¹ PISD did not contest at trial that the internet notices of 22 Board meetings beginning August 13, 2008 to January 2009 (22 Meetings) were untimely created in May 2009 and were posted on PISD’s internet website on May 19, 2009. This Court acknowledged the untimely creation of TOMA notices in its opinion in the First Appeal. Appendices 7, 19, 14; PX1. 2. PISD did not present timely created website internet notices for 22 Meetings with document properties that showed that the website internet notices were created 72 hours before the start of each of the 22 Meetings in question as required by §551.056(b).

³ PISD’s evidence of “missing link” to website notices is irrelevant because PISD created website internet notices untimely after said meetings had already taken place. Appendix7, PX1. Appendix19-Opinion Pgs.5-6. 4. Appellants reported violations of §551.056(b) to PISD on May 15, 2009. PISD admitted plaintiffs’ report caused the problem to be corrected. Appendix11- Interrogatory 7. 5. PISD represented to this Court that printing said notices “changed” the created dates of notices. This caused this Court to remand the case. Appendix 19. PISD did not produce evidence at trial that the untimely “created” dates of the PDF notices of meetings in question were the dates when “PISD printed the notices for delivery to plaintiffs.” Appendix19. Linder denied having any knowledge, stating it was just speculation. Transcript pg.199. PISD did not present evidence at the trial showing that printing internet notices for delivery to plaintiffs caused created dates of notices to change. No internet notices were ever printed for delivery to plaintiffs. Undisputed facts about BoardBook:

⁶ BoardBook is not a computer program that can be owned. Yearly subscription fee or renewal license fee must be paid every year for using its subscription services. If renewal fees are not paid every year, use of BoardBook is terminated. Appendix22. PISD did not purchase a BoardBook program in 2007 or

⁷ PISD did not have BoardBook service from 8/13/2008 to 5/19/2009. PISD did not execute contract or pay license fees or renewal fees to BoardBook for 1/2009 to 5/19/2009. Appendix22. PISD admits documents evidencing payment to BoardBook do not exist. Appendix11 (PISD’s Response to Request for Production15). The draft subscription agreement with BoardBook for 2007 is not signed by BoardBook. Appendix22. Further it is undisputed that PISD does not claim good faith exception for any period in 2007 or 2008. BoardBook program does not post notices of meetings on PISD’s website for public viewing. Appendix10-Interrogatory18. 8. PISD is solely responsible for notices appearing or not appearing on BoardBook or compliance with TOMA. Appendix22. Notices of meetings are posted on BoardBook website in PDF (Adobe) format. BoardBook terminates

¹¹ The original source for disqualification in Texas is the constitution. Article V, Section 11 enumerates the circumstances in which a judge is disqualified from sitting in a case. TEX. CONST. art. V, § 11. The grounds have essentially been restated in TRCP 18(b)(a).

¹² Linder did not post copies of internet notices of meetings on PISD’s website. BoardBook did not and does not place or post meeting notices on PISD’s website at any time. PISD admits that its internet notices were not posted on its or BoardBook’s website for 11 meetings from 1/15/2009 to 5/19/2009 in violation of §551.056(b). Appendix11-Interrogatories5,7.

¹³ Curiously, Judge Lopez took possession of all trial exhibits (Transcript page 56) and exhibits PX1, PX32, PX19, PX20, and PX25 were lost or destroyed and had to be replaced through another remand and hearing in this case.

¹⁴ Linder had no training, education, or expertise in technology or software. PISD presented no exhibits, documentary evidence, or witnesses from BoardBook or SchoolCenter at trial. Undisputed facts about Third Party Contractor SchoolCenter: 15. SchoolCenter worked for PISD and is PISD’s agent. No person from SchoolCenter testified concerning the claim that SchoolCenter failed to transfer link, services assigned to and performed by SchoolCenter, and the dates of service. PISD did not present a contract, proof of payment for service, vouchers, purchase orders, consideration for contract, or any documentary evidence at trial concerning SchoolCenter that defines the services it provided for PISD. SchoolCenter is a webhosting service and not a webmaster for PISD.

¹⁶ PISD did not disclose the identity of SchoolCenter and its role in response to written discovery from plaintiffs and further did not timely supplement, amend, or correct its response to written discovery. SchoolCenter’s identity and role was not disclosed until the trial in this case. In the First Appeal in this case, PISD did not disclose to the 7th Court of Appeals the existence, identity, and central role of SchoolCenter in this lawsuit.

¹⁸ PISD and Jameson dropped the hyperlink to internet notices on BoardBook and did not ask SchoolCenter to establish it. Jameson admitted that the link was not there on the old website at the time it was being converted to a new website. Transcript pg.144. She did not think the link was necessary on the new website. Appendix16. Transcript pg.144. SchoolCenter had direct access to PISD’s old website and transferred links that were on the old website onto the new website. Transcript pg.135. Jameson established the link to BoardBook on 5/19/2009. Appendix16. PISD untimely created notices for the 22 meetings in May 2009. Appendix19; PX1. PISD did not have a purchase order, did not have a contract with or make any payment to SchoolCenter for its service to build a new format or transition hyperlinks to a new website. Hyperlinked notices did not exist on old website, and SchoolCenter was not responsible for transferring the link to BoardBook. SchoolCenter’s role was irrelevant to PISD’s good faith defense. 19. Jameson has no expertise in website operations. Transcript pages 132. Lee Carter operated PISD’s website (Transcript page 116, 132) through January

²⁰ Linder did not communicate, direct, interact with, nor manage SchoolCenter concerning link to notices. Linder did not know the identity of SchoolCenter and did not have personal knowledge of its role in this lawsuit. Transcript page 191. 21. It is undisputed that PISD did not verify that its internet notices actually appeared for 72 hours before each of the 22 Meetings on its website directly or through a link. Transcript 176-178. PISD further failed to verify whether or not the link to internet notices was in fact transferred to its new website for 11 meetings for 5 months from 1/15/2009 to 5/19/2009. Transcript 176-178.

²² To put a link to notices on the website is not difficult. Transcript pg.150. Failure to verify whether such link was removed and not reestablished is not difficult and is not a technical problem. Transcript Page150. Further, verification that the link to internet notices actually was transferred onto PISD’s

²⁴ PISD admits that internet website notices required under TOMA §551.056(b) did not “appear” in the prescribed time of 72 hours on PISD’s website for 11 meetings from 1/15/2009 to 5/19/2009. Appendices 8, 11 (Interrogatory7). 25. The internet notice that PISD posted on its website for 3/26/2009 board meeting in which Terrell’s termination action took place was untimely created on May 8, 2009 and untimely posted to PISD’s website on 5/19/2009. Appendix 14. At trial, PISD did not present an internet website notice that was timely created 72 hours before the 3/26/2009 board meeting.

²⁷ PISD managed and maintained its website on and before 1/15/2009. PISD managed its website 72 hours before the 1/15/2009 board meeting. The internet notice for 1/15/2009 meeting did not appear on PISD’s website because PISD and Jameson dropped the link in a maintenance update. Appendix11- Interrogatory5,7. There was no link on the old PISD website for SchoolCenter to transfer to the new website. SchoolCenter was not involved in dropping the link. PISD’s new website went live in February 2009. Facts regarding plaintiffs’ causes of action:

²⁸ Terrell sued PISD on 5/29/2009 on eight distinct causes of action arising out of PISD’s violations of TOMA and seeks to void her termination and for reinstatement and back wages among other relief. Appendices5,6. PISD’s first amended answer had no certificate of service and was not served on plaintiffs. CR282-284. 29. Trial Judge Lopez did not try plaintiffs’ distinct claims under sections 551.041, 551.043, 551.051, 551.045(d), 551.74(b), 551.101, 551.142(a) (“7 Causes”). Further, Judge Lopez did not rule on said claims, nor ruled on declaratory, mandamus, or injunctive relief, and did not make Findings of Fact and 3 PISD’s Board held a total of 22 meetings from 8/13/08 to 5/19/09. Violations of TOMA provisions at Issue in this case: • §551.051: PISD violated §551.051 by failing to post notices of 22 Meetings in a specifically designated place - Bulletin Board in its Central Administrative Office. • §551.056: PISD violated §551.056 by failing to concurrently post internet notices of 22 Meetings on its website for prescribed time and manner. • §551.043: PISD violated §551.043 by failing to post notices of 22 Meetings at a physical location for prescribed time (72 hours) and manner. • §551.041: PISD violated §551.041 by failing to specify “place” in its notices of 22 Meetings. • §551.101 and §551.074(b): PISD violated §551.101 by failing to legally close the 3/26/09 Board meeting and violated §551.074(b) by deliberating on Terrell’s termination in closed meeting. • §551.045(d): PISD violated §551.045(d) because PISD’s notices of 22 Meetings were signed on behalf of the Board and posted by a person (Linder) not so designated nor authorized by Board of Trustees. • §551.142(a): Declaratory, injunctive, and mandamus relief on all plaintiffs’ claims. 4 Whether or not Plaintiffs knew or attended the meeting (SOF40) is irrelevant. TOMA is not scheme for process of service and has no due process implications. Acker, Id. 7 TOMA §551.056(d) provides that: “The validity of a posted notice of a meeting or an agenda by a governmental body or economic development corporation subject to this section that made a good faith attempt to comply with the requirements of this section that is due to a technical problem beyond the control of the governmental body or economic development corporation.” 8 Collins English Dictionary – Complete and Unabridged, HarperCollins Publishers, 2003 defines “technical” as 1) of, relating to, or specializing in industrial, practical, or mechanical arts and applied sciences. CAUSE NO. 35621 REBECCA TERRELL and § IN THE 223RD DISTRICT COURT CHANDRASHEKHARTHANEDAR § § lXI -< ~ ........ Plaintiffs, § c:...., en 0(1) :t) § -l> (/).:Z: .<:= )> -io <:::::> c:::::: -< v. § INANDFOR § :O:::o ol> .,_ N o., judicial notice of the file. PISD refused to testify at the trial on its attorney fees, but asked the Court to take judicial notice of attorney fees. 3. For the first time at trial, in violation of discovery rules, PISD disclosed that a "third party vendor" was involved in transferring the link to its website notices on BoardBook. In addition, for the first time at trial, in violation of discovery rules, PISD disclosed the identity of the third party vendor - "SchoolCenter" which created a "new website" for PISD allegedly in January 2009 and allegedly failed to transfer said link to the new website causing non- appearance of website notices from January 15, 2009 meeting to May 19, 2009 meeting. See Appendix 1; PX 8-11. Appendices 2 through 5 are PISD's website archive pages and view source information of PISD's website as of the dates noted i.e. 1126/2009 and 2/5/2009, in the archive and view source pages. View source pages state software that generated PISD's website pages viz. "Adobe GoLive" software for the OLD website and "SchoolCenter" version 8.0 used for the NEW website. The newly discovered evidence clearly shows that PISD purposefully gave false and misleading testimony at trial and in its answers to interrogatories and responses to other discovery requests. PX 8-11; Appendix 1. PISD concealed and falsified the dispositive facts that: a. Said link in question did not exist on the OLD website which was managed by PISD itself through January 26, 2009. PISD has admitted that the TOMA internet notice did not appear on its website for its January 15, 2009 meeting because the link was removed. See PX 8- 11; Appendix 2, 3. b. PISD's OLD website was managed by its webmaster Lee Carter at least through January 26, 2009. Appendix 2 (bottom left comer) and Appendix 3 (page 2 of the appendix) Motion for New Trial Cause No. 35621 Page2 of24 clearly identify Lee Carter as PISD's webmaster and show that Lee Carter as an employee or contractor had PISD's business email address. PISD used Adobe GoLive software at least up to January 26, 2009 and maintained its own website well after the time it admitted that January 15, 2009 meeting notice did not appear on its website because link was removed when PISD managed its website itself. The newly discovered evidence shows that SchoolCenter was not at "fault" as falsely alleged by PISD because as admitted by PISD the link did not exist on its website on or before 1115/2009 causing non-appearance of the internet notice for 1/15/2009 board meeting. c. Thus it is obvious PISD's Suzie Jameson fabricated a story and gave false testimony (Appendix 1) blaming SchoolCenter when PISD itself removed the link in January 2009 or before, on its own watch, before the new website was allegedly generated by SchoolCenter in February 2009 (Appendices 4-5). d. PISD concealed Lee Carter's (PISD's Technology Director) role in maintaining and generating PISD's website during the time period it claims good faith under 551.056(d). Lee Carter's name was not disclosed during the discovery process in violation of discovery rules as a person who had knowledge or any role in this concerning this lawsuit. PX 8-11. Lee Carter's name appears as webmaster on PISD's website on January 26, 2009 well after PISD admitted that January 15, 2009 meeting notice did not appear on its website due to alleged link problem. Appendices 2-3. The above newly discovered evidence is not cumulative and it could not be obtained before as the existence and identity of the "third party vendor" was concealed before, not disclosed until during the trial on 10/9/2013. Lee Carter's identity as a webmaster and Technology Director was also not disclosed until during the trial itself which is material on the issue of good faith under Sec. 551.056(d). The newly discovered evidence clearly shows PISD managed its website when the 1/15/2009 meeting notice did not appear on its website as admitted by PISD. Obviously, SchoolCenter could not transfer to the new website what did not exist on the OLD website that PISD maintained itself with Lee Carter as its webmaster. The newly discovered evidence is material and dispositive, and is fatal to PISD's good faith claim. Because PISD failed to supplement its interrogatory answers and failed to provide correct and complete answers to interrogatories and other discovery (PX 8·11 ), plaintiffs were not able to obtain the above evidence before trial. Plaintiff Thanedar testified as expert in technology matters pertinent to this lawsuit. The above evidence however is obvious to an average person. Plaintiffs affirm that "Adobe GoLive" was a software product of Adobe Systems Inc. and· is an HTML editor used to maintain and manage websites by its customers. The word "Generator" in Appendix 3 means what it says i.e. PISD generated its website using Adobe GoLive. Appendix 3. The newly discovered evidence shows "SchoolCenter" was not responsible for NOT transferring or transporting said link to internet notices as alleged by PISD at trial because PISD's website did not have the link in January as admitted by PISD. Plaintiffs demonstrate the existence of factors 1 in Jackson and Kirkpatrick for grant of new trial. Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex. 1983); Kirkpatrick v. Memorial Hosp., 862 S.W.2d 762, 775 (Tex.App.-Dallas 1993, writ denied). The weight and importance of the newly discovered evidence and its bearing with respect to evidence 1 The factors are: (i) the evidence came to light since the time of trial or so late in the trial that it was impossible to present the evidence before the trial closed; (ii) it was not because of a lack of due diligence that the information did not come sooner; (iii) the new evidence is not merely cumulative to that already given and does not tend only to impeach the adversary's testimony; and (iv) the evidence is so material that it would probably produce a different result if the court granted a new trial. Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex. 1983). Motion for New Trial Cause No. 35621 Page4 of24 received at trial is conclusive and is so material that it will probably produce a different result in this case i.e. PISD did not have good faith because it removed the link from its website itself before the creation of new website by SchoolCenter- PISD's Jameson's testimony at trial and its responses to discovery which were admitted into evidence being false, fabricated, and misleading. Refusal to receive newly discovered evidence and refusal to grant new trial would be manifest abuse of discretion and permanent loss of plaintiffs' substantive rights. A new trial is thus required under law on the good faith claim by PISD and an evidentiary hearing should be conducted by this Court to receive evidence in the above matters which will affirm that PISD's good faith claim was made in bad faith and is a fraud. Plaintiffs request an evidentiary hearing for the Court to receive evidence in this case on the newly discovered evidence above. The Court should grant new trial. 4. The Court clearly erred in granting $30,000 in attorney fees to PISD by taking ''judicial notice of the file" as asked by PISD. Texas law has not allowed recovery of attorney fees unless allowed by statute or contract. "Absent a contract or statute, trial courts do not have inherent authority to require a losing party to pay the prevailing party's fees." Tony Gullo Motors v. Chapa, 212 S.W.3d 299,310-311 (Tex. 2006). Nothing in TOMA or its pertinent case authority authorizes or empowers the Court to take judicial notice of attorney fees and to award them without receiving evidence. See TOMA Sec. 551.142. 2 Plaintiffs challenge the imposition 2 TOMA Section 551.142 provides as follows: (a) An interested person, including a member of the news media, may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of this chapter by members of a governmental body. (b) The court may assess costs of litigation and reasonable attorney fees incurred by a plaintiff or defendant who substantially prevails in an action under Subsection (a). In exercising its discretion, the court shall consider whether the action was brought in good faith and whether the conduct of the governmental body had a reasonable basis in law. of attorney fees as legally improper and further challenge the reasonableness of attorney fees awarded to PISD. The reasonableness of attorneys' fees is question of fact that must be proven at the trial. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000). Thus PISD was required to testify concerning its attorney fees. PISD refused and failed to testify on its attorney fees and refused and failed to prove them. Thus PISD forfeited and waived any claim to attorney fees. Because PISD refused and failed to prove and testify on its attorney fees, there is no evidence or insufficient evidence in the record for the Court to award attorney fees to PISD. Court's award of $30,000 has no basis in law or evidence because there is no evidence or insufficient evidence of tasks completed, hours worked, level of difficulty, identity of attorneys, reasonable hourly rates of attorneys on the case and other necessary information on which attorney fees must be based on and can be determined. Further in this regard, plaintiffs rely on and adopt and incorporate paragraph 2 of their Motion to Modify Judgment (which is filed contemporaneously) by reference as if set forth verbatim herein. It is clearly ascertainable that the award of attorney fees in this case does not arise under Texas Civil Practice and Remedies Code (CPRC) section 38.001, thus this Court does not have power to take judicial notice of attorney fees under Tex. Civ. Prac. & Rem. Code § 38.004. See Valdez v. Valdez, 930 S.W.2d 725, 732-33 (Tex. App.--Houston [1st Dist.] 1996, no writ) (holding section 38.004 only applies to claims under section 38.001). Attorney fees award here is legally improper because plaintiffs have undisputedly proven their good faith at the trial as their report of the violation of Sec. 551.056(b) was the only reason said violation was finally corrected by PISD after 5 months of non-compliance with TOMA from 112009 to 5/19/2009. PX 8-11. Further this court sitting by assignment has no personal knowledge of all of the proceedings in this case, being the third judge in this case after Judge Waters and Judge Vanderpool. Further plaintiffs do not have the ability to pay attorney fees, thus award is not reasonable. PISD did not plead in its original or the amended answer the required prerequisites to attorney fees as required by TOMA Sec. 551.142. PISD's first amended answer is defective as it does not contain a proper certificate of service under TRCP and PISD failed to answer plaintiffs' second supplemental petition. This Court has no authority or power under TOMA and no inherent authority or power to impose attorney fees for any proceedings or filing in the appellate courts, with or without evidence being received. Defendant has provided no statutory support or case authority for it. Further there is no evidence or insufficient evidence of filings by plaintiffs in the appellate court on which to base attorney fees award on by this Court. Defendant made no argument concerning its attorney fees for appellate filings by plaintiffs. There is no evidence or insufficient evidence that PISD made any responses to plaintiffs' appellate- filings and that they were accepted by appeals court. In fact, defendant's responses have been rejected by appeals court. In addition, plaintiffs prevailed on appeal in this case and the case was remanded back to trial court. Court's finding that plaintiffs made voluminous filings is legally immaterial, arbitrary, and capricious because plaintiffs prevailed on appeal and defendant's responses were found defective by appeals court. Thus there is no basis in law or fact for an award of attorney fees for plaintiffs' filings in appeals court. Further appeals court failed to segregate appeals court's portion of the attorney fees from trial court portion of the award and attorney fees before remand and after remand. Since, plaintiffs prevailed on appeal and were awarded costs by appeals court, no attorney fees and costs for proceedings before remand can be or should be awarded to PISD. The attempt by PISD for attorney fees is a bald attempt to intimidate plaintiffs in not filing an appeal of this Court's judgment. Such an attempt is an outrageous affront to the purpose of open government under TOMA and will have chilling effect on citizens and taxpayers who report violations of TOMA and seek redress. PISD has refused to testify and prove its attorney fees before this Court (or appeals court), this Court failed to receive evidence concerning attorney fees, thus PISD waived and forfeited attorney fees. It is clearly ascertainable that PISD did not respond to plaintiffs' motions or letters whether or not they were "voluminous," thus there is no evidence that PISD ever incurred attorney fees or insufficient evidence that PISD ever incurred attorney fees and to what extent with respect to PISD's complaints about plaintiffs filings. Further, plaintiffs cannot be penalized or sanctioned for filing lawsuits or for their filings whether or not they were voluminous as they a have constitutional right to seek redress of their grievances. The plain fact is there is no evidence or insufficient evidence ofPISD spending any time on plaintiffs' "filings" in this Court or in appeals court. An attorney fees award based on no evidence ofexistence and reasonableness of attorney fees viz. identity of attorneys, hours worked, tasks performed, quality and difficulty of work, hourly rate and other factors; or insufficient evidence of existence viz. identity of attorneys, hours worked, tasks performed, quality and difficulty of work, hourly rate and other factors violates plaintiffs' constitutional rights of due process and equal protection under Texas Constitution and 14th Amendment to the Unites States Constitution as such arbitrary and capricious and manifestly too large and unreasonable imposition of attorney fees has no support in law or case authority. Therefore imposition of attorney fees without legal support under TOMA and without receiving evidence is not only a clear abuse of discretion but is abusive to Texas citizens and taxpayers such as plaintiffs. This Court should vacate its judgment and order new trial. PISD did not offer argument at trial or in its pleadings about whether plaintiffs brought this suit in good faith or being a prevailing party, or whether its actions had a reasonable basis in law on all causes of action brought by plaintiffs. See Sec. 551.142. PISD failed to plead prerequisites to attorney fees in its amended answer. Sec. 551.142. PISD's first amended answer is defective as it does not have proper certificate of service under TRCP. Plaintiffs adopt and incorporate by reference their response to defendant's first amended answer and plaintiffs' special exceptions and affirmative defense to defendant's request for attorney fees and costs (which are on file) as if set forth verbatim herein. As explained before, there is clear undisputed evidence of good faith on the part of plaintiffs in this case, thus imposition of costs is improper and unreasonable. See TOMA Sec. 551.142. PX 8-11. The judgment and award of attorney fees of $30,000 and costs should be vacated and denied and new trial ordered. PISD offered no evidence of lack of good faith on the part of plaintiffs and did not even offer an argument on it. Thus there is no evidence or insufficient evidence of lack of good faith or bad faith in the record on the part of plaintiffs. 