Ed Slavin v. City of St. Augustine -- my Title VI complaint re: City ending telephone public comment in midst of COVID-19 pandemic peak

Too big for their britches, City Manager JOHN PATRICK REGAN, P.E. and City Attorney ISABELLE CHRISTINE LOPEZ earned another lawsuit.



Repressive City Manager JOHN PATRICK REGAN, P.E.

Upchurch listens to public comment in his first city commission meeting of his second term as mayor on March 11. Photo: Katherine Hamilton

(Flagler College Gargoyle)

Disgraced former Mayor JOSEPH LESTER BOLES, JR., Mayor TRACY WILSON UPCHURCH's college and law school roommate -- calling the shots now through his pal?  (Photo by J.D. Pleasant, with assist from Warren Celli, channeling Hans Holbein the Younger)

Maladroit City Attorney ISABELLE CHRISTINE LOPEZ -- no ADA, 504/508 or constitutional law research, standing in City Hall door, obstructing telephone public comment.

Here's my July 17, 2020 administrative complaint to the U.S. Department of Commerce Office of Civil Rights:


Sent: Fri, Jul 17, 2020 12:25 pm
Subject: Ed Slavin v. City of St. Augustine, Florida: U.S. Department of Commerce Title VI, ADA and Rehabilitation Act 504/508 complaint

Honorable Courtland V. Cox, Director

Office of Civil Rights

U.S. Department of Commerce

Washington, D.C.

Dear Director Cox:

