UPDATE: DiChiara loses suit against school board; will appeal

mrice@ledger-enquirer.comJune 23, 2014 

A Russell County Circuit Court Judge on Monday dismissed former superintendent Larry DiChiara’s breach-of-contract case against the Phenix City Board of Education.

DiChiara and his attorney said they will appeal to the Alabama Supreme Court.

This was the third hearing before Judge Albert Johnson in the case that started with a 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.

“The ruling didn’t surprise me,” DiChiara said after Monday’s hearing. “It’s what we expected. But we had to get it out of this court in order to get it to the state level, where I believe that we’ll win our case.”

Ronald Davenport, representing the board in the case, said he was pleased with the judge’s ruling, but he declined further comment.

“The brief is public record,” he said. “That’s the best I can do for you.”

Monday’s hearing was scheduled to address two issues:

• Whether the judge has jurisdiction.

• The merits of the case.

Davenport, formerly the city attorney for Phenix City, has been representing the school board in this case so board attorney Sydney Smith can focus on the school system’s day-to-day affairs. Davenport, now based in Montgomery, has argued the case should be dismissed because the Alabama Constitution grants the board immunity.

DiChiara’s attorney, J. Knox Argo, of Montgomery, has argued Johnson still has jurisdiction because DiChiara filed a second lawsuit against the board members as individuals.

Davenport insisted again Monday that the case should be dismissed because DiChiara is asking for damages that aren’t “liquidated,” meaning the amount isn’t certain and must be calculated. And case law says the judge can’t do that, Davenport argued.

Argo, however, has cited other case law that says the board can and should compensate DiChiara for his salary and benefits. In the second lawsuit, Argo attached an email that shows the board agreed to compensate DiChiara for $759,615 in salary, but the exact figure isn’t settled because the two sides haven’t agreed 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.

“This might be the first superintendent’s contract that was bought out and the board just refused to, on the grounds that ‘nobody can make us,’” DiChiara said. “…They’re supposed to stand for what’s right and do what’s right. We teach our kids about character, integrity and being honest and doing the right thing. Well, the right thing is to honor a contract, and they’re choosing not to do it for whatever reason.”

Argo added, “How do they get somebody else to enter into a contract if that person can’t enforce the contract?”

Two weeks ago, the board hired Crenshaw County superintendent Randy Wilkes without a public interview. Wilkes officially will start July 1 in Phenix City. The hiring came after two of the four finalists and an additional candidate dropped out before their scheduled public interviews.

“That could be part of the reason why so many dropped out,” DiChiara said.

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 last fall failed to ease the discord.

Since Feb. 21, DiChiara has served as acting superintendent of Selma City Schools as part of the state’s intervention team, appointed by Bice.

As of last week, the Phenix City board has spent $32,864 for legal fees in the DiChiara case, Cheryl Burns, the school system’s chief financial officer, said in an email.

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 in an email Monday for an update, Smith said, “I am not involved in that anymore.”

Asked in a follow-up email who is involved in the investigation and who can answer the question, Smith didn’t respond by deadline.

Mark Rice, 706-576-6272. Follow Mark on Twitter@MarkRiceLE

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