notice to gainesville city atty thomas arden+response-telephone recording-november-2011

8/10/2019 Notice to Gainesville City Atty Thomas Arden+response-telephone recording-November-2011

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City o GainesvilleOffice o the City ttorney

Marion J. Radson. Thomas B ArdenCity Attorney Ronald D Combs

Shayla L McNeill"Stephanie M MarchmanDaniel M Nee .Nicolle M Shalley

.Board Certified City, County Elizabeth A Waratuke.& Local Government Law

November 8, 2011

Mr. Neil J Gillespie8092 SW II S

thLoop

Ocala, FL 34481

RE: Public Records Request dated November 4,2011

Dear Mr. Gillespie:

This is in response to your Public Records request addressed to me, and dated November4,2011.

The only written document reflecting the investigation of Mr. Bauer is the memo youreceived a copy of in response to your prior request. I have verified with Sgt. Armagost that hehas no investigative notes, records of interviews or discussions, etc. as you requested.Therefore we have fully complied with your prior request.

I tappears that the original letter you sent, received on November 24,2009, was, at thattime, treated and responded to as a public records request. Therefore, the letters from Claudia

Hendrix, dated December 14,2009 and December 21 2009 with attached records, were the fullresponses sent. I have verified with the Chiefs office that no other response was sent at thattime.

If you had desired a response to the portion discussing methods for making a complaintof criminal fraud, this was apparently not understood and was simply viewed as backgroundinformation pertaining to the request for public records contained in the last paragraph of thatletter.

Thank you for your clarification that the documents provided by you, contained on yourwebsite, and previously sent to you need not be provided again.

As I am not the custodian of records for Sgt. Armagost's personnel file, that request willbe handled separately by Ms. Claudia Hendrix, the GPD Records Custodian. She will beproviding this response to you, and any further inquiries or communications regarding thisrequest should be directed to her.P O Box 490, Sta 46 PHONE (352) 334-5011 *Utilities Legal ServicesGainesVille, Florida 32627 FAX (352) 334-2229 P O Box 147117, Sta. A l38200 East University Ave., Rm 425 City Hall and the City Attorney's Office Gainesville, Florida 32614Gainesville, Florida 32601 are closed on Fridays PHONE: (352) 393-1010

Hours: M-Th, 7-6 FAX: (352) 334-2277Hours: M-F, 8-5


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Mr. GillespieNovember 8, 2011Page 2

There are no Standard Operating Procedures related specifically to investigation o casesalleging exploitation o the elderly or disabled. Furthermore, in this case the initial inquiry was todetermine i the general parameters o the facts provided might constitute a violation o law, andafter confirming with the State Attorney's Office that they would not, no further investigation(nor reference to any procedures governing same) was warranted.

There are no records o any sort addressing the issues o whether your tape recording otelephone calls violates Florida law, other than the brief mention contained in Sgt. Armagost'smemo. Furthermore, this office has not been requested to provide, and has not provided, anyopinions in this regard.

Attached please find copies o e-mails concerning you or your communications.

The only additional documents contained in my file on your case, other than thosepreviously provided, are the attached two handwritten notes from the Chief, which wereanswered in verbal meetings with him prior to the issuance o his letter to you dated October 20,2011.

Finally, to dispel an apparent misunderstanding, while Sgt. Armagost's memo did, indeedreference your letter dated November 23, 2009, as it was the earliest date in the file obackgrollnd docllmentation provided to him, his investigation actually went to documents andincidents predating that letter, all the way up to and including your letter dated August 31, 2011.

Thus, it does not indicate that Sgt. Armagost investigated the "wrong" complaint, but rather thathe investigated the entire complaint, from beginning to end, and then reviewed same with theState Attorney.

Furthermore, it is my understanding that Sgt. Armagost and any other personnel involvedin this matter were unaware, until your mention o it, that Mr. Bauer and/or his spouse may havebeen affiliated with Gainesville Fire Rescue. Even i they had known, this would not, in any way,affect the investigation in the manner you express concerns about.

