Carrollton Farmers Branch ISD Press Release September 21, 2009

Carrollton Farmers Branch ISD Press Release September 21, 2009

Here is the text of the District’s Press Release on September  21, 2009.

Statement Regarding Judge’s Order in Richard Fleming’s Case

The Carrollton-Farmers Branch School District is pleased to finally receive Judge Molberg’s ruling.  As Judge Molberg noted, the facts of this case raise some perplexing issues.

 We are currently reviewing the Judge’s order and final judgment which require the District to continue extensive consultation with our attorneys.

  It has been the District’s objective to follow the Texas election law, which requires a candidate to be a District resident for at least six months prior to filing for the position.    Carrollton-Farmers Branch School District remains focused on high achievement for all students while continuing to comply with the law. 

Please note the press release does not refer to an appeal,  although the decision to appeal was made 11 days earlier.  According to the press release the district was still consulting with attorneys.  Also note,  the district characterizes quite properly the ruling of Judge Mohlberg’s  Court as “a final judgment”

According to Black’s Law Dictionary:

final judgment
n. the written determination of a lawsuit by the judge who presided at trial (or heard a successful motion to dismiss or a stipulation for judgment), which renders (makes) rulings on all issues and completes the case unless it is appealed to a higher court. It is also called a final decree or final decision.

With respect to Mr. Shor,  that is a statement of fact.

Here’s  the text of the Board of Trustees Resolution on Sept. 10, 2009.

"In light of the pending election -- four candidates are spending money, expending efforts, expending resources -- and to prevent the voters and the community members of this district from being disenfranchised, it would be my suggestion that the board's attorneys in the lawsuit pending in Judge Molberg's court be authorized to take the requisite action to obtain a legally final decision as expeditiously as possible."

The text for  agenda item for this action reads:

Notice of Regular Meeting September 10, 2009
 The Board of Trustees Carrollton-Farmers Branch ISD

 VIII. Reconvene Public Meeting to Vote on Matters Considered in Closed
Meeting   
A.    Consider All Matters Related to Cause Number 09-07085, Richard Fleming v. Carrollton-Farmers Branch independent School District and Lynn Chaffin, Presiding Officer, 95th Judicial District Court, Dallas County (Texas Government Code 551.071 – Consultation With Attorney) - Action

The  95th Judicial District Court is Judge Mohllberg’s Court.


Are the members of the Board of Trustees certain that motion on September 10th  was authorization to instruct the attorneys to file an appeal in the 5th  Court of Appeals in Texas?  Are the members of the Board of Trustees willing to be subjected to the consequences for violating the Texas Open Meetings Act?  Are the members of Board of Trustees willing to be on record for passing a motion that deceived both  the public and press of it’s true intentions?

TEA Commissioner Robert Scott denied its request to adjust the district’s rating and Creekview’s rating from Academically Acceptable to Recognized.

The Carrollton-Farmers Branch ISD (C-FB ISD) has learned that TEA Commissioner Robert Scott denied its request to adjust the district’s rating and Creekview’s rating from Academically Acceptable to Recognized.  The district submitted an appeal to TEA because it had missed one of the 10 indicators on the dropout/completion rate.  As a result, the district has an academically acceptable rating as well as Creekview. 

The editor of  this blog has made an open document request for the copy of  the notification letter from TEA Commissioner Robert Scott.  The letter will explain the basis for the commissioner's decision.

Texas school district administrators this week learned the fate of their challenges to 2008-09 accountability ratings issued in July. Last year, 83 appeals were submitted to the TEA. This year, 223 appeals were filed, and most were based on completions.

According to the Fort Worh Star-Telegraph, the Texas Education Agency agreed to raise the accountability ratings for the entire Keller school district and an Arlington high school but denied appeals to change ratings at two Fort Worth high schools.

Like C-FBISD, for all three school districts, the problem centered on the completion rate, which was part of the ratings for the first time this year for students who entered high school in 2004-05. The completion rate measures the students who graduate as scheduled or return for another year of school.

Hopefully, the open document request will provide insight into why the TEA Commissioner found that the C-FBISD appeal was without merit.

Did Lynn Chaffin act when She had a Conflict of Interest?

Video by CFBOutsideObserver

Did Lynn Chaffin act when She had a Conflict of Interest?
In the October 12, meeting  a motion was considered to terminate the appeal, and  the board president abstained from voting on the motion.  The board president  cited a potential conflict of interest.  If a potential conflict of existed for the board president on a motion to terminate the appeal, certainly the same conflict of interest existed when voting to initiate the appeal.  However, when considering the September 10th motion, the board president did not relinquished the chair, nor abstain from  the vote. If the intent of September 10th motion was  a vote to authorize the district's attorneys to seek an appeal, the board president acted when she knew she had a potential conflict of interest.

A Call for Open Government.

Video Provided by CONCERNCITIZEN

You can't have your Cake and Eat it too!

The Board of Trustees of Carrollton Farmers Branch Indepedendent School District violate "Texas Open Meeting Act"  at the September 10, 2009 by passing a motion that purportedly instructs the District's legal counsel to  file appeals in, any and all, the litigation regarding Richard Fleming; including making an appeal to the Texas State Supreme Court?

