IS BISD COUNSEL COMMITTING THE SAME MISTAKES IN JUAREZ CASE AS THE ALIEF ISD?

By Juan Montoya
As the Tony Juarez vs. Rick Zayas, RubeN Cortez, Rolando Aguilar Joe Colunga and Brownsville Independent School District case wends its way through the byzantine federal court system's process of  opinions, appeals and motions to reconsider appeals, it has become clear that the case is becoming increasingly unwieldy and fragmented.

Juarez, as you will remember is the former Chief Financial Officer of the BISD who went to the feds after several of the defendants had previous superintendent Hector Gonzales remove him from his position after he recommended the wrong insurance company.

The defendants were expecting him to recommend the company whose local agent of record was Johnny Cavazos, their benefactor.

Instead, Juarez refused to play along with the defendants and went to the FBI with tape recordings where he was being persuaded on behalf of the four to blame Gonzales for the recommendation. In short, he was being counseled to use the district's grievance process and give the former board majority the justification to terminate the former superintendent.
After Juarez filed his federal lawsuit, the four defendants – through their counsel – sought to have the court grant them qualified immunity for their actions. The local federal court refused and the lawyers, without consulting with the new board majority or announcing their decision in public, appealed Judge Andrew Hanen's opinion.
Then, after the Fifth Circuit Court of Appeals in New Orleans upheld Hanen's opinion that the four could be held personally liable for violating Juarez's rights, the counsel, again without getting the BISD board's approval during an open meeting, filed a motion with the court to reconsider their decision.
We have sought to get documentation from the district to see where during the board's meetings the authority was given to Craig Vittitoe, the attorney representing ACE insurance with the firm of Law Offices of Adams & Graham, L.L.P. , of Harlingen, to, one, appeal Hanen's ruling; and two, to file the motion before the Fifth Circuit Court of Appeals to reconsider their decision.
Our public information request was filed Oct. 19, and in the district's response was e-mailed to us by Elizabeth Hinojosa, of the BISD public information office Nov. 2.
"The district does not have documentation responsive to this request," was her total answer.

This brings to question whether in not allowing the board to decide whether to proceed with the case in the local court, as the appeals court ordered, violates the Texas Open Meetings Act.

In a similar case in the Alief Independent School District, lawyers for the board had instigated court proceedings against the family of a Special Needs student trying to recover legal expenses the district incurred in fighting their demands for better services for their son. Apparently, the lawyers forgot to inform board members of their actions. In fact, they – like the BISD attorneys – had lost at the federal district court level and were set to pursue an appeal in the fifth Circuit Court of Appeals. In that case, the legal fees had already reached and surpassed the $200,000 mark. Texas law and Alief's own published board policy clearly state the elected board alone has the authority to sue on behalf of the district.

The BISD's own policies regarding litigation that "A final action, decision, or vote on a matter deliberated in a closed meeting shall be made only in an open meeting for which proper notice has been given. Gov’t Code 551.102."

If, during executive session, trustees decided instead to continue the lawsuit and no vote was taken in public and the district is still paying the legal bills, it could constitute a serious violation of the Texas Open Meetings Act.

After all, isn't that the very thing the Texas Open Meetings Act is designed to prevent, that is, secret meetings, secret actions, the people's business being carried out in a back room basically?

During a status hearing on the case held Wednesday, Hanen set a date in early May for a trial date because the decision by the appeals court is not expected until sometime at the end of this year.