Palm Bay: How A Desire For The City To Follow The Law Has Angered Tres Holton. (Part Two.)

This is part two of a three part (maybe four part) series on our interaction with the Palm Bay City Council, Councilman Tres Holton, and City Attorney Andrew Lannon. See here for part one.)

We believe that Lannon and Holton thought they were done with us. If you have ever spoken before a Council or Commission, you are generally limited to the amount of time you have to make your remarks. The folks on the dais have unlimited time to respond to you and no matter what they say, you are not allowed to respond. It is frustrating for them to not only have the bully pulpit but the last word.

However, if we have to get the City to do the right thing three minutes at a time, we will do that.

Because of that philosophy, we sent our guy back to the Commission again on November 16th.

The purpose of this was to address the statements by Lannon and Holton that they had provided all of the emails but had withheld those which are covered by attorney client privilege.

There is no doubt the privilege exists and that the City can withhold the contents of the emails due to the privilege.

Florida Statute Chapter 119.071(1)(d)(1) reads:

A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney’s express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings. For purposes of capital collateral litigation as set forth in s. 27.7001, the Attorney General’s office is entitled to claim this exemption for those public records prepared for direct appeal as well as for all capital collateral litigation after direct appeal until execution of sentence or imposition of a life sentence.

However, if the City is going to claim they are able to withhold the contents of a record because of an exemption such as attorney client privilege, they must still produce the email and can redact the portion that is exempted.

Once again, from the Florida Statues Chapter 119.07(1)(d)

A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying.

The law is clear – the record has to be redacted and not withheld totally.

However, there is more to this as well.

Florida Statues Chapter 119.07(1)(e):

If the person who has custody of a public record contends that all or part of the record is exempt from inspection and copying, he or she shall state the basis of the exemption that he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute.

Chapter 119.07(1)(d) and (e) work together. Chapter 119.07(1)(d) requires the City to acknowledge the existence of the record even if sections are redacted. Chapter 119.07(1)(e) requires that the reason for the redaction (the exemption) be stated in order that the people requesting the documents can contest the redaction and the exemption in front of a judge.

It was clear to us that in trying to smack down our representative, both Lannon and Holton had made their situation worse as both men said they had withheld emails but neither had provided the redacted version of the emails or the reason for the redaction. The two had boxed themselves in as there are either no emails that could have been withheld due to the attorney client exemption which meant the City had failed to produce the records as we claimed, or as neither man provided redacted emails or stated the exemptions for the redactions, they appear to us to have violated the statutes.

Doing so can lead to some unpleasant consequences:

Florida Statute Chapter 119.10 

Violation of chapter; penalties.—
(1) Any public officer who:
(a) Violates any provision of this chapter commits a noncriminal infraction, punishable by fine not exceeding $500.
(b) Knowingly violates the provisions of s. 119.07(1) is subject to suspension and removal or impeachment and, in addition, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Any person who willfully and knowingly violates:
(a) Any of the provisions of this chapter commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

The State of Florida doesn’t play around with violations of the Sunshine Law as Commissioners in Martin County discovered last November:

MARTIN COUNTY — Two commissioners and one former commissioner were charged Tuesday with violating public records law.

Commissioner Ed Fielding and former commissioner Anne Scott face two criminal misdemeanor charges for failure to allow inspection of public records, according to Christine Christofek, Martin County Sheriff’s Office spokeswoman.

Fielding turned himself in to the Martin County Jail at 5 p.m., and Scott turned herself in at 8 p.m., Christofek said. Both were processed, booked and released on their own recognizance, she said.

County Commissioner Sarah Heard on Tuesday afternoon pleaded not guilty to a noncriminal infraction related to violating state public records law.

We want to be clear on this: Yes, we have emails in our possession that the City did not produce. We will deal with that at a later time. The issue here is that Lannon and Holton both claimed they withheld emails due to and exemption in the Sunshine law that relates to attorney client privilege. We do not dispute the exemption exists. However, if the City is going to claim the exemption, they must either provide a redacted copy of the email with the reason for the redaction or a list of emails that they feel they can hold onto but again, they have to list the exemption.

What the City cannot do is hold the emails without proper documentation on why they are withholding or redacting them.

It’s simple, black letter law.

Lannon was not there at the November 16, 2017 City Council meeting, but Holton was.

After our guy’s comments, Holton started to attack and made some rather odd statements.

1) He “accused” our representative of being a blogger.

Well, duh.

The ridiculous insinuation is that somehow working on a blog means that you are always wrong or something. It almost seems to us that Holton is claiming bloggers can’t be trusted, which is an ad hominem attack and without foundation. In fact, compared to politicians, most of the bloggers we know are honest, decent people. We find it hysterical that Holton is really trying to silence us with that attack. If he wants to compare bloggers to politicians – especially a politician with an alleged ethics violation – we think the politician loses every time.