Under the “Texas Open Meeting Act” decisions entrusted to the board of trustees must be made by the body as a whole at a properly called meeting. A properly called meeting requires that the meeting be conducted in public, follow a published agenda, and a majority members be present . Any action of the board requires the majority vote of those present.

According to the State Attorney General, the Texas Open Meeting Act requires that the posted notice of an open meeting contain the date, hour, and place of the meeting and that the agenda describe each subject to be discussed at the meeting. 21 Texas courts have interpreted this to mean that the posting must be sufficient to alert the public. The courts have also ruled that the more important a particular issue is to the community, the more specific the posted notice must be.  See Cox Enters., Inc. v. Bd ofTrs. ofAustin Indep. Sch. Dist.,706 S.W.2d 956, 958-59 (Tex. 1986); Point Isabel Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176,179-81 (Tex. App.-Corpus Christi 1990, writ denied). Underlying these considerations is the fact that the provisions of the Act "are mandatory and are to be liberally construed in favor of open government." City of Farmers Branch v. Ramos, 235 S.W.3d 462, 467 (Tex. App.-Dallas 2007, no pet.).Cox Enters., Inc., 706 S.W.2d at 957. After explaining that notice under the Act "should specifically disclose the subjects to be considered at the upcoming meeting" the court held that those general terms "did not provide full and adequate notice, particularly where the subject slated fordiscussion was one of special interest to the public." Id. at 959. 

 Below is the excerpt of the from official posted agenda  for the September  10, 2009.

 Notice of Regular Meeting September 10, 2009

 The Board of Trustees Carrollton-Farmers Branch ISD 

 VIII. Reconvene Public Meeting to Vote on Matters Considered in Closed

Meeting   

A. Consider All Matters Related to Cause Number 09-07085, Richard Fleming v. Carrollton-Farmers Branch independentSchool District and Lynn Chaffin, Presiding Officer, 95th Judicial District Court, Dallas County (Texas Government Code 551.071 – Consultation With Attorney) - Action

After reconvening from an executive session into a public session, the Board of Trustees President Chaffin inquired of the board, if there is any action to be taken under item VIII of the agenda. Trustee Frank Shor (below) immediately made the following motion. James Goode seconded the motion, and it passed unanimously Sept 10.

"In light of the pending election -- four candidates are spending money, expending efforts, expending resources -- and to prevent the voters and the community members of this district from being disenfranchised, it would be my suggestion that the board's attorneys in the lawsuit pending in Judge Molberg's court be authorized to take the requisite action to obtain a legally final decision as expeditiously as possible."

At the October 22, 2009 regular meeting  Mark Gommesen, Carrollton a resident, inquired of  Board President Chaffin  to show where in the official minutes of the Board of Trustees instructed the legal counsel to file an appeal in the Texas 5th Court of Appeals.  In response to Mr. Gommesen, Board President Lynn Chaffin said the motion above gave the district's attorneys the green light to file an appeal in Fleming's lawsuit against the district.  Mr. Shor concurred, specifically pointing to phrase, "authorized to take the requiste action to obtain a legally final decision" in the above motion.  But at least one trustee didn't interpret it that way when she voted for the motion.
"I took it to mean the final decision in Judge Molberg's court," Karin Webb

If  Ms. Chaffin and Mr. Shor,  are correct that the September 10th  motion, was an authorization to legal counsel to take action beyond the 95th Civil Judicial  Court, Judge Mohlberg's court, the Board of Trustees violated the "Texas Open Meeting Act."

The agenda item  above did not provide sufficient notification  to "alert" the public of the Board of Trustees intent to authorize potentially numerous judicial appeals.  The Fleming case involves the Board of Trustee President declaring  Richard Fleming, a candidate ,elected by a majority of  the voters May 9, 2009, administratively ineligible. Any action by the Board of  the Board of  Trustees authorizing additional litigation regarding Mr. Richard Fleming is of great importance to the community.  Any agenda item, which the Board of Trustees was to take action to authorize and initiate  legal action, must"provide full and adequate notice, particularly where the subject slated for discussion was one of special interest to the public."


 The agenda only references, "All Matters Related to Cause Number 09-07085, Richard Fleming v. Carrollton-Farmers Branch independentSchool District and Lynn Chaffin, Presiding Officer, 95th Judicial District Court, Dallas County."  The Board of Trustees was only take action on matters related to case in the 95th Judicial District Court.  The courts have been consistent, provisions of the "Texas Open Meetings Act,"are mandatory and are to be liberally construed in favor of open government."

The Board of Trustees were only discuss  and seek advice from legal counsel on the item specifically identified in the agenda; it is not even permissable  to considered possible related matters.
 


  Olympic Waste Services v. City of Grand Saline, 204 S.W.3d 496 (Tex. App.—Tyler 2006, no pet.).The city violated the Act when it discussed entering into a new garbage collection contract in a closed session held under section 551.071, which allows a governmental body to seek legal advice from its attorney in closed session. The city council was authorized to consult with the city attorney in closed session about the legal ramifications of terminating its existing garbage collection contract,but it had no authority to discuss “resulting contractual options.”

