MANATEE COUNTY – On Thursday, April 1, the Florida Department of Law Enforcement (FDLE) provided a copy of the 25-page investigative report that details the recent investigation that found no evidence of criminal conduct regarding four Manatee County Commissioners.
On March 19, FDLE spokesperson Jeremy Burns provided a case summary regarding the investigation initiated in response to a criminal complaint filed by paralegal Michael Barfield. You can read Barfield’s complaint here:
“In December, the state attorney for the 12th Judicial Circuit requested FDLE’s assistance with reviewing a citizen complaint concerning allegations of Sunshine Law violations and possibly other law violations by several Manatee County commissioners. FDLE Agents met with the complainant who alleged that Manatee County Commissioners James Satcher, George Kruse, Vanessa Baugh and Kevin Van Ostenbridge conspired to reverse a controversial land purchase and to fire the Manatee County administrator,” the case summary stated.
“FDLE initiated a preliminary inquiry to determine if any criminal violations occurred. After the review of records provided by the complainant and conducting several interviews, there was no information obtained to substantiate that a criminal violation occurred,” the FDLE case summary stated in conclusion.
When contacted regarding the previously issued case summary, Burns said FDLE considered the investigation concluded and closed.
Filed Thursday, Michael Barfield’s legal response addresses the invocation of Fifth Amendment rights. Photo: Joe Hendricks
BRADENTON – On Thursday paralegal Michael Barfield filed a response to the motion attorney Morgan Bentley filed on Monday seeking a protective order for County Commissioner Kevin Van Ostenbridge.
In his response summary, Barfield states, “Van Ostenbridge claims he has produced all records responsive to the records request but wants to avoid questions about his production by invoking his Fifth Amendment rights due to a pending criminal investigation. As set forth below, there is a factual dispute about whether Van Ostenbridge has produced all records. Moreover, a blanket assertion of Fifth Amendment rights is not permitted under Florida law.”
Barfield’s response also states: “The contention that Van Ostenbridge produced all records responsive to the records request prior to the amended complaint is disputed by the parties. As one example, Van Ostenbridge’s response to the amended order to show cause, filed on Dec. 23, claimed ‘all items’ sought in the records request had been produced. However, as recently as Jan. 26, Van Ostenbridge produced records responsive to the request that had not previously been produced.”
“Two days later, Van Ostenbridge produced another version of the same record but with a different filename. An evidentiary hearing is required to resolve the dispute about whether all records have been produced. It is inconsistent for Van Ostenbridge to claim he has produced everything while seeking shelter under the Fifth Amendment to prevent any adversarial inquiry to test his claim of full compliance,.” according to Barfield’s response.
County Commissioner Kevin Van Ostenbridge seeks to invoke his Fifth Amendment rights if deposed under oath. Photo: Joe Hendricks
In his response, Barfield also states, “Van Ostenbridge makes an unsupported claim that it appears that the deposition is intended to elicit questioning related to Ch. 286, Sunshine Act issues. The scheduled deposition is for the purpose of testing the assertion that all records responsive to the request have been produced.”
“As relevant here, Van Ostenbridge became the actual and exclusive custodian of public records by using private electronic devices to communicate about public business. Barfield is certainly entitled to ask questions about the creation, existence and retention of records responsive to the request,” the response states.
Existing case law
Citing previous case law, Barfield’s response also addresses Fifth Amendment privilege: “It is not disputed that ‘witness may assert the privilege against self-incrimination during discovery in a civil case when he has reasonable grounds to believe that his answers would provide a link in the chain of evidence necessary for a criminal conviction.’ However, Van Ostenbridge has prematurely asserted his Fifth Amendment rights. As Belniak v. McWilliams and other cases make clear, a witness cannot make a blanket assertion of the Fifth Amendment to avoid questions.”
Citing a Third District Court of Appeal ruling, Barfield’s response states, “A blanket assertion of Fifth Amendment privilege not available in civil proceedings.”
The response then notes, “To properly invoke the privilege, a party must respond to each specific question by asserting the privilege. Once properly invoked in response to specific questions, the court then determines whether the responses to the questions posed will potentially implicate the party asserting the privilege. When a trial court is presented with such a contention, it must exercise its discretion and also determine whether it is reasonably possible that the answers could evoke a response ‘forming a link in the chain of evidence which might lead to criminal prosecution.’”
Citing a Third District Court of Appeal ruling, Barfield’s response states: “Deponent must assert his Fifth Amendment right to each particular question, which must then be certified to the court for resolution at a hearing.”
Citing existing case law, Barfield’s response states: “Party is required to make a specific objection to a particular question and, at that time, assert his Fifth Amendment privilege.”
Citing case law again, Barfield’s response states: “As explained by the Fifth District: ‘Not every question asked in a deposition or interrogatory will implicate the Fifth Amendment privilege. However, if Respondent believes a question may lead to incriminating evidence, she (or he) can make a specific objection to the question, assert her (or his) Fifth Amendment privilege and, at that time, the trial court, if requested, can exercise its discretion in determining whether it is reasonably possible that the answer could evoke an incriminating response.’”
In closing, Barfield’s response states, “It is not the witness who determines whether the answers fall within the privilege. Rather, only after Van Ostenbridge asserts his Fifth Amendment privilege to specific questions posed during a deposition does a court address the issue and conduct the test outlined in Belniak. For the above reasons, the motion for protective order should be denied as premature.”
County Commissioner Kevin Van Ostenbridge wants to avoid or delay being questioned under oath by Michael Barfield. Photo: Joe Hendricks
BRADENTON – Manatee County Commissioner Kevin Van Ostenbridge plans to invoke his Fifth Amendment rights if he’s deposed under oath by paralegal Michael Barfield.
