Three Flagler County School Board members have submitted nine questions to two attorneys the board hired for at least $5,000 to examine how it could fire Board Attorney Kristy Gavin without getting sued. The board members wrote the questions and circulated them outside of a public meeting. The questions had not been disclosed publicly until this article.
Three board members–Sally Hunt, Christy Chong and Will Furry–were pushing to fire Gavin starting last month, at least until Board Chair Cheryl Massaro suggested that Gavin could be shifted within the administration and become a staff attorney, answering to the superintendent, rather than to the board.
The board would then hire its own, separate attorney. Board members were receptive to the idea at a meeting last week, especially as it would pre-empt the complications, costs and potential litigation of an unamicable divorce.
But it was the same meeting where the board also agreed to follow Furry’s proposal to hire Shutts and Bowen, one of the state’s largest law firms, to study Gavin’s employment contract and advise the board on how to get rid of her. She has been the board’s attorney for 17 years, in effect also–if not mostly–serving as the staff attorney all those years. (See: “School Board Trio Will Hire an Attorney to Help Them Fire Board’s Attorney of 17 Years.”)
Furry asked board members to send him questions they want the Shutts attorneys to answer, and to do so by way of Lorraine Thompson, a paralegal and the administrative assistant to Gavin and the school board, to avoid getting Gavin involved in any way.
The three board members who sent in questions were Colleen Conklin, Massaro and Chong. Thompson scrubbed the questions of their authorships, collated them into a single-page Word document, and sent them to Furry, as well as to the four other board members. Furry sent them to the outside attorneys. Furry, who the board delegated to have direct contact with the outside attorneys, almost certainly asked his own questions. He did not provide them for public examination.
The legality of the procedure is questionable: under Florida’s sunshine law, no elected board may conduct any collective business, anonymously or not, that results in actions that will affect board business, as the questions and answers surely will. The sunshine law’s open-meetings provision is specific about the deliberative process being in the public eye. In this case, it was not.
But Gavin could not raise objections, since, as the only attorney at the board, she had been sidelined from discussions about firing her, and this particular board has been less than scrupulous about abiding to the open-meetings law: it used to routinely huddle after evening board meetings to discuss how the meeting went, and last month it was caught in a closed-door huddle after the superintendent’s press conference on the segregated assemblies at Bunnell Elementary. It was partly the dynamics behind that day that led Hunt and Chong subsequently to want Gavin’s contract reconsidered, starting the process toward firing her.
The board members would have been on the safer side of the law by sticking to having direct, one-on-one consultations with the outside attorneys. That would not break sunshine. But the attorneys have limited such interactions to a maximum of three hours before they bill between $515 and $570 an hour for additional work.
FlaglerLive obtained the exchanges between board members and the administration leading to the list of submitted questions. Gavin usually handles those public record requests. In this case, the requests were handled by Jennifer Gimbel and Thompson. It took several insistent requests and clarifications to obtain the full records, or what appears to be the full records.
The questions were as follows, as each board member submitted them, with FlaglerLive’s explanatory italics added where necessary in brackets.
Cheryl Massaro:
1. Pertaining to Flagler Schools: School Board Attorney Employment Agreement: A. Number 6: Termination: In layman’s terms please define “Just Cause”: and how it relates to:
1 Dereliction of Duty
2 Failure to report to work
3 Misconduct in Office
4 Violation of a Criminal Law
[Massaro is referring to Gavin’s contract’s language under the termination clause, which states that she “shall be subject to discharge only for just cause. Just cause shall be defined as dereliction of duty, failure to report to work, misconduct in office or violation of criminal law.” To date, there has been no evidence, presented or alleged, of any such behavior.]
2. If a School Board member is aware of a SBA [School Board Attorney] violation of this contract and does not report the alleged misconduct to proper authorities, are they liable in any way?