5. The Court erred when it denied trial on plaintiffs' remaining six (6) distinct causes of action under TOMA Sections 551.041, 551.043, 551.045, 551.051, 551.074, 551.101. 3 See plaintiffs' original petition and the two supplements on file. 3 PISD's Board of Trustees (Board) held 11 meetings each in 2008 and 2009 from 8/13/08 to 5/19/09. Violations of TOMA provisions at Issue in this case: • §551.051: PISD violated §551.051 by failing to post notices of 3/26/09 board meeting and 22 Meetings in a specifically designated place - Bulletin Board in its Central Administrative Office (Central Office) as required by TOMA. • §551.056: PISD violated §551.056 by failing to concurrently post internet notices of 3/26/09 board meeting and 22 Meetings on its website for prescribed time and manner. • §551.043: PISD violated §551.043 by failing to post notices of 3/26/09 board meeting and 22 Meetings at a physical location for prescribed time (72 hours) and manner. • §551.041: PISD violated §551.041 by failing to specify "place" (Pampa, Texas) in its notices (internet and paper notices) of 3/26/09 board meeting and 22 Meetings. Motion for New Trial Cause No. 35621 Page9 of24 The Court stated that the appeals court remanded the case to hold trial only in the cause of action in Sec. 551.056(b) and (d). This is plainly incorrect. The appeals court did not state the causes of action on which trial should be held. See the Opinion and Mandate of the appeals court on file in this case. The appeals court did not rule on said 6 causes of action in its opinion and this Court was required to hold trial on them and specifically rule on them. The Texas Rules of Civil Procedure require that the Court rule on all causes of action and the judgment conform to pleadings. The record of trial is clear - plaintiffs did not agree to forego their right to trial on said 6 causes of action. The Court has failed to make findings of fact and conclusions of law regarding said 6 causes of action. TOMA Sec. 551.142(a) entitles plaintiffs to ruling and relief on their said 6 causes of action. Plaintiffs refer to and rely on the facts, arguments, and authorities presented and relief requested in regards to said 6 causes of action in plaintiffs' second no-evidence and traditional motion for summary judgment (filed in this case on 10/3112012) as if set forth verbatim herein. If the Court is of the opinion that material fact question remains as to any of the said 6 causes of action, the Court was required to try them, alternatively, if the Court believes no material fact question remains, the Court is required to rule on said six causes of action. The Texas Supreme Court has demanded Exact and Literal Compliance with TOMA. See Acker v. Texas Water Commission, 790 S.W.2d 299 (Tex. 1990). ("The explicit command of the statute is for openness at every stage of the deliberations. Accordingly, we have demanded exact and literal compliance with the terms of this statute." [citing] Smith County v. Thornton, 726 S.W.2d 2, 3 (Tex. 1986); City of San Antonio v. Fourth • §551.101 and §551.074(b): PISD violated §551.101 by failing to legally close the 3/26/09 Board meeting and violated §551.074(b) by deliberating on Terrell's termination in closed meeting. • §551.045(d): PISD violated §551.045(d) because PISD's notices (website and physical location) of 3/26/09 board meeting and 22 Meetings were signed on behalf of the Board and posted by a person (Karen Linder) not so designated nor authorized by PISD's Board of Trustees (Board). Court ofAppeals, 820 S.W.2d 762 (Tex. 1991)). Thus, "substantial compliance" under TOMA, whether done in good faith or not, is no longer sufficient nor valid law in Texas. This Court should apply the Exact and Literal Standard to all causes of action in this TOMA lawsuit. The Court's failure to rule or try the remaining six causes of action violates plaintiffs' constitutional rights under Texas Constitution Article 1 Sections 3, 13, 19, and 27, and the 14th Amendment to the U. S. Constitution. Plaintiffs request that judgment be vacated and new trial be granted on all causes of action. 6. The Court erred in denying plaintiffs' motions to exclude evidence concerning any person or third party vendor's role or involvement about which full discovery was not provided or role and involvement not disclosed during the discovery process to plaintiffs in this case including SchoolCenter and BoardBook. The Court erred in denying plaintiffs' motion to strike and exclude Jameson's testimony regarding SchoolCenter as PISD had concealed and failed to disclose its identity and role during discovery process. PISD further failed to supplement discovery concerning the identity and role of SchoolCenter concerning its good faith defense under Sec. 551.056(d). For the first time at trial, PISD asserted that a third party vendor, SchoolCenter, made the mistake of not transporting the link to BoardBook to a new website. PISD engaged in trial by ambush in this regard by concealing 1) that a third party vendor was involved in creating a new website, 2) that this vendor School Center was responsible for the error of dropping the link to internet notices on BoardBook. PISD during discovery process represented that only Jameson and Linder had knowledge of the link problem and did not disclose that any other person or vendor was involved in either creating the new website or transporting the link to the new website. See PX 8-11; Appendix 1. At trial, PISD admitted that it had a contract with SchoolCenter, but did not disclose its existence and the role of SchoolCenter during discovery process and failed to supplement discovery. PX 8-11. PISD divulged the identity and its claim that SchoolCenter played a central role in its non-compliance with Sec. 551.056(b) for 5 months from 1115/2009 meeting to 5/19/2009 meeting by not transporting the link to PISD's website notices on BoardBook. PISD disclosed the identity of SchoolCenter and its role for the first time in Jameson's testimony at trial on 10/9/2013. Because PISD concealed the identity of SchoolCenter and its alleged crucial role in PISD's non-compliance with TOMA during discovery process, the Court should have excluded and struck Jameson's testimony relating to any and all evidence relating to SchoolCenter as a sanction on PISD. Boothe v. Hausler, 166 S.W.2d 788, 789 (Tex. 1989). Parties have an affirmative duty to supplement answers to discovery requests if an answer is no longer true and complete. TRCP 193.1, 193.5 PISD intentionally misled plaintiffs by concealing SchoolCenter's identity and role until during the trial committing trial by ambush on plaintiffs. The sanction for failure to comply with this rule is exclusion of the evidence affected by the violation. Tex. R. Civ. P. 215(5).; TRCP 193.6; See Boothe v. Hausler at 789. PISD failed to establish before the trial court that good cause existed for allowing SchoolCenter related evidence. Boothe v. Hausler, at 789. At trial, PISD claimed to have paid license fees and renewal fees to BoardBook for its service to post website notices since 2007. But during discovery process PISD refused and failed to provide full and complete discovery and produce documents concerning payment of license fees and renewal fees to BoardBook. PX 8-11. PISD refused and failed to supplement answers to interrogatories, to requests for admission, and produce documents concerning license fees and renewal fees. Thus as explained above, all evidence concerning existence of BoardBook service should have been excluded and struck from evidence at trial. See Tex. R. Civ. P. 215(5).; TRCP 193.6; See Boothe v. Hausler at 789. The Court erred when it refused and failed to do so in response to motions from plaintiffs. See notice of pending motions which is on file. Because PISD failed to comply with discovery rules and concealed and obstructed justice, plaintiffs were severely compromised in their ability to show that non-compliance with 551.056(b) for 5 months was actually due to the fact PISD did not have BoardBook service during that time period and that PISD obtained it in May 2009 and retroactively posted meeting notices to its websites to conceal its non-compliance with TOMA. Similarly, because PISD concealed the identity of SchoolCenter until the trial and SchoolCenter's alleged failure in transporting "link" to PISD website notices, plaintiffs were severely compromised in this regard. In both instances, the testimony and the issues were dispositive and not cumulative because they related to the controlling and central issue ofPISD's good faith under Sec. 551.056(d) and why the link to website notices was missing for 5 months in 2009. Boothe v. Hausler, at 789. The Court should have excluded evidence concerning SchoolCenter and BoardBook, alternatively should have granted continuance of the trial as requested by plaintiffs to conduct further discovery. TRCP 193.6(c). 7. Plaintiff moves for new trial in this case on all causes of action as there is overwhelming evidence against the Court's judgment or no evidence to support it, alternatively, insufficient evidence to support the Court's judgment in this case. Further, the record discloses the following: (1) there is complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of evidence; or (4) the evidence conclusively established the opposite of a vital fact. See Hawkins v. Ehler, 100 S.W.3d 534, 539 (Tex. App.--Fort Worth 2003, no pet.); Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.--Fort Worth 1998, no pet.). PISD has admitted that website internet notices of its 11 board meetings did not appear on its website from 112009 to 5/19/2009. It is clear from the plain language of TOMA Sec. 551.056(d) that PISD has the burden of proof to prove good faith under Sec. 551.056(d) as to why its non-compliance with Sec. 551.056(b) was in good faith for 5 long months from 112009 to 5/19/2009. Karen Linder and Barry Haenisch in their testimonies engaged in surmise, speculation and had no personal knowledge concerning a ''third party vendor" who they did not want to or could not identify. Their testimony thus was bare opinion, hearsay, incompetent, speculative, and immaterial as to whether PISD exercised good faith concerning its non-compliance with Sec. 551.056(b). Thus the evidence they presented was no more than scintilla, surmise, and speculation which is not legal evidence. "When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence at all," Kindred v. Con/Chem, Inc. 650 S.W.2d 61,63 (Tex. 1983). Karen Linder's testimony was a sham because she admitted that her sworn answers to plaintiffs' interrogatories were nothing but speculation and she did not have knowledge about technical matters in question. 4 PX 8-11. Karen Linder's assertion that she "worked in BoardBook" on her computer was no more than bare opinion as PISD presented no evidence that it actually had BoardBook service during the period in question i.e. 112009 to 5/18/2009 or at any time from 8/13/2008 to 5/19/2009. Thus their testimonies must be 4 PISD falsely represented to the appeals court that printing PDF notices, opening, closing PDF notices by themselves changed the create and modify dates of website notices. Based on this fraudulent misrepresentation, appeals court remanded the case to determine the facts. PISD now states at trial that it was just speculation on their part. This is plain obstruction of justice. disregarded as no material fact question was raised or answered by their testimonies and because the Court was barred by rules of law or evidence from giving weight to the only evidence they offered (hearsay, bare opinion, and speculation) to prove a vital fact of good faith under TOMA. As previously explained above, Suzie Jameson's testimony concerning SchoolCenter must be excluded and struck from evidence as a sanction foy violation of discovery rules. Even otherwise, Jameson's testimony concerning SchoolCenter was no more than bare opinion and hearsay, surmise, speculation, thus does not constitute legal evidence and must be disregarded under rules of evidence. Kindred at 63. PISD presented no competent evidence (e.g. contract, payment of license fee, renewal fee, executed contract, check register, service correspondence, etc.) that it actually had SchoolCenter as vendor providing any kind of service. PISD and Jameson concealed the identity of SchoolCenter and its role in transporting the link in question to a "new website" allegedly managed by SchoolCenter. There is no evidence or insufficient evidence that any third party vendor including SchoolCenter was a vendor for PISD and such vendor including School Center provided any kind of service to PISD including creation of new website or transporting the link in question. PISD chose to obstruct justice instead of complying with the discovery rules, it should not be rewarded for it. Further as explained in paragraph 3 above, the newly discovered evidence clearly shows that PISD generated its own website through 1126/2009 and PISD has already admitted that its January 15, 2009 board meeting's website notice did not appear on its website due to alleged link being removed. Thus it is clear from PISD's own admission and newly discovered evidence that the link problem already existed on PISD's old website which it generated itself by using Adobe GoLive program by its own employee Lee Carter - webmaster and technology director. Appendices 2-5. The problem of admitted non-compliance on January 15, 2009 existed before SchoolCenter allegedly created the new website which was in February 2009. Jameson's testimony blaming SchoolCenter for not transferring the link was false and fraudulent as the link did not exist on PISD's website in January 2009 when PISD and Lee Carter its webmaster managed its own website - hence there was no link to transfer. PISD falsified evidence at trial. Thus an evidentiary hearing is warranted in this matter to receive evidence in this case. A new trial should be granted on all causes of action. There is no evidence, alternatively insufficient evidence that SchoolCenter caused loss of link as alleged by PISD or that SchoolCenter was responsible for not transferring the link in February 2009. This is because the newly discovered evidence shows that the link did not exist on PISD's website in January 2009 when PISD managed the website. It is clear that the link was removed by PISD itself as it was not "necessary" as alleged by Jameson. PX 32; Appendix 1. At best, SchoolCenter's role is no more than speculation, surmise which is not legal evidence in this case. See Kindred at 63. As explained above, evidence at trial concerning SchoolCenter must be excluded. Further, evidence at trial concerning existence of BoardBook service during 1/2009 to 5/19/2009 must also be excluded. This Court should set aside its judgment including award of attorney fees and costs, order new trial and further permit discovery concerning PISD's newly disclosed existence of a third party vendor, SchoolCenter, who allegedly made the error of not transporting the "link" to the legally required internet notices. Plaintiffs are entitled to discovery concerning SchoolCenter because its existence and its role was never disclosed before the trial. 8. Furthermore, there is no evidence or insufficient evidence that PISD's non-compliance with TOMA Sec. 551.056(b) was in good faith. On the contrary, there is overwhelming evidence that its non-compliance was not in good faith. PISD has the burden of proof, but PISD failed to meet its burden under TOMA Sec. 551.056(d). 5 a. There is no evidence or insufficient evidence that PISD made a good faith attempt to post internet notices to comply with Sec. 551.056(b) for 11 meetings from 1115/2009 to 5/19/2009. PISD and its staff never checked its website for each of the 11 meetings to see whether their each alleged attempt, if any, resulted in website notices actually appearing on its website. PISD (Haenisch, Linder and Jameson testimonies) admitted that it did not verify compliance during said time period. See for example, Appendix 1. There is overwhelming evidence in the record that PISD did not exercise due diligence and care for any of the meetings that took place from January 15, 2009 to 5/19/2009 because no one at PISD ever verified whether or not TOMA notices actually appeared on PISD's website. If PISD had done so, it would have immediately known and found out that notices were not appearing on its website and PISD would have presumably fixed its non-compliance with TOMA. PISD never checked its own website for compliance during January 2009 to 5/19/2009 for TOMA compliance with Sec. 551.056(b) until plaintiffs informed them of the no-appearance. This is admitted by PISD. PX 8-11. An average person with normal or average standard of care and due diligence would have checked or verified PISD's website to ensure that the required legal notices actually appeared on the new website when it was created in February 2009. In fact an average person with exercising standard care would have verified appearance of legal notices on its website for every board meeting since January 15, 2009 through 5/19/2009 (the period for which PISD admitted TOMA 5 TOMA §551.056(d) provides that: "The validity of a posted notice of a meeting or an agenda by a governmental body or economic development corporation subject to this section that made a good faith attempt to comply with the requirements of this section that is due to a technical problem beyond the control of the governmental body or economic development corporation." notices did not appear on its website and for which it claims good faith). The trial testimonies of Haenisch, Linder, and Jameson are clear that not one of them or any one else at PISD checked even once that TOMA legal notices actually appeared on PISD's website especially after creating new website. Thus PISD did not exercise due diligence or care for 5 months in question and therefore its good faith defense fails and must be rejected. If this Court does not reverse its judgment, every government body intentionally or not, will "fail" to exercise sufficient care to comply with TOMA for months or years and still claim good faith and will be granted exception under Sec. 551.056(d), making a laughing stock out of Texas Open Meetings Act. b. There is no evidence or insufficient evidence that PISD's website contained the alleged link to website notices BEFORE SchoolCenter allegedly created a new website in February 2009. Appendix 4-5. There is no evidence or insufficient evidence that negligence or incompetence on PISD's part concerning not transferring or transporting a link is a "technical problem." See Sec. 551.056(d). "Oops we forgot" is not a technical problem under TOMA. c. There is no evidence or insufficient evidence that transferring a link to an alleged new website was "beyond the control" of PISD for 5 long months from 112009 to 5/19/2009. See Sec. 551.056(d). Jameson testified that failure to transfer the link in question was an "oversight" and negligence. Appendix I. There is overwhelming evidence that the link problem in question would have been fixed had PISD checked its "new" website just once in 5 months as to whether legally required internet notices were actually appearing on its website. There is overwhelming evidence that PISD showed conscious indifference at best or bad faith and fraudulent misconduct concerning its legal duty to comply with TOMA Sec. 551.056(b). The problem of link was only fixed when plaintiff Thanedar reported nonappearance of notices on 5/15/2009 to PISD in good faith. PX 8-11. Without plaintiffs' report in good faith, PISD could have continued for several more months or even indefinitely without complying with Sec. 551.056. This government body presumes that the Court would take no action on its blatant misconduct and concealment of evidence and Texas citizens will never find out about its bad faith. PISD is mistaken. This Court should not condone such conduct. 9. The Court erred in denying plaintiffs' motions for continuance of trial. Plaintiffs adopt and incorporate by reference their application for continuance of final trial only but not of pending motions (filed on or about 10/4/2013) and plaintiffs' expedited motion to reset trial date of October 9, 2013 (filed on or about 9/20/12013) as if set forth verbatim herein. Thus continuance was proper and this Court should grant this motion for new trial. Further continuance of the trial was proper due to the death of plaintiff Thanedar' s mother (Terrell's mother in law) and Thanedar's travel to India during the month of September 2013 leaving on 9/6/2013 and returning on 9/25/2013 less than two weeks before the trial. Due to death in the family, plaintiffs were thus not prepared physically or emotionally for the trial on 10/9/2013. Further, as explained before, crucial dispositive evidence concerning existence, identity, and role of third party vendor SchoolCenter was introduced during trial in violation of discovery rules. Thus continuance was proper in this case. TRCP 193.6(c). 10. The Court erred when it stated during trial that it will rule on admissibility of PX1 (22 board meeting website notices at issue in this lawsuit and their electronic document properties on Compact Disc) at a later time but failed to do so during the length of 1 day trial on 10/9/2013. Plaintiffs reminded and urged the Court to make a ruling however the Court failed to do so thereby impliedly denying Admission of PX1. Plaintiff however made offer of proof, further stating that the CD in question was relevant in determining compliance with TOMA Sec. 551.056 for the 22 meetings in question and the electronic properties on the CD were authenticated by Judge Waters. PISD did not make a specific valid objection. The CD in question is in the record and the record thereon has been reviewed on appeal by the appeals court. The Court clearly abused its discretion when it refused to rule on admissibility ofPX1 As PX1 is central to violation of TOMA Sec. 551.056 and all other causes of action in plaintiffs' live pleadings. PX2 which is the summary of PX 1 was admitted in the record. There are other errors in admission of plaintiffs' trial exhibits e.g. PX32 which was actually admitted but does not appear as admitted exhibit in record, thus the error should be corrected. The Court further erred in not admitting plaintiffs Exhibit number 23 (concerning violation of Sec. 551.051 ), Exhibit number 25 (salary schedules - back pay and benefits}, Exhibit 26 (disclosures to plaintiffs), Exhibit 27 (violation of Sec. 551.041 - requirement of Place) as these relate to plaintiffs' causes of action the Court refused to try or hear. Given the weight and importance of these matters represented by the not-admitted exhibits above, led to incorrect judgment in this case. Further refusing to admit PX1 and ignoring electronic properties of notices contained therein which is at the center of violation of Sec.551.056 led to rendition of incorrect judgment. Thus, the Court should grant new trial on all causes of action. 11. The Court erred in denying post-remand discovery including motions to compel discovery. Plaintiffs have repeatedly made arguments before the Court that post-remand discovery is consistent with the opinion and mandate of the appeals Court. 