The Palm Coast City Council and the Flagler County School Board are searching for new attorneys to represent them in two very different ways. The council is conducting its search entirely in the open, ensuring that all related documents are public, providing them on request, and interviewing the firms in open forum.
The school board, in contrast with its own precedents and with all other local governments, possibly in violation of law, is making none of its applicants’ documentation available. Its administration’s procurement officer, who has coordinated the hiring process, went as far as telling board members not to mention the names of the firm applying, though that slipped out. The board, in what may be a violation of the open-meeting law, plans to hold closed-door session to interview the two firms that have applied.
The two governments’ approaches reflect to what extent the School Board has become an outlier among local governments with regards to openness, transparency, and respect for public awareness and inclusion, all of which the board, in contrast with other governments, defies.
Florida law is clear on when a school board may hold so-called “shade” or closed-door meetings. It may do so when discussing strategy for ongoing collective bargaining with unions or strategy in ongoing litigation (merely meeting for updates on litigation is not allowed, though the board at one point wanted to have secret quarterly meetings of the kind). It may do so when discussing the details of specific security procedures or security measures, the disclosure of which could compromise safety (it may not meet behind closed doors to discuss security in general, or security policy). And it may do so for student-expulsion hearings, as students’ privacy prevails.
The law does not include any such exception to open meetings for board members’ searches, either for a new attorney or for a new superintendent–the only two position the board hires and fires. All other positions in the district’s ranks of some 1,600 employees fall under the purview of the superintendent and the administration. It would be illegal for board members to interfere with administrative hirings and firings, let alone sit on a procurement committee, as that would violate the wall between elected officials and administrative lanes.
Yet that’s what procurement director, Kristen Corolla, said the board had authority to do when she had proposed to the board to hold a closed-door session to discuss the two firms that were applying, and to hold another closed session to interview the firms: her reasoning is that since procurement committees may be closed meetings, the board, sitting as a procurement committee, could close its doors (even though state law does not explicitly provide for such an exemption, as it does for all other exemptions). Corolla or any other member of the administration sitting alongside the board in that committee would appear to also violate the separation between elected officials and the administration, as it would be identical to a board member sitting on a procurement committee for, say, a construction bid on a new school (which, of course, would be patently illegal).
The School Board’s own previous search for an attorney in 2006 was open. Back then, it replaced Chiumento and Associates, as that firm was known at the time, with Jacksonville-based Gobelman, Love, Gavin & Wasilenko. Kristy Gavin began representing the board then, when she was still with the firm. The process was also open in 2009 when Gavin and the Chiumento firm again vied for the contract, which Gavin retained. The following year, she became the district’s in-house counsel. The current board fired her in January, citing general, vague and at times false “causes.”
Pursuant to state law, Gavin had said in mid-January, just before her firing, “legal services, including attorney, paralegal, expert witness, appraisal or mediator services are not subject to the competitive-solicitation process. But that does not mean that the competitive-solicitation process cannot be used.” It just not clear why Corolla or the board opted to define the search for a new attorney through a competitive-bidding process, though it fits this board’s predilection for secrecy and chronic contempt for openness. In November, Will Furry, who chairs the board, was openly critical of Gavin and the district for following the open-record law, saying documents should be censored even if it invites a legal challenge.
The district has yet to release numerous records requested, some of them as far back as last fall, regarding board members’ correspondence in the firing of Gavin, and regarding litigation with a teacher–now a dean–with whom it settled a long federal case, with monetary damages.
and when it does, the meetings have to be strictly constrained to the subject at hand. The start of a closed session has to be announced ahead of time in an open meeting. The end of a closed meeting has to again be announced in an open meeting. The school board typically does not follow those legal steps.
At an October 2 meeting of the County Commission, County Attorney Al Hadeed, a local expert on the Sunshine law, tutored the commission at length about the proper and improper–or illegal–ways to hold closed-door meetings. (See the tutorial here.) Many of those requirements are not followed by the school board.
Both the board and the Palm Coast City Council have lost their attorneys of long date: Garganese, Weiss, D’Agresta & Salzman, the Orlando law firm, opted to end its decade-and-a-half relationship with Palm Coast last fall, remaining in the attorney’s chair as long as the city needs to fill it with a replacement. Gavin’s firing follows closely the school board’s pushing out former Superintendent Cathy Mittlestadt.
The City Council last week held a 90-minute special workshop where four law firms presented in their bid to fill the attorney’s chair: Douglas Law Firm of St. Augustine, Fishback Dominick Attorneys of Winter Park, GrayRobinson, a statewide law firm, and Vose Law Firm of Winter Park, which has represented Bunnell since 2013, along with many other local governments in Florida.
GrayRobinson and Douglas Law Firm are the only two applicants at the school board. While the board has refused to disclose the two applicants’ materials submitted to the district, the two firms submitted presentations to Palm Coast (see Douglas here and GrayRobinson here). Vose and Fishback did not submit presentations.
The School Board held a meeting on its two applicants in January. That meeting was not streamed, as board workshops and meetings usually are. (It was audio recorded, but is impossible to find online.) Three board members–Furry, Christy Chong and Sally Hunt–went with Douglas as their first choice, GrayRobinson as their second. Colleen Conklin and Cheryl Massaro went with GrayRobinson first. Hunt later appeared to change her vote, preferring GrayRobinson. (Douglas was proposing a flat monthly fee of $9,500, not including travel, hearings or other matters outside the normal scope of meetings and routine work. GrayRobinson’s fee was unclear.)
Douglas Law Firm is pushing heavily on both governments the fact that one of its attorneys, Marcus Duffy, is a Flagler County native and a Flagler Palm Coast High School graduate. It was Duffy who presented to the council. The School Board was hesitant about Douglas Law Firm because of Duffy: Hunt wanted a law firm whose attorneys would not have any potential conflicts of interests in Flagler County, by having previous connections here. “I’m going to change my ranking at this point in time only because Douglas is that kind of potential issue with Flagler,” she said.
The proposed fees to Palm Coast, as discussed at last week’s meeting, are as follows:
Douglas Law Firm: Fixed monthly retainer of $30,000 plus an hourly billable rate of $250.
Vose Law Firm: $75,000 fixed monthly flat fee.
GrayRobinson: $58,000 fixed monthly retainer.
Fishback Dominick Attorneys: Based on a 20-hour retainer of $4,500 a month (4225 an hour), then $275 an hour after the 20-hour mark is crossed.
The four law firms’ presentations to the council are in the video below.
