NEVILLE BREIDENSTEIN WAINIO CPA partner, Rotary Club President, Ancient City Road Runners Founder and "Amateur Hour" CITY COMMISSIONER TODD DAVID NEVILLE's disgusting demand to file a libel lawsuit at City expense is doubly unconstitutional.
First, it violates the First Amendment.
Second, it violates Florida constitutional law, which forbids in Article VII, Section 10, "giving, lending or using its taxing power to aid any person." This means you, TODD NEVILLE.
Third, it would violates the City Charter, Sec. 4.19, which only allows the City Attorney to prosecute or defend lawsuits in which the City is a party.
The irrefragable legal analysis is in the City Attorney's memo, which City Commissioners received over the weekend and only received here a few minutes ago, suggest that would NEVILLE demanded would be triply illegal, and estimating it would cost some $55,000 for outside counsel to take a libel case to trial. Here's our City Attorney's memo:
Still no apology from ODD TODD NEVILLE for First Amendment violations at taxpayer expense: he must reimburse City for cost of City Attorney time, or resign.
City of St. Augustine
Memorandum
TO: Mayor and City Commissioners
DATE: September 25, 2015
RE: Information regarding defamation and City expenses.
____________________________________________________________________________
- Description of Defamation
Defamation is an intentional false communication that injures another’s reputation or good name. Defamation can either be written (known as libel) or verbal (known as slander). Defamation is not a constitutionally protected activity, in contrast to freedom of speech or freedom of the press.
- Burden of Proof and Standard of Proof
In a lawsuit claiming defamation of a public official, the plaintiff (the public official) has the burden of proving by clear and convincing evidence that the defamatory statement was (1) a statement of fact, (2) which was false, and (3) made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is a very high burden. The defamatory words must be read in the context of the entire publication and in light of what a reasonable person would have understood it to mean. Opinion, criticism, rhetorical hyperbole or vigorous epithet (a descriptive word used to characterize someone) is not in itself defamation. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L. Ed. 2d 686 (1964); Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980); Zorc v. Jordan, 765 So.2d 768 (Fla. 4th DCA 2000).
- Expenditure of City Funds
Section 10 of Article VII of the Florida Constitution prohibits the City from giving, lending or using its taxing power or credit to aid any person. Chapter 166.021, Florida Statutes, states that it is the intent of the state legislature to extend to municipalities the exercise of powers for “municipal governmental, corporate or proprietary purposes.” In practical terms this has been interpreted to mean that public funds cannot be expended unless it is for a municipal public purpose. Individuals may receive some incidental benefit, but the primary purpose of the undertaking must be for a public purpose. Poe v. Hillsborough County, 695 So. 2d 672, 676-77 (Fla. 1997); N. Palm Beach County Water Control Dist. v. State, 604 So. 2d 440, 442 (Fla. 1992); Orange County Indep. Dev. Auth. v. State, 427 So. 2d 174 (Fla. 1983); O'Neill v. Burns, 198 So. 2d 1 (Fla. 1967); State v. North Miami, 59 So.2d 779, 785 (Fla.1952). Defamation, by its very nature, is a personal tort, or wrong, against the good reputation of another individual. In a lawsuit for defamation, the plaintiff would not be the City of St. Augustine, but the individual who is claiming to have suffered the damage to his reputation. If the lawsuit was successful, the judgment for damages would be paid to that individual. Pursuant to section 4.19 of the City Charter, the City Attorney shall act as legal advisor to the municipality and all of its officers in matters relating to their official duties, however, the City Attorney can only prosecute and defend lawsuits, “in which the city is a party.” It is estimated that outside attorney’s fees for taking the case through to jury trial would be approximately $55,000.00.
Still no apology from ODD TODD NEVILLE for First Amendment violations at taxpayer expense: he must reimburse City for cost of City Attorney time, or resign.
Breach of fiduciary duty: NEVILLE, BREIDENSTEIN WAINIO CPA partner TODD DAVID NEVILLE demanded at the September 14, 2015 City Commission meeting that Commissioners join in his "ideological" perversions at government expense, to wit, a taxpayer-funded illegal SLAPP lawsuit against another online publication, Michael Gold's Historic City News. What do NEVILLE's partners think at NEVILLE, BREIDENSTEIN WAINIO?