6 Plaintiffs refer and 6 This case was remanded by the 7th Court of Appeals for the sole reason to determine whether there is evidence for PISD's "good faith" claim under Texas Open Meetings Act (TOMA) with respect to the untimeliness of its website notices posted on BoardBook and whether the "create dates" of its website notices changed due to "printing." See 7th Court of Appeals Opinion (pages 5-6) and Mandate on file; and Texas Gov't Code §551.056 (b) and (d). On remand, defendant has repeatedly refused to supplement its answers to interrogatories or other discovery requests. See PX 22 (letter requesting supplementation from PISD). Motion for New Trial Cause No. 35621 Page20of24 rely on arguments made in the following motions which are adopted and incorporated by reference as if set forth verbatim herein: Second no-evidence and traditional motion for summary Judgment, Motion to Reset Trial, Application for Continuance, Plaintiffs' Motion for Ruling on Post-Remand Discovery, to Exclude, for Inferences, to Compel discovery from defendant, and For Sanctions Filed on 6/5/12, Motion to Vacate Court Order and for Oral Depositions and Additional Discovery Filed on 11/16/2012. As explained before, without post-remand discovery, plaintiffs' ability to present their claims at trial was severely compromised causing permanent loss of their substantial rights. In addition, Texas citizens and taxpayers are entitled to know whether PISD's good faith defense under TOMA 551.056(d) was a fraud on them and on the appeals court and this Court. Post-remand discovery would have determined that question properly and would have advanced the cause of open government. This Court should not close its eyes to the important purpose of Open Government under TOMA. 12. The Court erred in ruling for defendant PISD on the grounds that a) Non-compliance with TOMA Sec. 551.056(b) was excused because legally required website notices "appeared on Google" or were "available on Google," for public and b) Terrell attended the 3/26/20009 board meeting, spoke at the board meeting and was aware of the proposed termination of her contract. Both grounds Court cited in ruling for PISD are completely irrelevant as a matter of law and must be disregarded and have no legal support whatsoever either statutorily in TOMA or in case law. TOMA mandates that the internet website notices for a government body's board meetings must appear concurrently on the government body's website. See TOMA 551.056(b). There is no legal support for the proposition that the website notices can appear "on Google" and meet the requirements of Sec. 551.056(b) or (d). PISD's website notices appearing "on Google," even if true, is legally irrelevant in meeting the good faith exception under Sec. 551.056(d). Testimony by Jameson in this regard is hearsay and speculation and must be disregarded. Similarly, the case law is clearly established - Texas Open Meetings Act is not a scheme to provide due process to individuals. The Open Meetings Act is not a legislative scheme for service of process; it has no due process implications. Rather, its purpose is to provide "openness at every stage of [a governmental body's] deliberations." Acker v. Texas Water Comm'n, 790 S.W.2d 299, 300 (Tex.l990). City of San Antonio v. Fourth Court ofAppeals, 820 S.W.2d 762 (Tex.l991). Thus it is legally irrelevant whether or not plaintiffs Terrell and Thanedar knew about the 3/26/2009 board meeting and whether they attended the meeting or not. The Court should not make new law in this regard. Concerning findings of fact made by the Court, there is either no evidence or insufficient evidence to support them or they are not legally relevant or material. For example, there is no evidence or insufficient evidence that PISD ever paid license fee or renewal fee for service to BoardBook or SchoolCenter as PISD refused and failed to produce such information in response to discovery requests by plaintiffs. To the contrary, BoardBook draft contract (PX31) clearly states that unless license fee is paid or purchase order provided, the contract would not be effective. See PX31. PISD provided no such evidence at trial. As explained before, PISD's bare opinion at trial in this regard is not legal evidence. See Kindred, /d. At trial, PISD's testimony concerning SchoolCenter was purposefully misleading, evasive, and obstructive hence must be deemed not credible. Concerning conclusions of law made by the Court there is simply no evidence in support or insufficient evidence in support of them. For example, there is no evidence or insufficient evidence that internet notices independently appeared on either BoardBook website or on Motion for New Trial Cause No. 35621 Page22 of24 Google. In addition, such evidence even if established would be legally irrelevant as there is no statutory support nor case authority in support for such proposition. The Court's finding of fact and conclusion of law that an unnamed third party vendor was at "fault" is legally invalid as the Court does not even identify the name of the vendor, certainly because there is no evidence or insufficient evidence as shown above that said link even existed on PISD's OLD website before the alleged unnamed third party vendor generated the new website. Plaintiffs refer to paragraph 3 above and repeat it herein. There is no evidence or insufficient evidence for Court's finding and conclusion that new website was created in January 2009. There is conclusive evidence because of PISD's admission in this case that said link did not exist on PISD's old website in January 2009 when 1115/2009 board meeting notice did not appear on PISD's website in violation of Sec. 551.056(b). There is no evidence or insufficient evidence that a third party vendor was at fault for not transferring said link to the new website and there is conclusive or sufficient or overwhelming evidence that PISD removed the link itself because it believed it was not "necessary." See PX 32. For the above reasons, the trial on 10/9/2013 was tarnished by new allegations of facts introduced for the first time in 4 112 years in violation of discovery rules, gross hearsay in violation of evidence rules presented and admitted as evidence over plaintiffs' objections, defendant's unseemly defamatory tactics against plaintiffs by introducing irrelevant matters into evidence in violation of rules of evidence to create bias in the record and before this judge, all of which resulted in trial by ambush and in miscarriage of justice. The trial was neither fair nor impartial. Thus the judgment should be set aside and new trial ordered on all causes of action in the interest of justice and good cause. Prayer FOR THE FOREGOING REASONS, and in the interest of justice, fairness, and good cause, plaintiffs respectfully request that the Court vacate the judgment and vacate the award of attorney fees and costs entered in this case, set this motion for hearing, conduct an evidentiary hearing on newly discovered evidence, grant this motion, and grant new trial on all causes of action. Plaintiffs further request that Court grant all other and further relief, at law or in equity, to which they may justly be entitled to receive. Respectfully submitted, Chandrashekhar Thanedar, Plaintiffs 6503 Dancing Ct. San Antonio, Texas 78244 (956) 445-3107; (512) 271-6840 Fax [email protected] CERTIFICATE OF SERVICE The undersigned certify that a true and correct copy of the foregoing document was served upon the following by USPS Priority Mail on November 21, 2013 toW. Wade Arnold, Andrea Gulley, Underwood Law Firm, P. 0. Box 9158, Amarillo, Texas 79105-9158. Phone: 806.376.5613, Fax 806.379-0316, Attorneys for PISD. Rebecca Terrell Chandrashekhar Thanedar Motion for New Trial Cause No. 35621 Page24 of24 14 proceedings came on to be heard in the above-entitled 14 15 and numbered cause before the HONORABLE Abe Lopez, Judge 15 16 presiding by assignment, held in Pampa, Texas, Gray 16 17 County, Texas: 17 18 Proceedings reported by computerized stenotype 18 I 19 machine; reporter's record produced by computer-assisted 19 20 transcription. 20 21 21 22 22 23 23 24 KAREN MORRIS, TEXAS CSR #334 Official Court Reporter - 223rd District Court Gray County Courthouse 24 Appendix t 25 Room 302 25 Amarillo, Texas 79066 KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 • 14 DIRECT EXAMINATION 14 I post website notices on Pampa ISD's website? I BY HR. IHANEDAR: 15 A. Yes, sir. Q, Hs. Jameson, good afternoon. 16 Q, How long was it? Meaning, for how long a What is your current position with Pampa 17 I period of time did you do that? I Independent School District? 18 A. The entire time I was director of technology A. My current position, I am the director of 19 I the website was my responsibility. I instructional technology. 20 Q, Did you -- well, my question was: Did you Q. How long have you been in that position? 21 I personally post website notices to the website? A. Since June 1st. 22 A. I posted a lot of things to the website. Q, June the 1st of this year? 23 Q. Not -- I'm sorry. I was talking about notices A. Yes, sir. 24 I of board meetings to Pampa ISD's website? Q, And before that, what was your position? 25 A. Yes, sir, I did. KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 14 Q. In 2008, did you prepare the notices? By 14 Q. You mean, you have not logged -- you have not I notices I really mean the board meeting notices, not the 15 I logged into Boardbook -- logged in information as a PISD other notices. 16 user. Correct? Is that what you're saying? A. No, sir, I did not. 17 A. That's correct. I do not have a 1og in. I Q. Did you, in 2009, prepare any board meeting 18 I have only been on the public portion on that site. I notices? 19 Q. Like -- like -- like people would click on A. No, sir, I did not. 20 meeting notices Q. Did Ms. Linder ever come to you and say post 21 A. Yes. I this website notice on the website? 22 Q. -- and see -- A. No, sir. 23 A. Yes. Q. What kind of technology education do you have? 24 Q. -- meeting notices on Boardbook website. A. I have a degree in management information 25 Correct? KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 a. And you have testified that you haven't 14 link? personally been involved in that process? 15 A. Yes. A. That's correct. 16 a. And what did you do as a person who maintains a. Do you know -- you have any information 17 that link? concerning a link between Pampa ISD's website and the 18 A. Currently? Boardbook website? 19 a. Oh, no. I'm talking about in the time period A. Yes, sir. 20 of 2008, 2009, if you recall. a. Did you say you worked for Boar'dbook before? 21 A. In 2008, when I took over as technology A. No , s i r . 22 director? a. Okay. Can you describe to me what that 1 ink 23 a. In June? About that time. looked like? Was it a program? What was it exactly? 241 A. April -- A. That link is a hyperlink on the Pampa !SO's 25 a. April? KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 Q. What -- what was the time period that they were 14 A. They have a team of programmers, and I don't hired? 15 recall the names of those. A. (No verbal response.) 16 Q, Do you recall the name of any person that you Q. What was the time period they were hired in? 17 talked to, like -- like a technologist or technologist A. I believe, if I recall correctly, they were 18 basis? Any person? hired around July 1st of 2008. And we went through a 19 A. No, I don't. series of meetings and planning with a -- what we called 20 Q. Now, that team consisted of how many people? a go-by date of January of 2009 for the new website. 21 A. I don't know. I've never had a face-to-face Q. Do you recall the name of the -- name or names 22 meeting with them. of people that you dealt with at SchoolCenter? 23 Q, Oh. You tal ked to them over the phone? A. The sales person that I dealt with at that 24 A. Yes, sir. time, her name was Angela and I don't recall her last 25 Q. How many --was it like a conference call with KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 A. They specialize in websites for school 14 A. Yes. districts all over the country, so we provided them with 15 Q. What time -- do you recall any date in the content from our previous website, the articles that 16 I particular? we had already posted, the -- all of the data, and they 17 A. I don't recall the date. went through that information and created the new site. 18 Q. And this was a brand new website. Right? Q. They never came to Pampa ISO to have meetings 19 A. Yes, sir. I with you? 20 Q. Was -- was the website -- was cleared -- was A. No, they did not. 21 I there an automated process of validating data 22 Q. So you submitted them information over -- over 22 conversion? 231 a-mails? 23 A. I'm sorry. What? 24 A. Yes, sir. 24 Q. Was there a process of convert- -- of 25 Q. Okay. How many links does Pampa ISO have with 25 I validating data conversion from the old website to the KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 • conversion. Taking the text from one website, and most 14 a link on.the old website that -- that provided board of the time using something as -- similar to a copy and 15 meeting notices for public viewing? paste, where you copy it and then paste it into the body 16 A. No, I was not. of another web page, so there would not be any type of 17 Q. You were not aware that the old website had a data validation where reports could be generated in that 18 link to board meeting notices? matter. 19 A. No. Q. Just copied text from the old website to the 20 Q. Did Karen Linder tell you there was a link? new website is what you're saying? 21 Did she ever say that there was a link on the old A. Basically, yes. 22 website that took a public person -- a public citizen to Q. Now, did you personally do any -- any work 23 Boardbook website for viewing of the meeting notices? yourself to check the new website whether it was working 24 A. When it was brought to her attention that the well or not working well, as the technology director? 25 link was was no longer on the -- or was not on the new KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 • A. No, s 1r. 14 were the SchoolCenter. Correct? Q, Now, when did Karen Linder contact you that 15 A. Yes, sir. there was a problem with web notices not showing up? 16 Q, It was not you? A. I am not positive of the date. I know that 17 A. Right. I believe you brought it to Karen's attention that the 18 Q, You did not have any personal knowledge about notices were not posted on the website, and she 19 how to fix the school link, do you? called -- she contacted me to let me know that there was 20 I'm sorry. You did not have personal an issue there. 21 knowledge of how to fix the link onto the new website, Q, What did she say? 22 do you -- did you? A. I don't recall. 23 A. I know how to fix the link. I do now. Q, Did you have a telephone conversation with her 24 Q. Right. Yeah. I understand. I'm not talking concerning the technology problem, or how did you deal 25 about now, I'm just saying at that time you did not KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 " MR. THANEDAR: Yes. I'm sorry. 14 say that here, do you, in this e-mail? MR. ARNOLD: Okay. 15 A. Well , when -- when I say I have fixed i t -- Q, (BY MR. THANEDAR) Are you familiar with this 16 Q, It wasn't you that fixed it, did you (sic)? e-mail that you sent Karen Linder? 17 A. I don't -- no. No, it was not, but I made sure A. Now that you hand it to me, yes. 181 i t got fixed. So took responsibility for making sure Q. Now -- and this is an e-mail that you sent as 19 that it was done. I an e -mai 1 response to Ms. Linder; isn't that correct? 20 Q. But the words here you used were, I fixed -- A. It appears so. It looks like she -- she 21 I'm sorry. The words you used were, I have added it on I e-mailed me and I responded. 22 the school board page. You did not say, I got somebody Q. Okay. Now, can you read, Ms. Jameson, the 23 else to do it. You said I have added it on the school I small paragraph that starts with the star -- 24 board page. You didn't really add it yourself, did you? A. Uh-huh. 25 A. No, sir. KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 • .. Q. Yeah. Can you give me some examples that did 14 Q. But what you're describing is something you I not get transferred to the new website? 151 didn't do yourself, did you? A. I don't recall exactly what they are. 16 A. That's correct. I did not. Q, But there were lots -- lots of such links, 17 Q, You really have no personal knowledge or based on your e-mail. Correct? 18 I experience in doing that, do you? A. That's what the e-mail says, yes, sir. 19 A. I have experience doing that Q, What was the explanation that SchoolCenter 20 Q. But not -- gives you why the link was not transferred? 21 A. -- I did not do it for this site. A. I don't recall. 22 Q. -- not the matter that we're talking about Q. And you don't recall the team or the name of 23 here? the person that you talked to there? 24 A. That's correct. A. No, sir. 25 Q, In your e-mail you say, Ms. Jameson, that I did KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 • were not needed. That was her testimony. 14 basis for these links not being needed -- Q. (BY MR. THANEDAR) Well , I'm not sure • • well, 15 A. I didn't -- you can -- you can testify exactly what you mean by, I 16 Q. -- on the new one? did not realize needed to go on the new one. And how 17 A. I didn't mean that those links were not needed, did you come to that understanding? 18 I meant they were left off and I did not realize that A. I'm sorry. I don't understand your question. 19 they were left off and they are necessary. Q, My question is: On what basis did you think 20 Q. Well, Ms. Jameson, that's not what you said that the link to the school district's meeting notices 21 here, if I could just read to you. was not needed? 22 MR. ARNOLD: Your Honor, I'm going to A. I didn't think that the link to the meeting 23 object as argumentative, and asked and answered. The notices was not needed. I did not realize that 1t was 24 witness has answered this three or four times now. not there and was needed on the new site. 25 MR. THANEDAR: Well -- KAREN MORRIS, CSR • 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 • 14 A. No, sir. Not that I recall. 14 Thanadar, talked to Hs. Linder about the problem. 15 Q. Do you know how long a period -- a period of 15 Correct? 16 time that the website notices did not appear? 16 A. That's correct. 17 A. I don't know how long. know that it was 17 Q, You had no communication with her that you 18 I rectified by Hay 19th, 2009, based on this e-mail. 18 I recall from January, 2009 to let's say the middle of 19 Q, Did Hs. Linder -- did you tell Hs. Linder how 19 Hay 19th, 2009. Correct? 20 I you got it fixed? 20 A. Regarding this issue, no. 21 In other words, did you tell her -- did Ms. 21 Q. Correct. I'm merely talking about just this 22 I Linder know about the third party vender, SchoolCenter? 221 issue. 23 A. I don't know if Hs. Linder knew about the third 23 Who else at Pampa lSD knew about I 24 party vender, SchoolCenter, or not. That was a contract 24 I SchoolCenter -- what SchoolCenter was doing? 25 that the district entered into, and the superintendent 25 A. The business office. The business manager, KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 • • A. He is chief financial officer for Pampa 14 problem occurred again at Pampa ISD? Independent School District. 15 A. What problem waul d that be? a. How long has he been in that position, do you 16 Q. The link being severed. know? 17 A. No, sir. A. I'm not sure exactly. 18 Q. Would you call this problem, a link being a. But he was involved in choosing SchoolCenter 19 severed or not -- what -- what kind of description would as -- in what capacity? 20 you give this problem? HR. ARNOLD: Objection; relevance, Your 21 A. It was a missing link. Honor. 22 Q. A missing link. And this is a problem with the THE COURT: Sustained. 23 vendor not transferring that link. Correct? a. (BY HR. THANEDAR) In what capacity was Carol 24 A. That's correct. I Fields involved in choosing SchoolCenter, or 25 Q. Was it your understanding that this was a -- KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 • • Q. Well, no. I mean, in terms of just copying the 14 A. I would like to point out that the board old link onto the new website, from a scale from one to 15 meeting notices are posted. They are published on the ten, how would you rate it? If you're a technology 16 Boardbook website. And if a person goes to any search expert or a knowledgeable person, how would you rate the 17 engine, such as Yahoo or Google, and looks for those difficulty level? 18 they could have found them. We did not have anyone A. It's not difficult. 19 point out to us that the link was missing, even though Q. It's -- it's just simple negligence, you would 20 it was not brought to our attention until Hay 19th. say? 21 Q. Except myself. Correct? A. It was an oversight. 22 A. Right. Q. Would negligence be a good word for it? 23 Q. Hr. Thanadar. HR. ARNOLD: Asked and answered, Your 24 How do you know before January of 2009, or 251 Honor. Objection. 25 I do you, that Pampa Independent School District's website KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 • telling you how I knew -- 14 whether you went back and saw the problem, why it was Q. Okay. 15 closed •• at that time, before January, 2009, you had A. -- they were there. 16 never really personally clicked on the meeting Q. Fine. 17 information tab. Correct? THE COURT: Go ahead and answer the 18 A. No. But the fact that the link worked-- question. 19 Q. Well A. When -- when it was brought to my attention in 20 A. •• says that it was always active. Hay, I had access to the old data from the old website, 21 Q. -- all I was saying was ·• I was just asking and I went into that old website and found the link on 22 your personal knowledge of -- of that situation. the old website, and was able to give that data, URL, 23 Did SchoolCenter ever explain to you why the uniform resource locator, the link to SchoolCenter, 24 this problem occurred, state any reason for it? so that they could put that link on the new site. 25 A. No, sir. KAREN MORRIS, CSR • 806-282-9932 KAREN MORRIS, CSR · 806-282-9932 " • 14 14 exhibits, if any, offered by the respective parties. 15 15 I further certify that the total cost for the 16 161 preparation of this Reporter's Record is $-----and 17 17 was paid/will be paid by the PLAINTIFFS. 18 18 WITNESS MY HAND AND SEAL of office, this the 19 I 19 14th day of November, 2013. 20 20 II: Karen J1orrts 21 21 KAREN MORRIS, Texas CSR 334 Expiration Date: 12/31/14 22 22 Official Court Reporter 223rd District Court 23 23 Gray County, Texas P.O. Box 2160 24 24 Pampa, Texas 79066 25 25 KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 • • Pampa 1so is committed to hm!<l a sohd foundation !or each Ieamer lllrough a llighli· rigorous curriculum which Pfotnoles .. ~ Bond Construction lnfom1alloll With the passing our the bond issue. we hope to provide you Wtlh information of our Pfogress m both reno~atron of PHS iln<l constlucbcn of PJHS !!1Q[b. Pampa ISO Dress Code ~~ Approved Budget For 2008·09 x: 373 ~20011 P..,;pa IIIUpt11denl School Dit!rict m W. Allltlt Pampa. TX not$ Pl!~t: (80i! 161-4700 F.''.'. (8Q6) '!USoa rooolitseartiq Go">gle' ·•· Search The Pampa ISO Web Site W@Multt 0064\034 t • " v;,•, < ~ibl'.?' ~~; ~~ qq'·'~.1 '1>rucl\~ 2 • • 374 1 <!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional/lEN" "http://www.w3.org/TR/xhtmll/DTD/xhtmll-transitional.dtd"> 2 3 <html xmlns="http://www.w3.org/1999/xhtml"> 4 5 <head> 6 7 a <!-- Start Wayback Rewrite JS Include --> t•<script type="text/javascript" src="/static/is/jwplayer/iWRlayer.js" ></script> 10 .·<script type="text/ja.vascript" src="/static/js/vicieo-ebert-rewriter. js 11 ></script> 11 <script type="text/javascript"> 12 function initYTVideo (id) 13 { 14 _wmVideos_.init(•/web/•, id}; 16 . } 18 </script> 17 <!-- End Wayback Rewrite JS Include --> 18 19 <meta http-equiv="content-type" content="text/html;charset=utf-8" ·f> 20 <meta name="generator" content="Adobe GoLive" /> 21 <title>Welcoae To Pampa ISD</title> ~· <link href="/web/20090126011100cAm/http://xww.pampaisd.net/css/agl-styles.css" rel="stylesheet" type="text/css" media="all" /> ~ <link href="lweb/20090126011100cs_/http://www.pamPftisd.net/Styles/QesignBoxes.css" rel="stylesheet" type="text/css" media="all" /> ~ <style type="text/css" media="screen"><!-- m_tmenulayer (text-align: left; height: lOOpx; width: 745px; visibility: vis1ble; margin-right: auto; margin-left: auto; padding-left: 2px; } ~ .td { color: t060; font-~ize: 12px; } ~-bl { color: fcOO; font-size: 26px; font-weight: bold; margin: 0.67ea 0; } 28 fmenuwrapper { heiqht: lOOpx; width: lOOt; left: 2px; top: 0; z-index: 1000; position: absolute; visibility: visible; } a .dsl /*aql rulekind: base;*/ { font-size: 16px; l ~ .ds8 /*aql rulekind: base;*/ { font-family: Arial; J ~ .dslO /*aql rulekind: base;*/ { font-size: 18px; } ~ .dsl3 /*aql rulekind: base;*/ { font-size: lCpx; font-family: Arial; } 33 --></style> 34 <csactionitem name="c09c84ed0"></csactionitem> 36 <csactionitem name="c09cb7eal"></csactionitem> 36 <link h~ef="/web/20090126011lOOim_lhttp://www·PamR•isd.net/ImagesRew/fayigon.ico" rel="shortcut icon" csoptsettings="AQAAABh42mNgYNC4WbfGPDM5P4eBqYHjPxAAaRsAX8IISg--" livesrc="PhotoShop/District/favicon.psd" /> v <meta name="keywords" content="Pampa, schools, Pampa High School, .Texas, Fampa ISD, football, basketball, PHS, PHS Alumni"/> 36 <csactions> • <csaction name="c09c84ed0" class="Fix Layer Position" .type="onload" valO="menuwrapper" vall="true" val2="&quot;s&quot;"></csaction> • <csaction name="c09cb7eal" class="ShowHide" type="onload" valO="menuwrapper" vall="l"></csaction> ~ </csactions> G <csscriptdict import="import"> Pampa.lSD Pampa ISO Event Cillendar Di$bict Contact District Mission and VIsion Directory M'-slon Statement 376 Ca!'f~Pl!S coritact InfprrnatiOn Pampa Independent School Dlatrlct Ia commlted to educadng each atudent for the changing T schools needs of the 21•t century. Y Parent Connection T District VIsion Statement InfotinatiOri Pampa ISO Ia committed to build a solid foundation for each Ieamer through a highly rigorous T Pamp!l ·ISO s.taff curriculum which promotes: What's New. Department • Acadetnlc Excellence Information • Self Confidence T Department • Self Respect I Respect for Others Directory • Individual, creadve thinking and problem tolvlng • Tolerance • Integrity • Cllaracter • Collaboradve Skills • Life-long Leeming • Self.diaclpllne The staff Ia committed to the succeaa of each of the diverse learners In the Pampa Independent School District. Steff will plan and deliver highly engaging academic lesaonelacdvltles and Afp~~x tt . • 377 1 <!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional/lEN" "http://www.w3.org/TR/xhtmll/DTD/xhtmll-transitional.dtd"> 2 <html xmlns="http://www.w3.orq/1999/xhtml" xml:lang-"en" lang=•en" dir=•ltr"> 3' <head> 4 5 e <!-- Start Wayback Rewrite JS Include --> <script type=="text/javascript" src""" /static/js/jvplayer/jwolayer.js" X/ script> 1 ,• 8 <script type="text/javascript" src=•/static/js/yidep=epbed-rewriter,1a•></script> t <script type="text/javascript"> 1o,function initYTVideo(id) 11 { 12 _wmVideos_.init("/web/", id); 13 } 14 · <I script> ~ <!-- End Wayback Rewrite JS Include --> 18 17 <link rel•"icon" href="/weh/20090205061020/http;//wwy.p&mpaisd.netL£aviQQn.ico" type="image/ico" .I> 18 <link rel="shortcut icon" href="Lweh/20090205061020pn /http;/fwwy.pampaisd.net(fayicpn,i9Q" type="imaqe/ico" /> 19 <meta http-equiv="PICS-Label" content='(PICS-1.1 8 http://www.classify.org/safesurf/" labels generic true ratings css--ooo 1))' /> z <meta http-equiv="Cache-control" content•"no-cache, no-store" /> 21 <meta http-equiv="Pragma• content="no-cachen /> a <meta http-equiv="Expires" content-"-1 8 /> ~. <meta http-equiv="Content-Type" content=utext/html; charset=utf- 8" /> M <meta http-equiv="imaqetoolbar" content•"no" /> z <meta http-equiv="Last-Modified" content="Tue, 03 Feb 2009 09:34:39 Central" /> • <meta name-"Keywords• content=•Pampa" /> :n <meta name="Description" content="Pampa ISD Home Page" /> a <meta name="Generator" content="Schoolcenter Version 8 www.schoolcenter.com" /> a <meta name="Copyright" content="2009 - Pampa Independent School District" /> 30 <style type=ntext/ess"> 31 ·. body { padding: 01 border: 0; margin: 0; color:tOOOOOO; font: lOpt verdana, arial, helvetica, Verdana, Arial, Helvetica, sans-serif; background: ti"Fi'TFF url(/web/20090205061020cs_/http://www.pampaisd.net/iaages/backgrounda/1/backgroun d 280818033 .jpq) left top;} 32 thead.er hl - { display:inline; paddinCJ-left:.fpx; padding-right:4pz; padding-top:O; padding-bottom:O; tezt-aliqn:left; color:t003399; font-size:16pt; font-veight:bold;} ~ a { color:tOOOOFF; text-decoration:underline;} M a:visited { color:t660099; text-decoration:underline;} 35 a:hover { eolor:tOOOOFF; tezt-decoration:underline;} 36 a:active { color:tcc0033; text-decoration:lUid.erline;} :rr · • textbo:x { font-family:verdana, arial, helvetica, Verdana, Arial, Helvetica, sans-serif; font-size: amall; background:IITI'FFF; border:lpx solid tccc; color:tOOOOOO;} 38 .