Commissioners Punt on Appointing Sean Moylan Interim County Attorney in Motion That Possibly Violates Sunshine

Last Updated: 6:15 p.m.

At the end of May, when fewer than 10 qualified individuals had applied, the Flagler County Commission opted to continue its search for a new county attorney. It also unanimously agreed to appoint Sean Moylan, the assistant county attorney for the last 10 years, interim county attorney starting Aug. 1, when Al Hadeed retires. Hadeed has been the county attorney for almost three decades, in two separate stints. 

Moylan was to serve for 90 days as interim, with a salary of $175,000, as the search continued, then return to his position as assistant county attorney if he was not the commission’s choice for the permanent post. 

Somehow, the County Commission Monday evening reversed itself, refusing to make the appointment it sought, delaying it until July through a motion that possibly violates the sunshine law. 

The reversal–or delay–signaled unease from three members of the commission for the way the county’s human resources department has handled the search and the direction it had taken. It exposed a rift between three commissioners–Kim Carney, Leann Pennington and Pam Richardson–who do not see the position as spoken for, and two–Commission Chair Andy Dance and Commissioner Greg Hansen–who see Moylan as stepping into the position he’s been preparing for over the past decade. And it left both sides confused and dismayed. 

“This is extremely frustrating, and I apologize, Mr. Moylan. this should not be happening,” Dance said. “We should not be going down this road and then at this point, reconsidering.” He was referring specifically to the interim appointment the whole commission had agreed to three weeks ago. 

Carney had called the process “flawed.” There’s a difference, she said, “between advertising and recruiting.” She saw no reason to move forward with the interim agreement until July 14. “I haven’t had a chance to see anybody else, and our recruitment is flawed,” she said, suggesting that a recruitment firm would have been the better way to go (an option Dance would not support)–and that recruiting from within was not her priority. “I don’t work that way,” she said. 

Advertising the position in Flagler County, for instance, suggests a too-local search. “I’m not sure the Palm Coast Observer would be the right place,” Commissioner Leann Pennington said. “It was some feedback that I got from actually a lot of people.”

Charlie Picano, the human resources director, said the position has been advertised more broadly. “I’ve been advertised to the point where, if you Googled county attorney Florida, it was the first thing to pop up,” Picano said. 

“We don’t have to put someone in there,” Commissioner Pam Richardson said. “Sean can continue to act in his current position” for those 90 days, she said. 

Hadeed disagreed. “You could not leave it to a person titled deputy county attorney who’s going to who’s going to accept that in the business world,” he said. 

The administration was perplexed. Deputy County Administrator Jorge Salinas explained to Richardson the routine of interim appointments. “You can appoint me as an interim while you go through the process of hiring a County Administrator,” he said by way of example. “It’s a normal process in government to appoint somebody as an interim.” Salinas said the nature of the appointment doesn’t deter anyone from applying. 

“As an interim, it would discourage people from looking,” Richardson said. 

Commissioner Leann Pennington agreed. If the commission is to have an open process, appointing an interim who is also an applicant would deter others from applying, she said, citing the dearth of applications as it is. 

“It’s not fair to Mr. Moylan, because here we are talking about him, and he’s an applicant, and he may very well end up being the county attorney,” Pennington said. “But if we’re for leaving the requisition open, we’re truly searching. Unless this was the plan all along, to have him as an interim and kill down our search.” She had expected to interview candidates. 

Dance rejected Carney’s characterization and Pennington’s analysis. “The system isn’t flawed. What we have is a long-term, highly respected Florida county attorney who is retiring, that has brought along his protege,” Dance said of Hadeed and Moylan. “If you’re out there looking for a position for a county attorney, and Mr. Moylan has put his name in there, is that where you’re going? Is that where a seasoned or somebody who wants a real shot is going to put their name in?” 