The district is not legally required or even expected to make an appeal.  Statements prior to September 10th by the Board President would lead the public that an appeal was unlikely. Ms. Chaffin Statement


The meeting occurred on September 10, 2009, eleven days later, Judge Ken Molberg ruled in Fleming's favor and the district.There is no reason the public or the press would have reasonably  anticipated that Board of Trustees would take action to approved an appeal  prior to receiving a disparaging ruling in the district court.

The agenda description was so inadequate and the motion so ambiguous, that its true intent was concealed  from the public and  the Press. Matt Peterson, of the Dallas Morning News described the action taken by the board of trustees as:

"Shor's motion, backed unanimously by his colleagues, directed the district's attorneys to work toward the "expeditious" resolution of would-be trustee Richard Fleming's case before District Judge Ken Molberg."

In a online being conducted by the Dallas Morning News poll  overwhelmingly, the participants do not agree that the motion passed at the September 10th meeting authorized an appeal.

Clearly, if  Mr. Shor's motion was indeed a motion to authorize legal counsel to file an appeal on the behalf of the district, the Board of Trusteesdid not make full and adequate notice 
to the public and the press as required under the  "Open Meetings Act."

The  Open Meetings Act provides civil remedies and criminal penalties for violations of its provisions. District
courts have original jurisdiction over criminal violations of the Act as misdemeanors involving official misconduct.  An interested person, including a member of the news media, may bring an action
by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of this chapter by members of a governmental body.  The court may assess costs of litigation and reasonable attorney fees incurred by a plaintiff  who substantially prevails in an action.

My Time flies when you're litigating!

Video by CFBOutsideObserver
My Time flies when you're litigating!

It is 171 days since the May 9, 2009 Election.

Or 5 months, 18 days including the end date Alternative time units 171 days can be converted to one of these units: * 14,774,400 seconds * 246,240 minutes * 4104 hours * 24 weeks (rounded down)

The good news its only It is 195 days to May 8, 2010 and the election three new board of trustees members.

Or 6 months, 13 days including the end date Alternative time units 195 days can be converted to one of these units: * 16,848,000 seconds * 280,800 minutes * 4680 hours * 27 weeks (rounded down)

But who's counting? Just about everyone.

Open Letter to Board of Trustees -- Investigation Needed

Members of the Board of Trustees ,   I call upon you to review the video of the September 10^th  meeting:  The  motion made by Mr. Shor was:

"In light of the pending election -- four candidates are spending money, expending efforts, expending resources -- and to prevent the voters and the community members of this district from being disenfranchised, it would be my suggestion that the board's attorneys in the lawsuit pending in Judge Molberg's court be authorized to take the requisite action to obtain a legally final decision as expeditiously as possible."

By voting for this motion the board approved..that   " it would be Frank Shor’s suggestion that the board's attorneys in the lawsuit pending in Judge Molberg's court be authorized to take the requisite action to obtain a legally final decision as expeditiously as possible."

Clearly by adopting this motion , the board of trustees, regardless of its intentions, did NOT authorize any action by anyone, at anytime.

The board needs to investigate why the motion reported in the minutes  does not match the video of the meeting, so this error could have been corrected in a timely matter.  I would strongly suggest all notes, preliminary minutes, requested corrections or changes by board members be secured by the superintendent of schools until the board can convene in public session to investigate why the material discrepancy exists.

Mark Gommesen

Suddenly a suggestion becomes a motion....

According to the video of the September 10th meeting Mr Shor's actual words were:

"In light of the pending election -- four candidates are spending money, expending efforts, expending resources -- and to prevent the voters and the community members of this district from being disenfranchised, it would be my suggestion that the board's attorneys in the lawsuit pending in Judge Molberg's court be authorized to take the requisite action to obtain a legally final decision as expeditiously as possible."

But, the official minutes of the meeting reads :

"...in light of the pending election and the four candidates expending money, efforts andresources to prevent the voters and the community members of this district from being disenfranchised, the Board’s attorney in the lawsuit pending in Judge Mohlberg’s court be authorized to take the requisite action to obtain a legally final decision as expeditiously as possible."

Suddenly a suggestion becomes a motion.

Statement made in Defense of Open Governent at C-FBISD meeting.

Mr. Gommesen has provided this blog a copy of his statement at the October 22,2009, Carrollton Farmers Branch ISD board of trustees meetings in defense of open government.

Ms. Chaffin, Dr. Burns, Members of the Board of Trustees:

I address to you tonight not in support of a principal spelled P-R-I-N-C-I-P-A-L but a principle spelled P-R-I-N-C-P-L-E. I address the board of trustees in support of Open Government. It is it is my unwavering belief that government should be conducted in the bright sanitizing light of sunshine.

Madam President , Under Sec. 551.042 of the Texas government code permits that at a meeting of a governmental body, a member of the public or of the governmental body inquires about a subject for which notice has not been given as required by Texas Open Meeting Act, the notice provisions of this Act do not apply to a statement of specific factual information given in response to the inquiry; It is my intent to make such an inquiry and respectfully request a response.

Madam President, I make the following inquiry: I have carefully examined the minutes of this public body. I am unable to locate where this board acted to instruct legal counsel to take action in the 5th appellate court on behalf of the board. Madam President , I inquire where in a the minutes of this body where the board of trustees gave instruction to legal counsel to take action in the Texas 5th Appeals court. Further, seek the assurance that the board did not act in executive session to instruct legal counsel to file in the appeals court.

