By Steve Plunkett
Gulf Stream resident Martin O’Boyle might get to inspect more text messages from Mayor Scott Morgan’s personal cellphone after winning part of an appeal of a state Sunshine Law and public records case against the town.
In a written opinion, the 4th District Court of Appeal in West Palm Beach sided with O’Boyle’s argument that the town may not have turned over all Morgan texts that relate to his work as mayor and ordered the trial judge, David French, to examine those messages in his chambers.
Both the Florida Constitution and the state’s Public Records Act “ensure that citizens may review (and criticize) government actions,” the appellate court wrote in its eight-page opinion. “That purpose would be defeated if a public official could shield the disclosure of public records by conducting business on a private device.”
The decision reverberated at government meetings across South Florida. Jacob Horowitz, an attorney for the Greater Boca Raton Beach & Parks District, gave district commissioners a “cautionary reminder” at their Nov. 19 meeting. “If you engage in text messages by public or private phone doing public business, they’re public records,” said Horowitz, whose firm also represents Delray Beach’s Community Redevelopment Agency and other government bodies.
The appellate court said O’Boyle met all the steps required to have the trial judge review Morgan’s text messages, especially when he “complained that a later response by the town revealed several additional texts that were not released upon the first request, leading to the belief that there may be more available.” The court used the italics for emphasis.
In an interview, Morgan said he rarely sent text messages in the time covered by the underlying lawsuit, March through October 2014, and that town staff “properly handled’ the public records request.
The 4th DCA “affirmed the significant part of the decision,” Morgan said, adding that Gulf Stream will challenge O’Boyle’s remaining claim. “I’m confident that the town will prevail.”
Gulf Stream also may have to pay O’Boyle’s attorney fees for his efforts to see what the town’s lawyers charged to defend it against his and resident Chris O’Hare’s numerous public records complaints, the 4th DCA ruled.
Citing work product privilege, the town first gave O’Boyle redacted copies of the lawyers’ bills; O’Boyle asked for an in-camera review and a week later the town provided unredacted copies. It then argued that that part of the appeal was moot and should be dismissed.
But the appellate judges said it was not moot, because French had not determined “whether the town’s initial redactions of the bills were proper, and whether any reasonable attorney’s fees, costs, and expenses, should be awarded.”
In a victory for Gulf Stream and its outside attorneys Joanne O’Connor and Robert Sweetapple, the 4th DCA upheld French’s dismissal of Sunshine Law claims and allegations of public meeting violations. “I thought it was a totally bogus claim. I didn’t think there was any merit in the case in the beginning,” Sweetapple said.
O’Boyle’s side quickly asked the judges to explain their decision in writing or send it on to the state Supreme Court. Sweetapple’s attorney filed a response opposing the motion.
“It is of great public import for the citizens of Florida and public boards alike to have a final and conclusive answer to the question presented in this case,” O’Boyle’s lawyer and son, Jonathan O’Boyle, wrote in a motion filed Nov. 7.
At issue, the O’Boyles say, is what they call a “secret meeting” by Morgan, Commissioner Joan Orthwein, then-Town Manager William Thrasher and perhaps then-Vice Mayor Robert Ganger at which Morgan was authorized to take action against the O’Boyles.
Jonathan O’Boyle says the minutes of the Town Commission’s meeting on Dec. 12, 2014, make several references to a previous meeting. “I have scoured the record to try to find any such meeting, none was on an agenda and none was discussed at Town Hall,” he said.
Attorney sues for legal fees
Meanwhile, Robert Rivas, the attorney who originally filed the 4th DCA appeal, has severed his professional relationship and is suing Martin O’Boyle over $120,019 in unpaid legal fees.
Rivas, who separately has represented The Coastal Star on First Amendment and other issues, said O’Boyle provoked him into terminating their attorney-client arrangement.
“In late 2017 and early 2018, O’Boyle continually attempted to persuade the law firm to use its good offices to represent him in a course of conduct that would have been dishonest, repugnant, and imprudent,” Rivas said in his lawsuit.
In an email, O’Boyle said he has “great fondness” for Rivas: “He is always invited to our home, and if I were in town, I would invite Rob over for Thanksgiving dinner.”
A previous lawyer, Daniel DeSouza, sued O’Boyle for unpaid bills of more than $150,000. They agreed to settle their dispute for $90,000 in April, but O’Boyle did not immediately pay and in May DeSouza asked the Broward County judge to intervene. Five days later DeSouza dismissed the lawsuit.
O’Boyle’s Citizen Awareness Foundation Inc. was a shell company that he used “fraudulently or for an improper purpose,” DeSouza said in his suit, “namely, O’Boyle used CAFI to inundate the town of Gulf Stream . . . with hundreds if not thousands of public records requests designed specifically to cripple the small community and to trigger public records lawsuits upon the municipality’s inability to keep up.”
O’Boyle and O’Hare started flooding Gulf Stream with requests for public records in August 2013. They made more than 2,000 requests and filed dozens of lawsuits. The town raised property taxes 40 percent to pay for lawyers and additional staff and equipment to handle the requests.