[Massaro is making a reference to a statement Hunt made at a workshop, zeroing in on the word “misconduct” in Gavin’s contract, and prompting Massaro to ask her: “If there is misconduct, and any of these board members were aware of this conduct, it would have needed to be reported to the Florida Bar.” Hunt said she would “clarify,” but she did not, choosing to be more cryptic: “I would not expect for you to trust my thoughts on this any more than I should should trust your thoughts on this,” Hunt told Massaro, suggesting that she (Hunt) knew something others do not, but not saying what it is.]
3. If “Just Cause” by the SBA is not articulated by the School Board, and the School Board terminates their contract, how do we avoid a Wrongful Termination Lawsuit?
4. In the event an Administrative Law Judge is necessary, to settle this contract, who pays for their services?
[The Division of Administrative Services itself answers that question on its website without charging $570 an hour: “The Division is 100% trust funded. Some state entities must pay filing fees or other fees to utilize the division’s hearing services. These funds are derived from assessments paid by insurance carriers writing workers’ compensation insurance and self-insurers into the Workers’ Compensation Administration Trust Fund.”
Beyond the division’s own costs, the law requires the judge to award legal costs to the prevailing party, but only if the other party is determined to have participated in the proceedings improperly, which the law defines as “to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation.”]
5. In your professional opinion, what is the best way to terminate this contact with limited liability to the School Board?
6. The current Contract expires on June 30, 2025. Should the School Board wish to “Buy Out” this contract, how would you recommend we proceed?
Christy Chong:
As a public employer what are the legal limitations of severance and any negotiations leading to a settlement?
[The contract specifies that no severance is due when the attorney is fired for just cause. But the attorney may challenge a just-cause firing through an Administrative Law Judge. If the judge finds that no just cause existed, the attorney would have to be paid 12 weeks’ base salary. In Gavin’s case, that would be around $31,000.]
How can we come to a mutual agreement on our attorney’s contract due to lack of confidence and trust with the board?
[The question bears its own answer in the word “mutual,” though that would depend on Gavin.]
Colleen Conklin:
Are we required to buy out Mrs. Gavin’s contract? If so what’s the entire cost? Do we need to include the remainder for retirement
and benefits?
[Gavin’s base salary this year is $135,000. Retirement ($46,592), Social Security ($8,304), Medicare ($1,942), health insurance ($7,196) and income protection ($385) add $64,419 a year in compensation costs, for a total compensation package of $199,419.]
The one-page-document sent to Furry without the board members’ names lists 10 questions, but one of them is a duplicate. Assuming no proxy communications are taking place out of sunshine, the board is to discuss Gavin’s fate again at its 1 p.m. workshop scheduled for Oct. 17, and possibly take action at its evening meeting that day.
PeachesMcGee says
Just another witch-hunt by our elected buffoons.
It will never end unless they are voted out-of-office.
Mary Jane says
The Flagler County Board of Ed Soap Opera continues.
The dude says
Other than the fact that they just don’t like her, I still haven’t seen any real reasons articulated for this proposed course of action.
endless dark money says
they are a bunch of facist republicans backed by racist ron himself. They should all be removed for incompetence. Maybe they should read some of the books they banned.
Paul T says
It’s a pity Chong, Hunt and Furry can’t concentrate on planning and enacting the best possible education for all of Flagler’s students instead of this petty back biting and quibbling, much of which appears to be politically driven.
Schoo Boards should be about education not ideological change..
Huh dang.... says
Dumbbells for a Board, so did you think may happen! Kristi Gavin to just get pushed over.
The worst Board ever!
Another Concerned Taxpayer !!! says
These 3 Board members have not and cannot provide any evidence of any violations to justify the removal. They seem to have agreed on the excuse of “loss of trust”, which in should make one wonder that all 3 have the same excuse. Well I personally do not trust the motives of these 3 individuals. Apparently there is a “planned” effort to remove the existing School Board Attorney, which suggests that these 3 board members are acting in concert and have met in private to discuss and plan their attack. They state no valid reason for the termination. I suspect it is because this attorney has prevented illegal activities and has limited their obvious violations of Sunshine Laws and their future plans. My question is how do we get rid of these 3 board members? I think there must be some grounds for an investigation into their activities and a means for their removal from the board.