Under 11.151 of the Texas Education authorizes the board to act as a “corporate board” in litigation.

Madam President, as you are well aware, under the “Texas Open Meeting Act” decisions entrusted to the board of trustees must be made by the body as a whole at a properly called meeting. A properly called meeting requires that the meeting be conducted in public, follow a published agenda, and a majority members be present . Any action of the board requires the majority vote of those present. In the current action in the Texas 5th Court of Appeals, the school district is the appellant. An appellant is defined as, the party bringing the action to court. That is the one who initiates the legal action.

Madam President, For the district to act as a plaintiff , that is initiate an appeal, requires a formal action of the board.

The board of trustees is permitted to consult with attorneys in executive session, the board cannot take any action , as a board, in executive session.  “The Texas Open Meeting Act” only permits the board of trustees to seeks the advice of its attorney about pending or contemplated litigation.

In the many month’s of litigation, I can only find one time where this board instructed legal counsel to take action on it’s behalf. At the September 10th regular meeting Mr. Shor made a motion to expedite litigation pending in the 95th District court.
This motion did not authorize legal counsel to file an appeal on the board for many reasons least of which are:

1. The motion was approved 11 days prior to the final ruling on the 95th Judicial District Court on September 21, 2009.  It is not reasonable that the board could act to appeal ruling without reviewing the judgment and determining, if would be in the public interest to file an appeal.  For the board to approve an action to appeal without first determining what is in the best interest of district, the students, and taxpayers, would be a violation of the public trust. On September 10th , there was simply nothing to appeal.
2. Appealing the judgment of the district court is hardly reaching a final decision "as expeditiously as possible." It could  be reasonably argued that the motion prohibits the district's attorney from seeking an appeal.
3. The "final decision “in the "lawsuit pending in Judge Mohlberg's court" would be the trial court's judgment.  While this final decision is subject to appeal, it is otherwise a final decision.
4. The district is not legally required to appeal the ruling of  the district court, nor is it even expected that the district would file an appeal.  Less than 1% of civil case rulings in trial courts are appealed. The Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, does not require or permit an  Attorney to file an appeal on behalf of a client who receives a disparaging ruling in a trial court without instructions from the attorney's client.
5. This resolution was passed unanimously, one of trustees voting in the affirmative have publicly stated her opposition to the appeal prior to this vote. This trustee made a motion at the October 12th special meeting to end this appeal. The language of the September 10th motion is so vague as to mean nothing and everything.  Because of wording of this motion is vague, it is not possible to ascertain from this motion the pleasure of  the board regarding a future appeal.
6. In the October 12, meeting  a motion was considered to terminate the appeal, and  the board president abstained from voting on motion.  The board president  cited a potential conflict of interest.  If a potential conflict of existed for the board president on a motion to terminate the appeal, certainly the same conflict of interest existed when voting to initiate the appeal.  However, when considering the September 10th motion, the board president did not relinquished the chair, nor abstain from  the vote. If the intent of September 10th motion was to authorize the district's attorneys to seek an appeal, the board president acted when she perceive she had a potential conflict of interest.
7. This motion specifically refers to "the lawsuit pending in Judge Mohlberg's court. Although, resolution authorizes the district 's attorney to take "the requisite action to obtain a legally final decision as expeditiously as possible"  the scope of the resolution can only be applied to the case in district court.
8. Under the Texas Open Meeting law,  the Board of Trustees can only take action on those items identified as actionable in the official agenda for the meeting.  In this case, the Board of Trustees could only take action on those matters related  to the litigation in the 95th district court only.  To apply to this motion to other matters would be violation of the Texas Open Meetings Act.
9. The stated intent of the motion, was to prevent the voters from being disenfranchised in the November 5, election, it is impossible that an appeal could have filed and adjudicated prior to the election.
10. The media did not report the intent of motion to authorize legal counsel to seek an appeal.
Thus, Madam President I make my inquiry.

Make Over Three Grand a Month Writing Emails!

Legal expenses paid by the Carrollton Farmers Branch Independent School District to Darlene Ewing totaled $7,981.25 for the period from July 7, 2009 to September 30, 2009.  Ms. Ewing was retained to represent Lynn Chaffin, both in the Richard Fleming case in the 95th Judicial District Court and susequent Appeal.

It is not clear whether Ms. Ewing's legal expenses will be paid directly by the School District,  or will be rebilled by The Law Offices of Robert Luna.  Ms. Ewing's fee agreement was negoiated by Joseph Ball of the Law Offices of Robert Luna.  Ms. Ewing receives hourly bill rate of $300 per hour. The latest open document request includes Statements from the Law Offices of Robert Luna and includes expenses through  August 31, 2009, and  although the statements are heavily redacted, do not include Ms. Ewing's expenses.

From a review of the legal bills below, it appears that Ms.Ewing has not been deeply involved in legal issues in  the District court nor in the Appellant court cases.  Much of the notation for her billable time references reading and responding to emails, or  conversing on the telephone.

