Judge won't stay BISD retaliation trial

A federal judge has denied an emergency stay in a trial to determine whether four members of the BISD Board of Trustees fired former chief financial officer Tony Juarez because he went to the FBI with information about an alleged conspiracy to manipulate the district’s stop-loss insurance contract.

U.S. District Judge Andrew S. Hanen on Wednesday denied an emergency motion by the trustees and the Brownsville Independent School District to stay the case pending an appeal but said they can refile such a motion any time before Aug. 5, the date of the final pretrial conference in the case. To do so, however, they would have to pinpoint an issue that is actually subject to such an appeal, the judge said.

The trustees and BISD had appealed Hanen’s earlier denial of their motion for summary judgment based on qualified immunity, arguing that it would be illogical to hold a trial when the case could be overturned on an appeal already filed. Qualified immunity shields government officials from liability for violation of an individual’s constitutional rights.

Hanen earlier dismissed Juarez’s 14th Amendment due process claims relating to the nonrenewal of his contract.

BISD said Thursday that it would not comment on pending litigation.

The case concerns a lawsuit Juarez filed in January 2009 against BISD, trustees Rolando Aguilar, Joe Colunga, Ruben Cortez Jr. and Rick Zayas, BISD counsel Mike Saldaña and former Superintendent Hector Gonzales and his successors.

Hanen earlier dismissed Saldaña and Gonzales as defendants and disposed of most of Juarez’s claims in the case. He ordered a trial to determine whether the nonrenewal of Juarez’s employment contract was retaliation for an act that constituted protected free speech under the First Amendment, namely going to the FBI about alleged wrongdoing.

“This court found that there was sufficient evidence which if believed by the finder of fact would support a finding of retaliation,” Hanen wrote in Wednesday’s ruling. “It also concluded that a fact issue remains as to whether or not the Trustees’ motives for not renewing the contract were actually retaliatory. That being the case, it could not grant the Trustees’ motion for summary judgment based on qualified immunity. After the court denied a trial continuance, the Trustees filed with the Fifth Circuit an appeal. Now the Trustees and BISD seek a stay of the current trial proceedings until the Trustees appeal is decided,” Hanen wrote in denying the stay.

The original lawsuit alleges a conspiracy by former and current school board members to coerce Juarez’s participation in manipulating BISD’s stop-loss insurance contract. The lawsuit alleges that when Juarez would not participate, the four trustees coerced Gonzales to obtain Juarez’s resignation. At the same time, the lawsuit alleges that current and former BISD trustees sought to coerce Juarez into a conspiracy to oust Gonzales, for which Juarez was promised restoration to his status as chief financial officer.

Rather than participate in the alleged conspiracies, Juarez filed the lawsuit.

He is currently employed as executive director of the Brownsville Housing Authority. He returned to Brownsville in 2008 to go to work for BISD after a 14-year career as a public school administrator and finance official. He holds a doctorate in education from the University of Texas at Austin, an MBA from the University of Phoenix and a superintendent’s certificate among other credentials.

In a June 23 ruling, Hanen noted that Juarez’s problems with BISD started soon after going to work as CFO and issuing a recommendation to select American Administration General (AAG) as the district’s carrier for stop-loss insurance coverage, according to a deposition by Gonzales in the case.

“This recommendation formed the basis of initial animosity towards Juarez,” Hanen wrote in the ruling. “According to Gonzales, three of the trustee defendants (Colunga, Aguilar and Cortez) accused Juarez of misinforming the board regarding the recommendation. Two of the trustee defendants (Cortez and Colunga) were adamantly opposed to the AAG recommendation, and after the meeting, both Colunga and Cortez met with Gonzales and said that they had been lied to by Juarez. Gonzales told them he did not think Juarez had lied but agreed to ‘look into it.’”

After the November 2008 board meeting, Gonzales spoke with Juarez, telling him that the board was upset with him and that Gonzales was to terminate Juarez or else “suffer consequences.” According to the ruling, Gonzales did not want to terminate Juarez and offered him a reassignment if Juarez would resign as CFO.

“According to his affidavit, Gonzales ‘understood and believed [he] was conveying to [Juarez] that if [Juarez] performed satisfactory in his newly assigned position, [Gonzales] would not have a problem to recommend renewal of [Juarez’s] contract beyond the existing term of the contract although [Gonzales] never specifically told him that using those words,” Hanen’s ruling says.

Juarez resigned as CFO on Nov. 24, 2008, the ruling states, and was reassigned as the district’s grants writer.

Then, on Jan. 16, 2009, Juarez filed a grievance against the four trustees “alleging that a majority of BISD [board] had violated the Texas Open Meeting Act, that the board had conspired in manipulating the insurance bidding procedures, and that current and former trustees had attempted to engage him in a conspiracy to oust Gonzales.”

In the grievance, “Juarez communicated his fear that not participating in the conspiracy would result in his termination, and he also sought to rescind his letter of resignation and be restored as CFO. This grievance was ultimately dismissed at the Level II stage when Juarez and his attorneys refused to participate after objecting to the hearing officer as being one of the complained-of parties in Juarez’s grievance.”

The ruling also contains information from Juarez’s affidavit dated May 28, 2009, about meetings he had with Elizabeth Brito-Hatcher, a BISD employee, and Herman Otis Powers Jr., a former BISD trustee. Juarez tape-recorded two of the conversations, which took place between December 2008 and mid-January 2009, and offered them as summary judgment evidence, according to the ruling.

“Both conversations to varying degrees implicate four of the Trustee Defendants in the alleged conspiracy to have Juarez file a grievance against Superintendent Gonzales,” Hanen writes. “Powers, in particular, indicated that he had spoken to defendants Colunga, Aguilar and Zayas about the proposed Juarez grievance against Gonzales. The message from Powers, which he attributed to various defendants, was that if Juarez would file the grievance against Gonzales and blame Gonzales for the statement about the insurance recommendation, Juarez would get his job back,” Hanen’s ruling states.

“In Juarez’s second affidavit,” Hanen writes, “he states that on Jan. 15, 2009, he met with his attorneys and two FBI agents and disclosed his ‘belief that the Trustee Defendants were manipulating the bidding process for the District’s Stop Gap Insurance Coverage.’ He also informed them about the meeting he had had with Powers, in which Powers first asked him to file a false grievance against Gonzales, and he played the recording of the Brito-Hatcher conversation for the agents. Then, as described above, Juarez filed his grievance against the Trustee Defendants instead of against Gonzales.”

Subsequently, Juarez’s original contract as CFO, the position from which he had resigned, was not renewed, and Juarez also was not offered a contract renewal for the reassigned position of grants administrator.