Updated Jan. 22, 2023, 2:26 p.m.
The Collier County School Board will interview four candidates for a newly-created school board attorney position at a special board meeting to be held on Monday, Jan. 23, at 9 a.m. Following the interviews, the board could select one of them, or decide to seek additional input and/or candidates.
Community members should insist that the person hired for the position is someone who has the necessary education, experience, and skills and is also someone of the highest integrity and ethical standards.
In this post, I will tell you about the four applicants and their credentials, and point out that only one of them has any experience in Florida school law or education law.
Then I will share what I learned about dealings between one of the applicants (James Molenaar) and board chair Kelly Lichter in the days between the board’s organizational meeting on Nov. 22 and a special meeting on Dec. 7.
After you read this post, I hope you will want to weigh in with the board members before a selection is made.
The agenda for Monday’s meeting is here. It will be open to the public at the Dr. Martin Luther King Jr. Administrative Center, 5775 Osceola Trail Naples, FL, and live-streamed on the district’s website, here. It will also be available after the fact if you want to watch the video recording, here.
Background
During her previous term on the school board from 2014-2018, Ms. Lichter was often at odds with school district general counsel Jonathan Fishbane. She questioned his ability to simultaneously represent both board members and the school district when their interests were at odds, and suggested that the board should have its own, independent attorney. But at the time, her suggestion did not have the support of the majority of the board.
Now returning for another term, one of Lichter’s first orders of business as board chair was to get approval for a new position of school board attorney.
At a special board meeting on Dec. 7, the board unanimously approved her request and gave direction as to the minimum qualifications, responsibilities, and salary (i.e., $180,000) for the position so that a job posting could be developed. (12/7/22 minutes and video recording)
On Dec. 13, the board approved a job description for posting for a period of seven days, beginning Dec. 14.
Four candidates applied, and all met the board’s specified minimum qualifications. They are:
- Cassius Borel
- Michael Fasano
- James Molenaar
- Kevin Pendley
They will be interviewed for the position on Jan. 23.
Cassius Borel
Cassius Borel has been lead litigation counsel for Heritage Property & Casualty Insurance since February 2020. He manages the firm’s Fort Myers office, including a team of five attorneys, three paralegals, three legal assistants, and a file clerk, in the defense of first-party property claims. Before that, from April 2017, he was house counsel for Progressive Insurance in Fort Lauderdale, FL, where he practiced in the areas of auto and boating liability, and uninsured motorist, property damage, and bodily injury claims.
For other details of his 19-year legal career, see his application and resume obtained from the meeting agenda item here.
Education
Borel earned a Bachelor’s degree from the University of Alabama in 1999 and a Juris Doctor (JD) from Nova Southeastern University in 2003. He was admitted to the Florida Bar in 2004, where he is involved in the Trail Lawyers section.
Michael Fasano
Michael Fasano has been an associate with Kirwan, Spellacy, Danner, Watkins, Brownstein & Robb, a Fort Lauderdale law firm that specializes in insurance defense litigation, since April 2022. Previously as General Counsel with MacFarlane Barney Development (no website) in Fort Myers (01/2021 – 04/2022), he “created all transactional documents and financials for the construction of two towers,” a position that ended because the “project was not funded.”
For other details of his 22-year legal career, see his application and resume obtained from the meeting agenda item here.
Education
Fasano earned a Bachelor’s degree from Boston University in 1996 and a JD from Florida Coastal School of Law in 1999 and was admitted to the Florida Bar in 2000.
James Molenaar
James Molenaar has been self-employed since Dec. 2022. Previously, he was Assistant County Attorney III with the Monroe County Board of County Commissioners (08/2021 – 11/2022) but left there because he was “unable to obtain residency in Key West, FL.“
Previously, he was until May 2020 the senior legal counsel for the Collier County Clerk of Courts and Comptroller. He joined the Clerk’s office in 2014 as manager of the internal audit department and was promoted to the legal position by Clerk Crystal Kinzel in 2018.
For other details of his 27-year legal career, see his application and resume obtained from the meeting agenda item here.
Education
Molenaar earned a Bachelor’s degree from Purdue University in 1991 and a JD from Michigan State University College of Law in 1995. He also earned a Master of Law in Information Technology and Privacy Law from the John Marshall Law School at the University of Illinois in 2002, and a Master’s of Business Administration from the University of Florida in 2010.
He was admitted to the Florida Bar in 2006.
2020 Candidate for Clerk
Molenaar ran for election as Collier County Clerk of Courts in 2020 but was defeated by incumbent Clerk Kinzel. He had been endorsed in that race by Seed to Table owner Alfie Oakes. (Sparker’s Soapbox, 7/15/20)
Days after filing to run, Molenaar was fired. (Naples Daily News, 5/15/20)
Kevin Pendley
Kevin Pendley, of Ormond Beach, FL, has been the general counsel for the Volusia County, FL, School Board in DeLand, FL, since July 2020. In that position, he is responsible for all aspects of the legal department for a school district of approximately 65,000 students and 9,000 employees.
