As you read in my previous post, Who Should Be CCPS’s New School Board Attorney?, applications for the newly created school board attorney position were received from four candidates, all of whom met the requirements of the job description.
At a special meeting on Jan. 23, the school board voted 3 – 2 to select James Molenaar for the position. (WGCU, 1/23/23)
But I think it’s important to know more than just the outcome of the vote. In this post, I will describe the selection process itself, share some of what else happened at that meeting, and suggest some concerns.
The Selection Process
Instructions to the Board
Valerie Wenrich, CCPS Assistant Superintendent, Human Resources, first told the board that one of the candidates, Michael Fasano, had withdrawn from consideration over the weekend. The remaining three candidates to be interviewed that morning were Cassius Borel, James Molenaar, and Kevin Pendley.
She gave board members three packets, each containing a copy of the interview questions on which to take notes and a candidate ranking sheet. She said that the packets would be collected after the discussion and that everything written on the materials in it would become public records.
Wenrich then explained the process. She said she would read the same ten questions to each candidate “for fairness and consistency” and that “there will be no probing questions,” to “allow candidates to be judged equally based on their answers.”
She said that if time allowed, each candidate would be asked an eleventh question to allow him to share any additional information about himself. “If the candidates share something that you would like to dig a little deeper into or ask for clarification, you may do so at this time, but again, no new questions may be asked.”
Despite the description of the process, the board members were not offered the opportunity to dig deeper or ask clarifying questions at the end of any candidate’s remarks. Nor did any board member interject to request it.
After the last candidate left the room, the board members were asked to rank the three candidates.
Molenaar was ranked first by Rutherford, Lichter, and Moshier. Pendley was ranked first by Lucarelli and Carter.
Next in the process, Molenaar’s employment history will be confirmed and the references he provided on his application will be checked. In addition, as is required of all school employees, his fingerprints will be forwarded to the Florida Department of Law Enforcement for statewide criminal and juvenile records checks and the FBI for federal criminal records checks. (F.S. 1012.32)
If anything is found that Human Resources believes should be brought to the attention of the board, it will do so.
At an upcoming meeting (yet to be scheduled), the board will discuss and approve an employment contract that will include a term of employment, salary, and benefits package.
What Else Happened
District General Counsel’s Comments
At the beginning of the meeting, School District General Counsel Jon Fishbane asked to speak. He noted that “There have been a lot of comments concerning the process that forms the foundation of this meeting.” They included questions concerning “Sunshine Law violations, back door communications, wrongful favoring of a particular candidate [i.e., Molenaar], and wrongful usage of documents” Molenaar sent in before the Dec. 7 school board meeting.
Fishbane said he had reviewed all related public records requests and emails, and spoken with each of the board members. He then told the board and the public that he found nothing wrong in the actions of Ms. Lichter to influence the process. He found “no evidence of any Sunshine violation, any manipulation of the process to favor a candidate, no back door deal, and so on.” (1/23/23 meeting recording from 2:40 to 8:03)
Next, board chair Kelly Lichter spoke. After thanking Fishbane for looking into the matter, she said, “… I shouldn’t even be shocked that a local leftist blogger would twist a narrative that individual board members are unable to meet with constituents.”
She was referring to me and my Jan. 21 post revealing dealings between herself and Molenaar in the days between the school board’s organizational meeting on Nov. 22 and special meeting on Dec. 7.
“To falsely twist and accuse me of wrongdoing,” she said, “is not anything different than I’ve seen over nearly a decade. It’s appalling. So, I’m not going to be intimidated … by some leftist blogger that incites the community.” (1/23/23 meeting recording from 8:13 to 10:37)
About twenty members of the public stepped to the podium to provide public comments at the start of the meeting. The majority spoke in support of candidate Pendley, citing his experience in education law and current position as a school district general counsel. Several questioned the decision to add a school board attorney in the first place, including Collier NAACP President Vincent Keeys.
