Last Updated: 5:39 p.m. with Superintendent Moore’s comments.
With a clock ticking to a Dec. 31 deadline, the Flagler County school district is willing to offer embattled Board Attorney Kristy Gavin continued employment, as a staff attorney answering to the superintendent rather than to the board, but with a poison pill that may sink the deal: the district wants her to sign away her right to sue, a provision no other employee has to sign.
Not only will Gavin not sign. But Board member Cheryl Massaro sees a significant lawsuit coming from Gavin if she is fired in two weeks. She enumerated the counts ahead: “I see a very large lawsuit coming and it’s going to be breach of contract, number one,” Massaro said, “hostile work environment, wrongful discharge. It’s also going to be age discrimination, sex discrimination, and defamation. I think that about covers it.”
Three school board members–Will Furry, Christy Chon and Sally Hunt, with various degrees of animus toward her–want Gavin gone. For Gavin to be fired before the end of her contract, which doesn’t expire until the end of June 2025, the board is required publicly to document one or more causes. No causes have been disclosed. Hunt says she has some, but was allegedly “advised” by attorneys not to disclose them.
The School Board in late October voted for a 60-day window to determine whether Gavin may be shifted to staff attorney, or else she’d be fired outright. Gavin, Superintendent LaShakia Moore, the district’s chief financial officer and Board member Cheryl Massaro have been negotiating that possible transition. For a time, it looked promising.
“We’re hopeful that we are able to come to an agreement where Miss Gavin is able to move over and become the attorney that mainly focuses on district
affairs,” Moore said in an interview last week. The hang-up at the time was money, since the district would have to pay Gavin’s salary of $135,000 and pay for the additional services of an attorney representing the board.
But several board members are not convinced they need a full-time attorney representing them. They are willing to have part-time representation, enabling a hybrid arrangement that would accommodate Gavin’s job on the staff side. That’s what Moore would prefer.
Is there enough money? “That’s where some of the hang up is,” Moore said, “because we have to project out from the district’s out we have to really project out what potential costs would be for the district’s attorney to ensure that we do have the funds in order to do both.” The two full time positions might not be feasible, but she said a hybrid of the two would “absolutely” be possible. “She definitely puts in a lot of work,” Moore said, but perhaps too many things were sent to her for review that could be reviewed by other staff members.
“In my best world,” the superintendent said, “I will want to have have the structure that would allow for both the district to be most successful and the board to be extremely successful. I think right now, we are in a very complicated matter where the board is kind of divided on their relationship and the global relationship as a board that they have with our current attorney. So how do we eliminate that–allow the board to be successful and get the needs that they have, met, while also being fiscally responsible as an organization as well? So, best case scenario is we can get a little bit of both.”
Moore, a first-year superintendent surrounded by many among her top staff who are equally green at the district level, is especially dependent on an attorney who has been with the district 17 years, who knows where the legal cases and skeletons are, who is naturally conversant with school law and familiar with each school’s administration.
Negotiations continued. But this week, negotiations soured.
“There’s no doubt in my mind that she’ll be terminated at the end of the month,” Massaro said on Wednesday. “Even trying to negotiate a mutual agreement, there were so many strings attached, I don’t think that is going to be possible.” Massaro did not say what those strings were and did not want to say. But when a reporter asked her whether Gavin was being asked to indemnify the district as a condition of employment, Massaro all but confirmed it: “That’s a pretty good hunch,” she said. Asked if there were other strings, she said there were none.
In Moore’s proposal, Gavin would have a six-month contract to finish out the current fiscal year, from January to July, then have another year-long contract, by which time she could retire if she so chose, fully vested. “But then she tacked on a couple strings that nobody else would have to abide by or ever had tagged on, and that’s where the problem was, and I don’t think that’s going to be acceptable to our attorney. I haven’t heard a direct response, but my guess is that I wouldn’t do it, so I’m not sure if she will.”
It isn’t clear who is really fronting that condition, especially since it goes against Moore’s intentions to work something out. Moore had not previously mentioned anything like such a condition, including in the interview last week. The condition appears to have been imposed by one or more of the board members who want Gavin gone, even though they have delegated the negotiations to Massaro, and even though the board’s role, if there is to be any, may only be discussed publicly. So the propriety of the condition is not questionable only in and of itself–as a prejudicial condition that does not apply to anyone else–but also with regards to its origins.
Gavin said she did not know where the condition was coming from. “I can’t speak on behalf of the district,” Gavin said. “They have not indicated to me what has played into their offer, so I can’t speak to what has been a part of their offer, or their decision on what to offer. I don’t know.”
Nor did Massaro, though what is certain is that the condition sprang up only this week. “I don’t know if it was her thought,” Massaro said of Moore, “if it was her team’s thought, if it was school board members’ thought. I don’t know. That was the first time I heard that. And I questioned, and I said: Does every other administrator have that same clause? And the answer was no, but this is different. So why is this different?”
Moore did not respond to an emailed question about the condition and its origins before this article initially published, but did respond by phone in early evening Thursday. She would not confirm or deny the matter of the indemnification clause, and expressed some disappointment that substance from the negotiations were discussed. But she said that she has not been getting any input from other board members on the negotiations. “I feel that as a district, as a school district, we have offered an agreement that I think aligns with what was expressed as the goal,” Moore said, “and so I don’t understand why that agreement would not then be able to come to fruition. I won’t say necessarily how hopeful I am because I don’t operate on hope, but I think we’ve offered some possibilities and some options that allow for what the ultimate goal was.”
The negotiations continue, with a possibility that a proposal will be presented to the board when it net meets on Dec. 19, for the last time this year (absent a call for a special meetings). Reaching mutual agreement, Moore said, is still “my intention, that has always been my intention, and that continues to be my intention.”
An indemnification clause would be odd, in that a mutual agreement implies Gavin’s employment continues–unless Gavin is nervous about the time-limited nature of a six-month contract, and the risk she’d face with additionally time-limited contracts, with a board that has repeatedly proved unpredictable and not a little vindictive. So she is unlikely to accept an offer muzzling her legal rights–or to not exercise those rights were she to be fired on Dec. 31.
Massaro and Board member Colleen Conklin have taken positions against the firing of Gavin, urging the rest of the board to consider more workable alternatives, and to be mindful of the costs–either of paying out the remainder of Gavin’s contract, or of having to pay the costs of a lawsuits and potential damages resulting from it, if the district does not prevail.
Massaro was asked if she would testify on Gavin’s behalf. “I will tell the truth. I certainly will tell the truth, but I don’t think we really need to testify,” she said. “I think we already did on the dais. I think everything’s in video. And that’s why I worry about where this is going.”