Commissioner and BOCC Headed to Court Over Legal Fees

BRADENTON – Manatee County Commissioner Robin DiSabatino recently endured a three-year lawsuit over allegations that she did not correctly maintain public records that were transmitted via her personal email account. DiSabatino had the case dismissed with prejudice, with no admittance of wrongdoing, but the county attorney who had previously represented her recommended that the Manatee County Commission not reimburse her fees.

At the onset of the item, DiSabatino's attorney, Ralf Brookes, said that the facts of the case were very clear. "All public records were provided," said Brookes. "They were provided once, and they were provided again. There was no wrongdoing found. This case was settled without an admission of wrongdoing, and it was dismissed, with prejudice, meaning it can never be brought forward again."

Brookes explained that the public records request related to certain search terms in the commissioner's emails. The county performed the search on its system and instructed Commissioner DiSabatino to search her personal account for the same terms. When she couldn't remember her log-in information, she was sent home with the same instructions and told to print them on hard copy. Brookes said that her attorney at the time, Dept. County Attorney Rob Eschenfelder, did not properly instruct his client to forward her emails to her county account at that time, which would have protected both she and the county as the case advanced, likely ending it before costs were accrued.

When Eschenfelder provided Barfield with the printed emails, he complained that they were not legible and demanded the digital copies. When Commissioner DiSabatino was unable to produce the digital copies at that time because of problems with her Gmail account, Barfield asked that her personal computer be quarantined so that a forensic audit on its hard drive could be done. On the advice of Eschenfelder, DiSabatino submitted to the audit of her drive, which was to be done by a licensed and bonded professional in a secure facility.

Eschenfelder then moved that the county be dismissed from the case and said that the CAO had a conflict of interest and must remove itself as DiSabatino's attorney. Just days before the county's hearing, however, Barfield offered to dismiss the county voluntarily, provided it agreed to give him a copy of Commissioner DiSabatino's hard drive.

Brookes said that as her former attorney, it was not proper for the CAO to act in an adversarial manner as part of an agreement to have their own case dismissed. He went further in saying that by giving Barfield a copy of her drive, the CAO was violating statute by allowing personal information, including some that is specifically exempt from public records law, like social security numbers, credit card info and bank account numbers to be given out as public records.

Commissioners Baugh, Benac and Whitmore, who have been long-time rivals of DiSabatino, were fairly adversarial throughout the first half of the process. They each questioned the relevance of Brookes' attack on Eschenfelder's handling of the case, as well as his reiteration of the plaintiff's criminal record, which Brookes said included 67 felonies, including fraud charges.

Brookes answered that even though case law suggested that DiSabatino had satisfied the public records statute with the hard copies of the emails, the case would have never proceeded had Eschenfelder properly instructed her on initially preserving a digital copy. He also added that Eschenfelder himself failed to maintain a copy of the printed emails (turning the originals over to Barfield), while also failing to preserve the county's copy of the hard drive, which Eschenfelder claims was destroyed by its IT department. Brookes added that Barfield's background compounded the damage to his client's privacy pertaining to financial records and other personal information and noted that DiSabatino still has not recovered that copy of her drive that was given to the private citizen.

Commissioner Whitmore then attacked Brookes, arguing that his legal fees were excessive. Brookes noted that his billed hourly rate of $130 was very low compared to most attorneys and reiterated that the case had dragged on for three years, while the plaintiff's were unwilling to settle. To this, the three commissioners, who later said they empathized with DiSabatino, directed their complaints toward the idea that it should have been resolved earlier.

Commissioner Charles Smith related an experience he had while an outgoing Palmetto City Commissioner. He said he was hit with a "slap suit" that he claimed was filed in order to do nothing more than cost him money, personally. He said the city obtained an opinion that he should have his legal fees covered, and was very concerned that the county attorney's office, which seemed to have a conflict, did not seek an outside opinion on whether Commissioner DiSabatino's legal fees should be reimbursed. "Tomorrow, it could be any one of us up here getting sued," warned Smith.

