Escambia County to pay legal fees to end SLAPP lawsuit against PNJ, 2 residents
Escambia County will not appeal its failed lawsuit against the Pensacola News Journal and two county residents over Commissioner Jeff Bergosh's leaked cell phone text messages and has agreed to pay the attorney's fees and costs associated with the lawsuit as ordered by a judge.
The vote will settle the financial sanctions in the case imposed by the judge after he ruled the county "ran afoul of the First Amendment" when it sued the Pensacola News Journal, and residents Jonathan Owens and Alex Arduini in seeking the return of the leaked text messages.
The vote approving payment was 3 to 1, with Commissioners Steven Barry, Mike Kohler, and Lumon May agreeing to pay the fees and Jeff Bergosh arguing against payment.
"I’m not interested in paying a nickel," said Bergosh. "I’m not going to vote to pay a nickel to these attorneys."
Last month, Okaloosa County Court Judge Jonathan Schlechter dismissed Escambia’s lawsuit against the News Journal, Owens, and Arduini. He found the lawsuit violated Florida's Anti-SLAPP law, or strategic lawsuit against public participation. The Anti-SLAPP law allows people to collect court cost and fees against governmental entities who try to use lawsuits to shut down discussion of matters of public interest.
Schlechter wrote in his decision the county was "attempting to impose a prior restraint of speech on the press which, under these facts, runs afoul of the First Amendment." Prior to discussion at Thursday’s board meeting, Escambia County Attorney Alison Rogers recommended commissioners pay the attorneys' fees as it would settle the financial sanction part of the case.
“At the Board's direction, the County Attorney's Office filed suit against the defendants to recover a data file of text messages that was stolen from the cell phone of Commissioner Bergosh while it was in the custody of the County's IT Department,” the agenda item reads in the county attorney’s report to commissioners. “On Aug. 8, 2024, the Court dismissed the lawsuit with prejudice, finding that the text messages were the personal property of Commissioner Bergosh and that the County did not have sufficient interest in them to proceed with the lawsuit. Additionally, the Court awarded sanctions because it found that the County's lawsuit infringed on the free speech rights of the defendants in connection with a public issue.”
Personal vs. private costs: Pam Childers contests county expenses on lawsuit against PNJ over Bergosh text
Despite the court's ruling, Bergosh wanted to keep fighting the case because he felt he, his family, and private employees had been victimized because their private information was not redacted in the leaked files and he wanted it back. Bergosh also wanted the judge to be aware that it was the county's own IT department that leaked the texts, information that has come to light since the ruling.
Bergosh said he used the county's IT department to back up data on his phone because he was "trying to save records," but when he did Escambia County's former IT Director Bart Siders leaked the text messages to a political rival, Jonathan Owens, in 2022. Owens was a longtime aide of former District 2 Commissioner Doug Underhill, who unsuccessfully ran against Bergosh in the Republican primary in 2020.
That information was only just released by the State Attorney’s Office who investigated the case and said there is no evidence that Siders, who had an immunity agreement with federal authorities looking into the leak, committed a crime in releasing the information, although the manner in which he provided the public records is a violation of county policy.
"Escambia County created this problem through their IT Department," said Bergosh during a discussion of the issue. "I think this information should be given to the judge, and extraordinary remedy should be sought. I'm going to speak with (State Attorney) Ginger Madden. I've requested another meeting. I believe felonies were committed, and I've done nothing wrong here. This is not a personal thing."
However, Bergosh did not have the backing of the other commissioners. While there was lengthy discussion, in the end May and Barry sympathized with Bergosh about having his personal information exposed, but they both agreed it was time to put the case to rest.
“We decide to serve in this public life, not to be attacked in our personal life, I think that was wrong,” said May. “But at some time, we have to cut our losses and move on. I just don't want to continue to make decisions that cost taxpayers.”
"I don't understand how what's happened to you is not criminal, but I'm clearly a layperson and not an expert in these matters," said Barry. "I think my only responsible action tonight, as a vote on the board is to at least vote to have the county pay what the judge has told us to pay. That's now been negotiated by the three counsels to try to close the book on something."
Commissioner Mike Kohler agreed, adding that he believed Bergosh has also weaponized the county legal department to go after people and his actions have already cost the county too much time and money.
“It looks like something out of Cuba, or Russia or China,” said Kohler. “No one wants to see your personal stuff gone. At the same time, you can't be half pregnant. And there were other things on those texts that were disclosed that probably shouldn't have been, Jeff, but they were and they showed things that I think we could have handled differently.”
Together, the defendants’ attorney’s fees and costs associated with the lawsuit total more than $100,000. That includes $36,246.00 to the attorney for Jonathan Owens, $13,600.00 for Alex Arduini’s attorney, and $52,363.99 for PNJ’s legal team. The County Attorney will file a consent judgment with the court to confirm the settlement of the defendants' claims for attorneys' fees and costs in the lawsuit.
Escambia County Clerk Pam Childers had contested the county spending on the lawsuit because the judge ruled the text messages were never the property of the county but Bergosh's private property. She ordered Bergosh to reimburse the county $39,670 to cover county attorneys' time spent on the case. When Bergosh asked if she would write a check to pay the defendants' attorney's fees, she said she would pay the fees ordered by the court, leaving open the dispute of the county's own internal spending on the lawsuit.
Why was the lawsuit filed?
Escambia County sued the News Journal, Owens and Arduini in November under a replevin action, which is a type of lawsuit that is typically used to return physical property.
The News Journal had published multiple articles detailing Bergosh's desire to have the county medical director fired and passing redistricting plans to a political donor while asking they be forwarded to other commissioners. A grand jury later found no probable cause existed that Florida's Sunshine Law had been violated.
The messages also showed Bergosh has pre-existing relationships with the two write-in candidates who filed to run in District 1 in the 2024 election cycle. Their entrance in the race closed the primary to only Republican voters.
The text messages came from a 2022 backup of Bergosh's personal iPhone when he said he asked county employees to make a copy to preserve public records. Later that year, Owens said a thumb drive with the messages was left on his desk, although the State Attorney's Office now says their investigation revealed Siders met with Owens to give him the thumb drive.
The messages' existence became public knowledge last year as part of a lawsuit against the county by former county medical director Dr. Rayme Edler alleging the county falsely billed Medicare and other government agencies for ambulance services by uncertified personnel. Escambia County ultimately settled the lawsuit for $5 million with $3.5 million being paid to the U.S. government.
Owens provided Edler's attorneys with a copy of the text messages and a federal judge ruled that some of the messages were relevant to the lawsuit. After the News Journal reported on the lawsuit in August, an anonymous source provided copies of the messages. Owens verified to the News Journal that the file appeared identical to the one he had provided to Edler's attorneys.
Arduini's only connection to the messages appears to be comments he made on a Facebook discussion page where he said, "Don't worry, we have them all" and "There are way more than a 'few' messages pertaining to county business on that thumb drive!"
Besides the handful of Facebook comments, the county presented no evidence Arduini ever possessed a copy of the messages. Arduini testified in court he never had a copy of the messages.
At the time of the decision, Bergosh told the News Journal in a written statement he would advocate for the county to appeal the ruling. Since then, Bergosh has lost his bid for re-election to challenger Steve Stroberger.
This article originally appeared on Pensacola News Journal: Escambia County to pay legal fees to end SLAPP lawsuit against PNJ
