The Miami-Dade County School Board’s multimillion-dollar settlement with the rape victims of a former P.E. teacher came with an unenforceable gag order that prevented the survivors from disclosing the settlement amount and disparaging the school district to the media.
The victims are survivors of former Brownsville Middle P.E. teacher Wendell Nibbs, who is serving an eight-year prison sentence for three counts of sexual battery with a child in familial or custodial custody. In his 15 years as a teacher, Nibbs was accused of sexual misconduct by nine female students at Brownsville.
Five survivors sued School Board
Now all in their 20s, five survivors sued the School Board in federal court, claiming their Title IX rights were violated and the school district was negligent. The case was settled in March, though documents weren’t made available until later.
Three of the survivors who endured the worst of Nibbs’ abuse and were raped multiple times were each paid $2,332,750. Another survivor who was raped once received $1,167,250. A fifth survivor who was sexually harassed got $584,500.
But according to the settlement, the survivors and their attorneys are not allowed to disclose their settlement payouts — which are publicly available — or “impugn or disparage” the School Board to the media. Those stipulations and settlement dollar amounts are in all five of the settlement releases, which the school district provided to the Miami Herald in a public records request.
Their settlements say that the survivors and their siblings, heirs and attorneys, shall not disclose the settlement amount, written or oral, specifically barring interviews, press releases or letters to any third party.
Florida statute, however, says a provision like that “may not be enforced.”
“Any portion of an agreement or contract which has the purpose or effect of concealing information relating to the settlement or resolution of any claim or action against the state, its agencies, or subdivisions or against any municipality or constitutionally created body or commission is void, contrary to public policy, and may not be enforced,” the law says, adding that any person has standing to contest such an order that violates this rule.
The settlement continues: “Releasor and her attorneys further agree not to impugn or disparage any other party to this Release to any third party, to any member of the media, or to any other individual who may make inquiry about same.”
The release says that the victims and their attorneys can only make comments “strictly related to the evidence adduced in the case, without any unfair characterization, inflammatory language or embellishment,” or else the School Board will cease settlement payments.
The attorneys for the survivors say their clients have been paid in full.
One of the attorneys, Pedro Echarte, said he’s seen such confidentiality language in settlements with private companies, but never with a government body.
“It’s in there but everyone already knows the numbers because it’s public record,” he said.
Attorney Aaron Karger, who worked on the case with Echarte, said his clients can still talk about the facts and evidence.
“They’re aware that they’re not barred (from talking about) what gave rise to the case, talking about what happened in the case,” Karger said. “I think that they’re fine on that provision.”
The Miami Herald asked the school district for comment. A spokeswoman provided this statement from Cole, Scott & Kissane, P.A., the law firm hired by the School Board to deal with the lawsuits.
“These cases are resolved and we wish the plaintiffs and their families all the best,” the statement said. “It is our practice not to discuss the reasons, the language or any provisions in a proposed or finalized settlement agreement. A settlement agreement lends finality to litigation and further discussion by a party to a settlement may impinge on such finality or cause a conflict with the settlement itself.”
Gag order likely unenforceable: attorneys
Lance Block, a Tallahassee-based attorney who has brought sexual assault cases against school districts and has worked on claims bills against the Miami-Dade County School Board, said he had never heard of a confidentiality agreement that was upheld to the benefit of a governmental entity.
Further, he said he thinks such an agreement would be unenforceable.
“We’re not dealing with General Motors or some insurance company or private business,” Block said. “We’re dealing with a government agency that the taxpayers fund. And the taxpayers have a right to know how the government is paying claims and if there’s wrongdoing going on that justifies a $10 million payment.”
Marie Mattox is another Tallahassee-based lawyer who has sued School Boards on federal grounds. She said she’s seen governments use language like this periodically, but not routinely.
“You can put anything you want to put in an agreement,” she said. “The question is whether it’s enforceable.”
Mattox said the School Board’s stipulation could become a freedom of speech issue.
“I’ve agreed to things like that knowing it’s not legitimate,” she said. “To restrict someone’s speech about an agreement that we know is in violation of (the statute) but there’s never been an enforcement of it.”
John Dellagloria has represented several municipalities in Miami-Dade County. He currently is the attorney for the Village of Palmetto Bay.
“I don’t think a lot of government attorneys know about this prohibition,” he said.
The Florida statute, 69.081(8), also appears in Florida’s Government-in-the-Sunshine Manual. The Florida Bar ethics counsel also issued an opinion in October 2019 that said disparagement clauses “seem to limit an attorney’s ability to frankly discuss with future clients the character of the defendant, its litigation tactics, the character of its negotiation and strategy, the value of its offers, the experts and litigation tactics it uses, the timeliness of its negotiations, etc.”
“Such information is critical to a client’s decision on how to proceed with offers on cases,” the opinion stated.
Echarte, one of the survivors’ attorneys, says the women are relieved.
“They’re all trying to move forward and put this past them,” he said. “We’re hoping that through this result, through the monies recovered they’re able to get the treatment, get the therapy they need as well as stabilize themselves.”
Karger said the case established an important precedent. The Florida Department of Education changed state rules that require school districts to notify the state of employees’ bad acts within 24 hours instead of 30 days.
“We hope the school board learned this lesson,” he said.