Wednesday, September 29, 2021

"HOME COOKIN'?" New County Attorney DAVID MICHAEL MIGUT Hired: 5-0: Commissioners Prefer "St. Johns County Experience"

Five white male Republican St. Johns County Commissioners took 39 minutes to decide September 28, 2021 to negotiate to hire former Assistant County Attorney, DAVID MICHAEL MIGUT, as our new County Attorney, with pay and terms to be negotiated by Commission Chair Blocker and brought back on a consent agenda. Watch stunning 39 minute video, here.

Why this matters:

  1. SJC BoCC has a budget exceeding one billion dollars -- that's real money. 
  2. SJC has seen embezzlements, bribery, extortion and other lawbreaking. 
  3. SJC has no lobbying registration,
  4. SJC has no local ethics commission.
  5. SJC does not require developer lawyers to disclosed the actual owners and investors.
  6. An ethical alert County Attorney would protect the County from con artists deals, like business subsidies and the $26 million developer debt forgiveness scheme. 
  7. Our local governments and associated political machine, run by Dull Republican white men, fears change and independence of thought.  
  8. Though proclaiming "200 Years of Excellence" recently St. Johns County is mired in mediocrity and mendacity, and was once been called :"the most lawless" in America by Rev. Dr. Martin Luther King Jr.
  9. Rather than the "fresh eyes" of an experienced four-time elected East Tennessee County Attorney a trial lawyer, Commissioners voted for an obliging local government office lawyer of junior status, with a history of changing jobs noted by several Commissioners. 
  10. "St. Johns County experience" was the stated deciding factor, one never stated when the job was advertised.  
  11. Under Supreme Court precedents on employment law, I doubt that "St. Johns County experience" is a bona fide occupational qualification (BFOQ).  
  12. Discrimination by organizations hiring attorneys using non-BFOQs is contrary to the genius of a free people.  See, e.g. Ed Slavin, "You're Not on Law Review, Are You?," ABA Student Lawyer (1988), documenting tjhen-pervasive use of non-BFOQ requirements by legal employers, including law firms and government agencies like IRS, TVA, FTC.
  13. Buying  the preferred shibboleth of "St. Johns County experience," like all ideas, had consequences. 
  14. This consensus by all five Commissioners duked in an inexperienced former junior staff lawyer, eliminating consideration of a four-time elected County Attorney from Roane County in East Tennessee, Tom McFarland, a Memphis State U. law graduate, with extensive trial experience, who has a Florida license and was selected by two Commissioners and the County Administrator as one of only two finalists for interviews.
  15. The flippant good-ole-boy trite trope -- the non-BFOQ of "St. Johns County experience" -- smells to me  like "home cookin'," as folks call it in East Tennessee -- case-fixing.  
  16. Requiring "St. Johns County experience"  reflects a Worldview my grandmother would have called "hopelessly provincial." 
  17. This is common in David Shoar's St. Johns County, were County Commissioner Paul Waldron, urging against a national search for a new County Administrator, stating in haec verba,  "I don't want someone from California telling me how to run my County."
  18. "Cultural differences' were cited as another make-weight reason for voting for MIGUT and against McFarland.  A Florida National Guard J.A.G. Corps Major and licensed attorney, SJC Commission Chairman JEREMIAH RAY BLOCKER used those words on-camera. This is equivalent to a confession -- diversity is discouraged here.
  19. As Justice Robert Houghwot Jackson wrote for the Supreme Court, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein." West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
  20. No writing samples were obtained. 
  21. When I asked for DAVID MIGUT's written work product for St. Johns County, the County staff was uncooperative and threatened to charge search fees, illegally, when these documents should have been available for Commissioners to evaluate.  
  22. MIGUT refused to answer telephone calls or authorize release of his evaluations from a junior college where he once taught. After his 5-0 hiring vote, he told me he was busy and would "reach out to" me after his contract was approved. 
  23. Commissioner interviews were in private, one-on one, except for initial interviews by an ad hoc committee consisting of controversial County Administrator Hunter Conrad and Commissioners Henry Dean and Jeb Smith (I attended by phone). During those interviews by the ad hoc committee, weak and flabby questions were asked, wasting time on football and family matters.  
  24. In short, the incurious, shallow, lazy, louche, hick hack process was deeply flawed. 
  25. Minority and women. candidates were not encouraged. 
  26. While all Florida judicial candidates -- including County Court Judge Lauren Blocker, the spouse of Chairman Blocker -- must answer questionnaires under oath and in writing, St. Johns County Commission did not adapt any of the 73 questions in the Florida Judicial Nominating Commission questionnaire.  
  27. Nor did the incurious, other-directed, developer-friendly St. Johns County Commissioners ever deign or bother to respond to my requests to ask my questions be answered by applicants.  
  28. On August 25, 2021, I sent the applicants 34 written questions aimed at understanding their experience and thoughts on legal, ethics, environmental and land use planning, contracting and other legal policy matters.  Not one of my 34 questions was ever answered.   
  29. Wonder why? 
  30. You tell me. See below. 

