Ex-superintendent DiChiara sues school board members again

mrice@ledger-enquirer.comMarch 10, 2014 

Larry DiChiara, Phenix City schools superintendent. 07/29/10

MIKE HASKEY — mhaskey@ledger-enquirer.com

Former superintendent Larry DiChiara again has sued the members of the Phenix City Board of Education in their official capacity.

He is seeking the salary and benefits he says the board still owes him for the remaining 4 ½ years left on his contract.

DiChiara's attorney, J. Knox Argo of Montgomery, Ala., electronically filed the lawsuit Sunday night in Russell County Circuit Court.

DiChiara originally sued the board on Christmas Eve. During the Feb. 19 hearing, Judge Albert Johnson ordered the two sides into mediation, but no mediation occurred because Johnson on Feb. 24 dismissed the lawsuit against, citing lack of jurisdiction because the board has immunity as a state agency.

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 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.

The board had filed a motion to dismiss the case, based on the immunity it is granted by the Alabama Constitution, but Argo argued Johnson still has jurisdiction because the original 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 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.

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.

Argo repeated Monday his stance 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.

Argo said that this second lawsuit was filed because the board’s 60-day notice of termination it sent DiChiara expired March 2. That means he no longer is on administrative leave and no longer is employed by the board, so the lawsuit seeks the court to require the board to pay DiChiara the rest of his contract. DiChiara said in an email Monday that he received his last paycheck at the end of February.

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 referred all questions to Davenport, who declined to comment.

DiChiara said in Monday’s email he still doesn’t know anything about the investigation or the alleged wrongdoing.

“They have never shared what it was about,” he wrote, “nor do we believe it has legitimacy.”

Baker also declined to comment Monday on the investigation or say why the board terminated DiChiara's contract.

Baker however, did say Phenix City's next superintendent won't get such a rollover contract.

"I don't think that's good business," he said.

DiChiara contends the board’s breach of contract is bad business.

“If I were a vendor or a potential superintendent candidate, I would be hesitant to do business with this board or sign my name on a contract because up to this point, that contract means nothing in their eyes,” he wrote. “Eventually someone with more authority than I will make them do the right thing and we can then all move on with our lives. I was prepared to do that on November 26, but I could not leave until the terms and intent of my contract are honored.”

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 past 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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