A Florida School Board and its lawyer announced that they’ve violated the state’s constitution’s “Sunshine Law” requiring open meetings, by making the decision to file a SLAPP lawsuit against PINAC’s Jeff Gray for reporting about school bus safety violations.
The St. Johns County School District swore in court documents that filed suit without a public hearing or notice, and it’s attorney admitted publicly this week polling elected school board officials in advance of any possible hearing.
Violating the Sunshine Law’s open meetings statute can be a criminal offense in Florida.
It’s important to note that Florida’s Sunshine Law was enshrined into the Constitution under Article 1, Section 24 as well as into statutory law, which gives both open meetings and public records access a higher standard of protection than other states which merely use statutory guidance.
This week, Florida lawyer Frank Upchurch III told local newspaper The St. Augustine Record that he’d privately polled St. Johns school board members about their potential votes in his official capacity as district general counsel.
The district’s general counsel also admitted that their SLAPP lawsuit was born of drafting paperwork in a prior legal matter with Gray, practically announcing to the world that the current action is a malicious prosecution, because it seeks to continue the argument mooted in a motion from a now completed lawsuit.
Below is an excerpt from the [__local report__](http://staugustine.com/news/school-news/2016-01-30/public-records-dispute-escalates-school-board-seeks-decision-against):
> School Board attorney Frank Upchurch III said on Friday that no board members had expressed any objections to filing the lawsuit and that he was considering bringing a formal request for authorization before the board at a future meeting.
> Noting the quick turnaround, Upchurch said he had already prepared a counterclaim to Gray’s suit against the School Board that became the basis for its complaint against Gray filed Dec. 7.
In their filed response to the courts, St. Johns Schools Superintendent [__Dr. Joseph Joyner__](http://www.stjohns.k12.fl.us/supt/) has claimed in a sworn affidavit filed in court, that he alone chose to file suit against Jeff Gray. You can see it in the last two pages in the below embedded response.
In [__Joyner__](http://www.stjohns.k12.fl.us/supt/)‘s official capacity as Secretary to the School Board, he should’ve known better than to consult the elected Board Members secretly, without notice and in likely violation of statute 286, Florida’s open meetings law.
This law forbids making public business decisions without public hearing or notice as excerpted below from 286.011:
> All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.
But there’s more.
The powers of school board and superintendents are statutorily defined, and pardon the pun, there is not a lot of gray area in the language.
Florida [__statute 1001.41(4)__](http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=school+board+sue&URL=1000-1099/1001/Sections/1001.41.html) specifically says, *“district school board,* ***after*** *considering recommendations submitted by the district school superintendent,* ***shall*** *exercise the following general powers… (4) Contract, sue, and be sued.”* (emphasis by author)
The key distinction is speaking about matters for which a subordinate public official does NOT have authority to enact themselves. If that official may act administratively, then they are free to poll the board about their own pending decision.
According to the Florida Attorney General’s office under Bob Butterworth, this [__advisory opinion__](http://www.myfloridalegal.com/ago.nsf/Opinions/B470F8A8084A96EE852564D700610A04) in 1997 explicitly advises that polling a public body shouldn’t even be done by staff – as Mr. Upchurch claimed to the St. Augustine Register – let alone a Superintendent, *if* the decision for which they’re polling a public board member is likely to be a later voted upon to enact a decision.
> This office has advised administrative officers, or staff who serve public boards or commissions, not to contact each member of the board or commission to poll or ascertain the member’s vote on a particular matter pending before that board or commission in order to avoid being used as a liaison between board members. The Sunshine Law, however, relates to discussions on matters which will foreseeably come before the public board or commission. Thus, it would not preclude an administrative officer from contacting individual members for their views on a matter when the officer, and not the board, has been vested with the authority to take action.
So there you have it.
The top brass in a County school district with 35,000 students and 37 schools is straightforwardly admitting that they maliciously prosecuted PINAC’s Jeff Gray – a parent in their district – for US Constitutionally protected photography activities and exercising Florida Constitutionally protected right to public records access just because they had finished some prior legal drafting anyways.
[__Superintendent Joyner__](http://www.stjohns.k12.fl.us/supt/) and his lawyer Mr. Upchurch III have conducted secret meetings to pursue public business, and that business is a lawsuit at Gray for photography and making public records requests.
As PINAC readers probably recall, Gray was investigating school bus safety in northeastern Florida after a tragic accident crushed the legs of a 12 year-old boy in November.
Gray’s three children attend school at the district.
In October, Gray had filed a public records lawsuit under the state’s Sunshine Law against St. Johns Schools, who’re headquartered in historic St. Augustine, Florida. Incidentally, St. Augustine has a [__history__](http://kingencyclopedia.stanford.edu/encyclopedia/encyclopedia/enc_st_augustine_movement/) of civil rights abuse so bad, Martin Luther King, Jr. was in town getting [__arrested for eating at a lunch counter in 1964__](https://kinginstitute.stanford.edu/chapter-22-st-augustine) while the Civil Rights Act passed.
The civil rights leader called it the “[__St. Augustine Movement__](https://en.wikipedia.org/wiki/St._Augustine_movement)“.
Apparently, they only teach the ABCs and 123s in the oldest continually habited european settlement in North America, because the District and it’s counsel can’t count to 786.295 or say their S.L.A.P.P.’s even in a lengthy response to Gray’s motion for Summary Judgement under a state law specifically intended to give citizens deploying Constitutional First Amendment protected speech in public matters from exactly the kind of retaliatory lawsuit St. Johns has filed.
S.L.A.P.P. stands for “Strategic Lawsuit Against Public Participation” and Florida’s law against it, statute 786.295 is titled “”Strategic Lawsuit Against Public Participation prohibited” which gives defendants the right to an expeditious resolution of claims in state courts.
Florida Governor Rick Scott signed a major update into law in May 2015, [__which added lawsuits between private parties and broadened the claims protected under SLAPP__](http://flaglerlive.com/82851/slapp-lawsuits-florida/), in addition to specifically referencing free speech under both the Florida and United States Constitution too, after prodding by the Florida Press Association and the Motion Picture Association of America.
The District’s response to Gray laughably claims that he has no basis to file a SLAPP motion because according to Gainesville attorney David Graham of Dell & Graham, *“newsgathering does not enjoy the constitutional protection that extends to free speech.”*
In fact, government participation is the protected activity under Florida’s SLAPP statute, which is inclusive of free speech, but extends to any participatory act in government and very obviously to the right to request public records guaranteed by the state constitution, that is, unless you’re an attorney and well paid to say otherwise.
The rest of the response, which you can read below in its entirety, seeks to claim that the school board had no idea Jeff Gray was a journalist, that taking photos isn’t journalism, but rather an illegal activity.
Graham continued to imaginatively argue that Gray had some difficult burden of proof that he was conducting First Amendment protected activities, when their own complaint so exhaustively mentions his photo journalism, and they’ve demanded in settlement talks in prior litigation that he take down his YouTube videos which have been watched by millions of viewers.
The district’s Board Certified Education Lawyer Graham cherry picked an odd mix of case law such as the Supreme Court’s Branzburg v. Hayes to justify this bold anti-citizen participation stance.
That decision requires journalists to testify in front of criminal Grand Juries and has been found to be solely applicable to criminal matters.
Ironically, Branzburg v. Hayes will apply if the St. Augustine Register’s reporter Jake Martin is called to testify to a grand jury about any criminal investigation into the conduct of the St. Johns School Board.