1. In 2020, twice as many Americans have already died of coronavirus than died in the Vietnam War.  
2. Florida is the current epicenter of the outbreak.  There were 156 deaths in Florida from COVID-19 yesterday, and there have been a total of 4676 COVID deaths and 316,000 COVID cases in Florida,
3. The Global Coronavirus Pandemic of 2020 has had us in lockdown for months. 
4. Therefore, Respondent City of St. Augustine Commissioners rightly and lawfully allowed exercise of cherished constitutional rights to public comment by use of electronic media technology (EMT), protecting us from community spread.  
5. Florida citizens' rights to Sunshine and Open Records were adopted in 1992 as Article I, Section 24 of our Florida Constitution, supported by a record 83% of the electorate -- 3.8 million voters.
6. Yet, incredibly, in the midst of the epicenter of this pandemic, St. Augustine City Commissioners violated Title VI of the 1964 Civil Rights Act when they voted 4-1 on July 13, 2020 to deprive citizens -- "We, the People," as our Founders called us -- of our existing public comment rights under Florida's Constitution and laws, and Governor's Executive Orders and City resolutions.
7. Unadorned by any legal or factual research, Respondents voted to deprive me of my civil and constitutional right to speak by telephone in public comment at its government meetings.  Video here: https://staugustinefl.swagit.com/play/07132020-696 (Item 9B1, which purports to have ended even the public comment rights of people already on hold to participate telephonically; items 9B1, with no public comment allowed.  Outside the ordinary course of business and in violation of the published agenda, Item 9B1 was abruptly placed on the agenda before general public comment, so that general public comment rights by telephone were erased, illegally.
8. In the midst of record COVID-19 deaths and new cases, Respondents ask citizens to risk our lives to speak. 
9. Meanwhile Respondent City Commissioners, Respondent City Manager, Respondent Citty attorneys, City staff, City contractors and applicants for governmental contracts or zoning all participate by Zoom.  
10. Our First, Ninth and Fourteenth Amendment rights are being violated as the City demands we appear in person to speak in the midst of the spike in the COVID pandemic. 
11. Respondent City of St. Augustine has often willfully discriminated against people engaged in. protected activity, including me, for protected activity as an activist and journalists.  
12. The very first time I ever attended a City meeting, on Monday, April 11, 2005, a large angry man accosted me after the meeting and threatened me with arrest for "disorderly conduct" -- during the meeting, I spoke out against a proposed annexation, after decades of unconstitutional City of St. Augustine annexations diluting minority voting strength in violation of the 15th Amendment and Voting Rights Act.  The large angry man was named William Barry Harris, then the City Manager, and the mentor to Respondent JOHN PATRICK REGAN, P.E., current City Manager, who has encumbered the position since 2010.
13. Respondents are jointly and severally liable for their intentional constitutional torts. 
14. Respondents violated 42 U.S.C. § 2000d et seq., Title VI of the 1964 Civil Rights Act; Sections 504 and 508 of the Rehabilitation Act; the Americans with Disabilities Act, and other federal and state law rights by withdrawing and denying persons with disabilities, including me, an essential reasonable accommodation in the midst of a pandemic, refusing to allow us to use CMT to give public comment or testimony at government meetings remotely (after months of allowing it under Florida Governor orders and City resolutions).  
15. On July 13, 2020,  Respondent City of St. Augustine City Commissioners TRACY WILSON UPCHURCH (Mayor), LEANNA SOPHIA AMARU FREEMAN (Vice Mayor), Commissioners JOHN OTHA VALDES and ROXANNE HORVATH illegally voted 4-1 to end telephone public comment in the midst of the spike of a deadly global pandemic, when Florida has the highest rate of deaths and new cases. 
16. Respondents UPCHURCH, FREEMAN, VALDES and HORVATH did so without allowing any public comment, and before a scheduled telephone public common period.
17. Respondent TRACY WILSON UPCHURCH is the scion of rich segregationists and Dixiecrats, whose grandfather left the 1948 Democratic National Convention with Strom Thurmond, opposing the DNC's civil rights plants. 
18. Respondent TRACY WILSON UPCHURCH was illegally named Mayor at a March 4, 2019 City Commission meeting, violating the First, Ninth and Fourteenth Amendments, and rights to meaningful public participation under Florida Statute 119 and Florida Statute  286.  Citizens were not told who had applied to be appointed Mayor, nor were they told that the City Attorney had issued a dubious legal opinion that none of the current Commissioners could apply because they had not resigned under Florida's resign-to-run laws, which applies to elections, not vacancies created by resignations due to illness.  Hence, every action taken by Respondent UPCHURCH, 2019-2020, takes place under  noisome cloud of good-ole-boy illegality -- "Jim Crow" law -- his service as Mayor is ultra vires.   
19. In 1964, Rev. Dr. Martin Luther King, Jr. called Respondent City of St. Augustine "the most lawless city in America. Dr, King was arrested here on June 11, 1964.  One week later, sixteen rabbis were arrested, praying in front of the segregated motel restaurant where Dr. King was arrested. In 1964, the Rev. Andrew Young, later our UN Ambassador, Congressman and Atlanta Mayor was nearly killed here.  The Rev. C.T. Vivian was nearly killed in nearby St. Augustine Beach, nearly drowned by KKK opponents of desegregating ocean beaches.
