MANATEE COUNTY – County Commissioner Kevin Van Ostenbridge intends to invoke his Fifth Amendment rights when deposed under oath by Michael Barfield on Friday, March 12, according to court filings.
Barfield, a paralegal, is representing himself in a civil case he filed in 12th Judicial Circuit Court on Dec. 7, 2020, against Van Ostenbridge and commissioners Vanessa Baugh and James Satcher, claiming they violated Florida’s public records law.
During a hearing Friday afternoon conducted via Zoom, Judge Charles Sniffen denied Van Ostenbridge’s March 1 motion for an order protecting him from being deposed.
During the deposition, Van Ostenbridge will invoke his Fifth Amendment right to refuse to answer questions that could incriminate him, according to Van Ostenbridge’s attorney, Morgan Bentley.
The Florida Department of Law Enforcement (FDLE) is conducting an independent criminal investigation of the case. The Fifth Amendment to the U.S. Constitution provides, “No person shall be compelled in any criminal case to be a witness against himself.”
Barfield began making public records requests of Van Ostenbridge and fellow commissioners Baugh, Satcher and George Kruse on Nov. 20. That was one day after Van Ostenbridge made a motion at a county commission meeting to put then-County Administrator Cheri Coryea on notice that her proposed termination would be discussed and decided in early December.
Van Ostenbridge made that motion two days after he, Satcher and Kruse took office, and with no advance notice given to the public or the commission as a whole. Baugh, Satcher and Kruse supported the motion, which was later rescinded at the request of Kruse, who is not named as a co-defendant in the case.
Coryea and the county commission agreed to a $204,000 separation settlement on Feb. 23, which ended by mutual agreement her tenure as county administrator.
Motion for protective order argued
In the motion denied by the court, Bentley wrote, “Van Ostenbridge has produced all items requested by plaintiff. Nonetheless, on Feb. 19, plaintiff filed his notice of taking deposition. Such deposition is improper in the context of the current litigation, the purpose of which was to obtain documents. As such documents have been produced, there is no ongoing purpose and no need to take the deposition of Van Ostenbridge other than to annoy and harass.
“Moreover, there exists a pending Florida Department of Law Enforcement investigation. The FDLE investigation centers on the same issues as those involved in this case. As such, during the pendency of that investigation, Van Ostenbridge will necessarily invoke his Fifth Amendment rights in response to questions related to any matters subject to the investigation,” Bentley stated in his written motion.
In his response to Bentley’s motion, Barfield wrote: “Van Ostenbridge claims he has produced all records responsive to the records request but wants to avoid questions about his production by invoking his Fifth Amendment rights due to a pending criminal investigation. As set forth below, there is a factual dispute about whether Van Ostenbridge has produced all records. Moreover, a blanket assertion of Fifth Amendment rights is not permitted under Florida law.
“The contention that Van Ostenbridge produced all records responsive to the records request prior to the amended complaint is disputed by the parties. As one example, Van Ostenbridge’s response to the amended order to show cause, filed on Dec. 23 claimed ‘all items’ sought in the records request had been produced. However, as recently as Jan. 26, Van Ostenbridge produced records responsive to the request that had not previously been produced.
“Two days later, Van Ostenbridge produced another version of the same record but with a different filename. An evidentiary hearing is required to resolve the dispute about whether all records have been produced. It is inconsistent for Van Ostenbridge to claim he has produced everything while seeking shelter under the Fifth Amendment to prevent any adversarial inquiry to test his claim of full compliance,” Barfield stated in his response.
“The litigation is related to the commissioners’ compliance with Florida’s open-government laws, which includes the Public Records Act and the Government in the Sunshine law. The purpose of the pending litigation is to ensure that all records responsive to the initial request have been produced. I have many questions about the production of records and whether it was a full and complete production. That is why I scheduled Kevin Van Ostenbridge’s deposition,” Barfield stated after the motion was denied.
When being deposed, the subject is questioned under oath, usually in a non-courtroom setting, with a court reporter present. The court reporter then produces a verbatim transcript that serves as sworn preliminary testimony to be provided to the judge and others before a case goes to trial.
As the county’s District 3 commissioner, Van Ostenbridge represents Anna Maria, Bradenton Beach, Holmes Beach, Cortez, the northern portion of Longboat Key and portions of Bradenton.
