And loaning the money for the law firm?
A. Yes. I don't know how much money. I mean
the the number that I heard from Marty was a million
dollars. I don't know whether that's true or not or
accurate or not. Maybe that was just
Q. Do you know if he ever paid salaries of the law
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1 employees from the Commerce Group?
2 A. I couldn't tell you. r can tell you that --
3 that the person who was handling the money is a woman by
4 the name of Carla Clutchen (phonetic), who is a Commerce
5 Group employee. She also is the person that I dealt
6 with for financial issues on behalf of the foundation.
7 she's the person that got my paychecks. she's the
8
9
10
11
person that I sent up --gave --initially gave some of
my receipts to, Brenda and then very shortly r was
directed to start giving all of that to --to Carla.
Q, And Carla works for the Commerce Group?
12 A. Yes.
13 Q, And did the foundation ever open a bank
14 account?
15 A. I believe that it did. I mean I was not a --
16 Q, were your salary --was your salary paid from a
17 commerce --from a commerce Group account or from a
18 foundation account, do you know?
19 A. I couldn't tell you. I think that the --
20 because there were discussions about --in the very
21 beginning, and understand that --that, you know, I have
22 gone from being, you know --I mean when I went down
23 there to meet with Marty, I had one car. I didn't want
24 to leave my wife and children stranded, so I rented a
25 car, the cheapest car I could find. You know, I'm
1 scraping together enough money just to buy gas to get
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44
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2 down there, so I'm doing everything on a shoe-string.
3 And so I --it was an awkward conversation, but I told
4 Marty when we first got started, look, I don't --I'm
5 not in a position to encourage expenses and get
6 reimbursed, I need money up front do you do you even
7 do this? And he was very gracious about it. He called
8 Carla. we were in his conference room. He called Carla
9 and said I you know, cut Joel a check for $1,000 and,
10 you know, and as soon as he needs more money, give him
11 more money.
12
13
Q.
A.
Was this before the foundation was formed?
This is I think when the foundation got formed,
14 but at that point he did not have any bank account, so
15 I'm trying --
16
17
Q.
A.
so he paid from the commerce Group for the --
I think he marked it as a loan because I --I
18 ended up giving that money back once I got reimbursed,
19 but he --he was very insistent that hey, we needed to
20 get a bank account set up for the commerce Group. I
21 think it was set up at BB&T. we need --we need a card,
22 you know, so that Joel can use a credit card.
23 Q. Did you get a credit card from him personally
24 or from the commerce Group or both?
25 A. I got one from Brenda and --that was on, as I
1 understood it, from her. In fact there are a whole
2 bunch of e-mails that will support this, that the first
3 credit card I had was on Marty's account and I know that
4 because it was really annoying. I would --because I
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6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
140723jc -Vol_ I.txt
was on the road a lot, like, you know, maybe weeks at a
time, and she --apparently there were a lot of people,
both at the Commerce Group, that had credit cards on
Marty's personal account because she told me that every
single night I had to scan my receipts and send them to
her, which was really annoying because I would get in
you know, been on the road all day and get in a hotel
room at 11:00 at night and the last thing I want to do
is sit there and scan receipts, which I would have to do
every single night, all my receipts for that day, and
then she very frequently would send me credit card
statements that had all these charges, not just mine,
but other people's, and I had to go through and identify
which ones were mine.
Q.
A.
Q.
A.
And those were on Marty's cards?
Those were on Marty's card, right
When you were in Miami doing work or wherever?
Yeah, wherever, yeah. so --but at some point,
23 within a few weeks, there was actually a credit card
24 that said Citizens Awareness Foundation on it. It had
25 my name on it and, you know, I was no longer --I gave
1 them back the card that I got because I had Marty's
2 card, but it had my name on it. It was his account with
3 my name.
4 Q. Did you reimburse Citizens Awareness for the
5 charges or I mean reimburse Marty for those charges?
6 A. I turned in all my receipts.
7 Q. I mean you were paid by him and then you were
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8 paid by citizens Awareness account?
9 A. I --well, I got a commerce --I got an advance
10 from the commerce Group on a commerce Group check for
11 like $1,000 and I think I went back maybe a week later
12 and needed like another $1,000. And I give them all my
13 receipts and, you know, I --r didn't have anything to
14 do with the money with the -
15 Q. Okay. So you didn't have to repay cash, you
16 just give your receipts for the advance?
17
18
19
20
A.
Q.
A.
Q.
Yeah.
okay, r got you. I understand.
Yeah, and --
And when was the first --was there ever a
21 board meeting after the foundation was formed or did
22 Marty just say your --your title is chairman or
23 something?
24 A. well, we kind of --yeah, we kind of went
25 around and around about the --the title. I felt
1 strongly I have a number of friends who are involved
2 with non -nonprofit organizations and I've never --
3 personally never been a big person --big on titles, but
4 I was told by some people who are involved with
5 nonprofit's that, you know, you really need to be called
6 Executive Director because apparently that matters in
7 the world of nonprofit's I guess. That's code so we can
8 tell each other that we're the big wheel of whatever
9 entity we're involved with. so I told him I wanted to
10 be called the Executive Director and he agreed to that
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11 and, you know --yeah, so I was the Executive Director.
12 Q. okay. Did you ever have any employment
13 agreement, written employment agreement?
14 A. You know, I --I told Marty that I wanted a
15 contract, and this was the --the only --I think the
16 only condition that he did not agree to. I wanted I
17 wanted a five-year contract, and the reason I want ed a
18 five-year contract was I thought that that would further
19 enhance my independence that --and he said, no, he
20 didn't want to do that and then I said well, how about a
21 year, and he didn't want to do that, let's just kind of
22 see how it goes. And, you know, he had been so generous
23 and agreeable on --he originally offered me I think
24 he originally offered me $75,000 and I told him that r
25 wanted 120. I mean why not. I mean -and I was
1 surprised how fast he said yes. rn fact afterwards I
2 thought man, I should have held out for more. He had
3 been so agreeable and --and, you know, Marty has the
4 up until very recently, has always been exceedingly
5 kind, gracious, generous, very deferential to me, just
6 a --you know, my experience with him personally has
7 been nothing but delightful.
8 Q. so you trusted that he would honor your oral
9 agreements with regard to how the foundation would be
10 run without a written contract?
11 A. Yeah, and --and a big part of that was was
12 this sense of deference that he had always given to me,
13 that, you know, he frequently referred to me, and I
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14 don't know why he did this, but he would refer to me as
15 Dr. chandler, you know, that I was the --I was the guru
16 on public records, which I don't hold myself out as
17 that, but he very much perceived that I was sort of the
18 expert on on public records issues and, you know, if
19 I thought that we needed to do things a certain way,
20 that he would defer to that. And I --I put a lot of
21 stock in that deference because I felt that he would
22 continue to defer to my judgment on issues. In fact, he
23 told me that the reason that he was hiring me was
24 primarily because of my judgment. So that, having been
25 communicated, made me feel a pretty high self of --a
1 pretty high level of confidence that, you know, they're
2 going to do things the way I think they ought to be
3 done.
4 Q. And by the same token, you didn't --you didn't
5 sign a non-compete or --
6
7
8
A.
Q.
A.
well, I'm sorry, yeah --
--another agreement or anything like that?
I apologize. r didn't answer your original
9 question about the agreement. We --I ended up drafting
10 memorandum of understanding. That's the closest thing
11 we got to a contract. And he and I batted it around.
12 He asked me to make a number of revisions to it. I
13 never dealt with the board on that issue. It was all
14 with Marty. And I signed it, but I never received a
15 signed copy back from a board member, so I don't --I
16 don't know whether they signed it or not.
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17
18
19
Q.
A.
140723jc -vol_ r.txt
okay. And --
But there was no confidentiality agreement.
There was no --you know, he told me because what I
20 wanted to do originally was I asked for $60,000 a year
21 and the freedom to continue to do pro se litigation and
22 he adamantly refused that. He was really adamant. In
23 fact, he --the way he put it was when I buy people, I
24 want to buy all of them. And I didn't take that to be,
25 you know, offensive necessarily. I didn't think he
1 was --had mentioned servitude. I got what he meant and
2 he wanted 100 percent of my attention. so there --that
3 was the only real stipulation in the memorandum of
4 understanding that I wasn't really enthusiastic about,
5 but at 120 grand a year and a lot of resources, I can
6 live with it.
7 Q. Did you set forth in the memorandum of
8 understanding your independence with regard to
9 instituting litigation, settling litigation
10 A. Yeah, that I would --that I served at the
11 pleasure of the board and I don't --I'm more than happy
12 to furnish you a copy of the --
13 Q. okay --
14 A. --memorandum, but I don't remember the exact
15 details. But, yeah, it was --you know, this was a
16 Marty was not --he's not on the board. He's not on
17 the
18
19
Q.
A.
But you negotiated this with Marty though?
oh, absolutely, there wasn't anybody else to
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20 negotiate with.
21 Q. Right, okay.
22 A. Yeah.
23 Q. So, if you don't mind, I would like a copy of
24 that.
25 A. sure.
1 Q. So I think I diverted you from your --your
2 chronology and your --and what I'd like to do is take a
3 five-minute break.
4
5
A.
Q.
sure.
And then come back and --I think we were at
6 the point where you were describing the formation of the
7 entity and the board and your dealings at that time, so
8 we're, I guess, still in early January or late January?
9 A. Late January, early February, yeah.
10 MR. SWEETAPPLE: okay, great. HOW about a
11 five-minute restroom break?
12
13
THE WITNESS: Sure.
THE VIDEOGRAPHER: We're off the video record
14 at 11:43 a.m.
15 (A short recess was taken.)
16 THE VIDEOGRAPHER: We're on the video record at
17 11:51 a.m.
18 Q.. All right. Mr. chandler, would you please
19 continue with what you wanted to relate to me regarding
20 Mr. O'Boyle?
21 A. Yeah. so we got --we --things really got
22 rolling in earnest starting January 27th. The first
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23 week I did a
140723jc -vol_ I.txt
it was very exciting. I did a seminar
24 for a couple of activists and Giovanni Mesa, one of the
25 attorneys for the O'Boyle Law Firm, sat in on that. And
1 I actually hired the first --or I guess I was the first
2 employee for the foundation, but the second employee, a
3 guy named Terrell Elliston (phonetic). He only worked
4 for a very short time, two or three days. He and I had
5 been friends for a long time and he just decided he
6 wanted to go in a different direction. But I met with
7 he and his wife. He and I went out and actually made a
8 bunch of public records requests together. In fact, he
9 was with me on that first audit I did in south Florida.
10 All of my interactions --I didn't have any interactions
11 with the board at all except --in any official
12 capacity. I talked to Denise DeMartini early on about
13 helping me develop a logo for the foundation and that's
14 when she expressed her surprise that she was on the
15 board. But we --we had that conversation by phone. I
16 still hadn't met her. I would see Bill Ring on a pretty
17 regular basis, but just because he was there at the
18 Commerce Group. we never really interacted much. In
19 fact, we kind of had this ongoing running joke, that
20 when I would see him, I --you know, I'm supposed to
21 be --I serve at your pleasure and, you know, at your
22 direction and his response would be I direct you to
23 go --you know, go do something. I mean, you know, it
24 was sort of --it was sort of in a friendly way, sort
25 of a nod and a wink that, you know, they're really not
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1 doing anything. I'm --I'm doing it, which was great
2 for me because the --frankly the --I was very happy,
3 delighted actually, to be accountable to somebody for
4 the money, for what I was spending, but I was equally
5 delighted that I wasn't really having to answer to
6 anybody about where I spent my time and what I was
7 doing. And I was having lots of meetings with civil
8 rights groups. I was meeting with other activists. You
9 know, r had meetings with the society For Professional
10 Journalists. r had meetings with student organizations
11 and felt like I was really doing what I am passionate
12 about doing. And r was pretty much left alone. There
13 wasn't a whole lot of --actually there wasn't any
14 interaction with the --with the board per se. I did
15 talk to Marty. When I was in South Florida in Palm
16 Beach, r would stay at his home. He was very generous
17 in that respect. And I welcomed the --his hospitality,
18 but also he's very busy and when r was in the office,
19 the Commerce Group office in Deerfield Beach, he's very
20 inaccessible because he's busy. Whereas when I stayed
21 at his home, he would get up early in the morning. I
22 would get up early in the morning. We literally you
23 know, we'd meet in the kitchen and have a cup of coffee
24 at 6:00 in the morning or 5:30 in the morning and for an
25 hour or more I --it was just the two of us. And I
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1 would try to kind of give him updates on what I was
2 doing and it was a little frustrating because he didn't
3 really seem at all interested in the advocacy part of
4 it, you know. For example, I was last year, and
S again this year, I was invited to Tallahassee to meet
6 with Don Gates who's president of the Florida senate to
7 just kind of talk about the government issues. Last
8 year I --he asked for me to give testimony in front of
9 a state senate committee on --on government
10 accountability and oversight. And when I was invited to
11 go again this year, I had a really good meeting and we
12 talked about some proposed open government legislation
13 and in that conversation with the senator Gates, I
14 told him about the foundation and my new job and he was
15 very positive, very pleasant about it. senator Gates is
16 a delightful man anyway. And I was really excited about
17 that. I felt like a big piece of what I was bringing to
18 the foundation wasn't just my ability to --to do audits
19 and the potential litigation that came out of that, but
20 the --and not just my expertise on open government, but
21 I've always cultivated, I think, very meaningful and
22 significant relationships with Barbara Peterson and the
23 First Amendment Foundation and Senator Gates and a
24 number of other public officials, with a lot of other
25 organizations, the society for Professional Journalists
1 and the Associated Press and I have a lot of meeting
2 contacts that I've developed
3 Q. The research I did on you before coming here to
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4 meet you, it appears that you've done quite a bit of
5 work with open government, First Amendment, for
6 journalism. You have quite a bit of expertise in that
7 area.
8 A. A lot, yeah, and I --I am --it would not be
9 hyperbole to say that I get contacted every single week
10 by reporters. I mean, number one, I --I source for a
11 lot of reporters. I spend my time digging through
12 public records and very often that leads to interesting
13 newsworthy stories. so frequently I'm called by
14 reporters who are asking me for --for leads on the
15 stories
16
17
Q.
A.
You're researching for them basically?
Very much so, yeah, with the --not in any
18 formal way. I just --I'm not a --I'm not --I don't
19 pretend to be a traditional media outlet. I don't care
20 about getting credit for the story. I just want the
21 story told. If I find some graft or corruption or
22 something --you know, something I feel the public ought
23 to know about, I just want the story told. so I'm
24 frequently contacted by reporters under that set of
25 circumstances. But also very frequently attorney
1 reporters will contact me saying hey, look, I've asked
2 for this record, they're not giving it to me, what do
3 you think? Well, I'm not an attorney. I can't give you
4 legal advice. I can tell you what I would do if I were
5 similarly situated. And we sort of talk shop about that
6 sort of thing. So I've --I've cultivated a lot of
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7 relationships.
8 Q. And your integrity and your credibility are the
9 cornerstone, I take it, of those relationships?
10 A. Yeah, the way reporters describe me is I'm 100
11 percent source. If I tell a reporter something, they
12 can take it to the bank. I don't exaggerate it. I
13 don't claim it unless I can prove it. I mean frequently
14 that's how reporters --have said that --I'm described
15 as 100 percent source. And it's because I'm a
16 straight-shooter. I mean even if people I think even
17 to a very large extent the public officials that I've
18 had a fairly adversarial relationship with, I thin~ that
19 at the end of the day most of them would acknowledge
20 that, you know, there's a reason why I win. It's
21 because my facts are right. Now, I don't pull the
22 trigger on a lawsuit unless the facts are --are 100
23 percent. And I think that's part of the reason that
24 I've developed good relationships not only with the
25 media, but with some legislators and with people like
1 Barbara Peterson and --and even some academics.
2 so r was --one of the frustrations I had in
3 these meetings that I would have with Marty over coffee
4 is he'd seem completely disinterested in this. so I was
5 trying to explain to him the significance, for example,
6 of this --I had a dinner meeting with the president of
7 the Florida chapter of the society of Professional
8 Journalists, which is the largest journalist
9 organization journalism organization in the world.
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10 And here's a guy who is the head hauncho for that
11 organization for the state of Florida. He's really
12 eager about working on projects. And a big part of my
13 ti me with the foundation was working on specific
14 projects. so for example, I'm very interested in
15 learning the particulars about school resource officers
16 and what kinds of resource officers, what kind of police
17 officers, end up in that position. so for example, I've
18 been told, had a lot of antidotes, that it's just sort
19 of a dumping ground for bad cops. well, I don't know if
20 that's true or not, but I can look at public records and
21 find out. so for instance, in Hillsborough County, if
22 you look at the --if you look at the Hillsborough
23 county sheriff and the Tampa Police Department, which
24 provide SRO's to Hillsborough County School Board, 80
25 percent of their officers have no disciplinary history,
1 none, but of the officers who have been provided as
2 SRO's, 97 percent of them have disciplinary histories
3 and some of those disciplinary issues are very serious,
4 including a TPD officer who was invested for aggravated
5 sexual battery. well, that has the potential to be a
6 really great story. And what I was after in doing these
7 projects, and I had about --literally about 40 of these
8 things. These stories showcase why public records
9 access is so important. The SRO's for example --it
10 doesn't matter whether you're a liberal or a
11 conservative or rich or poor, if you got kids going to
12 public schools, you probably care whether officer
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13 Friendly is a --is a creep or not. If officer Friendly
14 has impulse control issues for, you know, beating
15 suspects, you probably want to know about that. And
16 there --I had a whole bunch of these projects. And to
17 me, why these were important, is they --we hold these
18 up as examples of why public records access matters.
19 And I was disappointed because the response I
20 got was really tepid, sort of like, uh, you know --in
21 fact, Marty told me at one point when I was telling him
22 about the dinner I had with SJP --SPJ, because they
23 wanted to collaborate on these stories, it was sort of
24 like don't tell --I don't --why are you telling me
25 about this, I don't care.
1 Q. And you expected that would be part --a big
2 part of the foundation's --
3 A. It was a big part of it. That was the deal,
4 yeah, absolutely, that --you know, I -getting a
5 paycheck is nice and having lawyers to --to litigate is
6 nice because I need lawyers to litigate when I want the
7 records and to enforce the public's right to know.
8 That's all great. what I care about are the resources
9 to work with groups like the society of Professional
10 Journalists or student groups like Dream Defenders to
11 empower them in their membership to do public records
12 access. But I also want to work with the media to
13 develop these stories that that continue to show the
14 public why it matters that we have access to records.
15 It's a constitutionally protected civil right and it's
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16 really important.
17 All the rest of this stuff for the foundation
18 was entirely ancillary to me. I got it. I understood
19 that, you know --I understood that Marty want ed
20 something out of this and what it --what Marty wanted
21 out of this was cases for his son's law firm. okay,
22 fine, as long as that's a byproduct of what I do. And
23 that was in February when Marty and I had these --these
24 meetings in his kitchen over coffee. It was sort of the
25 beginning of me really feeling like maybe --there
1 wasn't any pushback. He wasn't keeping me from doing
2 it, but he just didn't seem interested in it, which at
3 that point it was just sort of disappointment. It
4 wasn't really a concern. It wasn't like he was saying I
5 don't want you spending your time doing that. He wasn't
6 telling me that I couldn't take reporters to dinner. It
7 wasn't that I couldn't meet with student groups. It was
8 just he didn't seem to really care.
9
10
11
12
Q.
A.
Q.
so this is in February?
This is in February and
so that was --that was let me see --I
don't want to put words in your mouth. was this
13 the business, we refer to a red flags. You may have
14 heard that. Lawyers see red flags --
A. Yeah.
in
15
16
17
18
Q.
A.
was this something that you saw as a red flag?
It --no.
Q. A major concern at all?
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19 A. It --no, it wasn't a concern. It was just
20 disappointment. I would have been concerned if he had
21 put the brakes on it. He wasn't putting the brakes on
22 it. He never said you can't do it. It was just I don't
23 really care, don't --don't bother me with the details,
24 was sort of his attitude. In fact, I sent him a number
25 of e-mails when I -when I --after I had my meeting
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
with Senator Gates in Tallahassee, I sent him a very
detailed e-mail explaining why I felt this was
important, that some legislation was pending, and, you
know, again, his response was sort of tepid.
I had a meeting with Barbara Peterson, the
First Amendment Foundation, about coordinating our
efforts in working together. And again, his response
was sort of tepid, like he didn't really care about
that, which I found puzzling and dis --personally
disappointing because I felt like Marty was sort of a
true believer and really cared about the open government
part of it and that made me feel like --what he was
really interested in was litigation. But again, I don't
care as long as you don't interfere with what I'm doing.
Q. All right. And you have the complete
discretion that you agreed upon to --
A. correct.
Q. --run it properly?
A.
Q.
correct.
Now, did you get any --I don't want any lawyer
21 /client communications
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22 A. Yeah.
23 Q. --or advice
24 A. sure.
25 Q. --your seeking advice, receiving advice, but
1 did you get any complaints from anyone that they were
2 having ethical concerns? I'm including any lawyers in
3 the firm or any --any staff or --did anybody ever
4 contact you in February with regard to any --any --
5 A. Yeah, when I --because my in the memorandum
6 of understanding I had with Marty --I say with Marty,
7 technically I guess with the foundation, although it
8 sat --I don't think that anybody ever signed it, at
9 least I never got a signed copy of it, but I negotiated
10 with Marty. You know, part of the deal was I could no
11 longer do any pro se litigation. And I had --when the
12 foundation was created, I had several cases. I can't
13 remember if I had filed them pro se or not. I don't
14 remember, but there were --there were several cases
15 that needed to be litigated.
16
17
Q.
A.
where you're the plaintiff?
where I was the plaintiff personally. And I --
18 I gave those to the O'Boyle Law Firm for several
19 reasons, one, it was convenient. I was down there a
20 lot. And r was --you know, it was sort of the
21 beginning of trying to develop a rapport with the other
22 attorneys, who I came to like very much by the way,
23 Marrett Hanna, who I have tremendous respect for, and
24 for Giovanni Mesa. And neither one of them had done
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25 any --I don't think they had really done any public
1 records litigation, so it was also sort of a teaching
2 opportunity to kind of you know, not only did I want
3 the foundation to have a particular culture, which I
4 wanted to control, but I also wanted to cultivate the
5 culture of the firm to the extent that --that the
6 foundation was its client and we were its principal
7 client. Now, my understanding was that we represented
8 virtually --not all because then Marty was also a
9 client, but we represented the vast majority of the
10 cases that the O'Boyle Law Firm had. And I'm very, very
11 insistent that I want things done a certain way for a
12 whole lot of reasons, none the least of which is I don't
13 like to lose because losing you know, bad facts make
14 bad law and I don't want to litigate cases unless we're
15 going to do them the right way.
16 And in the beginning, Marrett Hanna was the
17 attorney that was representing me personally in a number
18 of cases and I was very happy with her --
19 Q. Keep in mind anything you discuss in terms of
20 her advice representing you, you have the right to keep
21 confidential --
22 A. I understand.
23 Q. --or you can waive it.
24 A. I understand. I --I'm more than happy to
25 waive it. And I don't know that we're really going to
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1 get into the particulars of anything that would be
2 privileged anyway. The --I --for example, in one of
3 the cases that the firm was representing me on where she
4 was the attorney of record, I actually sat in with her
5 when she was talking to opposing counsel for the
6 purposes of settlement. Frankly I wanted to hear how
7 she did on the phone. This is somebody who presumably
8 is going to be representing me, or is representing me,
9 and is going to be presumably representing the
10 foundation on a lot of cases and I wanted to get a sense
11 of what her style was. And I was very pleased. I
12 thought she did a really fine job. she was very
13 detail-oriented. she seemed very committed to doing
14 things ethically. In fact, one of the very first things
15
16
17
18
19
20
21
I did when I got when I'm going to work for the
foundation, was I --Jonathan came to me, Jonathan
O'Boyle came to me, and said that Marrett Hanna had
expressed real reservations about being involved with
this. And when I talked to her and I
Q. This you mean the foundation
A. The foun --doing public records litigation,
22 yeah, because her perception, I think understandably,
23 was sort of oh, we're just going to be going around
24 doing --engaging in got-you litigation. I mean I think
25 her attitude was sort of this is like slip and fall
1 stuff. And I met with her, just the two of us, at one
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2 of the conference rooms of the commerce Group and it was
3 the first real conversation we ever had. And by the
4 time I got done talking to her, I --you know, I think
5 she was really sold on --on the concept of what I do.