20. In 2020, Respondent City Manager JOHN PATRICK REGAN, P.E., City Attorney ISABELLE CHRISTINE LOPEZ, Assistant City Attorney DENISE MAY admit in response to records requests that there are no documents reflecting any legal or factual research before presenting their scheme to Commissioners.  (Only Commissioner Nancy Sikes-Kline refused to join in their lawbreaking).
21. Respondents UPCHURCH, REGAN, LOPEZ and MAY, et al. ignored my request for a reasonable accommodation to speak in public comment at the July 16, 2020 meeting of the Historic Architectural Review Board.  Meeting video here shows discrimination -- remote participation by HARB members, City staff,  corporations and their representatives, but not citizens, here: https://staugustinefl.swagit.com/play/07162020-638
22. I wanted to speak to HARB about preserving an d protecting the 1879 veteran monuments in the Plaza de la Constitucion, and the status of the University of Florida's application for a monument to local African-American soldiers who fought in the Civil War.  
23. I had a legally vested right to speak in general comment by telephone, but that right was ruthlessly denied by Respondents. 
24. Before the July 16, 2020 HARB meeting began, a city employee, Ms. Morse, informed me that LOPEZ rejected my call and I was not permitted to speak with her or the HARB chair before the meeting began. 
25. Telephone messages left July 16, 2020 for Respondents UPCHURCH, REGAN, LOPEZ and MAY were not returned.  
26. Respondent MARKS GRAY law firm partner SUSAN ERDELYI, Respondents' cat's paw and frequent insurance defense lawyer said, "I'm busy," and "I don't work for them," abruptly and rudely interrupting me and hanging up the telephone.
27. The Respondent City's anti-Title VI attitude is expressed by its Title VI coordinator, the Respondent Rev. TIMOTHY FLEMING, Assistant Director of General Services: On May 13, 2019, after I overheard him and then Assistant City Manager TIMOTHY BURCHFIELD discussing my EPA Title VI complaint on a discriminatory conference that excluded African-Americans, Respondent Rev. FLEMING yelled at me and moved away rapidly, stating "I don 't have to talk to you!" 
28. Rev. TIMOTHY FLEMING, the City's Title VI Coordinator, fled first, fleeing south along the loggia. TIMOTHY J. BURCHFIELD, then the City's Assistant City Manager, fled next, fleeing north along the loggia.  
29. I had texted Rev. FLEMING at 4:06pm, and earlier, asking to speak with him about my Title VI complaint. He said he did not have to talk to me.  
30. BURCHFIELD reiterated that FLEMING did not have to talk to me, snippily said I could "file an Open Records request," and called me "boy."  I told BURCHFIELD, "Don't call me 'boy.'" BURCHFIELD yelled, "You are a 'boy." BURCHFIELD, running away toward the elevator bank, invited me to "hit" him. I told him, "I can just feel the love."  This was all in the presence of a duly sworn officer of the St. Augustine Police Department, who was as bemused as me at the behavior of two putative "professionals" in response to my protected activity under the First and Ninth Amendments and Civil Rights Act of 1964.  
31. That law, the 1964 Civil Rights Act, became law because of the hostile environment in St. Augustine, and the courage of 1000 Americans arrested on bogus charges; after removal to federal court, those charges were dismissed by United States District Judge Bryan Simpson, for whom the Jacksonville, Florida federal courthouse is now named. 
32. As the City of St. Augustine is still violating civil rights, my sincere efforts at informal resolution of City retaliation have failed, for multiple years.  
33. The City has created a hostile working environment, retaliating against and and discriminating against me as a Gay senior journalist and activist with disabilities, who has successfully raised concerns about City management since 2005.
34. Respondent City of St. Augustine (CoSA) has been a recipient of sums of federal funds since 2010, when Respondent REGAN was named City Manager.  Respondent CoSA's federal funders include the CARES Act, whose mission is described on the website of the U.S. Department of Commerce Economic Development Administration:                                                              The Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law by President Donald J. Trump, provides the Economic Development Administration (EDA) with $1.5 billion for economic development assistance programs to help communities prevent, prepare for, and respond to coronavirus. EDA CARES Act Recovery Assistance, which is being administered under the authority of the bureau’s flexible Economic Adjustment Assistance(EAA) (PDF) program, provides a wide-range of financial assistance to communities and regions as they respond to and recover from the impacts of the pandemic.                                                                                 On May 7, 2020, Secretary Wilbur Ross made EDA’s CARES Act Recovery Assistance funding available with the announcement that EDA had published an Addendum to its FY 2020 Public Works and Economic Adjustment Assistance Notice of Funding Opportunity. EDA intends to deploy its CARES Act funding as quickly, effectively, and efficiently as possible, and in a manner that meets communities needs.
35. By denying me an ADA/504/508 reasonable accommodation act the HARB meeting on  July 16, 2020 and by refusing to allow me to speak in non-agenda public comment at the HARB meeting, Respondents are also retaliating against me as a journalist who has since 2005 exposed in print and on the Internet Respondents' malfeasance, misfeasance, nonfeasance, waste, fraud, abuse. Sunshine violations  and no-bid contracts. 
