OFFICE OF THE STATE ATTORNEY

FOURTH JUDICIAL CIRCUIT

311 West Monroe Street
Jacksonville, Florida 32202

CLOSING MEMORANDUM

Access to public records has been described as a “cornerstone of our political culture.” In re
Report & Recommendations of Judicial Mgmt. Council of Fla. on Privacy & Elec. Access to
Court Records, 832 So. 2d 712, 713 (Fla. 2002). The right to access the records of state and local
governments is a right guaranteed by the Florida State Constitution. Chapter 119, Florida
Statutes enforces the right of access to public records. In the absence of a statutory exemption,
this right of access applies to all materials made or received by an agency in connection with the
transaction of official business used to perpetuate, communicate, or formalize knowledge.
The purpose behind the right and enforcement “is to allow Florida’s citizens to discover the
actions of their government.” 1

The State Attorney’s Office began an investigation of Nassau County Attorney Michael Mullin
(Mullin) after allegations arose during civil litigation, strongly suggesting Mullin committed
criminal acts by knowingly violating Florida’s public records and open government laws 2. The
State’s investigation found evidence that Mullin committed criminal acts by permitting Nassau
County’s systemic failure to preserve public records, failing to truthfully and timely respond to
Raydient’s public records request, and allowing the deletion of text messages constituting
public records. Mullin committed these violations as a public appointee of the Nassau County
Board of County Commissioners (BOCC), who was charged with giving legal advice to the
BOCC. Further, the evidence supports that Mullin committed these violations of the public
records law to give the County what he must have believed was an advantage in the ENCPA
dispute, and to hinder Raydient’s efforts to discover the truth associated with his actions as a
public official.

1 Bent v. State, 46, So.3d 1047, 1049 (Fla. 2016) (quoting Christy v. Palm Beach Cnty. Sheriffs Office, 698 So.2d
1365, 1366 (Fla. 4th DCA 1997))
2 The applicable laws for this investigation are set forth in “Addendum A”, attached hereto.

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 I. Michael Mullin

In his most recent term as County Attorney, Mullin has served in his role since 2015. Mullin
previously served as County Attorney for twenty-five years, leaving in 2007 for private practice.
He was admitted to the Florida Bar in 1980 after graduating from the Stetson School of Law. He
does not have any prior criminal history.

II. Background and Timeline

Raydient began developing approximately 24,000 acres of land in Nassau County. This
development includes the Wildlight community. Master planning for the ENCPA has been
ongoing since 2007. In 2017, a dispute arose between Nassau County and Raydient over the
terms of the ENCPA. Specifically, the parties disagreed over who was responsible for
constructing and maintaining specific infrastructure inside the ENCPA.

In February of 2018, a delegation of public employees and officials from Nassau County went to
Tallahassee to oppose legislation they asserted would impact the ENCPA. 3 Members of the
delegation exchanged numerous text messages before, during, and after the trip. 4 The messages
concerned the dispute between Raydient and Nassau County and potential courses of action the
County might take in challenging Raydient.

In October 2018, Raydient submitted a four-page public records request to Nassau County.
Raydient requested twenty-one different types of records, from June 1, 2016, onward, related to
the ENCPA and proposed state legislation that Nassau County asserted would impact the
ENCPA. On October 25, 2018, Nassau County subsequently produced a response that did not
include email or text message communications.

The public records which Raydient sought ultimately surfaced after Mullin terminated the
County’s Budget Director, Justin Stankiewicz (“Stankiewicz”) in December 2018. Shortly after
his termination, Stankiewicz filed a grievance against the County, claiming he was fired because
he refused to delete text messages responsive to Raydient’s public records request. 5 Stankiewicz
attached pages of text messages (hereafter “the Stankiewicz Text Messages”) to his grievance.

3 The Board of County Commissioners voted, in an open meeting, to go to Tallahassee. The delegation
went to address House Bill 1075 and Senate Bill 324.
4 Text messages obtained from Justin Stankiewicz included the following individuals: (1) County

Commissioner Pat Edwards, (2) County Commissioner Danny Leeper, (3) County Commissioner Justin
Taylor, (4) County Attorney Mike Mullin, (5) County Manager Shanae Jones, (6) Justin Stankiewicz, and
(7) Taco Pope.
5 Stankiewicz’s grievance was 3 pages long and contained 62 pages of attachments.

