A decision just released by the Texas Commissioner of Education on Joe Palazzolo’s appeal of his firing by Superintendent Melody Johnson has the effect of reinstating him to his position as an employee of the Fort Worth school district. Which means it is back to square one for the district in its efforts to get rid of Palazzolo, whistleblower and former assistant principal at Arlington Heights High School.
In a 13 page ruling released today, Commissioner Robert Scott ordered that the “petitioner’s appeal be and is hereby granted in that there was a procedural irregularity which was likely to have led to an erroneous decision.”
“This case should be reversed and remanded,” Commissioner Robert Scott ordered, “with instructions that it be heard by another hearing examiner or an attorney of the parties choosing.”
Basically, that means that Palazzolo is back where he was before he was fired, an employee of the district whose case is under appeal, he said. The district will have to start paying him his salary again until the case is heard by a new examiner unless the board decides the case has become too costly to pursue. “I am going to ask the board to reconsider its action” in approving Palazzolo’s firing, said trustee Ann Sutherland.
The question now is will the school board continue to spend money fighting this case. To date, according to documents released by the district, the administration has paid out close to $350,000 in legal fees to Houston-based law firm Walsh Anderson. Another $26,693 was paid to a hearings examiner with $18,693 of that amount paid erroneously, leading to the Scott ruling to reverse the decision to fire Palazzolo and send his case back to be heard by another hearing examiner.
Palazzolo, as all of you know who read this rag, was fired last year by Johnson after reporting illegal conduct by certain high administration staff members at the school and in the Johnson administration. He claimed he was fired in retaliation for exposing wrongdoing at the venerable old school on the city’s West Side and appealed his termination all the way up the administrative chain until it landed on the desk of education commissioner Scott last month. A whistleblower lawsuit is pending in district court.
The procedural irregularity referred to by Scott is Texas Education Agency hearing examiner Rick Rickman’s successful effort to get the district to pay him $26,693, more than three times the amount allowed by law, for the six day trial early this year in which he heard Palazzolo’s appeal of his firing. Rickman, a Dallas attorney, ruled in the district’s favour.
Under the state education code, the maximum amount that a hearing examiner can be paid is $125 an hour with a cap of $8,000. There is no provision in the law to exceed that amount, Scott wrote. While it is true, as the commissioner pointed out, Rickman did not ask for more money until after the ruling, he “made no secret of the fact that he was considering asking [the district] to pay him in excess of the maximum amount [$8,000]” allowed by the Texas Education Code. Many of those statements were on the record and can be found in the transcripts of the trial.
Both Rickman and the district argued that the law allows a waiver of the cap if extraordinary circumstances occur, in this case a lengthy trial and thousands of pages of documents to read.
Scott said not so. “A school district may not waive the maximum amount of compensation established by the Commissioner for independent hearing examiners who hear cases under the …Education Code,” Scott wrote.
Scott wrote that the “potential to receive payment could have affected the decision making process of the Independent Hearing Examiner” leading to a temptation to “tip the scales of justice” in favour of the district.
Sutherland, who consistently opposed the termination and other actions taken against Palazzolo in what she believed were retaliatory acts, said the district’s attorneys should have known that there could be no waiver of the maximum fees paid to the hearing examiner.
“The worst thing about TEA’s decision is that our attorneys should have known it was illegal to pay over $8000 to the hearing examiner,” Sutherland wrote in an email response. “This is written in plain English in the Education Code, and attorneys worth $300,000 should have known this. It’s the law. In other words, FWISD paid a pair of attorneys approximately $300,000 for arguing this case, only to have it disappear because we didn’t follow a law which we were paying them to know about. Are we going to pay them twice because of this? Not with my vote.”
“A lot of people chastised me for saying ‘Shame on you Dr. Johnson, and shame on this board’ when we fired this man in retribution” for exposing wrongdoing at Arlington Heights, said trustee Carlos Vasquez. “Well, now the commissioner is saying ‘Shame on you’ to Dr. Johnson and the board members who went along with this.” Vasquez, who said he begged his colleagues not to fire Palazzolo, said that it is time to reinstate him. (Sutherland and Vasquez were the only board members to respond to requests for comment. Johnson is out of town and could not be reached for comment. Sutherland said she was at the district’s administration office today and could find “no one in charge” and no one who had read the commissioner’s ruling.)
“I’m taken aback” by the ruling, said United Educators Association head Larry Shaw, who has supported Palazzolo throughout his long battle with the district. Keeping this case going would be a financial disaster, he said. “It is time for the board to ‘know when to fold ‘em’ and seek a settlement with Palazzolo,” he said “It can’t keep pouring money down this hole.”
Rickman did not respond to a question asking him if he was going to pay back the excess fee.
“Amazing turn of events,” said the Rev. Kyev Tatum, head of the Southern Christian Leadership Conference. “We at the SCLC recommend the district drop this foolishness and give Joe P. back his job and give him an apology for spending over $500,000 to drag him and his family through the mud.”
Palazzolo’s attorney Jason Smith said only that “We are very grateful for the ruling of the commissioner of education and we look forward to showing what a great assistant principal Joe was at Arlington Heights” in any future hearings.