U.S. FIFTH CT. OF APPEALS REJECTS AGUILAR, CORTEZ, COLUNGA AND ZAYAS PETITION FOR REHEARING ON QUALIFIED IMMUNITY IN ANTONIO JUAREZ LAWSUIT

By Juan Montoya
The U.S. Fifth Court of Appeals has yet again rejected a motion by defendants Rolando Aguilar, Ruben Cortez, Joe Colunga and Rick Zayas be denied qualified immunity in the lawsuit filed against by former Brownsville Independent School District Chief Financial Officer Antonio Juarez.
Aguilar and Colunga are still trustees of the BISD. Zayas and Cortez were defeated in the elections of the district the last go-round of elections.
The rejection for the rehearing was filed Friday.
The judges, without comment, simply checked off the square by the notation that read: The petition for rehearing is DENIED and no member of this panel nor judge in regular active service on the court having requested that the court be polled on rehearing en banc.
The four, individually and in their official capacity, must now go to trial in federal court on the allegations raised by Juarez that he was fired after he went to the FBI and other federal authorities to complain about bid rigging on a Stop-Loss insurance contract for the self-insured district. Federal Judge Andrew Hanen denied the four defendants their request that they receive qualified immunity on Juarez's charges.
Previously, the same appeals court had denied the four their appeal on Hanen's order denying the four immunity for their acts surrounding the Juarez firing. Nonetheless, attorneys for the district's insurance company went ahead with their appeal.
This second denial, according to some observers, means that the case will now go forward toward an eventual trial and verdict unless a settlement is reached with the four defendants and/or the carries of their insurance policy. The BISD is also named as a defendant because the four were acting in their official capacity.
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 former BISD superintendent Hector 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 their decision was motivated by impermissible considerations."