FORT MYERS - Will the Lee County superintendent have to pay the price, literally, for failing to investigate a top official?
A Fox 4 investigation found a state law that seems to indicate Superintendent Dr. Joseph Burke could be on the hook for an entire year's worth of his salary.
Burke announced he was retiring in June but recently hinted he wanted to stay. If he does, Fox 4 found a section of Florida law that could pose trouble for him and the district.
As the state begins its investigation into whether Burke improperly suspended an investigation into Deedara Hicks, board member Jeanne Dozier says Burke has something else to worry about.
"I think that with some of the evidence that we have here," said Dozier, "that indicates that that statute very well could apply."
Dozier is talking about a Florida statutes 1012.79(d) and 1001.51 (12)(b) which states: "Any district superintendent who...knowingly fails to investigate any allegation of misconduct by instructional personnel or school administrators...forfeits his or her salary for 1 year."
Another section of the law says if the superintendent has "knowledge of a legally sufficient complaint" and "fails to enforce the policies...of the district" - in this case to conduct and investigation - that superintendent should be "subject to penalties."
"Do you think the statute applies in this case?," asked Fox 4 reporter Matt Grant.
"I do," said Dozier.
This all goes back to an incident in August 2011 where multiple witnesses reported seeing director of secondary operations Deedara Hicks show up to work drunk. According to a state report, witnesses describe Hicks as "emitting the odor of alcohol" and several wine bottles were found in her purse and in her car.
But when the district began investigating, Burke shut it down, saying the incident was related to Hicks' medical condition and violated her right to patient privacy. He later admitted he didn't have proof at the time.
"You told them to stop?," Fox 4 asked Burke back in March.
"Yes," said Burke.
"And that was the end of it?," asked Fox 4 investigator Mike Mason.
"That was the end of it," said Burke.
Burke's decision could cost him a year's salary, according to Fort Myers attorney Janese Caruthers with the firm Brown, Suarez and Rios. She reviewed the statute and says Burke's decision to suspend the investigation could have financial consequences.
"That is a clear violation of the statute and he would have to forfeit his salary," said Caruthers.
"No question?"," asked Grant.
"No question about it," said Caruthers. "It's crystal clear in the wording."
But board chair Mary Fischer feels it's not so cut-and-dry.
"It could come back that Dr. Burke could have to forfeit his salary?," asked Grant.
"It could come back that way" from the state, admitted Fischer, adding the statute is open to interpretation.
"The statute is a little bit vague," said Fischer, "and it does not specify who might have the authority to enforce it."
Fischer feels this is ultimately a waste of time calling it a "distraction" and a "harassment" of the superintendent.
The district's attorney wrote in a memo to the board that he is "not looking into any of these statutes or any matters related to them."
District Attorney's Memo
To ensure all Board Members have the same information, I am providing the following. The referenced statutes basically provide that in the event a superintendent fails to refer a legally sufficient complaint against an employee who holds a certificate to the Department of Education, the Superintendent forfeits his/her salary for one year from the failure to report. The provision does not explain what entity has authority to impose the penalty. The provision is in a statute addressing the authority of the Department of Education to take action against an education employee’s certificate, so presumably the authority lies with the Department of Education. I have no knowledge of this provision ever being enforced in another district. In order to impose such a penalty, there would have to be a finding against a Superintendent. The notice to the Lee County School District of the matters the IG suggests be investigated do not reference this statute or a failure to report a legally sufficient complaint to DOE. Other than the review I just performed to advise board members of the contents of the referenced statutes, I am not “looking into” any these statutes or any matters related to them.
Keith B. Martin
School Board Attorney
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