Tuesday, December 1, 2009



Yesterday I noted that I believe Gonzales’ attorney may have done a great job in establishing futility in seeking relief from the BISD Board. I found the following concerning the futility doctrine and the Texas Administrative Code (TAC).

“However, the Supreme Court has noted that parents may bypass the administrative process where exhaustion would be futile or inadequate. Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 606, 98 L.Ed.2d 686 (1988). The party seeking to evade the administrative process though, has the burden to show the futility or inadequacy of administrative review. Id.”

TEA v. Stamos, 817 S.W.2d 378, 385 (Tex. App. - Houston [1st Dist.] 1991)

This was a quick search based on the query “futility TAC.” If we assume this is the only case, then for now it only applies to students. I am fairly confident the appellate courts would extend it to employees. The following is from the TEA opinion.

When Pena queried about whether or not the decision had been made, even before he could argue his client's case, the response was "It's been made."

You translate “it’s been made” to futile.

I am loving this story because when you compare reality to the statements being posted in the Herald you begin to understand how the people keep on voting for the same bad people. You are not going to reason with them. You are never going to get them to even listen to real facts. Did Gonzales’ attorney commit malpractice? I think not. He created the recorded needed for Gonzales to move forward. People need to understand the meaning of “It’s been made.” It means do not bother with facts or the law Mr. Pena, the decision has been made. This tells us something about the motivation behind the decision to discharge Gonzales. It was political.

Everyone knows my position concerning whether Gonzales should have been fired - the answer is yes. But I always oppose dirty politics. In my humble opinion Gonzales was party to the dirty politics of the BISD Board. All of this distraction garbage that he was fired over the insurance deal does not help understand reality. A good 6 months before the election the decision was made to fire Gonzales. Presas-Garcia was recruited with one and only one purpose. To get rid of Powers because he was one of the votes against Gonzales.

But it is a danger to our political institutions when we reward dirty politics. We cannot reward this Board for its dirty politics just because Gonzales was part of it until he could do it no more. If we turn a blind eye to the dirty politics, then the Board will keep on hiring superintendents who will back the dirty politics. So long as Gonzales was willing to back the dirty politics of the Board they ignored his competency issues. This is exactly what they are doing now with Springston. Springston is becoming one endless propaganda commercial for himself. This should tell people that Springston and the Board are using the distraction of propaganda to avoid the reality behind the curtain.

I am now convinced in the hands of the right lawyer Gonzales can win a lawsuit for the balance of his wages under the contract. He can take the Texas court’s path or go to federal court. I would go to federal court. Texas trial judges are notoriously stupid and lazy. Their eyes tend to glaze over when you attempt to argue law. A federal trial judge, unlike Texas trial judges, have to write an actual opinion explaining their position. Some years ago Texas tried to change this, but Governor Bush vetoed the law.

When you have a local newspaper like the Herald, the people will always remain ignorant. They never develop the full story so the people remain in the dark to feed on their own self induced paranoia. To be fair, overcoming the ignorance of the people is no easy task. I always like to use the example of the parent who point blank looked their son in the face and said “you lie, the priest did not molest you.” Well he did and the parents were just as guilty as the priest. People tend to only want to believe their preconceived ideas - nothing more. Thinking outside their comfort zone does not come easy.

This does not mean you cannot get to some people. Try and imagine a spectrum of one side consisting of people obsessed with power and who must form endless committees to study everything. On the other side is the person who sees a problem and just goes at fixing it without getting the process involved. I must admit I am closer to the latter than the former. I go nuts sitting around listening to people try and impress themselves with endless ways to fix the problem, but who have never personally fixed anything.

The committee person almost always gets elected because they use the people as puppets to do their bidding on these endless committees. It makes the puppets feel important and useful. With rare exception, and there are exceptions, these people other than serving on committees have never actually done anything to fix anything.

In the end these people get in the way of solutions because to feel important they participate in the process of endless committee meetings while Rome burns. The guy who just goes out and fixes things when they see the problem never gets elected, or if they do they are soon to be vilified by those who love committees. Go getters tend not to be people persons. They are problem solvers. They have a hard time connecting with the electorate because the idea of kissing a baby for votes seems dishonest. But then again, dishonesty is all we ask of our politicians during the course of the campaign.

The people are like Texas trial judges, their eyes glaze over when you try and explain anything to them. The reality of the danger in presented in denying 10 million undocumented workers health insurance will never sink in with those who have already made up their mind. Their mind shuts down when you try an explain how such stupidity lead to the flu pandemic of 1917. When it happens again, it will be the governments fault, not theirs. Politicians are not on the side of the spectrum with strong problem solving skills, so they will go with ill-informed public anger and allow the pandemic to happen. We can always blame the communists.

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