• admiDLink { color:tOOOOOO; font-faaily:verdana, arial, helvetica, Verdana, Arial, Relvetica,sana-serif; font-size:12px; text- . Aff€-r\.dlx 5 AFFIDAVIT STATE OF TEXAS § § § BEFORE ME, the undersigned notary, on November 20, 2013 personally appeared Rebecca Terrell and Chandrashekhar Thanedar, and after being duly sworn by me, stated under oath the following: "Our names are Rebecca Terrell and Chandrashekhar Thanedar. We are over twenty-one (21) years of age, of sound mind, and are capable of making this affidavit. We are plaintiffs in the cause No. 35621 in the 223rd district court in Gray County, Texas against defendant Pampa Independent School District. The facts stated in this affidavit are within our personal knowledge and are true and correct. The facts stated in our Motion for New Trial and Motion to Modify Judgment in the above cause are within our personal knowledge and are true and correct. We affirm that the appendices attached to the Motion for New Trial and Motion to Modify Judgment are true and correct copies of the originals." ~~ Rebecca Terrell Chandrashekhar Thanedar SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the 20th day of November, 2013. ~>-o"~.MARIA-PURA , .t> PC?LANCO Notary Pubhc ~· ~ State of Texas ~ My Comm. Exp. 09-28-2017 the State of Texas Maricz{ul-a. ,[o/anw · (Printed Name of Notary) The Court clearly erred in granting $30,000 in attorney fees to PISD by taking "judicial notice of the file" as asked by PISD. Texas law regarding attorney fees is clear and well established. Texas law has not allowed recovery of attorney fees unless allowed by statute or contract. "Absent a contract or statute, trial courts do not have inherent authority to require a losing party to pay the prevailing party's fees." Tony Gullo Motors v. Chapa, 212 S.W.3d 299, 310-311 (Tex. 2006). Nothing in TOMA or its pertinent case authority authorizes or empowers the Court to take judicial notice of attorney fees and to award them without receiving evidence. See TOMA Sec. 551.142. 1 Plaintiffs challenge the imposition of attorney fees as legally improper and further challenge the reasonableness of attorney fees awarded to PISD. The reasonableness of attorneys' fees is question of fact that must be proven at the trial. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000). Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). Thus PISD was required to testify concerning its attorney fees and reasonableness of the fees. PISD refused and failed to testify on its attorney fees and refused and failed to prove them. Therefore PISD forfeited and waived any claim to attorney fees. Because PISD refused and failed to prove and testify on its attorney fees, there is no evidence or insufficient evidence in the record for the Court to award attorney fees to PISD. Court's award of $30,000 has no basis in law or evidence because there is no evidence or insufficient evidence of tasks completed, hours worked, timesheets, billing statements, level of 1 TOMA Section 551.142 provides as follows: (a) An interested person, including a member of the news media, may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of this chapter by members of a governmental body. (b) The court may assess costs of litigation and reasonable attorney fees incurred by a plaintiff or defendant who substantially prevails in an action under Subsection (a). In exercising its discretion, the court shall consider whether the action was brought in good faith and whether the conduct of the governmental body had a reasonable basis in law. difficulty, identity of attorneys, reasonable hourly rates of attorneys on the case and other necessary information on which attorney fees must be based on and can be determined. The Court granted the award of attorney fees under TOMA Sec. 551.152. Thus it is clearly ascertainable that the award of attorney fees in this case does not arise under Texas Civil Practice and Remedies Code (CPRC) Section 38.001, thus this Court does not have power to take judicial notice of attorney fees under Tex. Civ. Prac. & Rem. Code§ 38.004. See Valdez v. Valdez, 930 S.W.2d 725, 732-33 (Tex. App.--Houston [1st Dist.] 1996, no writ) (holding section 38.004 only applies to claims under section 38.001). Therefore, attorney fees award here is legally improper. Further the attorney fees award is improper here because plaintiffs have undisputedly proven their good faith at the trial as their report of the violation of Sec. 551.056(b) was the only reason said violation was finally corrected by PISD after 5 months of non- compliance with TOMA from 112009 to 5/19/2009. PX 8-11. Further this court sitting by assignment has no personal knowledge of all of the proceedings in this case, being the third judge in this case after Judge Waters and Judge Vanderpool. Further plaintiffs do not have the ability to pay attorney fees, thus award is not reasonable. PISD did not plead in its original or the amended answer the required prerequisites to attorney fees as required by TOMA Sec. 551.142. PISD's first amended answer is defective as it does not contain a proper certificate of service under TRCP and PISD failed to answer plaintiffs' second supplemental petition. This Court has no authority or power under TOMA and no inherent authority or power to impose attorney fees for any proceedings or filing in the appellate courts, with or without evidence being received. Defendant has provided no statutory support or case authority for it. Further there is no evidence or insufficient evidence of filings by plaintiffs in the appellate court on which to base attorney fees award on by this Court. Defendant made no argument at trial concerning its attorney fees to be based on appellate filings by plaintiffs. There is no evidence or insufficient evidence that PISD made any responses to plaintiffs' appellate filings and that they were accepted by appeals court. In fact, defendant's responses have been rejected by appeals court. In addition, plaintiffs prevailed on appeal in this case and the case was remanded back to trial court. Court's finding that plaintiffs made voluminous filings is legally immaterial, arbitrary, and capricious because plaintiffs prevailed on appeal and defendant's responses were found defective by appeals court. Thus there is no basis in law or fact for an award of attorney fees to PISD because plaintiffs' made filings in appeals court. Further the court failed to segregate appeals court's portion of the attorney fees from trial court portion of the award of attorney fees and attorney fees before remand and after remand. Since, plaintiffs prevailed on appeal and were awarded costs by appeals court, no attorney fees and costs for proceedings before remand can be or should be awarded to PISD. The attempt by PISD for attorney fees is a bald attempt to intimidate plaintiffs in not filing an appeal of this Court's judgment. Such an attempt is an outrageous affront to the purpose of open government under TOMA and will have chilling effect on citizens and taxpayers who report violations of TOMA and seek redress. Further, issues and violations of TOMA before this Court in this case are novel and there have not been cases involving electronic properties of board meeting notices involving Sec. 551.056(b) and (d), technical problems, and burden of proof. This is clearly a case of first impression in these evolving legal areas. Attorney fee award thus is unjustified here and if not reversed will have chilling effect on citizens and will lead to confusion and lack of development of the areas mentioned above. Further, government bodies will emulate the tactics of PISD to intimidate citizens in to submission which will lead to evisceration of TOMA. PISD refused to testify and prove its attorney fees before this Court (or appeals court), this Court failed to receive evidence concerning attorney fees, thus PISD waived and forfeited attorney fees. Further, it is clearly ascertainable that PISD did not respond to plaintiffs' motions or letters in this Court whether or not they were "voluminous," thus there is no evidence that PISD ever incurred attorney fees or insufficient evidence that PISD ever incurred attorney fees and to what extent with respect to PISD's complaints about plaintiffs filings. Further, plaintiffs cannot be penalized or sanctioned for filing lawsuits or for their filings whether or not they were voluminous as they a have constitutional right to seek redress of their grievances. The plain fact is there is no evidence or insufficient evidence of PISD spending any time on plaintiffs' "filings" in this Court or in appeals court. An attorney fees award based on no evidence of existence and reasonableness of attorney fees viz. identity of attorneys, hours worked, tasks performed, quality and difficulty of work, hourly rate and other factors; or insufficient evidence of existence viz. identity of attorneys, hours worked, tasks performed, quality and difficulty of work, hourly rate and other factors violates plaintiffs' constitutional rights of due process and equal protection under Texas Constitution and 14th Amendment to the Unites States Constitution as such arbitrary and capricious and manifestly too large and unreasonable imposition of attorney fees has no support in law or case authority. Therefore imposition of attorney fees without legal support under TOMA and without receiving evidence is not only a clear abuse of discretion but is abusive to Texas citizens and taxpayers such as plaintiffs. PISD did not offer argument at trial or in its pleadings about whether plaintiffs brought this suit in good faith or being a prevailing party, or whether its actions had a reasonable basis in law on all causes of action brought by plaintiffs. See Sec. 551.142. PISD failed to plead prerequisites to attorney fees in its amended answer. Sec. 551.142. PISD's first amended answer is defective as it does not have proper certificate of service under TRCP. Plaintiffs adopt and incorporate by reference their response to defendant's first amended answer and plaintiffs' special exceptions and affirmative defense to defendant's request for attorney fees and costs (which are on file) as if set forth verbatim herein. As explained before, there is clear undisputed evidence of good faith on the part of plaintiffs in this case, thus imposition of costs is improper and unreasonable. See TOMA Sec. 551.142. PX 8-11. C. Plaintiffs challenge imposition of costs on them. Plaintiffs have clearly demonstrated good faith as shown above under TOMA. Thus under TOMA sec. 51.142, costs should not be imposed on plaintiffs. Further even if costs were imposed, costs before remand should be segregated from costs after remand and such costs before remand should be excluded from costs to be awarded to PISD. This is proper because plaintiffs prevailed on appeal before the th court of appeal and the appeals court granted costs to plaintiffs. Any costs associated with PISD's misguided summary judgment motion which was erroneously granted by the district court (Judge Waters) should be excluded from costs. PISD offered no evidence of lack of good faith on the part of plaintiffs and did not even offer an argument on it. Thus there is no evidence or insufficient evidence of lack of good faith or bad faith in the record on the part of plaintiffs. This Court which is sitting by assignment did not hold any proceeding before October 2012 when two other Judges (Judge Vanderpool and Judge Waters) presided over the case. The Court thus cannot take judicial notice of matters it is not knowledgeable about and which did not occur before it. Further, plaintiffs challenge the reasonableness of the attorney fees because the current judge (Judge Lopez) only held one proceeding on 10/9/2013 for one day trial. PISD filed no response to several motions filed by plaintiffs. Thus PISD cannot recover attorney fees for time it did not expend for one year in responding to plaintiffs' motions. Under Judge Vanderpool only two brief hearings took place and PISD failed to file any responses to plaintiffs' motions. Under Judge Waters only 1 brief hearing occurred. It is thus obvious, that in more than 4 years of this lawsuit, only minimal activity has occurred. Attorney fees in the amount of $30,000 are thus manifestly too large and unreasonable considering the lack of PISD's responses and only 3 hearings and a 1 day trial. Further, it is clearly ascertainable from the few responses PISD filed that they were unserious, lacked references to record, and failed to cite pertinent applicable case authorities. Some of the responses were found defective by the th Court of appeals e.g. lacked proper certificates of service and certificates of compliance and PISD was forced tore-file. The quality of the PISD's filings has been questionable. Thus the $30,000 attorney fees are unreasonable. This Court cannot grant attorney fees for proceedings conducted in appellate court in which plaintiffs were granted costs of appeal on remand. Further plaintiffs prevailed on appeal before the th court of appeals, thus attorney fees and costs before remand of the case must be segregated and excluded from any calculations of attorney fees that could possibly be awarded to PISD. Given the lack of evidence, it is not surprising that PISD counsel refused to testify concerning attorney fees at trial. As such, there is no evidence, alternatively insufficient evidence for this Court to base its award of attorney fees. Thus the award of attorney fees and costs is legally improper, manifestly too large, unreasonable, and completely unsupported by evidence and should be vacated and denied. The judgment of the Court should be modified accordingly. 3. As explained previously, the Court erred in denying plaintiffs' motions to exclude evidence concerning SchoolCenter, BoardBook, and Lee Carter. The record clearly shows that PISD repeatedly refused, misled, obstructed discovery and further refused to supplement its answers to interrogatories and other discovery requests concerning BoardBook service. See PX 8-11. PISD even obstructed and misled the Attorney General of Texas when it knew that PISD allegedly had made payments to BoardBook and SchoolCenter and others for services. These and other records concerning SchoolCenter and BoardBook and other employees ot vendors such as Lee Carter should have been produced in the discovery process. PISD refused to do so apparently fearing no sanctions for its obstruction. PISD even declared that BoardBook service and PISD's contract with it were irrelevant and outside of the purview of Texas Rules of Civil Procedure. Plaintiffs adopt and incorporate by reference Plaintiffs' Motion for Sanctions which was filed on 9/9/2009 and their Motion for Order to Produce Documents without Objection filed on 6/9/2009, Plaintiffs' Motion for Ruling Post-Remand Discovery, to Exclude, for Inferences, to Compel discovery from defendant, and For Sanctions Filed on 6/5/12, as if set forth verbatim herein. The Court's refusal to exclude set up plaintiffs for trial by ambush and surprise which violates their due process, open courts, and equal protection rights under Texas Constitution and the 14th Amendment to the United States Constitution. 4. PISD's trial evidence in its support was no more than speculation, hearsay, surmise and bare opinions offering no substantiation or documents in support, which is no legal evidence at all. Kindred v. Con/Chem., Inc., 650 S.W. 2d 61, 63 (Tex. 1983). PISD's evidence in its support must be struck and disregarded. 5. As explained before, PISD did not carry its Burden of Proof in the matter of showing good faith under TOMA Sec. 551.056(d). PISD admitted that its website notices did not appear on its website for 11 meetings from 1/15/2009 to 5119/2009 for 5 long months. PISD fails the average person's due diligence standard here. After "forgetting" to check whether internet notice for its 1115/2009 meeting actually appeared on its website, PISD continued to Motion to ModifY Judgment Cause No. 35621 Page 8 of 10 "forget" to check its website for 5 months to see whether it was complying with TOMA. "Opps we forgot" and "Oops we don't care to check" fail average person's good faith standard and certainly fail under TOMA Sec. 551.056(d) good faith standard. Negligence, forgetting is not a technical problem as PISD suggests and is certainly not beyond the control of PISD for 5 months. The judgment of the Court should be modified as requested below. Prayer FOR THE FOREGOING REASONS, plaintiffs respectfully request that the Court set this motion for hearing, and upon hearing, grant plaintiffs' motion to modify judgment, modify judgment in accordance with this motion, and Vacate the award of attorney fees in the amount of $30,000 to defendant PISD, vacate the award of costs to PISD, deny defendant's request for attorney fees and costs, and delay the award of attorney fees and costs until appellate process is completed. Further plaintiffs request judgment be modified so that the judgment for defendant is set aside and judgment for plaintiffs is entered on all causes of action, void all actions taken in violation of TOMA, order reinstatement of Terrell as a teacher with defendant and award damages of back wages and benefits to her, declare plaintiffs the prevailing party in this suit, and grant all other relief requested by plaintiffs in their original petition and two supplemental petitions. Plaintiffs further request that Court grant all other and further relief, at law or in equity, to which they may justly be entitled to receive. Respectfully submitted, Rebecca Terrell Motion to Modify Judgment Cause No. 35621 Page 9 of 10 I Chandrashekhar Thanedar Plaintiffs 6503 Dancing Ct. San Antonio, Texas 78244 (956) 445-3107 (512) 271-6840 Fax [email protected] CERTIFICATE OF SERVICE The undersigned certify that a true and correct copy of the foregoing document was served upon the following by USPS Priority Mail on November 22, 2013 to W. Wade Arnold, Andrea Gulley Underwood Law Firm P. 0. Box 9158 Amarillo, Texas 79105-9158 Phone: 806.376.5613 Fax 806.379-0316 [email protected] Attorneys for PISD Rebecca Terrell Chandrashekhar Thanedar AFFIDAVIT STATE OF TEXAS § § § BEFORE ME, the undersigned notary, on November 20, 2013 personally appeared Rebecca Terrell and Chandrashekhar Thanedar, and after being duly sworn by me, stated under oath the following: "Our names are Rebecca Terrell and Chandrashekhar Thanedar. We are over twenty-one (21) years of age, of sound mind, and are capable of making this affidavit. We are plaintiffs in the cause No. 35621 in the 223rd district court in Gray County, Texas against defendant Pampa Independent School District. The facts stated in this affidavit are within our personal knowledge and are true and correct. The facts stated in our Motion for New Trial and Motion to Modify Judgment in the above cause are within our personal knowledge and are true and correct. We affirm that the appendices attached to the Motion for New Trial and Motion to Modify Judgment are true and correct copies of the originals." ~~ Rebecca Terrell e-tSt'~~-EJ ~ Chandrashekhar Thanedar SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the 201h day of November, 2013. (Printed Name of Notary) Motion for Reconsideration Cause No. 35621 Page 2 of7 Motion for Reconsideration Cause No. 35621 Page 3 of7 Motion for Reconsideration Cause No. 35621 Page 4 of7 Motion for Reconsideration Cause No. 35621 Page 5 of7 Motion for Reconsideration Cause No. 35621 Page 6 of7 Chandrashekhar Thanedar Plaintiffs 6503 Dancing Ct. San Antonio, Texas 78244 (956) 445-3107, (512) 271-6840 Fax [email protected] CERTIFICATE OF SERVICE The undersigned certify that a true and correct copy of the foregoing document was served upon the following by email and fax on February 5, 2014 to Hon. Judge Abe Lopez W. Wade Arnold, Andrea Gulley, counsel for PISD 2100 Briarwood Drive Underwood Law Firm, P. 0. Box 9158 Amarillo, Texas79124 Amarillo, Texas 79105-9158 [email protected] Phone: 806.376.5613; Fax 806.379-0316 and via Fax (806) 669-8062 [email protected] We further certify that on February 5, 2014, electronic courtesy copies of Motion for New Trial, Motion to Modify Judgment, Letter to Judge Lopez dated 11/22/2013, and Request for Additional or Amended Findings of Fact and Conclusions of Law were emailed to Judge Lopez at [email protected] and to defendant's counsel Mr. Arnold at [email protected]. Rebecca Terrell Chandrashekhar Thanedar Motion for Reconsideration Cause No. 35621 Page 7 of7 Request for Additional or Amended Cause No. 35621 Page 2 of9 Findings of Fact and Conclusions of Law Request for Additional or Amended Cause No. 35621 Page 3 of9 Findings of Fact and Conclusions of Law Request for Additional or Amended Cause No. 35621 Page 4 of9 Findings of Fact and Conclusions of Law Request for Additional or Amended Cause No. 35621 Page 5 of9 Findings of Fact and Conclusions of Law Request for Additional or Amended Cause No. 35621 Page 6 of9 Findings of Fact and Conclusions of Law Request for Additional or Amended Cause No. 35621 Page 7 of9 Findings of Fact and Conclusions of Law Request for Additional or Amended Cause No. 35621 Page 8 of9 Findings of Fact and Conclusions of Law Rebecca Terrell Chandrashekhar Thanedar, Plaintiffs 6503 Dancing Ct., San Antonio, TX 78244 (956) 445-3107; (512) 271-6840 Fax rterrell15 [email protected] CERTIFICATE OF SERVICE The undersigned certifY that a true and correct copy of the foregoing document was served by USPS first class mail on December 2, 2013 on W. Wade Arnold, Andrea Gulley, Underwood Law Firm, P. 0. Box 9158, Amarillo, Texas 79105-9158, Phone: 806.376.5613, Attorneys for PISD. Rebecca Terrell Chandrashekhar Thanedar Request for Additional or Amended Cause No. 35621 Page 9 of9 Findings of Fact and Conclusions of Law Terrell v. Pampa ISO Page2 of16 Terrell v. Pampa lSD PageS of16 Terrell v. Pampa lSD Page 8 of 16 TetTell v. Pampa ISO Page 10 of 16 Terrell v. Pampa lSD Page II of16 l2 • • this Court. Given the Defeudant's conduct so far, a temporary restraining order without notice is proper. 35. Plaintiffs have exercised and will exercise due diligence in prosecuting their claims. The injury to Plaintiffs and all other citizens and taxpayers of the Pampa Independent School District, if defendant is not temporarily enjoined from the conduct described above. would outweigh any injury that the temporary restraining order and the temporary injwtctions might cause Defendant. 36. The issuance of temporary restraining order and temporary injunctions would not be against the public's interests but are sought only to preserve the best interests of the public and sought in the interest of justice. 37. Plaintiffs seek to recover costs and reasonable attorney fees in this proceeding. DANAGES FQR PLAINTIFFS 38. As a direct and proximate result of the occurrences made the basis of this lawsuit, Plaintiffs, Terrell and Thanedat were caused to suffer as interested persons and concerned citizens and taxpayer of the defendant Pampa Independent School District, and have incurred a loss of respect of the integrity of the administrators and elected representatives of the Pampa Independent School District. 39. The Texas Supreme Court has demanded literal compliance with the Open Meetings Act in general and specifically with respect to its notice provisions. 40. The Attorney General of the State of Texas, Greg Abbott, has stated unequivocally that "The Texas Open Meetings Act commits public officials at all levels of government to the principle of government in the sunshine. It is our legal guarantee that the public's ·business is TerreJJ v. Pampa lSD Page 13 ofl6 • • conducted openly and without secrecy." See the Attorney General's Letter to Fellow Texans at www.oag.stqte.tx.uslnewspubsJvublications.shtm.l (Open Meetings 2008 Handbook). 41. Special damages are appropriate in this case, given the obstruction of justice and gross and willful non compliance with the Open Meetings Act e.g. taping notices to the front door, lack of a bulletin board, lack of a properly designated person posting the notices of meetings on behalf of the Board of Trustees of Defendant, new re-creation of false versions of original documents, and untimely and after-the--fact postings of notices of meetings by Defendant including on its internet website, weeks and months after the meetings were held. PRAYER 42. FOR THESE REASONS, Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar respectfully pray that Defendant Pampa Independent School District be cited to appear herein and answer, and that upon a final hearing of the cause, judgment be entered for the plaintiffs against Defendant for damages within the jurisdictional limits of the court, costs of the court, fees and expenses, attorney fees, and such other and further relief to which the plaintiffs may be entitled at law or equity. 43. Plaintiffs pray that the Court issue a temporary restraining order without notice given to Defendant Pampa Independent School Dis1rict that temporarily restrains the Defendant and its board members, officers, agents, ser-Vants, and employees from directly or indirectly proceeding to delete, modify, correct, alter records or documents relevant to this case, specifically including internet website postings of notices and minutes of Board Meetings of Defendant, and directly and indirectly proceeding to terminate plaintiff Rebecca Terrell's employment contract with defendant and duties, rights, privileges appurtenant therein to allow plaintiffs the opportunity to challenge the actions of defendants. Terrell v. Pampa lSD Page 14 of 16 Rebecca Terrell --· Chandrashekhar Thanedar IOOON. Wells St. Pampa, TX 79065 (956) 445-3107 Plaintiffs, Self-represented Terrell v. Pampa lSD Page 16 ofl6 ~,a~<(_ Rebecca Terrell · Chandrashekhar Thanedar SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the '] th o( s- day of mCl~ '2009. A~le~ Name 1\l.rJof Notary) (Print e./son Notice of Regular Meeting The Board of Trustees Pampa Independent School Dlatrlct ' • '· ~14 .. u , .x:: .... c t. '· .. e;,., .;..oN ;t. s ... ,,.., ... u ..... .::::.. w.w:::~"'w. z.o••.•os .. -·'·""c._,.._...-........ -·· .s:: q::h _, 1.. -~ .• v.s;;: .;;n, -11 •. ;au .A .:.... , ..J .tt. _...• __ ._, A Regular Medina of tbe Boanl of Ttustces of Pampa lDdepeDdent Sc:ihoo1 District will be beld Much 26, 2009. beginning at 6:00PM in the Carver Center Administration Oftice, 321 W. Albert. 'lbeiHlbjecm to bedi.acusled orCOIIIicleredorupon wbichanyfonnalaction may be taba areas Hated below. Items do not have to be taken in the Ol"der sllown on this meetin& notice. Uulesa nmoved from tbe CODialt eaeacta. items ideatified within tbe CODSOnt apada wiD be aCted Oil at one time. 1. Call to Order I Det:JaratioD of a quorum u. Public Commeat.t (7:00p.m.) m. CONSENT AGBNDA A. CoDsideratioD aad action to approvo JDODthly finBDCial reports B. Contideration·aad adiort to approve boatd minutes for Jaauary IS, February 19, 2009 and March 12, 2009. C. CoasideratioD and actioD to approve professional developmeat ahlaDceB for some staff. D. CoasideratioD and. possible actioD 1D 8ppiOVe tho PaD Sports Bids. B. Consideradoa. aad action to approve siplh~~e~ on baDk 8COOUilt8. IV. ACI10N I DISCUSSION l'l'BMS A. Consideration and pouible actioll to approve a famd railer for dae PHS Prom Committee B. Cast Votes for Region 16 Board of Directol8 C. Consideration ad pouible action to approve a reaolDtion fmm Palapa lSD School Hca1tb Advisory Council for MCeiS for clemaltary school ••ctoots. D. CoDsideration and pollibk iction to approve a Board Rcsohation in support of a Safe and Dlug Free Schools and Communities Act Pu.nd Grant for PISD. B. Ccmsidaation and possible action to approve revised employmeDt CODtnlctS F. ConaideratloD 8Dd pouible action to approve a resolution to~ the ~tory coatract. ----·-------··- . . Q_ DiiCUII OuD Flee Zone Ad. H. Constructi01l Updato: Pampa Junior Hiah School EXHIBIT 2 llw,.,.., D/lftM tM t:JIIIIIW , , . , ............... 