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Regardless of Mullin’s motive for terminating Stankiewicz or Stankiewicz’s belief as to why he
was terminated, it is evident the text messages Stankiewicz attached to his grievance constitute
public records. Even though these text messages were directly responsive to public records
requests made by Raydient to the County, their existence – known to Mullin – was denied by
the County at Mullin’s direction.

In August 2021, Circuit Court Judge James Daniel issued an order granting summary judgment
in favor of Raydient and Rayonier in the public records lawsuit. Judge Daniel specifically stated
in his order, “The undisputed facts show that the county represented to Plaintiffs on multiple
occasions that these text messages did not exist.” The Court found there was no genuine issue
of material fact over whether: (1) the plaintiffs made a public records request, (2) the County
received the request, and (3) the requested records were public records that did exist. In his
order, Judge Daniel stated:

Based upon this record, no reasonable trier of fact could conclude that the
County properly responded to Plaintiffs' public records request by producing the
requested text messages in a reasonable and timely manner

Judge Daniel found that Nassau County violated Chapter 119 regarding Raydient’s public
records request as a matter of law.

III. Florida Law on Chapter 119 Violations

Florida law provides that Chapter 119 violations can be based on “strict liability” or “knowing
conduct.” Offenses committed by way of strict liability or without an intent to commit the act
are noncriminal infractions or civil violations in Florida. To prove a strict liability infraction, the
State need only prove that the public officer violated any of the provisions of Chapter 119. A
strict liability violation is punishable by a fine not exceeding $500. A criminal violation of
Chapter 119 occurs when the public officer knowingly violates the public records laws and is
punishable as a first-degree misdemeanor.

IV. Evidence

The ongoing civil litigation between Raydient, Rayonier, Nassau County, and Mullin has
yielded considerable sworn testimony under oath. The testimony establishes that text messages
existed between the commissioners and Mullin regarding the subject matter of the Raydient
dispute and that these messages constitute public records. The evidence is clear that Mullin
knew that commissioners were not retaining texts and implicitly condoned the practice by
advising them they had no obligation to retain “transitory” [or in his words “transient”]
messages; without further explaining that their communications – regardless of the medium

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used -- about Raydient were indeed public records and required to be retained. Mullin was
ambiguous and contradictory in his sworn testimony regarding his interpretation of the status
of many of the records in question.

As County Attorney, it is unreasonable to conclude that Mullin was not familiar with the public
records law. On the contrary, based on his experience and position within the County, he
surely appreciated that these text message communications constituted public records.
Similarly, Mullin also appreciated the potential adverse public relations and legal ramifications
of these text messages becoming public.

V. Mullin’s Conduct

The evidence supports that Mullin’s acts rise above simple strict liability. Mullin not only
committed public records violations as a public officer, but did so knowingly by (1) overseeing
the County’s systemic failure to preserve text messages, (2) failing to truthfully and timely
respond to Raydient’s public records request, and (3) allowing the deletion of text messages
constituting public records. As noted previously, a public officer who commits a knowing
violation of Chapter 119 is a criminal offense.

A. Failing to Produce the Stankiewicz Text Messages

Instead of ensuring retention and compliance with the law, Mullin allowed the routine deletion
and destruction of records. Mullin advised commissioners they were at liberty to delete
“transitory” messages without clearly cautioning them of their obligations to retain their
communications regarding county business.

Despite being included on the relevant text threads, Mullin additionally learned that
Stankiewicz had possession of texts responsive to Raydient’s public records request during a
meeting on November 6, 2018. These texts, the “Stankiewicz Text Messages,” were public
records. The messages: (1) were sent between County employees; (2) were sent while the
employees were on official County business; and (3) involved an ongoing dispute between the
County and Raydient. Florida public records laws required the text messages to be preserved
as outlined in Florida's Records Retention Schedule.

When Mullin dictated responses to Raydient’s public records requests, he specifically denied
the existence of responsive records that he knew existed. Undoubtedly, Mullin appreciated the
damaging nature and content of these communications – both to the commissioners' reputations
and the lawsuit the county was defending. These actions, and the motive for concealing these
messages, indicate a knowing and willful violation of the law.

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 B. Failing to Prevent the Destruction of Text Messages

In addition to knowingly failing to produce records responsive to Raydient’s public records

request, Mullin permitted a systemic failure to preserve public records. When Stankiewicz met
Mullin to discuss the text messages, Mullin was aware of the County’s obligations under
Florida public records laws. As County Attorney, he knew the County’s obligation to comply
with Florida’s public records law. Instead of ensuring retention and compliance with the law, he
allowed the records' routine deletion and destruction.

