BREAKING: Board-Elect, David Dyer, Threatens Legal Action Against District Over Jackie Rosario’s Resolution
Mr. Dyer uses Superintendent to deliver message on how he would vote. Questions raised whether Sunshine Law was violated.
In a late evening Tuesday email directed to Dr. David Moore, Board-elect for District 5, David Dyer, threatened legal action in an effort to stop the current board from voting. The item up for consideration at today’s board meeting is a resolution presented by Jackie Rosario initially at the September 9th workshop . The resolution proposed by Ms. Rosario concerns the appointment of the school board representative to the Joint Equity Workgroup.
The email states, “Dear Dr. Moore, Upon review of the resolution posted to the website on Monday evening to be considered at the next Workshop and/or Board meeting, I strongly object to the early appointment of Ms. Rosario to the IRC-NAACP Workgroup by the current board.”
He also claimed her appointment “disrespects the Will of the Voter,” and further added, “I will take whatever procedural and legal action necessary to protect my rights as a Board Member Elect and as a Board Member.”
The Workgroup was approved and ordered by Judge Kathleen Williams on March 14, 2022 after the IRC-NAACP and The District discussed it during court ordered mediation. Judge Williams presides over the case at the US Federal Court in the Southern District of Florida.
The court order directs the school board to appoint a member for an undisclosed term. For the previous two years starting in April of 2022, Dr. Peggy Jones was seated on the Workgroup following Judge Williams’ directive. On April 22, 2024, Dr. Jones was replaced by Ms. Rosario for a term, long before Mr. Dyer was elected. Judging by the expectations of the court and historic board operations concerning this appointment, Ms. Rosario should be serving until April of 2025, a full year, just as Dr. Jones had previously done the previous two years.
Not recognizing in his email that Ms. Rosario’s appointment took place 5 months prior under direction of the federal court, Mr. Dyer claims, “Appointments are to be made annually at the November Board Reorganization Meeting. To do so earlier than the November 2024 Reorganization Meeting usurps my legal authority and responsibility to vote as a Board member in that Meeting.”
In her comments on the resolution at the workshop, board chairwoman, Teri Barenborg, made this exact argument and noted the “Will of the Voter” too. She further added her political frustration with Ron DeSantis for accepting Brian Barefoot’s resignation. She said, “We had an appointment by the Governor. Let’s face it, that changed the majority on the board.”
It was pointed out in the workshop that the policy governing appointments in the organizational meeting does not mention this particular Workgroup assignment. The vote for the Workgroup has always been off-cycle from the organizational November meeting. As mentioned, based on the court timeline, Ms. Rosario was appointed in a legal vote.
Since Ms. Rosario’s appointment, the Workgroup has not met. It is required by the court to hold meetings monthly. The September Workgroup was canceled and nothing has been scheduled for October. At the September 9th workshop, board member, Dr. Gene Posca, asked the the board to join him in directing the Superintendent to adhere to the Court’s demand to meet monthly. He called the inaction a “telling narrative” of the progress being made on the 60 year-old case.
Ms. Rosario’s resolution has two elements to it. First, because the Workgroup has not met since her appointment, she would continue on the Workgroup until November 2025. At the 2025 organizational meeting, it would bring the appointment into the schedule cycle of the board. The resolution also defines the term of the appointment. Reached for comment, she said, “This resolution simply recommends the protocols surrounding the role of the school board member and the time in which one could serve. This is a workgroup mandated by the court. It’s taken us way too long to establish expectations around who is selected and how long they should serve. I’m grateful to the four board members who expressed their willingness to support this resolution.”
In the workshop discussion, Dr. Peggy Jones agreed wholeheartedly. She said, “I don’t want to be out of [organizational] cycle. I think every board member should serve on this, I really do. I think you get a little bit more of the history … from where we’ve come to where were are going to go.”
Did Mr. Dyer and Dr. Moore violate Sunshine Law?
Yet, there might be even a more consequential misunderstanding in Mr. Dyer’s email. One that involves questions pertaining to a violation of Sunshine Law. In closing Mr. Dyer wrote, “Please advise Counsel and the Board of my strong objection.”
Mr. Dyer asked the Superintendent to be his intermediary to get his message to the board. Dr. Moore proceeded to forward the email to all board members. Under Florida’s Sunshine Law, when a person gets elected to a government board, they are not permitted to talk about issues with other board members that may come before the board for a vote. Also, they cannot use staff as intermediaries to express their consent or opposition on any item prior to that vote. In Florida statute 1001.48, the Superintendent is declared Secretary and Executive Officer of the School Board. Dr. Moore is always involved at some level.
The email clearly states his opposition to Ms. Rosario’s appointment and proposed resolution. However, what makes it a potential violation of Sunshine Law is not that he told Dr. Moore. The potential infraction is Dr. Moore subsequently forwarding the email to the whole board.
Florida’s Government in the Sunshine Manual is a state sanctioned publication that clearly explains Sunshine Law for government officials in a useful manner. It clearly states,
“The Sunshine Law extends to all discussions or deliberations as well as the formal action taken by a board or commission” ... “Accordingly, the law is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission.” (Florida’s Government-in-the-Sunshine Manual, 2022 Ed., Vol. 44, p. 25)
There isn’t a requirement that a quorum be present in a meeting for an informal discussion to be covered under Sunshine Law. Florida’s Government in the Sunshine Manual shares the intended purpose of Sunshine Law found in the words of the Florida Supreme Court. It says:
“However, there have been circumstances where the application of the Sunshine Law to individual board members has been considered. As stated by the Supreme Court, the Sunshine Law is to be construed ‘so as to frustrate all evasive devices.’” (Florida’s Government-in-the-Sunshine Manual, 2022 Ed., Vol. 44, p. 8)
In his response, Dr. Moore asked that board members refrain from responding to “ALL.”
He wrote:
“To the Honorable Board Chair and Board Members,
PLEASE DO NOT REPLY ALL TO THIS EMAIL.
I was sent the below communication by Mr. Dyer and am sending it to you for review.”
Dr. Moore is relying on the legal theory that his forwarding of the email is a one way communication and therefore, actual deliberative responses did not take place. However, Sunshine Law addresses that as well. In the Manual, a case of a Superintendent using multiple successive meetings to avoid public transparency is illustrated. The example tells the court testimony of a Superintendent about sharing the opinions of other board members. The Manual describes,
“While normally meetings between the school superintendent and an individual school board member would not be subject to s. 286.011, F.S. (Sunshine Law), these meetings were held in “rapid- -fire succession” in order to avoid a public airing of a controversial redistricting problem. Thus, even though the superintendent was ‘adamant that he did not act as a go-between during these discussions and [denied] that he told any one board member the opinions of the others,’ the one- to-one meetings amounted to a de facto meeting of the school board in violation of s. 286.011 (Sunshine Law).” (Florida’s Government-in-the-Sunshine Manual, 2022 Ed., Vol. 44, p. 9)
The email shows that Dr. Moore did tell other board members the opinion of board member - elect, David Dyer, concerning how he would vote on the proposed resolution. It was sent “for review” on a matter of action before the board. The question remains whether that elected but not-yet-seated board member’s email will have sway over an item that had overwhelming consent just two weeks prior.
Egotistical Dyer a hotshot stirring the pot. Where’s his professionalism? No way to start his tenure. One would think that at his age he’d have learned. With age wisdom, not here.
Wow! Some big fish just can’t dive into the little pond soon enough!!!