6 And she expressed to me that as long as I was involved
7 she wanted to be a part of it, that she --I was very
8 flattered. she's --you know, she said I want to
9 represent the white knight. I mean she felt like r was
10 really --you know, what I --the reason r was doing
11 it --my motives were pure. she didn't feel like
12 everybody else's were, but she --she was and we were
13 sort of joined at the hip at that point. r was very
14 happy with her representation and she and I exchanged a
15 number of e-mails I think beginning in February where
16 she felt like she was being pressured by Jonathan to
17 demand --make monetary demands and settle my cases
18 for that were beyond reasonable --
19 Q. Beyond the time that was spent?
20 A. Yeah. All r was asking for --I mean my
21 arrangement with the foundation is that I would not be
22 involved in any other money-making opportunities or any
23 money-making ventures, so I was not seeking anything out
24 of these lawsuits. r wanted nothing. I didn't want
25 I didn't want a penny out of them. I
1
2
3
4
Q.
A.
Q.
A.
The ones where you were plaintiffs?
Where I was a plaintiff, that's right.
Right.
And so all I was asking --and I always do the
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6
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same I --I make three demands whenever I'm involved
with public records litigation or open government
7 litigation. First you got to produce the records
8 without further condition. secondly, the defendant has
9 to take some kind of meaningful remedial action so I
10 don't have to sue you again. This isn't about seeing
11 how many times I can sue you. It's about you actually
12 make the records available to the public. They have a
13 right to see it. And third, I want to be reimbursed for
14 my --or be comp --my attorney's fee paid. There are
15 reasonable attorney's fees pursuant to 119.12 --
16 Q. And that's --that's their actual time and the
17 value of their services. This is not a contingency case
18 in terms of the --there's no money being obtained from
19 the government. They just pay the fees, correct?
20 A. Yeah, I --yeah, I --yes, and I --and I'll
21 even make a distinction here. There --you know, I
22 personally, because this issue's going to play into some
23 of our further conversations today, you know, when
24 when I've been the plaintiff in public records lawsuits,
25 when I have an attorney, you know, we will --we will
1 make a demand, those same three demands, produce the
2 records, take some meaningful remedial action, and it's
3 surprising how reluctant public agencies are to do that,
4 which seems like sort of the --you know, let me help
S you fix the problem so we don't have to do this again,
6 and then I want to be reimbursed or my attorney's fees
7 paid. There have been instances where I have --I
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8 defendants, particularly state contractors who have been
9 very recalcitrant to correct the problems --I'm not --
10 I may not make a demand for my attorney's fees. I just
11 may make a monetary demand, period, you know. I'll
12 you want me to give up my right to be vindicated in
13 court. If you'll produce the records and take remedial
14 action, I'll dismiss the case for $2,500 or $5,000 or
15 whatever number --
16
17
Q.
A.
where your fees are at least that much?
No, where my fees aren't that much. I mean I
18 have done this where I --I have been pro se and I've
19 had defendants who have said we want you to dismiss the
20 case. Well, that's great, I want you to obey the law
21 and I want to be vindicated in court. We're having a
22 settlement negotiation and I'm very blunt. I'm asking
23 for money that I'm not entitled to. I want you to pay
24 me $1,500. You want me to dismiss the case, pay me
25 $1,500. And defendants are like well, you're not
1 entitled to that. You're right, I'm not. That's why
2 it's called a settlement negotiation. we're talking
3 about things we're not entitled to. You're not entitled
4 to have me dismiss the case. The only thing either one
5 of us are entitled to at this point is due process. If
6 you're going to ask me for something you're not entitled
7 to, I'm going to ask for something I'm not entitled to.
8 I have no problem with that as long as that's what's
9 being communicated, as long as you're making it very
10 clear I'm not asking for something under the pretense
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11 that I'm entitled to it, I'm saying, I'm acknowledging,
12 I'm not entitled to this. This is consideration.
13 You --you want me to do something, then I want you to
14 do something for me. When it comes to --
15
16
17
Q. And that would go to the plaintiff, that money,
not to the law not to lawyers?
A. Yeah, well, I'm talking when I --when r've
18 done that as a
19
20
Q.
A.
Pro se?
--prose. You know, we're --you know,
21 frankly, these --these --you know, I don't --this is
22 not with public agencies, you understand, public
23 operated agencies because that's tax money. Those
24 are --taxpayers are pay them money. I got a real
25 problem with --with that. I mean you're talking about
1 a for-profit corporation that has a, you know, billion
2 dollar contract with the State of Florida and they have
3 violated their contract and violated the public's right
4 to know. I don't have --I'm not even slightly bashful
5 about saying yes, you want me to dismiss this case, your
6 claim is, your defense is we didn't know. We didn't
7 realize we were subject to the Public Records Act. well
8 guess what, I did you a big favor by bringing it to your
9 attention and I did it at my own personal expense. I'm
10 not completely unapologetic about saying yeah, pay me
11 $1,500 or 2 grand or 2,500. That's one thing. It's
12 something entirely different for an attorney to make a
13 demand and to suggest or outright claim that the demand
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14 is for attorney's fees when it's something --when
15 they're actually asking for more money than what they've
16 earned.
17 The issue that Marrett was having, and the
18 issue that I shared with her, we shared the same
19 concern, was if --if the O'Boyle Law Firm, at $350 an
20 hour, has billed $4,000 and they've got $500 in
21 expenses, why would you ask for anything more than
22 $4,500?
23
24
Q.
A.
Of a government agency?
or of anybody, of --of anyone. Now, if you --
25 if you're suing a private contractor, which these cases
1 were --where I was being represented were against State
2 contractors, it would be fine if you wanted to make a
3 monetary demand of, you know, $6,000 and your --my
4 legal fees are $4,000 as long as you present it that
5 way, as long as you present it as my client,
6 Mr. chandler, is willing to settle the case for a
7 monetary payment of $6,000 out of which you will cover
8 his expenses.
9 Q. And in that scenario, the plaintiff would get
10 anything beyond what the fees were I take it? That
11 wouldn't go to the lawyers?
12
13
A. Yeah --well, you would think, right? I mean
that --that --that was --and this was the and
14 thankfully this really didn't enter into the equation,
15 at least I didn't think because I wasn't seeking to get
16 anything out of it. I don't want any money out of it.
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17
18
19
20
Q.
A.
Q.
A.
AS the
As an
AS an
Right.
140723;ic -Vol_ I. txt
foundation?
individual.
individual, okay.
And the --and there were --I think
21 there were three or four cases against these private
22 contractors. All I wanted was
23
24
25
Q.
A.
Q.
1 said?
2
3
4
5
6
A.
Q.
A.
Q.
A.
And the O'Boyle Law Firm was representing you?
That's right.
And they --that was done through Hanna you
Marrett, yeah.
Marrett Hanna.
And and Marrett
All of them?
I don't remember. I can't --I think they
7 were, but I'm not 100 percent sure of that.
8
9
Q.
A.
okay.
The the problem --the pushback that Marrett
10 was getting, as I understood it, and she and I talked
11 about this on the phone a number of times, we exchanged
12 e-mails about this, was she was getting pressured to
13 make higher demands. And my response was why, that
14
15
16
17
18
Q.
A.
Q.
A.
Q.
who was she getting
Jonathan.
O'Boyle?
Yes, to --to --
Now, was he in --in
pressure from, the --
the Commerce Group offices
19 full time whenever you were there working at the o'Boyle
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20
21
22
23
24
25
1
2
3
4
s
Law Fi rm?
140723jc -vol_ I.txt
A. Yeah. He was living at his mom and dad's house
in Gulf Stream and he was there, yeah.
Q. Full time?
A. Yeah.
Q. so he worked out of the --the commerce Group
offices where the law office had its room?
A. Yes.
Q. on a full-time basis?
A.
Q.
Yes.
And she told you that Jonathan was putting
6 pressure on --on her to ask for more in fees than had
7 been earned?
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
A.
Q.
A.
Q.
A.
Yes.
How many times did she communicate that to you?
Repeatedly.
And that was in February?
Yes, and she she --you know, my --my
response to her was it's --it's you know, I
understand that you guys want to get your reasonable
attorney's fees, and I'm all in favor of that and I'm
and that's going to be part of our settlement
discussions. I couldn't care less about you guys
getting any --a penny more than that. That's not my
interest. And it's frankly not your decision to make.
It's not Jonathan's decision to make. It's mine and
mine alone. I'm the client. I get to make that
decision. That's the way it works. And, you know,
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23 frankly if I said that I was willing to settle the case
24 for --for no attorney's fees, that's my choice to make.
25 It's not your's. You guys took this case on a
1 contingency. It is what it is.
2 Q. contingency meaning they wouldn't get their
3 fees unless they were awarded?
4
5
6
7
A.
Q.
A.
Q.
8 cases?
9 A.
That's right and
Not a percentage of any recovery?
That's right.
And there was no fee agreement on any of these
That's right, and which again I tried with
10 them --about that repeatedly, look guys, we got to have
11 these fee --because if you get to a fee hearing and we
12 don't have a fee agreement, if I were opposing counsel,
13 I'd be arguing that you're not entitled to anything
14 because the Florida Bar is really clear about this on
15 a --any kind of a contingency fee agreement has to
16 be --it shall be in writing. It's not --you don't
17 have any latitude there.
18
19
Q.
A.
All right.
AS a result of --of Marrett expressing --and
20 again, this is what she told me --
21 Q. so you told --you made it clear to --to the
22 O'Boyle Law Firm through Marrett that any contingency
23 had to be in writing?
24
25
A.
Q.
Yes, and I --
which is clearly a Bar requirement?
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1 A. I --I communicated that to Ryan, with mar --I
2 communicated that to Jonathan O'Boyle. r communicated
3 that to Giovanni Mesa.
4 Q. And it was just ignored?
5 A. It was ignored. so as a result of my support
6 for Marrett's position, I think she was emboldant to
7 to sort of stand her ground with Jonathan and as a
8 result of that, she was removed from the cases without
9 my consent, without my knowledge. I just found out
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
after the fact that she's been taken off the cases and,
you know, Ryan Whitmer
handle them and --
Ryan Whitmer was going to
Q. And who told you that was being done?
A.
Q.
A.
Q.
A.
Q.
A.
Q.
cases?
A.
Q.
Marrett.
she told you she had been removed --
Yes.
And by --by Jonathan or by --
Yes.
By Jonathan?
Yes.
And Jonathan appointed Ryan to handle the
Yes.
And what did --what did you do when you
25 learned that? This was in February?
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1 A. Yeah, I believe it was in February. I was --I
2 was you know, r was --r was annoyed by it. I was --
3 r was frustrated by it. I mean it wasn't one of those
4 things that you took --it wasn't a complete deal
5 breaker for me. I --it was --my perception was this
6 is just young attorneys not thinking very clearly, not
7 Marrett, r'm talking about Jonathan in particular. And
8 there --I also kind of had the feeling that there was
9 sort of this little bit of a power struggle. r think
10 that he perceived that he was the one that was in charge
11 and if he want to be in charge, it's his law firm,
12 that --more power to him, but I'm the one that's in
13 charge of the foundation and I'm the client. so when it
14 comes to the litigation --and in these particular cases
15 where I --it was me personally, I --I know who's in
16 charge. It's me. It's not the attorney. I'm the one
17 that's calling the shots here. The attorney is a
18 technician who provides advice. That's it. I get to
19 make the decisions about litigation strategies and what
20 we're going to demand for settlement. And again, I am
21 far more interested in the first two settlement
22 conditions than I am the third. You got to produce the
23 records without further conditions and you have to take
24 some meaningful remedial action.
25 Q. so who were the defendants in these --in
1 these --you said about three cases that you were the
2 plaintiff in?
3 A. Yeah, there were and there were great facts.
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5
6
7
8
9
10
11
12
13
14
140723jc -vol_ I.txt
Every one of the facts were just gold. First coast
Advantage is one of them and the other one's --
Q. what county?
A.
Q.
A.
Q.
In Duval county.
Okay.
There an AHCA contractor.
AHCA is --
A. Yeah, I'm sorry, Agency for Health care
Administration.
Q.
A.
Okay. And where was that?
Well, AHCA is in Tallahassee, but the -First
15 coast Advantage was in in Duval county.
16 Q. so all three filed --filed in Duval county?
17 A. I think I --it was First coast Advantage and
18 then it was Memorial Healthcare Group
19 Q. Where --where was that case filed?
20 A. They're in Duval county. That's another one
21 with just --just golden facts. Northwest Behavioral
22 Health. And again, I'll --I stand by the facts of
23
24
25
1
2
3
4
5
6
these cases and to my knowledge, the cases are --have
been are being handled ethically.
Q. Yeah, they --they haven't been settled. You
didn't let them --you didn't let them settle them for
more than the fees were?
A. That's exactly right.
Q. You stopped them?
A. Yeah, we --we are going to do that. so that
led to
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7
8
9
10
11 are
Q.
A.
Q.
A.
140723jc -vol_ I.txt
So all three of these are in Duval county?
I believe they are, yes.
okay. And you're the named plaintiff?
Yeah. Yeah, both of --just, you know, these
I would say that the facts of these --of those
12 cases, that's very typical for the work that I do. I
13 mean you walk in, you make the request. The contract
14 clearly says that they're going to have to produce the
15 records. You ask for a record that you know exists
16 because it's required to be created in the contract.
17 You ask for it. They tell you no. You know,
18 sometimes --I mean I've actually been --had instances
19 where they called the police to have you removed for
20 doing nothing more than politely making a public records
21 request. I love those facts.
22 Q. Right. Now, ·you don't have to disclose this, I
23 don't believe it's privileged communication, but
24 obviously you're the client and it's your call --
25 A. Yeah.
1 Q. -do you have an oral agreement with the
2 O'Boyle Law Firm as to what the hourly charge is for
3 different lawyers on these cases or do they just charge
4 what they think is fair?
5 A. I believe that Ryan is handling them now
6 because Marrett left the firm, largely over these
7 issues. I think he charges 250 an hour. Marrett, who
8 is a much more seasoned attorney, much, much more
9 seasoned attorney, I think was charging 350 an hour.
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10 Q.
11 cases --
12 A.
13 that --
14
15
16
17
18
Q.
A.
Q.
A.
Q.
140723jc -vol_ r.txt
So you agreed to pay 250 an hour for those
I didn't agree to pay it. I agreed that --
That was a reasonable fee?
A reasonable fee, yeah. Yeah.
okay. This --
Their fees for expenses.
Are there any writings that memorialize that or
19 just a conversation?
20
21
22
A.
Q.
A.
It was part of my suggestion urging
okay --
--that we should have --that we should have
23 it in writing. It hasn't been.
24
25
1
Q.
A.
Q.
so
So things --things --
Back to --you're starting to see a red --some
2 red flags?
3
4
5
A.
Q.
A.
That was a concern for me.
Right.
And it wasn't that big a deal to me at that
6 stage of the game as far as the involvement of the
7 foundation because the vast majority of the cases that
8 we had at that time were against publically operated
9 agencies or municipalities, state agencies, not
10 contractors.
11 Q. And as I understand it from your description,
12 you like Ryan. You considered him charming. And the
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13 fact he took over the cases didn't --didn't alert
14 didn't offend you from the standpoint that you had
15 respect for him?
16 A. Yeah, it offended me that --that Marrett had
17 been removed because I --I liked what she was doing. I
18 thought she was very competent. More --more important
19 even than me thinking that she was competent, which is
20 usually important, I felt that philosophically we were
21 aligned. I think --I felt that we were after the same
22 thing and that's really important to me.
23 Q. Did you have to same kind of conversation with
24 Ryan, telling him what was important to you and public
25 records and open government?
1 A. Yeah, and I --my sense of Ryan is that he is a
2 decent human being who's trying to do the right thing.
3 I --I --you know, I think he is in a very --was in a
4 very difficult position. I think there is a tremendous
5 amount of influence that Marty has over the firm. One
6 of the issues that came up repeatedly --now, I
7 witnessed this. You know, I --I would be there, you
8 know, for a day or part of the day to talk to attorneys
9 about cases or whatever and --and a lot of my
10 interaction with the firm wasn't just as a client, it
11 was also hey, what do you think we ought to do or, you
12 know --there were some procedural questions they had,
13 but mainly it was sort of really trying to understand
14 the lay of the land as far as public records litigation
15 is concerned because I obviously had done a lot more
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16 than they had. And I was very happy to --to engage in
17 that respect. But frequently when I was there, Marty
18 would come in and, you know, just sort of --it was a
19 train wreck. I mean he was very opinionated about how
20 cases ought to be handled, which I found --at first it
21 was a little charming, but then it just became really
22 annoying because it's like wait a minute, I understand
23 you're financing the foundation and you're financing the
24 law firm, but you don't have a voice here. This
25 isn't --the foundation is not your toy. You don't have
1 any standing to have any input here even if you are the
2 donor. You're you're not on the board. You're not
3 an employee. I'm the only person that has the
4 discretion about this.
5 Q. So he would come in and in front of the lawyers
6 and you try to direct the litigation?
7 A. I don't know if direct is the right word. He
8 would come back there and very much sort of, you know,
9 this is what I think ought to be done on these cases.
10 Q. Was this a regular occurrence while you were
11 there?
12 A. oh, yeah, very regular. Yeah, I mean I --at
13 least when I was there, yeah, it was very common.
14
15
16
Q. And you expressed your disappointment or
A. Yeah, I you know, I --I never told him to
but out. You know, it was one of those you know, I
17 kind of rolled my eyes and, you know --but this was a
18 real issue for Marrett and she was --as far as the
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19 escalation of her being marginalized to the point not
20 only she was removed from the cases that where r was
21 the plaintiff in spite of the fact I was very happy with
22 her representation, but then she was excluded from
23 conversations. she was you know, they would --they
24 being Jonathan and --Ryan would --and sometimes
25 Giovanni even would go and --literally go into Marty's
1 private office and exclude her from the conversations
2 about cases that she should have been involved with.
3 And she just felt more --and you'll see this in the
4 e-mails. she felt more and more marginalized, and r
5 think she was, and eventually she -she left. I think
6 it was sort of a mutual --I don't know if she was fired
7 or quit. I think she was probably more fired than she
8
9
was
Q.
than she quit.
okay. Let me ask this, when --when you had,
10 in February, these conversations with her about Jonathan
11 trying to negotiate more in fees than had been earned in
12 your cases -
13
14
A.
Q.
Uh-huh.
--did that ever, in February, result in you
15 having any direct communication with Jonathan on that
16 topic? And if there's a conversation later, you can
17 tell me that and we'll deal with that in --
18 chronologically.
19 A. Yeah, I well, I don't know that we had
20 conversations about that in January --in February
21 specifically. I can't say that within
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22 particular timeframe. we may have. certainly this is
23 an issue that Jonathan and I really battled over
24 subsequent to this.
25 Q. okay. We'll get to that. I don't want to keep
1 you let me let you get back to your --
2 A. SO
3 Q. your chronology of what you were relating to
4 me.
5 A. Yeah, so things --you know, for --to the very
6 large extent I was left alone for most of February and
7 most of March. And then in --in April, I believe it
8 was in April, let me look at my timeline here, I was
9 contacted by Denise DeMartini and --let me find it
10 here. Yeah, it was in --I'm sorry, it was in March
11 27th. That is when Marrett Hanna told me she had been
12 removed from the cases.
13
14
15
16
Q.
A.
Q.
A.
What date?
It was in March.
okay.
so some of the other --you know, where I
17 started seeing what I refer to red --red flags, I got
18 a --I got an e-mail from a woman named Jill Mohler,
19 M-o-h-1-e-r --
20
21
Q.
A.
And who is she?
she is the secretary, receptionist, for the
22 commerce Group, very sweet lady, very nice lady.
23
24
Q.
A.
she's --she's an employee of Marty's company?
Yes.
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25
1
2
3
4
5
Q.
A.
Q.
A.
Q.
A.
140723jc -vol_ r.txt
And has been for how long, do you know?
I --not long.
okay.
A year or so maybe.
Receptionist, okay.
Yeah, very nice lady. I found out from her
6 that --and I had been completely unaware of this, that
7 she was actually making public records requests on
8 behalf of the foundation. This was in April.
9
10
Q.
A.
11 doing it.
Without your knowledge?
Without my knowledge. I had no idea she was
12 Q. she's not an employee --
13 A. No, she's not an employee. she's not an
14 employee or a volunteer or anything else. she's --
15 she's she has no affiliation with the foundation,
16 none.
17
18
Q.
A.
How did you learn this?
she --she --I got an e-mail from her and --
19 this is what the e-mail says, "Hi, Joel, Marty requested
20 that I send you the attached records request from
21 responses to review as well as the records requests cost
22 es ti mate spreadsheet a 1 so attached, after review a 11 ,
23 Marty would like to speak with you about them, I left
24 you a voicemail and" --you know, and this was in
25 relationship to public records requests that had been
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1 made to Gulf Stream and I was --
2
3
Q.
A.
In the name of the foundation?
Yeah, in the name of the foundation, which I
4 there were a number of issues there for me. one was,
5 okay, you guys aren't being very clever about this
6 because you might want to take into consideration that
7 while you're sending this from a --a Citizens Awareness
8 Foundation e-mail, you're transmittal sheet has the
9 commerce Group phone number and address on it, so, you
10 know, it's pretty transparent who's really making the
11 public records request. Two, I didn't authorize you to
12 make the request. Three, the requests aren't well
13 written. They're they're defective in my opinion.
14 And four, why are we sending all these public records
15 request to --to Gulf stream? I
16
17
18
19
20
21
Q.
A.
hundreds
hundreds,
sticks in
Q.
22 period?
23
24
25
A.
Q.
A.
How many were there?
Well, at one point it came to my attention that
of have been made. I1: was well over --I say
well over a hundred. I think the number that
my head was like 160 or something.
And these were made in what month or what time
I don't know. I don't know.
20147
Oh, yeah. Yeah. Yeah. since the foundation
1 got started, yeah.
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86
2
3
4
5
Q.
A.
Q.
A.
140723jc -Vol_ I.txt
okay. so they were made after January 22nd?
oh, yes.
over 100 and --
In the name of the foundation. I did not know
6 about them. I didn't authorize them. And part of
7 the --part of the problem I had with this was the deal
8 I had with Marty si1:ting by his pool on Wednesday, I
9 think January 22nd, was no enemies list. I knew that
10 Marty had a --sort of had an ax to grind with the
11 city --with the Town of Gulf Stream and while I think
12 that the Town of Gulf stream has had a remarkable series
13 of public records challenges, they in my opinion have
14 not been very compliant with the Public Records Act,
15 I --I don't want to beat up on them. I mean how many
16 times do you need to sue somebody to make your point? I
17 mean if I have to sue the same defendant ten times in a
18 row, fine, but I don't want to sue them ten times all at
19 once. And I didn't see any point in making all these
20 public records requests to a town with 500 people. I
21 mean there are all of these other agencies in the state
22 of Florida. There are --there are 412 municipalities.
23 There's 67 counties, which means there's 67 school
24 districts and 67 sheriffs. There are over 100 state
25 agencies and there are 1,600 community development
1 districts. And there are probably 10,000 state --state
2 contractors under the Public Records Act. There are
3 lots of other people out there besides just the Town of
4 Gulf Stream. And if we're making hundreds of public
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5 records requests to one very small agency, it really
6 looks like we're picking on them.
7
8
Q.
A.
9 list.
10 Q.
Like an enemies list?
Yeah, which was part of the deal, no enemies
And you knew that Marty had a bone to chew with
11 Gulf Stream, I take it, from your prior conversations
12 with him?
13 A. Yeah, sure. Yeah, I mean I knew about him
14 painting his house and --and I mean I personally --
15 look I personally had sued Gulf Stream over a public
16 records violation, so I --I knew that --that the
17 public records issues there were very real and frankly,
18 it is remarkable to me that they have been slow, so
19 slow, to really get their house in order for --
20
21
22
23
24
25
1
Q.
A.
Q.
A.
Q.
A.
Q.
It's a tiny, tiny local government --
It's a tiny town --
--one or two employees
sure.
Local employees?
Yes.
Let me ask you this, when you learned that Jill
2 Mohler --when you learned in March that Jill Mohler --
3
4
A.
Q.
April I think.
April, April --had at Marty's direction, sent
5 out well over 100 public records requests in the name of
6 the foundation to Gulf Stream without your permission,
7 what was your --what did you do? what was your
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8
9
reaction?
A.
