Sunday, February 15, 2009

BEN NEECE CREATES STALEMATE IN BISD MESS -

I have given Ben Neece a hard time for what by actions appears to be an abandonment of his clients, Art Rendon and Antonio Juarez. In the case of Rendon he allowed the TRO to expire rather than subject his client to public cross examination, and he simply has allowed Juarez’s lawsuit to sit idol in federal court. The last thing Ben wants is to put Juarez before a federal judge while being subject to cross examination.

To be fair, BISD has also abandoned its defense. Craig Vittitoe of Adams and Graham, L.L.P., has appeared as counsel for BISD. Before his appearance Mike Saldaña filed in Rendon’s case a Plea to the Jurisdiction. A Plea to the Jurisdiction means, that court has no legal authority to rule on the merits of the case. Under the rules Ben Euresti would have had to rule on the Plea before allowing for Rendon to defend his TRO at a temporary injunction hearing. Given this reality, Ben Neece had to drop the TRO. A full fledge hearing on the court’s jurisdiction could have resulted in dismissal of the lawsuit.

The following is BISD’s argument as to why the district court does not have jurisdiction to entertain Rendon’s suit.

‘Sullivan admits that she did not exhaust her administrative remedies and acknowledges that exhaustion of remedies is a prerequisite to the trial court's jurisdiction in a case like this involving disputed fact issues. See Texas Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex.1992); Mission Indep. Sch. Dist. v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 570 (Tex.1945)."

Wilmer Hutchins ISD v. Sullivan, 51 S.W3d 293, 294-295 (Tex. 2001)

In the case of Hector Gonzales as a superintendent he knows this to be the rule. The above case is a retaliatory discharge case. Now I do concede there is an interesting twist to this - does TOMA (Opening Meetings Act) violations allow for limited suit on TOMA violation issues? "An exception to the rule is that a trial court may intercede before administrative remedies are exhausted where the administrative agency lacks jurisdiction." Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex.1978).

I have stayed away from the TOMA issues for this reason. If the court has jurisdiction, its jurisdiction is limited to TOMA violations only. This would mean the remainder of the lawsuit could be dismissed.

So here is my question, why has Craig Vittitoe, who has filed his appearance for BISD in the Rendon lawsuit, not sought a hearing on the Plea to the Jurisdiction? As of Friday last he has filed nothing. I called his office for comment, but his secretary stated she is not allowed to write down questions for Mr. Vittitoe or give out his e-mail. His email is readily available on the law firm’s web page. Mr. Vittitoe has refused to return my phone calls to answer this simple question - why on behalf of BISD have you not sought a hearing on the Plea to the Jurisdiction?

There is a stalemate. Both sides now know both sides are prepared to go all the way with accusations of wrongdoing by both sides. This becomes a no win for both sides. After all of this drama why has BISD refused to defend the interests of the taxpayers?

Gonzales has made it worse with his lawsuit. Craig Vittitoe has already been hired to defend the Board Members in the Rendon suit. Gonzales is a major witness in that lawsuit who was sued in his Representative Capacity. Vittitoe cannot be working with Gonzales as a witness for BISD, at the same time he is representing the Board Members in the lawsuit filed by Gonzales. This means the taxpayers will foot yet another bill for attorneys fees, as yet another law firm must be hired.

I assume the BISD Board will make this decision at the next meeting. So now we have more lawyers being hired at the taxpayers expense, and these lawyers are doing nothing to protect the taxpayers. It is a stalemate and the taxpayers are paying the bill. I will give Ben Neece an A+ for this. He has protected his client with a stalemate of "you fire my client he will talk." This could be construed as blackmail to influence the decision making of elected officials. This is a crime. Again this will be a matter for the FBI to decide.

I took Antonio Juarez’ claims related to bribery to the FBI because I knew then what I know now, both sides are running scared and hope to find a way to shut this down without further damage to themselves. Gonzales has added to this mix with his claims.

If Gonzales believes he is the object of retaliation for going after Joe Rodriguez then he should take the audit report which proves his claims to the FBI and provide them with an affidavit stating which Board Members are blocking Joe Rodriguez’ discharge. If he believes that the BISD police chief is obstructing the investigation into wrongdoing, then he should allege that in an affidavit to the FBI. If he does this then the truth will come out. But going to the Herald behind the scenes (either individually or through a third party) to have them request the audit does not help his case. Further refusing to tell the people to which law enforcement agencies he took the claim, does not help his case.

None of this excuses his neglect concerning Rendon’s mismanagement of Special Services. Gonzales has to go for that reason, and not because he supports the discharge of Joe Rodriguez, so the allegations goes.

The most Gonzales can do at this time to save face is to take down the four board members he is suing. I would submit school boards are not in the habit of hiring former superintendents who have sued the school board on claims of corruption. He is not going to find another job after suing the school board members. No school board will ever trust him. His career is over because of his own actions.

