JUAREZ UPHELD AT FIFTH COURT OF APPEALS: COLUNGA, ZAYAS, CORTEZ, AND AGUILAR NOT GRANTED IMMUNITY, CAN BE HELD LIABLE

By Juan Montoya
No matter how you want to twist or spin the opinion of the Fifth Court of Appeals in the case of fired Brownsville Independent School District Chief Financial Officer against the former majority of the BISD school board, two things cannot be changed: Rick Zayas, Ruben Cortez, Joe Colunga and Rolando Aguilar were denied qualified immunity, can be held liable as individuals, and cannot claim they did not deny Juarez's First Amendment rights because their actions did not come through a formal vote.
That much is undisputed no matter how one wants to read the 12-page opinion issued by the court Friday.
Now, for the second time, the district court has firmly rejected the reasoning of the former majority and – some pseudo hyperlegal interpretation notwithstanding – has soundly rejected the arguments justifying the actions of the four and their counsel.
In the case of Art Rendon, the BISD and the insurance company chose to settle with him instead of dragging on the indefensible case forward.
In the case of Juarez, the Fifth Court of Appeals has given his attorneys – Frank Perez, Star Jones and Ben Neece – the go-ahead to pursue his lawsuit against the four in the district court under Judge Andrew Hanen.
Juarez 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 $40 million 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 and can be worth as much as $40 million.
The local broker of the insurance company was none other than majority supporter and insurance mogul Johnny Cavazos.
According to testimony in deposition by Gonzales, three of the defendants (Colunga, Aguilar and Cortez) accused Juarez of misinforming the board regarding the recommendation. Two of the trustees (Cortez andf Colunga) were adamantly opposed to the AAG recommendation, and after the meeting, both Colunga and Cortez met with Gonzales and said that they were lied to by Juarez. Gonzales said he would "look into it."
Then, in the following meeting, Cortez requested a consent item be placed on the agenda. The item was described as "discussion and possible action related to the apparent misinformation directed to the BSD board members at the last regularly scheduled meeting."
After the November meeting, Gonzales spoke with Juarez. Gonzales told him that the board "was upset with him, and that (Gonzales) was to terminate him" or else Gonzales would "suffer consequences."
To make the long sordid story short, both Gonzales and Juarez were ultimately terminated with the district and both sued.
The core defense of the four former trustees is that they hadn't cast a vote that could be traced to have had resulted in an "adverse employment decision" for Juarez and therefore they could no be held liable.
This reasoning was roundly rejected by the court which stated that "Even if an adverse governmental decision does not reach a formal vote, the 'final decision maker' responsible for that adverse employment decision is subject to individual liability if her decision was motivated by impermissible considerations."
And if the four on the past majority believe that the district will continue to spend its resources to appeal the appeals court decision to the U.S. Supreme Court, it might behoove them to read the decision closely. The appeals court judges state that: "As we explained above, the conclusion that informal actions can result in liability follows clearly from the precedent of this court and the Supreme Court...The district court did not err when it denied summary judgement on (the majority's) qualified immunity defense."
As noted above, the whole brouhaha over Juarez's employment culminated when several board members objected to his recommendation on insurance.
Well, guess which trustee now has an agenda item before the board tittled: "Discussion, consideration and possible action regarding Requests For Quotation for s for legal services in BISD vs. HealthSmart. Would you believe that it's Colunga, a member of the board majority that got us into this expensive legal mess to begin with?