IS THE FIX IN FOR FULLER WITH HIS TWO TRUSTEE BODS?

By Juan Montoya
Despite the recommendation of a federal magistrate who examined the lawsuit filed against the Brownsville Independent School District, forensic auditor Deffenbaugh and Associates, and some trustees by former Brownsville Independent School District CFO Tony Fuller be dismissed, the former administrator may be heading for a handsome payoff.
In spite of the negative reception for his lawsuit in the courts, district sources say the new makeup of the BISD board majority may work in Fuller's favor and it now appears that they may be leaning to award him a nice settlement for his troubles.
And while Deffenbaugh was released from the case, Fuller and his attorneys have persisted in the case against the other defendants.
BISD attorneys – unlike Deffenbaugh's – have not been successful in putting the case to rest, but now, after a new makeup of the board that includes two other former BISD administrators castigated by the findings of the Deffenbaugh audit, things seem to be looking up for Fuller.
The audit found that Chirinos' performance at the BISD Transportation Dept. had resulted in more than $2 million in unnecessary overtime payments to bus drivers and needless buildup in inventory that resulted in wasteful spending.
The audit also found that Rodriguez's cozy relationship with then-AD Tom Chavez resulted in favored treatment that resulted in the district paying thousands more for athletic equipment.
On January 2014, 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 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 filed against forensic auditor Deffenbaugh way back on June 2013. He sued the BISD, trustees Catalina Presas-Garcia, Lucy Longoria, Christina Saavedra, Enrique Escobedo, BISD administrator Sylvia Atkinson, and former Superintendent Carl A. Montoya.
Sources now say that the new majority on the board – that includes Rodriguez and Chirinos – may reward Fuller by making him and his attorneys a generous settlement offer despite the magistrate's findings that he had no case.
And while Deffenbaugh was released from the case, Fuller and his attorneys have persisted in the case against the other defendants.
Sources in the BISD say that the new board may reward Fuller by making him and his attorneys a generous offer despite the magistrate's findings that he had not case.
Deffenbaugh – 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 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 administrative leave until his contract expired at the end of the 2011-2012 school year.
In his lawsuit, Fuller charged that Deffenbaugh and the other defendants conspired to violate his First Amendment rights, that they retaliated against him, that the audit report was defamatory under Texas law, and that it constituted tortuous 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 had no merit. Morgan said that the section of the code applies to a race or class animus behind the conspiracy and in his case there was none and that it should be dismissed.
Morgan also recommended that Fuller's other claim that the defendants retaliated against him for exercising his First Amendment rights also be dismissed and found that 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 based 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.
Now, with Chirinos and Rodriguez in the majority, the saying that good things come to those who wait may bear some fruit for Fuller.
"Now that both of these guys are a majority on the board, they seem ready to give Fuller a nice payday despite the weakness of the case," said the administrator.