At first blush, Ms. Ewing would seem a curious choice to represent Ms. Chaffin.  Ms. Ewing is board certified in family law. Her website does not indicate any expertise in education or election law.  Ms. Ewing does have one other distinction, she is the current chairperson of the Dallas Democratic Party. The immediate past Chairperson of the Dallas Democratic Party  is no less than, Ken Molberg, the presiding judge in the case that was tried in the 95th Judicial District Court. 

Darlene Ewing Legal Bills    

Open Meeting Act does not Permit Instructing Legal Counsel in Executive Sessions.

According to Texas Open Meetings Act does not permit the board of trustees to instruct legal counsel to take action on behalf of the district in executive session. The act only permits the board of trustees to seek the advice of counsel...period. For the attorney to act on the behalf of the district the board of trustees must instruct legal counsel to do so in a regular public session.
Mr. Luna did file an appeal naming the district as the plainiff;did the board of trustees instruct Mr. Luna to take this action? Did the board instruct Mr. Luna to file the appeal during a executive session, in violation of the open meetings act?

Open Meetings Act.

Section 551.071: Consultations with Attorney

Section 551.071 authorizes a governmental body to consult with its attorney in an executive session to seek his or her advice on legal matters. It provides as follows:
A governmental body may not conduct a private consultation with its attorney except:

• when the governmental body seeks the advice of its attorney about:
• pending or contemplated litigation; or
• a settlement offer; or
• on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter.

Board of Trustees must explictly approve litigation.

 TEXAS EDUCATION CODE

SUBCHAPTER D. POWERS AND DUTIES OF BOARD OF TRUSTEES OF INDEPENDENT SCHOOL DISTRICT

    § 11.151. IN GENERAL.  (a) The trustees of an independent school district constitute a body corporate and in the name of the district may acquire and hold real and personal property, sue and be  sued, and receive bequests and donations or other moneys or funds coming legally into their hands.

Any legal action in a court of law, brought on the behalf of the  district  requires the approval of the board of trustees acting as a corporate board in an open meeting.    The school district is the plaintiff in the appeals case...they filed the case (see below).  So when did the board of trustees take action to instruct the district attorneys to file an appeal. In The district is not legally required to file an appeal of the judicial district  court case. Even if the district was legally obligated to file an appeal, the district's legal counsel could not act until instructed by the board of trustees to act upon the board's behalf.


Although  the board of trustees are permitted to consult with attorneys in executive session, the board cannot take any action in executive session.  The board must reconvene in public session to take any action.   The board of trustees has never in a public session approved a motion to instruct the district's attorney to file an appeal in the Fleming case.



05-09-01166-CV
Carrollton-Farmers Branch Independent School District and Lynn Chaffin v. Fleming, Richard
Case Type: OTH CIV
Trial Court Cause Number: 09-07085
Trial Court: 95TH DISTRICT COURT
County: DALLAS

Appeal authorization additional concerns...

Addition reasons why the September 10 motion did not and could not have authorized Mr. Luna to take action in appellate court:

1. The motion was approved 11 days prior to the final ruling on the 95th Judicial District Court on September 21, 2009.  It is not reasonable that the board could act to appeal ruling without reviewing the judgement and determining, if would be in the public interest interest to file an appeal.  For the board to approve an action to appeal without first determining what is in the best interest of district, the students, and taxpayers, would be a violation of the public trust.
   
2. Appealing the judgment of the district court is hardly reaching a final decision "as expeditiously as possible." It could  be reasonably argued that the motion prohibits the district's attorney from seeking an appeal.
3. The "final decision"in the "lawsuit pending in Judge Mohlberg's court" would be the trial court's judgment.  While this final decision is subject to appeal, it is otherwise a final decision. The district is not legally required to appeal the ruling of  the district court.
   
4. This resolution was passed unanimously, two of trustees voting in the affirmative have publicly stated their opposition to the appeal, or express serious reservations about seeking appeal prior to this vote. These trustees supported an motion in the October 12th special meeting to end the appeal. The language of the September 10th motion is worded to be so vague as to mean nothing and everything.  Because of wording of this motion is vague, it is not possible to ascertain from this motion the pleasure of  the board regarding a future appeal.
5. In the October 12, meeting  a motion was considered to terminate the appeal, and  the board president abstained from voting on motion.  The board president  cited a potential conflict of interest.  If a potential conflict of existed for the board president on a motion to terminate the appeal, certainly the same conflict of interest existed when voting to initiate the appeal.  However, when considering the September 10th motion, the board president did not relinquished the chair, nor asbstain from  the vote. If the intent of September 10th motion was to authorize the district's attorneys to seek an appeal, the board president acted when she perceived a potential conflict of interest. 

Did the board of trustees authorized the the Fleming Appeal?

The Board of trustees never authorized, at least not in a public meeting, the the school district's attorney to appeal the ruling of the 95th Judicial District court in the matter of Richard Fleming v. Carrollton-Farmer's Branch ISD.

The last pubic action taken by the board giving any instruction to the District's attorney occurred in the September 10th regular meeting,  eleven days prior the final court ruling  in the the District court.  The Board of Trustees adopted the following motion:

This motion specifically refers to "the lawsuit pending in Judge Mohlberg's court. Although, resolution authorizes the district 's attorney to take "the requisite action to obtain a legally final decision as expeditiously as possible"  the scope of the resolution can only be applied to the case in district court.


