Quintanilla Lawsuit

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					                                 CAUSE NO. 2009-12-006699-E


RICK ZAYAS, RUBEN CORTEZ                           )
                                                   )
               Plaintiff's                         )
               Counter Defendants                   )                  DISTRICT COURT OF
                                                   )
Vs                                                  )
                                                    )                  CAMERON COUNTY
CARLOS QUINTANILLA DBA                              )
ACCIONAMERICA                                       )
           Defendant's/ Counter Plaintiff's         )


 DEFENDANT'S/COUNTER   PLAINTIFF"S ORIGINAL RESPONSE AND COUNTER
   CLAIM FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT SCHOOL
 TRUSTEES RICK ZAYAS, RUBEN CORTEZ. FOR MALFEASANCE, FAILURE TO
      DICLOSE MATERIAL FACT RELATED TO POTENTIAL CRIMINAL
     WRONGDOING AND CONFLICT OF INTEREST AND GENERAL DENIAL


TO THE HONORABLE JUDGE OF SAID COURT:


        COMES NOW, DEFENDANT'SfCOUNTERPLAINTIFF                CARLOS QUINTANILLA
DBA ACCION AMERICA, in the above style and numbered cause and in response to Plaintiffs
Original Petition, files this its answers and Counterclaim and in support thereof, would
respectfully show unto this Court as follows:

                                      GENERAL      DENIAL


1.   As is authorized by Tex. R. Civil P. 92, Defendant denies every and all singular, the claims
and allegations contained in Plaintiff's   Original Petition and demands strict proof thereof by
preponderance of credible evidence as required by law, including the constitution of the State of
Texas.


2.   Pursuant to Texas R Civil P. 63, 69 and 68, Defendant reserves the right to amend and or
supplement its Original Answer at a later time in these proceedings.
DEFENDANT'StCP ORIGINALRESPONSE AND COUNTERCLAIM FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZAYAS, JOE COLUNGA, RICK ZAYAS, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE TO
DISCLOSE MATERIAL FACT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTEREST AND GENERAL
DENIAL
                                      AFFIRMATIVE          DEFENSES


3.    Further answering and by way of affirmative defenses, Defendant/CP assert the defense of
the truth and would show that if the Plaintiffs/CD       suffered any loss or damages, such loss or
damages were caused by the acts and or omissions of Plaintiffs/CD,         and those acts or omissions
were the proximate        and/or producing cause of the loss or damages alleged by Plaintiffs.


4.    Furthering answering and by way of affirmative defenses, DefendantlCP asserts that
Plaintiff s/CD do not have standing to bring their claims



                                   II. JURISDICTION        AND VENUE


5.   Plaintiffs/CD       RICK ZAYAS, RUBEN CORTEZ, are Elected Officials elected in Cameron
County to serve on the Brownsville           Independent    School District; they are all residents of
Cameron County and can be served at 1900 Price Road, Brownsville Texas.


6.   DefendantlCP        CARLOS QUINTANILLA           DBA ACCION are residents of Dallas County,
residing at 421 South Dwight, Dallas Texas 75211.


                                         III. COUNTERCLAIM


7.   DefendantlCP CARLOS QUINTANILA is a resident of Dallas County, Venue is proper for
Counterclaim.


8.       Plaintiffs/CD     ZAYAS, CORTEZ, are residents of Cameron County, and claim proper
venue.


9.   This, our Counterclaim, is filed pursuant to Texas Constitution, Article V. Section 24, Local
Government Code 87.011 and Texas Education Code 44.032.
DEFENDANT'S/CP ORIGINAL RESPONSE AND COUNTERCLAIM   FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZAYAS, JOE COLUNGA, RUBEN CORTEZ, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE
TO DISCLOSE MATERIAL FACT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTERESTAND GENERAL
DENIAL
                                  IV. FACTUAL BACKGROUND


10.   Plaintiffs/CD    filed First Original Petition on December 9 for Defamation and Slander Per
Se.


11.   Plaintiff s/CD were elected by the voting citizens of Cameron County. Defendant Rick
Zayas was elected November 4, 2008; Plaintiffs           claim Slander and Defamation, Respondent
claims the truth, as a defense and therefore files their Counterclaim.