With Moylan’s background and history–and Hadeed’s endorsement–whoever applies to unseat Moylan will have to be “fully prepared with everything loaded, because that’s what you’re up against,” Dance said. “The county has done what it is supposed to do, and that is, bring along employees so that in the case of a vacancy, we can preferably hire from within and move things along in that arena.” Opening the application process “to test the waters” was fine, “and honestly, you got what you expected. I mean, people are going to be hesitant.” 

Dance said the majority of the applicants were in the exact same position as Moylan’s–deputy attorneys looking to move up. “We already have one that knows the county inside now that doesn’t have to be trained,” Dance said, revealing what his intention had been: “This process to select you as interim should have been a a quick approval so that we can move along and have the attorney’s office in a stable position moving forward.” The advantage of having Moylan serve as interim would have given him several weeks to prepare for leading the office, Dance said.  

The administration was frustrated, too. “When I got the guidance, I thought this was an urgent matter to process as quickly as possible,” Salinas, the deputy administrator, said. “I misunderstood, and I apologize for bringing it so fast, because sometimes we’ll bring things in a little bit later and we get some sense that that’s too late.”

Hadeed, in a frustrated, heightened tone of his own, sermonized the commission about the demands of the attorney’s job, the particular demands of Flagler County, and the partnership he’d developed with Moylan over the years to navigate its complexities. “This isn’t walking into an urban government that’s got a lot of dollars and can get the beach projects done with a snap of the finger. Everything here has to be created,” Hadeed said. 

“I want you to think about this. Think of the issues that we have surmounted in Flagler County,” he said, citing such things as the county’s vacation-rental ordinance–a groundbreaking ordinance in the county–among others. “When you see, when you see great work out of our legal department, believe me, if you think it’s all me, no, it’s not. We work collaboratively. We think through these things. He understands how I approach these issues.” 

His disquisition was a brief history of the legal department over the past many years. “Sean has been there for all the big things,” he said, ending on an endorsement neither Moylan nor the commission expected. “So there has been a recruitment effort on my part that has been quite sustained. Now you get to choose who you want to be your lawyer. You get to choose that. I’m not going to take that from you. But what I have done is brought up somebody that can be the county attorney of Flagler County, and do it very admirably.”

That’s the endorsement the commission will have to overcome if it is to choose a different candidate. 

Hadeed’s statement moved Carney to reverse course on Moylan and appoint him interim. “If he’s hand-picked, and you had that strong of a feeling that he was your guy, I wish I would have known about it two or three months ago,” Carney said. “But that’s okay. We’re moving on.” 

Carney moved for the appointment, tied to a requirement that the board submit three names to human resources before Friday for potential interviews in July. 

The motion died for lack of a second. 

Pennington then moved to table the appointment until the July 14 meeting, “and allow for the board to present three names for interview process to HR in the interim.”

That passed 4-1, with Dance dissenting. But the motion may have been flawed. 

For commissioners to select candidates outside of a meeting could be a violation of Sunshine, if their independent tallies are then consolidated into a short-list by human resources. In other words, the commissioners may submit their chosen names, but HR may not do more than bring all those names to the July 14 meeting for the commissioners to then short-list. HR may not do so on its own. That would amount to abrogating the commission’s job, and to doing it outside of sunshine, denying both commissioners and the public the chance to weigh in on the process–on the short-listing–before it is final. 

The possible lapse was not intentional. Pennington has since the meeting said that the tallying would be done at a meeting. Dance in a text exchange with FlaglerLive noted that the commission had expressly conducted its first tallying of candidates in the open, with no intention to conduct any part of the process outside sunshine.

The Palm Coast City Council had done something similar, ranking candidates for appointment to a council seat outside of a meeting when Dave Ferguson was appointed in place of Frank Meeker in November 2012. That drew an admonishing letter from the First Amendment Foundation. 

“This process violated the Sunshine law because the Council did not create the short list in an open public meeting,” attorney Jon Kaney wrote the council for the Foundation. The council redid its rankings in an open meeting.