Very truly yours,

~ = =/?Jz,

THOMAS B. ARDEN,Police Legal Advisor/Assistant City Attorney II

TBA:sw

Cc: Chief Tony Jones, GPDClaudia Hendrix, Records Custodian, GPDSgt. Greg Armagost, GPO


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City o GainesvilleOffice o the City ttorney

Marion J. Radson. Thomas B. ArdenCity Attorney Ronald D. Combs

Shayla L. McNeill'Stephanie M. MarchmanDaniel M. Nee .

Nicolle M. Shalley.Board Certified City, County Elizabeth A. Waratuke.& Local Government Law

November 15,2011

Mr. Neil J. Gillespie8092 SW 115

thLoop

Ocala, FL 34481

RE: Your Public Records Request to Gainesville Police Department

Dear Mr. Gillespie:

This letter is in response to your letter dated November 11, 2011, addressed to me. On review oyour letter, we have concluded there are no legal questions or issues warranting further responseby this office.

Your remaining public records request, related to Sgt. Armagost's personnel file, will be handledby Claudia Hendrix, Records Custodian for the Gainesville Police Department.

Very truly yours,

Thomas B. Arden,Assistant City Attorney III

Police Legal Advisor

TBA:sw

cc: Police Chief Tony JonesLt. Halvosa, CIDSgt. Armagost, CIDClaudia Hendrix, Records Custodian

P.O. Box 490, Sta 46 PHONE (352) 334-5011 *Utilities Legal servicesGainesville, Florida 32627 FAX (352) 334-2229 P.O. Box 147117, Sta. A-138200 East University Ave., Rm 425 City Hall and the City Attorney's Office Gainesville, Florida 32614Gainesville, Florida 32601 are closed on Fridays PHONE: (352) 393-1010

Hours: M-Th, 7-6 FAX: (352) 334-2277Hours: M-F 8-5


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Mr. Neil J. Gillespie8092 SW l

thLoop

Ocala FL 34481

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November 4, 2011

VIA Email [email protected] First Class Mail

Thomas B. Arden, City AttorneyCity of Gainesville, City Attorney's OfficePO Box 490 Station 46Gainesville, Florida 32602-0490

RE: Public Records Request, Neil Gillespie to Gainesville Police Department (GPD)

Dear Mr. Arden:

It appears the Gainesville Police Department (GPD) has not properly responded to my recordsrequest of October 24, 2011, copy attached. This is my attempt to resolve the noncompliance. I

am also concerned with a false accusation made by Sgt. Greg Armagost against me in an undatedmemo that states Mr. Gillespie records his phone calls in violation ofFSS . The memoprovided me by Ms. Hendrix appears incomplete due to poor scanning or copying.

My records request clearly requests copies of all records in this investigation of Mr. Bauer .'This investigation' refers to Chief Jones' letter of October 20,2011. The records sought areinvestigative records of the GPD that show how the investigation was conducted.

Public records are defined by 119.011 (12) as all documents, papers, letters, maps, books, tapes,photographs, films, sound recordings, data processing software, or other material, regardless ofthe physical form, characteristics, or means of transmission, made or received pursuant to law or

ordinance or in connection with the transaction of official business by any agency.

In a letter dated November 23, 2009 I made a complaint to Chief Jones/GPD about Mr. Bauerbut have no record of a response from either him or the GPD. Ms. Hendrix responded December14,2009 to a records request, and again December 21,2009, but her response is limited torecords, and not my complaint. If Chief Jones and/or the GPD responded to my complaint in2009, kindly forward me a copy of the response. Otherwise I will take that to mean that my 2009complaint was ignored by the GPD.

Ms. Hendrix provided me by email November 3,2011 three pages of records purportedly inresponse to my records request of October 24, 2011. This response appears insufficient. Youwere copied cc on the email of Ms. Hendrix and already have her responsive records.

