AT BISD: PATADAS DE AHOGADO

By Juan Montoya

While many of us live (as Henry David Thoreau said) "lives of quiet desperation," the Gang of $4" school board members of the Brownsville Independent School District are getting downright frantic.

That much showed when they tried to get U.S. Judge Andrew S. Hanen to issue an emergency stay of the the trial involving the majority members of the board and their actions in the retaliation firing of the district former Chief Financial Officer Tony Juarez.

Rolando Aguilar, Joe Colunga, Rick Zayas and Ruben Cortez Jr. are all charged as individuals and as members of the board for the firing of Juarez after he refused to file grievance against former Superintendent Hector Gonzales and he went to the FBI with information that the trustee defendants allegedly conspired to manipulate the district’s stop-loss insurance contract.

Hanen denied the emergency stay of the trial pending the defendants' appeal of his order for the trial to go forward saying enough evidence had been presented in court to warrant the process continuing.

He did allow , however, them to refile any time before Aug. 5, the date of the final pretrial conference in the case. However, they would have to pinpoint an appealable issue, he said.

In his previous order Hanen denied the four qualified immunity that would have shielded them from liability for violation of an individual’s constitutional rights.
“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 his denial. “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."

It might be worth noting here that in the order being appealed by the four, Hanen cited at least 10 cases decided by the Fifth Circuit Court of Appeals.

"I really doubt that the judges in New Orleans are going to overturn their own decisions," said a local attorney. "All the appeal and this latest attempt to stay the trial son patadas de ahogado."

In his lawsuit, Juarez alleged that there was a conspiracy by former and current school board members to coerce his 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 also turned over tape recording to the FBI agents he made with former BISD trustee Herman Otis Powers Jr., and and employee Elizabeth Brito-Hatcher which took place between December 2008 and mid-January 2009.

Juarez's attorneys offered them as summary judgment evidence.

“Both conversations to varying degrees implicate four of the Trustee Defendants in the alleged conspiracy to have Juarez file a grievance against Superintendent Gonzales. 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,” the ruling states.
The case has been the proverbial albatross hanging around the necks of Zayas and Cortez, who are up for reelection in November. Zayas ran against Pat Lehman for a two-year term. Cortez, a business partner with Zayas in the Cameron County Jail's commissary contract, is usually aligned with Aguilar and Colunga against the minority made up of Enrique Escobedo, Catalina Presas-Garcia, and Minerva Peña.

However, in some of her latest votes, Peña has been voting with the majority.

This trial will undoubtedly affect the BISD elections and may signify a turn in direction if Zayas and Cortez both lose. Escobedo is also up for reelection and has indicated he will run again.