Ethics Commission rules Mayor Shaver did nothing wrong and must vote

275-RULING-JUDGEIn what may go down as the most ill-conceived idea in the history of bone-head moves by a new city commissioner, Todd Neville used the last five minutes of the regular commission meeting on Monday, September 14, 2015, to launch an attack on Historic City News claiming our report of campaign contributions taken by Neville from David Corneal, his son, Seth Corneal, and Corneal’s lawyer in a high-profile PUD rezoning application, Ellen Avery-Smith; constituted a defamatory attack on himself, a condemnation of the process of local government, and was published maliciously.

Even at the late hour and without the benefit of any notice to the public, Neville wanted to make his case for the merits of his allegations; going so far as to pass out a printed handout to each commissioner and Mayor Shaver.  With verbal support from Commissioner Nancy Sikes-Kline, Neville attempted to continue his argument over the objection of the chair; who had already called for the city attorney to look into the merits of his allegations and provide her findings at the next meeting.

By the time the next meeting rolled around, “Neville’s Folly”, as it was being called in public circles, never got as far as a vote.  With advance knowledge of her findings, and growing negative opinion for his overt move to censor a free press, without ado, Neville shrugged off the idea as if it had never happened.

This is the communication from the City Attorney presented at the following meeting; as requested by Mayor Shaver in response to Neville’s hurt feelings:

Memorandum City of St. Augustine
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 lndep. Dev. Auth. v. State, 427 So. 2d 17 4 (Fla. 1983); O’Neill v. Burns, 198 So. 2d 1 (Fla. 1967); State v. North Miami, 59 So.2d 779, 785 (Fia.1952).

Conclusion: 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.

A Jacksonville television news anchor commented on the foolishness of Neville’s hapless assault on free speech, and even the local newspaper, The St Augustine Record, published a Sunday editorial, outlining all the Constitutional reasons Neville’s personal legal assault wouldn’t pass “go”; concluding that the freshman commissioner needed to “grow some thicker skin”.

Named by Commissioner Neville as the author of the August 31, 2015 article that asked the question, “Should elected officials vote in city business with their donors?” Historic City News editor in chief, Michael Gold, wasn’t sitting on his hands.  Using our own money (not the City Attorney) we spent a total of one-hour evaluating all the reasons Neville’s claim would fail, and how 13,000 taxpayers in the City would feel about splitting his legal fees.

On Thursday December 3, 2015, The Record editorial staff wrote a follow up on one of their own reporter’s accounts of the Neville complaining; titled “Editorial: Much ado about nothing: Act II”

In part they said, “We think it’s much ado about nothing in the same way that we wrote back in September that Neville’s defamation suit was an inappropriate use of city funds and a waste of time, money and precious little political goodwill.

There’s no evidence the mayor did anything wrong or intended to. So what’s the point? Where’s the payoff — other than payback?”

Opinion Page Editor, Jim Sutton wrote, “Advocacy journalism has been practiced since the advent of the printing press. It’s not illegal. In America today it’s not even frowned upon. Take MSNBC and FOX News … please. We all do it to some extent.”

That’s fair.  And, from a previous remark he makes about us promoting and publicizing our customers, he’s right and we will own that.  Sutton goes on to say, “Gold could counter that The Record was a backer of former Mayor Joe Boles because we endorsed him over Shaver in last year’s election: Though we do try to promote candidates for just one day every two years, and not for a living.”

There is one other footnote to this misadventure.

Historic City News, the operating company of Historic City Companies, Inc., identified Mayor Shaver early on as a candidate who stood for the people, not the moneyed elite whose pomp and circumstance was fueled by the average Joe’s misused taxes.  She is a Constitutionalist and master of the history of the founding of our nation.  Our decision not to support the status quo at City Hall, including the overthrow of lawyer and Mayor Joseph L Boles, Jr., couldn’t have come at a better time, and, of course, her campaign with our endorsement was enormously successful.

This was to the amazement and chagrin of the ousted mayor — his hand-picked board members, political appointees, white-collar clientele, clandestine business partners and associates; and, of course, high-dollar campaign contributors, a list of whom reads like a “who’s who” of St Augustine royalty.

The holdovers from the Boles regime at City Hall as well as his cronies remaining on the commission and city manager’s office, to this day carry a grudge against Mayor Shaver.  They try to marginalize her and are rude in their dealings with her.  Nancy Sikes-Kline’s husband and Todd Neville’s wife have both been overheard in public venues making disrespectful and inappropriate comments to the mayor.

Only two days after Neville let the cat out of the bag during the September commission meeting, the City Attorney received this e-mail from Willie Masson.  He is the step-son of the defeated mayor, Joe Boles.  He is, or was, a law student at Florida State University in Tallahassee and had come back to St Augustine to help Boles with his losing political campaign last year.

