Not-so-fine print

Not-so-fine print

Glaring error in BISD superintendent’s contract sparks confusion and lawsuit

Beaumont Independent School District trustees will meet Thursday, May 17, behind closed doors with their attorney to discuss how the group was collectively unaware of a provision in new superintendent Dr. Timothy Chargois’ contract allowing for an automatic base salary increase for the $215,000-a-year administrator. The increase, according to the contract signed May 1 by Chargois and BISD officials, is required to be greater than or equal to the same percentage raise given to teachers in the district.


Once members of the board learned of the clause – after signing on the dotted line – blame was squarely placed on BISD attorney Tanner Hunt for allegedly failing to notify any of the district’s elected officials of the provision. Board members have since gone on the offensive against their legal representation, with trustees Tom Nield and Mike Neil going so far as to sue Hunt and BISD for failing to give the elected officials materials necessary to make an informed decision on behalf of the taxpayers they represent. BISD Board of Trustees President Woodrow Reece has gone on record as saying he, too, was unaware of the raise clause in Chargois’ contract. Only board secretary Terry Williams has said the board had been shown copies of Chargois’ contract after April 1. Neil and Neild have sworn to statements saying no one on the board had received any copy of a contract noting an automatic raise for the new superintendent during any public or private called meeting.


According to Neil, a March 28 copy of a preliminary contract for employment for Chargois was all the written documentation provided to the board. In it, a salary increase provision is specifically declined.


“A salary increase for Dr. Chargois will not be considered before July, 2014,” it read, “and the Board may, or may not, elect at that time to increase Dr. Chargois’ base salary.”
The paper trail


A request for information elicited multiple copies of the proposed contract, although none were of the initial draft given to trustee Neil. Correspondence between BISD attorney Hunt and Chargois’ attorney, Cory Hartsfield, provide a glimpse into the exchange between the two sides as the attorneys haggle over contract specifications, although the complete conversation has been censored by BISD officials.


While Neil and other board members may have been working on a contract emanating from Hunt’s office, it was clear early in Hunt’s conversation with Hartsfield that the two attorneys were working from a completely different contract than the board members were. The new contract was introduced by Hartsfield on Wednesday, April 18, after Hunt requested the document “so I can have it in hand when I meet the board tomorrow night.” Hunt had told Hartsfield minutes earlier in an e-mail, “I will tell you frankly that this board is unlikely to be receptive to any contract provisions emanating from your office, other than the standard nuts-and-bolts elements.”


After meeting with the BISD board April 19, Hunt e-mailed Hartsfield on April 20 with a list of revisions to the proposed contract, still working from the copy supplied by Chargois’ attorney. Among the changes, Hartsfield was tasked with removing two years of the contract term, $35,000 a year in base salary earnings, a monthly technology allowance and $25,000 a year in deferred compensation (annuity account); and put in place a cap on the insurance premium BISD was willing to pay for the superintendent.
On Monday, April 23, Hunt again e-mailed Hartsfield requesting changes made in the contract pertaining to what Hunt termed an “unacceptable” annuity provision, an “unacceptable” lump sum settlement provision, wording that allowed for double-dipping in travel expenses, and other stipulations censored by way of missing correspondence provided by BISD.


On Tuesday, April 24, Hartsfield e-mailed Hunt a revised draft copy of Chargois’ contract. In it, although the portion of the contract that calls for “salary adjustments” was changed to “intentionally left blank,” a salary adjustment had already been incorporated into the “salary” portion of the contract. Whether Hunt was aware of the provision, which had been introduced at an earlier date, is still a matter of debate since two days later the BISD attorney was still contemplating wording to be used in the “salary adjustment” portion that would definitively exclude mandatory salary increases of any kind.


Hunt proposed wording be added on Thursday, April 26, stating, “This contract contains no provision for an automatic salary increase, or for a salary increase based on the attainment by the Superintendent of a particular performance evaluation score.


“Any increase in salary made during the term of this contract shall be in the form of an amendment or addendum…”


Hunt added, “I should point out that certain (parts) of the salary adjustment language above was specifically dictated to me by board members for reasons I believe I’ve made clear in prior correspondence.” That correspondence was not provided with the documents released from BISD.


Hours before Hunt was set to meet with the BISD board for the last time before accepting Chargois’ contract, Hartsfield assured the BISD attorney that his concerns with regards to the “salary adjustments section” were attended to, agreeing to remove the section altogether.


The clause which reads “The District shall provide the Superintendent with an annual salary of TWO HUNDRED FIFTEEN THOUSAND AND NO/100 DOLLARS ($215,000.00), which amount shall be automatically increased each year by an amount equal to the greater of the highest percentage raise given to the District’s teachers or a percentage mutually agreeable to the Board and the Superintendent,” was still intact when final changes were made to the contract April 27, and likewise when the board signed off on the agreement May 1.