140723jc -vol_ I.txt
I was pretty upset and this led to
10 conversations that I had with Bill Ring as the president
11 of the foundation that we couldn't be doing this. This
12 is --we can't have this. I --I needed to be the only
13 person that's making public records requests, or if I'm
14 not the only person making public records requests,
15 then --then I need to be the only --I need to be the
16 person that approves them. By this juncture, there were
17 three employees for the foundation. I was the Executive
18 Director. I hired a woman by the name of Cathy Zollo,
19 z-o-1-1-o, who worked from her home in Sarasota, to my
20 knowledge. I don't think she's ever been to the office
21 in Deerfield Beach. I don't think she's ever met Marty
22 or any of the other I think she's talked to Denise
23 DeMartini on the phone, but she's never had any contact
24 with them. And then we had an intern, a guy named Dylan
25 Bouscher. And I directed them to make public records
1 requests on behalf of the foundation. But I never
2 directed anybody else to make public records requests,
3 certainly nobody outside of the foundation.
4 Q. I take it you didn't even know who Jill Mohler
S was at the time she was making --
6 A. No, I knew who she was. I mean I spoke to Jill
7 every time I walked through the door, hey, Jill, how are
8 you
9 Q. so you --you knew she was a receptionist for
10 the for the commerce Group?
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11 A. Yeah.
140723jc -vol_ I.txt
what I found out was --you know, it's
12 funny because she --you know, we --I walk in and
13
14
15
16
17
there's this big stack of paper
all the time doing something on
out later what she was doing on
public records requests. I mean
her and from other people in the
and she's --you know,
the computer. I found
the computer was making
my understanding from
at the commerce
18 Group, this was like a full-time enterprise where she
19 was doing nothing but making public records requests. I
20 don't know --
21 Q.
22 Stream?
23
24
A.
Q.
Making them to other entities besides Gulf
No, Gulf Stream over and over again.
But what about any other entities, did she do
25 any other --
1
2
3
A.
Q.
A.
I don't know.
okay.
I mean I know one time on --you know, for
4 Marty or the commerce Group she's making lots of public
5 records requests, the State Attorney and other agencies
6 like that, but --and I didn't care about that. The --
7 what I was concerned about was that the --that there
8 was somebody who was presenting themselves as being a
9 representative of the foundation and making public
10 records requests on behalf of the foundation without my
11 knowledge, without my authorization. And I had a
12 problem with that for the --the first big issue I had
13 was it looks like an enemies list.
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14 Q.
140723jc -vol_ I.txt
And then the only --when you learned about
15 being done in the name of the foundation through Jill
16 Mohler and Marty, was -Gulf Stream was the target, no
17 others?
18 A. I think there was I think at one time I
19 found out about --there's an engineering firm I think
20 that --that worked for Gulf stream, but they had -
21 they all related to Gulf Stream, the ones that I knew
22 about. And I found that very upsetting.
23 Q. And these were not authorized by the foundation
24 or you?
25 A. Not by me.
1 Q. And when you talked to Bill Ring, you
2 complained to him about this?
3
4
5
A.
Q.
A.
I sure did.
And what did he say?
sort of like, yeah, you know, okay, I'll talk
6 to Marty about it kind of thing and, you know --and
7 I --and the reason I didn't escalate this was each --
8 this came up over --more than one time. Every time I'd
9 sort of get this pat on the head, yeah, you're right,
10 okay, we'll take care of it. And bear in mind I wasn't
11 there very much, right. I --I showed up at the offices
12 in Deerfield Beach once a week, once every couple of
13 weeks. The rest of the time I was out on the road, you
14 know, being with civil rights groups and doing audits.
15 So I --you know, I didn't really have a lot of contact
16 with them, certainly not --not on a daily basis.
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17
18 in
140723jc vol r.txt
And then -and in the--:._ during this period
in April is when things really started to become
19 more unhinged. The --yeah, on April 14th, I got an
20 e-mail from Denise DeMartini, who was a board member,
21 who I was ultimately directed by the board, meaning Bill
22 Bring and Denise DeMartini, that she was the person that
23 I answered to directly. she was my direct superior.
24
25
Q.
A.
And she's Marty's administrative assistant?
I think she's more than that. I think she --I
1 don't know what her official title is, but she's
2 she
3
4
Q.
A.
His right hand?
That's very --I yeah, my sense is, and I
5 think that other people that are at the Commerce Group
6 would share this sense, that there's Marty and then
7 there's Denise and Bill and then there's everybody else,
8 way, way, way behind them. They --she I don't think
9 anything happens at the commerce Group of any import
10 without Bill and Denise being involved with it.
11 so I got a --I got an e-mail from her and this
12 precipitated the conversation that I had subsequently
13 with Bill Ring and led to a whole series of other
14 conflicts with the board. she described her involvement
15 with the firm, and I'm reading from her e-mail, which is
16 April 14th, 2014, "My involvement with the firm", the
17 O'Boyle Law Firm, "is primarily to get procedures,
18 priorities, expectations in place for the attorneys so
19 that things run smoother. The firm's priority is to
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20 keep up with the intake of cases so we want you to run
21 with it, no holding back, so we can properly staff up.
22 obviously there are going to be bumps along the way that
23 we can overcome." My concern was that it became --
24 Q. She --is she writing --she's --as far as you
25 understood, she was on the board and she was an employee
1 of Mr. O'Boyle's, Martin O'Boyle's, Commerce Group?
2
3
A.
Q.
Yes.
she sent you that e-mail. Did you understand
4 she was trying to now assist Jonathan's law firm?
5
6
7
A.
Q.
A.
Yes.
Did that come as a surprise, surprise to you?
Yes, it did. It was shocking to me and I
8 objected to it vociferously.
9 Q. And she --because your whole idea of
10 independence was out the window?
11
12
A. Yeah. Yeah, and --and it was portrayed --the
reason she's the reason she's giving this explanation
13 in an e-mail is I'm objecting to, wait a minute, what
14 why is a board member involved with the law firm and
15 what I understood her to try to be saying is I'm just
16 kind of --you know, I'm kind of helping them --
Q. Make sure they get business? 17
18 A. well, no, that's not what I understood for her
19 to be saying. I'm just --I'm just kind of helping them
20 figure out, you know, procedures, how to
21 the work flow, just make things --
22 Q. Consulting with them --
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you know,
93
23
24
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
A.
Q.
A.
Q.
Yeah.
140723jc -vol_ r.txt
--to try to help them --
Yeah. Yeah.
--staff up?
A. Which was utter nonsense and I raised this
issue with Bill Ring. I said look, you cannot have
Denise DeMartini, a board member of the foundation and
an employee of --of Marty, involved with the operation
of the law firm. And my argument that she was involved
with the operation of the law firm is she was actually
managing the law firm meetings.
Q. You went to meetings at the law firm where she
was there?
A. she was --no, she was --wait, this was --
this is the creepy part, right. she's not even there.
She's on speaker phone running the meeting so
Q. Who's present during these meetings?
A. The entire law firm. Now, I was there. I --
which I you know, I subsequently refused to go to
17 the the law firm meetings.
18 Q. How many of these meetings were you at?
19 A. Just the one.
20 Q. And she ran it from a speaker phone?
21 A. oh, yeah. Yeah. Yeah, absolutely.
22 Q. What lawyers were there?
23 A. Giovanni Mesa, Nick Taylor, I think Marrett was
24 still there at this time, Jonathan O'Boyle, Ryan
25 Whitmer, and Beth Canali(phonetic), who's the --the
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1 paralegal. And I was uncomfortable with the meeting for
2 several reasons. The first and most obvious is that you
3 have a non-attorney who's a board member who I report to
4 directly who is clearly, clearly running this meeting.
5 That's the first thing that just struck me as beyond
6 bizarre.
7
8
9
10
11
12
.13
14
15
16
17
18
19
20
21
22
23
24
25
Q. Did she was doing it on behalf of --that she
was given direction from Martin O'Boyle?
A. No. It was simply just clear that she was
running the meeting.
Q. Okay.
A. And when I say running the meeting, it's --
it's sort of, you· know, which cases do we have coming
in, which attorneys are these --these have been
assigned to, what's the status of this case. And it
wasn't even --when I say status of the case, just has
it been filed yet or not, not a --any meaningful case
management, which I found very frustrating. There
didn't seem to be any comprehension on her part about
settlement risings or, you know, procedural issues, you
know, are we doing an immediate hearing, are we, you
know, going to go for summary judgment, just none of
that. It was just sort of --
Q. Every -it sounds like everything was about,
tell me if this is correct, everything she was focusing
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96
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1 on was about generating a number of lawsuits for the
2 O'Boyle Law Firm --
3 A. Yes. The second objection I had was that I
4 thought I was there because we were going to talk about
5 the foundation cases. It made perfect sense to me that
6 we would get all the attorneys together because it would
7 be much more efficient to do that. But what we ended up
8 doing is they -well, while I was there, they ended up
9 having conversations about other clients, which I found
10 very troubling because I'm not a party to the
11 lawsuits
12
13
Q.
A.
Public records cases?
Yes. I had referred to the --the firm a
14 number of clients, people that had contacted me,
15 people some that I've known for years, some that just
16 contacted me out of the blue, you know, I have public
17 records issues and I'm not an attorney but I have a law
18 firm that --
19
20
Q.
A.
can you give me names of those people?
Yeah, a guy named Jeff Gray, who gave them a
21 large number of cases, which in my estimation has been
22 terribly problematic.
23
24
Q.
A.
Where is Mr. Gray?
Jeff Gray lives in saint Augustine. He's a
25 civil rights activist. We do a lot of work together.
1 He's a good guy, very --
2
3
Q.
A.
Okay.
--very reasonable --
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4 Q. Later I may want to get his phone number from
5 you, but
6 A. I'll be happy to give that to you. The problem
7 that he ran into was the cases that he was --in fact,
8 he was the --he was one of the activists that was
9 attending this seminar I did the first week of the
10 foundation. He had referred a number of cases too. I
11 think he gave a total of 42 cases to the firm and they
12 were not filing them ·in a timely fashion. It was very
13 frustrating and he didn't feel like they were
14 communicating with him.
15
16
17
18
Q.
A.
Q.
A.
Were these cases in Saint Augustine or --
No, all over the state.
All over the state?
Yeah. And I was frustrated because, number
19 one, Jeff and I are friends and I didn't feel like he
20 was really being treated very well. I didn't think he
21 was getting good customer service. But also just from
22 an advocacy perspective, my --I feel, generally
23 speaking, that if you're going to file a public records
24 lawsuit, you need to do it pretty quickly after the --
25 the violation of your rights for a whole lot of reasons,
1 not the least of which -if you wait six months to do
2 it, it doesn't really look like --look like you're all
3 that interested in the records. so that was one of the
4 issues. He didn't --he just didn't feel like he was
5 being treated very well.
6 Q. And did they discuss Jeff Gray at these --
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7
8
9
10
11
A.
Q.
A.
Q.
A.
140723jc -Vol_ I.txt
Oh, yeah.
--meetings in front of you?
Yes, absolutely.
Even though it was a different client?
Even though it was a different client, just no
12 consideration for privilege whatsoever.
13
14
Q.
A.
15 Miami.
16
17
18
19
20
21
22
23
24
25
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
And who else --who else did you refer to them?
A fellow by the came of Al Crespo down in
c-r-e-s-p-o?
Yeah.
I may want his number later.
Yeah.
Did they discuss him in front of you --
Yes.
--at this meeting too?
Yes.
okay. And --and no protection of his privacy?
I mean I --now, I knew about the cases because
1 these --Al had contacted me asking for a referral.
2 Jeff had contacted me asking for a referral. so I knew
3 the basic and I --I guess one of the value-added things
4 I brought to the relationship was I have enough
5 experience in public records litigation and I can look
6 at the facts of the case and I have a pretty good sense
7 of whether I think they're worth doing or not. I don't
8 make that judgment and I don't share that judgment
9 with --with the potential plaintiff, but I certainly
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10 share that judgment with the attorneys. The attorneys
11 are going to ask me, is this a good case, yeah, I think
12 it is or no, I don't think it is. I mean do I think you
13 should take it, no, yes, you know, you should, whatever,
14 based on the facts. So I was very intimate --
15 adamant
16
17
18
19
20
21
you
Q.
A.
Q.
A.
Q.
Some of the lawyers at the firm would ask
Yeah, sure.
--at the O'Boyle firm?
Yeah.
But Crespo and Gray had never authorized the
22 lawyers to speak to you about their case?
23 A. I don't know whether they did or not. I --I
24 would assume they didn't
25 Q. They never told you that --
1 A. Yeah, but I --I was very uncomfortable with
2 this because it was very clear that Denise was running
3 the meeting. And then subsequent, she --she started
4 demanding from me an accounting of how many cases I was
5 giving to the firm. And in fact, I received an e-mail
6 from her, just to kind of show that this was not a
7 one-time event you know, and again, Marty was still
8 very involved at this point, so for example, Marty was
9 approving the mission statement. And this is in --on
10 April 16th I get an e-mail from Denise saying that
11 Marty's approved the --the mission statement.
12 I got a well, let me just shift gears a
Page 90
100
140723jc -vol_ I.txt
13 little bit because we're going --we're kind of all over
14 the map here. The just to kind of keep things in
15 chronological order. so on on April 14th, I get the
16 e-mail from Denise explaining her involvement with the
17 law firm. Then I get an e-mail from Jonathan saying
18 that he has assigned a case to himself.
19
20
21
22
Q. A Florida case?
A. Yes. So he --he's asking me --I got an
e-mail from him, I think it was on a Saturday
Q. Do you know which case it was?
23 A. Yeah, it was a case against the Department of
24 children and Families Services, DCF --DFC --I think he
25 meant DCF.
1
2
3
Q.
A.
Q.
4 himself?
Brought by whom?
The foundation and
He told you he was assigning that case to
5 A. wel 1, I' 11 read you the e-mai 1, "Hey, Joel",
6 the says DFC, but I think he meant DCF, "the DFC link is
7 not working." And what he means by link is I would --I
8 had set up a drop-box account and I would upload --you
9 know, if I had video or if I had e-mail exchange,
10 whatever documents, whatever --whatever I had to
11 support the facts of the case, I would upload those to
12 the drop-box and that's how I shared them with the
13
14
attorneys at
Q. Let me
15 topic --
at a distance
let me just ask you this on this
Page 91
101
16
17
A.
Q.
140723jc -vol_ I.txt
Yes.
Did you ever direct Jonathan O'Boyle to take
18 over that case or did he just tell you he was taking
19 over the case?
20
21
22
A.
Q.
A.
I didn't direct him to do anything.
okay. Let's move on to the next thing then.
Yeah, well he said --then he says "I have
23 assigned myself the case, any chance you can get that
24 link", get the link to the video. So I mean that --
25 here he clearly seems to be saying that's he's not
1 working at the direction of another attorney. He's
2 assigned it to himself.
3 Then it's --on the 16th of April I get the
4 e-mail from Denise DeMartini saying that Marty's
5 approved the mission statement for the foundation. Then
6 I get a very troubling e-mail on --from Denise on April
7 28th. And the e-mail reads, this is April 28th, 2014 at
8 11:17 a.m., "Joel, I am in a law meeting now and have
9 been told that you have only provided eight new cases
10 for this week. We were expecting a minimum of 25 a
11 week." I pretty much flipped out after that. Number
12 one, I don't have a quota for cases. Any cases that
13 that are the result of the advocacy that I do, or
14 however many we get, if it's a lot, it's a lot. If
15 there's none, there's none. My paycheck's not affected
16 by whether we get lawsuits. That's not what I'm being
17 paid to do. I'm not hired to go out and gen up
18 lawsuits. I'm hired to go out and do civil rights ad --
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140723jc -vol_ r.txt
19 advocacy. And it's very clear at this point that she
20 thinks that my job is nothing more than to get lawsuits
21 and I was very disturbed by that.
22 I was also disturbed that she was continuing to
23 be a part of these meetings. so she's clearly in the
24 law firm meeting as, I guess a commerce Group employee,
25 a member of the board, I don't know, working for firm,
1 who knows what the deal is. But r have somebody who r'm
2 reporting to while she's in a law firm meeting telling
3 me she expects 25 cases a week and suddenly this starts
4
s
6
7
8
to feel
up for.
getting
what I
Q.
like something very different than what I signed
And what it's feeling like is I'm really
paid to go out and get lawsuits, which is not
agreed to do. rt was not my job description.
well, were the lawsuits ever --did you ever
9 try to send the lawsuits to some firm other than the
10 O'Boyle Law Firm?
11 A. I did as a matter of fact. There was a case
12 that I tried to send to the --to Thomas and Locicero
13 (phonetic), who in my estimation are the preeminent open
14 government litigators in the state of Florida and have
15 represented me personally for a number of years. There
16 was actually a very good case with excellent facts. The
17 university of south Florida, Barnes & Noble college Book
18 sellers, they operate the have the contract to
19 operate the book store at USF as well as a number of
20 other book stores around the state at state
21 universities. And my brother and I went in there in
Page 93
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140723jc - vol_ z.txt
22 April, I think it was April 24th, to -- I made a public
23 records request on behalf of the foundation and he made
24 a public records request on his on behalf and they told
25 us no, we couldn't have -- we asked for the adoption
1 forms, the -- the book store sends out a request to all
2 of the faculty asking which text books they're going to
3 need for the upcoming semester and they fill out these
4 adoption forms and we wanted copies of them. And the
5 reason we were making this request is -- Barnes & Nobles
6 got sued over this a number of years ago. In fact there
7 was a Fourth DCA decision and it said that they have to
8 make these forms available. They're clearly public
9 record because they're acting on behalf of the
10 university. And the facts that they got in that audit
11 were virtually identical t❑ the -- I want it was a 1998
12 case, Booksmart versus Barnes & Noble, virtually
13 identical facts to the -- an appellate decision started
14 to come down and 1 -- my brother continues to use Thomas
15 and LoCicero. Thomas and LoCicero still represents me
16 personally. It's ongoing public records litigation.
17 And we shared -- Robert shared with them, my brother
18 Robert shared with them, what happened and they
19 expressed an interest in the case. It's interesting.
20 It's a good case. And because the cause of action
21 accrued in Hillsborough county and Thomas and Locicero
22 has an office in Hillsborough County and they are
23 excellent public records litigators and appellate
24 attorneys, and they had expressed an interest in it, I
Page 94
November 11, 2014
Maura Canter, Esq.
The Florida Bar
651 East Jefferson St.
Tallahassee, FL 32399-2300
Re: Nickalaus Taylor, RFA No. 15-0432
Giovani Mesa, RFA No. 15-4031
Ryan Witmer, RFA No. 15-4033
William F. Ring, Fla Bar File No. 2015-50,283(17D)
Dear Ms. Canter:
Supplementing our Complaints of unethical behavior on the part of the above-
named attorneys, please find enclosed an article from the Florida Center for Investigative
Reporting dated November 9, 2014.
We respectfully request that this article be considered along with the other
information previously supplied to The Florida Bar on these matters.
Should you have any questions, please do not hesitate to contact me.
Sincerely,
Scott W. Morgan, Mayor
Town of Gulf Stream
October 28, 2014
Maura Canter, Esq.
The Florida Bar
651 East Jefferson St.
Tallahassee, FL 32399-2300
Re: Nickalaus Taylor, RFA No. 15-0432
Giovani Mesa, RFA No. 15-4031
Ryan Witmer, RFA No. 15-4033
William F. Ring, Fla Bar File No. 2015-50,283(17D)
Dear Ms. Canter:
Supplementing our Complaints of unethical behavior on the part of the above-
named attorneys, please find enclosed the sworn Affidavit of Joel Edward Chandler.
We respectfully request that this Affidavit be considered along with the other
information previously supplied to The Florida Bar on these matters.
Should you have any questions, please do not hesitate to contact me.
Sincerely,
Scott W. Morgan, Mayor
Town of Gulf Stream
November 11, 2014
Janet Bradford Morgan, Esq.
Branch UPL Counsel
The Florida Bar
Lake Shore Plaza II
Su. 130
1300 Concord Terrace
Sunrise, FL 33323
Re: Jonathan R. O’Boyle
Fla Bar No. 2015- 1027 (17C)
Dear Ms. Morgan:
Supplementing our Complaint against Mr. O’Boyle, please find enclosed an
article from the Florida Center for Investigative Reporting, dated November 9, 2014.
We respectfully request that this article be considered along with the other
information previously supplied to The Florida Bar on this matters.
Should you have any questions, please do not hesitate to contact me.
Sincerely,
Scott W. Morgan, Mayor
Town of Gulf Stream
c.c. Evan Brett Klinek, Esq.
October 28, 2014
Janet Bradford Morgan, Esq.
Branch UPL Counsel
The Florida Bar
Lake Shore Plaza II
Su. 130
1300 Concord Terrace
Sunrise, FL 33323
Re: Jonathan R. O’Boyle
Fla Bar No. 2015- 1027 (17C)
Dear Ms. Morgan:
Supplementing our Complaint against Mr. O’Boyle, please find enclosed the
sworn Affidavit of Joel Edward Chandler.
We respectfully request that this Affidavit be considered along with the other
information previously supplied to The Florida Bar on this matters.
Should you have any questions, please do not hesitate to contact me.
Sincerely,
Scott W. Morgan, Mayor
Town of Gulf Stream
c.c. Evan Brett Klinek, Esq.
November 2, 2015
Roberto Mendez, Esq.
The Florida Bar
Lake Shore Plaza II, Su. 130
1300 Concord Terrace
Sunrise, FL 33323
Re: William F. Ring, The Florida Bar File No. 2015-50,283(17A)
Dear Mr. Mendez:
William F. Ring, Esq., is vice-president and in-house counsel of Commerce Group, Inc.
On October 22, 2015, Commerce Group, Inc. submitted its public records request #1154
to the Town of Gulf Stream for records confirming whether our Town Manager, William
Thrasher, was related to someone named Brenton D. Thrasher. See Town Exhibit A.
Brenton D. Thrasher is William Thrasher's son, and he does not now nor has he ever had
any involvement with the Town of Gulf Stream. He is not a town resident or a town employee or
a town private contractor. His only connection to Gulf Stream is through his father, who is
employed as our town manager.
Also on October 22, 2015, Commerce Group, Inc. submitted its public records request
#1155 for all records concerning Brenton D. Thrasher, including those "which relate to the
attachments marked as Exhibit A and Exhibit B and the mugshots of Brenton Thrasher as shown
thereon." The request had 3 pages of attachments, each with Brenton Thrasher's photograph and
a reference to various criminal charges such as burglary, assault & battery, grand larceny and
drug trafficking. See Town Exhibit B.
On October 30, 2015, Martin O'Boyle, on behalf of Commerce Group, Inc., sent an email
to the Town of Gulf Stream and carbon copied Attorney William Ring. O'Boyle demanded that
the public records request #1155 attachments describing the criminal charges against Brenton D.
Thrasher be posted on the town's website. O'Boyle's last line in the email reads:
"Kathleen-please resend 1155. Copy me and Attorney Ring.
Note in the caption "2nd request."
(emphasis added)
See Town Exhibit C. Attorney Ring therefore had actual knowledge of this records
request to the Town of Gulf Stream.
Later the same day on October 30, 2015, Commerce Group, Inc. re-sent the public
records request #1155 to the Town of Gulf Stream, marking the email as a "2nd Request."
Attorney William Ring was carbon copied on that email confirming again that he received and
therefore had knowledge of public records request #1155. See Town Exhibit D.
In my opinion, Attorney William Ring's knowledge of and acquiescence to the filing of
this public records request constitutes a violation of Rules 4-4.4 and 4-8.4 of the Rules
Regulating the Florida Bar.
Rule 4-4.4 provides: RESPECT FOR RIGHTS OF THIRD PERSONS
(a) In representing a client, a lawyer may not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person or knowingly
use methods of obtaining evidence that violate the legal rights of such a
person.
Rule 4-8.4 provides: MISCONDUCT
A lawyer shall not:
(d) engage in conduct in connection with the practice of law that is
prejudicial to the administration of justice, including to knowingly, or
through callous indifference, disparage, humiliate, or discriminate
against litigants, jurors, witnesses, court personnel, or other lawyers on
any basis…
Martin O'Boyle, William Ring, Esq., and others at the Commerce Group, Inc. have a
longstanding history of disagreements with the Town of Gulf Stream generally and with our
Town Manager, William Thrasher, in particular. Mr. O'Boyle and Attorney Ring have been
involved in initiating many lawsuits against the Town, and William Thrasher is a witness or a
named defendant in a number of them.
There can be no other purpose to these attached public records requests--no conceivable
reason for filing them--beyond causing embarrassment and humiliation and outright heartache to
our manager, William Thrasher. His son has no connection to our town, no connection to the
town manager's duties- no connection to Gulf Stream at all. Attorney Ring knows this. Yet, he
approved not only the filing once but the re-filing a second time of a document designed to
publicize these embarrassing criminal records regarding our town manager's son.