What do you reckon NEVILLE, BREIDENSTEIN WAINIO CPAs clients think?
TODD NEVILLE (left) listens to City Attorney ISABELLE LOPEZ (with backside to audience) (SAR/Peter Willott)
ISABELLE CHRISTINE LOPEZ, FLORIDA BAR NO. 89818
Our First Amendment is a cherished legal principle, being violated by the chilling effects emanating from pouty ODD TODD DAVID NEVILLE, aided and abetted since September 8, 2015 by inept ISABELLE CHRISTINE LOPEZ, who actually wrote and demanded a retraction!
Wonder if City Manager JOHN PATRICK REGAN, P.E. will have the City Commission sound system working so that you can hear the mewling baby talk?
Wonder if ODD TODD NEVILLE will apologize for wasting City staff time?
Wonder if ODD TODD NEVILLE will pay for wasting City staff time?
Will TODD NEVILLE resign?
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-----Original Message-----
From: easlavin <easlavin@aol.com>
To: tneville <tneville@citystaug.com>; ilopez <ilopez@citystaug.com>
Subject: CITY COMMISSIONER'S ILLEGAL "SLAPP" SUIT DEMAND AGAINST MR. GOLD and HCN; please keep time records on libel issue and bill Mr. NEVILLE (Request No. 2015-337)
1. Please agree to keep time and expense records on all City time, equipment and funds spent on consideration of a libel lawsuit against Mr. Michael Gold and Historic City News. (Request No. 2015-337).
To: tneville <tneville@citystaug.com>; ilopez <ilopez@citystaug.com>
Subject: CITY COMMISSIONER'S ILLEGAL "SLAPP" SUIT DEMAND AGAINST MR. GOLD and HCN; please keep time records on libel issue and bill Mr. NEVILLE (Request No. 2015-337)
Dear Mayor Shaver, Vice Mayor Horvath, Commissioners Sikes-Kline, Freeman and Neville, Mr. Regan, Ms. May, Ms. Lopez, Mr. Graham and Ms. Ratkovic, et al.:
2. There was discussion at tonight's City Commission meeting of our City's involvement in champerty and maintenance of a libel lawsuit with government funds, time and equipment.
3. This appears to be unethical, unseemly and unconstitutional
4. Our misguided City Attorney, Ms. ISABELLE LOPEZ has already sent a September 8, 2015 threatening letter to Mr. GOLD demanding "a retraction" on Commissioner TODD NEVILLE's behalf.
5. City Attorney ISABELLE LOPEZ's unethical letter was an ultra vires act and a breach of fiduciary duty.
6. This is waste, fraud and abuse. It also insults all St. Augustine residents, sent as it was by City Attorney ISABELLE LOPEZ on September 8, 2015, the 450th anniversary of the founding of our Nation's Oldest European-founded City.
7. Please send a bill to Commissioner TODD NEVILLE for all City staff time spent upon this unAmerican activity.
8. Libel actions are personal to the individual; they are not filed by government organizations, and for good reasons -- New York Times v. Sullivan, 376 U.S. 254 (1964).
9. Thus Commissioner TODD NEVILLE's bizarre, unconstitutional proposal now subjects him to potential recall by the voters. F.S. 100.361.
10. Commissioner TODD NEVILLE's thin-skinned attack on Mr. Gold's personal opinions in HCN is actionable under both Florida and federal law. Our Florida state legislature recently upgraded our State's protections against such unAmerican, indecent and thin-skinned attacks on First Amendment rights, stating in pertinent part:
768.295 Strategic Lawsuits Against Public Participation (SLAPP) prohibited.—
(1) It is the intent of the Legislature to protect the right in Florida to exercise the rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct representatives, and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. It is the public policy of this state that a person or governmental entity not engage in SLAPP suits because such actions are inconsistent with the right of persons to exercise such constitutional rights of free speech in connection with public issues. Therefore, the Legislature finds and declares that prohibiting such lawsuits as herein described will preserve this fundamental state policy, preserve the constitutional rights of persons in Florida, and assure the continuation of representative government in this state. It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts.
