BISD DISHES OUT BUCKS FOR LOPEZ, PENA LAWSUIT DEFENSE

By Juan Montoya
On September 22, 2015, Judge Andrew Hanen 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.
Yet, five months after Hanen's decision, the attorneys hired to defend the BISD and the trustees are still getting paid to represent two trustees (Cesar Lopez and Minerva Peña) and the BISD general counsel Baltazar Salazar for their alleged defamation of Presas-Garcia even though neither Salazar nor the trustees could submit proof that the defamation was in the course of their official duties.
IN meeting after meeting since Hanen's decision, agenda items to pay Colvin, Chaney, Saenz and Rodriguez, LLP, for legal representation in the case.
But now that the district is off the hook and a question exists on whether the two trustees were acting in their official capacity, why should the BISD taxpayers foot the bill for their questionable acts? In Salazar's case, we understand that he still hasn't provided proof for his professional bond.
In fact, when the item come up for discussion in executive session, Presas-Garcia has been excluded from participating in the discussion. Now that the other trustees or the district is no longer included in the lawsuit, why is it that the entire board – minus Presas-Garcia – continues to discuss the issue with the other non-suited trustees and counsel Salazar?
But most importantly, why should the district continue to defend Lopez and Peña?
The case has been discussed – and the law firm paid – five months after Hanen made his ruling.
In the 57-page memorandum and order issued Sept. 22, 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.
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.
Meanwhile, the legal meter is running.