William Ring's actions are beneath the dignity of a lawyer, and they merit disciplinary
sanction.
Sincerely,
Scott W. Morgan, Mayor
Town of Gulf Stream
c.c. Scott K. Tozian, Esq.
May 11, 2015
Roberto Mendez, Esq.
The Florida Bar
Lake Shore Plaza II, Su. 130
1300 Concord Terrace
Sunrise, FL 33323
Re: Nickalaus Taylor, The Florida Bar File No. 2015-50,426(17A)
Giovani Mesa, The Florida Bar File No. 2015-50,427(17A)
Ryan Witmer, The Florida Bar File No. 2015-00,227(17A)
William F. Ring, The Florida Bar File No. 2015-50,283(17A)
Dear Mr. Mendez:
Supplementing our Complaints against the above-mentioned lawyers of The O’Boyle Law Firm, we enclose two exhibits, and provide the following explanatory background:
In 2014, The O’Boyle Law Firm filed a public records lawsuit against Practical Academic Education Center for Girls, Inc., in the 4th Judicial Circuit, Duval County, FL, no. 2014-CA-2839.
Ryan L. Witmer, on behalf of The O’Boyle Law Firm, arranged for execution of the firm’s Fee Agreement by the Plaintiff, Jeffrey Gray. That Fee Agreement, dated February 12, 2014, is
included herein and, according to Gray, applies to all public records cases, both existing or prospective, filed or to be filed on Gray’ behalf. See Gray Dep. 44: 13-18.
On August 8, 2014, attorney Grier Wells, representing Practical Academic Cultural
Education Center for Girls, Inc., took the deposition of plaintiff Jeffrey Gray.
A copy of Mr. Gray’s deposition transcript was previously submitted to you on February 25, 2015, but relevant sections are re-submitted herein.
Mr. Gray testified that one of the ways he earns money is by filing public records lawsuits
against unsuspecting municipalities or private contractors. Mr. Gray testified that between
six and eight of his cases settled, and that while he has not personally made attorneys’ fee
payments to the firm, he nevertheless receives a portion of the income from these
settlements. See Gray Dep. 43:11-18; 46:3-17.
Mr. Gray stated:
A: When I left Winn-Dixie, I cashed in my 401(k) and I lived off that
for a while. And I also, through public records requests, I do receive
settlements.
Q: You receive settlements?
A: Yes.
Q: From whom?
A: Whatever vendor that I sue.
Q: Whatever vendor you sue?
A: Yes.
Q: Are the settlements paid to you, or are they paid to your attorneys
and then from the attorneys to you?
A: They are paid to the attorneys and then to me.
See Gray Dep. 30:16-25; 31:1-5.
Paragraph 6(b)(i) of the enclosed The O’Boyle Law Firm Fee Agreement sets forth a
modified contingency fee that would only apply if The O’Boyle Law Firm collected
settlement monies in excess of actual attorneys’ fees and costs incurred. Under this
provision, The O’Boyle Law Firm has the ability to stay collection of hourly billings and
elect to switch the case to a “modified contingency,” if the firm determines that
the case is meritorious. Under this “modified contingency,” The O’Boyle Law Firm becomes entitled to the greater of “a) all costs as well as 40% of the remaining monies (40% of the net
recovery after costs are collected from the gross recovery) or b) all costs and attorneys’ fees.”
The paragraph further provides that if the matter is resolved unfavorably the firm will waive
all fees and costs associated with prosecution. This provision allows the client to keep up to 60% of all recoveries after costs, and essentially operates as a “finder’s fee” that encourages
voluminous public records litigation.
On its face, the Fee Agreement creates an incentive for The O’Boyle Law Firm’s “clients” to set public entities up to fail, either through “gotcha” public records requests or through
voluminous requests that prevent the entity from fully complying. In such instances, the “client” then “hires” The O’Boyle Law Firm to demand settlements far in excess of actual fees
and costs incurred.
This Fee Agreement turns so-called “clients” into nothing more than runners for The O’Boyle Law Firm with their sole purpose being to generate bogus public records litigation. The O’Boyle
Law Firm, in turn, will make settlement demands in excess of actual fees and costs incurred so that both it and the “client” can profit under the apparent pretense of a lodestar multiplier.
As noted in the Fee Agreement itself, the only relief available in public records litigation is reasonable attorneys’ fees pursuant to § 119.12 of the Florida Statutes. Thus, the “modified
contingency” provision of The O’Boyle Law Firm’s Fee Agreement is nothing more
than an attempt to re-classify attorneys’ fees as monies received from a “settlement” of the
case. As such, the agreement on its face recognizes the law firm’s intention to
share attorneys’ fees with non-lawyers in contravention of Rule 4-5.4, Professional
Independence of a Lawyer:
“A lawyer or law firm shall not share legal fees with a non-lawyer except that . . . 5) a lawyer may share court awarded fees with a non-profit, pro-bono legal services organization
that employed, retained or recommended employment of the lawyer in the matter.”
The Fee Agreement violates another Rule Regulating the Florida Bar, as well. In paragraph 3(b),
the agreement states: “Your termination of this agreement: you may terminate our services
for any reason. You will still be responsible for paying any outstanding fees and costs.”
In paragraph 6(b)(ii) the agreement goes on to say, “In the event that the representation is
terminated by the client, all fees and costs for which collection has been stayed shall
immediately become due and owing to the Firm.” The cited termination clause violates Rule 4-1.5 (an attorney shall not charge or collect an illegal, prohibited or clearly excessive fee)
because the termination clause would force any client of The O’Boyle Law Firm to pay the firm immediately upon discharge, even where the contingency had never been met and even if the
discharge were for cause. Florida courts have consistently recognized this principle, including in the disbarment case of Ronald T. Spann. In The Florida Bar v. Ronald T. Spann, 682
So. 2d 1070, 1072 (Fla. 1996), the Court examined a fee agreement similar to the subject document and concluded that the agreement constituted a penalty clause in violation of Rule
4-1.5(a) (an attorney shall not charge or collect an illegal, prohibited or clearly excessive fee), because the client would be forced to pay the attorney immediately upon discharge
even where the contingency had not been met. The Court also cited another violation at Rule 4-5.3(a) (a partner shall make reasonable efforts to ensure that a non-lawyer employee’s
conduct is compatible with the professional obligations of the lawyer).
Despite knowledge of the professional conduct rules and applicable case law, The O’Boyle Law Firm has continued to demand payment for attorneys’ fees and costs in excess of the actual
attorneys’ fees and costs earned. Each of the firm’s attorneys is aware of the subject illegal fee agreement and has been involved in unethically demanding a multiple of the firm’s
attorneys’ fees in public records lawsuits.
Another Ethics violation created by the Fee Agreement is in the requirement for lawyers to be truthful in statements to others. Rule 4-4.1 of the Rules Regulating the Florida Bar provides:
In the course of representing a client a lawyer shall not knowingly: a) make a false statement of material fact or law to a third person; or b) fail to disclose a material fact to a
third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client,
unless disclosure is prohibited by Rule 4-1.6.
The O’Boyle Law Firm and its members continue to make false statements of material fact
or law to third persons by demanding attorneys’ fees that have not been earned and by
falsely asserting that they have a right to a multiplier based on an illegal contingency fee
agreement. In addition, the firm and its lawyers have failed to disclose a material fact to
third persons including the important fact that at least one of their plaintiffs, Citizens Awareness Foundation, Inc., (and likely several other alleged non-profit entities), are nothing
more than straw parties created by the firm and run from the firm’s offices solely to generate litigation and attorneys’ fees. This creates the intolerable situation where plaintiffs
have “a financial
interest in assuring that requests for public records are refused.”
We respectfully request that the Fee Agreement and its historical use by the above mentioned lawyers be considered in connection with our Complaints.
Sincerely,
Scott W. Morgan, Mayor
Town of Gulf Stream
c.c. Scott K. Tozian, Esq.
Scott –
Attached is a copy of the document that you sent me this afternoon at 12:41 p.m. The attachment is being sent to you in Word (showing the few changes “marked by computer” from the draft
that you sent me by E-Mail at 12:41 p.m.).
I am also sending you the document in PDF “clean” with the Exhibit A attached.
Please confirm that all is good. Upon doing so, I will appear at the meeting and offer the Settlement Agreement executed, subject to your concomitant execution.
Please let me hear from you immediately. Assuming all is good, I must forward it to both Elaine James and Rob Rivas for as “final look”, as they are many drafts behind. I expect no
changes (or slight changes). I will give them but a few hours, after which I intend to “take the plunge”.
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thank you and I await your advice.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: Marty O'Boyle
Sent: Wednesday, November 08, 2017 2:01 PM
To: scottmorgan75@gmail.com
Cc: Brenda Russell <brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – In connection with the doc attached to your email below, I have reviewed the attached internally. A few “tweak” changes. I will send them to you within the hour. Once you
give the “ok”, I will send it out to Rob and Elaine and ask them for their final comments; and ask them to provide them before days end. Assuming all is good, I will tender on Friday
at the Public Hearing on Friday, without making any comment.
Please watch your email.
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Wednesday, November 8, 2017 12:41 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Look at the attached. I moved your Cases line down to the end of the Paragraph 2 sentence.
Marty—you wrote this thing. If we had used the one Joanne and I wrote and sent to you, there wouldn’t be any question of who releases who, what and when.
But since you want me to work with your document there will need to be a lot of cut and pasting which doesn’t read so well–anyway here it is.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Wednesday, November 08, 2017 12:12 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scot – attached is the comparison. What you did (perhaps by error) is the following:
1. You made the release to the Town a General Release
2. You limited the Release to me to the cases.
The above aside, are we in agreement that the deal is as in my doc, as acceptable (see below)
What I offered in Paragraph 2 is a release to GS for only the records cases listed (which excludes 4474); and what I offered in 3 is a full release to us. Let me know if those terms
are agreeable, subject to any “tweaking” which will be considered and may be necessary in the final “look at”. Upon hearing from you, I will know how best to proceed.
If so, aside from “tweaking” (and considering above), tell me why my doc doesn’t work? If mine works, tweak it by marking and sending it. As you will see by attached mark up of yours
v what I sent Joanne (unless – somehow it got corrupted – which I don’t think is the case), you made majpor deal changes; a full retreat. Hopefully, your changes were in error. In
any event, when you respond, you will make clear.
Thank you and I await your advice.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Wednesday, November 8, 2017 11:32 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
You are disingenuous.
The SA is YOUR SA. It is all of YOUR TERMS. The cases being settled are only the ones YOU LISTED ON THE EXHIBIT A.
All I did was have the description of “Gulf Stream” and the description of what a “Release” means read the same in paragraphs 2 and 3 because to describe them differently would obviously
make no sense.
Therefore, we are finished here.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 8:55 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I started to read attached and after I read 2 & 3, I stopped. What I offered in Paragraph 2 is a release to GS for only the records cases listed (which excludes 4474); and what
I offered in 3 is a full release to us. Let me know if those terms are agreeable, subject to any “tweaking” which will be considered and may be necessary in the final “look at”. Upon
hearing from you, I will know how best to proceed.
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 5:30 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Here you go.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 5:03 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott - your email is received fondly. Please mark up my doc (attached in WORD). Before I comment (actually I just glanced at below), I would like to look at your proposed changes in
the scheme of the overall doc.
I hope we can get there soon. Let’s both try real hard! :)
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 4:48 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty,
I still think our SA language is better for both sides but if you insist on the one you just sent me, then fine. Let’s use your SA. But several points need to be changed:
Paragraph 1 Add “Martin O’Boyle” with the “Town of Gulf Stream and each Releasor”.
Paragraph 2 The Town of Gulf Stream, collectively called the “Gulf Stream Parties” in paragraph 3, needs to be described the same in Paragraph 2 as it is in Paragraph 3.
In addition, the description of the discharge & release of claims needs to be the same in Paragraph 2 as it is in Paragraph 3.
Paragraph 3 At the end of the first sentence, add “with the exception of any cases not included on Exhibit A attached hereto.”
Paragraph 7 Delete the word “Sanctions”. (This is necessary to serve as a disincentive to future similar litigation)
Modify the last sentence to read: The provisions of this Paragraph shall not apply to any O’Boyle Party unless such party is acting on behalf of or at the
request of O’Boyle.
Paragraph 8 Clarify the sentence ending in “ten (10) days” with the phrase “within ten (10) days of the Town’s determination of the costs (or absence thereof) associated with
responding to the public records request.”
Delete the last sentence about the facilitation fee complying with 119. (this fee in not found in 119 so by definition it does not comply with it)
Also, your email said the Town wants the non-record cases to continue. No we don’t. We should settle them too. You didn’t put them in the SA so I assumed you wanted to keep litigating
them. Let’s add them to the list.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 3:14 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott:
Below are the fundamental differences as I recall, without looking at my draft:
1. The Insurance Issue is alive and well. I offer a release to the Town for the records cases (all of them, except 4474 – which involves the insurance co.). That’s all I can do. Joanne
and Sweetapple both agreed to this. Hochman suggested an Indemnity. Joanne said no. Thus what I offered up. Beyond that, I can offer no more.
2. CAFI is not a “Marty” issue. Please feel free to speak to Bill. Based on my short conversation with him, I don’t think that is an issue to resolution.
3. As to the OLF’s lawyer’s, that’s it. They will not agree to anything more.
As I see it, they are the main events. I reattach my email to Joanne with my last draft.
Based upon your own agreement, the Town clearly wants the “non-records” litigation to continue.
I invite you to tweak my last version.
I remind you of the benefits (see below).
Please consider the below, looking at the “Big Picture”
. Let’s look at what it accomplishes:
* It gets rid of the Records Litigation as aforesaid.
* It gets rid of the “Insurance Issue”, which I (reluctantly) take on.
* It provides for the withdrawal of all existing unfulfilled requests, which eliminates the possibility of future litigation in connection therewith.
* It discourages future Records Requests.
Please advise where you would like to go from here. What more can I say?
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 12:31 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty----what is going on here?
I worked over the weekend and yesterday on the SA you told me you wanted to use. You sent it to me (attached) with the following email:
Scott – below was an “OOPS!”. Please delete, as this one is the correct one.
All relevant communications are now attached.
I await hearing back from you.
Now you send me another SA and say that’s the one. Last week you give me a SA and I work on it. Now you say that’s the wrong one--use a new one.
Give me a call please. I just opened your new attachment and frankly I just don’t understand what the problem is. Am I misreading these SA’s? Aside from some language differences, I
just don’t see the differences.
There are no attachments to this document that you just sent me but I assume it’s the same as the cases and parties identified in my SA. Or is there some difference?
Frankly, this is ridiculous. For you and for me. I could respond to your highlights below but it isn’t important. We both get it: You feel like we backed out of an agreement; We feel
like you did. OK. We have different perceptions of who did what but does it really matter? We are either going to wrap this up or not, and Marty, I keep saying it: I just don’t see
what the differences are. Call me and let’s go over this latest document you sent me and the one I sent you. I really don’t care whose document we use so long as we agree on the terms.
That’s what I’m trying to figure out. Do we agree on the terms?
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 11:50 AM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> ; smorgan@gulf-stream.org <mailto:smorgan@gulf-stream.org>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
CONTINUING ON RE BELOW
Below was a “misfire”, in that it was unfinished, unreviewed, unedited and incomplete. A new version will follow. Please disregard.
As requested, please work from my doc, as I believe it “rings the bell. Your doc doesn’t work, for a host of reasons, all of which have been explained in emails over the last few months
(if not few weeks). See areas “highlighted” below.
[Despite your hyperbole and restatement and inaccurate recitation of history, I look for a fair and amicable settlement, as I have preached for years. What you propose is a “Giant step
backwards”; and if you keep it up, we will just continue to spin wheels as in the Mississippi Mud without a posi-traction differential” What’s your pleasure? Again, if you wish to
“tweak”, please do so from my last draft.]
This email is sent for settlement purposes only and may not be iused for any other purpose.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 10:35 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty—you apparently didn’t read or understand the SA because paragraph 3 specifically addresses “Fatal Area 1”, which provides a release of the lawyers by the town without a reciprocal
release by them of the town. [The Release is conditional. That is unacceptable to the lawyers. We both know (and knew that), your lawyers agreed to my language. The Lawyers don’t
trust you. Take it or leave it. Moving on.]
Your second “Fatal Area” suggests that we must use your release---I suppose you mean the release with the highlighted portions. That cannot be done because that document includes several
incomplete paragraphs, several redundant ones, additional “joining” parties, and some mis-numbered sections. That is why I revised it-- to fill in the blanks, get rid of unrelated joining
parties, and to make it more understandable. Our SA is your SA—just with tighter, clearer language. It is not the Town’s SA vs. O’Boyle SA. This contains the terms we both already
agree on. [The release I provided is a release from the Town to me and not the other way, there are too many exclusions to deal with, all of which we gave you a right to cure and some
of which your attorneys agreed to. You now do another “about face”. Take it or leave it”.]
CAFI is your
third “Fatal Area.” Your position: “ I don’t see CAFI as an issue.” This is absurd. If you think “CAFI can be resolved without fuss” then do it. If you can resolve it, resolve it. Don’t
just say it isn’t an issue. [CAFI listed as a “Fatal Issue” was in error. The operative language there follows: I spoke to Bill briefly and he thinks CAFI can be resolved without fuss.]
I worked on this with you several months ago and it went nowhere. Recently, I felt you were sincere when you reached out to me to nail down this SA. So I compared the SA’s and concluded
they are the same, at least in intentions if not in exact language. I cleaned up the language and prepared a SA that provides the terms you set forth. These are the same terms that
we agreed to before. {You got it wrong. Generally stated, you insisted that we deal with your counsel. We did. They agreed, didn’t agree, one changed their mind, the other then offered
and alternate result, and we (as I said before) ended up playing the “Mole game”. A lot has happened since you backed out of your last agreement (see emails). I’m trying to get done,
but you must deal with reality. Please go back and read the history and speak to your attorneys that you had handle things for you, starting with Hudson Gil who gave us an ultimate
with a “Bogus Agreement” and then when we tried to work with him, he wouldn’t return phone calls; and perhaps, upon doing so, you will then better understand. What I offer is a “Big
Win” for the Town, as I state in my email to you of yesterday at 5:52pm. You just need to decide whether the offer on the table is “good for the taxpayers of Gulfstream economically”.
Of course, I am always open to “tweaking”, as I’m not that good.]
We are both busy men, Marty. I have a business to run and I’m not going to spend more time going back and forth with you on terms that are already agreed to by both sides. The only issue
I see is CAFI. It’s an issue for you and an issue for us. You seem confident that “CAFI can be resolved without fuss” so go ahead and resolve it. Once that’s done, I’ll recommend the
Commission accept this SA.
Also, you probably know that you have a Stopdirtygovernment case that is on the trial schedule and can be called as early as Monday. Your lawyers and ours’ are currently preparing for
a Monday call. [Wasn’t it you who said in the CG Case that until a settlement is reached that we go forward. I assume that your position remains the same. Having said that, “let’s
get done”! :)]
Now is the time to wrap this up, Marty. Our November Commission meeting is this Friday. That’s the time to get the SA approved. [I agree]
[Scott – I agree that we are both busy. You know where I’m coming from. Given the totality of the circumstances, you should “jump all over” my offering. In lieu of an agreement, I
will (with great reluctance) continue to litigate the other cases. Do you really see that as beneficial to the taxpayers? Really?]
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 5:52 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I briefly reviewed your email.
Initially, I see 3 fatal areas, that we need to overcome before going any further.
1. The lawyers at the firm, will not release the Town. The “Chris O’Hare” extortion statement and the Town’s refusal for a Non-Disparagement killed that; and the Town’s agreement as
in my doc and now what you propose creates more distrust and they just won’t agree to it.
2. I offered a Release, if it works, cool. If not, we need to address the other issues, which my draft “snuffed”.
3. I don’t see CAFI as an issue. I spoke to Bill briefly and he thinks CAFI can be resolved without fuss.
That’s where we start. Please consider the below, looking at the “Big Picture”
. Let’s look at what it accomplishes:
* It gets rid of the Records Litigation as aforesaid.
* It gets rid of the “Insurance Issue”, which I (reluctantly) take on.
* It provides for the withdrawal of all existing unfulfilled requests, which eliminates the possibility of future litigation in connection therewith.
* It discourages future Records Requests.
Please advise where you would like to go from here.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Monday, November 6, 2017 5:12 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty,
Fortunately, I didn’t get called up so my one day of jury service is over. But the time there did give me a chance to review and prepare the SA for you to review.
Attached is the SA. I took your comments and Joanne’s and matched them. Some of the clauses or paragraphs I thought were redundant so took those out and I cleaned up some of the language
in the remaining paragraphs to cover the points being made. You will see my notes of explanation in Red beneath the important paragraphs.
I am not hiding anything here. There is no tricky language or legal gymnastics. This SA is for you and your entities as well as your attorneys. It is for the Town and its employees and
attorneys.
I specifically avoid including joint parties or ancillary parties or adding more people for signatures.
This is you and this is the Town. It is also your people and our people and your attorneys and our attorneys.
Regarding attorneys, although the Town releases your attorneys, your attorneys don’t have to release the Town. Instead, if they take action in the future, then our release of them is
void. But at the outset, they don’t need to get involved to sign a release of claims.
We dismiss the cases and you withdraw the PRR’s. Then we add the rights you retain from the prior settlement, the criminal matter, and the Hidden Harbor issues. And that’s it.
Regarding CAFI, Joanne told me that Bill is no longer a board member or officer. This is important. CAFI needs to be addressed so if you can put CAFI into this SA, and either you or
Bill sign for it, then we need to do that. If you cannot do that, then our settlement needs to be conditioned on those three CAFI cases being voluntarily dismissed. They can’t be left
hanging out there and I won’t take the agreement to the Commission without it being addressed. If you have another suggestion, I’m open to it but this is the best I could come up with.
I think we are both on the same page Marty. Let me know if you agree. And let me know your thoughts on handling CAFI.
Scott
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 2:32 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I know you will address when you can.
PS: Don’t get on a 2 month trial! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Monday, November 6, 2017 9:16 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty— am at jury duty!! Not sure when I’ll be able to get you a copy. I’ll try tomorrow.
Sent from my iPhone
On Nov 6, 2017, at 6:43 AM, Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> > wrote:
Scott – I am working\preparing for a major meeting today. I assuming you can get me the revised doc this am, I could likely get an hour of “quiet time” during the lunch break and maybe
(just maybe) – assuming the comments shown on the markup (or annotated or enumerated) are minimal respond to you during the lunch break. No guarantee’s by way of timing given.
All is still fresh in my mind regarding the content of my last draft, so it should be easy for me to respond; and do so quickly, despite being “on the move”. Time is not our friend
for a host of reasons, including my schedule; and, with the passing of time, my memory. The issues should be non-existent (save – perhaps – some tweaking. Now is our chance. Let’s
do it! :)
Of course, until formal docs are signed and approved by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thanks! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
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Scott –
Attached is a copy of the document that you sent me this afternoon at 12:41 p.m. The attachment is being sent to you in Word (showing the few changes “marked by computer” from the draft
that you sent me by E-Mail at 12:41 p.m.).
I am also sending you the document in PDF “clean” with the Exhibit A attached.
Please confirm that all is good. Upon doing so, I will appear at the meeting and offer the Settlement Agreement executed, subject to your concomitant execution.
Please let me hear from you immediately. Assuming all is good, I must forward it to both Elaine James and Rob Rivas for as “final look”, as they are many drafts behind. I expect no
changes (or slight changes). I will give them but a few hours, after which I intend to “take the plunge”.
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thank you and I await your advice.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: Marty O'Boyle
Sent: Wednesday, November 08, 2017 2:01 PM
To: scottmorgan75@gmail.com
Cc: Brenda Russell <brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – In connection with the doc attached to your email below, I have reviewed the attached internally. A few “tweak” changes. I will send them to you within the hour. Once you
give the “ok”, I will send it out to Rob and Elaine and ask them for their final comments; and ask them to provide them before days end. Assuming all is good, I will tender on Friday
at the Public Hearing on Friday, without making any comment.
Please watch your email.
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Wednesday, November 8, 2017 12:41 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Look at the attached. I moved your Cases line down to the end of the Paragraph 2 sentence.
Marty—you wrote this thing. If we had used the one Joanne and I wrote and sent to you, there wouldn’t be any question of who releases who, what and when.