Under the Texas Open Meeting law,  the Board of Trustees can only take action on those items identified as actionable in the official agenda for the meeting.  In this case, the Board of Trustees could only take action on those matters related  to the litigation in the 95th district court only.  To apply to this motion to other matters would be violation of the Texas Open Meetings Act.

Spinning and spending like Oprah!

On the August 31, 2009  bill from  The  Law Offices of Robert Luna is a curious entry of $8500.00 to the Margulies Communication Group. The Marguiles Communications Group is a public relations firm or "spin doctor." Marguiles Group , among it's recent success stories the firm claims: "MCG is spokesperson for Oprah Winfrey during Amarillo trial."

It is curious that the district's attorney felt it necessary to retain a high powered  public relations firm  three days prior to final canvass of the May election on May 18th.  Most deliberations with Mr. Luna are conducted in executive session, therefore it is impossible determine who, if anyone approved this expenditure and why they felt the expenditure was necessary.

The Carrollton Farmers Branch Independent school district employs 8 people in the Public Information office inside the district ,and as allocated an 1 Million dollar budget for that department, that includes a $500,000 salary budget for that office. Both operating expenses and labor expenses are double any surrounding district, including much larger districts like Plano ISD and Lewisville ISD.

Once again precious resources are diverted from education without explanation or benefit to the district.

Were Tepper Actions legal?

Video by CFBOutsideObserver
The following are the motions and second to motions made by Mr. Tepper. It does not include executive sessions of the board that Mr. Tepper was in attendance. His attendance at these sessions may have been a violation of the State's open meeting act. Mr. Tepper's presence at these meetings where the board consulted with legal counsel may have jeopardized the district's claim of "lawyer client privilege."

Motions and 2nd's made by Tepper

Date	Motions	1st & 2nd
8/27/09	Moved to adopt the resolution for the budget	Motioned.
8/27/09	Resolution to adopt tax rate	2nd
8/27/09	Motion to Endorse Nominee Karen Ellis	2nd
8/27/09	Consent Agenda 13 (Microsoft Exchange)	2nd
8/13/09	Accepting a Report from the Tax Assessor/Collector	2nd
8/13/09	Vote for public hearing on Aug 27th	Motioned.
9/10/09	Worker’s Comp Grievance Hearing - Linda Price	2nd
9/10/09	Level 3 Grievance Hearing	2nd

Fleming Costs $302,337.56 AND RISING!!!!!!!!!!!!

Probably in response to several open document requests, the district has released the costs related to the Fleming litigation. the amount of $302,337.56 however, the amounts maybe understated. The District reported legal expenses between June 1 and August 31 2008, of $122,266.21 only includes legal fees and expenses from Robert Luna and Associates and does not include any fees or expenses for Diane Ewing, the attorney retain to represent Ms. Chaffin. It also unclear if Ms. Ewing legal fees and expenses are included in the $69,881.25 billed but not yet paid, or include bills from Robert Luna Associates. According to the district the $38,754.16 is for legal costs prior to the lawsuit. It is unclear if this includes cost the Ingram lawsuit. The total costs of $302,337.42 only addresses legal expenses, but does not include other professional fees including, surveyor and consulant. The Total cost amount includes $71,435.94 nonrefundable amounts paid to county officials

In the lawsuit, Ingram V. Carrollton Farmers Branch School District, the district court found that the district did not have the authority to find Mr. Fleming ineligible due to residency concerns on May 27. On June 4, a day after Mr. Fleming took the oath of office, declared Mr. Fleming ineligible claiming she possessed "public documents that conclusively establishes that Mr. Fleming was not a resident." On September 21, the 95th District found that Ms. Chaffin claims were without merit and ordered Mr. Fleming seated.

It is becoming more apparent that if the district would have sought an opinion from the State Secretary of State or the State Attorney General.

The Secretary of State is the chief election officer for the State of Texas. Section 31.004(a) of the Texas Election Code (the "Code") provides that, "The Secretary of State shall assist and advise all election authorities with regard to the application, operation, and interpretation of this code and of the election laws outside of this code.  

"No public record conclusively establishes residency,” correctly states the position of this office. This position is based upon Section 1.015(b) of the Texas Election Code"... Secretary of State the State of Texas.

Attorney General Opinions clarify the meaning of existing laws. They do not address matters of fact, and they are neither legislative nor judicial in nature. That is to say, they cannot create new provisions in the law or correct unintended, undesirable effects of the law.

Determining the question of residency is a question of intent and factual circumstances. It is not within the authority of this office nor within the discretion of the official receiving the application [of a candidate]{ to determine those factual questions. See Parker v. Brown, 425 S.W.2d 379, 381 (Tex.Civ.App.--Tyler 1968, no writ) (question of residence is to be judicially determined); see also Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex.1964) (residence is determined by factual circumstances).

Texas State Attornery General Opinion No. JM-231 http://www.oag.state.tx.us/opinions/opinions/47mattox/op/1984/htm/jm0231.htm

New information on Lynn Chaffin 2005 Ethics Violations

A reader as received a response to an open document request regarding a ethics violation finding regarding Lynn Chaffin and her employment as a Senior Information Technology Manager for the City of Dallas. The reader was kind enough to share the response to his open document request with this blog. (See the entire finding below.)

