Audit: Add secrecy language to Broward schools exit agreements [South Florida Sun-Sentinel]

An audit firm was unable to determine whether the Broward School District violated state law by paying large exit packages to three former administrators but did have advice for the district: Keep employees quiet about these agreements in the future.

The recommendation that the district consider non-disclosure language for separation contracts came from S. Davis and Associates, a Hollywood auditing firm, after reviewing payouts to three administrators who were forced out after being named in a grand jury report that was highly critical of the way Broward schools operate.

District officials said they probably won’t follow the non-disclosure advice, one of only a few recommendations in a mostly inconclusive audit.

The audit was designed to determine whether the district adhered to state laws and district policies last fall when it paid former Chief of Staff Jeff Moquin $100,000, former Equity and Diversity Director David Watkins $93,500 and former Assistant Chief Building Official Ron Morgan $43,500, in addition to unused leave time.

The Department of Education’s Office of Inspector General ordered the district to conduct a review as a result of a South Florida Sun Sentinel news article in September that revealed these payments were much larger than normally allowed under laws governing severance pay and separation contracts.

State law caps severance pay at six weeks of pay for most public employees, but the three former employees received payments that ranged from 19 to 39 weeks of pay, not including sick or vacation time.

The school district reached out to Florida’s auditor general and attorney general to see if they would issue an opinion on whether the agreements were legal, but neither would.

“This office declines to answer questions an official or agency has already acted on and is seeking to justify,” Senior Assistant Attorney General Teresa Musetto wrote in a Feb. 27 letter to district Chief Auditor Joris Jabouin and General Counsel Marylin Batista.

The Auditor General told the district it doesn’t issue legal opinions at all, although it has frequently cited government agencies for similar issues in recent years.

In a November 2021 audit of Polk State College, a state audit found that a former employee received 20 weeks of pay, when it should have been capped at six weeks.

“College personnel indicated that the negotiated settlement was made with the employee to resign from his contract,” the Polk audit stated. “Notwithstanding, the amount exceeded the statutory limit for severance pay and violated State law.”

Still, Batista maintains the Broward agreements are legal and don’t fall under the state statute on severance pay because the employees weren’t being paid severance. Instead, they received legal settlements that required them to forfeit certain rights, such as the right to sue and the right to work for the district again, she said.

It’s also unclear whether the auditor’s recommendation on non-disclosure agreements is consistent with state law, which says government agencies “may not include provisions that limit the ability of any party to the agreement or contract to discuss the agreement or contract.”

S. Davis auditor Annette Lewis told the Audit Committee that since Batista decided the severance law doesn’t apply to the district’s payments, the firm believes the prohibition on non-disclosure clauses, which is included in the same statute, also wouldn’t apply. The auditors noted the three contracts included a clause saying the parties would “not criticize, denigrate, or disparage each other.”

“While it may not be necessary in this situation, the district should consider the use of a non-disclosure agreement along with the disparagement clause,” the audit said.

The audit didn’t explain why the firm recommended this. In a brief interview with the Sun Sentinel, Lewis would only say this language is common in many separation agreements.

Batista told the Sun Sentinel the district probably won’t include non-disclosure agreements, even if allowed.

“They’re limited in their viability because we have a public records law,” she said. “So even if the person cannot say anything, all they have to do is give you the actual agreement, so there is really no point.”

The separations were part of the fallout of a scathing grand jury report on school safety and construction. Gov. Ron DeSantis removed and replaced four School Board members shortly after the report was released in August.

In September, Tim Hay, director of the Department of Education’s Office of Safe Schools, asked then-Superintendent Vickie Cartwright to sever ties with any district employees whose “failed decisions on school safety” were highlighted in the grand jury report.

The report named four Broward employees who were still with the district in September. Cartwright decided to keep only one, Deputy Superintendent Judith Marte.

Normally, when an employee is accused of wrongdoing, they are placed under investigation and are paid until their case is resolved. But for these employees, Cartwright felt pressure from the state to remove them quickly, Batista told the Audit Committee on Thursday.

The employee investigative process “takes a long time and the results are not guaranteed,” Batista said. “You’re not going to be able to ascertain at the beginning of the investigation whether or not at the end of the investigation there will be enough basis or evidence to show just cause for termination.”

The auditors were sympathetic to the “special circumstance” the district faced.

“Based on the conditions, the administration had to act expeditiously,” the audit said. “In hindsight, the district’s administration should have considered requesting an independent opinion from the Office of the Attorney General or special outside counsel, as well as notify the district’s board members, prior to the execution of the agreements.”

School Board members said they weren’t aware of the separation agreements until the Sun Sentinel received copies through a public records request.

The auditors recommended “revising existing policies or create one, in absence of any, to address similar occurrences in the future.”

The audit said the district’s risk management department handled the three settlement payments by submitting an insurance claim. Moquin and Watkins agreed to resign, while Morgan was eligible to retire, the audit said.

The agreements were negotiated separately and auditors could find no consistency in how the payout amounts were determined.

While all three employees were given unused vacation time, only Morgan and Moquin got unused sick time.

Morgan received $104,500 for 1,474 hours of sick time, in addition to his $43,500 settlement upon his retirement in September, the audit showed. A district policy allows employees to cash out their sick time when they retire.

District policy says employees must forfeit unused sick time if they resign or get fired. Watkins, who was ineligible to retire, had accrued $103,334 in sick leave but wasn’t paid for it, the audit found.

Moquin was also ineligible to retire or collect unused sick time, but he negotiated to extend his employment for 12 weeks to burn off $45,450 in unused sick time. This was in addition to the $100,000 payment he received when he left the district in early December.

In most cases, this practice violates school district policy, which requires employees to provide a medical note if they are going to use more than three days in a row of sick time. Moquin provided no note, the audit said.

But the auditors didn’t cite this as a finding, saying it was part of a negotiated agreement and may be allowed, Lewis said. That raised eyebrows among some members of the Audit Committee.

‘You’re saying it didn’t apply because it was negotiated?” Audit Committee member Nathalie Lynch-Walsh asked Lewis. “I don’t think you can negotiate your way out of adherence to policy.”

The Audit Committee voted to amend the audit to include Moquin’s sick leave as a finding. The committee sent the audit to the School Board, which may decide next month to approve it or send it back for further review. The district also sent a copy to the Department of Education, which requested the review.

“The Inspector General’s Office at the Florida Department of Education is currently reviewing the audit’s findings,” spokeswoman Cassie Palelis said.

The department can either accept the results and close the matter or conduct its own investigation.