41R • . , . , . . """*"lb. ltdtl, 0 llw /lrltinlwfll t:DWif«:t G B. ll#tftt*..,doJetl....,. CM....,. . . . _,., bt~ Wlrll Is cltiMtl ........ Alljbflll...-. ..... T.., 0,.. rc. 01'----Will-................. _,_If/ ~ c.tc, 0.,. SSI. ,_..,,. Dlllltl WIUI'fl/llld1ldMI(t) • 1/w Ad..,.,.,., dw CAB.VBR CINT8Jt IS 'WIIIBLOIA1R ACXBSJBLB. HBAitiNO IMPAIIBD PBRSONS MUST UQtJBST AN IN'l1IRPRB'nll48 HOURS IN ADVANCB OP TIE MBBTING. PI.&\SKCAI.L&!I--4100 FOR ASSISTANCB. AGBNDA Polted By 5:00p.m. on 3/d 3/9 KCMJ./rJ / ~ c:i..Ln - '·· The Board of Truete• Pampa ............ School Dl8trlct Items do DOt bave to be tabD iD. diD ardlr-- Tbe subjecla to be diacaaed or oantlf:1aRd Gl'liJIOD which -.ybmllldioll 1111.J be 1:lbD 81'0 ulilllld below. 011 dda IJ""tiDa DOtico. UuJeu ft'JIIIOWd &:om the coa.1t •rda,ltiiDB iMetlfied wil:bi1l tho CDIUIIIIIt ..,ada will be ectlld on at oae time. c~; L Call to Onb' I Dec:llratioD. r4 a quanun n. Public CoanillllfJid8 (7:00p.m.) m. CONSBNT AOBNDA A Coaaidrnd- ..SICtiaD. to appawe INWitbly ftnencial npot11 B. CoatideaiiCkm 8 ecdall1D app;ovo bami mia•tM far Ja111181Y 15. Pe1xury 19, 20091Dd Mardll2, 2009. c. . Couaidatioa aad ICiio1l to appow prolralioJMJ ~---for IOIIle ltJdf. ' D. B. Owidatioa IDd ICiicm to approve..,....... CoDiidentloD llld prwlible action to 1JP0W1 the Pan SpaltB Bida. CXl bat ...... IV. ACI"'ON I DJSCUSSION li'BUS . A. CoDsideratioa ad poaaiblo ldioD to app:ove a fuiJd taila"for 1118 PHS PJ.aD Committee B. Cat V<*l fa:Jeakm 16 Bolnl ofDiftdan . c. Caaai.dcatiaD IDd. polfllble ICtioa 1D lgi'OVD • niiiOiudoD fmm. Plarpa lSD School Bealda Adviaoly CDmcD. bRCellltbr........., 1Cboollttl4mta. D. Coaai&ntioa ead poaaiblo action to ippl'CM a Bead a.olndoo iD I8JIPOd of a Safe aad Draa lfte Scboollllld Cm»mlldtiel./t.l#. Plmd GriDt :b PJSD. B. Caalidlratioll- polllb1e lctioD to IJ'IIIl'OW ...w ~ CODtmcll c· P. CoDai.ckatioD and pMiible acdoli to lpiii'O'N a NIOI1JdGD to llldmd 1m~ clepalitory COil1riiCt. ---· G. DiiCUII OanPlw :ZC..Ad. .....- - - -.. H. . CoastructkBl ~ PmlpaJUDiarllah Scbool EXHIBIT3 ,.. L J. • Conslmadolll]pda1D: Pampa Biah Scbool ldeatify f'atD&e . . . . illlml • ·-··· v. REPORTS A Builctiap, Gmunda,l8d PtcDitiel RriP.xt B. Career ad 1riChoolo&Y 1114 collcp credit oppottuDidel for PJSD atudenta. c. PrnoaDal ~Report D. Poocl s.vicea Report B. WiDd Bnlqy Report VI. PBR80NNEL A. Bmploymalt of por.toDalfiDP)oyee B. App:ovalad llllftal of term. cmtiiCt emplOyees c. App:ovalad..,.. of pmbaaioaGy CCIIIract emp10)WI D. App:ova1 oftNmiMtion ofpmbaaioaay CODtract employees. -- ..... . B. Approval of JIDIIooraaowal of tfiDl CODtract employees. -· .. . ,, .,.............. ...,,. ,. . . ""-qf·...... .,...,....,,.,......... ..... .................................. ......,. l'tsat_,.....,.,..................... 'a' armc t ., 2k .,.,..., . . . ..., ....,., ... . . . . . . . . . . . , - ; , ... ,..., . . . . . . . . . . . .,., .. ,..... ,.., ..,......,. ...... .......,.• ...... a••• .__,., •• cr & *• .,.,., BtlftHw_,...,......, •-•It """' • lltMIItl .. ,., ....................., ......... r.. 0,. It t.,Mt. n..a..... Ccldl. ca..-m. M Put aD_, ..,,_..,..,..~._...,_,,.AI/I r111h1..,.,,., ..,_,.,. AlljiMl-. ......................... ....... CAI.VBI. CIN'DiiR 18 WJIPrtBAlll .ACCIAIIl& BBAidMO JMPAIRID JBII!IQNI IGJIT IJQJBST AN IN'I'IUU'IIIl48 ROUltiiN MJVAHCSOP'l'IIII&B'l1NO.IU.AIB CAU._....,R*~ANm C· AGBNDAPalfed By 5:GO p.m. OD 'S/{)Q/ 9 tlo.Ja.Am r/vcckn c Rebecca Terrel 1000 N.. Wells Pampa, Tf!XIIS 79065 Dear Ms. Terrel: I hlwe blcolne 8WIINthltPIII two of the Mlrdl H, 2008, Pwnpa lSD SCMola-nl Apnda wu inadVeltlntty omiUid from tile material provided to JDUin your Texas Open RtMxJnts ReqiMst. I am proyfdlna. complete . . . . . of that ....... to you to complete ....... NCOrds. ~ lndependll't Sd100I Ollb1ct • 321 w. Albert Street • ,.,..... Tees 79065 806-66H7CD • - 806165-0506 • bany..-~ • Page 1 of2 Pampa ISO Pampa ISO Event Calendar Pampa lSD Board Of Trustees DIStrict COntact Directory Clk:k lw'l to view the SChool Board Goals. campus Contact Infor'matlon Y Schools Lance DeFever, Memt.r • Parent· COnnection • ptace 2, Term: 812001 • 512011, E-Mail • Weather • Bom and railed In Pampa Information • Gradl.labl of Pampll High ·School Y District • Gfllduate of Amalllo CGIIeCll. AIJodlte DeoNe In Mortuary Science C......, . Information Y Pampa ISO Staff • CeNr. 'Jicl.oPNIIdent ofMojeve PWDIIum Co. Inc. lor 17 yew~; ...._.,ofFalrvift' Nil~ tom 1888 to p!'8tef1t; F~ What's New DhdOr for Cannlchul Whlll, Funeral Dlractcn Department • Fllllily: Wife, BrocD; Three eone, Reed, Spencer, Ethen: step..son, VWI Information VIce • Department Dtrectory Denali Deloach, VIce Pnleldent .· • pt_,.1, TMn:·!SI2Q06·1i12011, E~ ·• C3radulte of Wilt Monroe H1gh School, 1982 • ~of Noelheut LoUIIIana lJnlveralty, 1880 (BBA) • Grllcluldil ofTexe~ Chrllliln Ut'Wifllly, 1884 (AON) • Gnlc:kalla of Welt Taxa AIM Unlv8rtlty, 2001 (MSN) . • USAnnyV..., • ca...-: Famly Mtddna Center, Nine Practltiorw • F811111y: Wfl, Andnle (PHS dell d '88); Chlknn, Jolhua, Emily end Abby . • ConmJnlly: ....,.,... ·Trinity Fellowahlp Churd't, Pampa Rotary Club I • Allee e, Term: 511988. 512010, ~ • Born 1n senAntiCinlo, Texaa • ~ ofThloclont Roolwelt High School • Glllduale of Clanndon Junior Colege, A8IOCiate of Alta Degree • us Alr Force Vlltnlm Veteran • c-: Employee of Narthem Natlnl 081 tom 1979110 Prelent • Femlly: V\81, Charlene; Chlklrtn, Denillle, Michael, Oulla Mark McVay, Member • Place 7, Term: 5121XJ7· 512010. E~­ • Uved In Pampa IInce 1987 • G..._ of ROI\TJIWII High SChool, 1980: EXHIBIT 4 • Gracllate of w.t Texu Stllte Univerllty, 1884 • BBA Accounting • Cllrwer: CPA, Chief Fli1811CIIII C)fllcer for Oilwel ~. Inc. • Family: Wl'e, Ginger. Chlkftn; Natalie, PHS C._ of 2004, Stephanie, PHS Cllet of 2007, Trevor http://www.pampaisd.net/eduoation/~/de1imlt.php?~ESSI... S/1512009 Lee Porter, Member • Place !5, Term: !511987 • 512000, i • l • Graduate of Odessa High School- 1984 • Graduate of Odeua Junior College- 1886 (with hOnora): • Graduate of Uriverslty ofTexae at Awtin, 1969 (8A In Ma1h and BS in Chemiatfy) • Career: lndependem ou & Gat Producer • Family: Wfe, Janice; Children, Chris, PHS ClaM of 1988, Gavin, PHS Class of 1994, Jal Jal PHS Clau of 1997 Charlee Smith, Preelclent • Place 4, Tenn: 512003- 512008, e~~~ • Born In Lubbock but ralaed In Pampa • Gradt.latl of PMIPB High School • Career: Buatneu owner, Envllonmentll. Hedh and .Safety Consultant andT.....,., • Family: \Nife, Karen; Children, Chris, Matt, Hannah Dana Terry, Secretary • Place 3, Term: 512006·1!12011, J;:-M_.I • Attended Welt Texu Univeraity • ,Career: OWner of Corr1plcM Travel16 years • Family: Huabend, W.R. "Bebo" Terry; Children, Elizabeth, Emly • Communlly: Lifelong member of Flnlt Christian Churt:h http:l/www.pampaisd.nctleducatiOD!componentslscdirectory/defaultphp?sectiondetailid-lAPHPSESSI..• S/15/2009 Pampa lSD Pampa lSD Board Of Trustees Pampa lSD Event Calendar · District Contact Directory Click here to view the School Board Goals. Campus Contact Information 'Y Schools Lance Defever. Member ., Pal'ent Connection • Place 2, Term: 612001-512011, E-Mail 'f Weather Information • Born and raised In Pampa .,. District • Graduate of Pampa High School Information • Graduate of AmarHIO CoUege, Associate Degree In Mortuary Science ., Pampa ISO • Career: Vice-President of Mojave Petroleum Co. Inc. for 17 years: Staff Manager of FairVIew Cemetery Association from 1999 to present; Funeral What's New Director for Carmichael-Whatley Funeral Directors Department • Family: Wife, Brooke; Three sons, Reed, Spencer, Ethen; Step--son, Will Information Yiee 't' Department Derrell Deloach, Vice President Directory • Place 1, Term: 512005- 512011, E-MeU • ~radUate of West Monroe High School, 1982 • Graduate of Northeast Louisiana University. 1990 (BBA) • Graduate ofTexas Christian University, 1994 (ADN) • Graduate of West Texas A&M University, 2001 (MSN) • us Army Veteran • career: Family Medk:ine Center, Nurse Practitioner • Family: Wife. Andrea (PHS class of '88): Children, Joshua, Emily and Abby • Community: Member- Trinity FellowshiP Church, Pampa Rotary Club Joe Martinez, Member • Plebe 6, Term: 511998-512010. E-Mail • Bom in San Antonio, Texas • Graduate of Theodore Roosevelt High School • Graduate of Clarendon Junior College, Associate of Arts Degree • US Air Force VIetnam Veteran • Career: Employee of Northam Natural Gas frOm 1979 to Present EXHIBIT 5 • Family: Wife, Charlene; Children, Danielle, Michael, Quila Mark McVay, Member http:/174.125 .4 7.132/search?q=cache:TpwrmJwX4QwJ:www.pampaisd.net/educationlcomponents/scdi... 5121/2009 • Graduate of Weat Texas State Unlveralty, 1984 - BBA Accounting • Career: CPA, Chief Finandal Oftloer for Oilwell Operators. Inc. • Family: Wife, Ginger; Children; Natalie, PHS Clas$ of 2004, Stephanie, PHS Claes of 2007, Trevor • Community/Civic: Member • St. Vincent De Paul Catholic Church, CASA of lhe High Plains, Pwnpa Rotary Club, Knights of Columbus, Boy Scouts, end United way. Lee Porter, Member • Place 5, Term: 511997-512009, E-Mail • Graduate of Odessa High School - 1964 • Graduate of Odessa JuniOr College- 1968 (with honors); • Graduate of Untverslty of Texas at Auatln, 1969 (BA in Math and BS In Chemistry) • career: Independent Oil & Gas Producer • Family: V'.Ne, Janice; Chldren, Chris, PHS Clan of 1988, Gavin, PHS Clan of 1994, Jal Jal PHS Clau of 1997 Charles Smith, PMident • Place 4, Term: 512003- 612009, E.~f!Aail • Born In Lubbock but raised In Pampa • Graduate of hmpa High School • Career: Bu81neaa owner, Environmental, Health and Safety Conaultant and iralner .• Family: Wife, Karen; Children, Chria, Matt, Hannah Dana Terry, Secretary • Place 3, Term: 612005- 512011, E~Mall • Attended West Taxes University • career: OWner of Complete T111ve115 years • Family: Husband, W.R. "Bebo" Terry: Children, Elizabeth, Emily · • Community: Ufalong member of First Christian Church 8 ~ri.ot Page http://74.125.47.132/search?q=cache:TpwrmJwX4QwJ:www.pampaisd.nctleducationlcomponents/scdi... Sfll/2009 Pampa ISO Pampa ISO Event Calendar Pampa ISO Board Of Trustees District Contact Directory Meeting information Campus Contact Information 'Y Schools School Board Goals • Parent Connection Lance DeFever. Member • Weather Information • District • Place 2, Tenn: 612001 ~ 512011, E-Mail Information • Bom and raised in Pampa • Pampa ISO Staff • Graduate of Pampa High School What's New • Graduate of Amarillo College, Associate Degree in Mortuary Science Department • canter: Vlce-Pr&Sident of Mojave PetroleUm Co. Inc. for 17 years; Information Manager of Fairview Cemetery Association from 1999 to present; Funeral • Department Director for Carmichael-Whatley Funeral Directors Directory • FamHy: \Mfe, Brooke; Three aons. Reed, Spencer. Ethen; Step-son, Will Vice DerreJI Deloach, VIce President • Place 1, Term: 512005 - 512011, E-Mail • Graduate of West Monroe High School, 1982 • Graduate of Northeat LouiU.na University, 1990 (BBA) • Graduate of Texas Christian University, 1994 (ADN) • Graduate of West Texas A&M University. 2001 (MSN) • US Army Veteran • career: Famly Medicine Center, Nurse Praetitioner • Family: \Mfe, f\ndrea (PHS dass of '88); ChRdren, Joshua, Emily and . Abby • Communltv: Member- Trinity Fetlow8hlo Churd\, Pamoa Rotarv Club Joe Martinez, Member • Place 6. Tenn: 5/1998.512010, E-Mail • Born In San Antonio, Texas • Graduate of Theodora Roosevelt High School • Graduate of Clarendon Junior College, Aseodate of Arts Degree • US Air Force Vietnam Veteran • Career: Employee of NOI1hem Natural Gas from 1979 to Present • Family: Wife, Charlel)e; Children, Danletle, Michael, duila Mark McVay, Member • Place 7, Term: 512007-512010, E-Mail EXHIBIT 6 • IJYed In Pampa since 1987 • Graduate of Roawell High School, 1980; • Graduate of Weet Texas State Unlvetlity, 1984 - BBA Aocounling • Career. CPA, Chief Financial Offlcer.for OfJwefl Operators, Inc. http://www.pampaisd.net/educationlcomponentslscdirectory/defaultphp?sectiondetailid=2 5/19/2009 r' 2.7 P1n1palndependentSchool • PHS Cla88 of2t:IJ7, Trevor Page 2 of2 • Family: Wfe, Ginger, Children; Natalie, PHS Class of 2004, Stephanie, • Community/CiVic: Member- St. Vincent De Paul Catholic Church, CASA of the High Plains, Pampa Rotary Club, Knights of Columbus, Boy Scouts, and United Way. Lee Porter, Member • Place 5, Term: 511997 • 512009, E-MEIII • Graduate of Odeaaa High School - 1964 • Graduate of Odessa Junior COllege- 1966 (with honors): • Graduate of University of Texas at Austin, 1989 (BA in Math and BS in Chemistry) • Career: Independent OH & Ga& Producer • FamUy: \/VIfe, Janice; Chldren, Chris, PHS Class of 1988, Gavin, PHS Cles8 of 1984, Jai Jal PHS ctess Of 1997 David Teichmann, Member • Place 4, Tann: 512009 • 512012 Dana Terry, Secretary • Place 3, Tenn: 512006 • 512011, E-MaH • AUended West Texas University • Career: Owner of Complete Travel15 years • Family: Husband, W.R. "Bebo" Terry; Children, Elizabeth, Ermty • Community: Lifelong member of Firat Christian Church http://www.pampaisd.netlcducation/componentslscdirectory/dcfault.pbp?sectiondetailid=2 5/1912009 ORIGINAL OF CD ROM IS ON FILE WITH THE DISTRICT CLERK. CAUSE NO. 35621 REBECCA TERRELL and § IN THE 223RD DISTRICT COURT CHANDRASHEKHARTHANEDAR § ·.'_') )> ,...., :;."": § 0 C::1 ;J.J c= Plaintiffs, § ,~ ;;Jl> >·CJ """ C) -<c: ("") § r.~~ -........ .. -I -,., ;:;::-, v. § IN AND FOR :·:--1 _.,;:-, a:> r- § :<~ M PAMPA INDEPENDENT SCHOOL § -~-. ( ') r ~·;--: -o f:J ><::J:J :X ~::.:.J DISTRICT, § ,-'1 --, }>·0 l_:"}-i .r:- § GRAY COUNTY, TEXAS 0 r ,-, w -< w Defendant § 7.) ~ PLAINTIFFS' SECOND SUPPLEMENTAL PETITION TO THE HONORABLE JUDGE OF THE COURT: Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar hereby file their second supplemental petition pursuant to Rule 80 of the Texas Rules of Civil Procedure (TRCP) and would respectfully show the Court as follows: 1. Plaintiffs' original petition in this case was filed on May 29, 2009 which is adopted and incorporated by reference as if set forth verbatim herein. 2. Plaintiffs have a right to supplement their pleadings per TRCP 80. See Texas Assoc. of Business v. Texas Air Control Board, 852 S.W.2d 440,446 (Tex.1993). Plaintiffs have filed their first supplemental petition on June 11, 2012. This case is on remand from th Court of Appeals. 3. Plaintiffs rely on the following exhibits which are adopted and incorporated as if set forth verbatim herein. Exhibit 1: Second Supplemental Affidavit of Rebecca Terrell and Chandrashekhar Thanedar (Attached). Exhibit 2: Plaintiff Terrell's employment contract for 2008-2009 with defendant Pampa Independent School District (PISD or Pampa lSD) (Attached). Exhibit 3: Annual Financial Report of Pampa ISD for 2008-2009 is adopted and incorporated as if set forth verbatim herein - Pages 18, 20, 80 of the report providing sources of defendant's funding and expenditures are Attached. Exhibit 4: Texas Fact Book 2008 (the Fact Book) by State of Texas Legislative Budget Bo~rd is adopted and incorporated by reference as if set forth verbatim herein- Pages 33, 42, 46, 49, 53 from the Fact Book concerning the Sources of Revenue and Spending on public education in Texas for 2008-2009 are Attached. Exhibit 5: Defendant's salary schedules and information for years 2008-2009, 2009-2010, 2010-2011, 2012-2013; and health insurance premium information for Year 2011-2012 (Attached). 4. Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar (spouse) are currently Texas residents, citizens, and taxpayers and have been so continuously for more than 12 years. Plaintiff Terrell was a first year beginning teacher teaching three subjects at the Pampa High School, Pampa, Texas in 2008-2009 teaching U. S. History, World History, and World Geography. See Exhibits 1, 2. 5. PISD receives a substantial amount of state taxpayer funding, more than $13.2 million in 2008-2009, from the State of Texas. See Exhibit 3 - PISD's Annual Financial Report for 2008-2009 (page 18) posted on Texas Education Agency's public internet website which is adopted and incorporated by reference herein. Further PISD receives substantial funding - $3 .48 million from the federal government each year. Exhibit 3- PISD's Annual Financial Report for 2008-2009 (pages 18, 80). The State of Texas (e.g. taxpayers such as plaintiffs) provides more than 50% ofPISD's General Fund operating expenditures. See Exhibit 3 (page20). The State of Texas collects sales and other taxes from Texas citizens and spends a majority of it on public school districts such as Pampa ISD and more than a thousand other school districts in the State of Texas. Thus the sales taxes and other taxes paid by plaintiffs help support defendant Pampa ISD. See Exhibit 4 - The Texas Fact Book 2008 is published and made publicly available on its website by the Texas Legislative Board which is a permanent joint committee of the Texas legislature performing its statutory responsibilities. The citizens and taxpayers of Texas, such as plaintiffs, through laws regulate all aspects of operations of public school districts. See Texas Education Code e.g. Chapters 11, 21, and 44. Thus as current Texas and Federal taxpayers and residents of Texas plaintiffs have interest in Pampa lSD and therefore have continuous standing from the beginning of this lawsuit to present. 6. As taxpayers and residents of the State of Texas for more than 12 years, we are concerned about the operations of Pampa Independent School District (PISD), its funding and use of State of Texas taxpayers' money, and about PISD's violations of the Texas Open Meetings Act, (TOMA), Gov't Code Ch. 551. We are interested in and concerned about the openness, integrity, full disclosures, and full and honest compliance with Texas Constitution and with TOMA and other laws by all Texas Government entities and their administrators and employees, and in particular by PISD, its Board of Trustees, its superintendent, and its employees and administrators. Plaintiff Terrell is interested in and intends to resume teaching at PISD upon reinstatement, upon order of the court. Plaintiff Thanedar as spouse is interested in Terrell's reinstatement and resumption of teaching career at PISD. Exhibit 1. 7. Plaintiff Terrell's salary as a teacher for the school year 2008-2009 was $34,500 and PISD further provided plaintiff Terrell benefits including health insurance, life insurance, holidays, sick and vacation time, and employer contributions to retirement benefits. Exhibit 2. PISD's benefits amount to about 33% of Plaintiff Terrell's salary. Based on PISD's salary schedules plaintiff Terrell's salary would have been at least $37,900 for 2009-2010, $40,100 for 2010-2011, $41,300 for 2011-2012, and $41,400 for 2012-2013. Exhibit 5. 8. As a direct and proximate result of defendant's action terminating plaintiff Terrell's teaching contract done in violation of TOMA, Plaintiff Terrell has suffered loss of full time regular teaching position and employment, and has further suffered damages due to lost back wages and benefits for the years 2009-2010, 2010-2011, 2011-2012, 2012-2013 and continuing, currently estimated at more than $209,000 and continuing. 9. Plaintiffs have spent more than 1,650 hours on prosecuting this case against PISD since the middle of May 2009 up to the filing date of this supplemental petition (Exhibit 1) which is relevant in calculating part of special damages in this case - hours spent multiplied by hourly rate. It is plaintiffs' position that special damages are warranted here due to defendant PISD's misconduct, obstruction, and the nature and extent of persistent violations for 2008-2009. 10. It is plaintiffs' position that PISD did not have BoardBook service for the purpose of public viewing of PISD's website internet notices required under TOMA §551.056(b) for the period in question from August 13, 2008 to May 19, 2009. Further it is plaintiffs' position that PISD did not have BoardBook service for the purpose of public viewing of PISD's website internet notices required under TOMA §551.056(b) for the period from January 15, 2009 to May 19, 2009 -a period for which PISD claims good faith exception under TOMA §551.056(d). Defendant PISD has steadfastly refused to produce evidence that the alleged contract with BoardBook was in fact executed and that the alleged contract and service with BoardBook was actually in effect for the period of January 15, 2009 to May 19, 2009 or for any other relevant time period. Defendant PISD has defiantly refused and failed to supplement and or amend discovery in this regard as required under Tex. R. Civ. Pro. 193.5. Defendant did not pay the first year license fee for BoardBook service for 2007-2008 or for any subsequent years e.g. 2008-2009, as a result did not have BoardBook service for the purpose of public viewing ofPISD's website internet notices of Board meetings from 8113/2008 to 5/19/2009. Defendant has refused and failed to produce any evidence of payment (e.g. cancelled checks, approved check requests, vouchers, check registers, or general ledger extract, evidencing payment, statement of account with BoardBook, correspondence with BoardBook regarding payment of license fees and renewal of contract, etc.) for BoardBook service either for the purported 2007 BoardBook service agreement or for subsequent years - 2008-2009 and 2009-2010. PISD's good faith defense under TOMA is a fraud on this Court, the ih Court of Appeals that heard this case, Texas Supreme Court, State of Texas, and its citizens and Texas and Federal taxpayers. BoardBook service is a software marketed by Texas Association of School Boards, Inc. (a trade organization) to its members such as PISD in assisting PISD to display its website internet notices of Board meetings for public viewing on BoardBook's website in Adobe Systems Inc.'s (Adobe) Portable Document Format or "PDF." Adobe's PDF format shows document properties of PISD's website notices such as when the board meeting notices were created i.e. brought into existence in PDF format for public viewing or modified i.e. changed, thereafter. Document properties of defendant's website notices on BoardBook for 8113/2008 to 5/19/2009 show to have been untimely created in May 2009 after PISD was informed of the failure to comply with TOMA §551.056(b) by plaintiffs. Said notices did not "appear" on PISD website (or BoardBook's website) timely for prescribed time (instead "appearing" days, weeks or months after the meetings in question were held) after 5/19/2009. PISD failed to provide evidence of timely creation, posting, and appearance of its website internet notices for public viewing for the period in question- 8/13/2008 to 5/19/2009. PISD's good faith defense of"severance of link to BoardBook" for the period 1/15/2009 to 5/19/2009 is a subterfuge made in bad faith and is a fraud on the public and the court. PISD and its counsel obstructed and delayed proceedings by filing a frivolous motion to dismiss without any support in fact or law. Similarly, PISD's motion to quash depositions is also wholly meritless designed mainly to delay and obstruct proceedings. PISD deliberately misled the th court of appeals concerning its good faith defense and then opposed discovery concerning its good faith defense. PISD and its counsel's deliberate obstructive conduct especially against pro se citizen taxpayers warrants strong sanctions against PISD and its counsel as punishment and to deter such misconduct in the future in TOMA lawsuits. Sanctions on PISD and its counsel are warranted here to preserve the sanctity of TOMA and its purpose - openness, voluntary compliance to laws, and integrity in government. Supplemental Prayer FOR THESE REASONS, plaintiffs respectfully request that plaintiffs' prayer in their original petition and first supplement should be granted in its entirety and further plaintiffs request as supplemental prayer that PISD's action terminating Terrell's employment contract be voided, PISD be ordered to reinstate Terrell, and with reinstatement of Terrell as teacher, PISD be ordered to pay plaintiff Rebecca Terrell damages in the form of back wages and benefits for the school years 2009-2010, 2010-2011, 2011-2012, 2012-2013 and continuing up to and until the time PISD fully reinstates Terrell as classroom teacher (currently, back pay and benefits calculated at about $209,000 and continuing), and that this Court should grant special damages calculated by the number of hours spent by plaintiffs on this case multiplied by a reasonable rate per hour to be fixed by the Court, and that plaintiffs be declared as the substantially prevailing party and be granted costs, expenses, and attorney fees, damages, back pay and benefits for Terrell with reinstatement as teacher, special damages, and fees, and that the Court enter declaratory judgment that PISD's actions in question violated TOMA and void all such actions in violation ofTOMA and enter a permanent injunction against PISD to prevent future violations of TOMA. Plaintiffs further request that the Court impose sanctions on PISD and its counsel due to their obstruction of justice, refusal and failure to supplement or amend discovery in this case. Plaintiffs further request that Court grant all other and further relief, at law or in equity, to which they may justly be entitled to receive. Respectfully submitted, Rebecca Terrell Chandrashekhar Thanedar Plaintiffs 6503 Dancing Ct. San Antonio, Texas 78244 (956) 445-3107 (512) 271-6840 Fax [email protected] CERTIFICATE OF SERVICE The undersigned certify that a true and correct copy of the foregoing document has been served upon the following by United States certified mail on October 16, 2012 as follows: W. Wade Arnold, Andrea Slater Gulley, Underwood Law Firm, 500 S. Taylor Street, Suite 1200, LB 233, Amarillo, Texas 79101-2446. Rebecca Terrell Chandrashekhar Thanedar STATE OF TEXAS § § § SECOND SUPPLEMENTAL AFFIDAVIT OF REBECCA TERRELL AND CHANDRASHEKHARTHANEDAR BEFORE ME, the undersigned authority, on October 16, 2012 personally appeared Rebecca Terrell and Chandrashekhar Thanedar, and after being duly sworn by me, stated under oath the following: "Our names are Rebecca Terrell and Chandrashekhar Thanedar. We are plaintiffs in Cause No. 35621 against defendant Pampa Independent School District (PISD or Pampa ISO) in the 223rd District Court in Gray county Texas. We are over the age of majority. We are mentally, physically and otherwise competent to make this sworn declaration. We are not legally disqualified from making this affidavit." "We have personal knowledge of the facts stated in Plaintiffs' Second Supplemental Petition and the facts are true and correct. We affirm that the exhibits attached to Plaintiffs' Second Supplemental Petition are true and correct copies of the record, originals, or reports published by government bodies as stated. We have personal knowledge of the facts stated in this affidavit, and they are true and correct." "We are currently residents, citizens, and taxpayers of Texas and have been so continuously for more than 12 years. I (Terrell) was a first year beginning teacher teaching three subjects at the Pampa High School, Pampa, Texas in 2008-2009 teaching U. S. History, World History, and World Geography. As citizens, taxpayers, and residents of the State of Texas for more than 12 years, we are concerned about the operations of Pampa lSD, its funding and use of State of Texas taxpayers' money and about Pampa ISD's violations ofthe Texas Open Meetings Act (TOMA). We are interested in and concerned about the openness, integrity, full disclosures, and full, voluntary, and honest compliance with Texas Constitution and with TOMA and other laws by all Texas Government entities and their administrators and employees, and in particular by PISD, its Board of Trustees, its superintendent, and its employees and administrators." "I (Terrell) affirm that I am interested in and have requested reinstatement, back pay and benefits as part of the remedies in this suit and intend to resume teaching at PISD upon reinstatement, upon order of the court. I (Thanedar) affirm that as spouse I am interested in Terrell's reinstatement and resumption of her full time teaching career at PISD." "My (Terrell) salary for the school year 2008-2009 was $34,500 and PISD further provided me (Terrell) benefits including holiday pay, sick pay, vacation pay, health insurance, life insurance, and employer contributions to retirement benefits. We have spent more than 1,650 hours on prosecuting the above case against Pampa Independent School District since the middle of May 2009 until present." EXHIBIT 1 ~~ Rebecca Terrell Chandrashekhar Thanedar SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the Ita Ttl day of October, 2012. ~u~~ Notary Public in and for the State of Texas (Printed Name ofNotary) 2nd Supplemental Affidavit of Rebecca Terrell Cause No. 35621 2 of2 and Chandrashekhar Thanedar 223rd District Court Pampa Independent School District PROBATIONARY CONTRACT FOR · CERTIFIED CLASSROOM TEACHER State of Texas Date given Employee rJ.t]"q, · Q~) County of Gray Date returned by Employee E..lfJD 0 The Pampa Independent School District (the "District") hereby employs Rebecca Terrell (the "Employee") as a Teacher, and the Employee accepts employment on the following terms and conditions: 1. Term. The District agrees to employ the Employee on a lQ. month basis for the 2008-2009 school year, according to the hours and dates set by the District as they exist or may hereafter be amended. 