(EDITOR’S NOTE: True story: Back in July of 2017, our representative was talking with then Deputy Mayor Harry Santiago Jr. when Holton walked by us. He slapped Santiago on the back, interrupting the conversation and said “Hey Harry, we have to go to breakfast sometime…..maybe get some hoecakes,” and then walked off. Santiago didn’t even catch what was said. Holton’s comment was a shot at our representative and that’s okay. It didn’t bother us that Holton’s pettiness and rudeness was was on display for all to see. If he wanted to intimidate us, he failed miserably and only made himself look bad.)

There is something else to that ad hominem attack as well. It violates Holton’s “Civility Pledge.”


I shall strive to be civil in addressing City staff, members of the public, and my fellow elected officials,to listen attentively to speakers, to respect the right of others to hold different opinions, and to avoid rhetoric intended to humiliate others. (emphasis ours)

We believe it was Holton’s intent to try and “humiliate” us. Once again, with Holton it is “don’t do as I do, do as I say.”

2) Holton said our guy was not a lawyer.

We agree. He’s not.

Once again, this is where Holton’s mouth gets him into trouble. He assumes that because he sees one person, there aren’t others that work on and with Raised on Hoecakes. Almost since its inception, the blog has had anywhere from five to thirteen people on “staff.” Unfortunately for Holton, some of those people are lawyers. The messenger we send out doesn’t have to be a lawyer, but that doesn’t mean we don’t have access to a lawyer. Is Holton really trying to say that the statutes we cited can only be understood and comprehended by a lawyer?

Furthermore, if one has to be a lawyer to understand city codes and state statutes, does that not mean that Holton himself can’t understand the statutes? Or is it a case where Holton himself is saying that since he cannot understand statutes, no other citizen can either?

Founding Father and main author of the Constitution Jame Madison had this to say about laws which cannot be understood:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.

Maybe Holton’s defense in his ethics hearing is that he couldn’t understand the statutes.

Somehow that doesn’t give us a warm feeling.

3) Holton accused us of “running around the County causing trouble.”

We have no idea what that means. If he means that we appear at other Council and Commission meetings when things like free speech are threatened, we would agree to that. We do. Heck, we get asked to come to meetings and make presentations. The question one has to ask is therefore, “why is standing up for the rights of people considered by Tres Holton to be ‘making trouble?'”

Holton then made a statement how he was “damn tired” of people attacking the City and making accusations.

Once again, we point out the lunacy of being more concerned with “accusations” rather than the accuracy of those accusations. Too often an elected officials are more concerned with the appearance of things rather than doing what is right and lawful. We cannot fathom the integrity or lack of integrity of someone who would rather violate the public trust than fix issues because acknowledging mistakes “looks bad.”

4) Holton said that he would be willing to meet with our representative as he has “never shied away from talking with anyone.”

We aren’t sure what a private meeting that we most likely could not record would accomplish in solving an issue that involves the entire City of Palm Bay. If Holton wants a discussion, let’s have that discussion in public. Public issue; public discussion.

For all his blustering, Holton never even tried to address the issues:
1) had he provided all of the emails or withheld some as he said?
2) was his withholding of emails within the statutes that do not allow him to withhold any emails and instead provide redacted copies?

After Holton’s rant, Commissioner Bailey asked Assistant City Attorney Patricia Smith, who was sitting in for Attorney Lannon if what we had said was valid. Smith gave the answer that she was not involved in this and that her boss was dealing with the issue.

It was a good and safe answer, but it saddens us to think that an attorney working for the City can’t answer the simple question on one of the most basic functions of Florida law – the Sunshine law.

Clearly she didn’t want to throw Lannon under the bus, but there comes a time when doing the right thing trumps protecting your boss.

Finally, we are being passionate and even stubborn in not backing down on the issue of the emails. We simply want the City of Palm Bay to follow the law so that what happened with us doesn’t happen to others. People should know what to expect from public records requests and they should expect the City to follow the law and not attack people for wanting the law followed.

Now you know the back story behind Holton’s attacks and rants against us. We don’t know what will happen next, but we suspect that Holton will continue to attack while acting like a child and trying to play the victim card.

It is sad when you think about it.

Tomorrow: We contacted City Attorney Andrew Lannon and it ain’t pretty.

One Response to “Palm Bay: How A Desire For The City To Follow The Law Has Angered Tres Holton. (Part Two.)”

  1. David Morris says:

    Love you guys they need to be brought out into the clear light of day they also need to follow the same laws you and I have to follow.