Deposition alleges withholding of public records in lawsuit involving School Board members
More than a year ago, Brevard School Board member Jennifer Jenkins launched a lawsuit against then-School Board Chair Matt Susin and the school board. The suit accused Susin of illegally withholding public records about a redistricting effort that pushed her out of her district — thus making her unable to seek reelection this year in District 3.
Fourteen months into the suit, a former staffer of a county commissioner alleged during a deposition that Susin and Brevard County Commissioner John Tobia, who helped provide funds to carry out the redistricting, withheld records before responding to the records requests that Jenkins filed last June and August ― which Susin and Tobia deny.
Christopher Davis, Tobia’s administrative aide from March to June 2023, also alleged in a May 2 deposition that texts from Susin to Tobia included misogynistic comments toward Jenkins, and were among those withheld.
Tobia and Susin ― who were deposed about six months earlier in November 2023 — had denied that they had left anything out of their responses pertinent to Jenkins' requests for communication related to school board business and redistricting.
The school board voted on redistricting in May 2023. It led to Jenkins, who was the five-member board's only Democrat, and School Board member Katye Campbell, who was the one Republican who often voted with Jenkins, being pushed out of their districts.
Tobia became involved in the school board redistricting process when he proposed, and the Brevard County Commission approved, transferring $32,072 in American Rescue Plan Act money from his ARPA account to the Brevard County Supervisor of Elections Office to cover some of the costs resulting from the school board redistricting process. Tobia said he wanted the Brevard County Commission districts to align with the Brevard School Board districts to avoid confusion from residents.
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Ex-staffer's allegations against Tobia
A key issue in this case centers on the interpretation of what's a public record, because not every email or text exchange between Susin and Tobia would be considered one, based on Jenkins' public records request. Jenkins sought records of phone calls, texts and emails between Tobia and Susin related to "any communication about school board and school board redistricting."
In the end, the decision on what records are public may have to be made by Circuit Court Judge Scott Blaue, who was assigned to the case, and his potential private review of the emails and texts that are in dispute.
During his deposition, Davis said it was part of his job to fulfill records requests that Tobia received — something Tobia denies.
But when Tobia directed Davis to produce a transcript of the messages between Tobia and Susin, and to include only messages related to school board redistricting, Davis said, he pushed back. Davis said omitting messages conflicted with the training he had received about public records and Florida's Sunshine Law, as did creating a separate transcript, rather than providing screenshots.
Davis said he told Tobia that the things he was requested to do amounted to "altering a record, and that that also would not be responsive to the request, which is why I didn't fulfill it."
Ultimately, another staffer in Tobia's office — legislative aide Brian Bond — offered to fulfill the request. Davis alleged that Bond deleted some text messages from Tobia's phone that could be perceived as "unscrupulous, that would not be good, you know, if it was to come out in the public that these two men had said these things about this woman," referring to Jenkins.
"He altered the text message chain and … sent a transcript that matched the altered text message chain," Davis said. "But you can read the messaging. It's obvious that there are messages missing in the conversation."
Bond said in an interview with FLORIDA TODAY that he and Tobia "provided all the messages responsive to the public records request," and that he deleted no messages from Tobia's phone.
"Our response was absolutely, fully responsive to the request," Bond said.
Brevard County Attorney Morris Richardson ― who attended Tobia's two depositions, representing the county's interests ― said he is confident that Tobia "responded appropriately to the public records request."
Richardson said his office was involved in the fulfillment of the public records request, and he never saw any indication of misogynistic comments made by Tobia.
However, Tobia and his commission office staff — and not Richardson's public records staff — handled the text messages found on Tobia's personal cellphone. Richardson said he assisted in processing the request, but did not view the entire text message chain on Tobia's cellphone. Richardson noted that not every correspondence to or from a public official is a public record, if the correspondence does not pertain to public business.
Tobia also promised during a phone conversation with Susin to forward to Susin a copy of the transcript and the records provided to Jenkins, so their records could "be in alignment," Davis said.
During Susin's deposition, he went back and forth for nearly two hours with Jenkins' attorney, Jessica Travis, about what public records he had or had not provided. Ultimately, Susin said he turned over all applicable records to his attorney once Jenkins filed the lawsuit, although he didn't feel that some of his messages fell under the purview of the request.
Both Susin's attorney, Randy Mora, and Davis' attorney, Douglas Marks, declined to comment on the lawsuit.
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Tobia disputes former employee's allegations
In an interview with FLORIDA TODAY, Tobia disputed Davis' account of what transpired.
Tobia described Davis' allegations as "completely fabricated."
Tobia said the records he provided were "complete, exhaustive and accurate," adding that he had not "altered, erased or withheld any public records."
Tobia said he never referred to Jenkins or any other woman in misogynistic language, and that nothing in the texts was derogatory to Jenkins or called her names.