-----Original Message-----
From: Ed Slavin <>
Sent: Sun, Sep 19, 2021 9:54 am
Subject: SJC BoCC: Please Ask Meaningful Written Questions of St. Johns County Attorney Job Candidates

Dear Chairman Blocker, Vice Chairman Dean, and Commissioners Smith, Waldron and Whitehurst:
1. Would you please be so kind as to vote to direct that all County Attorney job applicants answer a meaningful questionnaire and provide their respective writing samples before any interviews take place?  
2. Please ask the 73 questions required by our Florida 7th Circuit Judicial Nominating Commission for all judgeship candidates,  (I attach the very impressive response to the 73 questions on the JNC from our newly appointed St. Johns County Court Judge, Hon. Lauren Patricia Blocker, which is also here:
3, Please request that each of the County Attorney applicants respond to my 34 questions, asked on August 25, 2021.  See below and here:
4. St. Johns County has not yet required its County Attorney applicants to answer meaningful written questions.  Why not? This is the most important personnel decision you will make.  
5. BCC must ask meaningful written questions of all attorney applicants.  
6. Our Florida JNC provides the standard of care with its 73 questions.  No excuses if something is missed, and if we hire the wrong person again.  
7. On its 200th anniversary, St. Johns County recently touted "200 Years of Excellence." Show me. We can and must do better. It's our money.  It's our government.  It's our County's future. 
Thank you for all that y'all do.
With kindest regards, I am,
Sincerely yours, 
Ed Slavin

-----Original Message-----
From: Ed Slavin <>
Sent: Wed, Aug 25, 2021 7:14 am
Subject: Questions For St. Johns County Attorney Job Interviewees

Dear Ms. Robinson and Messrs. McFarland, Migut and 
A. Thank you for applying for the position of St. Johns County Attorney!
B. Our County needs fresh eyes, independence, and a fresh start in that office. Toward that end, would you please be so kind as to answer some questions and provide some documents?
C. After sharing the first draft of my questions with the Chair of the County Attorney Hiring Committee, Hon. Henry Dean, Vice Chair of St. Johns County Board of County Commissioners, Commissioner Dean suggested that I write each of you who are to be interviewed this week.  
D. Please respond: 