In July of 2005, an internal investigation concluded that three employees,including CFBISD Board of Trustee President Lynn (Lyndal) Chaffin. The three employees involved in a City of Dallas vendor selection committee violated ethics rules by having improper contact with the company that won a $5.2 million job overhauling the city's emergency 911 computer system.(Alleged Ethics Violations Fault Top Officials)

According to the CBS11 report: "Chief Kay, Capt. Coffman and Lyndal Chaffin denied to investigators that they had committed any wrongdoing or that they were unduly influenced by accepting meals from Tritech executives, including one June 8 celebration dinner discovered by CBS-11 the very evening the City Council approved Tritech's contract. The celebratory dinner attended by the three officials took place at the posh Al Biernat's in Oak Lawn where a Kobe/Angus filet mignon steak costs $69.
Despite denials of wrongdoing, investigators stated in their report that Chief Kay, Capt. Coffman and Lyndal Chaffin all "failed to avoid the risk and appearance of impropriety that was depicted by the Channel 11 newscast" by attending the celebration dinner at Al Biernat's. Investigators also upheld a second allegation that Chief Kay accepted a meal from Tritech in March, months before the council approved the tentative selection of Tritech as the vendor."

The city's computer aided dispatch system has the focus of controversy since it was first installed. The automated system, known by the acronym CAD, is used by the city to help dispatch emergency personnel based on information from 911 calls.
911 in 'serious trouble'
DPD Responds To False Alarm At High Speed
City Answers Questions About Officer's Death

Ms. Chaffin is employed as the city's Senior Information Technology Manager. Ms. Chaffin was a CFBISD Board of Trustee at the of the ethic violation. Subsequently, Ms. Chaffin was elected board president in May of 2009 after John Tepper lost his bid for re-election to the board to Richard Fleming. Ms. Chaffin has challenged Mr. Fleming eligibility claiming a strict adherence to the law.
lyndal Chaffin

Maybe the right question may is not simply how much the Fleming affair cost, but how will the district pay for it.

Maybe the right question may not simply how much the Fleming affair cost financially, but how will the district pay for it. In approving the 2009-2010 budget, the board of trustees will deplete the general reserve balance to the lowest level in ten years. And,the board did not provided for an expensive legal fight or a costly special election in the budget. Without raiding the already emaciated piggy-bank, How will the board trustees pay for their foray into the State's legal system.

The board only budgeted $191,000 for legal fees for the current year, the total litigation costs for the Fleming affair will far exceed this amount. The board budgeted $51,000 for election costs for the May 2010 election. The cost of a special election is expected to exceed the cost of a regular election. The board will certainly find itself facing a budget gap that well exceeds $250,000.

Well written, multiple open document requests will eventually answer the question of the price tag for the Fleming affair, only the board of trustees can answer who is going the paid the tab. Let's hope they don't need money for a tip.

Two interesting summaries of Texas open records laws ...

Several Blog readers have inquired about Texas Open Records and Meeting Laws. Those with interest in greater transparency in the governance in the Carrollton Farmers Branch Independent School District should visit:

Freedom of Information Texas
Texas WatchDog

Two interesting summaries of Texas open records laws ... Two interesting summaries of Texas open records laws | Texas Watchdog

An Overview of Freedom of Information Laws in Texas
Texas Open Government Laws 2009

DON'T GET MAD...GET INFORMATION THEN SHARE IT

Jackpot!

Video by CFBOutsideObserver

At Thursday October 8th meeting the Board of Trustees will approve a policy change that will make even harder to determine how taxes dollars are spent.

Consider Approval of Changes to the Following Board Policy: This policy addresses purchasing authority delegated to the Superintendent and administrative staff. In addition to bid requirements, CH (LOCAL) currently requires Board approval for any purchase over $25,000. The passage of HB 987 in the 81st session of the Texas Legislature increases the threshold for competitive bidding from $25,000 to $50,000. The bill became law June 19, 2009, and went into effect immediately. (LEGAL) will be amended as a result this change in the law. This recommended change would increase the purchase authorization threshold to $50,000 matching the bid threshold. The net effect of this change will be a reduction in the number of purchases submitted to the Board for approval.

Unlike the over three hundred school districts in the Texas, the Carrolllton Farmer’s Branch Independent School District does not publish its monthly check register on the district’s web site. (Transparency by Texas School Districts: http://www.window.state.tx.us/comptrol/checkup/school-districts.php)

The board of trustees do not received a copy of the check registers or periodic verifiable financial statements, comparing actual performance to budgets.

This change in board policy removes one only opportunities for citizens to determine how their tax dollars are spent.

Is it surprising that Board of Trustees have no idea how much money is spent on recent litigation?

What does the Law Say?

Video by CFBOutsideObserver

Things fall apart; the centre cannot hold; The best lack all conviction, while the worst Are full of passionate intensity. W. B. Yeats 

The Secretary of State is the chief election officer for the State of Texas. Section 31.004(a) of the Texas Election Code (the "Code") provides that, "The Secretary of State shall assist and advise all election authorities with regard to the application, operation, and interpretation of this code and of the election laws outside of this code.  