2. Credentials. This Contract is conditioned upon the Employee's satisfactorily providing, before the first duty day, the certification, service records, documentation of highly-qualified status, and other records and information required by law, the Texas Education Agency ("TEA"), the State Board for Educator Certification, or the District. 2.1 Certification: The Employee agrees to maintain the required certificatjon throughout the term of this Contract. If the Employee fails to fulfill the requirements necessary to extend a temporary or emergency certificate or permit, or if the Employee's certification expires, is canceled, or is revoked, this Contract is void. 2.2 Qualifications: If the Employee is a classroom teacher, the Employee agrees to become and remain "highly qualified," as that term is defmed under the No Child Left Behind Act, 20 U.S.C. § 7801, and by the TEA, to the extent required by law. 3. Representations. The Employee makes the following representations: 3.1 Criminal History Review. At the beginning of this Contract, and at any time during this Contract, the Employee specifically agrees to submit to a review of his or her national criminal history record information (NCHRI) if required by the District, TEA, SBEC, or other proper authority. 3.2 Beginning of Contract: The Employee represents that he/she has disclosed to the District, in writing, any conviction, no contest or guilty plea, or other adjudication of the Employee for any felony or any other offense listed at 19 Tex. Admin. Code§ 249.1 6(b). The Employee understands that a criminal history record acceptable to the District, at its sole discretion, is a condition of this Contract. Pampa Independent School District • 321 W. Albert Street • Pampa, Texas 79065 806-669-4700 • fax: 806-665-0506. • www.pampaisd.net Pampa Independent School District 3.3 During Contract: The Employee also agrees that, during the term of this Contract, the Employee will notify the Superintendent, in writing, of any arrest, indictment, conviction, no contest or guilty plea, or other adjudication of the Employee for any felony or any other offense listed at 19 Tex. Admin. Code § 249.16(b). Employee agrees to provide such notification within three calendar days, or as set forth in District policy. 3.4 False statements and misrepresentations: The Employee represents that any required records or information provided in his or her employment application are true and correct. Any false statements, misrepresentations, omissions ofrequested information, or fraud by the Employee concerning any required records or in the employment application may be grounds for termination or nomenewa~ as applicable. 4. Duties. The Employee agrees to perform his or her duties as follows: 4.1 General standard: The Employee shall perform the duties of the position assigned, as prescribed by state law and the District, with reasonable care, skill, and diligence. 4.2 Assignment/Reassignment: The District shall have the right to assign or reassign the Employee to positions, duties, or additional duties and to make changes in responsibilities, work, or transfers, at any time during the contract term. 4.3 Supplemental duty: This Contract does not cover assignments of or payments for supplemental duties. This Contract does not create a property tight to continued employment in any supplemental duty. 4.4 Rules: The Employee shall comply with all Board, District and administrative directives, state and federal laws and rules, District policy, and regulations as they exist or may hereafter be amended. Employee shall also abide by the Code of Ethics and Standard Practices fur Texas Educators. 5. Compensation. The District agrees to pay the Employee compensation as follows: 5.1 Salary: The District will pay the Employee in twelve installments for an annual salary according to the District's compensation plan. The Employee's salary includes consideration for all assigned duties, responsibilities, and tasks. 5.2 Annualized Salary. If the Employee will work on a less-than-12-month basis, the Employee's salary will be paid on an annualized basis. The District will make deductions from each paycheck for income tax withholding and benefits. 5.3 Incentive and Performance Pay: If the Employee qualifies, the employee may receive incentive pay or pay for performance under the District's compensation plan, federal law, or state law, including Education Code Chapter 21, subchapters Nand 0. An incentive payment is not an entitlement as part of the Employee's salary. Pampa Independent School District • 321 W. Albert Street • Pampa, Texas 79065 806-669-4700 • fax: 806-665-0506 • vvww.pampaisd.net Pampa Independent School District 5.4 Overpayments: The Employee agrees that the District may deduct any wage overpayments under this contract from one or more of the Employee's paychecks. 5.5 Benefits: The District shall provide benefits to the Employee as provided by state law and Board policy. The District reserves the right to amend its policies at any time during the term of this Contract to reduce or increase these benefits, at the Board's sole discretion. 6. Other provisions. 6.1 Equipment and reports: The Employee shaH satisfactorily submit or account for all grades, reports, school equipment, or other required items upon request from the District. 6.2 Special funding: Employment in federally or categorically funded positions is expressly conditioned on the availability of full funding for the position. If full funding becomes unavailable, the Employee is subject to termination or nonrenewa~ as applicable. ...-·--- 6.3 Addenda: This Contract does~n~ (circle one) include one or more Addenda, as follows: (1) Addendum A: _ - - - - - - - - - - - - - - - - - - - - - - (2) Addendum B: 7. Suspension. In accordance with the Texas Education Code, the District may suspend the Employee without pay during the term of this Contract for good cause as determined by the Board. 8. Termination of Contract: This Contract will terminate upon a determination by the Board of good cause, financial exigency, or a program change, in accordance with applicable law and Board policy; upon the Employee's resignation at the end of a school year without penalty, pursuant to the Texas Education Code; or upon the Board's determination that tennination of the employee at the end of the contract period will serve the best interests of the District. 9. General provisions. 9.1 Amendment: This Contract may not be amended except by written agreement of the parties. Pampa Independent School District • 321 W. Albert Street • Pampa, Texas 79065 806-669-4700 • fax: 806-665-0506 • www.pampaisd.net Pampa Independent School District 9.2 Severability: If any provision in this Contract is, for any reason, held to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other provision of the Contract. 9.3 Entire agreement: All existing agreements, both verbal and written, between the parties regarding the employment of the Employee are superseded by this Contract. This Contract does not constitute a "unified contract" with any supplemental duties agreement between the parties. 9.4 Applicable law: Texas law shall govern construction ofthis Contract. 10. Notice to employee. The Employee agrees to keep a current address on file with the District's human resources office. The Employee agrees that the District may meet any legal obligation it has to give the Employee written notice regarding the Employee's employment by hand-delivering the notice to the Employee or by sending the notice by certified mail, regular mail, and/or express delivery service to the Employee's address of record. 11. Expiration of offer. This offer of employment contract shall expire unless the Employee signs and returns this Contract, without changes, to the Superintendent on or before August 10, 2008. lfthe Employee fails to sign and return this contract by thi<; date, without changes, the Employee shall be deemed to have rejected this offer and to have resigned from employment with the District, if any, at the end of the existing contract term. I have read this Contract and agree to abide by its terms and conditions. Failure to comply with or to enforce the policies of the Pampa Independent School District may result in termination or non- renewal, as applicable. Employee: KP,b(.([ a PtY\ I) e Ti) ((€..1i (Printed N arne) Y).. !/.</<£~. ,fL ' ~ C<'.at,lti '2 /l ;'\_.( .JJ' \.i ~ (Signature) Date signed: fllt/c;,£ Date signed: I ' Board Approved: 1117/2008 Pampa Independent School District • 321 W. Albert Street • Pampa, Texas 79065 806-669-4700 • fax: 806-665-0506 • www.pampaisd.net PAMPA INDEPENDENT SCHOOL DISTRICT ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED JUNE 30, 2009 EXHIBIT 3 The notes to the financial statements are an integral part of this statement. The notes to the financial statements are an integral part of this statement. 206 207 REVENUE WHERE YOUR STATE TAX DOLLAR COMES FROM 2008-09 BIENNIUM Other Taxes 2.6% Insurance Taxes 3.3% Cigarette, Tobacco and Alcoholic Beverages Taxes 5.0% Corporation Franchise Tax 14.7% Sales Tax 52.0% Motor Vehicle Sales and Rental Taxes 8.4% Motor Fuels Tax 7. 7% Oil and Natural Gas Production Taxes 6.3% TOTAL= $81,211.2 MILLION WHERE YOUR STATE TAX DOLLAR GOES 2008-09 BIENNIUM Regulatory 0.3% Business and Economic _ _ ___, 2.1% Development 6.4% Natural Resources 0.9% --------...r Public Safety and - - - - - - - / Criminal Justice 8.8% The Judiciary 0.5% TOTAL= $81,211.2 MILLION NorE: Percentages calculated based on constitutionally and statutorily dedicated tax revenues and appropriations in the 2008-09 General Appropriations Act, as modified by other legislation. SouRcEs: Legislative Budget Board; Comptroller of Public Accounts. TEXAS FACT BOOK REVENUE 33 SPENDING STATE GOVERNMENT EXPENDITURES PER CAPITA 15 MOST POPULOUS STATES IN MILLIONS 2005 50-STATE STATE EXPENDITURES RANKING STATE PER CAPITA 4 New York $7,082 9 Massachusetts 5,911 11 California 5,802 14 New Jersey 5,657 19 Ohio 5,279 20 Washington 5,254 23 Michigan 5,090 24 Pennsylvania 5,065 32 North Carolina 4,553 36 Illinois 4,361 37 Virginia 4,335 40 Indiana 4,221 47 Florida 3,963 49 Georgia 3,702 50 TEXAS 3,549 UNITED STATES $4,959 TEXAS AS% OF UNITED STATES 71.6% SouRcE: U.S. Census Bureau. ALL FUNDS APPROPRIATION TOP 15 TEXAS AGENCIES IN MILLIONS 2008-09 RANKING AGENCY APPROPRIATION Texas Education Agency $50,257.9 Health and Human Services Commission 31,507.7 Department of Transportation 16,919.0 Department of Aging and Disability Services 11,643.6 Department of Criminal Justice 5,887.5 Department of State Health Services 5,275.7 Teacher Retirement System 3,567.2 Employees Retirement System 3,100.1 Department of Family and Protective Services 2,560.3 Texas Workforce Commission 2,151.6 Department of Public Safety 1,642.5 Department of Assistive and Rehabilitative Services 1,161.6 Commission on Environmental Quality 1,069.9 Office of the Attorney General 982.9 Trusteed Programs within the Office of the Governor 922.6 NorE: Institutions of higher education and fiscal programs for the Comptroller of Public Accounts are excluded. SouRcE: Legislative Budget Board. 42 SPENDING TEXAS FACT BOOK SPENDING ALL FUNDS 2008-09 BIENNIAL BUDGET The Legislature 0.2% General Provisions 0.2% Regulatory 0.5% --,11 General Government Business and Economic-----~~--.-.... 2.4% Development 12.2% Natural Resources 1.9% Public Safety and Criminal Justice 6.2% Agencies of Education 44.4% TOTAL= $167,787.2 MILLION IN MILLIONS 2006-07 2008-09 BIENNIAL % FUNCTION BIENNIUM 1 BIENNIUM 2 CHANGE CHANGE General Government $3,622.1 $4,021.6 $399.4 11.0 Health and Human Services 49,116.9 52,966.0 3,849.0 7.8 Agencies of Education 59,206.5 74,536.7 15,330.2 25.9 Public Education 3 40,548.2 53,463.7 12,915.5 31.9 Higher Education 18,658.3 21,073.0 2,414.7 12.9 The Judiciary 541.5 598.4 56.9 10.5 Public Safety and Criminal Justice• 9,940.9 10,435.9 494.9 5.0 Natural Resources• 2,320.7 3,222.2 901.5 38.8 Business and Economic Development 19,412.5 20,513.8 1,101.3 5.7 Regulatory 562.9 762.3 199.4 35.4 General Provisions 0.0 404.6 404.6 NA The Legislature 335.3 326.0 (9.3) (2.8) TOTAL, ALL FUNCTIONS $145,059.4 $167,787.2 $22,727.8 15.7 1 Reflects provisions in House Bill15, Eightieth Legislature, 2007, relating to supplemental appropriations. 2 Reflects provisions in House Bill15, Eightieth Legislature, 2007, relating to supplemental appropriations; other enacted legislation affecting appropriations; certain appropriation adjustments made in Article IX of the 2008-09 General Appropriations Act (GAA); and/or the Governor's vetoes. In addition to amounts indicated, Article IX, Section 19.62 of the 2008-09 GAA provides for the transfer of appropriations to agencies for a salary increase for certain state employees. 3 Reflects provisions in House Bill 2, Eightieth Legislature, 2007, relating to appropriations for school district property tax rate reductions. 4 1n addition to amounts indicated, Article IX, Section 19.61 of the 2008-09 GAA provides for Salary Schedule C pay raises for commissioned peace officers. NoTEs: Article totals exclude interagency contracts. Biennial change and percentage change have been calculated on actual amounts; table and figure amounts may not add due to rounding. SouRcE: Legislative Budget Board. 46 SPENDING TEXAS FACT BOOK SPENDING FEDERAL FUNDS 2008-09 BIENNIAL BUDGET General Provisions 0.1% Regulatory <0.1%----, Natural Public Safety and -------J~~"........~ Criminal Justice 1.1% The Judiciary <0.1% TOTAL = $50,963.0 MILLION IN MILLIONS 2006-07 2008-09 BIENNIAL % FUNCTION BIENNIUM 1 BIENNIUMZ CHANGE CHANGE General Government $881.5 $699.1 $(182.4) (20.7) Health and Human Services 29,197.6 31,062.3 1,864.8 6.4 Agencies of Education 8,651.0 8,831.6 180.6 2.1 Public Education 8,318.0 8,494.7 176.7 2.1 Higher Education 333.1 337.0 3.9 1.2 The Judiciary 5.4 2.9 (2.5) (46.6) Public Safety and Criminal Justice3 1,327.4 578.7 (748.7) (56.4) Natural Resources3 328.0 850.8 522.8 159.4 Business and Economic Development 8,798.5 8,858.7 60.2 0.7 Regulatory 5.4 4.5 (0.9) (17.2) General Provisions 0.0 74.4 74.4 NA The Legislature 0.0 0.0 0.0 NA TOTAL, ALL FUNCTIONS $49,194.8 $50,963.0 $1,768.3 3.6 1 Reflects provisions in House Bill15, Eightieth Legislature, 2007, relating to supplemental appropriations. 2 Reflects provisions in House Bill15, Eightieth Legislature, 2007, relating to supplemental appropriations; other enacted legislation affecting appropriations; certain appropriation adjustments made in Article IX of the 2008-09 General Appropriations Act (GAA); and/or the Governor's vetoes. In addition to amounts indicated, Article IX, Section 19.62 of the 2008-09 GAA provides for the transfer of appropriations to agencies for a salary increase for certain state employees. 3 ln addition to amounts indicated, Article IX, Section 19.61 of the 2008-09 GAA provides for Salary Schedule C pay raises for commissioned peace officers. NorEs: Article totals exclude interagency contracts. Biennial change and percentage change have been calculated on actual amounts; table and figure amounts may not add due to rounding. SouRcE: Legislative Budget Board. TEXAS FACT BOOK SPENDING 49 PUBLIC EDUCATION ALL FUNDS FULL-TIME- 2008-09 APPROPRIATIONS EQUIVALENT POSITIONS IN MILLIONS General Revenue- Dedicated $96.8 2004 2005 2006 2007 2008 2009 111111111111 Actual c::iil!il Appropriated --Cap TOTAL= $53,463.7 MILLION 2008-09 FUNDING HIGHLIGHTS Public Education appropriations for the 2008-09 biennium increased from the 2006-07 biennium by $12,915.5 million, or 31.9 percent, in All Funds. Appropriations for the 2008-09 biennium include $12.0 billion in new funding for additional school district property tax relief and $237.5 million in new funding for school facilities. Appropriations for the 2008-09 biennium also provide $68.3 million to the School for the Blind and Visually Impaired to fund major construction and renovation projects on its 92-year-old Austin campus. Appropriations for the 2008-09 biennium provide $3.6 billion to the Teacher Retirement System (TRS) to support retirement and insurance benefits for TRS-covered employees. In addition, the Eightieth Legislature authorized a one-time benefit increase ("13th check") for TRS retirees to be paid in January 2008 from the TRS Retirement Fund. SELECTED FACTS Public education funding will support the second largest school-age population in the country, with an estimated 4.6 million students in the public school system. Students are served in 1,037 school districts, 7, 729 regular campuses, and 332 charter school campuses across the state. In the 2001-02 school year, Hispanics surpassed Anglos as the largest ethnic group enrolled in Texas public schools. In the 2006-07 school year, Hispanic students comprised 46 percent of enrollment compared to 36 percent for Anglos. The number of Anglo students enrolled in public schools began declining in the 1998-99 school year and has declined each year since. African American students represented 14 percent of all students, with Asian students and other ethnic groups rounding out the remaining 4 percent. In the 2008-09 biennium, $14.2 billion in state aid for property tax relief will enable school districts to lower their property tax rates by one-third from the rate adopted in the 2005-06 school year. TEXAS FACT BOOK SUMMARY OF STATE FUNCTIONAL AREAS 53 PAMPA lSD PROPOSED TEACHER HIRING SCHEDULE 2008-2009 YREXP 187 DAY 08/31/08 BACHELOR'S DEGREE MASTER'S DEGREE 34,500 +750 34,800 +750 35,400 +750 35,600 +750 35,800 +750 36,000 +750 36,500 +750 37,100 +750 37,700 +750 38,400 +750 39,100 +750 39,900 +750 40,630 +750 41,350 +750 42,070 +750 42,840 +750 43,560 +750 44,280 +750 44,950 +750 45,690 +750 46,360 +750 46,980 +750 47,410 +750 47,990 +750 48,530 +750 48,890 +750 49,040 +750 49,170 +750 49,320 +750 49,480 +750 49,630 +750 EXHIBIT 5 Teacher Salary Schedule Pampa lSD 2009-10 2009-10 Years of Continuing Years Adopted Experience Teacher Exp New Hire 8-31-09 Schedule 8-31-09 Schedule 0 $37,800 0 $37,800 $37,900 1 $37,900 $38,100 2 $38,100 $38,300 3 $38,300 $38,500 4 $38,500 $38,700 5 $38,700 $38,900 6 $38,900 $39,400 7 $39,400 $40,000 8 $40,000 $40,600 9 $40,600 $41,300 10 $41,300 $41,700 11 $41,700 $42,500 12 $42,500 $43,230 13 $43,230 $43,950 14 $43,950 $44,670 15 $44,670 $45,440 16 $45,440 $46,160 17 $46,160 $46,880 18 $46,880 $47,550 19 $47,550 $48,290 20 $48,290 $48,710 21 $48,710 $49,080 22 $49,080 $49,510 23 $49,510 $50,090 24 $50,090 $50,630 25 $50,630 $50,990 26 $50,990 $51,140 27 $51,140 $51,270 28 $51,270 $51,420 29 $51,420 $51,580 30+ $51,580 $51,730 $51,880 $52,040 $52,160 $52,270 $52,340 $52,500 $52,650 $52,800 $52,960 $53,110 $53,260 PAMPA INDEPENDENT SCHOOL DISTRICT TEACHER COMPENSATION FISCAL YEAR 2010-2011 Newly hired teaching professionals will earn between $40,000 and $52,420 depending on their creditible years of experience. Returning teachers will receive an increase of $1,000 above their 2009-2010 salary. The average teacher pay will be $44,384. These salaries represent a 2.13% increase on the midpoint of all teaching positions. This pay increase represents an increase of $400,000 to the 2010-2011 budget. Approved 6/30/2010 Teachers with the same years of experience will be paid the same salary, whether they are returning or new to the district. PAMPA ISO CERTIFIED TEACHER PAY SCHEDULE **The amount Pampa lSD pays remains at $225. 216 165 J CAUSE NO. 35621 REBECCA TERRELL and § IN THE 223R 0 DISTRICT COURT CHANDRASHEKHARTHANEDAR § '~ '"" C":J C) § ' ·~ Plaintiffs, § C:> ---· (f> )> '"" c_ :::rJ l> en ::-.: c= -< § :::-~ ~;~·~ PLAINTIFFS' FIRST SUPPLEMENTAL PETITION TO THE HONORABLE JUDGE OF THE COURT: Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar hereby file their first supplemental petition pursuant to Rule 80 of the Texas Rules of Civil Procedure (TRCP) and would respectfully show the Court as follows: 1. Plaintiffs' Motion for Leave to File Plaintiffs' First Supplemental Petition is adopted and incorporated by reference as if set forth verbatim herein. 2. Plaintiffs' original petition in this case was filed on May 29, 2009 which is adopted and incorporated by reference as if set forth verbatim herein. 3. Plaintiffs have a right to supplement their pleadings per TRCP 80. See Texas Assoc. of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex. 1993). 4. Plaintiffs rely on the following exhibits which are adopted and incorporated as if set forth verbatim herein. Exhibit 1: Supplemental Affidavit of Rebecca Terrell and Chandrashekhar Thanedar (Attached). Exhibit 2: Defendant's salary schedules and information for years 2008-2009, 2009-2010, 2010-2011 and health insurance premium information for Year 2011-2012 (Attached). Exhibit 3: Defendant's purported BoardBook service agreement for 2007 (Attached). 5. Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar (spouse) are currently Texas residents, citizens, and taxpayers and have been so continuously for more than 12 years. Plaintiff Terrell was a first year beginning teacher teaching three subjects at the Pampa High School, Pampa, Texas in 2008-2009 teaching U. S. History, World History, and World Geography. PISD gets a large amount of state taxpayer funding, more than $12.5 million in 2008-2009, from the State of Texas. As citizens, taxpayers, and residents of the State of Texas for more than 12 years, we are concerned about the operations of Pampa Independent School District (PISD), its funding and use of State of Texas taxpayers' money, and about PISD's violations of the Texas Open Meetings Act, (TOMA), Gov't Code Ch. 551. We are interested in and concerned about the openness, integrity, full disclosures, and full and honest compliance with Texas Constitution and with TOMA and other laws by all Texas Government entities and their administrators and employees, and in particular by PISD, its Board of Trustees, its superintendent, and its employees and administrators. Plaintiff Terrell is interested in and intends to resume teaching at PISD upon reinstatement, upon order of the court. Plaintiff Thanedar as spouse is interested in Terrell's reinstatement and resumption of teaching career at PISD. 6. Plaintiff Terrell's salary as a teacher for the school year 2008-2009 was $34,500 and PISD further provided plaintiff Terrell benefits including health insurance, life insurance, holidays, sick and vacation time, and employer contributions to retirement benefits. PISD's benefits amount to about 33% of Plaintiff Terrell's salary. See Exhibits 1-2. 7. As a direct and proximate result of defendant's action terminating plaintiff Terrell's teaching contract done in violation of TOMA, plaintiff Terrell has suffered damages due to lost Plaintiffs' First Supplemental Petition Cause No. 35621 Page 2 of5 back wages and benefits for the years 2009-2010, 2010-2011, and 2011-2012 and continuing, currently estimated at more than $155,000 and continuing. 