  1. Curriculum vitae: Please supply a detailed c.v.  
  2. Legal writing:   Please provide at least three samples of your published or unpublished legal writing on public policy issues. 
  3. List of cases:  Please provide a list of all cases on which you have worked.
  4. Redistricting: What is your experience with the 15th Amendment, Voting Rights Act, and redistricting that would inform your advice to BoCC in redistricting this year?  Please review the history of redistricting in St. Johns County, and its civil rights history (Rev. Dr. Martin Luther King, Jr. called this "the most lawless" place in America?
  5. Management experience: Please describe your management experience and your proposed approach to the County Attorney position.
  6. Your suggestions, please:  Have you reveiewed the County Attorney office budget, FTE, the work of in-house and outside counsel, its approach to contracts, ordinances  and litigation?  If not, please do so. If so, please share your impressions and suggest a path forward.
  7. Civil litigation: Please describe and explain your civil litigation experience and your five (5) most significant cases.
  8. Complex litigation: Please explain and describe your experience with complex litigation, to include MDL, Superfund, antitrust, toxic torts and employment discrimination .
  9. Civil rights:  Please describe and explain in detail your experience with civil rights laws, including legislation, judicial or administrative litigation.  If hired, would you kindly promise to  support body cameras for police?
  10. Public speaking ability:  Do you think well on your feet? Please describe and explain your strengths and weaknesses at public speaking in a non-rehearsed setting, e.g., responding to Commissioner and citizen. questions at meetings.
  11. Negotiations:  Please give three examples of your negotiating skills and explain your strengths and weaknesses.  Please provide supporting documents.
  12. Procurement: What would be your approach to contracts against public policy -- would you withhold your signature and discuss your concerns publicly with the BoCC, rather than "going along to get along?"
  13. Recruitment:  Will you promise, if hired, to encourage SJC to recruit employees through HBCUs, working for a diverse workforce?
  14. Differing professional views: What is your approach to resolving differing professional opinions?
  15. Independent Legal Advice:  Please give three examples of your legal advice to organizations exemplifying Elihu Root's mandate that a good lawyer will always tell them when "You're damned fools and you should stop!"
  16. Suing Powerful Interests: Please describe and explain, with doc aments, your experience in suing dysfunctional large organizations?   
  17. Home Rule: What are your thoughts about litigation and legislation to preserve, protect and defend SJC residents' home rule rights from Tallahassee trickery?  Governor DeSantis's first veto in 2019 was of the ban on straw bans, such as enacted in coastal communities.   Now the Governor abuses home rule powers on mask-wearing, causing our State's COVID-19 infection rates to be first in the Nation.  Are you prepared to help Commissioners find a path forward to preserve and protect Home Rule?
  18. Mask Ordinance:  What steps would you take to provide thorough legal research on mask ordinances (something sorely lacking under current County Attorney)?
  19. Legal Audit:  Will you request BoCC enlist academic and public interest experts to conduct a legal audit examining  St. Johns County's rubber-stamping developer projects; suppression of dissent; hiring of a conflicted developer lobbyist to represent the County; illegal hiring practices; refusal to adopt ethics, lobbying disclosure and other reforms;  toleration of Sheriff's Department embezzlement; and County Attorney Office representation of the District 23 Medical Examiner in a disciplinary case arising out of the botched Michelle O'Connell homicide investigation, subject of investigation by The New York Times and PBS Frontline et al.? 
  20. Forensic Audit: Do you support a forensic audit of the St. Johns County Sheriff's office and other local offices in light of $702,666 in embezzlement over six years under the nose of the prior Sheriff, David Shoar?
  21. Open Records: Will you please review the files on the County Attorney's efforts to avoid Open Records requests, including delaysovercharging estimated fees, including putting County server(s) on a truck without a bill of lading in purported effort to have computer contractor search for water use records pertinent to Jeremy Banks homicide investigation. 
  22. Ex Parte Contacts: Please list all oral or written contacts, including indirect contacts, that you have had concerning your application for the County Attorney position.
  23. How did you first learn of job opening? 
  24. Environmental and land use planning law:  What is your experience with environmental and land use planning.  Please give details on any legislation or judicial or administrative litigation.
  25. Environmental policy:  Would you recommend St. Johns County consider environmental law reforms?  What sort of ordinances should we consider to protect "God's country" from money-laundering speculators buying up land to subdivide into cookie-cutter tract homes, destroying forests, wetlands and wildlife habitat?   How about a local equivalent of the National Environmental Policy Act, requiring Environmental Impact Statements for all govern meant actions, including development orders?
  26. Developers:  What is your opinion about the proper scope of required disclosures for those seeking zoning favors?  What are your suggestions for lobbyist registration, County ethics board and Fair Housing ordinance?
  27. Community service: Please list any organizations which you have served as a volunteer or board member, giving the pertinent dates and lessons learned.
  28. Unconscionable Contracts of Adhesion:  You signed an employment application con training an inaccurate, misleading gratuitous HR statement in your application stating that this is an "at will" job, never mentioning that discrimination laws are an exception to employment at will. Would non-lawyer applicants think that this clause was legally binding?  Is it an unconscionable "contract of adhesion?" Will you review the routine forms used by HR and give your impressions as to how you would advise modifying them?
  29. Procurement contracts:  What is your experience with drafting of complex procurement contracts?  Please review the County's contracting procedures and specification drafting, and kindly describe and explain how it might or should be improved?
  30. Conflicts of interest and appearances of impropriety: Please give five examples of your raising or resolving concerns. 
  31. Chilling effects on citizen free speech rights: Please review the Commission's chilling preface to non-agenda public comment and state your opinion as to possible violations of the First, Ninth and Fourteenth Amendments by inflicting a Philistine's veto with vague, ambiguous and unconstitutional language forbidding asking questions and "demanding an immediate response," and forbidding applause.
  32. Non-agenda public comment time: Do you agree that non-agenda public comment belongs at the beginning of BoCC meetings, so people know when to show up?  (County Commission Chair unilaterally moved it to the end of the meeting, discouraging citizen concerns about persistent flooding in poorly-engineered developments, and other important public policy questions that reflect on Commission's nature, structure and performance)
  33. Civil lawsuits, bar complaints and law enforcement encounters:  Please list any civil or criminal case in which you were a plaintiff or defendant, list any Bar complaints and how resolved, and describe any law enforcement encounters, whether or not resulting in arrest.
  34. Social media, blogs and websites: Please list each of your social media account addresses, handles or screen names, and kindly share the urls for any and all blogs or websites associated with you.
Thank you.
With kindest regards, I am,
Sincerely yours,
Ed Slavin

