By Daniel Ducassi, FloridaBulldog.org
The watchdog group that pursued a two-year long public records lawsuit against New College of Florida and various trustees appointed by Gov. Ron DeSantis has abandoned its effort to extract records documenting the ideological takeover of the school in January 2023, now claiming there are no records left to pursue.
New College of Florida and the Florida Center for Government Accountability (FLCGA) signed a settlement on May 8 in which the school agreed to pay $125,000 for the center’s attorney fees and costs while admitting no wrongdoing. The school also agreed to provide phones to trustees to conduct public business along with additional transparency training.
The case had been set for a trial in June, at which time the FLCGA was expected to call influential anti-DEI activist and trustee Christopher Rufo to testify, among other board members. Rufo, who lives in Washington state, was appointed by the governor to spearhead the effort for a conservative make over at the public liberal arts college.
The case had largely been going well for the center. The chair of New College’s board, Palm Beach lawyer Debra Jenks, had admitted to frequently destroying records and the judge in the case rejected key legal arguments from the college about why it was entitled to keep certain records hidden.
Despite that win, the FLCGA, led in settlement negotiations by public access director Michael Barfield, who is not a lawyer, decided to give up on trying to track down remaining records or obtain a definitive ruling on whether the school or trustees were violating state public records laws. The records request had aimed to unearth the details of trustees’ communications and suspected coordination as they launched their ideological coup against the prior administration of the school, axing the president and installing former Florida House speaker Richard Corcoran to lead the tiny institution at an annual salary of $1 million.
Barfield pointed to the school’s concession in the settlement as the bigger win than taking the case to trial and trying to prove school officials broke the law. He argued that the permanent injunction requiring the school to give trustees phones to use for public business and provide additional transparency training is the best outcome they could achieve.
$125,000 IN LEGAL FEES TO BARFIELD PAL
In exchange for those concessions and the $125,000, the school and trustees avoid the public scrutiny of a trial and the prospect of exposing its highest profile trustee to an uncomfortable spotlight, with Rufo skipping out on even being deposed.
The $125,000 payment would go primarily toward paying the FLCGA’s attorney, an old colleague of Barfield, Andrea Flynn Mogensen. Mogensen has a long history of working with Barfield on public records cases, and collecting hefty legal fees, prior to the formation of the FLCGA.
Barfield told Florida Bulldog he didn’t see a better path forward, despite confidence that the trial court judge would rule in the center’s favor.
“If someone is hellbent on not producing actual content of text messages, it’s difficult, unless you have someone on the other end who did preserve and is willing to produce it,” Barfield said.
But in fact the FLCGA did have someone on the other side who had testified in a deposition seen by Florida Bulldog that he’d preserved such records.
Matthew Spalding, a DeSantis-appointed trustee and an administrator at Michigan’s private Hillsdale College, a small, Christian, classical liberal arts institution, indicated in a deposition that there were additional communications with Alex Kelly, DeSantis’ deputy of chief of staff at the time, that he had not produced – but had preserved. Spalding was shown messages he had provided from Jan. 31, 2023 with Kelly and Corcoran.
Spalding was the trustee who raised the idea of hiring Corcoran, whom he described as a longtime friend, for the school’s new president during the pivotal Jan. 31, 2023 board meeting ousting the prior president.
TRUSTEE SAYS HE “PRESERVED” RECORDS
A key legal position of New College is that records from before that date were not public – even if they documented a trustees’ correspondence about public business – since Spalding hadn’t yet signed his oath of office. Twelfth Circuit Judge Stephen Walker, however, rejected that position in a February ruling.
Spalding said he assumed he did have further communications with Kelly that hadn’t been produced, since it was Kelly that he was communicating with about his appointment. Attorney Mogenson asked Spalding if he was told to preserve those records, regardless of whether he believed he had to produce them for the request.
“I’ve preserved all of them, yes,” Spalding said.
Barfield hinted that the road ahead appeared to be harder going: “When they brought in a lawyer who was much more aggressive about protecting Fifth Amendment rights and stalling… that’s where remedies end from a civil point of view.”
And he said there was the possibility that the case goes to trial, “and we didn’t get anything other than, ‘Well, you can’t prove your case because they deleted records,’” calling that potential outcome “a huge risk.”
Barfield said the school repeatedly vowed to appeal any adverse decision, and that New College officials “intended to drag it out as long as they could.” The risk of losing on appeal was high, he argued, because the state’s appellate courts have been stacked with conservative appointees in recent years.
“You compromise when you can to advance the law and transparency, and I think we accomplished that in this case,” Barfield said. “Sometimes you have to take incremental steps to advance the law and the mission of transparency.”
Ultimately, he said there wasn’t really anywhere left to go: “we fought hard, we fought and exhausted every opportunity that we could that we thought was reasonable, before we could get something that that mattered, and at the end of the day, we think that a permanent consent decree matters.”
The school, meanwhile, hasn’t backed down from its stance on keeping certain records secret.
New College of Florida president Richard Corcoran and the school’s general counsel, former Florida Senate president Bill Galvano, did not answer questions about the case after the settlement was announced.
“The parties entered into a voluntary settlement agreement that provides for the dismissal of the case with prejudice, no admission of liability, and, most importantly, no concession of New College’s legal position,” a statement from the school read.
School officials did not provide any explanation about why they decided to settle.
LITTLE RISK TO FLGCA
Barfield said those who might suggest the center was letting New College officials off the hook “don’t know what the evidence is. They don’t know what the value of a consent decree is, and nor do they appreciate the risk of appellate review.”
Barfield said the center is taking on risk by filing these sorts of lawsuits to begin with.
“We’re the ones that risk, if we don’t bring a case with evidence, that we get hit with attorneys’ fees and costs,” he said.
But the law only provides for that outcome if the lawsuit was filed in order to trigger a violation of the public records law or for a frivolous reason. It’s not clear how that would apply to a case where a judge already found there was enough evidence to take the matter to trial.
Either way, Barfield argued that the ball is now in the hands of Sarasota County State Attorney Ed Brodsky, where New College is located.
“I think there’s sufficient evidence to warrant a criminal investigation,” Barfield said, pointing to statements about routinely deleting messages. “The totality of the circumstances as based on the sworn deposition testimony, the findings of Judge Walker, that there is sufficient evidence for the State Attorney to investigate whether there were criminal violations of the Public Records Act.”
He also said this would not be the center’s last foray into holding New College officials accountable.
“We’re not blinking,” Barfield said. “Just wait for the next few weeks and see what unfolds about what we’re doing with holding New College accountable, not relating to this case, but to things that they’ve done since then. We’re not going away by any stretch of the imagination.”
But members of a social media group consisting of New College of Florida alumni expressed their discontent with the outcome of the records case.
“A trial would have been better,” one wrote.
“They should have all been removed as Trustees since it was proven they can’t be trusted,” another opined. “Slap on the wrist.”
“Punishment to actual folks breaking the law = zero,” another voice chimed in. “It’s sure nice that Admin & trustees & other guilty parties get new phones. May I have one too?”
Leave a Reply