Not Shocked says
Chong, Hunt, and Fury are just puppets. Others are pulling the strings.
Lead on says
I have lost trust in these 3 idiot board members who between them, have a high school diploma, want schools to no longer serve as hurricane shelters, and let’s not forget one moron at one time wanted protection and then claimed to resign then changed her dim witted mind.
Flamethrower says
I’ll float a conspiracy theory- the board attorney is not Christian enough for our religious zealots who now run the schools. She didn’t allow the banning of books with extreme prejudice or act with complicity when these nazis went after kids who don’t fit the fascist norms.
That is why they are putting all this effort into removing a long serving professional without “just cause.”
Same folks who wanted to round up democrats and put them on cattle cars. And they’ll wave their bible while shouting about their rights as they burn the constitution.
It’s always says
Way too many people are caught up in the national politics of the situation and not looking at the simple fact that Michael Chiumento hates Gavin for taking a hard stance on impact fees. That’s it. That’s what this is about.
Robert Cuff says
If I understand this correctly, the whole purpose of the $5, 000 legal expense is find an excuse allegedly justifying a “for cause” termination, thus possibly saving the district $31,000 in severance pay (assuming no legal battles which could significantly increase the initial $5,000).
For a district struggling to investigate the theft of $719,000 and justify the time and expense spent auditing and obsessing over a $30,000 FYO account, this exercise seems pointless and based more on vengeance than common sense. The obvious path is to end this latest farce and either vote to terminate Ms. Gavin’s contract with payment of the severance called for or vote to retain her services as board or staff attorney.
Concerned Citizen says
What are doing as a community to stop it?
Besides complaining on Flagler Live. I have made my phone calls and emails. We can also boot these folks out. They are not unremovable.
Are we really OK with our school board wasting this much time and resource on a made-up issue?
According to Fla. Stat. Annotated §100.36(1), “Any member of the governing body of a municipality or charter county, hereinafter referred to in this section as ‘municipality,’ may be removed from office by the electors of the municipality.
From the time that the recall petition is approved for circulation, signatures must be collected within 30 days.[1]
Once signatures are collected, the designated chair of the recall committee that collected the signatures must present them to “the auditor or clerk of the municipality or charter county, or his or her equivalent.”[1]
The clerk who received the signatures must then “immediately” convey the signatures to the Supervisor of Elections for the county within which the recall is taking place. The Supervisor of Elections must then proceed to inspect the signatures; a process that is by the relevant statute confined to 30 days.[1]
The group seeking the recall must pay to the county’s supervisor of elections in advance, “…the sum of 10 cents for each signature checked or the actual cost of checking such signatures, whichever is less.”[1]
The signature requirement varies based on the number of registered voters in the jurisdiction.[1]
BigMike says
Truly a shame when focus should be on preparing our students for the complex world that awaits them…..and just another waste of resources by individuals pushing a cultural agenda. Can we return to sanity…PLEASE
The dude says
I was unaware that this Chiumento fellow held any elective offices in the Flagler County area.
Regardless… it’s obvious someone or something is pulling the strings of the three stooges, just like when Peacock was pulling Hunt’s strings.
nd says
What are the goals and objectives that these board members originally had for the students of Flagler schools? This in fighting is compromising real solutions to help affect change.How is it that we have classrooms of students without teachers, being taught by substitutes since the start of school, with more teachers, within the school resigning? Iwork at one of these schools, I have not once this year, met a board member at my school, seen one walk through my hallway, much less come into my classroom to check on the welfare of both the students or teachers.
Teachers are working harder than ever, with higher expectations, and less support to meet the needs of the students. I am one of the exhausted teachers, I just learned that a colleague has decided to leave, and teach at a private school.Shame on the direction of these board members, who fill their time with retaliatory efforts, that distract from what the voters put them in to do. EFFECT POSITIVE CHANGE. How many more teachers and school staff will not be able to sustain the current situation, and leave? WE owe it to the the families and children of flagler County to do better,
Aves says
100% correct in this!