Ms. Hendrix referred me in her email to documents n my possession and my website. This is notresponsive to my request for investigative records of the GPD that show how the investigationwas conducted. This would include investigative notes, records of interviews or discussions, etc.


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Thomas B. Arden, City Attorney Page - 2City of Gainesville, City Attorney's Office November 4, 2011

For the purpose of clarification, I am not seeking records found on my website. Nor am I seekingrecords of communication that I sent to the GPO, or the response of Chief Jones of October 20,2011. I already have those records. I am seeking records not in my possession.

Also to clarify, I am not seeking copies of communication with Ms. Hendrix from 2009. Ialready have those records. I am seeking records not in my possession, including any substantiveresponse to my November 23, 2009 letter to Chief Jones/GPD.

All calls on home office business telephone extension (352) 854-7807 are recorded for qualityassurance purposes pursuant to the business use exemption of Florida Statutes chapter 934,section 934.02(4)(a)(I) and the holding of Royal Health Care Servs. Inc. v Jefferson-Pilot LifeIns Co. 924 F.2d 215 (11th Cir. 1991). Sgt. Armagost's assertion, contained in an undated GPDInter-Office Communication that Mr. Gillespie records his phone calls in violation of FSS , isfalse. Someone from the GPO placed an unsolicited call to (352) 854-7807 on October 12, 2011.The male caller provided his name, but the name was unintelligible. Sounds like that may havebeen Sgt. Armagost. A voice recording immediately infqrmed the caller that This call is beingrecorded for quality assurance purposes. When the caller objected to being recorded I askedhim to respond in writing and the call ended.

The Reporters Committee For Freedom of the Press provided the Royal Health Care case law ontelephone recording. From there a Florida attorney researched the issue for me and concludedthat my telephone recording practice is lawful.

Another thing about Sgt. Armagost's undated GPD Inter-Office Communication to Chief Jones,it mentions in paragraph one an investigation o f ...an alleged criminal complaint Mr. Gillespiefiled with your office November 23, 2009 . From this sentence it appears Sgt. Armagost mayhave investigated the wrong complaint. Yes, there was a complaint made November 23, 2009,for which I do not have a response from GPD. But the most current complaint was made to ChiefJones/GPD by letter dated August 31, 2011, so it is unclear why Sgt. Armagost did not mentionthat request for investigation of Bauer under chapter 825, Fla. Stat. and other appropriate law.

As to Sgt. Armagost's accusation that I record my phone calls in violation ofFSS, kindlyprovide any records that mention that, including any opinion issued by your office. In order todetermine Sgt. Armagost's education, background and training, this is a records request for hispersonnel file. I question his qualifications to nlake that accusation, as well as his qualificationsto investigate a fairly complex complaint under chapter 825 Fla. Stat. and the fraud statutesagainst an attorney. This is also a request for the GPD Standard Operating Procedures (SOP) forinvestigating the kind of allegations I made against Mr. Bauer.

In addition, this is a request to you, Mr. Arden, and your office, the Gainesvil le City Attorney'sOffice, for records that mention me. Email dated October 27, 2011 from Lt. Halvosa to Ms.Hendrix, cc to you and others, states Also, Tom Arden has knowledge of Mr. Gillespie aswell as our review of the allegation. Again, I am seeking records not in my possession. I am notseeking records found on my website. Nor am I seeking records of communication that I sent tothe GPD, or the response of Chief Jones of October 20, 2011. I already have those records. Also,


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Thomas B. Arden, City Attorney Page - 3City o f Gainesville, City Attorney s Office November 4, 2011

I am not seeking copies of my communication with Ms. Hendrix from 2009. I already have thoserecords too.