He writes:

–Original message–
From: William Masson <wllllemasson@gmall.com>
Date: Wednesday, September 16, 2015 12:14 PM (GMT -05:00)
To: Isabelle Lopez <llopez@cttystaug.com>
Subject: Potential Voting Conflict

I’m writing to voice concerns over the nature of the website, nancyshaver.com, and the potential conflict it creates for Mayor Shaver.

Nancyshaver.com is registered to Historic City Companies, Inc., with the registrant name Historic City and the registrant e-mail, historiccity@gmail.com.

The header of the website has a picture of Mayor Nancy Shaver, next to the words “Mayor Nancy Shaver,” “City of St. Augustine, Florida,” “The Nation’s Oldest City,” “Established 1565.”  The menu bar of the website has links to pages which appear to be intended to email Mayor Shaver, make scheduling requests with Mayor Shaver, and submit media inquiries to Mayor Shaver.

Additionally, there is a menu link titled “Meet Nancy Shaver,” and a calendar titled “Mayor Nancy Shaver.” Finally, the link to the far left of the top menu bar, which is not titled, leads to a login page which features the City Coat of Arms with the 450th Celebration logo.

On the left-hand side of each page of the website, there is a column titled “Follow Me On Twitter,” followed by tweets from Mayor Shaver. The published content on the website appears to be mostly, if not entirely, news (or editorials) about Mayor Shaver’s activities as Mayor.

I point all of this out because everything about nancyshaver.com would lead an ordinary person to believe that this is a website managed by Mayor Shaver, or one in which she is directly involved and is directly related to her service to the City of St. Augustine.

Either way, the website holds itself out as belonging to, or being controlled by, Mayor Shaver. However, the registrant is Historic City

Companies, Inc., which is the same entity that owns and controls

historiccity.com, more commonly referred to as Historic City News.

While this likely raises public record concerns, presumably, it would also indicate an ongoing business association between Mayor Shaver and Historic City Companies, Inc., through nancyshaver.com.

It would seem under the circumstances that it would be an ethical violation for Mayor Shaver to participate in any voting in regards to a potential lawsuit for libel against Historic City News, as such legal action or inaction “would inure to the special private gain or loss of a relative or business associate of the public officer.” FLA. STAT. §112.3143 (2015)

As such, I would expect the Mayor to “publicly state to the assembly the nature of the officer’s interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes,” (Id.) and to refrain from participating in any decision-making regarding Historic City News and Historic City Companies, Inc., until such a time that her business association with that entity has ended.

Furthermore, as websites derive their income from advertising, and advertising rates are dictated by traffic on the website, it seems inappropriate that historiccity.com, a business associate of Mayor Shaver, should be linked to by the City of St. Augustine website, which could likely lead to increased traffic to historiccity.com, and financial gain for a business associate of a public official, directly related to her public position.

I hope this message finds you well and I thank you for taking the time out of your extremely busy schedule to consider my concerns.

Best,
Willie Masson

When the mayor learned of the Masson e-mail, she decided that was enough badgering.  Her successful relationship with Historic City Companies and Historic City News was perfectly legal and ethical and she derives no compensation from the activities of the company.

To send his step-son to carry his water in an attempt to illegally influence the outcome of a commission vote by demanding the Mayor’s recusal, was beneath contempt.

Accordingly, Shaver responded to a message from the City Attorney, Isabelle Lopez, asking that Lopez formally solicit the Florida Ethics Commission for a decision about the propriety of using a personal website, managed by Historic City Companies, her use of Twitter, Facebook and other social media to communicate more fully with her constituents, and, whether or not a Florida ethics law violation was created or if any of her actions as a customer of Historic City Companies “would inure to the special private gain or loss of a relative or business associate of the public officer”, as Masson had alleged.

During their public meeting on Friday, December 11, 2015, the Commission ruled that the mayor’s activities constituted no ethical violation, she did not maintain a financial interest in Historic City Companies by virtue of being a customer, and she would have been obliged to vote had Neville not withdrawn his request, regardless of what the ex-mayor’s stepson learned at law school.

“I am pleased that the Florida Ethics Commission determined that using the services of Historic City Companies for website management did not provide any financial advantage to me — that in fact I pay the company for routine web services,” Shaver wrote in a media release Tuesday.

“Transparency is what I stand for. It was important to me and, I believe, to the people of this City to have a clear ruling on the baseless allegations which seemed intended to interfere with the democratic process, and hinder me from casting my vote,” Shaver continued.  “I was elected to represent the people of this City–and that means voting on all matters that come before the Commission; I take that very seriously. The Ethics Commission ruling is a clear victory for the democratic process, and I thank them for that.”

The St Augustine Record editorial concluded, “However the ethics commission ends up perceiving the relationship between Shaver and HCN — and its potential for conflict — there’s no harm, no foul. If opponents want it taken further, stand up and file the complaint. You may get your probe; but little, if anything, more.”

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