JUDGE CLEARS ESCOBEDO, BISD IN $1 MILLION LAWSUIT; CATA CAN SUE SALAZAR, LOPEZ, PENA FOR DEFAMATION

By Juan Montoya

A federal judge has ruled that evidence in the $1 million lawsuit brought against the Brownsville Independent School by Lucy Longoria and Catalina Presas-Garcia did not meet the requirements necessary to prove First Amendment violations and retaliation, but that the defamation allegations by Presas-Garcia against two trustees and the district's legal counsel can continue.

In a 57-page memorandum and order issues Sept. 22. Judge Andrew Hanen denied the women's complaints against the BISD, former board president Enrique Escobedo, trustees Herman Otis Powers, Jr. , Minerva M. Pena, Jose Hector Chirinos  Cesar Lopez, Dr. Carl A. Montoya, and BISD legal counsel Baltazar Salazar alleging First Amendment violations and retaliation.

Both had filed the lawsuit against the defendants alleging that they had been censured and retaliated against  by the late BISD board president Escobedo with the complicity of the other defendants after they went to the Texas Rangers, Cameron County District Attorney Luis V. Saenz and the Texas Attorney General's Office with their allegations of criminal acts.

In their lawsuit, they claimed that in their roles as BISD Trustees, they became aware of several corrupt or questionable practices involving the school district and the Board. They alleged a whole range of unscrupulous financial, administrative, and hiring practices, including nepotistic contracting with insurance vendors and construction companies, politicized hiring of unqualified or incompetent individuals, and giving inappropriate pay increases to certain favored BISD employees.
They requested a judicial declaration that their alleged public censure and censor was null and void, together with damages and other legal and equitable relief, on the grounds that Defendants violated their rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution, as well as various federal and state laws.
In a long-ranging discourse on the rights of public officials in the carrying out of their duties, Hanen granted the defendants motions to dismiss these claims stating that their actions were carried out in the performance of their duties.
However, in the case where counsel Salazar and trustees Lopez, and Peña accused Presas-Garcia of a criminal action and Salazar accused her of making sexual advances on him falsely during a public meeting did not entitle them to their immunity claim.
Hanes said that although the defamation claims were made under Texas law, the federal courts retain jurisdiction "in light of the federal law claims, which are based on the same or similar factual allegations as the state law claims."
Hanen's made a distinction between the right of public employees and elected government officials to free speech protections.
"None of the Supreme Court's public employee speech decisions qualifies or limits the First
Amendment's protection of elected government officials' speech," he wrote citing precedent. "...there is a meaningful distinction between the First Amendment's protection of public employees' speech and other speech, including that of elected government officials...(and ) on the specific issue of whether an elected official alleging retaliation by his peers (i.e., other elected officials who have exercised competing freedom of speech rights) is entitled to the same First Amendment protection afforded private citizens."
However, in the case of the defendants' motion to dismiss the defamation action, "the Court finds that Plaintiff Garcia has alleged “enough facts to state a claim to relief that is plausible on its face” for her defamation causes of action against Salazar, Pena, and Lopez.

"Plaintiff alleges that on October 1, 2013, Lopez, Pena, and Salazar defamed her during a closed session of the Board when they allegedly accused her of criminal conduct for an email Garcia sent to a BISD employee," Hanen wrote. "This allegation sufficiently identifies the “time, place, content, speaker, and listener,” as required to plead defamation. Likewise, for the other alleged instance of defamation committed by Salazar, Plaintiff sufficiently identifies each of the above requirements to survive a...motion to dismiss."

Salazar had alleged that as a "professional employee," he enjoyed immunity for his alleged "conduct in telling the board and the public that Presas-Garcia solicited sexual favors from him and made 'other disgusting sexual innuendos' did not embody acts “incident to or within the scope of the duties of [his] position of employment" Hanen wrote. Therefore, Salazar’s request to grant him immunity as a “professional employee” of BISD was denied.
In a side note, Hanen said that "To the extent that Lopez and Pena also moved to dismiss asserting professional employee immunity, the Court, without evidence on the record, is unable at this juncture to determine whether Lopez and Pena could be said to be acting within the scope of their duties." Hanen then denied their claims of immunity.
In his conclusion, Hanen granted the motions to dismiss filed by all the defendants except to the extent that those motions sought dismissal of Presas Garcia’s defamation causes of action against Salazar, Lopez, and Pena in their individual capacities for the statements allegedly made during board meetings by those three defendants on July 23, 2013 and October 1, 2013. He denied the motions to dismiss the defamation claim against Salazar, Lopez, and Pena.