VI. Mullin’s Defense

Mullin claims that neither he nor the other county commissioners intentionally deleted the text
messages at issue and that a good faith effort was made to comply with Raydient’s public
records request. Mullin points to the steps taken by the county in an effort to comply with the
public records request which included providing over 20,000 responsive emails and over 1,000
pages of other documents. Concerning the text messages at issue, Mullin claims that once he
became aware of the existence of the text messages, the county took proactive steps to
determine whether any of the text messages were in their possession so they could be provided
to Raydient.

During the effort to locate the text messages at issue, Mullin claims that he discovered he had
unknowingly set his phone to automatically delete his text messages after 30 days. Mullin
further points to an outdated County public records policy in existence at the time, which did
not account for the advances in technology to address the retention of text messages
constituting public records. Mullin claims that although he admittedly did not retain the text
messages as required under the law, his failure was not an intentional violation, and thus not
criminal.

While Mullin could attempt to rely on this defense at trial, it is unreasonable to conclude that
Mullin was not familiar with the requirements of the public records laws. Mullin has been a
practicing attorney for over 40 years and has now served in the role of County Attorney for over
30 years. As the County Attorney, Mullin was not only responsible for ensuring that the County
lawfully comply with public records requests, but was also responsible for ensuring that both
he and the members of the BOCC take appropriate action to retain public records as required by
law. Perhaps the most compelling reason why this defense fails is that Mullin was himself a
party to these text message communications. Based on his experience and position within the
County, it is unreasonable to believe that he did not recognize that these text message
communications constituted public records that needed to be preserved.

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 VII. The Other Commissioners and Nassau County’s Remedial Actions

As noted in footnote 4, the text message communications at issue occurred between Mullin and
other elected commissioners on the BOCC. Today, none of these individuals remain as elected
commissioners on the BOCC. While these commissioners were obligated to preserve the text
messages at issue, based on the state of the evidence, a reasonable probability of conviction does
not exist to support the institution of criminal charges against the commissioners. This is based
on each commissioner being able to credibly claim that because Mullin, as the County Attorney,
was included in the text message communications, they either believed that if the text messages
were public records, Mullin would have preserved them, or that Mullin would have specifically
advised them that these text communications were public records and directed each of them to
preserve their text messages. Mullin did neither.

It should also be noted that on October 16, 2019, through resolution 2019-153, the BOCC took
remedial measures to address the retention of text messages and other electronic
communications that are public records. This revised public records policy was specifically
designed to prevent an event like this from occurring in the future. BOCC officers and
employees are now prohibited from “using private, non-County owned or leased mobile
devices to send or receive SMS messages, text messages, instant messages, or MMS (including
multimedia and picture messages) to conduct County business.” By limiting communications
involving County business to only County-issued mobile devices, the BOCC can now
automatically ensure that a record of all electronic communications is preserved.

The revised policy further requires that if any officer or employee receives on their
private/personal mobile device any unsolicited SMS messages, text messages, instant
messages, or MMS (including multimedia and picture messages) that are public records, they
are required to preserve and retain all communications regarding County business and to
promptly transfer those communications to the custody of the County, either by forwarding the
communication to the individual’s County e-mail account, a County-issued mobile device, or to
provide the communication directly to the custodian with instructions that the communication
is preserved.

The entire revised public records policy can be found here.

VIII. Disposition

The evidence supports that Mullin committed criminal violations of Florida’s public records
law. Mullin has also subjected the taxpayers of Nassau County to potential attorneys’ fees that
may very well be awarded to Raydient at a later date in the civil lawsuit.

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While Mullin may contend that his conduct amounts to only a civil violation of the public
records laws, what is indisputable is that through his actions, Mullin has disqualified himself
from continuing to serve as County Attorney.

Thus, in order to achieve the necessary result of separating Mullin from his position as the
County Attorney; by agreement and to avoid protracted litigation in criminal courts, and in
acknowledgment of Mullin’s lack of any prior criminal record, the State of Florida has agreed to
forego the initiation of formal prosecution and resolve the matter as follows:

1. Mullin will resign as County Attorney effective March 31, 2022.

This disposition provides finality and certainty in its resolution and allows Nassau County the
opportunity to move forward with retaining new counsel.