Tuesday, September 28, 2021

Trump Loses Case to Enforce Omarosa Manigault Newman’s N.D.A. -- Congratulations, John Philips and Ms. Newman!

Congratulations to Ms. Omarosa Manigault Newman and her wise and learned counsel, Folio Weekly owner John Michael Phillips, her attorney. 

Guided by my late mentor, USDOL Chief Administrative Law Judge Nahum Litt (1979-2009-2009), I've been critical of nondisclosure agreements and mandatory cramdwon arbitation agreements since the late 1980s. 

Glad the arbitrartor agreed with Ms. Omarossa Marigault Newman and Jacksonville attorney John Phillips. 

I don't agree with secret abitration agreements.  USDOL Associate Chief Judge James L, Guill and I wrote about them in 1989 in the American Bar Aasociation Judge's Journal.

But on this occasion, this arbitrator got it right. 

Thank you!

From The New York Times:

Trump Loses Case to Enforce Omarosa Manigault Newman’s N.D.A.

Donald Trump had filed the case against Ms. Manigault Newman, a former White House aide and “Apprentice” star, after she wrote a tell-all book about serving in his administration.

Former President Donald J. Trump has used nondisclosure agreements for years to prevent staff members from writing books like “Unhinged,” which Omarosa Manigault Newman published in August 2018.
Credit...Paul Morigi/Getty Images

Former President Donald J. Trump has lost an effort to enforce a nondisclosure agreement against Omarosa Manigault Newman, a former White House aide and a star on “The Apprentice” who wrote a tell-all book about serving in his administration.

The decision in the case, which Mr. Trump’s campaign filed in August 2018 with the American Arbitration Association in New York, comes as the former president is enmeshed in a number of investigations and legal cases related to his private company.

“Donald has used this type of vexatious litigation to intimidate, harass and bully for years,” Ms. Manigault Newman said in a statement. “Finally the bully has met his match!”