But since you want me to work with your document there will need to be a lot of cut and pasting which doesn’t read so well–anyway here it is.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Wednesday, November 08, 2017 12:12 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scot – attached is the comparison. What you did (perhaps by error) is the following:
1. You made the release to the Town a General Release
2. You limited the Release to me to the cases.
The above aside, are we in agreement that the deal is as in my doc, as acceptable (see below)
What I offered in Paragraph 2 is a release to GS for only the records cases listed (which excludes 4474); and what I offered in 3 is a full release to us. Let me know if those terms
are agreeable, subject to any “tweaking” which will be considered and may be necessary in the final “look at”. Upon hearing from you, I will know how best to proceed.
If so, aside from “tweaking” (and considering above), tell me why my doc doesn’t work? If mine works, tweak it by marking and sending it. As you will see by attached mark up of yours
v what I sent Joanne (unless – somehow it got corrupted – which I don’t think is the case), you made majpor deal changes; a full retreat. Hopefully, your changes were in error. In
any event, when you respond, you will make clear.
Thank you and I await your advice.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Wednesday, November 8, 2017 11:32 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
You are disingenuous.
The SA is YOUR SA. It is all of YOUR TERMS. The cases being settled are only the ones YOU LISTED ON THE EXHIBIT A.
All I did was have the description of “Gulf Stream” and the description of what a “Release” means read the same in paragraphs 2 and 3 because to describe them differently would obviously
make no sense.
Therefore, we are finished here.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 8:55 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I started to read attached and after I read 2 & 3, I stopped. What I offered in Paragraph 2 is a release to GS for only the records cases listed (which excludes 4474); and what
I offered in 3 is a full release to us. Let me know if those terms are agreeable, subject to any “tweaking” which will be considered and may be necessary in the final “look at”. Upon
hearing from you, I will know how best to proceed.
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 5:30 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Here you go.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 5:03 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott - your email is received fondly. Please mark up my doc (attached in WORD). Before I comment (actually I just glanced at below), I would like to look at your proposed changes in
the scheme of the overall doc.
I hope we can get there soon. Let’s both try real hard! :)
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 4:48 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty,
I still think our SA language is better for both sides but if you insist on the one you just sent me, then fine. Let’s use your SA. But several points need to be changed:
Paragraph 1 Add “Martin O’Boyle” with the “Town of Gulf Stream and each Releasor”.
Paragraph 2 The Town of Gulf Stream, collectively called the “Gulf Stream Parties” in paragraph 3, needs to be described the same in Paragraph 2 as it is in Paragraph 3.
In addition, the description of the discharge & release of claims needs to be the same in Paragraph 2 as it is in Paragraph 3.
Paragraph 3 At the end of the first sentence, add “with the exception of any cases not included on Exhibit A attached hereto.”
Paragraph 7 Delete the word “Sanctions”. (This is necessary to serve as a disincentive to future similar litigation)
Modify the last sentence to read: The provisions of this Paragraph shall not apply to any O’Boyle Party unless such party is acting on behalf of or at the
request of O’Boyle.
Paragraph 8 Clarify the sentence ending in “ten (10) days” with the phrase “within ten (10) days of the Town’s determination of the costs (or absence thereof) associated with
responding to the public records request.”
Delete the last sentence about the facilitation fee complying with 119. (this fee in not found in 119 so by definition it does not comply with it)
Also, your email said the Town wants the non-record cases to continue. No we don’t. We should settle them too. You didn’t put them in the SA so I assumed you wanted to keep litigating
them. Let’s add them to the list.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 3:14 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott:
Below are the fundamental differences as I recall, without looking at my draft:
1. The Insurance Issue is alive and well. I offer a release to the Town for the records cases (all of them, except 4474 – which involves the insurance co.). That’s all I can do. Joanne
and Sweetapple both agreed to this. Hochman suggested an Indemnity. Joanne said no. Thus what I offered up. Beyond that, I can offer no more.
2. CAFI is not a “Marty” issue. Please feel free to speak to Bill. Based on my short conversation with him, I don’t think that is an issue to resolution.
3. As to the OLF’s lawyer’s, that’s it. They will not agree to anything more.
As I see it, they are the main events. I reattach my email to Joanne with my last draft.
Based upon your own agreement, the Town clearly wants the “non-records” litigation to continue.
I invite you to tweak my last version.
I remind you of the benefits (see below).
Please consider the below, looking at the “Big Picture”
. Let’s look at what it accomplishes:
* It gets rid of the Records Litigation as aforesaid.
* It gets rid of the “Insurance Issue”, which I (reluctantly) take on.
* It provides for the withdrawal of all existing unfulfilled requests, which eliminates the possibility of future litigation in connection therewith.
* It discourages future Records Requests.
Please advise where you would like to go from here. What more can I say?
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 12:31 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty----what is going on here?
I worked over the weekend and yesterday on the SA you told me you wanted to use. You sent it to me (attached) with the following email:
Scott – below was an “OOPS!”. Please delete, as this one is the correct one.
All relevant communications are now attached.
I await hearing back from you.
Now you send me another SA and say that’s the one. Last week you give me a SA and I work on it. Now you say that’s the wrong one--use a new one.
Give me a call please. I just opened your new attachment and frankly I just don’t understand what the problem is. Am I misreading these SA’s? Aside from some language differences, I
just don’t see the differences.
There are no attachments to this document that you just sent me but I assume it’s the same as the cases and parties identified in my SA. Or is there some difference?
Frankly, this is ridiculous. For you and for me. I could respond to your highlights below but it isn’t important. We both get it: You feel like we backed out of an agreement; We feel
like you did. OK. We have different perceptions of who did what but does it really matter? We are either going to wrap this up or not, and Marty, I keep saying it: I just don’t see
what the differences are. Call me and let’s go over this latest document you sent me and the one I sent you. I really don’t care whose document we use so long as we agree on the terms.
That’s what I’m trying to figure out. Do we agree on the terms?
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 11:50 AM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> ; smorgan@gulf-stream.org <mailto:smorgan@gulf-stream.org>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
CONTINUING ON RE BELOW
Below was a “misfire”, in that it was unfinished, unreviewed, unedited and incomplete. A new version will follow. Please disregard.
As requested, please work from my doc, as I believe it “rings the bell. Your doc doesn’t work, for a host of reasons, all of which have been explained in emails over the last few months
(if not few weeks). See areas “highlighted” below.
[Despite your hyperbole and restatement and inaccurate recitation of history, I look for a fair and amicable settlement, as I have preached for years. What you propose is a “Giant step
backwards”; and if you keep it up, we will just continue to spin wheels as in the Mississippi Mud without a posi-traction differential” What’s your pleasure? Again, if you wish to
“tweak”, please do so from my last draft.]
This email is sent for settlement purposes only and may not be iused for any other purpose.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 10:35 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty—you apparently didn’t read or understand the SA because paragraph 3 specifically addresses “Fatal Area 1”, which provides a release of the lawyers by the town without a reciprocal
release by them of the town. [The Release is conditional. That is unacceptable to the lawyers. We both know (and knew that), your lawyers agreed to my language. The Lawyers don’t
trust you. Take it or leave it. Moving on.]
Your second “Fatal Area” suggests that we must use your release---I suppose you mean the release with the highlighted portions. That cannot be done because that document includes several
incomplete paragraphs, several redundant ones, additional “joining” parties, and some mis-numbered sections. That is why I revised it-- to fill in the blanks, get rid of unrelated joining
parties, and to make it more understandable. Our SA is your SA—just with tighter, clearer language. It is not the Town’s SA vs. O’Boyle SA. This contains the terms we both already
agree on. [The release I provided is a release from the Town to me and not the other way, there are too many exclusions to deal with, all of which we gave you a right to cure and some
of which your attorneys agreed to. You now do another “about face”. Take it or leave it”.]
CAFI is your
third “Fatal Area.” Your position: “ I don’t see CAFI as an issue.” This is absurd. If you think “CAFI can be resolved without fuss” then do it. If you can resolve it, resolve it. Don’t
just say it isn’t an issue. [CAFI listed as a “Fatal Issue” was in error. The operative language there follows: I spoke to Bill briefly and he thinks CAFI can be resolved without fuss.]
I worked on this with you several months ago and it went nowhere. Recently, I felt you were sincere when you reached out to me to nail down this SA. So I compared the SA’s and concluded
they are the same, at least in intentions if not in exact language. I cleaned up the language and prepared a SA that provides the terms you set forth. These are the same terms that
we agreed to before. {You got it wrong. Generally stated, you insisted that we deal with your counsel. We did. They agreed, didn’t agree, one changed their mind, the other then offered
and alternate result, and we (as I said before) ended up playing the “Mole game”. A lot has happened since you backed out of your last agreement (see emails). I’m trying to get done,
but you must deal with reality. Please go back and read the history and speak to your attorneys that you had handle things for you, starting with Hudson Gil who gave us an ultimate
with a “Bogus Agreement” and then when we tried to work with him, he wouldn’t return phone calls; and perhaps, upon doing so, you will then better understand. What I offer is a “Big
Win” for the Town, as I state in my email to you of yesterday at 5:52pm. You just need to decide whether the offer on the table is “good for the taxpayers of Gulfstream economically”.
Of course, I am always open to “tweaking”, as I’m not that good.]
We are both busy men, Marty. I have a business to run and I’m not going to spend more time going back and forth with you on terms that are already agreed to by both sides. The only issue
I see is CAFI. It’s an issue for you and an issue for us. You seem confident that “CAFI can be resolved without fuss” so go ahead and resolve it. Once that’s done, I’ll recommend the
Commission accept this SA.
Also, you probably know that you have a Stopdirtygovernment case that is on the trial schedule and can be called as early as Monday. Your lawyers and ours’ are currently preparing for
a Monday call. [Wasn’t it you who said in the CG Case that until a settlement is reached that we go forward. I assume that your position remains the same. Having said that, “let’s
get done”! :)]
Now is the time to wrap this up, Marty. Our November Commission meeting is this Friday. That’s the time to get the SA approved. [I agree]
[Scott – I agree that we are both busy. You know where I’m coming from. Given the totality of the circumstances, you should “jump all over” my offering. In lieu of an agreement, I
will (with great reluctance) continue to litigate the other cases. Do you really see that as beneficial to the taxpayers? Really?]
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 5:52 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I briefly reviewed your email.
Initially, I see 3 fatal areas, that we need to overcome before going any further.
1. The lawyers at the firm, will not release the Town. The “Chris O’Hare” extortion statement and the Town’s refusal for a Non-Disparagement killed that; and the Town’s agreement as
in my doc and now what you propose creates more distrust and they just won’t agree to it.
2. I offered a Release, if it works, cool. If not, we need to address the other issues, which my draft “snuffed”.
3. I don’t see CAFI as an issue. I spoke to Bill briefly and he thinks CAFI can be resolved without fuss.
That’s where we start. Please consider the below, looking at the “Big Picture”
. Let’s look at what it accomplishes:
* It gets rid of the Records Litigation as aforesaid.
* It gets rid of the “Insurance Issue”, which I (reluctantly) take on.
* It provides for the withdrawal of all existing unfulfilled requests, which eliminates the possibility of future litigation in connection therewith.
* It discourages future Records Requests.
Please advise where you would like to go from here.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Monday, November 6, 2017 5:12 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty,
Fortunately, I didn’t get called up so my one day of jury service is over. But the time there did give me a chance to review and prepare the SA for you to review.
Attached is the SA. I took your comments and Joanne’s and matched them. Some of the clauses or paragraphs I thought were redundant so took those out and I cleaned up some of the language
in the remaining paragraphs to cover the points being made. You will see my notes of explanation in Red beneath the important paragraphs.
I am not hiding anything here. There is no tricky language or legal gymnastics. This SA is for you and your entities as well as your attorneys. It is for the Town and its employees and
attorneys.
I specifically avoid including joint parties or ancillary parties or adding more people for signatures.
This is you and this is the Town. It is also your people and our people and your attorneys and our attorneys.
Regarding attorneys, although the Town releases your attorneys, your attorneys don’t have to release the Town. Instead, if they take action in the future, then our release of them is
void. But at the outset, they don’t need to get involved to sign a release of claims.
We dismiss the cases and you withdraw the PRR’s. Then we add the rights you retain from the prior settlement, the criminal matter, and the Hidden Harbor issues. And that’s it.
Regarding CAFI, Joanne told me that Bill is no longer a board member or officer. This is important. CAFI needs to be addressed so if you can put CAFI into this SA, and either you or
Bill sign for it, then we need to do that. If you cannot do that, then our settlement needs to be conditioned on those three CAFI cases being voluntarily dismissed. They can’t be left
hanging out there and I won’t take the agreement to the Commission without it being addressed. If you have another suggestion, I’m open to it but this is the best I could come up with.
I think we are both on the same page Marty. Let me know if you agree. And let me know your thoughts on handling CAFI.
Scott
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 2:32 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I know you will address when you can.
PS: Don’t get on a 2 month trial! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Monday, November 6, 2017 9:16 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty— am at jury duty!! Not sure when I’ll be able to get you a copy. I’ll try tomorrow.
Sent from my iPhone
On Nov 6, 2017, at 6:43 AM, Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> > wrote:
Scott – I am working\preparing for a major meeting today. I assuming you can get me the revised doc this am, I could likely get an hour of “quiet time” during the lunch break and maybe
(just maybe) – assuming the comments shown on the markup (or annotated or enumerated) are minimal respond to you during the lunch break. No guarantee’s by way of timing given.
All is still fresh in my mind regarding the content of my last draft, so it should be easy for me to respond; and do so quickly, despite being “on the move”. Time is not our friend
for a host of reasons, including my schedule; and, with the passing of time, my memory. The issues should be non-existent (save – perhaps – some tweaking. Now is our chance. Let’s
do it! :)
Of course, until formal docs are signed and approved by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thanks! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
nt to the Commission without it being addressed. If you have another suggestion, I’m open to it but this is the best I could come up with.
I think we are both on the same page Marty. Let me know if you agree. And let me know your thoughts on handling CAFI.
Scott
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 2:32 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I know you will address when you can.
PS: Don’t get on a 2 month trial! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Monday, November 6, 2017 9:16 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty— am at jury duty!! Not sure when I’ll be able to get you a copy. I’ll try tomorrow.
Sent from my iPhone
On Nov 6, 2017, at 6:43 AM, Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> > wrote:
Scott – I am working\preparing for a major meeting today. I assuming you can get me the revised doc this am, I could likely get an hour of “quiet time” during the lunch break and maybe
(just maybe) – assuming the comments shown on the markup (or annotated or enumerated) are minimal respond to you during the lunch break. No guarantee’s by way of timing given.
All is still fresh in my mind regarding the content of my last draft, so it should be easy for me to respond; and do so quickly, despite being “on the move”. Time is not our friend
for a host of reasons, including my schedule; and, with the passing of time, my memory. The issues should be non-existent (save – perhaps – some tweaking. Now is our chance. Let’s
do it! :)
Of course, until formal docs are signed and approved by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thanks! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
06, 2017 2:32 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I know you will address when you can.
PS: Don’t get on a 2 month trial! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Monday, November 6, 2017 9:16 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty— am at jury duty!! Not sure when I’ll be able to get you a copy. I’ll try tomorrow.
Sent from my iPhone
On Nov 6, 2017, at 6:43 AM, Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> > wrote:
Scott – I am working\preparing for a major meeting today. I assuming you can get me the revised doc this am, I could likely get an hour of “quiet time” during the lunch break and
maybe (just maybe) – assuming the comments shown on the markup (or annotated or enumerated) are minimal respond to you during the lunch break. No guarantee’s by way of timing given.
All is still fresh in my mind regarding the content of my last draft, so it should be easy for me to respond; and do so quickly, despite being “on the move”. Time is not our friend
for a host of reasons, including my schedule; and, with the passing of time, my memory. The issues should be non-existent (save – perhaps – some tweaking. Now is our chance. Let’s
do it! :)
Of course, until formal docs are signed and approved by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thanks! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
that good.]
We are both busy men, Marty. I have a business to run and I’m not going to spend more time going back and forth with you on terms that are already agreed to by both sides. The only
issue I see is CAFI. It’s an issue for you and an issue for us. You seem confident that “CAFI can be resolved without fuss” so go ahead and resolve it. Once that’s done, I’ll recommend
the Commission accept this SA.
Also, you probably know that you have a Stopdirtygovernment case that is on the trial schedule and can be called as early as Monday. Your lawyers and ours’ are currently preparing for
a Monday call. [Wasn’t it you who said in the CG Case that until a settlement is reached that we go forward. I assume that your position remains the same. Having said that, “let’s
get done”! ☺]
Now is the time to wrap this up, Marty. Our November Commission meeting is this Friday. That’s the time to get the SA approved. [I agree]
[Scott – I agree that we are both busy. You know where I’m coming from. Given the totality of the circumstances, you should “jump all over” my offering. In lieu of an agreement,
I will (with great reluctance) continue to litigate the other cases. Do you really see that as beneficial to the taxpayers? Really?]
From: mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 5:52 PM
To: mailto:scottmorgan75@gmail.com
Cc: mailto:brussell@commerce-group.com <mailto:brussell@commerce-group.com>
Subject: FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I briefly reviewed your email.
Initially, I see 3 fatal areas, that we need to overcome before going any further.
1. The lawyers at the firm, will not release the Town. The “Chris O’Hare” extortion statement and the Town’s refusal for a Non-Disparagement killed that; and the Town’s agreement as
in my doc and now what you propose creates more distrust and they just won’t agree to it.
2. I offered a Release, if it works, cool. If not, we need to address the other issues, which my draft “snuffed”.
3. I don’t see CAFI as an issue. I spoke to Bill briefly and he thinks CAFI can be resolved without fuss.
That’s where we start. Please consider the below, looking at the “Big Picture”
. Let’s look at what it accomplishes:
• It gets rid of the Records Litigation as aforesaid.
• It gets rid of the “Insurance Issue”, which I (reluctantly) take on.
• It provides for the withdrawal of all existing unfulfilled requests, which eliminates the possibility of future litigation in connection therewith.
• It discourages future Records Requests.
Please advise where you would like to go from here.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (mailto:BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP
.COM> ) OR TO CALL HER (954 570 3513 <tel:(954)%20570-3513> ).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505 <tel:(954)%20570-3505>
Fax: 954-360-0807 <tel:(954)%20360-0807>
Cell: 561 213 3486 <tel:(561)%20213-3486>
E-mail: mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: http://www.commerce-group.com/
From: mailto:scottmorgan75@gmail.com [mailto:scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> ]
Sent: Monday, November 6, 2017 5:12 PM
To: Marty O'Boyle <mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty,
Fortunately, I didn’t get called up so my one day of jury service is over. But the time there did give me a chance to review and prepare the SA for you to review.
Attached is the SA. I took your comments and Joanne’s and matched them. Some of the clauses or paragraphs I thought were redundant so took those out and I cleaned up some of the language
in the remaining paragraphs to cover the points being made. You will see my notes of explanation in Red beneath the important paragraphs.
I am not hiding anything here. There is no tricky language or legal gymnastics. This SA is for you and your entities as well as your attorneys. It is for the Town and its employees
and attorneys.
I specifically avoid including joint parties or ancillary parties or adding more people for signatures.
This is you and this is the Town. It is also your people and our people and your attorneys and our attorneys.
Regarding attorneys, although the Town releases your attorneys, your attorneys don’t have to release the Town. Instead, if they take action in the future, then our release of them is
void. But at the outset, they don’t need to get involved to sign a release of claims.
We dismiss the cases and you withdraw the PRR’s. Then we add the rights you retain from the prior settlement, the criminal matter, and the Hidden Harbor issues. And that’s it.
Regarding CAFI, Joanne told me that Bill is no longer a board member or officer. This is important. CAFI needs to be addressed so if you can put CAFI into this SA, and either you or
Bill sign for it, then we need to do that. If you cannot do that, then our settlement needs to be conditioned on those three CAFI cases being voluntarily dismissed. They can’t be left
hanging out there and I won’t take the agreement to the Commission without it being addressed. If you have another suggestion, I’m open to it but this is the best I could come up with.
I think we are both on the same page Marty. Let me know if you agree. And let me know your thoughts on handling CAFI.
Scott
From: mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 2:32 PM
To: mailto:scottmorgan75@gmail.com
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I know you will address when you can.
PS: Don’t get on a 2 month trial! ☺
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (mailto:BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP
.COM> ) OR TO CALL HER (954 570 3513 <tel:(954)%20570-3513> ).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505 <tel:(954)%20570-3505>
Fax: 954-360-0807 <tel:(954)%20360-0807>
Cell: 561 213 3486 <tel:(561)%20213-3486>
E-mail: mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: http://www.commerce-group.com/
From: mailto:scottmorgan75@gmail.com [mailto:scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> ]
Sent: Monday, November 6, 2017 9:16 AM
To: Marty O'Boyle <mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty— am at jury duty!! Not sure when I’ll be able to get you a copy. I’ll try tomorrow.
Sent from my iPhone
On Nov 6, 2017, at 6:43 AM, Marty O'Boyle <mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> > wrote:
Scott – I am working\preparing for a major meeting today. I assuming you can get me the revised doc this am, I could likely get an hour of “quiet time” during the lunch break and maybe
(just maybe) – assuming the comments shown on the markup (or annotated or enumerated) are minimal respond to you during the lunch break. No guarantee’s by way of timing given.
All is still fresh in my mind regarding the content of my last draft, so it should be easy for me to respond; and do so quickly, despite being “on the move”. Time is not our friend
for a host of reasons, including my schedule; and, with the passing of time, my memory. The issues should be non-existent (save – perhaps – some tweaking. Now is our chance. Let’s
do it! ☺
Of course, until formal docs are signed and approved by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thanks! ☺
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (mailto:BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP
.COM> ) OR TO CALL HER (954 570 3513 <tel:(954)%20570-3513> ).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505 <tel:(954)%20570-3505>
Fax: 954-360-0807 <tel:(954)%20360-0807>
Cell: 561 213 3486 <tel:(561)%20213-3486>
E-mail: mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: http://www.commerce-group.com/
Scott –
Attached is a copy of the document that you sent me this afternoon at 12:41 p.m. The attachment is being sent to you in Word (showing the few changes “marked by computer” from the draft
that you sent me by E-Mail at 12:41 p.m.).
I am also sending you the document in PDF “clean” with the Exhibit A attached.
Please confirm that all is good. Upon doing so, I will appear at the meeting and offer the Settlement Agreement executed, subject to your concomitant execution.
Please let me hear from you immediately. Assuming all is good, I must forward it to both Elaine James and Rob Rivas for as “final look”, as they are many drafts behind. I expect no
changes (or slight changes). I will give them but a few hours, after which I intend to “take the plunge”.
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thank you and I await your advice.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: Marty O'Boyle
Sent: Wednesday, November 08, 2017 2:01 PM
To: scottmorgan75@gmail.com
Cc: Brenda Russell <brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – In connection with the doc attached to your email below, I have reviewed the attached internally. A few “tweak” changes. I will send them to you within the hour. Once you
give the “ok”, I will send it out to Rob and Elaine and ask them for their final comments; and ask them to provide them before days end. Assuming all is good, I will tender on Friday
at the Public Hearing on Friday, without making any comment.
Please watch your email.
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Wednesday, November 8, 2017 12:41 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Look at the attached. I moved your Cases line down to the end of the Paragraph 2 sentence.
Marty—you wrote this thing. If we had used the one Joanne and I wrote and sent to you, there wouldn’t be any question of who releases who, what and when.
But since you want me to work with your document there will need to be a lot of cut and pasting which doesn’t read so well–anyway here it is.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Wednesday, November 08, 2017 12:12 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scot – attached is the comparison. What you did (perhaps by error) is the following:
1. You made the release to the Town a General Release
2. You limited the Release to me to the cases.
The above aside, are we in agreement that the deal is as in my doc, as acceptable (see below)
What I offered in Paragraph 2 is a release to GS for only the records cases listed (which excludes 4474); and what I offered in 3 is a full release to us. Let me know if those terms
are agreeable, subject to any “tweaking” which will be considered and may be necessary in the final “look at”. Upon hearing from you, I will know how best to proceed.
If so, aside from “tweaking” (and considering above), tell me why my doc doesn’t work? If mine works, tweak it by marking and sending it. As you will see by attached mark up of yours
v what I sent Joanne (unless – somehow it got corrupted – which I don’t think is the case), you made majpor deal changes; a full retreat. Hopefully, your changes were in error. In
any event, when you respond, you will make clear.
Thank you and I await your advice.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Wednesday, November 8, 2017 11:32 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
You are disingenuous.
The SA is YOUR SA. It is all of YOUR TERMS. The cases being settled are only the ones YOU LISTED ON THE EXHIBIT A.