When the board reconvened after lunch, County Attorney Mickey Palmer began by referring to emails between Deputy County Attorney Eschenfelder and Commissioner DiSabatino in which he had advised her to electronically forward the emails in question. "Let the record show that we did in fact instruct her to forward the electronic record of the emails in question to Mr. Barfield," said Palmer. Brookes later noted that this didn't occur until over a week after they told her to print them and after the Commissioner said she had become unable to access them because of problems with her Gmail account.

Palmer then requested, rather than answer specific questions, he be allowed to read a prepared statement. Palmer said that the opinion rendered from his office came after painstaking debate and called it a good faith effort for following the specifics of the law. He said that he would never attempt to inject dissent among members of the board and always maintained the best interest of the BOCC and its commissioners. As for the fees, Palmer said, "There are occasions when it is painful for me to say no. Time will be the judge, but this case might be the most painful of them all."

Palmer claimed that the office of the county attorney never had an attorney-client relationship with Commissioner DiSabatino in her official capacity and that because she later became subject of the suit as an individual citizen, the rules applying to former clients did not apply. He said that the Florida Bar, whom they contacted regarding the matter, told his office "telephonically" that it did not have a conflict of interest in issuing the opinion on fees to the BOCC. Palmer argued that Brookes could have done much more to ensure that the case was resolved in less time, including pushing the judge to fast-track hearings, as per statute in such cases.

Palmer also said that all of the commissioners know that he and his office have been counseling commissioners to forward all personal emails containing county business to their county account since he came on board in 2011. Palmer then attacked Brookes on the hard drive, arguing that there was no quid pro quo between the dismissal and the CAO's office.

"We only turned over the hard drive because Commissioner DiSabatino insisted from the beginning that she had nothing to hide," said Palmer. "So yes, we turned it over."

In emails between Eschenfelder and Barfield's attorney, Andrea Mogensen, that doesn't seem to be the case, however.

On May 29 of 2013, Mogensen emailed Eschenfelder, writing, "This shall confirm our agreement that my client is willing to take a voluntary dismissal of the action pending against the County as long as the County maintains a copy of the forensic image of the hard drive. Also, Mr. Barfield is interested in obtaining a duplicate copy of the imaged hard drive in the County's possession. Let me know if this represents our understanding and I will draft the voluntary dismissal."

That day, Eschenfelder responded that the county's IT security division had confirmed that the county's copy remained in the secure location and that they would be "more than happy to provide a duplicate of the drive for your client," and the two began communicating on a process for that to be achieved.

Palmer then argued that because the only settlement that can be received by the plaintiff in public records cases are attorney fees and injunctive relief (in this case, Commissioner DiSabatino's promise in the settlement to properly steward such records with the county and receive annual public records training) and because the plaintiff received both in this case, she could not be considered the "prevailing party"–the requirement for her being reimbursed.

Commissioner Baugh then turned her attack to Brookes. She said she felt sorry for Commissioner DiSabatino because she felt that she was being taken advantage of, not only by the plaintiff but by what she suggested was a deliberate effort by Brookes to drag the case out and churn fees.


Commissioner Smith reiterated his discomfort with giving up his right to be covered under such suits and reminded all of the commissioners that it could be them tomorrow, echoing Brookes' assertion that sending a message to public officials or even potential candidates that if you become a public official, you'd better be financially capable of defending yourself against any and all claims, including even the most frivolous lawsuit.

"When you dig this ditch, you ain't digging it for her," said Smith. "We can come across this same issue tomorrow ... I'm not willing to open that door." Smith said he felt that DiSabatino had "prevailed," and while there were parts of the issue that could still be looked at, he would not consider voting in favor of denying reimbursement until at least a third-party had weighed in.

During public comment, Debra Glow said, "I have seen a disgusting, disgusting show up here." She called Barfield an "ambulance chaser" and said that when it came to the fees, her divorce cost much more at $500 an hour and five years to get through the courts, and another five years on an accident settlement she was involved in. "I've been coming here for how long, five years?" asked Glow, "and how you've treated Commissioner DiSabatino has been disgusting."

Agatha Mantanes said Commissioner DiSabatino's information was given to someone who'd clearly been to jail several times. She said any kind of information could have been on the hard drive, including medical records which may have meant HIPPA violations in addition to personal information that could have been used to blackmail a public official.