Law firm advises Broward schools against recouping bonuses

The Broward School District could face significant legal hurdles if it tries to recoup bonuses for high-paid administrators that came from a voter-approved referendum, an outside law firm has concluded.

The opinion, from the law firm GrayRobinson, will likely prevent a contentious School Board vote on the matter that had been planned for a March 10 meeting.

“The School Board faces significant legal constraints in attempting to claw back referendum money distributed as employee bonuses,” an unidentified member of the GrayRobinson law firm wrote in a Feb. 13 letter obtained by the South Florida Sun Sentinel.

“Public funds that are allocated and disbursed under voter-approved referenda generally must be used according to the terms of the referendum and ‘solely for the support and maintenance of public free schools,’ but once distributed, the legal authority for unilateral reclamation by the School Board is very limited,” the letter states.

The firm said its research found “no legal authority or policy authorizing a state agency to unilaterally claw back funds distributed to employees in the absence of employee wrongdoing in connection with those funds.”

Florida law allows recovery on improperly distributed funds in some situations, the firm wrote, but the district didn’t provide any evidence where that would be warranted, such as unjust enrichment, embezzlement, conversion, fraud, theft or misappropriation by those receiving the money.

“From a practical perspective, clawback attempts may also erode employee relations and public trust,” the firm wrote.

The letter also states that “targeting clawback efforts only at highly compensated employees has the potential to increase School Board liability under the doctrine of selective enforcement.”

The GrayRobinson staff member wrote “Confidential Attorney Client work product privileged material” at the top of the letter, even though the request for the letter was approved at a public meeting, and the matter was expected to be discussed at another open meeting.

The referendum in question was approved by voters in 2022. It had been pitched as a way to provide money so that teachers and lower-paid staff members could afford to live in South Florida. But the language allowed the money to go to teachers and staff, without specifically defining who the staff was.

In 2023, the School Board voted to include principals and district-level staff at the director level or lower but exclude executive directors and chief executives.

But when it came back for a renewal in 2024, the language had been changed to include all “eligible employees.”

Some board members said they didn’t realize that included administrators making more than $200,000 a year. Even Superintendent Howard Hepburn was eligible for a $20,000 annual bonus, although he declined it, officials said. The School Board voted on Jan. 6 to end future referendum payments to high-paid staff.

School Board member Allen Zeman told the Sun Sentinel earlier this month that he planned to bring a request for the March 10 meeting to seek reimbursement from employees who still work for the district.

He argued that the agenda item was written in a misleading way, and it was not the School Board’s intent to give referendum money to high-paid administrators. He voiced concerns that the public may be less likely to support a referendum renewal in November, since employees making more than $200,000 a year received annual bonuses that exceeded $10,0000.

Board Chairwoman Sarah Leonardi said at a Feb. 10 meeting that she wanted to an opinion on the legality of clawing back the money before she voted on it. She asked for an outside review since all lawyers in the district received referendum pay. The School Board agreed.

“I wanted concrete legal guidance. I think we got it from the cadre (outside) attorney,” Leonardi said. “I think it’s appropriate that it wasn’t someone working for us who would have to pay back the money. I’m glad we got objective guidance.”

Leonardi said she doesn’t know if a School Board member will bring the issue up again. It’s not listed on the March 10 agenda, which was posted Tuesday night.

Zeman couldn’t be reached for comment on Tuesday night or Wednesday, but he said at a Feb. 10 meeting that the legal opinion would guide him on whether to move forward with his request.

“If they say we can’t do it, then we avoid community drama by not submitting the item,” Zeman told the board.

Pete Tingom, a representative for the affected employees, called the letter “a very mild opinion.”

The School Board voted in 2024 to give the employees the referendum money for three years, but they had only received 18 months’ worth before the School Board stopped the payments, said Tingom, executive director of the Educational Support & Management Association of Broward.

“I guess I would have rather asked the question, ‘Can they stop the payment?’” Tingom told the Sun Sentinel. “If they can’t claw it back, then how do they have the right to reduce it, which they have already done?”