BELLEAIR BEACH -- Judge James R. Case last Friday signed orders dismissing one defendant and one of the counts against one of the two remaining defendants in the Clearwater Gazette & Beach View's lawsuit against Mayor Mike Kelly of Belleair Beach.
Actually, Kelly is a defendant in his role as an official of the city. His remaining co-defendant, Tina Skaggs, is being sued as an individual. The other defendant, Angela Eisenberg, a city employee, was dismissed at the behest of her attorney, Jim Yacavone, who apparently saw it was pointless to offer any further defense.
However, Kelly's lawyer, Tom McGowan, who is also representing Skaggs, the mayor's highly paid assistant, persists in his attempts to defend First Amendment and 14th Amendment claims by the plaintiff.
In accepting offers of settlement, Robert Walker, attorney for the Gazette, trimmed the lawsuit and filed an amended complaint that succinctly states the causes of action -- freedom of the press violations.
Walker added in a claim for nominal damages, although the Gazette originally sought no damages and in fact suffered no damages.
The request for nominal damages may bring in Florida League of Cities representation. The insurance company was not brought in to defend Kelly at the outset because there was no claim for damages.
A count pertaining to alleged public records violations by Kelly was accepted by the Gazette in settlement.
In the case of Eisenberg, she agreed to allow the court to enjoin her from discriminating or retaliating against the Gazette and requiring her to distribute and dispose of the newspaper distributed by the Gazette in the same fashion and manner as any other public newspaper allowed to be distributed in the City Hall of the City of Belleair Beach.
The Yacavone proposal for settlement was apparently based on his estimate that such a move made sense. He came to the case recently, reviewed the file that had accumulated for more than a year including depositions and apparently decided that the most expeditious and fair thing to do was to get his client out of the lawsuit.
The suit was triggered by copies of the newspaper being thrown away at city hall because of reporting in the paper that was not favorable to city officials. The suit contends that discarding the papers prevented it from public distribution which had been the custom for many years.
The reason the Gazette originally sought no monetary damages in the suit was because, Walker said, "the paper is free to the intended recipients and the case is about acknowledging the wrong and preventing it from happening again."
Walker is a strong defender of First Amendment rights and advocate of open government.
Even without monetary damages, the city faces considerable expense in the lawsuit.
Besides paying two lawyers -- McGowan has been on the case since September, 2003, and Yacavone was hired recently to defend Eisenberg -- if the city loses the lawsuit, under the provisions of the law, it will have to pay costs and fees of the plaintiff, which now amount to more than $70,000.
So far, it is unclear what McGowan has charged the city for his services.
Walker has said that one of the causes for mounting legal expenses has been the dilatory tactics of McGowan. "Much of the delay over the course of the last year has been occasioned by the tactics of the defendants in filing multiple motions to dismiss, opposing discovery, resulting in a number of hearings that have gone substantially in favor of the Gazette."
In the face of the ever mounting expense of the lawsuit to Belleair Beach taxpayers, one resident, Rudy Davis, pointed out at a public meeting in August that "The city is wrong to pursue this case."
In his remarks to the City Council Davis also said, "We should have apologized and not spent one dime of the taxpayers' money to defend someone's ego. Now we have already spent thousands of dollars and it hasn't even gone to court."
Chuck Pollick, publisher of the Clearwater Gazette & Beach Views, said, "My intent in this case was to stop their acts harming the newspaper and public. They could have avoided all of this by being reasonable from the get-go. They were not."
When the case does go to court, Walker has compiled further information from depositions, including a former city police officer, that is devastating, including eye-witness testimony of events that took place in city hall in regard to throwing the newspapers away.
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