"No public record conclusively establishes residency,” correctly states the position of this office. This position is based upon Section 1.015(b) of the Texas Election Code"... Secretary of State the State of Texas.

Attorney General Opinions clarify the meaning of existing laws. They do not address matters of fact, and they are neither legislative nor judicial in nature. That is to say, they cannot create new provisions in the law or correct unintended, undesirable effects of the law.

Determining the question of residency is a question of intent and factual circumstances. It is not within the authority of this office nor within the discretion of the official receiving the application [of a candidate]{ to determine those factual questions. See Parker v. Brown, 425 S.W.2d 379, 381 (Tex.Civ.App.--Tyler 1968, no writ) (question of residence is to be judicially determined); see also Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex.1964) (residence is determined by factual circumstances).

Texas State Attornery General Opinion No. JM-231 http://www.oag.state.tx.us/opinions/opinions/47mattox/op/1984/htm/jm0231.htm

The 95th Judicial District Court of the State of Texas rendered a determination on the questions of intent and factual circumstances.

In making the important determination presented here, the Court is guided by a body of firmly fixed precedent that overlays legal challenges to candidacy and the right to hold elective office based on eligibility requirements. The higher courts have repeatedly admonished us that “any constitutional or statutory provision which restricts the right to hold public office should be strictly construed against ineligibility.” In re Carlisle, 209 S.W.3d 93, 96 (Tex. 2006)(per curiam), quoting Dawkins v. Meyer, 825 S.W.2d 444, at 448 (Tex. 1992). See also Sears v. Bayoud, 786 S.W.2d 248, 251 (Tex. 1990); Brown v. Meyer, 787 S.W.2d 42, 45 (Tex. 1990). It goes without the necessity of citation that this imperative is one of high constitutional importance. ... The Court, having fully considered the wealth of testimonial and documentary evidence before it, together with the arguments of counsel, hereby ORDERS...

95th Judicial District Court
Fleming V, Carollton Farmers Branch Independnt School District

Marbury v. Madison (1803) "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." —Chief Justice John Marshall

What does the law say?

Open Document Request made for District Expenses Re: Fleming

The editor of this blog has made a request under the Texas Public Information Act, Chapter 552, Texas Government Code, which guarantees the public's access to information in the custody of governmental agencies, to the Carrollton Farmers Branch Independent School District for all copies of bills related the Fleming case.
Disclosure of this information is in the public interest and providing a copy of the information primarily benefits the general public. This information will be published on this blog and at cfbisd network website www.cfbisd.net

The Special Election May be the least of Board's Worries.

Mr. Peterson's reporting is correct, "The judge's ruling doesn't mention the election because he said he has no authority to call it off." What was made very clear that if the district conducted the election, he may exercise is authority to void the election, if the election impedes Mr. Fleming from serving.

But, the special election maybe the least of the board's worries The Board of Trustees made several decisions while case was still being litigated. One has to question the board's judgment and the legal counsel the board received. These decisions now have serious ramifications for the district.
Why would the president of the board of trustees declare and a majority of the board trustees concur that the trustees seat vacant, when that very question was being litigated. Clearly, this was a violation the State election code.
Sec. 145.004. FINAL JUDGMENT REQUIRED FOR ADJUDICATION OF INELIGIBILITY. A candidate's entitlement to a place on the ballot or to a certificate of election is not affected by a judicial determination that the candidate is ineligible until a judgment declaring the candidate to be ineligible becomes final.

Clearly, it was improper for the board to declare the seat vacant while the issue of Mr. Fleming's eligibility was being litigated and should have seated Mr.Fleming while the case was adjudicated.


Because the Board declared the seat vacant, Mr. Tepper was seated, under the "carry

over doctrine." This raises several problems, for the district. first the  board

of trustees certified the election results on May 18, submitted these results to

Secretary of State on May 22. On June 3, Mr.Fleming took the oath of office. On September 21, the district court found that Ms. Chaffin claims that Mr. Fleming was ineligible were unfounded.
Obviously, two individuals cannot hold the same elected office. Clearly, the place 4 trustee position was never vacant, clearly on June 3, Mr. Fleming was the occupant of the office.

Unfortunately, Mr. Tepper did take actions "as the acting trustee place 4." He participated in deliberations of the board both in public meetings and in executive sessions, he voted on resolutions, made and second motions.

If Mr. Tepper participated discussions with attorneys on current or possible future litigation, he cannot claim those discussions were conducted under lawyer client privilege. In effect, the entire board's claim of lawyer client privilege may be challenged.

Any executive sessions attended by Mr. Tepper may have been violation of open meeting act. Any actions directly related to discussions or hearings conducted in executive session maybe subject to nullification.

Any agendas, minutes, recording, presentations, etc from excessive sessions, conveyed, or reviewed by Mr. Tepper may be considered public documents.
Any votes and motions by Mr. Tepper are subjected to a challenge, what is particularly problematic is Mr. Tepper seconded the budget resolution...do we even  have a budget?
Remember all the boogie man stories, about if person who wasn't really legally entitled to was to serve on board...guess what boo!