School Board lawyer FRANK M. UPCHURCH, III admitted to The St. Augustine Record that he polled School Board members before filing a Strategic Lawsuit Against Public Participation against St. Johns County photojournalist Jeffrey Gray, and that no board member opposed filing of the lawsuit. (See St. Augustine Record article, below). I had raised this issue with UPCHURCH, who made his lawbreaking even clearer when he told the Record he may seek a School Board vote to authorize the illegal, ultra vires lawsuit. Florida law forbids "polling," or using third parties for members of boards to communicate. Did UPCHURCH violate the Sunshine law? Did Board members and Superintendent Joseph Joyner?
Will UPCHURCH be investigated and prosecuted by the Florida Bar and the State's Attorney?
Will Board members and the Superintendent move to fire UPCHURCH for his lawbreaking, filing a lawsuit, contending that there are no First Amendment rights for news gatherers, and violating Florida Sunshine laws to to so?
Will they drop their noisome little SLAPP lawsuit?
The apple does not fall far from the tree here in what former St. Johns County Commission Chairman Ben Rich told Folio Weekly in 2008 was "one of the last bastions of the Ku Klux Klan." Rev. Dr. Martin Luther King, Jr. wrote June 11, 1964 that St. Augustine was "the most lawless city in America." UPCHURCHS were a part of that lawlessness for most of the past 100 years.
The SLAPP lawsuit was filed by UPCHURCH, BAILEY & UPCHURCH law firm partner FRANK M. UPCHURCH, III, the lawyer-grandson of notorious Florida segregationist-Dixiecrat FRANK M. UPCHURCH, Sr., who was a leader in the Florida Democratic Party: he supported Strom Thurmond and walked out of the 1948 Demoratic National Convention in Philadelphia, Pennsylvania in protest of President Harry S Truman's civil rights policies. UPCHURCH III proposed a discriminatory school board and county commission redistricting plan that would have reduced minority voting strength in District 2, thereby violating the Fifteenth Amendment. Spoiler alert: We defeated UPCHURCH's evil plan. For prior coverage by this blog and The St. Augustine Record's enterprising reporter, Jake Martin, please click here:
http://cleanupcityofstaugustine.blogspot.com/2016/01/school-board-no-first-amendment-rights.html
http://cleanupcityofstaugustine.blogspot.com/2015/12/school-board-files-slapp-suit-against.html
For the School Board lawyer's admission of polling the Board members, read Jake Martin's story, portions in bold below:
Public records dispute escalates as School Board seeks decision against local man over requests
Posted: January 30, 2016 - 11:27pm | Updated: January 30, 2016 - 11:45pm
By JAKE MARTIN
jake.martin@staugustine.com
The St. Johns County School Board has swapped lawsuits with Jeff Gray, a correspondent for Photography is Not a Crime, over the St. Johns County School District’s policy regarding public records requests and Gray’s alleged violations of that policy.
Gray, a father of three children attending county schools, contends the School District’s policy does not comply with Florida’s statutory requirements, that it infringes on his right to access and obtain public records, and that he is, therefore, not required to follow the policy.
The School Board contends Gray’s refusal to follow the policy is “antagonistic and disruptive to the lawful, orderly and safe operation” of district schools and offices, that the policy is in compliance with state law, and that Gray refuses to cooperate because his interests are not in obtaining the records but in filing frivolous lawsuits for personal financial gain.
Gray claims the School Board’s complaint against him, filed Dec. 7, is a strategic lawsuit against public participation — called a SLAPP — a lawsuit intended to censor, intimidate or silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
The School Board’s complaint claims, among other things, that Gray dismissed his suit against the School Board on Dec. 4, “recognizing the suit was frivolous and that he and his lawyer were in jeopardy of being taxed with attorney fees.”
The complaint requests a definitive judicial declaration on the validity of the School District’s public records procedures, issuance of an injunction against Gray for continuing to defy them and recovery, as damages for malicious prosecution and abuse of the process, of attorney fees incurred in the School Board’s successful defense of Gray’s lawsuit.
