The nonprofit Citizens Awareness Foundation was founded to “empower citizens to exercise their right to know,” according to its mission statement. The South Florida millionaire backing the foundation hired one of the state’s most prominent public records activists to run it, rented office space, and pledged to pay the legal fees to make sure people had access to government records.
But a review of court records and internal communications obtained by the Florida Center for Investigative Reporting shows that the foundation is less interested in obtaining records and educating the public than in working with a partner law firm to collect cash settlements from every lawsuit filed.
Citizens Awareness Foundation and the O’Boyle Law Firm set up shop in the same building at about the same time. The two share more than an address. They also share personnel, money and a mandate to sue as many state and local government agencies and businesses as they can for violating Florida’s Sunshine law.
Since January, the foundation and a sister group, Our Public Records LLC, have filed more than 140 lawsuits in 27 counties, including one against a Marco Island charter school, court records show. A lawyer with the O’Boyle Law Firm filed all of the cases FCIR reviewed.
The close partnership between Citizens Awareness Foundation and the law firm prompted the foundation’s first executive director, Joel Chandler, to quit over concerns that the coordination “may be criminal, fraudulent and unethical,” according to an affidavit he filed. Chandler raised questions about possible “self dealing” between the nonprofit and the for-profit law firm, a practice that could violate federal rules governing tax exempt organizations.
Both organizations are housed at the offices of the Commerce Group, the Deerfield Beach real estate development firm owned by millionaire Martin O’Boyle. O’Boyle, 63, is best known for inundating the Palm Beach State Attorney’s office with more than 1,300 public records requests, and for suing the wealthy town of Gulf Stream, where he lives, after filing 1,200 public records requests.
Citizens Awareness Foundation’s board is comprised of employees of the O’Boyle Law Firm and the Commerce Group. The law firm is headed by Martin O’Boyle’s 27-year-old son Jonathan. According to an email from one board member, the foundation had a quota to refer a minimum of 25 lawsuits per week to the law firm. O’Boyle denies that there was any quota at the foundation.
In interviews with the Daily News, Martin O’Boyle defended the practices of the foundation and his son’s firm. He accuses Chandler, a well-known open government activist, of misrepresenting the foundation and actively attempting to “destroy” him and his son.
“I’m not a shyster and I’m not making millions,” O’Boyle said, “and if anybody wants to see, come look.”
The foundation has threatened so many engineers with legal action that the Florida Engineering Society sent a warning to members. “It is debatable whether they are truly seeking records or just attempting to obtain legal fees for a violation of this requirement,” Craig Varn, the organization’s general counsel, said in the May 23 memo.
The road-building industry in Florida also has been swamped with public records requests and lawsuits from Citizens Awareness Foundation. “It’s a sad game of ‘gotcha,’ the only purpose of which is to generate an attorney fee claim rather than obtain any actual public records,” said Bob Burleson, president of the Florida Transportation Builders’ Association.
State Sen. Wilton Simpson, R-Trilby, has received similar complaints, and has begun drafting legislation to better define the public records law. In October, the town commission of Gulf Stream, in Palm Beach County, voted unanimously to hire an outside lawyer to pursue a federal racketeering case against O’Boyle.
Barbara Petersen, president of Florida’s First Amendment Foundation, said there is nothing in state public record law prohibiting “gotcha” lawsuits. Her concern is these suits could lead to further erosion of Florida’s public records laws.
“That’s extremely unfortunate, as the vast majority of those who are making public records requests are doing so because they want the records, and any attempt to scale back our right of access will have the biggest negative impact on citizens,” she said. “All because of a couple of bad actors.”
The foundation and the law firm are exploiting an April 2013 amendment to state law that requires private companies holding public records to make them available.
After the 2013 amendment passed, O’Boyle contacted Chandler about starting Citizens Awareness Foundation. Chandler, 50, who lives in Lakeland, had worked as a volunteer his entire career. O’Boyle offered him a $120,000 annual salary, a company car and health insurance.
“I went from being completely broke to getting paid $10,000 a month,” Chandler said. “It was a very cool gig.”
The foundation was incorporated on Jan. 27. The O’Boyle Law Firm opened on Feb. 10. They both listed the same address in Deerfield Beach on incorporation records. Jonathan O’Boyle, licensed to practice in Pennsylvania, was listed as the law firm’s director.
Jonathan O’Boyle is not licensed to practice law in Florida, and records show he may have been acting as the firm’s full-time managing director and supervising other lawyers. Under Florida Bar rules, lawyers supervising cases must be licensed in the state.
“I was in the room multiple times when Jonathan was directing other attorneys in their work and no one was supervising Jonathan,” Chandler said.
In emails FCIR reviewed, Jonathan O’Boyle wrote about assigning himself a case. Another lawyer described O’Boyle directing settlement negotiations in a separate case.
When setting up the foundation, Chandler said he talked with the O’Boyles about the need to avoid conflicts of interest. He was worried because all of the foundation’s board members either worked for Martin O’Boyle’s real estate company or the law firm.
“That was a sticking point, whether I could only refer cases to his son’s law firm,” Chandler said. “I didn’t want to be involved in something where we file lawsuits just to file lawsuits.”
