Sarasota hires law firm to defend Barwin in potential litigation stemming from personal email usage

Source: The Herald Tribune
By Nicole Rodriguez – Staff Writer

SARASOTA — The city has hired an outside lawyer to defend City Manager Tom Barwin in looming litigation stemming from his years-long use of private email to conduct city business — and it could cost taxpayers thousands of dollars.

The Palm Beach Gardens-based law firm of Schwed, Kahle and Kress, which specializes in insurance defense and business litigation, was recently retained to represent Barwin in a forthcoming lawsuit that accuses the city manager of violating his duties to properly store and archive public records and breaking the state’s open government, or Sunshine Law, which is intended to guarantee that citizens have access to public records and the decision-making of governmental officials.

The legal maneuver, which could cost taxpayers more than $20,000, comes after the Herald-Tribune reported last week on Barwin’s extensive use of the private email account.

“When the city is aware of possible litigation involving a public official, a process is triggered in which the insurance carrier provides an attorney to defend that employee. Lloyd Schwed with Schwed, Kahle, Kress is now representing the city manager and the city of Sarasota in this matter,” city spokeswoman Jan Thornburg said in an email on Tuesday. “With the insurance coverage, the maximum out-of-pocket cost to the city will be capped at $25,000. By having legal representation early on, prior to formal litigation, it is anticipated legal costs will be minimized.”

A public records request made by a former City Commission candidate in June for city-related emails on Barwin’s Gmail account, which was fulfilled last week, revealed at least 500 messages to and from Barwin regarding city matters. The messages included electronic communications from his deputy, the mayor, city spokeswoman, private citizens and media outlets — with responses from Barwin to numerous messages.

Michael Barfield, a paralegal consultant and president of the Florida American Civil Liberties Union, in 2016 made a similar request for Barwin’s personal emails, but was reportedly told the records didn’t exist. Barfield made similar requests in 2012 and 2013, he said.

Barfield, who plans to sue the city for Barwin’s alleged mishandling of the records, notified the city last week of his intention to file a suit.

“I’m going to go forward with the lawsuit, because as I said to Mr. Schwed, I simply have no faith in Mr. Barwin’s representations at this point,” Barfield said. “He’s been given opportunity after opportunity, and the time to take the public records act seriously was years ago, not after his hand was caught in the cookie jar.”.

In an email on Tuesday from Schwed to Barfield, Schwed assures Barfield that Barwin’s personal devices are being combed for any public records previously missed.

“The city of Sarasota has already produced to you numerous documents located after a diligent search of Mr. Barwin’s cell phone and personal email account,” Schwed wrote. “However, the city acknowledges that it is possible that some items may have been overlooked, so a renewed search will be conducted.”

The examination of Barwin’s devices by Schwed’s firm should be completed by Sept. 30, according to the correspondence.

“The city of Sarasota and Mr. Barwin are hereby formally advising you that they will fully comply with your request and, therefore, there is no need for litigation,” Schwed wrote.

Too little, too late, Barfield responded to Schwed.

“I wish I could trust Mr. Barwin’s representations that he will comply with the Public Records Act,” Barfield wrote. “His past representations, left uncorrected for years, were untrue and I have no confidence in his credibility.”

Barwin, who has denied using his private email account to conduct city business, read a statement on Monday at the City Commission’s first meeting since the revelations proclaiming his commitment to transparency and open government law.

“Both the city of Sarasota and I are strong believers in the importance of Florida’s Sunshine Law, and it has always been our intention to fully comply with any proper and lawful request for public records,” Barwin said. “Any documents covered by the Sunshine Law that have been overlooked will be produced as soon as we can gather them.”

City commissioners have remained largely mum. Mayor Liz Alpert last week expressed her faith in Barwin’s integrity. Commissioner Shelli Freeland-Eddie and Alpert could not be reached for comment on Tuesday. Vice Mayor Jen Ahearn-Koch and commissioners Willie Charles Shaw and Hagen Brody declined to comment.