A federal magistrate has recommended that the lawsuit brought by former Brownsville Independent School District Chief Financial Officer against forensic auditor Defenbaugh and Associated be dismissed with prejudice finding tha the former CFO for his failure to state a claim upon which relief can be granted.
Further U.S. Magistrate Ronald G. Morgan recommended to the federal district court presided by judge Andrew Hanen that Fuller's state law claims against Deffenbaugh also be "dismissed with prejudice pursuant to the Texas Citizens' Participation Act, or in the alternative, be dismissed without prejudice for lack of pendent jurisdiction."
Fuller sued the BISD, trustees Catalina Presas-Garcia, Lucy Longoria, Christina Saavedra, Enrique Escobedo, BISD administrator Sylvia Atkinson, and Superintendent Carl A. Montoya as well as the forensic auditor on June 7, 2013.Defenbaugh – hired at $250,000 to perform the forensic audit – presented the audit to the board at a closed meeting on Feb. 15, 2012. In it, the auditors stated that Fuller failed to to demonstrate "the competencies in both faculties and capabilities necessary" to function as a CFO. The report also stated that Fuller demonstrated an attitude of "indifference and nonchalance" regarding fiscal responsibility.
The BISD released the report Feb 16, 2012 and on March 28, 2012, Fuller was given a letter stating that the BISD intended not to renew his employment contract for the following school year. Then, on April 13, 2012, the board voted not to renew his contract. He remained on paid adminitsrative leave until his contract expired at the end of the 2011-2012 school year.
In his lawsuit, Fuller charged that Defenbaugh and the other defendants conspired to violate his First Amendment rights, that they retaliated against him, that the audit report was defamatory under Texas alw, and that it constituted tortious interference with his contract with the BISD. He also charged that the auditors' actions constituted intentional infliction of emotional distress, and that Deffenbaugh's actions in concert with the other defendants constituted a conspiracy.
The first two claims were made under federal law while the last four were under state law.
Morgan ruled that Fuller's claim that the defendants conspired to violate his First Amendment Freedom of Speech under 42 USC 1985 as a citizen of the United States. However, Morgan states that the section of the code applies to a race or class animus behind the conspiracy and in his case there is none and should be dismissed.
His other claim that the defendants retaliated against him for exercising his First Amendment rights was also recommended dismissed by Morgan who found tghat he had not provided any evidence to support his claim that an agreement existed between Deffenbaugh and the BISD-related defendants.
"Fuller seeks to have the court to conclude that there must have been an agreement between Deffenbaugh and Presas Garcia nades upon:
1) a previous business relationship
2) the fact that the scope of the audit was expanded to include his performance
3) that Presas-Garcia was a political ally of the administrators he testified against (Art Rendon and Superintendent Hector Gonzales)
"None of these purported facts show an agreement between Deffenbaugh and Presas-Garcia – or any other BISd board member or employee – to violate Fuller constitutional rights," Morgan wrote. "In the absence of such an agreement, Deffenbaugh was not acting under color of state law.
"At the absolute worst, Fuller has pled facts to show possible ethics violations against Presas-Garcia. What he has failed to plead are any specific facts that show, or would tend to show, an agreement between Deffenbaugh or any governmental actor to violate his rights," the opinion states.
Morgan also ruled hat Fuller's claim of defamation were filed untimely since the statute of limitations for slander and defamation is one year after the day of action accrues. Since the audit was first published and circulated February 15, 2012 and Fuller did not file his complaint until June 7, 2013, the claim was untimely filed, he wrote.
Fuller has 14 days from the date of being served with Morgan's report and recommendations (January 15) to fiel written objections with Hanen.
The overriding question now is: Where is the legal representation for the BISD and its trustees and administrators? Defenbaugh is off the hook, but are the BISD's legal counsel going to delay and milk the cash cow that the district's legal counsel office has become under Baltazar Salazar? Or will he have to hire expensive outside legal help to do what Deffenbaugh did?
1 comment:
Has anyone ever asked to disclose the amount of tax dollars used by BISD annually fighting themselves....legal actions that are more political than substantive. These dollars are taken away from student use or faculty raises...all because the Trustees are assholes and continue to fight among themselves. The losers are the students, the teachers and staff and the taxpayers. And now, BISD has hired a felon as their attorney....we can only expect that from this BISD Board of Trustees.
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