School Board Votes to Reimburse Horne for Legal Fees

BRADENTON - At Tuesday's meeting, the Manatee School Board voted to reimburse attorney fees for its former OPS investigator, after Debra Horne's attorneys argued that entering a pre-trial diversion program for first-time offenders equated to successfully defending oneself against the charges. Meanwhile, a vote on whether to cover board member Dave Miner's legal fees was tabled indefinitely.

Horne was charged with failing to report child abuse for her inaction in the Rod Frazier sex abuse scandal at Manatee High; charges were dropped after completing the diversion program.

The vote to reimburse Horne $18,605.50 in attorney fees came down to 4-1, with Karen Carpenter dissenting. Expressing agreement with the advice of district attorneys and the opinion of a local senior judge, Carpenter said, "We've been urged to follow the law; hopefully at some point [that happens]." She advised that she sought out the opinion of Judge Thomas Gallen, who noted part of the rules of entering PTI: specifically that applicants to the program must submit a sworn statement, and if that statement "does not contain facts indicative of knowledge or conduct on the part of the applicant consistent with guilt of all of the elements of the offense," then the state attorney's office will not consent to entry into PTI.

Horne asked to leave OPS during the Frazier scandal and returned to an assistant principal position before being charged, at which point she resigned from the district.

MCSD attorney Mitch Teitelbaum and school board attorney James Dye have argued that Horne's choice to go through the program, as opposed to a traditional criminal trial, relieves the board of any legal responsibilities for her fees.

Florida Statute 1012.26, which states that a school district shall reimburse reasonable legal expenses for officers and employees charged with civil or criminal actions "arising out of and in the course of the performance of assigned duties and responsibilities upon successful defense by the employee or officer,“ has been used in supporting arguments by both sides.

In a letter to the board from July, attorney Scott B. Kallins, who had represented Horne through most of the ordeal, wrote that the statute clearly states that the board must reimburse Horne's fees because she "was acting within the scope of her employment when these allegations allegedly occurred and she successfully had the charge dismissed.“

But Dye has expressed doubt that Horne’s chargeable actions ”arose out of and in the course of her assigned duties and responsibilities.“

Teitelbaum, who denied Kallins' petition for reimbursement in July, has said that completion of the PTI program, and the subsequent dropping of charges against the former OPS director, does not equate to a "successful defense" as written in the statute.

Speaking to the board, Dye argued that "Successful completion of PTI is not the same as successful defense of charges; instead, it's an alternative to defending against the charges."

He added that the program "is roughly equivalent to being on probation, [with a difference being] someone who goes through it never has to go to court to defend the charges against them."

Dye also noted that the state attorney assigned to Horne's case advised that "when the charges are dropped [after completion of PTI], they are dropped without prejudice," meaning that the charges could be reinstated. Though reapplying the charges would be highly unlikely, Dye argued that the possibility "further weighs the notion that there has not been a successful defense."

Some citizens also weighed in on the item. Glen Gibellina told the board that if Horne was denied, they would "open another can of worms" if she chooses to take the case to an administrative appeals court. "At the end of the day, the case is gone and not guilty is not guilty... I think it's in the best interest of this board to side on caution," he added.

Horne, who attended the meeting with legal representatives and former MCSD attorneys Scott Martin and John Bowen, told the board that she was wrongfully criminally charged when acting in the course of her job as an OPS investigator. She stated that the state attorney assigned approached her about PTI after she filed a "not guilty" plea, and was never asked to change her plea to guilty or to plea "no contest." She also advised the board that she has "every intention" of going to trial should her reimbursement request be denied, and asked what would be more successful than having charges dropped and the record expunged.

During his time speaking at the dais, Martin suggested that the matter should have been brought to the board after the first request for reimbursement was sent to the administration. He also stated that the board had no legal authority to deny payment of the fees, and argued that statute 1012.26 supports his side's arguments because it does not explicitly mention a trial being required for reimbursement; instead, it speaks of a "successful defense."

Bowen referenced the opinion of Judge Irvin III, who he said argued that Horne was "clearly entitled to reimbursement."

Charlie Kennedy said that after spending much time reviewing arguments, "both sides make a compelling case; what we're left with is an unclear statute." Kennedy did seem to agree with Teitelbaum that over $1,800 in legal fees, which came from press conferences and other media related expenses, did not have anything to do with Horne's legal defense. He suggested they explore a conclusion in which Horne's attorneys took a reduced fee to remove that amount. Miner and colleague Dr. Mary Cantrell argued forcefully, however, that the full amount be paid and no motion to amend the item was made.

Arguing that the board should pay for reimbursement rather than have it go to an administrative hearing, Cantrell remarked that attorney fees "escalate rather quickly," and said that in professional dealings with her, she had always known Horne "to be straight and honest."

Board Chair Bob Gause also supported reimbursement. "I may be one of the very few people in this community that has read all of the investigative interviews. Some of those have disturbed me, but none of those were necessarily" from Horne, he said. Gause added that while he had sometimes criticized and praised her professional performance in the past, he "had never heard anyone suggest that [she] never cared about the kids."

Miner also supported fully reimbursing the fees, saying that he "firmly disagrees" with counsel and that "not just from a justice standpoint, but a practical standpoint, this should have been paid a long time ago ... I'm disappointed that it hasn't been."

Miner himself was to have had his request to have the district agree to cover his legal fees in advance for a suit brought against him by current OPS investigator Troy Pumphrey heard at Tuesday's meeting. However, Miner asked that the item be tabled indefinitely and the board voted unanimously to do so.