12. At all times relevant to this cause, Plaintiffs/CD    have failed to full fill their fiduciary duties
to the Citizens of Cameron County by engaging in conduct unbefitting a member elected by the
Citizens of Cameron County, in particular the residents of Brownsville ..


13. Plaintiffs/CD     have engaged in willful conduct that falls within the scope of the Local
Government Code 87.011 in that: Board Members may be removed from office for:
        1. Incompetency", which means:
            a. Gross ignorance of official duties;
            b. Gross carelessness in the discharge of those duties: or
            c. Unfitness or inability to promptly and properly discharge official duties because
                of serious physical or mental defect that did not exist at the time of election.
        2. "Official    Misconduct",   which means intentional,       unlawful   behavior relating     to
            official duties by a Trustee entrusted with the administration of justice or execution
            of the law. The term includes an intentional or corrupt failure, refusal or neglect of a
            Trustee to perform a duty imposed on the Trustee by law and conviction of an
            offense relating to violation of purchase procedures.
        3. Intoxication on or of duty caused by drinking an alcoholic beverage, but not if it was
            caused by drinking and alcoholic beverage on the direction and prescription             of a
            licensed physician.



DEFENDANT'S/CP ORIGINAL RESPONSE AND COUNTERCLAIM   FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZAYAS, JOE COLUNGA, RUBEN CORTEZ, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE
TO DISCLOSE MATERIAL FAIT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTERESTAND GENERAL
DENIAL
        4. Conviction       of a Trustee by a Jury for any felony and or misdemeanor                official
            misconduct.
Actions for removal of Board Members must be brought before the judge of the district court
holding jurisdiction, except that any court convicting a Trustee of a felony or official misconduct

shall order immediate removal.


14.     On or about September              3, 2008, the Superintendent    Hector    Gonzales      ordered a
comprehensive       investigation   into    the   Brownsville   Independent   School   District    Athletic
Department, headed by Joe Rodriguez; the report was assigned to Yolanda Gavito. A true and
correct copy is herein enclosed as Respondent's        Exhibit "A".



15. On or about December 3, 2008, a second report was completed by Linda Fausto at the
request of Superintendent Hector Gonzales and is enclosed herein as Respondent's Exhibit "B"

16. Plaintiffs/CD     by the second report were all elected and serving in their official capacities as
elected members of the Brownsville Independent School District ..


17.   Superintendent     Hector Gonzales presented the reports to the full board for action and
resolution and recommended that BISD take immediate steps to terminate its Athletic Director
based on the findings of the internal reports.


18. It should be noted that Rick Zayas went to law school with Joe Rodriguez son and that BISD
Attorney Miguel Saldana was a teammate of Joe Rodriguez, despite this there was no attempt to
recuse themselves from actively discussing           or taking action on the recommendation          of the
Superintendent. Mr. Zayas also represented Saldana on a drug charge, on obvious conflict.


19.   While Superintendent Gonzales was raising questions about the improper activities of the
Athletic Department,      he was also resisting pressure from Defendants           Zayas and Cortez to
terminate a 38 million dollar contract with Healthsmart, a Texas based company and divert the
DEFENDANT'S/CP ORIGINAL RESPONSE AND COUNTERCLAIM FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZAYAS, JOE COLUNGA, RUBEN CORTEZ, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE
TO DISCLOSE MATERIAL FACT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTERESTAND GENERAL
DENIAL
contract to Mutual Assurance Company, who has nexus with Johnny Cavazos, a big contributor

of Joe Rodriguez and a campaign contributor of both Zayas, Cortez and Joe Colunga.


