EVADE AND DELAY: GANG OF $4(5?) VOTES TO APPEAL

By Juan Montoya

Just days after a federal judge ruled that enough evidence existed that the majority of the board of the Brownsville Independent School District had probably violated the First Amendment rights of their former Chief financial Officer by conspiring to retaliate against him for going to the feds with evidence they manipulated bids on an insurance contract , the defendant trustees have voted to spend more of the public's money to defend their alleged illegal actions. The majority (Rolando Aguilar, Rick Zayas, Ruben Cortez and Joe Colunga) was joined by Minerva Peña in their vote to have taxpayers foot the bill to defend them.
Federal District Judge Andrew S. Hanen on June 23 denied Aguilar, Zayas, Colunga and Cortez their petition for qualified immunity for their actions in the performance of their duties as BISD trustees. Hanen said that former CFO Tony Juarez had shown that enough general issues of material fact existed to show that the trustees as individuals had disregarded that he was engaging in protected speech when he went to the FBI with allegations that the four had conspired to rig the bidding process in the awarding of the district's Stop-Loss insurance coverage to a company other than the one recommended by the former CFO.
In his18-page memorandum opinion and order, Hanen said a jury should hear the suit in federal court after denying the BISD and the majority of the board their request for a summary judgment against the former CFO's charges.
Hanen said Juarez had successfully raised issues of fact and that the defendants - individually and as BISD officials - must go before a jury to let them decide.
Hanen traced the origins of the case to the recommendation by Juarez to the board that they grant the district's Stop-Loss insurance contract to American Administration General. Evidence indicated that at least three trustees - Colunga, Aguilar, and Cortez - objected strongly to his recommendation that ultimately culminated in them ordering former superintendent Hector Gonzales to terminate his employment with the district.
Juarez had started working for the BISD as its CFO in the fall of 2008. One of his duties was to make insurance recommendations to the BISD board of trustees.
On Sept. 16, Juarez recommended that the district select AAG as its Stop-Loss carrier. At the heart of the dispute is Juarez's claim that he was demoted and ultimately terminated from employment by the BISD and the defendants personally because he recommend that the board award Health Smart (AGG) the district's Stop-Loss Insurance policy instead of to Oklahoma-based Mutual Assurance Administrators, Inc.
On Aug. 12, trustees awarded that contract for the 2009-2010 to MAA for $181,275 per month.
At the time of the award, HealthSmart complained that its contract renewal efforts did not receive fair consideration by the district’s Employee Insurance Committee or the Board of Trustees.
Sources also said that the four votes on the majority – Aguilar, Colunga, Cortez, and Zayas – were acting in concert to award the lucrative contract to the company brokered by local insurance mogul Johnny Cavazos, who stands to make up to $4 million on commissions.
After an unsuccessful campaign by the conspirator trustees to get Juarez to file a grievance against Gonzales, the former CFO went to the FBI instead and complained abut the bid manipulation and retaliation by the four.
"...the Court finds that there is a genuine issue of material fact as to the reason why the board and the trustees did not renew Juarez's contract, and that the non-renewal may have been in retaliation against Juarez's protected speech," Hanen wrote.
"The evidence before the court indicates that three of the trustee defendants (Colunga, Aguilar, and Cortez) were particularly angered by Juarez's recommendations if a particular insurance provider, to the point of accusing Juarez of lying...
"The conversation with (former trustee Otis) Powers suggests, however, that certain trustees (Colunga, Aguilar and Zayas) were willing to forgive Juarez if he would file a grievance against Gonzales and place the blame for the insurance recommendation on Gonzales," Hanen continued.
"The Court finds that there is sufficient evidence to create a fact issue regarding why Juarez's contract was not renewed, and that it is possible that the board purposefully did not renew the contract in retaliation against his reporting of their allegedly unlawful conduct to the FBI," he wrote.
Legal observers say that the majority's vote last Thursday to have the district appeal the judge's order may stem from a purely political motive: to keep the case under wraps until after the November election where Cortez, Zayas, and Enrique Escobedo are up for reelection. Escobedo voted against the district appealing the judge's findings along with Catalina Presas-Garcia.
Peña, who usually made up the third vote of the loyal opposition, this time voted with the majority to have taxpayers shoulder the legal bills.
"Even if the legal fees are coming out of our insurance funds, this means that we still have to pay the deductible and that our premiums will increase," said a district employee. Either way, taxpayers are going to pay the bill to defend the alleged illegal actions of those four."
"What's happening to Minerva?" asked a voter who had supported her in her election. "Now is seems like she is switching sides. Maybe those four have something on her."
Still, legal observers say that the defendant trustees (Gang of $4) appeal to the Fifth Circuit Court of Appeals in New Orleans is a slap in the face of Hanen, the federal judge who will ultimately hear the case in Brownsville once the dust clears. One noted that Hanen's order was replete with Fifth Circuit decisions which he cited as precedent for his opinion that the case should go forward.
"They're going to have a pissed off federal judge listening to this case," said a local attorney. "I counted no less than 10 citations of cases heard by the Fifth Circuit judges listed by Hanen in his order. What makes the district think that they are going to overturn themselves? This is nothing more than stalling for purely political purposes at the taxpayers' expense."