The decision, dated on Friday and handed down on Monday, calls for her to collect legal fees from the Trump campaign.

Mr. Trump’s campaign filed the case shortly after Ms. Manigault Newman published her book, “Unhinged.” It claimed that she violated a nondisclosure agreement she had signed during the 2016 campaign stipulating that she would not reveal private or confidential information about his family, business or personal life.

The book paints a picture of an out-of-control president who is in a state of mental decline and is prone to racist and misogynistic behavior. Ms. Manigault Newman’s book also casts the former president’s daughter Ivanka Trump and his son-in-law, Jared Kushner, in a negative light. When Trump advisers tried to cast doubt on Ms. Manigault Newman’s accounts, she released audio recordings that backed up several of her claims.

In a statement on Tuesday morning, Mr. Trump said nothing about the arbitration case, and instead attacked Ms. Manigault Newman in personal terms.

The media- and image-obsessed Mr. Trump has for years used nondisclosure agreements as a way to prevent staff members from speaking about him publicly, and to deter them from making disparaging comments or writing books like Ms. Manigault Newman’s.

The arbitration is confidential, meaning that only the parties involved can release information about the case. In papers made available by Ms. Manigault Newman’s lawyer, John Phillips, the arbitrator, Andrew Brown, said that the definition of the type of comment protected by the nondisclosure agreement was so vague that it had been rendered meaningless. What was more, he wrote, the statements Ms. Manigault Newman had made hardly included privileged information.

“The statements do not disclose hard data such as internal polling results or donor financial information,” Mr. Brown wrote. “Rather, they are for the most part simply expressions of unflattering opinions, which are deemed ‘confidential information’ based solely upon the designation of Mr. Trump. This is exactly the kind of indefiniteness which New York courts do not allow to form the terms of a binding contract.”

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At another point, Mr. Brown wrote that the agreement “effectively imposes on Respondent an obligation to never say anything remotely critical of Mr. Trump, his family or his or his family members’ businesses for the rest of her life.”

The arbitrator added, “Such a burden is certainly unreasonable.”

Mr. Phillips, who is based in Florida, said the lawsuit had been an abuse of power by a sitting president. “It’s over,” he said. “We’ve won in Donald Trump and the Trump campaign’s chosen forum.”

Arbitration decisions do not create a precedent, according to Shira A. Scheindlin, a retired Federal District Court judge for the Southern District of New York. That means that there is no potential impact from the Manigault Newman case on ones filed against other Trump employees.

However, a ruling in one case “may be persuasive” in another, said Cliff Palefsky, a lawyer in San Francisco who is an expert in the arbitration process. In the decision in Ms. Manigault Newman’s case, the arbitrator referred to a ruling in a class-action suit filed in New York by a former Trump campaign aide, Jessica Denson. In that case, a judge ruled that the Trump campaign’s nondisclosure agreements were not enforceable.

The decision in the Denson case and the arbitration decision in Ms. Manigault Newman’s case are both blows to Mr. Trump’s reliance on nondisclosure agreements as a way to intimidate former aides.

The decision was made public a week before a new book by Stephanie Grisham, one of Mr. Trump’s former White House press secretaries, will be released. The book paints a deeply unflattering portrait of Mr. Trump and his wife, Melania Trump.

Charles Harder, the defamation lawyer who had represented the Trumps over the years and who was handling Ms. Manigault Newman’s arbitration case, parted ways with the Trumps several months before the decision was issued. It was taken over by other lawyers working for Mr. Trump.

The decision cannot be appealed, other than on the basis of fraud alleged against the arbitrator who heard the case. That leaves Mr. Trump with little recourse for continuing to pursue an action against his former aide.

Maggie Haberman is a White House correspondent. She joined The Times in 2015 as a campaign correspondent and was part of a team that won a Pulitzer Prize in 2018 for reporting on President Trump’s advisers and their connections to Russia. 


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