But this does not mean he cannot leave as the good guy - Gonzales needs to face the reality of the mess he has created for himself by suing the school board. He needs to take his claims public, while in a very public way filling them with the FBI. It is time the FBI get to this bottom of this mess.

He also needs to concede that he allowed the situation with Art Rendon to get out of hand. So long as he is defending Art Rendon, those who know the truth about Special Services, will demand Gonzales be fired. Gonzales cannot claim he is looking out for BISD by going after Joe Rodriguez, and then ignore the mess created by Art Rendon. It comes across as selective indignation.

While he will never be hired as a superintendent again, he can still rally his supporters in Brownsville and work with the TEA to start another Charter School. Maybe he can make it up to all the special needs children who have suffered under Rendon, and start a Charter School which addresses their needs.

In addition he needs to order his attorney to non-suit his intervention in the Rendon lawsuit. He has clearly breached his fiduciary duties to BISD by suing BISD within the Rendon lawsuit. First and foremost he had no legal or equitable interest in the lawsuit to justify the intervention. Second, assuming the cases were to go to trial his testimony against BISD in his own claims would cost BISD money in the Rendon suit.

To Mr. Peña, Mr. Gonzales attorney - if by Friday morning you have not non-suited Gonzales' intervention I will ask the State Bar to issue sanctions under In re Bennett, 960 S.W.2d 35, 40 (Tex.1997) (orig. proceeding). The Bennet decision clearly gives Judge Euresti authority to issue the sanctions sua sponte without a motion. In fact he can still issue the sanctions after you non-suit it. Judge Euresti can certainly save face in this mess if he would simply do as the Texas Supreme Court commands he does under the Bennet decision.

Judge Euresti should issue a Show Cause Order to Mr. Peña to state Mr. Gonzales' equitable or legal interest in the Rendon suit of face sanctions for forum shopping as provided for in the Bennet decision. Judge Eursti needs to send a message to the attorneys of Cameron County he will not play their games or accept their insults that he can be trusted to ignore the law.

While Judge Euresti should do this on his own without a motion by the defendants, I would expect that once BISD approves the hiring of an attorney, the attorney will file a Motion to Strike the Gonzales lawsuit, and move for sanctions. But then again, it is all a stalemate being paid for with the taxpayers money. Neither side wants this litigation to continue. They will benefit from this stalemate so long as Judge Euresti plays into the games. The taxpayers will be caught holding the bag.

I am e-mailing his to Craig Vittitoe for his response as to why BISD has taken no action to seek a hearing on the Plea to the Jurisdiction as filed by Mike Saldaña before Mr. Vittitoe was hired as counsel. Inasmuch as the taxpayers are paying him, I would assume the taxpayers have a right to know.

9 comments:

Anonymous said...

If you think pursuing Ahumada et al is time-consuming, wait until you wade into the Joe Rdz. morass. That could take years to sort out.

BobbyWC said...

I do not think it will ever be sorted out - all sides are dirty and now they need to find a way to calm things down and pretend it never happened.

This is the lesson people need to learn. There is no desire to clean-up the mess. they all need to corruption to keep their political machines going.

This is why the FBI taking control of the mess is the only option.

If Ben Euresti would simplu do his job and issue the Show Cause Order as I suggested, it will scare Gonzales and his attorney into submission. But even then the truth will not come out.

Unforntunately the Herald has taken sides and has no interest in reporting the complete story.

It is just so so sad

Bobby WC

Anonymous said...

THe next board mtg is Tuesday and they are not hiring an attorney at that meeting. The agenda is online.

Anonymous said...

Let us know the time and place to show up for Gonzales.

BobbyWC said...

Right now it is set for 8:30 am march 12, 2009 - Euresti posts his docket on the internet so I will keep an eye on it

Bobby WC

The Merovingian said...

You are looking a little closer to the truth of the matter, but there is still a lot that is just pure conjecture.

M.

BobbyWC said...

Opinion is conjecture - no dispute there -

All analysis is conjecture unless is it based on pure science - which is a rare event in analysis

without conjecture there is no opinion

There is a stalemate - I do believe based on what I have been told by several lawyers that Judge Euresti is pissed that he was made a fool of.

I do not think he is going to be played for the fool again in this case or any other public case again.

Bobby WC

Anonymous said...

I think you are wrong about conjecture. I think it means an inference from defective or presumptive evidence only. Opinion or a theory is based on pure honest science. What you are doing is stupid. I think the Merovingian just called you a windbag and you let him.

BobbyWC said...

words ahve actual meanings - you might consider a dictionary for meaning versus your anger torwards me

a hypothesis drawn from observed patterns in several examples
www.csdsac.org/Curriculum/mathglossary.htm

http://www.google.com/search?hl=en&rlz=1T4GGLL_enUS303US303&defl=en&q=define:conjecture&ei=rIWaSaWhLpjcyAW3lKWGCg&sa=X&oi=glossary_definition&ct=title

Bobbywc