All I did was have the description of “Gulf Stream” and the description of what a “Release” means read the same in paragraphs 2 and 3 because to describe them differently would obviously
make no sense.
Therefore, we are finished here.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 8:55 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I started to read attached and after I read 2 & 3, I stopped. What I offered in Paragraph 2 is a release to GS for only the records cases listed (which excludes 4474); and what
I offered in 3 is a full release to us. Let me know if those terms are agreeable, subject to any “tweaking” which will be considered and may be necessary in the final “look at”. Upon
hearing from you, I will know how best to proceed.
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 5:30 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Here you go.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 5:03 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott - your email is received fondly. Please mark up my doc (attached in WORD). Before I comment (actually I just glanced at below), I would like to look at your proposed changes in
the scheme of the overall doc.
I hope we can get there soon. Let’s both try real hard! :)
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 4:48 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty,
I still think our SA language is better for both sides but if you insist on the one you just sent me, then fine. Let’s use your SA. But several points need to be changed:
Paragraph 1 Add “Martin O’Boyle” with the “Town of Gulf Stream and each Releasor”.
Paragraph 2 The Town of Gulf Stream, collectively called the “Gulf Stream Parties” in paragraph 3, needs to be described the same in Paragraph 2 as it is in Paragraph 3.
In addition, the description of the discharge & release of claims needs to be the same in Paragraph 2 as it is in Paragraph 3.
Paragraph 3 At the end of the first sentence, add “with the exception of any cases not included on Exhibit A attached hereto.”
Paragraph 7 Delete the word “Sanctions”. (This is necessary to serve as a disincentive to future similar litigation)
Modify the last sentence to read: The provisions of this Paragraph shall not apply to any O’Boyle Party unless such party is acting on behalf of or at the
request of O’Boyle.
Paragraph 8 Clarify the sentence ending in “ten (10) days” with the phrase “within ten (10) days of the Town’s determination of the costs (or absence thereof) associated with
responding to the public records request.”
Delete the last sentence about the facilitation fee complying with 119. (this fee in not found in 119 so by definition it does not comply with it)
Also, your email said the Town wants the non-record cases to continue. No we don’t. We should settle them too. You didn’t put them in the SA so I assumed you wanted to keep litigating
them. Let’s add them to the list.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 3:14 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott:
Below are the fundamental differences as I recall, without looking at my draft:
1. The Insurance Issue is alive and well. I offer a release to the Town for the records cases (all of them, except 4474 – which involves the insurance co.). That’s all I can do. Joanne
and Sweetapple both agreed to this. Hochman suggested an Indemnity. Joanne said no. Thus what I offered up. Beyond that, I can offer no more.
2. CAFI is not a “Marty” issue. Please feel free to speak to Bill. Based on my short conversation with him, I don’t think that is an issue to resolution.
3. As to the OLF’s lawyer’s, that’s it. They will not agree to anything more.
As I see it, they are the main events. I reattach my email to Joanne with my last draft.
Based upon your own agreement, the Town clearly wants the “non-records” litigation to continue.
I invite you to tweak my last version.
I remind you of the benefits (see below).
Please consider the below, looking at the “Big Picture”
. Let’s look at what it accomplishes:
* It gets rid of the Records Litigation as aforesaid.
* It gets rid of the “Insurance Issue”, which I (reluctantly) take on.
* It provides for the withdrawal of all existing unfulfilled requests, which eliminates the possibility of future litigation in connection therewith.
* It discourages future Records Requests.
Please advise where you would like to go from here. What more can I say?
I remind you that this communication is for settlement purposes only and may be used for no other purpose. Additionally, I remind you that until formal docs are signed and approved
by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 12:31 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty----what is going on here?
I worked over the weekend and yesterday on the SA you told me you wanted to use. You sent it to me (attached) with the following email:
Scott – below was an “OOPS!”. Please delete, as this one is the correct one.
All relevant communications are now attached.
I await hearing back from you.
Now you send me another SA and say that’s the one. Last week you give me a SA and I work on it. Now you say that’s the wrong one--use a new one.
Give me a call please. I just opened your new attachment and frankly I just don’t understand what the problem is. Am I misreading these SA’s? Aside from some language differences, I
just don’t see the differences.
There are no attachments to this document that you just sent me but I assume it’s the same as the cases and parties identified in my SA. Or is there some difference?
Frankly, this is ridiculous. For you and for me. I could respond to your highlights below but it isn’t important. We both get it: You feel like we backed out of an agreement; We feel
like you did. OK. We have different perceptions of who did what but does it really matter? We are either going to wrap this up or not, and Marty, I keep saying it: I just don’t see
what the differences are. Call me and let’s go over this latest document you sent me and the one I sent you. I really don’t care whose document we use so long as we agree on the terms.
That’s what I’m trying to figure out. Do we agree on the terms?
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Tuesday, November 07, 2017 11:50 AM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> ; smorgan@gulf-stream.org <mailto:smorgan@gulf-stream.org>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
CONTINUING ON RE BELOW
Below was a “misfire”, in that it was unfinished, unreviewed, unedited and incomplete. A new version will follow. Please disregard.
As requested, please work from my doc, as I believe it “rings the bell. Your doc doesn’t work, for a host of reasons, all of which have been explained in emails over the last few months
(if not few weeks). See areas “highlighted” below.
[Despite your hyperbole and restatement and inaccurate recitation of history, I look for a fair and amicable settlement, as I have preached for years. What you propose is a “Giant step
backwards”; and if you keep it up, we will just continue to spin wheels as in the Mississippi Mud without a posi-traction differential” What’s your pleasure? Again, if you wish to
“tweak”, please do so from my last draft.]
This email is sent for settlement purposes only and may not be iused for any other purpose.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Tuesday, November 7, 2017 10:35 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty—you apparently didn’t read or understand the SA because paragraph 3 specifically addresses “Fatal Area 1”, which provides a release of the lawyers by the town without a reciprocal
release by them of the town. [The Release is conditional. That is unacceptable to the lawyers. We both know (and knew that), your lawyers agreed to my language. The Lawyers don’t
trust you. Take it or leave it. Moving on.]
Your second “Fatal Area” suggests that we must use your release---I suppose you mean the release with the highlighted portions. That cannot be done because that document includes several
incomplete paragraphs, several redundant ones, additional “joining” parties, and some mis-numbered sections. That is why I revised it-- to fill in the blanks, get rid of unrelated joining
parties, and to make it more understandable. Our SA is your SA—just with tighter, clearer language. It is not the Town’s SA vs. O’Boyle SA. This contains the terms we both already
agree on. [The release I provided is a release from the Town to me and not the other way, there are too many exclusions to deal with, all of which we gave you a right to cure and some
of which your attorneys agreed to. You now do another “about face”. Take it or leave it”.]
CAFI is your
third “Fatal Area.” Your position: “ I don’t see CAFI as an issue.” This is absurd. If you think “CAFI can be resolved without fuss” then do it. If you can resolve it, resolve it. Don’t
just say it isn’t an issue. [CAFI listed as a “Fatal Issue” was in error. The operative language there follows: I spoke to Bill briefly and he thinks CAFI can be resolved without fuss.]
I worked on this with you several months ago and it went nowhere. Recently, I felt you were sincere when you reached out to me to nail down this SA. So I compared the SA’s and concluded
they are the same, at least in intentions if not in exact language. I cleaned up the language and prepared a SA that provides the terms you set forth. These are the same terms that
we agreed to before. {You got it wrong. Generally stated, you insisted that we deal with your counsel. We did. They agreed, didn’t agree, one changed their mind, the other then offered
and alternate result, and we (as I said before) ended up playing the “Mole game”. A lot has happened since you backed out of your last agreement (see emails). I’m trying to get done,
but you must deal with reality. Please go back and read the history and speak to your attorneys that you had handle things for you, starting with Hudson Gil who gave us an ultimate
with a “Bogus Agreement” and then when we tried to work with him, he wouldn’t return phone calls; and perhaps, upon doing so, you will then better understand. What I offer is a “Big
Win” for the Town, as I state in my email to you of yesterday at 5:52pm. You just need to decide whether the offer on the table is “good for the taxpayers of Gulfstream economically”.
Of course, I am always open to “tweaking”, as I’m not that good.]
We are both busy men, Marty. I have a business to run and I’m not going to spend more time going back and forth with you on terms that are already agreed to by both sides. The only issue
I see is CAFI. It’s an issue for you and an issue for us. You seem confident that “CAFI can be resolved without fuss” so go ahead and resolve it. Once that’s done, I’ll recommend the
Commission accept this SA.
Also, you probably know that you have a Stopdirtygovernment case that is on the trial schedule and can be called as early as Monday. Your lawyers and ours’ are currently preparing for
a Monday call. [Wasn’t it you who said in the CG Case that until a settlement is reached that we go forward. I assume that your position remains the same. Having said that, “let’s
get done”! :)]
Now is the time to wrap this up, Marty. Our November Commission meeting is this Friday. That’s the time to get the SA approved. [I agree]
[Scott – I agree that we are both busy. You know where I’m coming from. Given the totality of the circumstances, you should “jump all over” my offering. In lieu of an agreement, I
will (with great reluctance) continue to litigate the other cases. Do you really see that as beneficial to the taxpayers? Really?]
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 5:52 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: Brenda Russell <mailto:brussell@commerce-group.com>
Subject: FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I briefly reviewed your email.
Initially, I see 3 fatal areas, that we need to overcome before going any further.
1. The lawyers at the firm, will not release the Town. The “Chris O’Hare” extortion statement and the Town’s refusal for a Non-Disparagement killed that; and the Town’s agreement as
in my doc and now what you propose creates more distrust and they just won’t agree to it.
2. I offered a Release, if it works, cool. If not, we need to address the other issues, which my draft “snuffed”.
3. I don’t see CAFI as an issue. I spoke to Bill briefly and he thinks CAFI can be resolved without fuss.
That’s where we start. Please consider the below, looking at the “Big Picture”
. Let’s look at what it accomplishes:
* It gets rid of the Records Litigation as aforesaid.
* It gets rid of the “Insurance Issue”, which I (reluctantly) take on.
* It provides for the withdrawal of all existing unfulfilled requests, which eliminates the possibility of future litigation in connection therewith.
* It discourages future Records Requests.
Please advise where you would like to go from here.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Monday, November 6, 2017 5:12 PM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty,
Fortunately, I didn’t get called up so my one day of jury service is over. But the time there did give me a chance to review and prepare the SA for you to review.
Attached is the SA. I took your comments and Joanne’s and matched them. Some of the clauses or paragraphs I thought were redundant so took those out and I cleaned up some of the language
in the remaining paragraphs to cover the points being made. You will see my notes of explanation in Red beneath the important paragraphs.
I am not hiding anything here. There is no tricky language or legal gymnastics. This SA is for you and your entities as well as your attorneys. It is for the Town and its employees and
attorneys.
I specifically avoid including joint parties or ancillary parties or adding more people for signatures.
This is you and this is the Town. It is also your people and our people and your attorneys and our attorneys.
Regarding attorneys, although the Town releases your attorneys, your attorneys don’t have to release the Town. Instead, if they take action in the future, then our release of them is
void. But at the outset, they don’t need to get involved to sign a release of claims.
We dismiss the cases and you withdraw the PRR’s. Then we add the rights you retain from the prior settlement, the criminal matter, and the Hidden Harbor issues. And that’s it.
Regarding CAFI, Joanne told me that Bill is no longer a board member or officer. This is important. CAFI needs to be addressed so if you can put CAFI into this SA, and either you or
Bill sign for it, then we need to do that. If you cannot do that, then our settlement needs to be conditioned on those three CAFI cases being voluntarily dismissed. They can’t be left
hanging out there and I won’t take the agreement to the Commission without it being addressed. If you have another suggestion, I’m open to it but this is the best I could come up with.
I think we are both on the same page Marty. Let me know if you agree. And let me know your thoughts on handling CAFI.
Scott
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 2:32 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I know you will address when you can.
PS: Don’t get on a 2 month trial! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Monday, November 6, 2017 9:16 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty— am at jury duty!! Not sure when I’ll be able to get you a copy. I’ll try tomorrow.
Sent from my iPhone
On Nov 6, 2017, at 6:43 AM, Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> > wrote:
Scott – I am working\preparing for a major meeting today. I assuming you can get me the revised doc this am, I could likely get an hour of “quiet time” during the lunch break and maybe
(just maybe) – assuming the comments shown on the markup (or annotated or enumerated) are minimal respond to you during the lunch break. No guarantee’s by way of timing given.
All is still fresh in my mind regarding the content of my last draft, so it should be easy for me to respond; and do so quickly, despite being “on the move”. Time is not our friend
for a host of reasons, including my schedule; and, with the passing of time, my memory. The issues should be non-existent (save – perhaps – some tweaking. Now is our chance. Let’s
do it! :)
Of course, until formal docs are signed and approved by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thanks! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
nt to the Commission without it being addressed. If you have another suggestion, I’m open to it but this is the best I could come up with.
I think we are both on the same page Marty. Let me know if you agree. And let me know your thoughts on handling CAFI.
Scott
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 2:32 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I know you will address when you can.
PS: Don’t get on a 2 month trial! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Monday, November 6, 2017 9:16 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty— am at jury duty!! Not sure when I’ll be able to get you a copy. I’ll try tomorrow.
Sent from my iPhone
On Nov 6, 2017, at 6:43 AM, Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> > wrote:
Scott – I am working\preparing for a major meeting today. I assuming you can get me the revised doc this am, I could likely get an hour of “quiet time” during the lunch break and maybe
(just maybe) – assuming the comments shown on the markup (or annotated or enumerated) are minimal respond to you during the lunch break. No guarantee’s by way of timing given.
All is still fresh in my mind regarding the content of my last draft, so it should be easy for me to respond; and do so quickly, despite being “on the move”. Time is not our friend
for a host of reasons, including my schedule; and, with the passing of time, my memory. The issues should be non-existent (save – perhaps – some tweaking. Now is our chance. Let’s
do it! :)
Of course, until formal docs are signed and approved by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thanks! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
06, 2017 2:32 PM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I know you will address when you can.
PS: Don’t get on a 2 month trial! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> [mailto:scottmorgan75@gmail.com]
Sent: Monday, November 6, 2017 9:16 AM
To: Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty— am at jury duty!! Not sure when I’ll be able to get you a copy. I’ll try tomorrow.
Sent from my iPhone
On Nov 6, 2017, at 6:43 AM, Marty O'Boyle <moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> > wrote:
Scott – I am working\preparing for a major meeting today. I assuming you can get me the revised doc this am, I could likely get an hour of “quiet time” during the lunch break and
maybe (just maybe) – assuming the comments shown on the markup (or annotated or enumerated) are minimal respond to you during the lunch break. No guarantee’s by way of timing given.
All is still fresh in my mind regarding the content of my last draft, so it should be easy for me to respond; and do so quickly, despite being “on the move”. Time is not our friend
for a host of reasons, including my schedule; and, with the passing of time, my memory. The issues should be non-existent (save – perhaps – some tweaking. Now is our chance. Let’s
do it! :)
Of course, until formal docs are signed and approved by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thanks! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
that good.]
We are both busy men, Marty. I have a business to run and I’m not going to spend more time going back and forth with you on terms that are already agreed to by both sides. The only
issue I see is CAFI. It’s an issue for you and an issue for us. You seem confident that “CAFI can be resolved without fuss” so go ahead and resolve it. Once that’s done, I’ll recommend
the Commission accept this SA.
Also, you probably know that you have a Stopdirtygovernment case that is on the trial schedule and can be called as early as Monday. Your lawyers and ours’ are currently preparing for
a Monday call. [Wasn’t it you who said in the CG Case that until a settlement is reached that we go forward. I assume that your position remains the same. Having said that, “let’s
get done”! ☺]
Now is the time to wrap this up, Marty. Our November Commission meeting is this Friday. That’s the time to get the SA approved. [I agree]
[Scott – I agree that we are both busy. You know where I’m coming from. Given the totality of the circumstances, you should “jump all over” my offering. In lieu of an agreement,
I will (with great reluctance) continue to litigate the other cases. Do you really see that as beneficial to the taxpayers? Really?]
From: mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 5:52 PM
To: mailto:scottmorgan75@gmail.com
Cc: mailto:brussell@commerce-group.com <mailto:brussell@commerce-group.com>
Subject: FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I briefly reviewed your email.
Initially, I see 3 fatal areas, that we need to overcome before going any further.
1. The lawyers at the firm, will not release the Town. The “Chris O’Hare” extortion statement and the Town’s refusal for a Non-Disparagement killed that; and the Town’s agreement as
in my doc and now what you propose creates more distrust and they just won’t agree to it.
2. I offered a Release, if it works, cool. If not, we need to address the other issues, which my draft “snuffed”.
3. I don’t see CAFI as an issue. I spoke to Bill briefly and he thinks CAFI can be resolved without fuss.
That’s where we start. Please consider the below, looking at the “Big Picture”
. Let’s look at what it accomplishes:
• It gets rid of the Records Litigation as aforesaid.
• It gets rid of the “Insurance Issue”, which I (reluctantly) take on.
• It provides for the withdrawal of all existing unfulfilled requests, which eliminates the possibility of future litigation in connection therewith.
• It discourages future Records Requests.
Please advise where you would like to go from here.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (mailto:BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP
.COM> ) OR TO CALL HER (954 570 3513 <tel:(954)%20570-3513> ).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505 <tel:(954)%20570-3505>
Fax: 954-360-0807 <tel:(954)%20360-0807>
Cell: 561 213 3486 <tel:(561)%20213-3486>
E-mail: mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: http://www.commerce-group.com/
From: mailto:scottmorgan75@gmail.com [mailto:scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> ]
Sent: Monday, November 6, 2017 5:12 PM
To: Marty O'Boyle <mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty,
Fortunately, I didn’t get called up so my one day of jury service is over. But the time there did give me a chance to review and prepare the SA for you to review.
Attached is the SA. I took your comments and Joanne’s and matched them. Some of the clauses or paragraphs I thought were redundant so took those out and I cleaned up some of the language
in the remaining paragraphs to cover the points being made. You will see my notes of explanation in Red beneath the important paragraphs.
I am not hiding anything here. There is no tricky language or legal gymnastics. This SA is for you and your entities as well as your attorneys. It is for the Town and its employees
and attorneys.
I specifically avoid including joint parties or ancillary parties or adding more people for signatures.
This is you and this is the Town. It is also your people and our people and your attorneys and our attorneys.
Regarding attorneys, although the Town releases your attorneys, your attorneys don’t have to release the Town. Instead, if they take action in the future, then our release of them is
void. But at the outset, they don’t need to get involved to sign a release of claims.
We dismiss the cases and you withdraw the PRR’s. Then we add the rights you retain from the prior settlement, the criminal matter, and the Hidden Harbor issues. And that’s it.
Regarding CAFI, Joanne told me that Bill is no longer a board member or officer. This is important. CAFI needs to be addressed so if you can put CAFI into this SA, and either you or
Bill sign for it, then we need to do that. If you cannot do that, then our settlement needs to be conditioned on those three CAFI cases being voluntarily dismissed. They can’t be left
hanging out there and I won’t take the agreement to the Commission without it being addressed. If you have another suggestion, I’m open to it but this is the best I could come up with.
I think we are both on the same page Marty. Let me know if you agree. And let me know your thoughts on handling CAFI.
Scott
From: mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Sent: Monday, November 06, 2017 2:32 PM
To: mailto:scottmorgan75@gmail.com
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I know you will address when you can.
PS: Don’t get on a 2 month trial! ☺
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (mailto:BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP
.COM> ) OR TO CALL HER (954 570 3513 <tel:(954)%20570-3513> ).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505 <tel:(954)%20570-3505>
Fax: 954-360-0807 <tel:(954)%20360-0807>
Cell: 561 213 3486 <tel:(561)%20213-3486>
E-mail: mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: http://www.commerce-group.com/
From: mailto:scottmorgan75@gmail.com [mailto:scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com> ]
Sent: Monday, November 6, 2017 9:16 AM
To: Marty O'Boyle <mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> >
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty— am at jury duty!! Not sure when I’ll be able to get you a copy. I’ll try tomorrow.
Sent from my iPhone
On Nov 6, 2017, at 6:43 AM, Marty O'Boyle <mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com> > wrote:
Scott – I am working\preparing for a major meeting today. I assuming you can get me the revised doc this am, I could likely get an hour of “quiet time” during the lunch break and maybe
(just maybe) – assuming the comments shown on the markup (or annotated or enumerated) are minimal respond to you during the lunch break. No guarantee’s by way of timing given.
All is still fresh in my mind regarding the content of my last draft, so it should be easy for me to respond; and do so quickly, despite being “on the move”. Time is not our friend
for a host of reasons, including my schedule; and, with the passing of time, my memory. The issues should be non-existent (save – perhaps – some tweaking. Now is our chance. Let’s
do it! ☺
Of course, until formal docs are signed and approved by all, unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thanks! ☺
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE
TO SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (mailto:BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP
.COM> ) OR TO CALL HER (954 570 3513 <tel:(954)%20570-3513> ).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505 <tel:(954)%20570-3505>
Fax: 954-360-0807 <tel:(954)%20360-0807>
Cell: 561 213 3486 <tel:(561)%20213-3486>
E-mail: mailto:moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: http://www.commerce-group.com/
Renee Basel
From:Marty O'Boyle <moboyle@commerce-group.com>
Sent:Wednesday, November 8, 2017 4:41 PM
To:scottmorgan75@gmail.com
Cc:Brenda Russell; Marty O'Boyle
Subject:FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Attachments:GulfStream_Settlement_Agreement 11.8.17 CLEAN 400 P.M..docx;
GulfStream_Settlement_Agreement 11.8.17 CLEAN 400 P.M..pdf
Scott –
Attached is a copy of the document that you sent me this afternoon at 12:41 p.m. The attachment is
being sent to you in Word (showing the few changes “marked by computer” from the draft that you
sent me by E-Mail at 12:41 p.m.).
I am also sending you the document in PDF “clean” with the Exhibit A attached.
Please confirm that all is good. Upon doing so, I will appear at the meeting and offer the Settlement
Agreement executed, subject to your concomitant execution.
Please let me hear from you immediately. Assuming all is good, I must forward it to both Elaine
James and Rob Rivas for as “final look”, as they are many drafts behind. I expect no changes (or
slight changes). I will give them but a few hours, after which I intend to “take the plunge”.
I remind you that this communication is for settlement purposes only and may be used for no other
purpose. Additionally, I remind you that until formal docs are signed and approved by all,
unfortunately, finality as to a final resolution will continue to escape us. I know you understand.
Thank you and I await your advice.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com
Web Page: www.commerce-group.com
From: Marty O'Boyle
Sent: Wednesday, November 08, 2017 2:01 PM
To: scottmorgan75@gmail.com
Cc: Brenda Russell <brussell@commerce-group.com>
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
1
Scott – In connection with the doc attached to your email below, I have reviewed the attached internally. A few “tweak”
changes. I will send them to you within the hour. Once you give the “ok”, I will send it out to Rob and Elaine and ask
them for their final comments; and ask them to provide them before days end. Assuming all is good, I will tender on
Friday at the Public Hearing on Friday, without making any comment.
Please watch your email.
I remind you that this communication is for settlement purposes only and may be used for no other
purpose. Additionally, I remind you that until formal docs are signed and approved by all, unfortunately, finality as to a
final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE
RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND
MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO SEND ME
EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU
TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL
(BRUSSELL@COMMERCE-GROUP.COM) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com
Web Page: www.commerce-group.com
From: scottmorgan75@gmail.com \[mailto:scottmorgan75@gmail.com\]
Sent: Wednesday, November 8, 2017 12:41 PM
To: Marty O'Boyle <moboyle@commerce-group.com>
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Look at the attached. I moved your Cases line down to the end of the Paragraph 2 sentence.
Marty—you wrote this thing. If we had used the one Joanne and I wrote and sent to you, there wouldn’t be
any question of who releases who, what and when.
But since you want me to work with your document there will need to be a lot of cut and pasting which
doesn’t read so well–anyway here it is.
From: Marty O'Boyle
Sent: Wednesday, November 08, 2017 12:12 PM
2
To: scottmorgan75@gmail.com
Cc: Brenda Russell
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scot – attached is the comparison. What you did (perhaps by error) is the following:
1. You made the release to the Town a General Release
2. You limited the Release to me to the cases.
The above aside, are we in agreement that the deal is as in my doc, as acceptable (see below)
What I offered in Paragraph 2 is a release to GS for only the records cases listed (which excludes 4474); and what I
offered in 3 is a full release to us. Let me know if those terms are agreeable, subject to any “tweaking” which will be
considered and may be necessary in the final “look at”. Upon hearing from you, I will know how best to proceed.