36. By denying my HARB telephone testimony July 16, 2020, and by refusing to communicate civilly with me as an activist and a a journalist, the City of St. Augustine is guilty of blatant viewpoint discrimination in violation of the First Amendment and Civil Rights laws.  See, e.g., United Teachers of Dade v. Stierheim, 213 F. Supp. 2d 1368, 1371 (S.D. Fla. 2002); Sherrill v. Knight, 569 F.2d 124, 129 (D.C.Cir.1977) ("arbitrary or content-based criteria for press pass issuance are prohibited under the [F]irst [A]mendment"); Quad-City Cmty. News Serv. v. Jebens, 334 F. Supp. 8, 17 (S.D.Iowa 1971) (stating "any classification which serves to penalize or restrain the exercise of a First Amendment right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional").  In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828-829, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995) the Supreme Court held that "[d]iscrimination  against speech because of its message is presumed to be unconstitutional ... When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. ... Viewpoint discrimination is thus an egregious form of content discrimination.").
37. People of color and low-income people are more likely to be hurt by climate change.  
38. My legally protected concerns since 2006 about Environmental Justice (EJ) resulted in $9 million in roadbuilding for Riberia Street, long the worst street in St. Johns County.
39. My legally protected concerns about pollution in two EJ communities resulted and in tens of thousands of dollars in fines and consent orders against the City of St. Augustine, as documented in a 2008 cover story in Folio Weely.
40. My EJ concerns on and since January 31, 2019 about the City's and Flagler College's all-white "Keeping History Above Water" (KHAW) "community" meetings at the City's Willie Galimore Community Center are protected activity under Title VI. 
41. Likewise, so are my concerns about lack of socioeconomic data in the survey of City residents on flooding issues.  So were my concerns about the hostile sign that was posted on the front door of the City's Galimore Community Center building during the "community"  meeting, since removed, discouraging minority and low-income citizen attendance at the January 31, 2019 "community" meetings.
42. Respondent City of St. Augustine has repeatedly violated free speech rights and has repeatedly lost First Amendment cases to its citizens, including several cases brought by visual artists, Bates I & Bates II, as well as  Celli v. City of St. Augustine, 214 F.Supp. 2d 1256 (M.D. Fla. 2000)(upholding $23,500 jury verdict for four hours of First Amendment violation re: St. Aug Dog newspaper rights to free distribution on St. George Street); Rev. Ruth Jensen v. City of St. Augustine, 3:05-CV-504-J-25HTS TRO (M.D. Fla. 2005)(ordering Rainbow flags flown on Bridge of Lions June 8-13, 2005 in honor of Gay Pride).  The City was guilty of viewpoint discrimination in both the Celli and Jensen decisions, which were swift justice and not appealed.  
43. Respondents' overt acts violate ADA, 504 and 508 and have the intended effect of denying our First Amendment.  Americans' civil and constitutional rights deserve -- "breathing space."  NAACP v. Button, 371 U.S. 415, 433 (1963) New York Times. v. Sullivan, 3766 U.S. 254 (1974); Gasparinetti v. Kerr, 568 F.2d 311, 314-17 (3d Cir. 1977)(illegal restrictions on policemen’s First Amendment rights); Philadelphia Newspapers, Inc. v. Hepps, 479 767, 772, 777 (1986)(O’Connor, J.)(newspaper entitled to breathing space in defamation case); Hustler Magazine v. Falwell, 485 U.S. 46, 52, 56 (1988) (Rehnquist, J.) (magazine parody of TV preacher entitled to breathing space); Keefe v. Ganeakos, 418 F.2d 359, 362 (1st Cir. 1969)(Aldrich, C.J.)(chilling effect on First Amendment illegal suspension of teacher over Atlantic Monthly article on Vietnam War); Parducci v. Rutland, 316 F.Supp. 352, 355, 357 (M.D. Ala 1970)(Johnson, C.J.)(chilling effect in illegal firing of English teacher over Kurt Vonnegut’s Welcome to the Monkey House.
44. By excluding telephone participation  the City of St. Augustine shows itself an enemy of the Constitution and Bill of Rights, making its decisions on land use and other matters suspect.  "As Mr. Justice Brandeis correctly observed, 'sunlight is the most powerful of all disinfectants,' New York Times Co. v. Sullivan, 376 U.S. 254, 305 (1964)(Goldberg, J., concurring), citing Freund, The Supreme Court of the United States (1949), p. 61. "Justice must not be done in a corner, nor in any covert manner." State ex rel Herald Mail Co. v. Hamilton, 267 S.E.2d 544,548 (W.Va. 1980), citing 1676 Charter of Fundamental Laws of West New Jersey, Ch. XXIII. 
45. As Justice Louis D. Brandeis wrote, when "government becomes a lawbreaker," it promotes disrespect for the law, and anarchy. Olmstead v. United States, 277 U.S. 438, 478 (dissenting) (1928). Our City of St. Augustine is a lawbreaker and a public hearing is required on the proposed consent decrees so that the public may hear all about it.
46. Would you please be so kind as to assign your best investigator today?  
47. Please counsel Respondents today in their legal duties under Title VI, ADA and Sections 504 and 508/
48. COVID-19 is an immediate serious danger to public health, safety and welfare. 
49. Agency action is necessary to protect the public from the Hobson's choice presented by Respondents' cruelty, requiring seniors and other at-risk persons to speak in person, when corporations and their lawyers are allowed to appear remotely. 
50. I look forward to your prompt response, and thank you for giving this matter your urgent attention.
51. Respondents must restore the ability of citizens to testify and speak remotely in public meetings, as that right existed before July 13, 2020.
52. Please act now under Title VI to restore the rule of law and to require Respondents to return federal funds, or else immediately cease violating civil, constitutional and statutory rights of American citizens to speak in our Nation's Oldest City's public government meetings during the pandemic.
53. Fīat jūstitia ruat cælum.  ("Let justice be done though the heavens fall."

Thank you.

With kindest regards, I am,

Sincerely yours,

Ed Slavin

904-377-4998

www.cleanupcityofstaugustine.blogspot.com

www.edslavin.com