In conclusion, I am well aware that prior to becoming a lawyer Mr. Bauer was employed by the

Gainesville Fire Rescue Department (GFR). His wife Toya Bauer also worked for GFR, and maystill be so employed. It is also common knowledge that the police and fire rescue personnel areprotective o f each other, may conceal wrongdoing by their comrades, or thwart investigationsthereof. It appears the relationship between the GPD and GFR may have pre judiced theinvestigation o f Mr. Bauer. Thank you.

cc: hief Jones (via email to [email protected])

Enclosures


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VIA US CERTIFIED MAIL, RRRArticle No. 7010 1670 0001 9008 0536

October 24, 2011

Chief Tony JonesGainesville Police Department413 NW 8th Ave.Gainesville, FL 32601

RE: Request for criminal prosecution of attorney Robert W. Bauer2815 NW 13t Street, Suite 200E, Gainesville, FL 32609-2865

Dear Chief Jones:

Thank you for your letter of October 20, 2011 informing me that the criminal investigation ofMr. Bauer is closed, and the investigator's conclusion was that there w s no evidence to support aconclusion that Mr. Bauer committed any criminal actions. A copy of your letter is enclosed.

Kindly provide me copies of all records in this investigation of Mr. Bauer. This is a publicrecords request made under chapter 119 et seq., Florida Statutes, or any other controlling orapplicable legal authority.

Public records are defmed by 119.011(12) as all documents, papers, letters, maps, books, tapes,photographs, films, sound recordings, data processing software, or other material, regardless ofthe physical form characteristics, or means of transmission, made or received pursuant to law or

ordinance or in connection with the transactionof

official business by any agency_

Time is of the essence. This information is needed ASAP for a petition due November 7 2011 inthe Florida Supreme Court, case no. SCI 1-1622.

Please contact me i f you have any questions.

Sincerely,

1 i e

8092 S 115th LoopOcala, Florida 34481Telephone: (352) 854-7807

Enclosure


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ainesvil le Police epartmentPO Box 125

Gainesville FL 32602-1250352 334 2400

www.gainesvillepd.org

October 20,2011

Mr. Neil J. Gillespie8092 SW 115 th LoopOcala, FL 34481

Dear Mr. Gillespie:

This letter is in response. to your letter received September 6, 2011 and your follow-up letteri t j ~ t . : i Y ~ d October 17 2011 requesting criminal prosecution of attorney Robert W. Bauer foralleged violations of Chapter 825, Florida Statutes, pertaining to alleged. exploitation ofhandicapped and/or elderly persons.

As the State Attorney, Mr. Cervone had pointed out to you in his letter dated May 6, 2011 theGainesville Police Department has jnvestigatory jurisdiction over some or all of the reportedoccurrences. Therefore, based upon your letter, an investigation was commenced by ourInvestigations Bureau. The delay in response to your initial letter arose from the need to permitthis inv.estiga,tion to be conducted and concluded.

. . . . ' ' '. \:

~ i f ~ v e s t i ~ a t i o n was conducted by an experienced sergeant, with a strong investigativebackground. After review of voluminous documentation, Including that which you submitted,and all available information, the investigator s conclusion was that there was no evidence tosupport a conclusion that Mr. Bauer committed any criminal actions. The investigating sergeantthen reviewed his investigative results and conclusions with both his supervisor, the lieutenant incharge of the Investigative Bureau, and with the State Attorney s Office, both of whomconcurred with these conclusions. The investigator and reviewers of the investigator s conclusionwere aware of and considered the positions you expressed o n l ~ r n i n g your own beliefs that Mr.Bauer s actions were criminal in nature.

Under the circumstances, we must consider this investigation closed. Under othercircumstances, I wOJ lld suggest you determine whether bar grievance procedures, which canaddress conduct short of criminal conduct, would be appropriate, but it appears you have alreadyrequested such a bar investigation, which resulted in a finding by the Florida Bar of no probablecause.

OUR VISION:The

City o f Gainesville will se t thes t a n d a r ~

o f exce(len c:ef ~ r

a top tenm d s i z e ~

AmericancitY-

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notice to gainesville city atty thomas arden+response-telephone recording-november-2011

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