20. Superintendent    Hector Gonzales     also commissioned     a report to investigate    improper
evaluations and potential civil rights violations of children with special needs, the report was
returned and completed     highly critical and raised questionable      legal billing practices    and
commentary from Miguel Saldana, teammate of Joe Rodriguez, a former Board Member and
now legal counsel to BISD. A true and correct copy is herein enclosed as Plaintiff's Exhibit "C"


21.   Rather than taking action on their friend and Athletic Director, Plaintiff/CD Rick Zayas
retaliated against Superintendent Hector Gonzales by taking unprecedented steps to remove the
Superintendent   and place him on administrative    leave, with the ultimate goal of permanently
terminating his employment.

22.   During the time when Superintendent Hector Gonzales was on administrative leave
Plaintiff's engaged in a premeditated and willful conspiracy to a). Terminate Gonzales.
b). Terminate    the Healthsmart   Contract.   c). Rescind   the recommendation      to accept Joe
Rodriguez resignation. d). Ignore the reports critical of Special Needs (Overton, SBS Study).


23. On January 18,2009 Board trustees hired the law firm of Navarro and Gomez to commence
an investigation for cause against Mr. Gonzales.


24.   On or about January 17, Mr. Gonzales filed a 10 million dollar lawsuit against BISD for
slander and defamation.


25.   TEA Certified Investigator, Veronica Guerra was hired to conduct a full investigation to
determine if probable cause existed to terminate Mr. Gonzales and on November 15, 2009, she
concluded that there were sufficient findings of facts to terminate Mr. Gonzales. It should be
DEFENDANT'S/CP ORIGINAL RESPONSE AND COUNTERCLAIM FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZAVAS, JOE COLUNGA, RUBEN CORTEZ, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE
TO DISCLOSE MATERIAL FACT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTERESTAND GENERAL
DENIAL
Noted, however, that Miguel Saldana waived his immunity, as attorney for BISD, and testified
about privileged information by and between him and Gonzales, for the purpose of piling on and
Getting rid of that "vulgar language Gonzales" as it was so eloquently stated at a closed
Executive session by Board Trustee Plaintiff/Counter Defendant Rick Zayas.


26. Continuing their conspiracy, Plaintiff's/CD     in collusion with Gary Looney, orchestrated a
campaign to terminate the Healthsmart Contract and awarding it to Mutual Assurance Company,
by accepting    fraudulent,   misleading   and unsubstantiated   data from Looney,       critical   of
Healthsmart and thus creating the basis to justify terminating the contract. It should be noted that
of the 20 companies who submitted bids, 17 were related to companies associated with Insurance
Agent and friend ofPlaintiff's/CD   Zayas and Cortez.


27. On or about August 18,2009, by a vote of 4-3, BISD recommended that the contract be
awarded to Mutual Assurance.

28. On or about September 4,2009, at the request and insistence of Board Member Caty Presas,
Healthsmart was given for the very first and only time, an opportunity to rebut the claims and
misleading information submitted by Gary Looney.


29.   On that Date, Clay Timmons representing Healthsmart made a compelling presentation that
caused consternation and backtracking      by Plaintiff/CD Cortez, in where he requested that the
Trustees initiate a Comprehensive    audit to determine if the document provide by Looney was
false and misleading. This was done by Cortez after Hispanic Civil rights group Accion America
launched a massive public information campaign questioning the integrity of that decision, and
other potential violation of BISD policy. Nevertheless, Mr. Cortez smokescreen attempt to show
concern was negated by a later decision to proceed with the Mutual Assurance Contract.


30. Plaintiff's failed to disclose material fact and refer to the Cameron County District Attorney
and or the Texas Attorney General, the findings contained in both the Gavito, Fausto and Pizano-


DEFENDANT'S/CP ORIGINAL RESPONSE AND COUNTERCLAIM FOR TIlE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZAYAS, JOE COLUNGA, RUBEN CORTEZ, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE
TO DISCLOSE MATERIAL FACT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTERESTAND GENERAL
DENIAL
Flores Audits that stated:
        Falsifying timesheets
        Improper use of BISD property
        Using BISD Tax ID to solicit funds for non BISD activities
        Harassment and violation of employee rights
        Unaccounted prepayment of $8,273
        Payment of hotel bills incurred for non BISD activity in Olmitos, Texas.
Despite multiple violation of state and federal law, the Plaintiff's      failed to report possible
criminal activity to law enforcement     agencies as required under Paragraph 2. REMOV AL
FROM OFFICE.


