Investigator Matthew Pellegrino reported that Henry Kelley violated two Florida statutes pertaining to the release of public records on Oct. 18.
Okaloosa County School District's program director for the Office of Community Affairs, Henry Kelley, broke state law when he released documents exempt from public scrutiny to a television reporter, a private investigator has found.
Investigator Matthew Pellegrino reported that Kelley violated two Florida statutes pertaining to the release of public records on Oct. 18 when he provided WEAR TV’s Christopher Saul with documentation pertaining to a formal complaint lodged against Assistant Superintendent of Human Resources Stacie Smith.
The complaint had been filed by county resident Gene Earley, who called for disciplinary action against Kelley after Saul contacted him seeking comment on the Smith investigation.
In his complaint against Kelley, Earley cites two state statutes he contended were violated by the release of the documents.
Those statutes were:
Section 1012.31(3)(a), which states: “The complaint and material relating to the investigation of a complaint against a public school employee are confidential until the preliminary investigation is either concluded or ceases to be active.”
Section 119.071(2)k, which states: “a complaint of misconduct filed with an agency against an agency employee and all information obtained pursuant to an investigation by the agency of the complaint is confidential and exempt until the investigation ceases to be active, or until the agency provides written notice to the employee who is the subject of the complaint” … that the investigation had been concluded and the employee has been either cleared or found at fault.
In a report filed Dec. 2, Pellegrino — who was paid $1,499.50, or approximately $90 an hour, to conduct the investigation commissioned by Superintendent Mary Beth Jackson — concurred with Earley that violations of Florida’s Sunshine Law had been committed.
“Earley’s allegation that Kelley violated Sections [1012.31] and 119.071 of the Florida Statutes appears to be correct,” Pellegrino reported. (In the formal copy of the report, the first statute was misidentified as 1017.31.)
“A memo outlining a timeline of events concerning the Stacie Smith complaint do show that the investigation of Earley’s complaint against Stacie Smith was still ongoing beyond 10/18/2017 when Kelley released it,” the report said. “Accordingly this complaint is considered to be confidential and exempt.”
The report noted Kelley had been disciplined for releasing the Smith complaint and accompanying emails to Saul before Pellegrino was even hired. Jackson sent a letter of reprimand on Nov. 9.
State statutes, though, provide for criminal sanctions for violations of the Sunshine Law.
“State attorneys can prosecute suits charging public officials with violation of the public records act, including those violations which may result in a finding of guilt for a noncriminal infraction,” according to the 2017 edition of Florida’s Government in the Sunshine Manual.
The law provides stiffer penalties for public officers who willfully violate the Sunshine Law than for those who do so without intent. Penalties for purposely violating the law can be up to one year in prison, a $1,000 fine, or both. An unknowing violation is punishable by a fine not exceeding $500.
Pellegrino, who interviewed Kelley and Jackson, but not Earley, before compiling his report, seems to make it clear that in his opinion Kelley did not knowingly release the Smith complaint.
“Pellegrino interviewed Kelley who readily admitted providing the documents to Saul and the School Board,” the longtime former FBI special agent wrote in his report’s executive summary. “Kelley also admitted that in hindsight, he released those documents to Saul improperly and was formally reprimanded for doing so.”
Contacted at his Tallahassee office, Pellegrino declined comment on his findings.
“I have no obligation to speak to the press,” he said. “My work stands for itself.”
State Attorney unaware of report
The First Judicial Circuit State Attorney’s Office has been investigating the Okaloosa County School District since September, following the arrest of a special education teacher on four felony counts of child abuse without great bodily harm and two others, a former principal and district investigator, on multiple felony charges for failing to report child abuse.
State Attorney Bill Eddins has announced his plan to convene a grand jury to look at “the ways in which the school system has handled all manner of complaints regarding the misbehavior of employees.”
Bill Bishop, who heads the State Attorney's Office in Okaloosa County, said Thursday he had not received a complaint regarding a district public records violation.
“If something is brought to our office we would look at that at that time,” Bishop said.
Jackson declined to comment on Pellegrino’s findings regarding the Sunshine Law violations by Kelley, citing the ongoing State Attorney’s Office investigation.
“I have been advised not to discuss any matter related to investigations until after the State Attorney has completed his work,” Jackson said.
Kelley, who like other school district employees is off duty during the holidays, did not respond to a text message seeking comment. Smith also did not respond to a request for comment.
Though Pellegrino’s investigation did implicate Kelley for possible Sunshine Law violations, it also cleared him of other allegations leveled by Earley, including that he had “illegal, inappropriate and unethical access” to the complaint filed against Stacie Smith.
Pellegrino interviewed Kelley on Nov. 17, eight days after Jackson had notified Kelley that he was no longer the school district spokesman. But he put in his report that Kelley had been responsible for all media inquiries to the district since December 2014.
“Kelley maintains open lines of communication with print and broadcast media and tries to be responsive to media requests for information whenever possible,” the report said.
The report said Kelley learned of “disturbing emails” sent to the district from Earley “just prior to Oct. 18, 2017” and asked that copies be sent to him “so that he might be prepared for any media inquiries.”
Saul called Kelley and verbally requested the Smith complaint and email the same day Kelley received them, the report said.
Pellegrino’s investigation found that as school district spokesman, Kelley was entitled to documents, even those exempt from public disclosure, in order to prepare himself for media inquiries on issues at hand.
Earley's complaint also said Kelley "improperly and without authority released (the Smith) documents to the School Board." Pellegrino found this complaint to be without merit.
“There apparently is not a specific written policy directing the district to disseminate items it received from citizens to the School Board as a normal course of action, however, historically that is what routinely occurs when the school district encounters anything that may garner media or public interest,” the Pellegrino report said. “This is a practice that members of the School Board encourage."
Board chairman disputes 'normal course of action'
Pellegrino reported his findings regarding the Okaloosa County School Board being provided “items it received from citizens … as a normal course of action” based on information received from Jackson and Kelley. His report offers no indication he spoke to School Board members during the course of the investigation.
Upon hearing what Pellegrino had reported regarding information turned over to the School Board, Board Chairman Lamar White commented “if the investigator had talked to me, he might have heard something very different.”
White confirmed he had heard nothing about the school district’s investigation and findings of code of ethics violations in the 2016 case of Marlynn Stillions, the teacher arrested for child abuse Sept. 13, more than a year after Smith closed the case.
He said a 2015 school district investigation confirming allegations of a teacher helping students cheat on an assessment test, made public only recently by the Northwest Florida Daily News, was never brought before the board.
White said he also was never told about an Oct. 31 formal complaint lodged by the Daily News against Kelley, alleging “unacceptable and belligerent behavior” towards reporters and requesting Kelley be replaced "immediately" as the newspaper's spokesperson contact. That complaint, never made public by the Daily News or its legal team with parent company GateHouse Media, was filed directly to School Board Attorney Jeff McInnis.
It was White who in late September recommended establishing a school district policy mandating the superintendent immediately inform the School Board chairperson when he/she receives a report confirming a student was the victim of cruelty, abuse or harassment.
“The vote to adopt the policy was 5-0, and was done because in three previous confirming investigative reports the district was never showed the information,” White said.