If so, aside from “tweaking” (and considering above), tell me why my doc doesn’t work? If mine works, tweak it by
marking and sending it. As you will see by attached mark up of yours v what I sent Joanne (unless – somehow it got
corrupted – which I don’t think is the case), you made majpor deal changes; a full retreat. Hopefully, your changes were
in error. In any event, when you respond, you will make clear.
Thank you and I await your advice.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE
RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND
MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO SEND ME
EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU
TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL
(BRUSSELL@COMMERCE-GROUP.COM) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com
Web Page: www.commerce-group.com
From: scottmorgan75@gmail.com \[mailto:scottmorgan75@gmail.com\]
Sent: Wednesday, November 8, 2017 11:32 AM
To: Marty O'Boyle <moboyle@commerce-group.com>
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
You are disingenuous.
3
The SA is YOUR SA. It is all of YOUR TERMS. The cases being settled are only the ones YOU LISTED ON THE
EXHIBIT A.
All I did was have the description of “Gulf Stream” and the description of what a “Release” means read the
same in paragraphs 2 and 3 because to describe them differently would obviously make no sense.
Therefore, we are finished here.
From: Marty O'Boyle
Sent: Tuesday, November 07, 2017 8:55 PM
To: scottmorgan75@gmail.com
Cc: Brenda Russell
Subject: FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I started to read attached and after I read 2 & 3, I stopped. What I offered in Paragraph 2 is a release to GS for
only the records cases listed (which excludes 4474); and what I offered in 3 is a full release to us. Let me know if those
terms are agreeable, subject to any “tweaking” which will be considered and may be necessary in the final “look
at”. Upon hearing from you, I will know how best to proceed.
I remind you that this communication is for settlement purposes only and may be used for no other
purpose. Additionally, I remind you that until formal docs are signed and approved by all, unfortunately, finality as to a
final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE
RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND
MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO SEND ME
EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU
TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL
(BRUSSELL@COMMERCE-GROUP.COM) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com
Web Page: www.commerce-group.com
From: scottmorgan75@gmail.com \[mailto:scottmorgan75@gmail.com\]
Sent: Tuesday, November 7, 2017 5:30 PM
To: Marty O'Boyle <moboyle@commerce-group.com>
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
4
Here you go.
From: Marty O'Boyle
Sent: Tuesday, November 07, 2017 5:03 PM
To: scottmorgan75@gmail.com
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott - your email is received fondly. Please mark up my doc (attached in WORD). Before I comment (actually I just
glanced at below), I would like to look at your proposed changes in the scheme of the overall doc.
I hope we can get there soon. Let’s both try real hard!
I remind you that this communication is for settlement purposes only and may be used for no other
purpose. Additionally, I remind you that until formal docs are signed and approved by all, unfortunately, finality as to a
final resolution will continue to escape us. I know you understand.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE
RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND
MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO SEND ME
EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU
TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL
(BRUSSELL@COMMERCE-GROUP.COM) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com
Web Page: www.commerce-group.com
From: scottmorgan75@gmail.com \[mailto:scottmorgan75@gmail.com\]
Sent: Tuesday, November 7, 2017 4:48 PM
To: Marty O'Boyle <moboyle@commerce-group.com>
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty,
I still think our SA language is better for both sides but if you insist on the one you just sent me, then fine. Let’s
use your SA. But several points need to be changed:
Paragraph 1 Add “Martin O’Boyle” with the “Town of Gulf Stream and each Releasor”.
5
Paragraph 2 The Town of Gulf Stream, collectively called the “Gulf Stream Parties” in paragraph 3, needs
to be described the same in Paragraph 2 as it is in Paragraph 3.
In addition, the description of the discharge & release of claims needs to be the same in
Paragraph 2 as it is in Paragraph 3.
Paragraph 3 At the end of the first sentence, add “with the exception of any cases not included on Exhibit
A attached hereto.”
Paragraph 7 Delete the word “Sanctions”. (This is necessary to serve as a disincentive to future similar
litigation)
Modify the last sentence to read: The provisions of this Paragraph shall not apply to any
O’Boyle Party unless such party is acting on behalf of or at the request of O’Boyle.
Paragraph 8 Clarify the sentence ending in “ten (10) days” with the phrase “within ten (10) days of the
Town’s determination of the costs (or absence thereof) associated with responding to the public
records request.”
Delete the last sentence about the facilitation fee complying with 119. (this fee in not found in
119 so by definition it does not comply with it)
Also, your email said the Town wants the non-record cases to continue. No we don’t. We should settle them
too. You didn’t put them in the SA so I assumed you wanted to keep litigating them. Let’s add them to the list.
From: Marty O'Boyle
Sent: Tuesday, November 07, 2017 3:14 PM
To: scottmorgan75@gmail.com
Cc: Brenda Russell
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott:
Below are the fundamental differences as I recall, without looking at my draft:
1. The Insurance Issue is alive and well. I offer a release to the Town for the
records cases (all of them, except 4474 – which involves the insurance
co.). That’s all I can do. Joanne and Sweetapple both agreed to this. Hochman
suggested an Indemnity. Joanne said no. Thus what I offered up. Beyond that,
I can offer no more.
2. CAFI is not a “Marty” issue. Please feel free to speak to Bill. Based on my short
conversation with him, I don’t think that is an issue to resolution.
3. As to the OLF’s lawyer’s, that’s it. They will not agree to anything more.
As I see it, they are the main events. I reattach my email to Joanne with my last draft.
Based upon your own agreement, the Town clearly wants the “non-records” litigation to
continue.
6
I invite you to tweak my last version.
I remind you of the benefits (see below).
Please consider the below, looking at the “Big Picture”
. Let’s look at what it accomplishes:
It gets rid of the Records Litigation as aforesaid.
It gets rid of the “Insurance Issue”, which I (reluctantly) take on.
It provides for the withdrawal of all existing unfulfilled requests, which eliminates the possibility of future
litigation in connection therewith.
It discourages future Records Requests.
Please advise where you would like to go from here. What more can I say?
I remind you that this communication is for settlement purposes only and may be used for no other
purpose. Additionally, I remind you that until formal docs are signed and approved by all, unfortunately, finality as to a
final resolution will continue to escape us. I know you understand.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com
Web Page: www.commerce-group.com
From: scottmorgan75@gmail.com \[mailto:scottmorgan75@gmail.com\]
Sent: Tuesday, November 7, 2017 12:31 PM
To: Marty O'Boyle <moboyle@commerce-group.com>
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty----what is going on here?
I worked over the weekend and yesterday on the SA you told me you wanted to use. You sent it to me
(attached) with the following email:
Scott – below was an “OOPS!”. Please delete, as this one is the correct one.
All relevant communications are now attached.
I await hearing back from you.
7
Now you send me another SA and say that’s the one. Last week you give me a SA and I work on it. Now you
say that’s the wrong one--use a new one.
Give me a call please. I just opened your new attachment and frankly I just don’t understand what the
problem is. Am I misreading these SA’s? Aside from some language differences, I just don’t see the
differences.
There are no attachments to this document that you just sent me but I assume it’s the same as the cases and
parties identified in my SA. Or is there some difference?
Frankly, this is ridiculous. For you and for me. I could respond to your highlights below but it isn’t important.
We both get it: You feel like we backed out of an agreement; We feel like you did. OK. We have different
perceptions of who did what but does it really matter? We are either going to wrap this up or not, and Marty, I
keep saying it: I just don’t see what the differences are. Call me and let’s go over this latest document you sent
me and the one I sent you. I really don’t care whose document we use so long as we agree on the terms.
That’s what I’m trying to figure out. Do we agree on the terms?
From: Marty O'Boyle
Sent: Tuesday, November 07, 2017 11:50 AM
To: scottmorgan75@gmail.com ; smorgan@gulf-stream.org
Cc: Brenda Russell
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
CONTINUING ON RE BELOW
Below was a “misfire”, in that it was unfinished, unreviewed, unedited and incomplete. A new version will
follow. Please disregard.
As requested, please work from my doc, as I believe it “rings the bell. Your doc doesn’t work, for a host of reasons, all of
which have been explained in emails over the last few months (if not few weeks). See areas “highlighted” below.
\[Despite your hyperbole and restatement and inaccurate recitation of history, I look for a fair and amicable settlement,
as I have preached for years. What you propose is a “Giant step backwards”; and if you keep it up, we will just continue
to spin wheels as in the Mississippi Mud without a posi-traction differential” What’s your pleasure? Again, if you wish to
“tweak”, please do so from my last draft.\]
This email is sent for settlement purposes only and may not be iused for any other purpose.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE
RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND
MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO SEND ME
EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU
TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL
(BRUSSELL@COMMERCE-GROUP.COM) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
8
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com
Web Page: www.commerce-group.com
From: scottmorgan75@gmail.com \[mailto:scottmorgan75@gmail.com\]
Sent: Tuesday, November 7, 2017 10:35 AM
To: Marty O'Boyle <moboyle@commerce-group.com>
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty—you apparently didn’t read or understand the SA because paragraph 3 specifically addresses “Fatal
Area 1”, which provides a release of the lawyers by the town without a reciprocal release by them of the
town. \[The Release is conditional. That is unacceptable to the lawyers. We both know (and knew that), your
lawyers agreed to my language. The Lawyers don’t trust you. Take it or leave it. Moving on.\]
Your second “Fatal Area” suggests that we must use your release---I suppose you mean the release with the
highlighted portions. That cannot be done because that document includes several incomplete paragraphs,
several redundant ones, additional “joining” parties, and some mis-numbered sections. That is why I revised it-
- to fill in the blanks, get rid of unrelated joining parties, and to make it more understandable. Our SA is your
SA—just with tighter, clearer language. It is not the Town’s SA vs. O’Boyle SA. This contains the terms we both
already agree on. \[The release I provided is a release from the Town to me and not the other way, there are
too many exclusions to deal with, all of which we gave you a right to cure and some of which your attorneys
agreed to. You now do another “about face”. Take it or leave it”.\]
CAFI is your
third “Fatal Area.” Your position: “ I don’t see CAFI as an issue.” This is absurd. If you think “CAFI can be
resolved without fuss” then do it. If you can resolve it, resolve it. Don’t just say it isn’t an issue. \[CAFI listed as a
“Fatal Issue” was in error. The operative language there follows: I spoke to Bill briefly and he thinks CAFI can be
resolved without fuss.\]
I worked on this with you several months ago and it went nowhere. Recently, I felt you were sincere when you
reached out to me to nail down this SA. So I compared the SA’s and concluded they are the same, at least in
intentions if not in exact language. I cleaned up the language and prepared a SA that provides the terms you
set forth. These are the same terms that we agreed to before. {You got it wrong. Generally stated, you
insisted that we deal with your counsel. We did. They agreed, didn’t agree, one changed their mind, the
other then offered and alternate result, and we (as I said before) ended up playing the “Mole game”. A lot has
happened since you backed out of your last agreement (see emails). I’m trying to get done, but you must deal
with reality. Please go back and read the history and speak to your attorneys that you had handle things for
you, starting with Hudson Gil who gave us an ultimate with a “Bogus Agreement” and then when we tried to
work with him, he wouldn’t return phone calls; and perhaps, upon doing so, you will then better
9
understand. What I offer is a “Big Win” for the Town, as I state in my email to you of yesterday at
5:52pm. You just need to decide whether the offer on the table is “good for the taxpayers of Gulfstream
economically”. Of course, I am always open to “tweaking”, as I’m not that good.\]
We are both busy men, Marty. I have a business to run and I’m not going to spend more time going back and
forth with you on terms that are already agreed to by both sides. The only issue I see is CAFI. It’s an issue for
you and an issue for us. You seem confident that “CAFI can be resolved without fuss” so go ahead and resolve
it. Once that’s done, I’ll recommend the Commission accept this SA.
Also, you probably know that you have a Stopdirtygovernment case that is on the trial schedule and can be
called as early as Monday. Your lawyers and ours’ are currently preparing for a Monday call. \[Wasn’t it you
who said in the CG Case that until a settlement is reached that we go forward. I assume that your position
remains the same. Having said that, “let’s get done”! \]
Now is the time to wrap this up, Marty. Our November Commission meeting is this Friday. That’s the time to
get the SA approved. \[I agree\]
\[Scott – I agree that we are both busy. You know where I’m coming from. Given the totality of the circumstances, you
should “jump all over” my offering. In lieu of an agreement, I will (with great reluctance) continue to litigate the other
cases. Do you really see that as beneficial to the taxpayers? Really?\]
From: Marty O'Boyle
Sent: Monday, November 06, 2017 5:52 PM
To: scottmorgan75@gmail.com
Cc: Brenda Russell
Subject: FW: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I briefly reviewed your email.
Initially, I see 3 fatal areas, that we need to overcome before going any further.
1. The lawyers at the firm, will not release the Town. The “Chris O’Hare” extortion statement and the Town’s
refusal for a Non-Disparagement killed that; and the Town’s agreement as in my doc and now what you propose
creates more distrust and they just won’t agree to it.
2. I offered a Release, if it works, cool. If not, we need to address the other issues, which my draft “snuffed”.
3. I don’t see CAFI as an issue. I spoke to Bill briefly and he thinks CAFI can be resolved without fuss.
That’s where we start. Please consider the below, looking at the “Big Picture”
. Let’s look at what it accomplishes:
It gets rid of the Records Litigation as aforesaid.
It gets rid of the “Insurance Issue”, which I (reluctantly) take on.
It provides for the withdrawal of all existing unfulfilled requests, which eliminates the possibility of future
litigation in connection therewith.
It discourages future Records Requests.
Please advise where you would like to go from here.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE
RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND
10
MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO SEND ME
EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU
TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL
(BRUSSELL@COMMERCE-GROUP.COM) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com
Web Page: www.commerce-group.com
From: scottmorgan75@gmail.com \[mailto:scottmorgan75@gmail.com\]
Sent: Monday, November 6, 2017 5:12 PM
To: Marty O'Boyle <moboyle@commerce-group.com>
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty,
Fortunately, I didn’t get called up so my one day of jury service is over. But the time there did give me a
chance to review and prepare the SA for you to review.
Attached is the SA. I took your comments and Joanne’s and matched them. Some of the clauses or paragraphs
I thought were redundant so took those out and I cleaned up some of the language in the remaining
paragraphs to cover the points being made. You will see my notes of explanation in Red beneath the
important paragraphs.
I am not hiding anything here. There is no tricky language or legal gymnastics. This SA is for you and your
entities as well as your attorneys. It is for the Town and its employees and attorneys.
I specifically avoid including joint parties or ancillary parties or adding more people for signatures.
This is you and this is the Town. It is also your people and our people and your attorneys and our attorneys.
Regarding attorneys, although the Town releases your attorneys, your attorneys don’t have to release the
Town. Instead, if they take action in the future, then our release of them is void. But at the outset, they don’t
need to get involved to sign a release of claims.
We dismiss the cases and you withdraw the PRR’s. Then we add the rights you retain from the prior
settlement, the criminal matter, and the Hidden Harbor issues. And that’s it.
Regarding CAFI, Joanne told me that Bill is no longer a board member or officer. This is important. CAFI needs
to be addressed so if you can put CAFI into this SA, and either you or Bill sign for it, then we need to do that. If
you cannot do that, then our settlement needs to be conditioned on those three CAFI cases being voluntarily
11
dismissed. They can’t be left hanging out there and I won’t take the agreement to the Commission without it
being addressed. If you have another suggestion, I’m open to it but this is the best I could come up with.
I think we are both on the same page Marty. Let me know if you agree. And let me know your thoughts on
handling CAFI.
Scott
From: Marty O'Boyle
Sent: Monday, November 06, 2017 2:32 PM
To: scottmorgan75@gmail.com
Subject: RE: Proposed Settlement Agreement (redraft) from you - Gulfstream
Scott – I know you will address when you can.
PS: Don’t get on a 2 month trial!
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE
RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND
MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO SEND ME
EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU
TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL
(BRUSSELL@COMMERCE-GROUP.COM) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com
Web Page: www.commerce-group.com
From: scottmorgan75@gmail.com \[mailto:scottmorgan75@gmail.com\]
Sent: Monday, November 6, 2017 9:16 AM
To: Marty O'Boyle <moboyle@commerce-group.com>
Subject: Re: Proposed Settlement Agreement (redraft) from you - Gulfstream
Marty— am at jury duty!! Not sure when I’ll be able to get you a copy. I’ll try tomorrow.
Sent from my iPhone
On Nov 6, 2017, at 6:43 AM, Marty O'Boyle <moboyle@commerce-group.com> wrote:
12
Scott – I am working\\preparing for a major meeting today. I assuming you can get me the revised doc
this am, I could likely get an hour of “quiet time” during the lunch break and maybe (just maybe) –
assuming the comments shown on the markup (or annotated or enumerated) are minimal respond to
you during the lunch break. No guarantee’s by way of timing given.
All is still fresh in my mind regarding the content of my last draft, so it should be easy for me to respond;
and do so quickly, despite being “on the move”. Time is not our friend for a host of reasons, including
my schedule; and, with the passing of time, my memory. The issues should be non-existent (save –
perhaps – some tweaking. Now is our chance. Let’s do it!
Of course, until formal docs are signed and approved by all, unfortunately, finality as to a final resolution
will continue to escape us. I know you understand.
Thanks!
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY
BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO
REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I
ENCOURAGE YOU TO CONTINUE TO SEND ME EMAILS; AND, IF YOU
DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL
ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL
(BRUSSELL@COMMERCE-GROUP.COM) OR TO CALL HER (954 570
3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com
Web Page: www.commerce-group.com
13
I received this email this morning but have not read it yet. I am in meetings this morning but you can call me, if necessary.
From: Marty O'Boyle <mailto:meo@commerce-group.com>
Sent: Friday, November 22, 2019 4:39 AM
To: scottmorgan75@gmail.com <mailto:scottmorgan75@gmail.com>
Cc: mailto:jmorris@morriscompanies.com ; William Ring <mailto:wring@commerce-group.com> ; sweires@murdochweires.com <mailto:sweires@murdochweires.com> ; mailto:Martin@AthertonLG.com
Subject: RE: 1101 - Retro - Deck
Scott –I write to you in furtherance to my email below.
Scott, last evening I received a call from my neighbor, Joe Morris. As you know, Joe owns the home directly opposite my home – formerly built by and owned by former Commissioner Wheeler.
Joe was following up with me regarding a conversation that we had earlier in the day regarding the deck behind my home.
Joe told me, as I understood him (and I wish not to put words in his mouth) that he spoke to you; and that the Town was agreeable to my proceeding to build the deck in accordance with
the plan that Bill Ring presented to Joe. A copy of that plan (A101) is attached for convenience.
Further to the above, I also attach a plan for the 20’ deck (A101b) which is the one that we are litigating. Incidentally, if the Town prefers the20’ deck as shown on this plan (my
preference), if Joe is good with it, I will build the 20’ deck instead.
In lieu of both you (on behalf of the Town) and Joe advising me that to build the 20’ deck, I will proceed to build the Deck as shown on Plan A101.
As you likely know, the Barge is on site and the activity will begin this morning, as the November 30, 2019 “prohibition date” looms. Although given our settlement agreement, we do
not believe that we are obligated to comply with this deadline, we wish not to engage in another fight, if the Town disagrees, thus our desire to finish in advance of that date.
Incidentally, in speaking to Joe last evening, his words (generally stated) were: Please get the deck done. I am tired of looking at an unfinished house and a sea of concrete!
Scott, I’m glad that we were able to work this out; and, Joe, I thank you for your kind assistance.
Scott, I’m hoping that, as to the remaining disputes that we have, that, sometime soon, you can make yourself available and we could sit down and figure out a way to resolve the issues
at hand; and, to avoid future issues, so that we could stop the fighting and cease the spending; and, together, live in peace. My sole goal is just that and to live in and enjoy my
home.
Thank you again! :)
Note: This email was prepared using dictation software. As a result, there may be errors in the content and thus the content may not be relied upon. If you wish clarification, please
call or write requesting the same. Thank you.
Martin E. O'Boyle,
Commerce Group
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561-383-1221
E-mail: meo@commerce-group.com
Web Page: www.commerce-group.com
From: Marty O'Boyle
Sent: Monday, November 18, 2019 2:45 PM
To: scottmorgan75@gmail.com
Subject: 1101 - Retro - Deck
Scott - I write to you in connection with my getting my house done; which, depending upon what we agree do as applies to the deck, willl be fully completed in about 4 weeks or so or
when the litigation concludes. Needless to say, I hope the former, as does Joe Morris “for sure”.
Scott, for reasons unknown to me, we are in litigation over the deck,which is going to cost the taxpayers a bundle; and which will soon result in a soon to be filed Federal Litigation
for First Amendment Retaliation. This situation can be easily avoided if we could cooperate with one and other.
Scott, your fighting me ohe deck makes no sense to me, as it is a good & attractive application\installation and will be much appreciated by the guy who is going to look at it the most
(Joe Morris). Incidentally, Joe has seen the 10’ plan and has told me that he thinks that my plan makes his home more valaubale.
Scott, I know that you want to resolve all matters, as do I, but it is not that easy; and is not practical at this time. Further in that connection, we have never been able to acompish
that goal in 6 years.
Considering the foregoing, let’s try to resolve this one and have both of us get a happy result and have the taxpayers save a ton of money and then meet (noice nice) and see what we
could do as applies to the others.
As applies to the deck, here is where we are.
1. Although I don’t think I am obligated to comply with the November 30, 2019 deadline for pile installation, I believe that I could get them in before then.
2. I will install them at 20’, as my counsel tells me that that is somehting we are ebtitled to.
3. 10’ (as we proposed) is a good compromise that I would consider.
4. My understanding is that the Town offered 8’ – which is what they say that Chris Wheeler – the fomer commissioner installed. Incidentally, we believe that overall Chris’s DOCK has
a depth of 10’ in average. That said, does anyone care about 24”? Unlike Chris’, ours will not be a dock (and you know that) and we will post it accordingly. 10’ is an aplication
that works. 8’ is tight. Why the necessity for an expensive fight?
5. If we litigate and the Town loses, I get 20’ and love it. Is that what the Town wants? I’m thinking not.
6. Considering the above, why: (a) continue the litigation; (b) get sued again; (c) run the risk of getting 20’; and (d) spend a bunch of resources (time and taxpayer money); and, if
I’m successful having to pay my legal fees and damages. It makes no sense.
7. Whether you believe it or not, if we could work out a prompt resolution here, I would take it as a signal that the Town’s punative approach may be ending.
I will be in Town Wednesday evening; and I would like to meet with you. If you like, I can meet you early Thursday morning to discuss or anytime soon thereafter when you are available.
Given the importance and the time sensitivity, I will work to your schedule. Please advise. If I don’t hear from you, I will receive the message loud and clear; and, with reluctance
proceed as stated above. Scott, let’s not let that happen. Let me finish my house and file a dismissal as opposed to another lawsuit, etc.
Please. I await your kind response.
Note: This email was prepared using dictation software. As a result, there may be errors in the content and thus the content may not be relied upon. If you wish clarification, please
call or write requesting the same. Thank you.
Martin E. O'Boyle,
Commerce Group
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561-383-1221
E-mail: meo@commerce-group.com <mailto:meo@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com>
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Renee Basel
From:scottmorgan75@gmail.com
Sent:Friday, November 22, 2019 9:30 AM
To:Gregory Dunham; Trey Nazzaro
Subject:Fw: 1101 - Retro - Deck
I received this email this morning but have not read it yet. I am in meetings this morning but you can call me, if
necessary.
From: Marty O'Boyle
Sent: Friday, November 22, 2019 4:39 AM
To: scottmorgan75@gmail.com
Cc: mailto:jmorris@morriscompanies.com ; William Ring ; sweires@murdochweires.com ; mailto:Martin@AthertonLG.com
Subject: RE: 1101 - Retro - Deck
Scott –I write to you in furtherance to my email below.
Scott, last evening I received a call from my neighbor, Joe Morris. As you know, Joe owns the home directly opposite
my home – formerly built by and owned by former Commissioner Wheeler.
Joe was following up with me regarding a conversation that we had earlier in the day regarding the deck behind my
home.
Joe told me, as I understood him (and I wish not to put words in his mouth) that he spoke to you; and that the Town was
agreeable to my proceeding to build the deck in accordance with the plan that Bill Ring presented to Joe. A copy of that
plan (A101) is attached for convenience.