31.    Plaintiff's/CD,   added more insult to injury, by rejecting a request by the Brownsville
Herald then requesting a legal opinion from the Attorney General on whether or not it should
release the Gavito, Fausto, Pizano-Flores Audit Reports, once the Attorney General responded
that the documents were in the "public interest" and should be released, Defendant's         Zayas,
Cortez Joined by Board Member Colunga and Aguilar, without formal action, of the Board
instructed its attorneys Walsh Anderson (Resendez) to sue the Attorney General to suppress the
reports that contain potential criminal activity by friend and Athletic Director Joe Rodriguez.


32.   The reports were subsequently released in the "public interest' by Accion America.


33.   Plaintiff's continue to ignore the recommendation    of the reports relating to special Needs
and rather than taking corrective action, continue to violate in a unconceivable manner the rights
and lives of thousands of children with Special Needs.


34.   Continuing to act with impunity and complete disregard, Plaintiff's have acted with a
willful disregard to safeguard the public funds entrusted to them by allowing excessive legal fees
by friend and BISD Legal Counsel Miguel Saldana, that have amounted to more than $900,000,
DEFENDANT'StCP ORIGINAL RESPONSE AND COUNTERCLAIM FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZAYAS, JOE COLUNGA, RUBEN CORTEZ, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE
TO DISCLOSE MATERIAL FACT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTERESTAND GENERAL
DENIAL
relating to fess associated with defending Due Process Claims under IDEA, that could have been
easily resolvable at the administrative level.


35. Information in the Overton Report contain allegations of defective evaluations, questionable
testing, instruction from BISD attorneys "to dilute the reports", indefensible against litigation.
and resulting in gross negligence against children with special needs and their parents over a
period of ten years


36. Plaintiff's/CD    allowed Board Member Joe Colunga, to misused government property, to
benefit personally by ordering exclusive use of BISD property for his son, a 25 year adult with
Special Needs. He has instructed BISD staff to assign personal drivers, monitors for his son and
expenses to be paid for his wife to accompany his son on out of city trips.


37. Plaintiff's/CD    have allowed Board Member Colunga to used his position as a BISD Trustee
to expend more than $78,000 in construction upgrades independent of BISD Trustee approval or
vote. The facilities where Colunga son was a student was the beneficiary of the unauthorized by
board expenses. It should be noted that $47,000 was spent at ITEC, upon completion of the
work, because Mr. Colunga's wife was not satisfied with the quality of air, an additional amount
of funds were expended again without consent of the board, for a school that Board Member
Colunga's   son was subsequently        transferred   to. Plaintiff's   allowed this to continue without
taking appropriate action.


38.    Defendant's/CP     Quintanilla DBA Accion America deny in general and in its entirety any
and all claims raised by Plaintiff's.


39.   For the reasons outlined in this our Original Petition; this Honorable Court must and should
remove Plaintiff's/CD    Zayas, Cortez, and proceed with trial for the causes of action
herein outlined by DefendantlCP Quintanilla.


DEFENDANT'StCP ORIGINAL RESPONSE AND COUNTERCLAIM FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZAYAS, JOE COLUNGA, RUBEN CORTEZ, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE
TO DISCLOSE MATERIAL FACT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTERESTAND GENERAL
DENIAL
                         v. CAUSES   OF ACTION ON COUNTERCLAIM


                                Failure to Disclose Materialfact


40. Pleading further and or in the alternative, DefendantlCP Quintanilla,       herein the allegations
stated above and further alleges that Plaintiffs/CD    Zayas, Cortez,    failed To Disclose Material
Fact pursuant to potential    criminal   wrongdoing    by Athletic   Director   Joe Rodriguez     with
knowledge of their falsity and with reckless disregard for the truth, or otherwise caused material
omissions, intending to cause irreparable harm to the citizens of Cameron County, its students,
employees of BISD and parents of children attending BISD.