Those who spoke in support of candidate Molenaar included a representative of Keith Flaugh, managing director of Florida Citizens Alliance, a nonprofit organization that champions K-12 education reform in Florida, and Tom Henning, a former Collier County Commissioner. Both cited Molenaar’s prior audit experience and work for former Clerk of Courts Dwight Brock, presumably as evidence of Molenaar’s qualifications for the job.
Henning closed his remarks with a seeming political statement: “Last November, the community, by a wide margin, said it wanted change. It did not want the old, it wanted new. … I worked hard for those changes. And I can tell you, if you are looking to hire the old, don’t look for me to be there the next time around. I will be there in 2024. (A question to the reader: Who is the “you” Henning was directing his comments to? And what did he mean with the reference to 2024?)
Several concerns were noted by public speakers and by school board members during the nearly five-hour meeting. Following are some of them.
The board unanimously approved a job description that “preferred” but did not require a “minimum of five years of experience in school law.” It was explained by Ms. Lichter at the time the requirements were being drafted that the duties to be assigned to the position do not require it. That said, one of the three candidates, Mr. Pendley, did have considerable school law experience and is currently serving as general counsel for the Volusia County, FL, School Board. Despite this fact, two of the five board members ranked Pendley as their last choice.
The position was posted for seven days, right before the December holidays. Given that one candidate withdrew, and only three were available for consideration, Ms. Lucarelli proposed reopening the search to see if others might apply. Mr. Carter concurred.
But Ms. Lichter objected, saying “this is time sensitive” and “this is pretty critical.” In response to Lucarelli’s proposal, she suggested the possibility of a shorter and/or probationary contract, but was unwilling to delay the process.
Perception of Unethical Behavior
Mr. Carter said that, while he doesn’t think Ms. Lichter “did anything wrong,” there is “a perception issue” stemming from Molenaar’s emailed offers to three of the board members to meet privately. Carter felt that the offer possibly violated the “cone of silence,” because Molenaar knew that he intended to apply for the position. He said that the “ethical thing” for Molenaar to have done was to withdraw his offer to meet. “I even gave him the opportunity to say, ‘yes, that may be a violation of the cone of silence. Let’s not have this conversation.’” But he did not.
The term “cone of silence” refers to CCPS Policy 6324 governing all competitive selection processes. It is “designed to protect the integrity of the procurement process by shielding it from undue influences prior to the recommendation of contract award.” It “shall be imposed on these procurements after advertisement of same.”
A Possible Conflict of Interest
After the candidate interviews, Mr. Rutherford said, “Both, I feel, Mr. Pendley and Mr. Molinaar, are very qualified as far as attorney is concerned. It was actually very hard for me to determine which way I wanted to go on it.” (1/23/23 meeting recording at 2:27:52)
But, he continued, “If the information I got is correct, there will be a conflict of interest with Mr. Pendley and I want to find out specifically about those things. And that’s why I changed to Mr. Molenaar. He’s worked for Dwight Brock for a long time, I trusted Mr. Brock … If he had this person as his assistant, then I would vote for him.” (1/23/23 meeting recording at 2:58:42):
The board took a 1-1/2-hour break to allow Rutherford to confirm what he had heard. But he was unable to do so. Despite being urged by others to share what he heard because it might affect their decisions, too, Rutherford refused. He was then asked if he wanted to delay the vote, so he could confirm what he had heard, rather than not vote for his first choice, but he said no. He then ranked Molenaar as his first choice and Pendley as his second choice.
Was the Process a Sham?
While there may not be anything illegal about the prior dealings between Molenaar and Lichter, there is a concern that the entire job posting and interview process was a sham.
Lucarelli said that an email from Lichter’s husband to the five board members the evening before the Jan. 23 meeting to interview the candidates could be seen as signaling Lichter’s opposition to Pendley to the rest of the board.
This is that email, obtained through a public records request:
“We ALL need to be able to trust this person,” Lucarelli said, “not just the majority of us. If we can’t decide, unequivocally, between all five of us, that our board attorney is someone that we trust, then I think we should open it up for more candidates.”
“Take a step back,” Carter urged Lichter. “Change the public perception. We need to do everything we can on this board to unite this community.”
Despite their appeals, the decision of the majority carried, and the community remains divided.