Duped


At the May 1 BISD board meeting, president Reece asked Hunt if he should read the entirety of the contract before accepting the agreement; in response, he was told it wasn’t required. Reece also announced no closed door meeting would be required to discuss the contract, although one had been previously scheduled and posted.
Trustee Zenobia Bush read a proposal to adopt the contract, with the salary being clearly stated, “and such other terms and conditions as are included in the superintendent’s employment contract agreed upon by the parties which president Reece is authorized to execute on behalf of the Beaumont Independent School District.” The board unanimously accepted the contract, but it wasn’t long before members of the board started expressing buyers’ remorse.


In a joint statement from trustees Neil and Neild, the board members stated, “We wish to dispel immediately any notion, as has circulated in some of the local media, that the BISD trustees were initially provided with a draft employment contract for the new BISD Superintendent that contained a term providing for any form of automatic raise for the Superintendent. This false belief has apparently been encouraged by BISD through its provision of incomplete relevant records to the media.


“The two of us were never informed … about the inclusion of the ‘automatic raise’ language in the final agreement. The Board’s instruction regarding the non-negotiable ‘no automatic raise’ term, to our knowledge, was never changed or modified at the request of the full Board.”


The two trustees then attempted to call a special meeting of the BISD board to address the matter with Chargois and the remainder of the board in closed session but were unable to do so. Attempts to secure information from Hunt were also unsuccessful, Neil said, and now the trustees have filed suit against their attorney and BISD in an attempt to secure documentation held by the district and its legal representative to prove whether or not any members of the board were privy to the contractual agreement provided by Chargois’ attorney before signing it into effect.


In litigation filed at the Jefferson County Courthouse, the board member plaintiffs contend that, “The only draft employment agreement ever physically provide to the Board by Defendant Hunt that they were allowed to retain and review was provided to each Trustee by Defendant Hunt on March 28, 2012 by hand delivery.” It further states, “The Board did not, in any of the executive sessions or otherwise, change its original instruction to Defendant Hunt or (Board President) Reece that there was to be no automatic raise provision in any contract with Dr. Chargois.”


The plaintiffs argue that although they approved the contract May 1, they were not privy to the specifics of the contract until after the vote. “Despite the motion (to accept the contract May 1), the collective Board had not agreed to the inclusion of any provision providing for an automatic, non-discretionary raise in salary,” the court motion reads.
The attorney representing the board members in the lawsuit, Mike Getz, stated his clients repeatedly requested materials from Hunt “to understand why the automatic pay raise provision was inserted into the contract without their consent or knowledge.” Those attempts have been rebuffed, according to Getz, and the plaintiffs are seeking a court order requiring the release of such information.


“It is sad that these two elected officials have to go to such lengths to get their own attorney to provide them with documents that they need in order to perform their official duties,” Getz said. “My clients absolutely have a right to these documents, and to be stonewalled and ignored in the manner that they have been is unconscionable.”
In response to the trustees request for documents, Hunt referred the officials to BISD policy that states, “In accordance with the written contract, individual Trustees shall channel legal inquiries through the Superintendent or Board designee, as appropriate, when advice or information from the District’s legal council is sought.”


Sending the request through Superintendent Carrol Thomas didn’t produce the requested documents, either. Neil sent the matter to Thomas on May 8, and had yet to receive a response as of May 16, he said.


Track record


A precedent for the trustees’ lawsuit can be found in a 1983 ruling from the Texas Attorney General still cited in rulings from the office to date. In the ruling, defined as Tex. Att’y Gen. Op. No. JM-119 (1983), the opinion concluded, “Since ... the board of trustees” is responsible for maintaining the records of the college district, “it logically follows that a member of that board has an inherent right of access to such records, at least when he requests them in his official capacity. ... Without complete access to district records, such trustee could not effectively perform his duties.”

Attorney General Opinion JC-0120 noted that opinions subsequent to JM-119 had approved the principle set forth therein. In particular, Letter Opinion 93-069 concluded that “members of the governing body of a state or local governmental entity have an inherent right to examine the records of the governmental entity if they request access to the records in their official capacity.”

Still, the result of the litigation is uncertain, and Hunt is a veteran school district attorney with decades of experience at the forefront of a law firm that currently represents more than a dozen school districts.

Chargois’ attorney is similarly familiar with the school district contract process, as his firm is on retainer for the Texas Association of School Administrators. Attorneys from Hartsfield’s firm penned Thomas’ contract, as well as those for superintendents in Houston and Dallas. Chargois was afforded Hartsfield’s representation through his affiliation with the TASA group.

Hunt told The Examiner in phone conversation that he is confident he did the job he was tasked with performing but could not comment on the specifics of the matter due to attorney/client privilege.

“The privilege isn’t mine to waive,” he said.
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