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DeSantis appoints member to take Rod Velez's school board seat - hours after his eligibility challenge is dismissed

RodVelez_CarlineJean_SouthFloridaSunSentinel_112222.jpeg
Carline Jean / South Florida Sun Sentinel
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Rod Velez, who was elected to the Broward School Board, speaks to the media at the School Board swearing-in ceremony at Fort Lauderdale High School on Nov. 22. Velez was not sworn in because of an eligibility issue.

Updated at 1:15 p.m. Thursday.

Gov. Ron DeSantis has placed another member on a South Florida school board — blocking the swearing-in of Rod Velez, who was chosen by Broward voters in November but faced challenges over his eligibility.

The Florida governor re-appointed Daniel Foganholi to the Broward County School Board on Thursday. The latest twist in a monthlong saga came just hours after a judge tossed out a lawsuit alleging Velez could not to take the seat because of a felony conviction in the 1990s.

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Following the court ruling, Velez had told WLRN that he intended to be sworn in late Thursday morning. But in two statements sent out shortly after 10:40 a.m., Gov. Ron DeSantis announced an executive order declaring the vacancy and appointing Foganholi.

Speaking to reporters outside the Kathleen C. Wright administration building — where the school board meets and where Velez had hoped to be sworn in — he said he called off his plans to take the oath but that he's not done fighting.

“I'm not going to quit now. And I'm not going to take it. I'm going to continue to fight,” Velez said.

John Sullivan, the school board’s Chief Communications Officer said the district had nothing to do with Velez's planned swearing-in.

“Please be advised that Broward County Public Schools nor its administration is participating in the swearing-in of Mr. Velez. Also, the District did not coordinate this event.”

Velez says he’s been waiting for months for the state Board of Executive Clemency to approve his application to restore his right to hold office.

But that approval — which under the agency's rules should be granted "automatically upon processing" — apparently never came. Instead, DeSantis, who leads the clemency board, declared that a statutory deadline for Velez to take office had run out.

Asked if he thought the governor delayed his clemency request in order to appoint one of his allies, Velez said, “absolutely.”

Velez said he has never spoken with DeSantis but had requested meetings with his staff. Those meetings never happened, he said.

“For some reason they're afraid that I get on that board,” Velez said.

It is the second time DeSantis has picked Foganholi for the board this year. After taking up a vacated seat in April, Foganholi's term ran out in November — a day after he put forward a motion to fire Superintendent Vickie Cartwright, a contentious decision that has since been rescinded.

It means DeSantis has picked two of the board's current 9 members.

Speaking at an event he hosted in Orlando this week, DeSantis appeared to preview his decision — and outlined a "blueprint" for conservatives to "flip" more (ostensibly nonpartisan) school board seats in 2024.

Standing at the podium, DeSantis recognized newly-elected Broward Board Member Brenda Fam, who ran on a "parental rights" platform, and Board Member Torey Alston, who he appointed.

"I think there's going to be a third [conservative member] because I think that one guy's ineligible. And I don't think he's going to win his court case. And so more help is on the way in Broward," DeSantis said as the crowd cheered.

Asked about Foganholi, Velez said, “He's a nice guy. But he doesn't represent my district."

Foganholi resides in Coral Springs in the northwest corner of the county but will represent the school board’s District 1, which spans the southeast corner and includes parts of Hollywood, Hallandale Beach, Pembroke Pines, Miramar and Dania Beach.

DeSantis' statement regarding Executive Order 22-279 read: "Per Florida Statutes, a vacancy in office occurs “upon the refusal of the person elected or appointed to accept the office," and that a vacancy in office shall occur “upon the failure of a person elected or appointed to office to qualify for office within 30 days from the commencement of the term of office.”

"Since 30 days have passed since the commencement of the term of office for Broward County School Board District 1, and no person has taken office within that time period, Governor DeSantis declares that a vacancy exists on the Broward County School Board, which he will fill in compliance with the law."

A constitutional law expert had warned that, under the Florida Constitution, Velez needed to take the seat within 30 days of his colleagues taking the oath of office or a vacancy would be declared. That took place on Nov. 22 — but it is unclear if the 30th day would be Nov. 21 or 22.

Lawsuit challenging eligibility is dismissed

Following a hearing on Wednesday, Judge Fabienne Fahnestock dismissed the case brought by Velez’s competitor, Marie Murray Martin, for a technical reason — stating that the kind of legal complaint Martin filed was improper. Martin, who lost to Velez by about 5% of the vote, represented herself in the lawsuit but did not show up for the hearing.

In her legal filings, Martin urged the judge to block Velez from taking the District 1 school board seat, saying Velez cannot legally be sworn in because his right to hold office has not been restored through the state Board of Executive Clemency.

Judge Fahnestock did not weigh in on the substance of Velez’s argument. His attorneys claim he is eligible to be sworn in because he has the right to vote, and that the right to hold office is an extension of that.

“We've cited substantial case law from the U.S. Supreme Court on down, from the founding of this country to date, that show that the right to vote and the right to hold office are interrelated, connected rights,” said attorney Richard Burton.

“They are derivative rights. They are linked rights. In some regard, they have been considered by courts and by people in the founding of this country to be the same right — the right of the ballot.”

Fahnestock said it was not an appropriate venue for her to weigh in on the arguments around Velez’s eligibility, because Martin did not use the proper legal path for lodging her complaint.

Robert Jarvis, who teaches constitutional law at Nova Southeastern University and is not connected to the lawsuit, says that under the Florida Constitution, Velez faces a deadline to be sworn in — 30 days after his colleagues took the oath of office.

Velez said he wasn’t sworn in with the other new board members on Nov. 22 because he didn’t want to potentially commit a crime by falsely swearing he’s eligible.

That stance has since been undermined by the arguments made by his attorneys asserting that he’s eligible after all because the right to vote and the right to hold office are linked.

If Velez isn’t sworn in, Jarvis says the seat can be considered vacant and Gov. Ron DeSantis can appoint a replacement. Asked after the hearing if he was planning a swearing-in ceremony for Thursday, Velez said “possibly”.

As of 10 a.m., a state database shows no record that Velez’s civil rights have been restored.

Kate Payne is WLRN's education reporter
Gerard Albert III is back in Broward, where he grew up, after reporting on crime and public safety in Myrtle Beach, South Carolina and West Palm Beach. Albert is a former WLRN intern who graduated from Florida International University.