                                     Abuse of Official Capacity


41. Pleading further and or in the alternative, DefeandantlCP Quintanilla DBA Accion America
herein the allegations    stated above and further alleges that Plaintiff s/CD Zayas, Cortez,
committed   Abuse of Official Capacity, with knowledge         of their falsity and with reckless
disregard for the truth, or otherwise caused material omissions, intending to cause irreparable
harm to the taxpayers of Cameron County, its students, employees of BISD and parents of
Children attending BISD.


                                              Prayer


    WHEREFORE,           PLAINTIFF'S/COUNTER       DEFENDANT'S          ZAYAS, CORTEZ, be cited
to appear and answer herein, that upon hearing DEFENDANT'S/COUNTER                       PLAINTIFF
QUINTANILLA DBA ACCION AMERICA                  Original Petition and on [mal trial hereof that the
causes of action pleaded and damages found by the trier of the fact be granted as requested
herein including   punitive   and damages    and that DEFENDANT'S/CP             be awarded     costs,
prejudgment and post judgment interest at the maximum lawful rate and reasonable and


DEFENDANT'StCP ORIGINAL RESPONSE AND COUNTERCLAIM FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZAYAS, JOE COLUNGA, RUBEN CORTEZ, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE
TO DISCLOSE MATERIAL FACT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTERESTAND GENERAL
DENIAL
necessary attorney fees including attorneys fees in the event of an appeal to the Court of Appeals

and the Supreme Court of Texas, and for such other and further relief that may be awarded at law

or in equity and that this Court may deem necessary.



                                   CARLOSQU
                                  By: ----------~----~~~~.--------
                                                           ccion America


                                  En Forma Pro Se
                                  421 South Dwight, Dallas Texas 75211
                                  214524-1011 214484-6323 (facsimile)
                                  accionamerica@aol.com
                                       VERIFICATION

STATE OF TEXAS                         )

COUNTY OF DALLAS                      )


            BEFORE ME, the undersigned notary, on this day personally appeared Carlos
Quintanilla, DBA Accion America, affiant, a person whose identity is known to me. After I
administered an oath to affiants, affiant testified:


          My name is Carlos Quintanilla, I am capable of making this verification. I have
read Defendant's Original Response and Counterclaim for the Removal of BISD Trustees
Rick Zayas and Ruben Cortez. The facts stated herein are true and correct to the best of
my knowledge.


           Further Mfiants sayeth not


                                                   Carlos Q .




SUBSCRIBED AND SWORN TO ME on this I!77/day                   of January, 2010, to certify and
witness my hand and official seal.




                                                    Nota    blic, State of Texas
                                                    IN AND FOR THE STATE OF TEXAS




DEFENDANT'S ORIGINAL RESPONSE AND COUNTERCLAIM FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZAYAS, JOE COLUNGA, RUBEN CORTEZ, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE
TO DISCLOSE MATERIAL FACT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTERESTAND GENERAL
DENIAL
                                   CERTIFICATE OF SERVICE


     I, the undersigned, hereby certify that a true and correct copy of foregoing document has
been served upon counsel of record, pursuant to applicable rules on this 19th day of January,
2001 as follows:


VIA FACSIMILE 956380-3703
Adrian R. Martinez
Garcia and Martinez, L.L.P.
10113 North 10th Street, suite H
McAllen, Texas 78504




DEFENDANT'S/CP ORIGINAL RESPONSE AND COUNTERCLAIM FOR THE REMOVAL OF BROWNSVILLE INDEPENDENT
SCHOOL TRUSTEES RICK ZA VAS, JOE COLUNGA, RUBEN CORTEZ, ROLANDO AGUILAR FOR MALFEASANCE, FAILURE
TO DISCLOSE MATERIAL FACT RELATED TO CRIMINAL WRONGDOING AND CONFLICT OF INTERESTAND GENERAL
DENIAL

				
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