By April, Citizens Awareness Foundation board member Denise DeMartini, who works for the Commerce Group, was demanding more lawsuits.
“I am in the law meeting now and have been told that you have only provided eight new cases for this week. We were expecting a minimum of 25 a week,” she emailed Chandler on April 28. The law meeting she referred to was the O’Boyle firm’s staff meeting. DeMartini is not a lawyer.
Citizens Awareness Foundation was filing so many lawsuits that Chandler was not able to vet them all, as he had negotiated from the start. In some cases, lawsuits were filed in his name without his knowledge or permission, he said.
On June 2, Chandler emailed his board about using another law firm. “[I]f we use the O’Boyle Firm exclusively it will appear to be ‘self dealing’ by the IRS,” Chandler said.
William Ring, the foundation’s president and a lawyer with the Commerce Group, replied: “I’m not inclined to authorize [Citizens Awareness Foundation] to engage another law firm.” Ring is now the registered agent for the O’Boyle Law Firm, state records show.
IRS laws against self-dealing, outlined in the Tax Reform Act of 1969, prohibit any direct financial transaction between a private foundation and anyone closely related to the foundation.
The IRS could argue the Citizens Awareness Foundation engaged in self-dealing because it referred its lawsuits only to O’Boyle’s son’s firm, said Daniel Borochoff, president of CharityWatch.
“This arrangement appears as if it is something that is an extension of the O’Boyle firm,” Borochoff said.
Martin O’Boyle said the foundation didn’t find another law firm because “that’s a lot of God damned work.” The O’Boyle Law Firm, which specializes in public records cases, is in the same building as the foundation and took the cases on a contingency fee basis, something O’Boyle doubts other firms would have done.
“There was a convenience factor to be able to walk 12 feet to the next building,” said O’Boyle, who insists he no longer has ties to the foundation.
O’Boyle said his son’s law firm has lost “a fortune” since opening in February.
“The only person who has made any money is Joel Chandler,” O’Boyle said.
But Chandler insists he doesn’t do what he does for the money.
“I’ve been broke ever since I’ve been doing this. I do this because I really, honestly believe in open government,” he said.
The foundation targeted governments big and small, but it also filed complaints against obscure companies contracted by government agencies. Many weren’t aware the records law applied to them. The records requests often came in over the weekend, from “An Onoma” with the email address email@example.com.
Dave McIntosh, who runs the Bluefield Ranch Mitigation Bank that does work for the state, said his records request from An Onoma came at 9:48 a.m. on Sunday, May 18. “I was totally convinced it was bogus,” he said.
McIntosh wrote back asking who they were. The reply: “None of your business.”
The lawsuit arrived a month later, along with a settlement demand for $2,500. McIntosh offered to pay the $410 filing fee and $500 for costs. The lawyers rejected the offer and added a nondisclosure agreement, meaning the settlement couldn’t be discussed afterwards.
“To me that was hilarious, another brick in the wall that makes the case that these guys are a scam,” McIntosh said.
After the Florida Center for Investigative Reporting publicized the case earlier this month, the firm withdrew its lawsuit against the environmental mitigation bank.
In June, Miami’s River of Life, a small social services agency, contacted Chandler saying they didn’t realize their records were public and that they were willing to comply — but the settlement demand for nearly $4,000 was too much. Chandler called the O’Boyle lawyer handling the case, Nickalaus Taylor, on June 27.
After the call, Chandler emailed Taylor: “In our conversation this morning I understood, from you, that the O’Boyle Law Firm has about $1,200 in costs and fees in the case up to this point. I also understood that you have been instructed by Jonathan O’Boyle to demand $3,800 to settle the case. If such a demand is accepted by the Defendant that would create a windfall of about $2,600 beyond actual fees and expenses.”
Taylor responded: “This email is to confirm our conversation today and to reiterate that all offers for settlement are made pursuant to the policies of the O’Boyle Law Firm.”
On June 30, Chandler resigned. He said he contacted defendants in the lawsuits because he was worried about the damage he had inadvertently caused, and offered his help. Citizen Awareness Foundation sued him for breaches of contract and fiduciary duty.
O’Boyle and Chandler disagree over how the foundation came to be and why Chandler left. Each paints the other as money-hungry.
O’Boyle said he initially contacted Chandler about an advertising-driven public records website, but Chandler wasn’t interested. Instead, he said, Chandler proposed an open government foundation.
Chandler labeled that version of events as “entirely false.”
O’Boyle was the one who proposed the foundation, Chandler said, in part because his son was launching a law firm and he knew Chandler’s activism results in a lot of open government litigation. O’Boyle offered to pay him $120,000 annually if Chandler agreed to work exclusively for him, Chandler said.
Chandler resigned because he wanted to “make all of the decisions,” O’Boyle said. Chandler turned down offers of $50,000 and $100,000 to stay and take charge of all the foundation’s deals, demanding $2.75 million instead, O’Boyle said.
Chandler said O’Boyle’s asked him to return to the nonprofit and they offered to give the foundation $50,000 to $100,000. Chandler said he would take over the foundation if every board member resigned immediately, he could dissolve the foundation after the cases were resolved and O’Boyle would donate $2.75 million to a nonprofit of Chander’s choice. He said he knew O’Boyle would turn down the offer.