Further to the above, I also attach a plan for the 20’ deck (A101b) which is the one that we are litigating. Incidentally, if
the Town prefers the20’ deck as shown on this plan (my preference), if Joe is good with it, I will build the 20’ deck
instead.
In lieu of both you (on behalf of the Town) and Joe advising me that to build the 20’ deck, I will proceed to build the
Deck as shown on Plan A101.
As you likely know, the Barge is on site and the activity will begin this morning, as the November 30, 2019 “prohibition
date” looms. Although given our settlement agreement, we do not believe that we are obligated to comply with this
deadline, we wish not to engage in another fight, if the Town disagrees, thus our desire to finish in advance of that date.
Incidentally, in speaking to Joe last evening, his words (generally stated) were: Please get the deck done. I am tired of
looking at an unfinished house and a sea of concrete!
Scott, I’m glad that we were able to work this out; and, Joe, I thank you for your kind assistance.
Scott, I’m hoping that, as to the remaining disputes that we have, that, sometime soon, you can make yourself available
and we could sit down and figure out a way to resolve the issues at hand; and, to avoid future issues, so that we could
stop the fighting and cease the spending; and, together, live in peace. My sole goal is just that and to live in and enjoy
my home.
1
Thank you again!
Note: This email was prepared using dictation software. As a result, there may be errors in the
content and thus the content may not be relied upon. If you wish clarification, please call or write
requesting the same. Thank you.
Martin E. O'Boyle,
Commerce Group
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561-383-1221
E-mail: meo@commerce-group.com
Web Page: www.commerce-group.com
From: Marty O'Boyle
Sent: Monday, November 18, 2019 2:45 PM
To: scottmorgan75@gmail.com
Subject: 1101 - Retro - Deck
Scott - I write to you in connection with my getting my house done; which, depending upon what we
agree do as applies to the deck, willl be fully completed in about 4 weeks or so or when the litigation
concludes. Needless to say, I hope the former, as does Joe Morris “for sure”.
Scott, for reasons unknown to me, we are in litigation over the deck,which is going to cost the
taxpayers a bundle; and which will soon result in a soon to be filed Federal Litigation for First
Amendment Retaliation. This situation can be easily avoided if we could cooperate with one and
other.
Scott, your fighting me ohe deck makes no sense to me, as it is a good & attractive
application\\installation and will be much appreciated by the guy who is going to look at it the most
(Joe Morris). Incidentally, Joe has seen the 10’ plan and has told me that he thinks that my plan
makes his home more valaubale.
Scott, I know that you want to resolve all matters, as do I, but it is not that easy; and is not practical at
this time. Further in that connection, we have never been able to acompish that goal in 6 years.
Considering the foregoing, let’s try to resolve this one and have both of us get a happy result and
have the taxpayers save a ton of money and then meet (noice nice) and see what we could do as
applies to the others.
As applies to the deck, here is where we are.
1. Although I don’t think I am obligated to comply with the November 30, 2019 deadline for pile
installation, I believe that I could get them in before then.
2. I will install them at 20’, as my counsel tells me that that is somehting we are ebtitled to.
3. 10’ (as we proposed) is a good compromise that I would consider.
4. My understanding is that the Town offered 8’ – which is what they say that Chris Wheeler – the
fomer commissioner installed. Incidentally, we believe that overall Chris’s DOCK has a depth
2
of 10’ in average. That said, does anyone care about 24”? Unlike Chris’, ours will not be a
dock (and you know that) and we will post it accordingly. 10’ is an aplication that works. 8’ is
tight. Why the necessity for an expensive fight?
5. If we litigate and the Town loses, I get 20’ and love it. Is that what the Town wants? I’m
thinking not.
6. Considering the above, why: (a) continue the litigation; (b) get sued again; (c) run the risk of
getting 20’; and (d) spend a bunch of resources (time and taxpayer money); and, if I’m
successful having to pay my legal fees and damages. It makes no sense.
7. Whether you believe it or not, if we could work out a prompt resolution here, I would take it as
a signal that the Town’s punative approach may be ending.
I will be in Town Wednesday evening; and I would like to meet with you. If you like, I can meet you
early Thursday morning to discuss or anytime soon thereafter when you are available. Given the
importance and the time sensitivity, I will work to your schedule. Please advise. If I don’t hear from
you, I will receive the message loud and clear; and, with reluctance proceed as stated above. Scott,
let’s not let that happen. Let me finish my house and file a dismissal as opposed to another lawsuit,
etc.
Please. I await your kind response.
Note: This email was prepared using dictation software. As a result, there may be errors in the
content and thus the content may not be relied upon. If you wish clarification, please call or write
requesting the same. Thank you.
Martin E. O'Boyle,
Commerce Group
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561-383-1221
E-mail: meo@commerce-group.com
Web Page: www.commerce-group.com
3
Renee Basel
From:scottmorgan75@gmail.com
Sent:Friday, November 22, 2019 9:30 AM
To:Gregory Dunham; Trey Nazzaro
Subject:Fw: 1101 - Retro - Deck
I received this email this morning but have not read it yet. I am in meetings this morning but you can call me, if
necessary.
From: Marty O'Boyle
Sent: Friday, November 22, 2019 4:39 AM
To: scottmorgan75@gmail.com
Cc: mailto:jmorris@morriscompanies.com ; William Ring ; sweires@murdochweires.com ; mailto:Martin@AthertonLG.com
Subject: RE: 1101 - Retro - Deck
Scott –I write to you in furtherance to my email below.
Scott, last evening I received a call from my neighbor, Joe Morris. As you know, Joe owns the home directly opposite
my home – formerly built by and owned by former Commissioner Wheeler.
Joe was following up with me regarding a conversation that we had earlier in the day regarding the deck behind my
home.
Joe told me, as I understood him (and I wish not to put words in his mouth) that he spoke to you; and that the Town was
agreeable to my proceeding to build the deck in accordance with the plan that Bill Ring presented to Joe. A copy of that
plan (A101) is attached for convenience.
Further to the above, I also attach a plan for the 20’ deck (A101b) which is the one that we are litigating. Incidentally, if
the Town prefers the20’ deck as shown on this plan (my preference), if Joe is good with it, I will build the 20’ deck
instead.
In lieu of both you (on behalf of the Town) and Joe advising me that to build the 20’ deck, I will proceed to build the
Deck as shown on Plan A101.
As you likely know, the Barge is on site and the activity will begin this morning, as the November 30, 2019 “prohibition
date” looms. Although given our settlement agreement, we do not believe that we are obligated to comply with this
deadline, we wish not to engage in another fight, if the Town disagrees, thus our desire to finish in advance of that date.
Incidentally, in speaking to Joe last evening, his words (generally stated) were: Please get the deck done. I am tired of
looking at an unfinished house and a sea of concrete!
Scott, I’m glad that we were able to work this out; and, Joe, I thank you for your kind assistance.
Scott, I’m hoping that, as to the remaining disputes that we have, that, sometime soon, you can make yourself available
and we could sit down and figure out a way to resolve the issues at hand; and, to avoid future issues, so that we could
stop the fighting and cease the spending; and, together, live in peace. My sole goal is just that and to live in and enjoy
my home.
1
Thank you again!
Note: This email was prepared using dictation software. As a result, there may be errors in the
content and thus the content may not be relied upon. If you wish clarification, please call or write
requesting the same. Thank you.
Martin E. O'Boyle,
Commerce Group
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561-383-1221
E-mail: meo@commerce-group.com
Web Page: www.commerce-group.com
From: Marty O'Boyle
Sent: Monday, November 18, 2019 2:45 PM
To: scottmorgan75@gmail.com
Subject: 1101 - Retro - Deck
Scott - I write to you in connection with my getting my house done; which, depending upon what we
agree do as applies to the deck, willl be fully completed in about 4 weeks or so or when the litigation
concludes. Needless to say, I hope the former, as does Joe Morris “for sure”.
Scott, for reasons unknown to me, we are in litigation over the deck,which is going to cost the
taxpayers a bundle; and which will soon result in a soon to be filed Federal Litigation for First
Amendment Retaliation. This situation can be easily avoided if we could cooperate with one and
other.
Scott, your fighting me ohe deck makes no sense to me, as it is a good & attractive
application\\installation and will be much appreciated by the guy who is going to look at it the most
(Joe Morris). Incidentally, Joe has seen the 10’ plan and has told me that he thinks that my plan
makes his home more valaubale.
Scott, I know that you want to resolve all matters, as do I, but it is not that easy; and is not practical at
this time. Further in that connection, we have never been able to acompish that goal in 6 years.
Considering the foregoing, let’s try to resolve this one and have both of us get a happy result and
have the taxpayers save a ton of money and then meet (noice nice) and see what we could do as
applies to the others.
As applies to the deck, here is where we are.
1. Although I don’t think I am obligated to comply with the November 30, 2019 deadline for pile
installation, I believe that I could get them in before then.
2. I will install them at 20’, as my counsel tells me that that is somehting we are ebtitled to.
3. 10’ (as we proposed) is a good compromise that I would consider.
4. My understanding is that the Town offered 8’ – which is what they say that Chris Wheeler – the
fomer commissioner installed. Incidentally, we believe that overall Chris’s DOCK has a depth
2
of 10’ in average. That said, does anyone care about 24”? Unlike Chris’, ours will not be a
dock (and you know that) and we will post it accordingly. 10’ is an aplication that works. 8’ is
tight. Why the necessity for an expensive fight?
5. If we litigate and the Town loses, I get 20’ and love it. Is that what the Town wants? I’m
thinking not.
6. Considering the above, why: (a) continue the litigation; (b) get sued again; (c) run the risk of
getting 20’; and (d) spend a bunch of resources (time and taxpayer money); and, if I’m
successful having to pay my legal fees and damages. It makes no sense.
7. Whether you believe it or not, if we could work out a prompt resolution here, I would take it as
a signal that the Town’s punative approach may be ending.
I will be in Town Wednesday evening; and I would like to meet with you. If you like, I can meet you
early Thursday morning to discuss or anytime soon thereafter when you are available. Given the
importance and the time sensitivity, I will work to your schedule. Please advise. If I don’t hear from
you, I will receive the message loud and clear; and, with reluctance proceed as stated above. Scott,
let’s not let that happen. Let me finish my house and file a dismissal as opposed to another lawsuit,
etc.
Please. I await your kind response.
Note: This email was prepared using dictation software. As a result, there may be errors in the
content and thus the content may not be relied upon. If you wish clarification, please call or write
requesting the same. Thank you.
Martin E. O'Boyle,
Commerce Group
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561-383-1221
E-mail: meo@commerce-group.com
Web Page: www.commerce-group.com
3
Renee Basel
From:scottmorgan75@gmail.com
Sent:Monday, October 10, 2016 12:17 PM
To:Joanne O'Connor
Subject:Fw: 1KI0629-florida bar re witmer.DOCX
email re: Witmer complaint
-----Original Message-----
From: scottmorgan75@gmail.com
Sent: Friday, October 03, 2014 10:14 AM
To: UPS
Subject: 1KI0629-florida bar re witmer.DOCX
Sent from my iPhone
1
Renee Basel
From:scottmorgan75@gmail.com
Sent:Tuesday, November 1, 2016 3:19 PM
To:Hudson Gill; Joanne O'Connor; Trey Nazzaro
Subject:Fw: 2-2-15 email: O'Boyle information
From: scottmorgan75@gmail.com
Sent: Monday, February 02, 2015 2:29 PM
To: Robert Sweetapple ; Joanne O'Connor ; Eric Sodhi ; Gerry Richman
Subject: O'Boyle information
Last week, two of our Town employees were deposed by O’Boyle’s lawyer, Giovanni Mesa of the O’Boyle Law
Firm. Martin O’Boyle was then deposed by our insurance carrier attorney, Hudson Gill. The case involves
federal issues surrounding Gulf Stream’s “sign” ordinance and the removal of O’Boyle’s election signs that he
had placed in the public right of way.
During the deposition of Bill Thrasher, our town manager, Chris O’Hare, who was sitting in the audience,
approached the deposition table, handed a note to O’Boyle, who in turn handed it to Attorney Mesa for
purposes of framing a line of questioning.
Some of the questioning of Thrasher involved a flurry of emails sent “by a resident” last week complaining of
irregularities in the enforcement of Gulf Stream’s new sign law, which was passed on second reading last
Monday. (Those 20 or so emails were sent by O’Hare) During a break in testimony, O’Boyle and O’Hare
huddled with Mesa, after which Mesa continued to question Thrasher on other details about that “resident’s”
emails regarding signs. The point is that O’Boyle and O’Hare are obviously working in concert on this and other
cases, even if O’Hare is not an actual party.
During Martin O’Boyle’s deposition, he became agitated (according to Thrasher) when questioned about his
connection to Mark Dougan, who had been identified in discovery as someone with knowledge about the sign
removal case. It seems that Mr. Dougan was discharged from one of the local Sheriff’s Departments for certain
improprieties, but has found work with the O’Boyles, although O’Boyle was evasive and nonresponsive
regarding what this man’s duties were. Martin offered only that Dougan provides services like flying plane
banners.
In addition, when asked about Doug Stacey, who is Mr. O’Boyle’s “driver”, O’Boyle said Stacey does not work
for him; rather, he is employed by Mrs. Sheila O’Boyle. Stacey is the person who drives Mrs. O’Boyle’s sign
laden truck to Town Commission meetings.
Regards,
Scott W. Morgan
1
Renee Basel
From:scottmorgan75@gmail.com
Sent:Friday, November 3, 2017 10:24 AM
To:Lisa Morgan
Subject:Fw: Appeal Opinions and Briefs on Fees LC 4474/ 4DCA 4D16-3385
Briefs and Order granting appellate fees.
From: Trey Nazzaro
Sent: Friday, November 03, 2017 9:35 AM
To: Scott Morgan
Subject: Appeal Opinions and Briefs on Fees LC 4474/ 4DCA 4D16-3385
Please see attached.
Thanks,
Trey
Edward (Trey) C. Nazzaro
Staff Attorney
Town of Gulf Stream
Notice: Florida has a very broad public records law. Written communications regarding Town of Gulf Stream business are public
records available to the public upon request. Your e-mail communications are therefore subject to public disclosure. Under Florida
law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do
not send electronic mail to this entity. Instead, contact this office by phone or in writing.
1
Jeff,
I spoke with Marty this morning and asked him to send me the most current form of the settlement agreement.
He sent me the attached.
Would you please review and at your convenience, give me a call to discuss?
Thanks.
Scott
cell: 561-573-6006
wk: 561-752-1936
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Friday, November 03, 2017 9:42 AM
To: Scottmorgan75 <mailto:scottmorgan75@gmail.com>
Subject: FW: Attached draft of Joanne's Settlement Agreement as marked by MEO 9-25-17
Scott – below was an “OOPS!”. Please delete, as this one is the correct one.
All relevant communications are now attached.
I await hearing back from you.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: Marty O'Boyle
Sent: Friday, November 3, 2017 9:14 AM
To: Scottmorgan75 <scottmorgan75@gmail.com>
Subject: FW: Attached draft of Joanne's Settlement Agreement as marked by MEO 9-25-17
Scott – thanks for all calling me this am. I’m glad to hear you are involved.
Attached is where I left off (with what I sent Joanne). Attached is her response; and my response to her. That’s where we ended again.
Please consider the Mediation. In my “heart of hearts”, I believe that the Mediation will “end the day”.
I await hearing from you. Call me, day, night or over the weekend.
Thanks again! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: Marty O'Boyle
Sent: Monday, September 25, 2017 5:55 PM
To: OConnor, Joanne M. <JOConnor@jonesfoster.com <mailto:JOConnor@jonesfoster.com> >
Cc: Jonathan O'Boyle <joboyle@oboylelawfirm.com <mailto:joboyle@oboylelawfirm.com> >; William Ring <wring@commerce-group.com <mailto:wring@commerce-group.com> >; robertrivas@comcast.net
<mailto:robertrivas@comcast.net>
Subject: FW: Attached draft of Joanne's Settlement Agreement as marked by MEO 9-25-17
Joanne –as to the attached (my markup of your settlement agreement), I resubmit it (and the content of this email) for settlement purposes only. I also point out that the attached is
a clean copy. If you want to see the changes, I ask that you do a comparison, as I’m afraid that the mark up which I prepared lost its integrity as such.
Moving on, as of today, as I see it, these are the remaining items necessary to complete the deal.
1. We need to discuss the reimbursement of the costs which I have incurred since the end of the last (aborted) settlement, when the Town “backed out” of their Agreement
2. The Insurance Company ROR Issue v Case #4474. The insurance company wants $$$ under the ROR. I believe that today (and I think there is negotiation there) they want $230,000. They
believe that they get that more than that much out of #4474. One solution is for the Town: (a) to have their lawyers , advise the Town as to the validity of the ROR; and, if the insurance
company “pushed” what rights the Insurer would have (which they are reserving pursuant to the Reservation of Rights); (b) Indemnify me; (c) for me to take on the risk with the Insurance
Company in exchange, I would need to reserve any award from 4474; or (d) to handle akin to the process in #3 below.
3. We need to discuss the “O’Boyle Law Firm” issue with the Bar, as I see it, this must be addressed and dealt with. My suggestion is that all cases be tolled (how that works legally
– you lawyers handle that) and the Document as it applies to O’Boyle’s Release only be held in escrow pending a clearance from the Bar as to the people at the O’Boyle Law Firm. We
do not see this as an issue that cannot be overcome, provided the Town and the others (that will be part of the Settlement Agreement) all parties will work together toward that common
(and – indeed – important) goal. Of course there would have to be a reasonable time limit placed on this portion, with a negative result being a voiding of the O’Boyle Release and
other obligations under the Agreement.
Joanne – I remind you that this document is being sent to you for discussion purposes only. I intend to look at it again and I am going to have my Lawyer’s and the OLF’s lawyers look
at it. With that in mind, I want you to know that I submit the attached document subject to further change.
Please review and get back to me with your comments and (invited) suggestions. In the meantime, I will provide you with a 2 day date for booking Hazouri, just in case we need some assistance
(by way of a neutral (Highly experienced) 3rd party with “no dog in this fight” and from a man who resolves issues for a living) in gaining finality, which I hope that that is what
we all wish to do.
I now await hearing from you.
PS: Attached may be a little “rough”, but I wanted to get it out to you and to the others on our end quickly to avoid further delay. In that connection, I understand that you spoke
to Ian and that your wishes (and mine as well – although I think it will likely take an expert to resolve certain portions) are to resolve “pre – Hazouri”. Although we share that goal,
we have never been able to get there before and to have the benefit of a guy like Hazouri’s knowledge with these type Disputes (remember he resolves these things for a living) is nothing
but a win. Let’s get done once and for all. Until finished, I like you realize that all is always on the table; that we can not draw a line in the sand if we want to reach success
(flexible is the way to get there); that we must use our best to resolve without a Mediator; and, as a final solution, we must let the Mediator do his magic.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
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Joanne---I am working off of this 1SX6047 Agreement.
From: Marty O'Boyle <mailto:moboyle@commerce-group.com>
Sent: Friday, November 03, 2017 9:42 AM
To: Scottmorgan75 <mailto:scottmorgan75@gmail.com>
Subject: FW: Attached draft of Joanne's Settlement Agreement as marked by MEO 9-25-17
Scott – below was an “OOPS!”. Please delete, as this one is the correct one.
All relevant communications are now attached.
I await hearing back from you.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: Marty O'Boyle
Sent: Friday, November 3, 2017 9:14 AM
To: Scottmorgan75 <scottmorgan75@gmail.com>
Subject: FW: Attached draft of Joanne's Settlement Agreement as marked by MEO 9-25-17
Scott – thanks for all calling me this am. I’m glad to hear you are involved.
Attached is where I left off (with what I sent Joanne). Attached is her response; and my response to her. That’s where we ended again.
Please consider the Mediation. In my “heart of hearts”, I believe that the Mediation will “end the day”.
I await hearing from you. Call me, day, night or over the weekend.
Thanks again! :)
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THEM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
From: Marty O'Boyle
Sent: Monday, September 25, 2017 5:55 PM
To: OConnor, Joanne M. <JOConnor@jonesfoster.com <mailto:JOConnor@jonesfoster.com> >
Cc: Jonathan O'Boyle <joboyle@oboylelawfirm.com <mailto:joboyle@oboylelawfirm.com> >; William Ring <wring@commerce-group.com <mailto:wring@commerce-group.com> >; robertrivas@comcast.net
<mailto:robertrivas@comcast.net>
Subject: FW: Attached draft of Joanne's Settlement Agreement as marked by MEO 9-25-17
Joanne –as to the attached (my markup of your settlement agreement), I resubmit it (and the content of this email) for settlement purposes only. I also point out that the attached is
a clean copy. If you want to see the changes, I ask that you do a comparison, as I’m afraid that the mark up which I prepared lost its integrity as such.
Moving on, as of today, as I see it, these are the remaining items necessary to complete the deal.
1. We need to discuss the reimbursement of the costs which I have incurred since the end of the last (aborted) settlement, when the Town “backed out” of their Agreement
2. The Insurance Company ROR Issue v Case #4474. The insurance company wants $$$ under the ROR. I believe that today (and I think there is negotiation there) they want $230,000. They
believe that they get that more than that much out of #4474. One solution is for the Town: (a) to have their lawyers , advise the Town as to the validity of the ROR; and, if the insurance
company “pushed” what rights the Insurer would have (which they are reserving pursuant to the Reservation of Rights); (b) Indemnify me; (c) for me to take on the risk with the Insurance
Company in exchange, I would need to reserve any award from 4474; or (d) to handle akin to the process in #3 below.
3. We need to discuss the “O’Boyle Law Firm” issue with the Bar, as I see it, this must be addressed and dealt with. My suggestion is that all cases be tolled (how that works legally
– you lawyers handle that) and the Document as it applies to O’Boyle’s Release only be held in escrow pending a clearance from the Bar as to the people at the O’Boyle Law Firm. We
do not see this as an issue that cannot be overcome, provided the Town and the others (that will be part of the Settlement Agreement) all parties will work together toward that common
(and – indeed – important) goal. Of course there would have to be a reasonable time limit placed on this portion, with a negative result being a voiding of the O’Boyle Release and
other obligations under the Agreement.
Joanne – I remind you that this document is being sent to you for discussion purposes only. I intend to look at it again and I am going to have my Lawyer’s and the OLF’s lawyers look
at it. With that in mind, I want you to know that I submit the attached document subject to further change.
Please review and get back to me with your comments and (invited) suggestions. In the meantime, I will provide you with a 2 day date for booking Hazouri, just in case we need some assistance
(by way of a neutral (Highly experienced) 3rd party with “no dog in this fight” and from a man who resolves issues for a living) in gaining finality, which I hope that that is what
we all wish to do.
I now await hearing from you.
PS: Attached may be a little “rough”, but I wanted to get it out to you and to the others on our end quickly to avoid further delay. In that connection, I understand that you spoke
to Ian and that your wishes (and mine as well – although I think it will likely take an expert to resolve certain portions) are to resolve “pre – Hazouri”. Although we share that goal,
we have never been able to get there before and to have the benefit of a guy like Hazouri’s knowledge with these type Disputes (remember he resolves these things for a living) is nothing
but a win. Let’s get done once and for all. Until finished, I like you realize that all is always on the table; that we can not draw a line in the sand if we want to reach success
(flexible is the way to get there); that we must use our best to resolve without a Mediator; and, as a final solution, we must let the Mediator do his magic.
UNFORTUNATELY, I RECEIVE TOO MANY EMAILS ON A DAILY BASIS. THE RESULT IS THAT I DO NOT HAVE A CHANCE TO REVIEW THM ALL; AND MANY I DO NOT SEE AT ALL. I ENCOURAGE YOU TO CONTINUE TO
SEND ME EMAILS; AND, IF YOU DON’T HEAR FROM ME WITHIN 48 HOURS, I URGE YOU TO CALL ME. I ALSO ASK YOU TO CC MS. BRENDA RUSSELL (BRUSSELL@COMMERCE-GROUP.COM <mailto:BRUSSELL@COMMERCE-GROUP.COM>
) OR TO CALL HER (954 570 3513).
THANK YOU FOR YOUR COOPERATION.
Martin E. O'Boyle,
Commerce Group, Inc.
1280 W. Newport Center Drive
Deerfield Beach, Fl. 33442
Direct Dial: 954-570-3505
Fax: 954-360-0807
Cell: 561 213 3486
E-mail: moboyle@commerce-group.com <mailto:moboyle@commerce-group.com>
Web Page: www.commerce-group.com <http://www.commerce-group.com/>
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