Few Panhandle politicians love Facebook as much as Escambia County Commissioner Doug Underhill, and this passion has exhausted the patience of his fellow commissioners and county staff and cost county taxpayers tens of thousands of dollars. And more legal bills may need to be paid.
In 2019, Underhill got upset when Scott Miller pushed back against his criticism of ST Engineering. The commissioner charged that Miller, who once managed the Rolling Hills landfill that DEP had shutdown, and former interim county administrator Larry Newsom were going to make “a ton of money” from the landfill and “run all them black folks off their land (Larry was allowed to resign instead of get fired because he was making backdoor offers to those poor people to buy their houses, once the dump made them sick enough they could not fight).”
Miller sued Underhill for defamation. The other commissioners refused to pay for Underhill’s legal defense because they felt his comments were personal and had nothing to do with the county. They also argued that the online discussion violated the county’s technology policy.
In October 2019, Escambia Circuit Court Judge Stephen Pitre ruled Underhill had immunity from a defamation lawsuit under Florida law because a discussion with the public of county policy, even on Facebook, fell in the “orbit” of a commissioner. The judge wrote the comments on Facebook were part of a “mutually desired debate” and any denial of immunity, including statements “intended to undermine the messenger to attack the message,” would have the effect of chilling communication from public officials.
In 2020, the First District Court of Appeal upheld that ruling, and in January 2021, Underhill asked the board to pay his legal costs, which at the time were $23,465. None of the other commissioners supported paying Underhill’s legal fees. Underhill sued the county.
The daily newspaper’s editorial board came to Underhill’s defense demanding the commissioners pay the legal bill, calling their refusal “yet another sign of a board that seems to be perpetually operating under a cloud of controversy, personal animus and questionable motives.”
What we now know –thanks to transcripts released last week—is the commissioners had been battling with Underhill to release his Facebook posts—the very ones Judge Pitre ruled were part of his job as a commissioner—for over a year, costing the county tens of thousands of dollars and countless hours of the staff’s time.
David Bear had filed a lawsuit against Underhill and the county after Underhill refused to release the public records after numerous requests. For most of 2020, Commissioners Steven Barry, Robert Bender, Jeff Bergosh and Lumon May were trying to get Underhill to fulfill the request, get the county dropped from the lawsuit and save the taxpayers’ money.
Meanwhile, the News Journal championed Underhill and attacked the commissioners. We don’t know if they knew about the expenses the county was footing in Underhill’s other lawsuit with Bear.
The transcript from a January 2020 shade meeting showed how frustrated the commissioners were with Underhill.
Underhill refused to answer a question whether he would turn over his Facebook password to the county so they could fulfill Bear’s public record request. Why?
Underhill answered, “Because I will retain every tool in my toolbox to win this court case. I have every intention of making this as ugly as I possibly can to change the law.”
When pushed for an answer, Underhill said, “And the answer to the question is that at the advice of my attorney, I’ll make those decisions when that time comes. “
Bergosh pointed out that Underhill’s attorney, Ed Fleming, told County Attorney Alison Rogers that he was 99.9% sure the password would be released. “We’re basing a decision on the good faith that your attorney put forward that 99.9%– I just wanted you to affirm that. I mean, would you tell your attorney that and not tell us that? The attorney communicated that with us.”
Underhill replied, “So we are on adversarial sides of the law — of events, of legal events.
Commissioner Steven Barry injected, “It’s not in your public interest.”
Underhill said, “Oh, yes, definitely in my public interest. I believe that this Board and our policy and our previous demonstrations have conspired to keep the citizens in the dark.”
Barry replied, “That’s not our position.”
Underhill said, “Well, that’s not what your position is – “
Barry interrupted, “It’s not about the citizens. That’s not a question you’re being asked. You being asked are you going to provide your logins for your Facebook accounts. Ed tells Alison that you are. Are you telling us you’re not?”
Underhill said, “We’ll see what that request looks like when that request comes in.”
Barry came back, “That’s the request, are you going to give your logins? What’s more –”
Underhill cut him off. “ You can ask it 17 ways if you the answer is going to be the same.
Commissioner Robert Bender asked, “So are they are not public records?”
Underhill said, “Read the statements that we sent to the Court.”
Commissioner Lumon asked the county attorney if she had something in writing from Fleming. She said that had two phone conversations but nothing in writing.
Underhill goes off. “Well, here’s the reason why. Because of the statement with, things like, okay. I’m not going to sit here and tell you, oh, yeah, I’m going to go with whatever and then what comes down the pipes is different, okay. David wants to have a complete electronic copy of my Facebook. You’re a damn fool if you give somebody that. There’s absolutely no way to be able to maintain the integrity of that once you hand it over. That’s why you hand over things in screenshots that cannot be manipulated or if they are it’s visible.”
Remember Pensacola is a city of grudges. Underhill then attacks David Bear’s father. “So, you know, there would need to be substantial controls in place that would prevent that from happening. And we all know, Lewis Bear has done much worse to his political opponents than manipulate some data. I can think of 20 people that I could hire for 1% of what he spent to get me out of office that would do this service for him.”
Then the commissioner goes “spooky.” “Actually, my friends wouldn’t. But, I mean, if I’ve got those friends so do other people. So there will be — you guys are not familiar with that trade. I am extremely familiar with that trade.”
He continued, “I will not be participating in anything that would enable or allow my political opponents to modify a document in which I’m not able to prove it to be wrong. And I’m not going to get in a he said/she said with people much, much richer with much bigger mouths than me –”
Commissioner Bender said, “Doug, I don’t think any of disagree with giving it to him in a format that was not manipulative.”
Underhill said, ”Well, don’t ask me if I will agree to something until I see in writing exactly what that thing is and then I don’t have to lie to you and I don’t have to back off on anything.”
Commissioner May’s temper flared. “Alison, I don’t give a shit what Doug does. What can we do? What do we have the power to do? If I have the power to release whatever I have the power to release as a Board, here’s my vote, do it and go. He’s got to give an account for what he does. I’m going to give an account for what I do. And if we have that ability, we have that ability, if we don’t, just like Steve said, we say it and we get it right and we don’t have the ability.”
Rogers said, “Technologically, without his cooperation, I don’t have the ability –”
May said, “Then it’s dead then.”
While the meeting continued, Underhill refused to cooperate.
In March 2022, Federal Judge Casey Rodgers issued an order upholding a magistrate judge’s recommendation from October that Underhill must turn over all remaining Facebook messages. He was given seven days to do so.