The School Board filed its suit against Gray just three days after Gray’s voluntary dismissal of his case with prejudice, via authorization by Superintendent Joe Joyner. School Board members were individually informed of the filing of the suit upon authorization.
As written in Florida Statute 1001.32(3), the superintendent is the secretary and executive officer of his or her district school board.
Florida Statute 1001.41(4), however, states a district school board, “after considering recommendations submitted by the district school superintendent,” shall exercise general powers including those to contract, sue and be sued.
“The district school board shall constitute the contracting agent for the district school system,” the statute continues.
School Board attorney Frank Upchurch III said on Friday that no board members had expressed any objections to filing the lawsuit and that he was considering bringing a formal request for authorization before the board at a future meeting.
Noting the quick turnaround, Upchurch said he had already prepared a counterclaim to Gray’s suit against the School Board that became the basis for its complaint against Gray filed Dec. 7.
Superintendent’s affidavit
According to a sworn affidavit of Joyner, filed Jan. 19, he made the decision to file the lawsuit because of Gray’s “history of causing problems and disruption at District schools and offices, mainly stemming from public records requests.”
He said although Gray had dismissed his suit, his “antagonistic and provocative conduct” continued.
Joyner cited an incident in which Gray was at Hickory Creek Elementary and Switzerland Point Middle schools on Dec. 3, the day after the San Bernardino, California, mass shooting, taking photographs and videotaping the school “for no apparent reason.”
Gray had told The Record he was asking a School District maintenance employee standing near the gate of the two schools if he knew whether a park behind the schools was maintained by the School District or St. Johns County.
He said his purpose in being there was to investigate whether bus drivers were filling out pre-trip inspections.
Gray said his investigation was a result of the Nov. 18 crash along Interstate 95 involving Bus 268 that sent several Pacetti Bay Middle School students to the hospital and in which the bus driver, Joseph Sanks, 69, of St. Augustine, was cited for careless driving.
Gray’s related public records requests, obtained through the School District’s Transportation Department, revealed there was no pre-trip inspection form filled out before the crash.
Joyner cited another incident, on Dec. 4, in which Gray had shown up at R.B. Hunt Elementary School.
“Without checking in at the office, he went to the bus parking area, and again confronted rank and file employees — bus drivers — over public records,” Joyner said. “This seemed to be a repeat of the incident at the Maintenance Department that was the basis of his first lawsuit. Coming on the heels of his dismissal of that lawsuit, he appeared to be openly defying the directive to make his public records requests through (the Community Relations Department) and seemed to be trying to deliberately provoke the District.”
Gray had said he was filming the bus drivers from off school property at R.B. Hunt to see if they were completing their inspections before driving off.
On Dec. 29, Gray filed a motion for summary judgment against the School Board with a supporting memorandum regarding anti-SLAPP laws.
“School bus safety and the integrity of public records are inarguably ‘public issues’ protected from assault by SLAPP suits,” the motion said, citing five video-documented instances, filmed by Gray, of bus drivers allegedly not filling out pre-trip inspections.
Gray argued the School Board’s suit against him was unfounded and served no purpose except to intimidate him from exercising his First Amendment rights and to suppress his investigations of the School District.
“Plaintiff’s dislike of Gray does not rise to the level to warrant an injunction affecting his constitutional rights of freedom of the press, freedom of speech, right to redress the government, and access to public records,” his motion said. “These allegations do nothing more than serve as a prohibited SLAPP action.”
Joyner, in his affidavit, said although he was aware Gray had approached bus drivers at R.B. Hunt on Dec. 4, he was not aware Gray was investigating bus inspection practices prior to filing the suit on Dec. 7.
Point-counterpoint
The School Board on Jan. 19 filed its response to Gray’s anti-SLAPP motion for summary judgment, which included a cross-motion for summary judgment against Gray.
“Procedurally, Gray’s motion for summary judgment is fatally defective,” the response said. “He has not served an answer, affirmative defenses or a counterclaim pleading that the School Board violated the Anti-SLAPP statute. Accordingly, there is no predicate in his pleadings for his motion for summary judgment.”
