Attorney: Phenix City board investigating outgoing superintendent for 'wrongdoing'

mrice@ledger-enquirer.comDecember 30, 2013 

Former Phenix City School Superintendent Larry DiChiara,right, and his attorney J. Knox Argo leave the courtroom Monday morning after a hearing before Judge Albert Johnson. 12/30/13

MIKE HASKEY — mhaskey@ledger-enquirer.com Buy Photo

The Phenix City Board of Education is investigating outgoing superintendent Larry DiChiara for unspecified wrongdoing, the board’s attorney said during Monday morning’s hearing in Russell County Circuit Court.

The hearing was about the disputed amount of money it will take to buy out the 4 1/2 years left on DiChiara’s contract, which the seven-member board unanimously voted to do in a called meeting last month. The board has refused to explain why it chose to abruptly end DiChiara’s 9 1/2-year tenure, which includes being named Alabama Superintendent of the Year two years ago. Board attorney Sydney Smith, however, alluded to a possible reason when she dropped this bombshell during Monday’s hearing.

Judge Albert Johnson was questioning Smith about why the board put DiChiara on administrative leave.

Johnson: “I’ve handled a lot of school board litigation over the years, and the overwhelming number of administrative leaves, dismissals and things like that involve wrongdoing by the employee. That’s the purpose of the administrative leave, because of the wrongdoing by the employee. Are you alleging that Dr. DiChiara has committed any wrongdoing?”

Smith: “I don’t think that’s the definition of administrative leave.”

Johnson: “I’m not going to order that.”

Smith: “It’s not for you to order. No, sir.”

Johnson: “I just want to make sure that he can go to a school function, a public function. If he wants to go to a basketball game, he can go to a basketball game.”

Smith: “So you’re going to treat him differently than any other employee?”

Johnson: “Unless you’re telling me you’re putting him on administrative leave because of wrongdoing. Now, if you tell me you’re putting him on administrative leave because of wrongdoing, like you’ve done in just about every case I’ve had, then I’ll order that.”

Smith: “We generally put them on administrative leave for the purpose of investigating whether or not wrongdoing has existed. I cannot represent to you here today that I know for a provable fact …”

Johnson: “Let me ask you this then. Are you investigating him for wrongdoing?”

Smith: “Yes, sir.”

Johnson: “If that’s the case, if you’re telling me you’re investigating him for wrongdoing, then what I’ll do is order that, well, I’m not going to order anything. Then the school board has the authority to tell him what functions he can attend and what functions he cannot attend.”

Smith: “Thank you, sir.”

After the hearing, DiChiara and his attorney, J. Knox Argo of Montgomery, Ala., said this was the first time they heard of such an investigation and don’t know what Smith was indicating. Smith and the board members weren’t available for comment. They huddled in a locked conference room adjacent to the courtroom after the hearing was adjourned.

Monday afternoon, Smith was reached via email and was asked what wrongdoing she had mentioned during the hearing.

“Because they are allegations at this point I cannot disclose anything,” Smith wrote. “The Board is investigating the allegations at this time.”

Smith wouldn’t be more specific when asked who the allegations were from and how many, but she added in another email, “The allegations were made prior to and subsequent to the board’s decision to buy out the contract. It should take several weeks at least to complete the investigation.”

After reading the report of the hearing on ledger-enquirer.com, DiChaira called the newspaper Monday afternoon to respond to the unspecified allegations of wrongdoing.

“The only mention of administrative leave in the board minutes was in the event that I chose not to waive the 60-day notice,” DiChiara said. “There’s never been any accusation of wrongdoing or insinuation. It’s now just come out in the context of this case. I don’t think that’s very fair. … If I were them, I would be careful about disparaging me after the fact because there’s a whole lot more I can certainly insinuate just as they did today.”

He already has alleged board misconduct.

The board and DiChiara have declined to publicly discuss the reason for their separation, citing a clause in the pending buyout that prohibits disparaging each other. But the Ledger-Enquirer reported Dec. 22 that an open records request revealed DiChiara accused the board of misconduct in an unsent letter addressed to Alabama Superintendent of Education Tommy Bice this summer.

Pressuring the administration to hire a family member, interfering with personnel decisions and breaching confidentiality are among the 15 allegations DiChiara made. He agreed to not send the letter when the board agreed to mediation conducted by the Alabama School Boards Association. Two mediation sessions lasting more than two hours each this fall failed to ease the discord.

Buying out DiChiara’s contract is expected to cost the school system at least $750,000, but the exact figure still isn’t settled. DiChiara has said he and the board are “a couple hundred thousand dollars” apart in what they think is a fair and legal amount. The board voted to authorize its president, Brad Baker, to negotiate a settlement without knowing whether the two sides could agree on the amount.

Johnson expressed concern about the school system’s cost of extended litigation. He gave the two sides 45 days to send him their best settlement offer, and he requested case law to support their position. But he already hinted which way he is leaning.

“This is perhaps the most unambiguous contract I’ve ever seen,” Johnson told Smith, “and in your comments I want you to explain why it should not be enforced as it is written.”

Later, Johnson warned, “To be quite candid, I don’t want to get into a Clinton-esque exercise of defining words. The contract says benefits. So it sounds like to me what we’re discussing is what’s a benefit and what’s not a benefit.”

“That may well be the issue,” Smith said. “Yes, sir.”

Part of placing DiChiara on administrative leave means he is barred from school system property and activities, unless it involves his seventh-grade son, Smith said.

“There’s no reason why he shouldn’t attend anything that any other member of the public can,” Argo said.

“This is what we’ve done historically any time we have placed someone on administrative leave,” Smith said.

During his tenure, DiChaira has been a fixture at school activities and he has continued to attend events since the board’s Nov. 26 buyout vote.

After the hearing, DiChiara was asked whether he would obey the board’s ban. Argo answered for his client when he said, “All I know is that the judge slam-dunked it.”

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