Judge orders mediation for DiChiara, Phenix City board

mrice@ledger-enquirer.comFebruary 19, 2014 

A Russell County Circuit Court judge ordered Wednesday the Phenix City Board of Education and Larry DiChiara into mediation to resolve the superintendent’s contract dispute.

This was the second hearing before Judge Albert Johnson in the lawsuit DiChiara filed on Christmas Eve. The seven-member board unanimously voted in a called meeting Nov. 26 to place DiChiara on administrative leave and to seek a buyout of the 4 1/2 years left on his contract. 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 three years ago.

Buying out DiChiara’s contract is expected to cost the school system at least $750,000, but the exact figure isn’t settled because the two sides haven’t agreed on which benefits still are owed and for how long. 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 with DiChiara without knowing whether the two sides could agree on a settlement.

Arguments

The board had filed a motion to dismiss the case, based on the immunity it is granted by the Alabama Constitution, but DiChiara’s attorney, J. Knox Argo of Montgomery, argued Johnson still has jurisdiction because the lawsuit was filed against the individual board members in their official capacity as well and case law shows precedence.

Former Phenix City attorney Ronald G. Davenport, now based in Montgomery, is the lawyer the board hired to defend against the lawsuit and allow board attorney Sydney Smith more time to focus on the day-to-day affairs of the school system. Davenport argued the case should be dismissed because other case law shows the board retains its immunity even as individuals and because DiChiara is asking for damages that aren’t “liquidated,” meaning the amount isn’t certain and must be calculated.

Argo argued Wednesday that DiChiara isn’t asking for a specific amount in benefits, just for the board to honor the contract, which says that his benefits should continue through May 31, 2018, if he is unilaterally terminated.

Johnson cited part of the state constitution: “‘The State of Alabama shall never be made the defendant in any court of law.’ The school board enjoys that immunity. However, I have been reading case law on this for quite some time, and the cases, I think the parties will agree, are all over the place.”

Then the judge cited a higher authority: the U.S. Constitution. From Article 1, Section 10, “No state shall pass any law impairing the obligation of contracts.”

“Now, what I have seen in the case law of Alabama,” Johnson continued, “there has been a constant chipping away at state immunity. … It seems to me that, if you enter into a contract, there’s an obligation to fulfill the terms of the contract.

“Now, whether I’ve got jurisdiction under the Constitution of Alabama, I don’t know at this point. I’m going to go back and look at these cases again and take your arguments into consideration, of course. I’m not going to rule at this time. What I am going to do at this time is to order the parties into mediation.”

Argo told Johnson that the board can stop paying DiChiara’s benefits March 2 if the judge doesn’t intervene.

“If we’re going to go through good-faith mediation,” Argo said, “we need to have those benefits continue as the contract says.”

Davenport countered, “Your Honor, as I understand it, the court is saying it’s not ruling today.”

“Correct,” the judge said.

Argo noted it would cost the system “only 100-something dollars a month” to continue DiChiara’s benefits.

“I’m not going to order that,” Johnson said. “I’m making no decision at this point.”

“Unfortunately, Judge,” Argo interjected, “that is a decision.”

“If I have no jurisdiction,” Johnson said, “then any order I issue today would be void.”

Reaction

After the hearing, DiChiara said he is disappointed the lawsuit wasn’t resolved for reasons that go beyond his family.

“The clock continues to tick on the money that’s being paid to attorneys by the school board,” he said, “and that’s more money being taken away from the kids.”

The board has paid $10,436.70 in legal fees concerning the DiChiara dispute, according to Cheryl Burns, the school system’s chief financial officer.

Board members weren’t available for comment after the hearing. Smith referred questions to Davenport, who wasn’t reached either.

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.

During the Dec. 30 hearing, Smith said the board placed DiChiara on administrative leave to investigate alleged “wrongdoing,” which she has declined to specify. Asked for an update on that investigation, Smith wrote in an email Wednesday, “I am not doing any investigation.” Asked who was doing the investigation, Smith didn’t respond by deadline.

DiChiara said he still doesn’t know about the alleged wrongdoing.

“We have no idea,” he said. “They’ve never mentioned anything about that since that day.”

“It’s ridiculous,” Argo said.

Background

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 past summer.

Pressuring the administration to hire a family member, interfering with personnel decisions and breaching confidentiality are among the allegations DiChiara made. But 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.

The unsent letter didn’t name names or specific incidents of misconduct, and DiChiara has declined to do so while negotiating his buyout. Smith wrote in a subsequent email to the Ledger-Enquirer, “The allegations against the Board in the letter to Dr. Bice are the perceptions of the writer. Perceptions are not truths until evidence proves them to be true.”

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