The School Board also said Gray had the burden of proof to demonstrate its lawsuit was without merit and that it was filed primarily because of his exercise of his First Amendment rights.
“Gray’s theory seems to be that the School Board filed the suit in retaliation for what he calls ‘newsgathering’ activities, which he contends are protected by the First Amendment,” the response continues. “It is unclear how he gets from ‘newsgathering,’ which is conduct, to the ‘constitutional right of free speech’ criterion listed in the statute.”
The School Board claimed Gray’s right of access to public records is not a First Amendment right and, therefore, Gray’s claim the School Board filed suit to unlawfully limit his access to those records was not cognizable under anti-SLAPP statutes.
Gray’s motion had, once again, challenged the legality of Joyner’s designation of the Community Relations Department to handle the School District’s public records requests.
“Disregarding the impertinent, scandalous, and unprofessional wording of the allegations that Gray disregards ‘specific instructions’ from the district and refuses to adhere to district policies, Plaintiff persists in attempting to equate school ‘policy’ with ‘law,’” the motion said.
The School Board argued Gray’s voluntary dismissal of his case barred him from re-asserting those claims in his defense.
“Because that claim was adjudicated in the School Board’s favor by Gray’s dismissal of his case with prejudice, Gray is barred from re-asserting it in support of his motion,” the School Board’s response said. “Although Gray has not filed an answer, affirmative defenses or counterclaim, it is clear that Gray is seeking the same relief — a judicial determination that the District’s procedures violate the statute.”
The School Board acknowledged custodians have leeway under the procedure to respond to a public records request themselves or to refer it to the Community Relations Department but said that such flexibility was necessary to allow School District employees to respond to routine requests for records.
“This may foil Gray’s watchdog aspirations and the opportunity for lawsuits, but it was a logical, practical and perfectly lawful solution to the problem that Gray created,” the School Board’s response continued.
But Gray has maintained he has the right to see the documents he requests in the location in which they are kept and that it’s a matter of public interest whether public agencies comply with the law.
“Any policy requiring a person to jump through additional hoops just promotes an atmosphere allowing them time to doctor the documents or create documents that weren’t there,” Gray said.
The School Board did not mince words about where it places the blame.
“It was Gray who repeatedly defied the District’s public records procedures, harassed its employees and disrupted its operations,” the response said. “It was Gray who started the litigation by suing the District. It should not come as a surprise that the School Board would want to finish it by filing suit to resolve the issues he has created.”
In an email to The Record on Saturday, Gray said he has been instructed by his attorney not to make any comments regarding the case.
Legislative measures
The Florida House Government Operations Subcommittee on Jan. 20 voted unanimously in approval of a bill that would give judges discretion in deciding whether to award attorney fees in public records lawsuits.
Open-government advocates argue HB 1021 would compromise the Florida Public Records Law, as government agencies are currently required to pay attorney fees when found to have improperly withheld public records.
Supporters, including the Florida League of Cities, say people are taking advantage of the system and that bills like HB 1021 are intended to combat frivolous, harassing or duplicitous demands for public information.
According to a News Service of Florida report published Jan. 20, Robert Ganger, vice mayor of Gulf Stream, said his small Palm Beach County community was a “poster child” for abuses of the process.
He said a group of people had filed more than 2,500 public records requests with the town, typically coming in bunches, but that the town of 800 to 900 people has just four administrative employees.
“Our custodian of records works literally every day, including weekends, to try and get caught up. But inevitably we fall behind,” Ganger had said. “And in falling behind, there have been 40 lawsuits filed against us for failure to comply in a timely fashion.”
Ganger also said the town had to cut its hurricane financial reserves and increase taxes because of costs associated with the lawsuits and requests.
WHAT IS A PUBLIC RECORD? “Public records” means all documents, papers, letters, maps, 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. The only exceptions are for records specifically made confidential by the Florida Constitution and records exempted by Florida statutes.
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