SIMON IGNORED HER CONTRACT WITH ACPS

October 18, 2021

Simon is in breach of her contract with Alachua County Public Schools (ACPS). Section 10.3 of the contract requires her to “maintain and keep current a valid certification in administration and supervision or equivalent as issued by the Florida Department of Education.” Let’s look at FACT vs OPINION.

This breach of contract is an undeniable FACT. The Gainesville Sun recently published an OPINION article decrying this important issue as a “manufactured controversy.” The School Board’s attorney, Mr. Delaney acknowledges the FACT that Dr. Simon does not have the certifications referred to in her contract. Delaney also stated “It is my OPINION that Supt. Simon has not breached the terms of her contract for several reasons.”

In his OPINION letter, Delaney has tortured the words “maintain” and “keep current” to conclude the certification requirement has somehow been waived. But, the requirement has not been waived. It is a FACT that Simon’s contract requires any modification to be in writing and approved by the School Board.

Simon’s certification problem is similar to former School Board member Mrs. McGraw’s District 2 residence problem. Board members are required to “maintain” a residence in their district. The Court and the Governor both found Mrs. McGraw had failed to “maintain” her residence in District 2 — even though she never lived in the district to begin with. This is analogous to Simon’s failure to “maintain” the certificate.

The Florida Supreme Court [ex rel. Askew v. Thomas, 293 So.2d 40 (Fla. 1974)] has held the State Constitution 

“expressly uses the term ‘maintain,’ which is a continuing verb, applying during any of the term in which the office is held; otherwise, there would be no reason to spell out in Art. X, § 3, the ‘failure to maintain the residence required’ as one of the instances creating a vacancy.”

As the Supreme Court explained, “maintain” is a continuing verb, applying during every part of Simon’s term as superintendent. There would be no reason to include the word “maintain” in Simon’s contract, since it already includes the words “keep current.” In FACT, Simon breached this provision on her first day under the term of the contract. Even if she acquired the required certification now, Simon has already breached by failing to “maintain” it during any part of her term.

A simple comparison of Simon’s Interim Superintendent Contract and final Superintendent Contract shows the Certification requirement is not an inconsequential afterthought. Various sections within the contract were added and amended regarding conditions, duties, responsibilities, and powers of employment as Superintendent of ACPS. It is a FACT the Certification requirement was not present in Simon’s interim contract, but was added to her contract for Superintendent.

"I believe my educational and professional background speaks for itself. Clearly this is a non-issue."
Dr. Carlee Simon ACPS Superintendent

The OPINION of the School Board attorney that these sections are examples “of provisions that are in the contract but may not apply to the Supt.’s current situation” ignores the wording of Section 10.3. The wording of Section 10.3 does not say the requirements “may not apply” but instead uses the word “shall apply,” which in FACT means “will” or “must.” 

Delaney, Simon, and Board Chair McNealy signed off on the final draft of the contract on March 16, 2021. Simon had more than three months to acquire the required certificate before the July 1, 2021 start date of her contract. Mr. Delaney’s OPINION doesn’t excuse Simon from failure to meet the requirements of the contract as signed. 

FACTs matter —  OPINIONs don’t.

Simon’s handling of this issue is consistent with her habit of generally ignoring rules and digging into her position, rather than acknowledging a problem exists and working in good faith to resolve it. Simon is in breach of her contract as superintendent, and the School Board is relieved from all obligations under the contract, if they choose to terminate her.

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