Tobia fires employee after allegations
Tobia also alleges that Davis took personal passwords off Tobia's desk at his Palm Bay commission office. That, Tobia said, led to him firing Davis.
Tobia said he filed a complaint with the Brevard County Sheriff's Office about that matter, although he does not know the status of that investigation.
FLORIDA TODAY reached out to BCSO regarding the investigation, but did not hear back.
A July 3, 2023, letter from Tobia to Davis that is in Davis' personnel file obtained from Brevard County through a public records request said: "Due to recent events, your employment is henceforth terminated due to cause, effective immediately."
Tobia's letter was written less than a week after Davis submitted a letter of resignation to Tobia, dated June 27, 2023, indicating that his resignation would have been effective on July 12, 2023.
Additionally, a June 28, 2023, email from Davis to Bethany Prasad, Tobia's chief of staff, indicated that Davis had a "hostile" phone discussion with Tobia. Davis said he considered it to be "inappropriate" for him to return to work until the county's information technology department completed an investigation into allegations that Davis was "leaking documents" from Tobia's office to other government offices — allegations that Davis denied.
After leaving his position in Tobia's office, Davis said in his deposition that he took a job with the U.S. Department of Veterans Affairs as a budget and travel clerk.
Tobia said Davis made untrue claims in his deposition about his official title in Tobia's office and the extent of his training in public records law.
During his November depositions, Tobia said, after he responded to Jenkins' public records request, Susin told him that he'd received a similar request. Tobia said he mailed Susin a copy of what he provided to fulfill the request but doesn't know what Susin did with it.
Tobia said he initially incorrectly processed the request for text messages by typing up a transcript of the pertinent exchanges between himself and Susin, handling it this way because he wanted to fulfill the request quickly, and because a staff member, Bond, was not in the office at the time to take care of the matter.
Referring to what he did, Tobia said, "obviously, that was not the correct way" to properly fulfill the request, adding: "That was my fault."
Ultimately, Tobia said, both the screenshots and the transcripts of the texts were submitted to fulfill the request.
Tobia said, while he fulfilled the records requests, he did not provide texts between himself and Susin that he believed were not pertinent to the records request.
"Mr. Susin and I don't exclusively talk about Miss Jenkins" in text messages to one another, Tobia said.
On questioning from Travis, Tobia denied that he or anyone on his staff deleted text messages from his phone, and said he did not ask any staff member to do so.
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Tobia said he doesn't have a county-issued cellphone, and uses a personal cellphone for his texts. Because of that, the county's information technology department staff did not pull the records of Tobia's text messages on their own.
Susin this year is running for reelection as a Brevard School Board member in District 4, a race in which there are four other announced candidates. Tobia cannot seek reelection as a District 3 county commissioner because of term limits, and instead is running in a Republican primary for Brevard County supervisor of elections against the current officeholder, Tim Bobanic.
Are public officials required to submit all text messages?
Davis said that he told Tobia the response to the public records request needed to include all of his communication with Susin, including texts unrelated to redistricting. This is because they were "intermingling records" or having multiple conversations in the same space.
Tobia and Susin both argued during their depositions that they fulfilled the records request by including everything related to school board business, and that they were at liberty to exclude texts unrelated to the topic because they fell outside of the purview of the request.
But because the records were allegedly intermingled, it's not quite that clear.
Michael Barfield, director of public access and investigative reporter at Florida Center for Government Accountability, said that, if the public records request was limited in scope, other items in a text or email chain could legally be omitted from the response.
A person responding to a records request has "no legal obligation to produce something that was not requested," Barfield said.
Which is why broader public records requests may be advisable to get the maximum potential amount of records, Barfield said.
But, in any case, "it’s never appropriate or lawful to remove or alter information from a public record," Barfield said.
Barfield noted that, to alter a public record is a third-degree felony, according to Florida Statute.
What was omitted by Tobia and Susin isn't exactly clear.
Davis did, however, recall during his deposition a conversation that he said Bond took special care to delete, one that pertained to Jenkins' body and sexual activity. Davis said the text ― which Davis indicated Susin wrote ― said Jenkins "wore tight shirts on purpose to get attention, and that she wanted it, and that she was a whore."
In discussing that matter in his deposition, Davis said: "Matt Susin had sent text messages saying derogatory things about Ms. Jenkins that they felt were not related to the public records request and, therefore, were not included in the response."
Bond said he never saw a text like that in Tobia's phone.
Travis said one concern she has is the lack of checks and balances regarding use of personal cellphones by public officials in their communications involving public matters.
"It should not be the burden of citizens to sue their elected officials to demand transparency," she said.
Finch Walker is the education reporter at FLORIDA TODAY. Contact Walker at [email protected]. X: @_finchwalker.
Dave Berman is business editor at FLORIDA TODAY. Contact Berman at [email protected], on X at @bydaveberman and on Facebook at www.facebook.com/dave.berman.54
This article originally appeared on Florida Today: Deposition by former Brevard County employee alleges records withheld