On Monday, attorney Morgan Bentley filed a motion seeking a protective order from Judge Charles Sniffen. Bentley’s motion references the Fifth Amendment to the U.S. Constitution, which provides that “No person shall be compelled in any criminal case to be a witness against himself.”
In response to Bentley’s motion, a Zoom hearing has been scheduled before Judge Charles Sniffen on Friday, March 5, at 1:30 p.m. The hearing seeks Sniffen’s ruling on the protective order sought by Bentley and Van Ostenbridge.
Bentley’s motion pertains to the public records requests Barfield began making of Van Ostenbridge and fellow commissioners Vanessa Baugh, George Kruse and James Satcher on Nov. 20.
Barfield began submitting his records requests one day after Van Ostenbridge made a motion, with no advance public notice or previous commission discussion, to put County Administrator Cheri Coryea on notice that her proposed termination would be decided in early December. Van Ostenbridge made that motion two days after he, Kruse and Satcher took office.
On Dec. 7, Barfield filed a civil lawsuit against Satcher as part of his ongoing efforts to obtain all of the records he requested, many of which since been provided. Filed with the Circuit Court of the Twelfth Judicial Circuit in Manatee County, Barfield’s lawsuit names Van Ostenbridge and Baugh as co-defendants. Barfield’s lawsuit is a civil case. It is not a criminal case, but the Florida Department of Law Enforcement (FDLE) is independently conducting a related criminal investigation.
Deposition opposed
When being deposed, the subject of the deposition is questioned under oath – usually in a non-courtroom setting – with a court reporter present. The court reporter then produces a verbatim transcript of the deposition that serves as sworn preliminary testimony to be provided to the judge and others before a case goes to trial.
“Defendant Kevin Van Ostenbridge, by and through his undersigned attorneys, hereby files his Motion for Protective Order related to the deposition noticed for March 12. Wherefore, defendant Kevin Van Ostenbridge, respectfully requests that this court enter a protective order prohibiting the taking of his deposition, or in the alternative, requiring that the deposition be taken after the conclusion of the FDLE investigation with limiting instructions as to the scope of questioning to be allowed,” Bentley stated in his March 1 motion.
Attorney Morgan Bentley is representing Kevin Van Ostenbridge. Photo: Bentley Law Firm
“Van Ostenbridge has produced all items requested by plaintiff. Nonetheless, on February 19, plaintiff filed his notice of taking deposition, scheduling the deposition of Van Ostenbridge for March 12, at 10 a.m. Such deposition is improper in the context of the current litigation, the purpose of which was to obtain documents. As such documents have been produced, there is no ongoing purpose and no need to take the deposition of Van Ostenbridge other than to annoy and harass,” Bentley’s motion states.
“Moreover, there exists a pending Florida Department of Law Enforcement investigation. The FDLE investigation centers on the same issues as those involved in this case. As such, during the pendency of that investigation, Van Ostenbridge will necessarily invoke his Fifth Amendment rights in response to questions related to any matters subject to the investigation,” Bentley stated in his motion.
In his motion, Bentley also stated, “Further, the instant case is solely in regard to Ch. 119 Public Records issues. It appears that the deposition is intended to elicit questioning related to Ch. 286, Sunshine Act issues. This line of questioning would obviously be irrelevant to any Public Records issues and not designed to lead to the discovery of admissible evidence.
“Given these issues, it follows that any deposition of Van Ostenbridge on these issues will be fruitless. Plaintiff’s insistence at proceeding with the deposition, over counsel’s objection, is merely further indicative of his intention to annoy and harass Van Ostenbridge,” Bentley stated in his motion.
Barfield records request
When contacted Tuesday, Barfield said, “The litigation is related to the commissioners’ compliance with Florida’s open-government laws, which includes the Public Records Act and the Government in the Sunshine law. The purpose of the pending litigation is to ensure that all records responsive to the initial request have been produced. I have many questions about the production of records and whether it was a full and complete production. That is why I scheduled Kevin Van Ostenbridge’s deposition.”
Paralegal Michael Barfield wants to depose Commissioner Kevin Van Ostenbridge under oath. Photo: Joe Hendricks
When making his initial records requests, Barfield sought from Baugh, Kruse, Satcher and Van Ostenbridge all emails, text messages and other electronic forms of communication between Nov. 3 and Nov. 20. He also sought a detailed phone log of all calls made or received for that same period.
Kruse, Satcher and Van Ostenbridge were elected on Nov. 3. According to Barfield, they then became subject to the Public Records Act and the Sunshine Law that night, even though they were not sworn into office until Nov. 17. Baugh was reelected on Nov. 3 and as an incumbent commissioner she was already subject to the Public Records Act and Sunshine Law at that time.
The special county commission meeting on Nov. 19 was scheduled at Van Ostenbridge’s request, and in response to his desire to discuss the county’s legal rights in the event of a COVID-19-related federal shutdown. During that meeting, Van Ostenbridge then proposed terminating Coryea and he made a motion to put Coryea on notice her termination would be addressed at another meeting in early December. Kruse, Satcher and Baugh supported Van Ostenbridge’s motion. Commissioners Reggie Bellamy, Misty Servia and Carol Whitmore opposed it and the motion passed by a 4-3 vote.
During that Nov. 19 meeting, Bellamy said the previously unannounced efforts to oust Coryea appeared to be “premeditated.” Whitmore described the termination efforts as “orchestrated.” Servia described them as “reckless” and “dangerous.”
Those initial terminations efforts were later abandoned, then reinitiated for a second time by Kruse in late January and finally settled with a $204,000 separation agreement Coryea and the commission mutually agreed to on Feb. 23.
On Thursday morning, Barfield filed his response to Bentley’s March 1 motion.