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 Addendum A

Applicable Florida Law and Definitions

A. Sunshine Laws (F.S. 286.011)

Florida’s Government in the Sunshine Law provides a right of access to governmental

proceedings of public boards or commissions at both the state and local levels. 6 The law is
equally applicable to elected and appointed boards. It applies to any gathering of two or more
members of the same board to discuss some matter which will foreseeably come before that
board for action. All governmental entities in Florida are subject to the requirements of the
Sunshine Law unless specifically exempted.” Sarasota Citizens for Responsible Government v.
City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010).

There are three basic requirements of section 286.011 of the Florida Statutes:

1) Meetings of public boards or commissions must be open to the public;

2) Reasonable notice of such meetings must be given; and

3) Minutes of the meetings must be taken and promptly recorded.

Accordingly, private meetings between board members about board business would violate the
Sunshine Law. The Attorney General’s Office has also determined that private discussions via
email between board members about board business are prohibited under the Sunshine Law. 7

B. Public Records Laws (F.S. 119)

These laws provide a right of access to the records of state and local governments and private
entities acting on their behalf. The right of access applies to all materials made or received by an
agency in connection with the transaction of official business, which are used to perpetuate,
communicate, or formalize knowledge unless statutorily excluded.

6 Government-in-the-Sunshine Manual, 2021 Edition.

7 This analysis would likely also apply to text message communication. See Linares v. District School Board
of Pasco County, No. 17-00230 (Fla. 6th Cir. Ct. January 10, 2018) (Holding that members of an advisory
committee created to make recommendations to the superintendent on school attendance boundaries
violated the Sunshine Law when they exchanged private electronic communications (emails and
Facebook messages) relating to committee business). Also, the Attorney General’s Office has advised
members of a city board or commission not to engage on the city’s Facebook page in an exchange or
discussion of matters that foreseeably will come before the board or commission for official action
because such conduct would violate the Sunshine Law. Fla. Atty Gen. Op. 09-19

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The Florida Supreme Court has interpreted “public records” very broadly. Shevin v. Byron,
Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). The content, nature, and
purpose of the electronic communication determines whether an item is a public record not the
technology used to send the message. 8 Florida Courts have held that:

Strong public policy reasons also support the conclusion that

electronic information stored on privately-owned devices may be
subject to disclosure under the Public Records Act. The purpose of
both Article I, section 24 and Chapter 119 is to ensure that citizens
may review (and criticize) government actions. That purpose
would be defeated if a public official could shield the disclosure of
public records by conducting business on a private device.

O'Boyle v. Town of Gulf Stream, 257 So. 3d 1036, 1042 (Fla. 4th DCA 2018). Therefore, it is clear
that private text messages between elected officials are public records involving public business.

Florida Statute 119.10(1)(b) sets forth the criminal penalties associated with violations of
Chapter 119.

(1) Any public officer who:

(a) Violates any provision of this chapter commits a noncriminal

infraction, punishable by fine not exceeding $500.

(b) Knowingly violates the provisions of s. 119.07(1) is subject to

suspension and removal or impeachment and, in addition, commits a
misdemeanor of the first degree, punishable as provided in s. 775.082 or
s. 775.083.

(2) Any person who willfully and knowingly violates:

(a) Any of the provisions of this chapter commits a misdemeanor of

the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) Section 119.105 commits a felony of the third degree, punishable as

provided in s. 775.082, s. 775.083, or s. 775.084.

C. Informal Attorney General Opinion Regarding Text Messages

In March of 2010 the Attorney General’s Office issued an informal advisory opinion to the
Department of State that text messages, and other electronic communications, should be treated

8 Government-in-the-Sunshine Manual, 2021 Edition. P. 81.

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as public records when government agencies conduct business through them. 9 Attorney
General McCollum advised the Florida Department of State as follows:

The Department of State currently maintains administrative rules

defining the retention schedule for government agency email. There are
no required retention guidelines, however, for other types of electronic
communication because the administrative rules describe them as
transitory. This is no longer accurate in today's world where business is
conducted on a variety of communication platforms. The same rules that
apply to email should be considered for electronic communication
including Blackberry PINs, SMS communications (text messaging), MMS
communications (multimedia content), and instant messaging conducted
by government agencies. 10

• Resolution 2019-153 new public records revision.

9 Fla. Atty Gen. Op. March 17, 2010.

10 Id. (Emphasis added).

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