Amended city commissioner complaint shifts focus from slander to libel

Beating the deadline by hours, the attorney representing Sarasota resident and local government critic Kelly Franklin filed an amended complaint and demand for jury trial in her ongoing litigation against Sarasota City Commissioner Kyle Battie.

On July 2, Tampa attorney Richard Anderson filed the complaint in 12th Circuit Judicial Court, re-alleging that Battie defamed her during the Jan. 16, 2024 City Commission meeting by displaying a printout of a racially charged social media post that Franklin said is a hoax.

Franklin is seeking $50,000 in damages.

During a discussion he placed on the agenda at that meeting, Battie displayed the crumpled paper on the meeting chamber’s overhead projection system that included a photo of himself, while serving as mayor, cutting the ribbon at Corona Cigar Co. with co-owner Tanya Borysiewicz.

Courtesy image

Above it read a caption, “Gorillas in the midst of being gorillas are on my mind.” The printout included Franklin’s name and profile picture, identifying her as the alleged poster.

Franklin charged it was all a hoax in retaliation for her very public opposition to the business permitting cigar smoking at outdoor seating on a city-owned sidewalk as in violation of city code. She said the printout of the alleged post was a mashup, lifting the gorillas comment from a September 2022 post of images of gorillas photographed by her during a 2022 photo safari in Africa. 

A brief search of Franklin’s Facebook page revealed that original post.

According to the filing, Franklin’s personal Facebook page was at all times on a public setting, meaning that anyone with access to the Internet could view it, and that “not a single person had reported actually seeing the hoax post on Franklin’s personal Facebook page at any time between Sept. 22, 2023, the purported date of the hoax post, and Jan. 16, 2024.”

Further, Franklin alleges Battie was in possession of the printout in December 2023 and waited nearly a month before making it public, calling the discussion before the commission scripted and rehearsed. 

The amended complaint still alleges the original five counts: defamation, defamation per se, defamation by implication, conspiracy to defame and intentional infliction of emotional distress.

Rather than concentrating on slander, as the original complaint did, the amended filing focuses on libel as a result of the publication of the image, and what Franklin told the Observer is, “The advance planning and coordination it took to contrive to publish the offensive image in the first place, and time where potentially a claim of absolute immunity for legislative activity could be staked.”

On June 12, Judge Stephen Walker granted Battie’s motion to dismiss on the grounds that, as an elected official, he is shielded from litigation for any statements made while serving in his capacity as a commissioner. 

Franklin said the amended complaint also describes what she describes as a "cozy" relationship between Corona Cigar Bar owners Tanya and Jeff Borysiewicz and Battie.

Alleges the complaint, “At all times material to this action, Battie was acting beyond the scope of his employment or function as a city commissioner, in bad faith and with malicious purpose and in a manner exhibiting wanton and willful disregard of Franklin’s rights.”

The amended complaint does not include the city or any other city elected officials or management personnel.

The complaint reads, “Battie is personally guilty of intentional misconduct, as defined in Florida Statute 768.72(a), in that he had actual knowledge of the wrongfulness of his conduct and the high probability that injury or damage to Franklin would result, and despite that knowledge intentionally pursued the course of conduct described herein, resulting in injury or damage to Franklin.”

During its July 1 meeting, the City Commission approved covering $25,000, the city's directors and officers insurance coverage deductible, of Battie’s legal expenses to date. The insurance will pick up the remaining $1,619 of the total.

Commissioners had no choice as Walker ruled that Battie was executing his duties as an elected official on Jan. 16. Had he ruled to the contrary, the city would have had the option to pay the additional $11,619 beyond the $15,000 commissioners approved in February. 

Should a future ruling determine Battie was not acting in his official capacity and that he is found liable in civil court, he may be deemed responsible for future legal fees. City Attorney Robert Fournier told commissioners the insurance carrier would likely deny payment under those conditions. Should Battie be cleared, he could seek restitution of his fees from Franklin, $25,000 of which would be returned to the city.

Since making his presentation in January, Battie has declined to comment to the media, but he did have plenty to say at the July 1 meeting.

“This comes with the territory, and it's shameful for what's gone on as she continues to pursue this,” Battie said. "This is all on her. It’s not on us. It's not on me. It's not on my character because I made my presentation and I left it alone. I never said a thing before or after the ruling, I won't make a statement, but I'll continue to stand my ground as I'm sure they probably will as well.”

This article has been updated to correct the spelling of a name: Tanya Borysiewicz.