. … (3) A person or governmental entity in this state may not file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against another person or entity without merit and primarily because such person or entity has exercised the constitutional right of free speech in connection with a public issue, or right to peacefully assemble, to instruct representatives of government, or to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. (full text below)
11. As a former prevailing news media libel defendant during the 1980s -- who won five-figure settlements against convicted felon Anderson County, Tennessee Sheriff Tennessee Sheriff DENNIS O. TROTTER, et al. as a result of a bogus libel lawsuit against me as Appalachian Observer Editor -- you should listen to my advice. I know something about libel law.
12. The City and TODD NEVILLE could be held liable for judgments for malicious prosecution of a civil lawsuit and abuse of civil process and civil rights violations.
13. Let me quote the best legal advice that the great American diplomat Elihu Root ever gave his corporate clients: "You're damned fools and you should stop!"
14. Or as my late Irish-Bavarian grandmother would say, "DROP THE OYSTER AND LEAVE THE WHARF!"
Thank you.
With kindest regards, I am,
Sincerely yours,
Ed
Ed Slavin
904-377-4998
The 2015 Florida Statutes
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Defamation suit talk on tap for St. Augustine City Commission
Posted: September 26, 2015 - 11:55pm
By SHELDON GARDNER
sheldon.gardner@staugustine.com
The issue of whether to seek a defamation lawsuit over a news site article will be back before the St. Augustine City Commission on Monday.
City Attorney Isabelle Lopez said she plans to present defamation case law and information about spending public money for what would be a private lawsuit with Commissioner Todd Neville as the plaintiff.
The main concern is whether there would be a public purpose in spending public funds for the suit.
“That’s really the key test,” Lopez said. “What is the public purpose? Is there one?”
Neville asked Lopez to move forward with a defamation lawsuit over an article on local news website Historic City News that said Neville had a “direct, undisclosed financial conflict of interest” in the Dow PUD vote in August. Plans to rezone the property at 143 Cordova St. to turn eight historic properties into a boutique hotel passed 4-1, with Mayor Nancy Shaver dissenting.
Michael Gold, editor of Historic City News, wrote about a few campaign contributions Neville received in his 2014 run for City Commission, including one donation from Dow PUD developer David Corneal.
Neville said statements of fact in the article were false and made it seem like he had broken the law. Neville said Gold refused to publish a retraction after the city got an opinion by the Florida Commission on Ethics that said there would not be a conflict of interest based on the campaign contributions.
Gold said the article is factual and said he did not write that Neville did anything illegal. To be clearer, he moved the article from the Government section of the website to the Editorial section, he said.
In other business
■ Commissioners will get a look at the start of a mobility plan for St. Augustine, after the city identified it as one of its top priorities. The city hired a mobility coordinator to lead the effort, and officials will outline the work ahead for the mobility initiative. Mobility is “the time and costs required for travel,” according to the city’s master plan.
The mobility master plan will look at existing and future parking recommendations, entry corridors, traffic congestion mitigation, technology, new franchise regulations for unregulated transportation, and parking alternatives such as surface and satellite parking.
“All these things represent elements of mobility,” City Manager John Regan said.
Discussion is also planned about intersections near May Street and San Carlos Avenue. The Florida Department of Transportation has presented alternatives for intersection changes and is looking for consensus from the city about which option to move forward with, Regan said.
■ Before the City Commission meeting, commissioners will vote on a series of ordinances to finalize the city budget and millage rate. Other measures would change residential garbage pickup in St. Augustine to once per week, increase the public service tax on electricity, adopt new water and sewer use and connection fees and allow for a salary supplement of up to $200 for city employees and officers.
The city’s fiscal year begins Oct. 1.
If you go
What: St. Augustine City Commission meeting and special budget meeting
When: Monday; budget hearing begins at 5:05 p.m., City Commission meeting begins at 5:45 p.m.
Where: The Alcazar Room at City Hall, 75 King St.
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