For other details of his 32-year legal career, see his application and resume obtained from the meeting agenda item here.
Education and Other
Pendley earned a Bachelor’s degree from Emory University in 1987 and a JD from the University of Georgia School of Law in 1990. He was admitted to the Florida Bar in 2007.
He also holds certification from the National Board for Professional Teaching Standards and is the only candidate to hold this certification, which is specifically asked about on the application for the position.
In addition, Pendley has a board certification in Education Law (2016) and serves on the Florida Bar Education Law Certification Committee (term ends 06/30/25). (Pendley Florida Bar Member Profile)
His relevant professional associations include Florida School Board Attorneys Association — associate member (2007-present), and National School Boards Association, Council of School Attorneys (1997-present).
According to his application, Pendley previously represented Collier County Public Schools as an outside contractor.
Molenaar / Lichter Dealings
I obtained the following information through a public records request to the Collier County Public Schools.
On Nov. 26, Molenaar emailed Lichter “pursuant to our discussion earlier this week” a “draft proposed employment agreement” dated Dec. 7, 2022, between himself and CCPS naming him as school board attorney. See here.
On Nov. 27, Molenaar emailed Lichter “everything you need to get this item placed on the December 7, 2022, Special Board Meeting,” including a “FINAL” employment agreement. “Please let me know if you need anything else, or if you foresee a problem,” he wrote. See here.
On Nov. 29, Molenaar emailed Lichter “a draft job description I crafted based upon our conversation today. Please let me know if you need anything else.” See here.
On Dec. 29, Molenaar emailed board members Erick Carter, Stephanie Lucarelli, and Jerry Rutherford:
“As you may know, several weeks ago I applied to be your School Board Attorney. If you would like to discuss my background, training and experience in greater detail, I am happy to make myself available at your convenience. If you are amenable to such a meeting, please let me know, I would be more than happy to meet with you perhaps over a cup of coffee. In the meantime, should you wish to discuss this matter further, please feel free to call me at [redacted]. Very truly yours, Jim Molenaar.”
No similar email to Lichter or to Moshier was provided in connection with my request for emails between any applicants and any board members.
How This Came to Light
During the board member comments portion of the Jan. 10 special board meeting, Lucarelli said that she had received an email from one of the applicants and asked if any other board members had received it as well. (Meeting video recording at 4:07)
She said that a candidate reaching out to one or more board members might raise an ethics concern. She suggested an analogy with a hypothetical applicant who responded to a CCPS RFP (Request for Proposal) subsequently reaching out to a school board member, which she said would not be ethical.
Lichter said she did not necessarily agree with Lucarelli’s analogy. She said that for two of the candidates, she knew “who they are” but that she doesn’t have a personal relationship with them. “I have not talked to any candidate since the job posting went out,” she said.
Carter said he also received an email from a candidate, but that he had checked with school board general counsel Fishbane, who advised him not to have the meeting.
Moshier and Rutherford did not respond to Lucarelli’s question.
Having watched this exchange, I submitted a public information request for copies of any email exchanges between candidates for the school board attorney position and current members of the school board (i.e., any emails from 11/8/22 to the present).
What Questions Does All This Raise?
Lichter seems to have asked Molenaar to draft an employment agreement between CCPS and himself as well as “everything you need to get this item placed on the December 7, 2022, Special Board Meeting.” Is there anything wrong with that?
Is the fact that Molenaar was endorsed by Alfie Oakes two years ago in his unsuccessful run for Collier Clerk of Courts in any way relevant here?
Is there an ethical problem with Molenaar offering to meet with Carter, Lucarelli, and Rutherford?
Why didn’t Moshier receive the offer to meet that the three other board members did?
What other questions come to mind?
Now What?
On Monday, Jan. 23, at 9 a.m., the school board will meet to interview the four candidates and possibly decide to offer the position to one of them.
Let your voice be heard!
The school board attorney is an important position,
one that will be paid for with YOUR tax dollars.
Which candidate do you believe is best qualified for the position? Or do you think no candidate is sufficiently qualified?
Would you like the decision delayed and the search broadened?
Before the interviews, there is opportunity for any member of the public to address the board for up to three minutes on the topic. If you would like to attend the meeting and provide input, you must submit a speaker registration form before the start of the comment period. To access the form, click here or fill one out in person before the meeting.
If you would like to comment to the board members by email, you may contact them at jerry.rutherford@collierschools.com, erick.carter@collierschools.com, kelly.lichter@collierschools.com, stephanie.lucarelli@collierschools.com, andtimothy.moshier@collierschools.com.