SHOULD THE GANG OF $4 TRUSTEE-DEFENDANTS BE SUED TO PAY FOR UNAUTHORIZED FEDERAL APPEAL?

By Juan Montoya
Ever since May 1, lawyers for the Brownsville Independent School District have been waiting for a response from Rick Zayas, Ruben Cortez, Rolando Aguilar and Joe Colunga.
That's the day that a majority on the school board that included Catalina Presas-Garcia, Lucy Longoria, Dr. Christina Saavedra, and Enrique Escobedo passed an action item directing the district to seek reimbursement for the cost of appealing a federal judge's summary judgement in the Antonio Juarez lawsuit.
The action item passed by them on May 1 reads:
"Move that the district seek reimbursement from the individual defendants in the Juarez lawsuit for all fees and costs incurred by the BISD or its insurer, at that time it was ACE Insurance, for actions taken by the BISD attorneys in the lawsuit to appeal the trial court's summary judgement order taken without the board's consent."
Juarez,  the former Chief Executive Officer of the BISD, was terminated from his position after he made a recommendation that a company not represented by agent of record Johnny Cavazos be awarded the district's Stop-Loss insurance contract.
When Juarez made his recommendation, the majority then on the BISD board pressured him to file a grievance against then-superintendent Hector Gonzales that would allege the superintendent had forced him to make the wrong recommendation so they could use it a justification to terminate him as well.
Juarez instead went to the FBI and reported his refusal to engage in the conspiracy to rig the insurance contract and to file the bogus grievance against Gonzales. As part of his complaint, Juarez also gave the FBI recordings made of former trustee Otis Powers which indicated that enough evidence existed that a conspiracy made up of the four trustee-defendants named in the case (Zayas, Cortez, Colunga and Aguilar) and others so that a jury trial could go forward.
After federal judge Andrew Hanen issued his order and memorandum, the attorneys defending the four defendant-trustees and the district (Craig Vittitoe, etc) moved on their own to appeal Hanen's order to the Fifth Circuit Court of Appeals in New Orleans.
That court, in turn, upheld Hanen's order not to grant the defendants qualified immunity for their actions because the judges reasoned that their conduct might have been illegal.
Undaunted at this judicial rebuff of their legal strategy, the trustee-defendants and Vittitoe appealed for a rehearing. That was denied by the Fifth Circuit Court of Appeals as well.
There was just a slight hitch to this expensive legal strategy.
Vittitoe and the trustee-defendants took that move on their own without going before the board. The new board majority discussed their concerns "that the attorney who represented both the board and the individuals at that time should not have proceeded with these filings without the board's consent..."
The board passed the action item and on May 8, the four trustee-defendants were given notice by certified mail that "the request should be viewed as a request for the individual defendants repay this amount or that the insurer credit that amount as additional insurance coverage. The precise amount is in records presumably held by ACE as amounts paid by ACE to the law firm for this work to challenge the summary judgment order."
 Since that demand letter was written back on May 8, the BISD has settled with Juarez and he has been rehired and a settlement paid. The district is continuing to seek repayment for the work done on the appeal without the board's consent.
Just how much of the settlement with Juarez and Gonzales is made up by the unauthorized appeal has yet to be determined. The new majority – deciding that the $2.3 million that had been spent on legal costs on the cases before they even reached the trial stage was quite enough – decided to settle for its share of $700,000 in the $1.5 million settlement with both men and cut its losses.
The BISD's attorneys told the board that since the federal courts had removed the qualified immunity from the four defendants, any damages to be paid would have to be paid by the district's reserve balance fund, and not by the insurance companies. Moreover, they were told there was a strong possibility the district would not prevail. Rather than exposing the BISD to potential multi-million losses that would cripple its finances, the board opted to settle with the men.
It is now almost November, more than six months after the four defendant-trustees were sent the letter. So far, neither them nor their legal representatives have responded. Cortez is off and running for a position on the Texas School Board of Education, Colunga and Aguilar chose not to run for their positions, and Zayas is filing lawsuits on behalf of former AD Joe Rodriguez against BISD auditors.
Apparently, these fine gentlemen find it easier to step away from the mess they created and leaving the taxpayers footing the bill and letting someone else clean it up.