8. Plaintiffs have spent more than 1,500 hours on prosecuting this case against PISD since the middle of May 2009 up to the filing date of this supplemental petition (Exhibit 1) which is relevant in calculating part of special damages in this case - hours spent multiplied by hourly rate. It is plaintiffs' position that special damages are warranted here due to defendant PISD's conduct and the nature and extent of persistent violations for 2008-2009. 9. It is plaintiffs' position that PISD did not have BoardBook service for the purpose of public viewing of PISD's website internet notices required under TOMA §551.056(b) for the period in question from August 13, 2008 to May 19, 2009. Exhibit 3. Further it is plaintiffs' position that PISD did not have BoardBook service for the purpose of public viewing ofPISD's website internet notices required under TOMA §551.056(b) for the period from January 15,2009 to May 19, 2009 - a period for which PISD claims good faith exception under TOMA §551.056(d). Exhibit 3. Upon opinion and order of the Attorney General of Texas, defendant produced a purported BoardBook service agreement dated October 12, 2007 (without evidence that it was executed). Exhibit 3. Defendant produced no executed BoardBook agreements and no evidence whatsoever ofBoardBook service for subsequent years- 2008-2009 and 2009-2010. DeJendant did not pay the first year license fee for BoardBook service for 2007-2008 or for any subsequent years e.g. 2008-2009 as a result did not have BoardBook service for the purpose of public viewing of PISD's website internet notices of Board meetings from 8/13/2008 to 5/19/2009. Defendant has refused and failed to produce any evidence of payment for BoardBook service either for the purported 2007 BoardBook service agreement or for subsequent years- 2008-2009 and 2009-2010. Plaintiffs' First Supplemental Petition Cause No. 35621 Page 3 of5 BoardBook service is a software marketed by Texas Association of School Boards, Inc. (a trade organization) to its members such as PISD in assisting PISD to display its website internet notices of Board meetings for public viewing on BoardBook's website in Adobe Systems Inc.'s (Adobe) Portable Document Format or "PDF." Adobe's PDF format shows document properties of PISD's website notices such as when the board meeting notices were created i.e. brought into existence in PDF format for public viewing or modified i.e. changed, thereafter. Document properties of defendant's website notices on BoardBook for 8/13/2008 to 5/19/2009 show to have been untimely created in May 2009 after PISD was informed of the failure to comply with TOMA §551.056(b) by plaintiffs. Said notices did not "appear" on PISD website (or BoardBook's website) timely for prescribed time (instead "appearing" days, weeks or months after the meetings in question were held) after 5/19/2009. PISD failed to provide evidence of timely creation, posting, and appearance of its website internet notices for public viewing for the period in question- 8/13/2008 to 5/19/2009. PISD's good faith defense of "severance of link to BoardBook" for the period 1/2009 to 5/19/2009 is a subterfuge and made in bad faith. Supplemental Prayer FOR THESE REASONS, plaintiffs respectfully request that plaintiffs' prayer in their original petition should be granted in its entirety and further plaintiffs request as supplemental prayer that PISD's action terminating Terrell's employment contract be voided, PISD be ordered to reinstate Terrell, and with reinstatement of Terrell as teacher, PISD be ordered to pay plaintiff Rebecca Terrell damages in the form ofback wages and benefits for the school years 2009-2010, 2010-2011, 2011-2012, and continuing up to and until the time PISD fully reinstates Terrell as classroom teacher (currently, back pay and benefits calculated at about $155,000 and Plaintiffs' First Supplemental Petition Cause No. 35621 Page 4 of5 Rebecca Terrell Cl3~~~ Chandrashekhar Thanedar Plaintiffs 7618 Citadel Peak Converse, Texas 78109 (956) 445-3107 CERTIFICATE OF SERVICE The undersigned certify that a true and correct copy of the foregoing document has been served upon the following by facsimile and USPS certified mail on the 11th day of June, 2012 as follows: W. Wade Arnold, Andrea Slater Gulley, Underwood Law Firm, 500 S. Taylor Street, Suite 1200, LB 233, Amarillo, Texas 79101-2446. Fax: (806) 349-9474 Rebecca Terrell Chandrashekhar Thanedar Plaintiffs' First Supplemental Petition Cause No. 35621 Page 5 of5 STATE OF TEXAS § § § SUPPLEMENTAL AFFIDAVIT OF REBECCA TERRELL AND CHANDRASHEKHARTHANEDAR BEFORE ME, the undersigned authority, on June 8, 2012 personally appeared Rebecca Terrell and Chandrashekhar Thanedar, and after being duly sworn by me, stated under oath the following: "Our names are Rebecca Terrell and Chandrashekhar Thanedar. We are plaintiffs in Cause No. 35621 against defendant Pampa Independent School District (PISD or Pampa ISO) in the 223rd District Court in Gray county Texas. We are over the age of majority. We are mentally, physically and otherwise competent to make this sworn declaration. We are not legally disqualified from making this affidavit." "We have personal knowledge ofthe facts stated in Plaintiffs' First Supplemental Petition and Plaintiffs' Objections and Response to Defendant's Motion to Dismiss for Lack of Standing (Objections and Response) and the facts are true and correct. We affirm that the exhibits attached to Plaintiffs' First Supplemental Petition and Objections and Response are true and correct copies of the record or originals. We have personal knowledge of the facts stated in this affidavit, and they are true and correct." "We are currently residents, citizens, and taxpayers of Texas and have been so continuously for more than 12 years. I (Terrell) was a first year beginning teacher teaching three subjects at the Pampa High School, Pampa, Texas in 2008-2009 teaching U. S. History, World History, and World Geography. As citizens, taxpayers, and residents of the State of Texas for more than 12 years, we are concerned about the operations of Pampa ISO, its funding and use of State of Texas taxpayers' money and about Pampa ISD's violations ofthe Texas Open Meetings Act (TOMA). We are interested in and concerned about the openness, integrity, full disclosures, and full and honest compliance with Texas Constitution and with TOMA and other laws by all Texas Government entities and their administrators and employees, and in particular by PISD, its Board of Trustees, its superintendent, and its employees and administrators." "I (Terrell) affirm that I am interested in and have requested reinstatement, back pay and benefits as part of the remedies in this suit and intend to resume teaching at PISD upon reinstatement, upon order of the court. I (Thanedar) affirm that as spouse I am interested in Terrell's reinstatement and resumption of teaching career at PISD." "My (Terrell) salary for the school year 2008-2009 was $34,500 and PISD further provided me (Terrell) benefits including holiday pay, sick pay, vacation pay, health insurance, life insurance, and employer contributions to retirement benefits. We have spent more than 1,500 hours on prosecuting the above case against PISD since the middle of May 2009." Exhibit 1 [)~~ Rebecca Terrell Chandrashekhar Thanedar SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the _ _::_3_ __ day of June, 2012. the State of Texas PETE GARCIA HERNANDEZ JR My Commission Expires October 14. 2015 (Printed Name ofNotary) Supplemental Affidavit of Rebecca Terrell Cause No. 35621 2 of2 and Chandrashekhar Thanedar 223 rct District Court Exhibit 2 0 $37,800 0 $37,800 $37,900 1 $37,900 $38,100 2 $38,100 $38,300 3 $38,300 $38,500 4 $38,500 $38,700 5 $38,700 $38,900 6 $38,900 $39,400 7 $39,400 $40,000 8 $40,000 $40,600 9 $40,600 $41,300 10 $41,300 $41,700 11 $41,700 $42,500 12 $42,500 $43,230 13 $43,230 $43,950 14 $43,950 $44,670 15 $44,670 $45,440 16 $45,440 $46,160 17 $46,160 $46,880 18 $46,880 $47,550 19 $47,550 $48,290 20 $48,290 $48,710 21 $48,710 $49,080 22 $49,080 $49,510 23 $49,510 $50,090 24 $50,090 $50,630 25 $50,630 $50,990 26 $50,990 $51,140 27 $51,140 $51,270 28 $51,270 $51,420 29 $51,420 $51,580 30+ $51,580 $51,730 $51,880 $52,040 $52,160 $52,270 $52,340 $52,500 $52,650 $52,800 $52,960 $53,110 $53,260 PAMPA INDEPENDENT SCHOOL DISTRICT TEACHER COMPENSATION FISCAL YEAR 2010-2011 Newly hired teaching professionals will earn between $40,000 and $52,420 depending on their creditible years of experience. 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I'L .. --·~---- EXHIBIT II Exhibit 3 177 ...,1 'I l''j• ~I ~ t1 'il'iUIJillil~~!t __ lf1 _ ial.~lrl ~ lfa~ t'i'il .i . r jliiJJ I ! liJf Ql_ •-- ~L II :f ' ... ll;.r ~~Jil'iflliiiiifi:l '"i~~ :11:~ .fl! ;Jit:iJ ~ 1\) ~ \. . ~ I f Ill J II I' iII I. J I c· IIJlll' II~' I' I~' 1111; t'•f!t' 11UUUit.l~' 11!111li' • . II~a u~f ~~! !f rhL. I !.~d h f2'~r~l~~ 11(~1 ,uJII a tr' 178 'lll ~~~ r .. "1 :-er~ ~ 11. 18JJ'~IJ 11 ,-"UIJ.I} ff, (I ~~~~!11 •1 ;,,, I ~ ,;u: IJ!i ·t ~~~~~~-,· ........... ~~~~~~~~~----- I ·'f>a f"':J. Haen;sc,h I : :: ~*----~--~-~---------------- __T__________ u. ______S__u~ae~~~·-~-~~-n~d-~ ~---~~o~~~e~a _____________ OQO-ct04 ~~~----~--------------- - • PX NO. 35,621 REBECCA TERRELL and § IN THE 223ro DISTRICT COURT CHANDRASHEKHAR THA..NEDAR § tD ~ § -< = ._. .:.....> G") ::0 Plaintiffs, § o en I )> -> en ::;z:; c::::> C":J -< § -; 0 --i (") ~ ::.u v. § IN AND FOR ;::; )> ~ C> (") c: :::! § -: co :-.. ::: rc- -I IT! PAMPA INDEPENDENT SCHOOL § I (J - r-- :c:; rri ;;,-·; :::::> .3 :-<O i:..~1 --l DISTRICT § I ;J Al l"iJ c.o rr1 § -a _,.. , -I -l >< c.-:: U1 )> Defendant § GRAY COUNTY, TE~ -C (fJ DEFENDANT'S A..~SWERS TO PLAINTIFFS' INTERROGATORIES TO: Plaintiffs, Rebecca Terrell and Chandrashekb.ar Thanedar, 1000 North Wells St, Pampa, Texas 79065. COMES NOW Defendant, PAJ.VfPA INDEPENDTh1T SCHOOL DISTRICT, (hereinafter "Defendant'') in the above-styled and numbered cause, and, pursuant to the Texas Rules of Civil Procedure, makes the following Answers to Plaintiffs' Interrogatories to Defendant. Respectfully submitted, W. Wade A.mold State Bar No. 00783561 Andrea Slater Gulley State Bar No. 24045994 UNDERWOOD, WILSON, BERRY, STEThT & JOHNSON, P.C. P.O. Box 9158 Am.arillo, Texas 79105-9158 806-376-5613-FAX: 806-349-9471 ATTORNEYS FOR DEFENDAl"\IT EXHIBIT PX Defendant's Answers to Plaintiffs' Interrogatories -Page I A g #484036 CERTIF1CATE OF SERVICE I hereby certify that on thct;{.3.j day of February, 2010 a true and correct copy of the above and foregoing document was delivered via certified mail to and properly addressed as follows: Rebecca Terrell Chandrashekhar Thanedar 1000 N. Wells Street Pampa, Texas 79065. Defendant's AusWers to P~ Inrerrogatories- Page 2 #484036 lNTERROGATORIES INTERROGATORY NO. 1: Identify your Board of Trustees' Meetings and their dates from August 13, 2008 through May 19, 2009 for which you claim that you complied with the internet posting requirement of Sec. 551.056 of the Texas Open Meetings Act (TOMA or the Act), Texas Gov't Code Ch. 551. ANSWER: Defendant complied with the requirements or exceptions thereof of the Texas Open Meetings Act ("TOMA") with respect to all of the Board Meetings inquired about in this Interrogatory. INTERROGATORY NO. 2: Identify your Board of Trustees' Meetings and their dates from August 13, 2008 through May 19, 2009 for which you did not timely post the internet notices of board meetings on your website according to the requirement of TOMA. ANSWER: Defendant complied with the requirements or exceptions thereof of the Texas Open Meetings Act with respect to all of the Board Meetings inquired about in this Interrogatory. INTERROGATORY NO. 3: Identify the names and the positions of aU persons involved in posting the intern.et notices ofboard meetings on your website. ANSWER: Karen Linder. .INTERROGATORY NO. 4: Descnoe the steps or the process you followed to ensure that the internet notices of board meetings you claim you posted on your website between August 13, 2008 and May 19, 2009 were actually available for public viewing on your wet>stte. ANSWER: Defendant objects to this Interrogatory for the reason that it is overly · broad and therefore beyond the scope of discovery. Subject to this objection Defendant would state that Karen Linder would periodically check that status of the postings after first posting the Notices on the BoardBook which ~ould in tum send through an internet link the Notices to the District Website. Sometime in January of 2009 the District Technology Services Department updated the website but left off the link between the Boardbook and District Website. This technical problem was not discovered and corrected until approximately May 2009. Karen Linder was responSI"ble for creating the internet board notices through the boardbook program. Once created on the boardbook template the Notices were delivered to the District Website via a link. This link worked properly from October 2007 until approximately January 2009 when the District Website was updated. Unbeknownst to anyone at the District, when the District Website was updated the link with Boardbook was terminated. Defendant's Answers to Plaintiffs' l.ote1TOgatorfs-Page 3 #484036 INTERROGATORY NO. 5: State all technical problems that you believe caused your failure to comply with the legal requirement of posting internet notices of your board meetings on your website per TOMA. ANSWER: See Answer to Interrogatory No. 4. INTERROGATORY NO. 6: State all reasons why you believe the technical problem(s) identified in Interrogatory No. 5 herein above were beyond your control ANSWER: See Answer to Interrogatory No. 4. INTERROGATORY NO. 7: State when and how you became aware of the technical problem(s) identified in Interrogatory No. S herein above. ANSWER: Defendant became aware when it was reported to Defendant by Plaintiffs herein that the notices were not online. INTERROGATORY NO. 8: Identify the names of the persons who were aware of the technical problem(s) identified in Interrogatory No. 5 herein above and of your efforts to resolve them between the time period August 13, 208 [sic] to May 19, 2009. ANSWER: Karen Linder. The problem was resolved when Ms. Linder reported it to Technology Services Department head Suzie Jameson who then determined that the former link between Boardbook and the District website had been severed. She then reestablished the link. INTERROGATORY NO. 9: A State the efforts you made to resolve the technical problem(s) identified in Interrogatory No. 5, herein above incluc:ling the names ofpersons involved in the efforts. B. State why you believe your efforts to resolve the technical problems identified in Interrogatory No. 5, herein above were in good faith. ANSWER: A See Answer to Interrogatory No. 8 above. B. Because the efforts were in good faith. INTERROGATORY N0.10: State when and how the technical problem(s) identified in Interrogatory No. 5 herein above were resolved. ANSWER: See Answers to Interrogatories 6 through 9. INTEBROGATORY NO. 11: State the educational qualifications and work experience ofpersons involved in posting internet notices on your website Defendant's ADswers to Plaintiffs' Interrogatories-Page4 #484036 ANSWER: Defendant objects to Interrogatory No. 11 for the reason that it is overly broad, unduly bmdensome and seeks the production of information which is not relevant and not calculated to lead to the production of any relevant information and is therefore beyond the scope of the Texas Rules of Civil Procedure. INTERROGATORY N0.11: State when and why the notice of the board meeting on 312612009 was revised and when was the revised notice posted or reposted on front door of your central administrative building including the date and time of such posting or reposting. ANSWER: There were no revisions to the Notice other than the date of reposting. The original notice for the meeting was posted on March 20, 2009. This notice went missing so it was reposted on March 23, 2009. The only urevision" to the original notice was the date of reposting. All other content of the Notice remained the same. The reposting occurred prior to 5 p.m. on March 23, 2009. INTERROGATORY N0.13: State when, including date and time, and on which page or area of your website was the intemet notice of the 3/2612009 board meeting posted in 72 hams prior to the 3126/2009 meeting. ANSWER: The notice for the 3/26/09 Board Meeting was properly posted on both March 20, 2009 and again on March 23, 2009 prior to 5 p.m. on the front door of the administrative building. Due to technical problems addressed in Interrogatories Nos. 4-9 the internet notice did not appear on the District Website. INTERROGATORY NO. 14: State how you verified that the internet posting identified in Interrogatory No. 12 herein above was available for public viewing on yom website for 72 hours before the beginning time of the 3/26/2009 meeting. ANSWER: See answer to Interrogatory No. 13 above. The internet posting for the 3/26/09 meeting did not appear on the District Website due to the technical problems addressed in answer to Interrogatories Nos. 4-9 above. Defmdant's AnswerS to PlalntiDS" Interrogatories-Page 5 it484036 ... VERJEICATION STATE OF TEXAS § § COUNTY OF.....,b.,._,_r.-..ov.,___ _ § BEFORE ME, the undersigned authority, on this day personally appeared Karen Linder, \<ayoo Li(l4t&- of Pampa Independent School District, known to me personally by presenting her driver's license, who being duly sworn on her oath deposed and said that she is duly qualified and authorized in all respects to make this affidavi~ that she bas read the above and foregoing Defendant's Answers to PlaintiftS' Interrogatories; and that every statement contained therein is within her knowledge and is true and correct. Karen Linder SUBSCRIBED A.1'1D SWORN TO BEFORE ME on the !/:? ~ day of February, 2010 to certify which \>"Jitness my hand and official seal. Notary Public in~d for The State of Texas l)efudant's AasWers to Plaintiffs' Imerrogaiories-Page 6 '#484036 Appendix 9 Defendant’s Responses to Plaintiffs’ Requests for Admissions (PX9) ..... NO. 35,621 REBECCA TERRELL and § IN THE 223ro DISTRICT COURT CHANDRASHEKH.AR THANEDAR § § Plaintiffs, § § 0 v. § IN AND FOR 0 c: - ,, § ~···i to ::;:::r -l rn PAMPA INDEPENDENT SCHOOL § :::::::> :-< 0 DISTRICT § ::3 --! c.o rtl § x c.n l> Defendant § ..J::: (J) DEFENDANT'S RESPONSES TO PLAINTIFFS' REQUESTS FOR ADMISSIONS TO: Plaintiffs, Rebecca Terrell and Chandrashekhar Thanedar, 1000 North Wells St., Pampa, Texas 79065. COMBS NOW Defendant, P.Al\1PA INDEPENDENT SCHOOL DISTRICT, (hereinafter ''Defendant") in the above-styled and numbered cause, and, pursuant to the Texas Rules of Civil Procedure, makes the following Responses to Plaintiffs' Requests for Admissions to Defendant. Respectfully submitted, W. Wade Arnold State Bar No. 00783561 Andrea Slater Gulley State Bar No. 24045994 ffi..1DERWOOD, WILSON, BERRY, STEIN & JOHNSON, P.C. P.O. Box 9158 Amarillo, Texas 79105-9158 806-376-5613 - FAX: 806-349-9471 By: V) I PX W. Wade Arnold 'I ATTORNEYS FOR DEFENDANT Defendant's Responses to Plaintiffs' Reques1S for Admissions- Page 1 #484041 .• I CERTIFICATE OF SERVICE I hereby certify that on th~~ day of February. 2010 a true and correct copy of the above and foregoing document was delivered via certified mail to and properly addressed as follows: Rebecca Terrell Chandrashekhar Thanedar 1000 N. Wells Street Pampa, Texas 79065. W. Wade Arnold Defendant's Responses to Plaintlff's' Requests for Admlssloos-Page 2 #484041 INTERROGATORIES REOUESTFORADMISSIONN0.1: Admit that you have a contract with. BoardBook since October 2007 for providing services in connection with posting internet notices of board meetings on your website. RESPONSE: Admit that Defendant has had a contract with BoardBook since 2007. Admit that the contract tangentially involves the posting of internet notices of board meetings. Denied as to anything else. REQUEST FOR ADMISSION NO. 2: Admit that you had a bulletin board in the lobby ofthe central administrative building from August 13, 2008 to May 31, 2009.. RESPONSE: Admit. REOUEST FOR ADMISSION NO. 3: Admit that you removed the bulletin board identified in Request for Admission No. 2, herein above from the central administrative building after the filing of this lawsuit RESPONSE: Admit that an enclosed bulletin board formerly located within the administrative building was relocated. to a spot immediately outside the front door of the building. Denied as to anything else. REQUEST FOR ADMISSION NO. 4: Admit that you placed a bulletin board outside of your central administrative building to post notices ofboard meetings after the filing of this lawsuit. RESPONSE: Admit that the bulletin board relocated outside of the front doors of the administrative building was used to post notica; ofboz:i.rd m~gs. Denied as to anything else. REQUEST FOR ADMISSION NO. 5: Adm.it that you posted notices of board meetings on the front door of the central administrative building for board meetings from August 13, 2008 to May 19, 2009. · RESPONSE: Admit. REQUEST FOR ADMISSION NO. 6: Admit that you have never posted notices of board meetings OJ.l a bulletin board in your central administrative building. RESPONSE: Defendant objects to this Request to the extent that it implies that board notices must be placed inside of a particular building in order to meet the requirements of TOMA. Otherwise, Admit. REOUESI FOR ADMISSION NO. 7: Admit that you have used the front door of the central admfuistrati.ve building to post notices of board meetings for the last 8 years. Defendant's Responses to Plaintiffs' Reques1I for Admlsslons-Page3 #484041 ·- RESPONSE: Admit. REQUEST FOR ADMISSION NO. 8: Admit that Karen Linder posted the notices of board meetings on the front door of the central administrative building for the last eight years. RESPONSE: Admit. REQUEST FOR ADMISSION NO. 9: Admit that Karen Linder was not designated nor authorized to post notices ofboard meetings by your board of trustees. RESPONSE: Defendant objects to Request for Admission No. 9 to the extent that it seems to imply that a school district board of trustees is req1llred to "designate or authorize" a person to post Board Meeting Notices under the TOMA. Subject to this objection, deny. REQUEST FOR ADMISSION N0.10: Admit that y0u posted the revised notice of your 3/26/2009 board meeting on the front door your central administrative building on 3/24/2009. . RESPONSE: Deny. REQUEST FOR ADMISSION N0.11: Admit that you did not post the notice for the 3/26/2009 board meeting on 3/20/2009. RESPONSE: Deny. REO!JEST FOR .ADMISSION NO.. 12: Admit that 3/26/09 board meeting notice was not on the front door after 5 p.m. on 3/2312009 and that you reposted it on 3/24/09. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 13: Admit that you did not verify that the internet notices were actually available for public viewing on your website from January I. 2009 to May IS, 2009. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 14: Admit that your board president did not cite the section ofthe Act under which you closed the board meeting on 3/26/2009. RESPONSE: Admit. REQUEST FOR AD1".IISSION NO. 15: Admit that you never identified ''Pampa, Texas" as «plaots" in yom board meeting notices before this lawsuit was filed. Defendant's Responses to PJalndffs' Requests for Admissions-Page 4 #484041 RESPONSE: Defendant objects to Request for Admission No. 15 to the extent that it incOITectly implies that TOMA requires that the name of the city in which the meeting is to take place is required. Admit that the words "Pampa, Texas" were not included in the Notices. REOUEST PORADl\fiSSION N0.16: Admit that your employee Ramiro Soto admitted ·to plaintiff Thanedar on 3/23/09 that there was no meeting notice on the front door on 3/223/09 [sic] at 5 p.m. and at 6 p.m. RESPONSE: Deny. REQUEST FOR ADMISSION N0.17: Admit that you post the meeting notices of board meetings in Adobe "PDF' form.at on your website. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 18: Admit that the Adobe ''PDF' format of all notices of board meetings from August 13, 2008 to May 19, 2009 were created and posted in May 2009 as follows: 1. Web notices for 8/13/08, 8/21/08, 914108, 9/18/08, 10/2/08 10/9/08, and 10/23/08 were created on May 5/11/09 [sic] and posted on the website on 5/19/09 2. Web notice 11/6/08 was created on May 515109 [sic] and posted on the website on 5119/09 3. Web notices; 11/20/08 and 12/4108 were created on May 5/7/09 [sic] and posted on the website on 5/19/09 4. Web notices 12/18/08, 1/15/09, 2/15/09, 2/19/09, 3112/09, 3/26/09, 412109, 4/16/09, 4/21/09, and 4/23/09 were crated on May 5/8/09 [sic] and posted on the website on 5/19/09 5. Web notice 517/09 was created on May 5/12/09 [sic] and posted on the website on 5/19/09 6. Web notice 5/19/09 was created on May 5/18/09 [sic] and posted on the website on 5/19/09 RESPONSE: Deny. REQUEST FOR .ADMISSION NO. 19: . Admit that :from _A~aust 13> 2008 to May 19, 2009 you held the following 22 board meetings on the followmg dates: Defendant's Responses to Plaintiffs' Requests for Admissions- Page S #484041 Board Meetings on 8/13/08, 8/21/08, 9/4/08, 9/18/08, 1012/08 1019108, 10/23/08, 11/6/08, 11/20/08, 12/4/08, 12/18/08, 1/15/09, 2/15/09, 2/19/09, 3/12/09, 3/26/09, 412109, 4116109, 4/21109, 4/23/09, 517109, and 5/19/09. RESPONSE: Admit REQUEST FOR ADMISSION NO. 20: Admit that you posted the meeting notice for 5/19/2009 on the front door of the central administrative building on 5/18/2009. RESPONSE: Deny. REQUEST FOR ADMISSION NO. ll: Admit that you did not view your website to verify :from August 2008 to May 14, 2009 to check whether the board meeting notices were in fact on your website and available for public viewing. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 22: Admit that intemet website notices of your board meetings were not on your website from Jan. 1, 2009-May 15, 2009. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 23: Admit that Karen Linder admitted to plaintiff Thanedar on May 15, 2009 that the internet notices of board meetings were not posted on your website for several months. RESPONSE: Deny. REQUEST FOR APMISSION NO. 24: Admit that you did not post the internet notice for 3/26/2009 board meeting on your website prior to May 2009. RESPONSE: Deny. REQUEST FOR APMISSION NO. 25: Admit that you did not post internet website notices of board meetings that took place from August 13, 2008 to December 2008 for public viewing until May 2009. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 26: Admit that internet website notices were not on your website for public viewing 72 hours prior to the board meetings for the period from August 13, 2008 to May 18, 2009. RESPONSE: Deny. Defendant's Responses to Plaintiff's' Requests for Admlsslons-Page 6 #484041 I • REQUEST FOR ADMISSION NO. 27: Admit that you first became aware of your failure to post notices of board meetings on your website after pJaintiff Thanedar submitted Open Records Request to you for notices ofboard meetings in April 2009. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 28: Admit that you posted internet notices for the first time on May 19, 2009 for board meetings from October 2007 to May 19, 2009 on your website. RESPONSE: Deny. REOUEST FOR ADMISSION NO. 29: Admit that there was no technical problem beyond your control that prevented you ftom posting intemet notices on your website from August 13, 2008 to May 19, 2009. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 30: Admit you were closed from March 16- March 20, 2009 for "Sp.ring Break." RESPONSE: Deny. REQUEST FOR ADMISSION NO. 31: Admit that ~ Linder does not have a college degree or work experience in computer technology. RESPONSE: Defendant objects to Requem: for Admission No. 31 for the reason that it is harassing and seeks the production of information which is not relevant and not calculated to lead to the prodl:JCtion of any relevant. infonnation and is therefore _beyond the scope ofthe Texas Rules of Civil Procedure. REQUEST FOR ADMISSION NO. 32: Admit that your Information Technology (IT) department creates the Adobe "PDF' formats of the notices of board meetings to be posted on your website. RESPONSE: Deny. REOUEST FOR ADMISSION NO. 33: Admit that the Adobe "'PDF' format of your notices ofboard meetings are created using the "Activepdf' software. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 34: Admit that the Adobe ""PDF' formats of the internet notices of your board meetings from Aug. 13, 2008 to May 19. 2009 were created and posted on your website in the month ofMay 2009. Def'eadaat's Responses to PJaintilJs' Requests for .A.dmlslions-Page 7 #484041 ..• RESPONSE: Deny. REQUEST FOR ADMISSION NO. 35: Admit that your website was available for public viewing on March 27, 2009 even though you were closed dne to inclement weather caused by snow storm. RESPONSE: Admit. Defendant's Responses 1o Phdntiffs' Reques1S for Admfalons-Page 8 #484041 Appendix 10 Defendant’s Answers to Plaintiffs’ Second Set of Interrogatories, Requests for Admissions and Request for Production (PX10) NO. 35,621 REBECCA TERRELL and § IN TIIB 223ni DISTRICT &;,QURT r-..:i CHANDRASHEKHAR THANEDAR § -< = ....... G") c....l ::0 § = CJ l> -< Plaintiffs, § --! ,._. (= .,0 !J v. § c:> -r~ § JN Al'\lD FOR ~- --l rn § ::0 CERTIFI~TE OF SERVICE I hereby certify that on the£_ day of April, 2010 a true and correct copy of the above and foregoing document was delivered via certified mail to and properly addressed as follows: Rebecca Terrell Chandrashekhar Thanedar lOUO"N. Wells Street Pam.pa, Texas 79065. W. WadeAmold Defendant's Answers to PJaintiffs' Second Set of Interrogatories, ReqneSIS for Admissions and Request for Production -Page2 11491701 ::· . SECONDSETOFINTERROGATORIES, · REQUESTS FORADlVIISSIONS AND REQUEST FOR PRODUCTION INTERROGATORY N0.15: Identify your Board of Trustees• Meetings and their dates from August 13, 2008 through May 19, 2009 for which the intemet notices did not appear on your website and for which you claim good faith exception muler Texas Open Meetings Act (TOMA), Texas Gov't Code, Sec. 551.0S6(d) concerning technical problem beyond your control in posting internet notices. ANSWER: All required internet notices for the period August 13, 2008 through January 15, 2009 properly appeared on the website. Due to website changes on January 15, 2009 the link with Boardbook was severed. From January 15, 2009 through May 19, 2009 Karen Linder continued to create the notices in Boardbook and to send them for posting to the website. However, because of the severance of the link between the website and Boardbook brought on by the website changes on January 15, 2009 the notices were not posted to the website. This technical problem. was not discovered until May 2009 at which time it was immediately corrected. Defendant would also make reference to the emails between Karen Linder and Suzie Jameson which are attached to Defendant's responses to Plaintiffs First Requests for Production. INTERROGATORYN0.16: Identify the date or dates on which the internet notices of your board meetings appeared on your website and were actually available for public viewing for each ofthe board meetings from August 13, 2008 to May 19, 2009. ANSWER: August 13, 2008 through January 15, 2009. INTERROGATORYN0.17: Identify the document fonnat of the internet website notices of your board meetings posted on your website and the specific dates on which the internet notices were created for each of the board meetings from August 13, 2008 to May31,2009. . ANSWER: Defendant objects to Interrogatory No. 17 for the reason that the term '"format'' is not defined. Th.erefoi:e, Defendant is unable to properly respond. Subject to this objection_:pefendant would state that the internet notices are created using a form from Boardbook.:'Once the notice is created it is ·~eleased" to the District's webSite. -There no is. particular "fonnaf' of the notice. The notices for all of the meetings in question were created by Karen Linder more than 72 hours before each respective meeting. All of the notices were posted more than 72 hours before each respective meeting by Karen Linder except those meetings between January 15, 2009 and May 19, 2009. As explained in answer to Interrogatory No. 15 above these notices were created and thought to have been posted more than 72 hours before the meetings but due to the technical difficulty of having the link between Board.book and the website s~vered were not actually posted. INTERR.OGATORYN0.18: Explain in detail what specific :functions or services BoardBook provides to you concerning posting the intert1.et notices of your board Defendant's Answers to PJaintiffs' Second Set of IDtem>gatories, Requests for Admissions and Request for Production -Page 3 #491701 .. ·, meetings on your website and the manner in which Board.Book provides the said :functions or services to yau. ANSWER: Boardbook serves as a platform for creating and posting the internet notices. The notice is created in a fonn contained in Boardbook. Upon completion the notice is "releasedn to the website. There is a 1ink: between Boardbook and the website which upon release of the notice sends the notice for posting on the website. JNTERROGATORY NO. 19: Explain in detail the process of how the intemet website notices of your board meetings are created and posted to your website for public viewing and the roles of persons involved in this process. ANSWER: Defendant incozporates its answers to Interrogatory Nos. 15-18 above. Additionally, Defendant would respond that the only ''person involved" is Karen Linder. INTERROGATORY NO. 20: Identify all persons that you contend authorized or designated Karen Linder to sign the notices of board meetings from August 13, 2008 to May 19, 2009. ANSWER: Barry Haenisch with the authority of the School Board. INTERROGATORY NO. 21: Ex.plain all reasons in support of your contention that posting notices of board meetings on the front entrance door of your central administrative office building complies with the notice requirement for school districts to post notices on a Bulletin Board in the central administrative office per TOMA Sec. 551.051. .ANSWER: The posting of the Board Meeting Notices on the front door of the central building is; proper because it meets the provisions of Section 551.051 of aa.,,;nistrative the Texas Open Meetings Act. The notice was inside the bulleting and it was placed in the area for which the District posts many other bulletins and notices. INTERROGATORY NO. 22: Concerning the reposting of the notice for your 3/2612009 board meeting, descn'be in detail the date and time and how you became aware (e.g. who told you, and the date and time) that the previous notice dated 3/20/2009 of the said meeting was not on the front door of your central administrative building. .ANSWER: Karen Linder was informed by Plaintiff Thanedar that the notice which she had originally posted on March 20, 2009 for the March 26> 2009 meeting was now missing from the front door of the administrative building. Ms. Linder immediately reposted the notice on the front door. This was done on March 23> 2009 more than 72 hours before the March 26th meeting. INTERROGATORY NO. 23: Concerning your new website, explain how the link to the internet notices of the board meetings was severed or lost and the roles of all persons Defendant's Answers to Plain1iffs' Second Set oflnterragatorie.s, Requests for Admissions and Request for .Production - Page 4 #491701 . -. responsi'ble or involved in updating the link to the intern.et notices of board meetings on your website and the identify the date on which you changed over to a new website ANSWER: The link was severed because changes were made to the District website by Information Technology Department head Suzie Jameson in the regular comse of business. This technical problem was discovered on or about May 19, 2009 when the problem was brought to the attention of Karen Linder when she was told the notices for the meetings were not appearing on the website as they were supposed to. Ms. Linder contacted Ms. Jameson and asked her to look into the problem. Ms. Jameson quickly discovered the problem and corrected it. The website changes occurred on or about January 15~009. INT.EBROGATORY NO. 24: Authenticate each of the following documents in ExhibitB, specifically identified as B.l, B.3, B.S, B.7, B.9, B.11, B.13, B.15, B.17, B.19, B.21, B.23, B.25, B.27, B.29, B.31, B.33, B.35, B.37, B.39, B.41, B.43, B.45, B.47, B.49, B.51, B.53, B.SS, B.57, B.59, B.61, B.63, B.65, B.67, B.69, B.71, B.73, B.75, B.77, B.79, B.81, B.83, B.85, B.87, B.89, and B.91, of Plaintiffs' Motion for Summary Judgment filed and served on you in this case on June IS, 2009 as your intemet website notices of your board of trustees' meetings that appear on your website. ANSWER: Defendant objects to this Interrogatory for the reason that it is overly broad and unduly burdensome. Defendant :further objects for the reason that this Interrogatory seeks the production of information which is not relevant and not calculated to lead to the discovery of any relevant information and is therefure beyond the scope of the rules. Defendant further. objects to the extent that Plaintiffs do not give enough detail as to what they wish to have authenticated and therefore Defendant is unable to properly respond. Subject to the above objections and without waiving the same Defendant would respond as follows: Defendant authenticates that each of the documents identified in this · Interrogatory are in fact attached to Plaintiffs' Motion for Stunmary Judgment. Defendant cannot authenticate anything else because Defendant is unaware of the date(s) that each of these documents was printed out by PJaintifI. However, it would appear that the notices referenced in this Interrogatory are in fact duplicates of the actnal notices originally posted and placed on the website. INTERROGATORY NO. 25: Authenticate each of the following documents in Ex:1nl>it B, specific identified as B.2, B.4, B.6, B.8, B.10, B.12, B.14, B.16, B.18, B.20, B.22, B.24, B.26, B.28, B.30, B.32, B.34, B.36, B.38, B.40, B.42, B.44, B.46, B.48, B.50, B.52, B.54, B.56, B.58, B.60, B.62, B.64, B.66, B.68, B.70, B.72, B.74, B.76, B.78, B.80, B.82, B.84, B.86, B.88, jB.90, and B.92, of Plaintiffs' Motion for Summary . Judgment filed and served on you in this case on June 15, 2009 as the document property con.tamed in the respective internet website notices that appear on your website as noted in Inteuogatory No. 24 herein above. ANSWER: Defendant objects to this Interrogatory for the reason that it is overly broad and unduly burdensome. Defendant far.her objects for the reason that tbis Interrogatory seeks the production of iD:fo:anation which is not relevant and not calculated Defendant's Ans\\-ers to Plalotlffi' Second Set of Interrogatories, Requests for Admlsslous and Request for Production-Page 5 11491701 to lead to the discovery of any relevant information and is therefore beyond the scope of the rules. Defendant :further objects to the extent that Plaintiffs do not give enough detail as to what they wish to have authenticated and therefore Defendant is unable to properly respond. Subject to the above objections and without waiving the same Defendant would respond as follows: Defendant authenticates that each of the documents identified in this Interrogatory are in fact attached to Plaintiffs' Motion for Summary Judgment Defendant cannot authenticate anything else and in particular the "created" or "modified" times on each document as being the actual times that the notices in question were originally created and placed on the website through Board.book Whenever a notice is viewed through the "prepate/ed.if' function of Board.book, which is the manner in which Ms. Linder often views notice$, the create and modify dates and times change whether any actual changes are made. Defendant can authenticate that each of the notices above was ~riginally created and pc;istedthrouib Boardbook at least 72 hours before the_iespective ·~~etirig -~~~ n~ti.ced. · ·- INTERROGATORY NO. 26: Authenticate Exhibits C and D of Plaintiffs' Motion for Summary Judgment filed and served on you in this case on June 15, 2009 as the internet website notice (Exhibit C) and document properties (Exlnoit D) of the said notice for your board of trustees' meeting on 3/26/2009. ANSWER: Defendant objects to this Interrogatory for the reason that it is overly broad and unduly burdensome. Defendant .further objects for the reason that this Inteuogatory seeks the production of information which is not relevant and not calculated. to lead to the discovery of any relevant infonnation and is therefore beyond the scope of the rules. Defendant further objects to the extent that Plaintiffs do not give enough detail as to what they wish to have authenticated and therefore Defendant is llllable to properly respond. Subject to the above objections and without waiving the same Defendant would respond as follows: Defendant authenticates that each of the documents referenced in the Interrogatory above are in fact attached to Plaintiffs• Motion for Summary Judgment. Defendant would further respond that the March 26 notice attached as Exhibit C appears to be the one originally posted. The document properties attached as Exhibit D is not the original one that was created on Board.book and released to the website on or about March 20. 2009. INTERROGATORY NO. 27: Authenticate each of the following Exhibits E, F, G, H, I, J, K, and L of Plaintiffs' Motion for Summary Judgment filed and served on you in this case on June 15, 2009. ANSWER: Defendant objects because it is unclear what Plaintiff wishes to have ..auth.enticated". Therefore, Defendant is unable to properly respond.. Subject to this objection Defendant would respond that E and F appear t<? be accurate copies of the original notices. G appears to be a copy of the incomplete notice referenced in the letter dated May 26th and attached to F. H appears to be an accurate copy of the minutes depicted. I, J, and K appear to be an accurate screen grab of the website. It is unclear what L is but it appears to be something that comes fro.n the Boardbook program. Defendant's Answer5 to PlaindflS' Second Set af Interrogatories, Requests for Admissions and Request for Production - Page 6 #491701 INTERROGATORY NO. 28: Authenticate each of the following Bxbl'bits I, 2, 3, 4, 5, and 6 of Plaintiffs' Original Petition and Application for Issuance of a Tempomy Restraining Order without Notice and Temporary Injunctions with Supporting Documentation and Affidavit filed and served on you in this case on May 29, 2009. ANSWER: Defendant objects to this Interrogatory for the reason that it is duplicative of Interrogatory Nos. 24 through 27. Therefore, Defendant would make refeience to its answers therein. INTERROGATORY-NO. l9: Authenticate each of the following Ex1noits 4, 5, 7, 9, 10, and 11including11.1, 11.2, and 11.3 of Plaintiffs' Supplement to Their Motion for Summary Judgment filed and served on you in this case on August 14, 2009. ANSWER: Defendant objects to this Jntem>gatory for the reason that it is overly broad and unduly burdensome. Defendant further objects for the reason that this Interrogatory seeks the production of :information which is not relevant and not calculated to lead to the discovery of any relevant infonnation and is therefore beyond the scope of the rules. Defendant further objects to the extent that Plaintiffs do not give enough detail as to what they wish to have authenticated and therefore Defendant is unable to properly respond. Subject to the above objections and without waiving the same Defendant would r~pond as follows: Defendant authenticates that each of the documents referenced in the Interrogatory above are in fiict attached to Plaintiffs' Supplement to Their Motion for Summary Judgment. Otherwise, Defendant would make reference to its Answers to Interrogatory Nos. 24-27. Finally, Defendant cannot authenticate anytbing else regarding these Exln"bits. REOUEST FOR ADMISSION NO. 36: Admit that internet notices of the board meetings from August 13, 2008 to May 19, 2009 currently appear on your website. RESPONSE: Admit. REQUEST FOR ADMISSION NO. 37: Admit that Karen Linder is your superintendent Ban:y Hacmisch"s secretary. RESPONSE: Admit. REOUESTFORADM.ISSIONN0.38: Admit that Suzie Jameson manages your technology department and her job title is technology director. RESPONSE: Admit. REOUE§T FOR ADMISSION NO. 39: Admit that Suzie Jameson did not establish a link to board meeting notices on the new website until May 2009. RESPONSE: Deny. Def'endant's AllS\vers to PJaiDtiffs' Second Set of Interrogatories, Requests for Admissions and Requestfor Production-Page 7 #491701 REQUEST FOR ADMISSION NO. 40: Admit that Suzie Jameson was responsiole for establishing the link to the internet board meeting notices on your website after you updated your website in January 2009. RESPONSE: Deny. REQUEST FORADl\fiSSION NO. 41: Without refening to your claim of good faith exception under TOMA, admit that intern.et notices did not appear for public view on your website after you updated your website in January 2009. RESPONSE: Admit that beginning on approximately January 15, 2009 through May 19, 2009 that the BoardBook link with the website had been severed and that although the notices were properly and timely created in Boardbook and sent for posting to the website that such notices did not actually get posted to the website. Otherwise, denied. REQUEST FOR ADMISSION NO. 42i Without referring to your claim of good faith exception under TOMA, admit that Suzie Jameson and Karen Linder did not know that the link to intern.et notices for public view did not appear on your new website from January 2009 until May 2009. RESPONSE: Admit that Ms. Llnder and Ms. Jameson were unaware th.at the website update work which was completed on or about January 15, 2009 severed the link with Boardbook which had formerly allowed notices to be posted to the website via Boardbook Otherwise, denied. REOUESTFORADMISSIONN0.43: Without referring to your claim of good faith exception under TOMA, admit that Suzie Jameson and Karen Linder did not know from January 2009 until May 2009 that internet notices did not appear on your website and were not available for public viev.rin.g. RESPONSE: Admit for the period of approximately January 15, 2009 through May 18, 2009. Otherwise, denied. REQUEST FOR ADMISSION NO. 44: Admit that Karen Linder w~. neither designated nor authorized to sign notices of board meetings by your board of trustees. RESPONSE: Deny. REQUEST FOR AD1\1ISSION NO. 45: Admit that Karen Linder was neither designated nor authorized to sign notices of board meetings by defendant's superintendent. RESPONSE: Deny. REQUEST FOR ADMISSION NO. 46: Admit that Ramiro Soto was your employee during the school year 2008-2009. Defendant's Answers to Plain1iiJS' Second Set of JnterrogatOrles, Requests for Admissions and Requ~ for Production - Page 8 #491701 - ... 'II RESPONSE: Admit REOUESTFORADMISSIONN0.47: Admit that Ramiro Soto's job included custodial functions at your central administrative office building, Carver Center, during school year 2008-2009. RESPONSE: Admit. REQUEST FOR ADMISSION NO. 48: Admit that the board approved school calendar for the year 2008-2009 designated March 16, 2009 through March 20, 2009 as ooli~~- · RESPONSE: Admit.. REQUEST FOR PRODUCTION NO. 23: Produce all electronic internet website notices of your board meetings on a Compact Disk (''CD'') including notices or documents in Adobe PDF, Microsoft Word. or WordPerfect formats for the board meetings a. for which the internet notices did not appear on your website for public view at any time during August 13, 2008 to May 19, 2009 and for which you claim good faith exception under TOMA b. for all other board meetings {other than in "Request for Production No. 23a., herein above) between August 13, 2008 to May 19, 2009. RESPONSE: Defendant objects to Request for Production No. 23 for the reason that Defendant has previously produced to Plaintiffs these same documents. REQUEST FOR PRODUCTION NO. 24: Without rofcning to your assertion of claim to exception under TOMA Sec. 551.056(d) a. Produce all documents, including information in electronic form, in support of your contention that you complied with the intern.et website posting requirement for school districts pursuant to TOMA Sec. 551.056(b); b. Ifthe documents in "Request for Production No. 24a." herein above are in electronic fonn, produce such documents on a Compact Disk ("CD"). RESPONSE: See the emails between Ms. Linder and Ms. Jameson which were previously produced in response to Plaintiffs' First Interrogatories, Requests for Admission and Requests for Production. REQUEST FOR PRODUCTION NO. 25: Produce all documents in support of your assertion th.at the non-appearance of the internet notices for public view on your website of any board of trustees' meetings during the time period August 2008 through May 14, 2009 was due to a technical problem beyond your control and that you made a good faith Defendant's Answers to PlaintiflS' Second Set oflDtemJgatorles,, Requests for Admlssious and Request for Production - Page 9 #491701 attempt to comply with TOMA's requirement to post concurrent internet notices on your website. RESPONSE: See the emails between Ms. Linder and Ms. Jameson which were previously produced in response to Plaintiffs• First Interrogatories, Requests for Admission and Requests for Production. REQUESTFORPRODUCTIONNO. 26:Produce all documents in support of your assertion that Karen Linder is authorized to verify defendant's answers to plaintiffs' interrogatories served on you in this lawsuit pursuant to Texas Rules of Civil procedure. RESPONSE: None. REQUEST FOR PRODUCTION NO. 27: Produce all documents in support of your assertion that Karen Linder was authorized or designated to sign notices of board meetings. RESPONSE: None. REQUEST FOR PRODUCTION NO. 28: Produce all documents in support of your assertion that Karen Linder was authorized or designated to post notices of board meetings. RESPONSE: None. REQUEST FOR PRODUCTION NO. 29: Produce job descriptions of Karen Linder, Suzie Jameson, and Ramiro Soto for the years 2007, 2008, and 2009. nESPON.SE: Defendant has already produced a job description for Karen Linder. See her Affidavit attached in Response to Plaintiffs Motion for Swnmazy Judgment. Defendant objects to the request to produce job descriptions for Ms. Jameson and Mr. Soto for the reason that they are not relevant and not calculated to lead to the discovery of any relevant :information and is therefore beyond the scope of the Texas Rules. REQUEST FOR PRODUCTION NO. 30: Produce your School Calendars approved by your Board ofTrustees for the years 2008-2009 and 2009-2010. RESPONSE: Defendant objects to this Request for the reason that it is overly broad and seeks the production of information which is not relevant and not calculated to lead to the production of any relevant information and is therefore beyond the scope of the Texas Rules. REQUEST FOR PRODUCTION NO. 31: Produce all contracts, including BoardBook contracts. that provided you services concerning posting internet notices on your website for your board meetings for the years 2007, 2008, and 2009. Defendant's .Answers to Plaintiffs' Second Set of Interrogatories. Reqoemfor Admissions and Request for Production - Page I 0 #491701 .' RESPONSE: None. REQUEST FOR PRODUCTION NO. 32: Produce all documents evidencing that March 16, 2009 through March 20, 2009 were work days for you. RESPONSE: Defendant objects for the reason that ''you" is not defined. Therefore, it is unclear who this Request is directed to. REQUEST FOR PRODUCTION NO. 33: Produce all documents including contracts with web service providers in support of your assertion that you updated your website in January 2009. RESPONSE: None. Defendant's Answers to Plaintiffs' S~ond Set or Interrogatories, Reqnests for Admissions and Request for Production-Page 11 #491701 .... • \•' !' YERIFICATION STATE OF TEXAS § § COUNTY OF GRAY § BEFORE ME, the undersigned authority9 on this day personally appeared Karen Linder9 Secretary/Assistant to the Superintendent of Pampa Independent School District. known to me personally by presenting her driver's license, who being duly sworn on her oath deposed and said that she is duly qualified and authorized in all respects to make this affidavit, that she has read the above and foregoing Defendanes Answers to Plaintiffs' Second Set of Interrogatories, Requests for Admissions and Request for Production; and that every statement contained therein is within her knowledge and is true and cozrect. Karen Linder Defendant'• Answers to Plaintiffs' Second Set of Interrogatories. Requests for Admissions and Request for Production-Page 12 fl491701 Appendix 11 Defendant’s Supplemental Answers to Plaintiffs’ First Interrogatories, Requests for Production, and Requests for Admission (PX11) No. 35,621 REBECCA TERRELL and § IN THE 223rd DISTRICT COURT CHANDRASHEKRAR THANEDAR § § CD ......, Plaintiffs, § -< 0 (/) = ........ '""-> (;") ::0 -> c:::> l> § (/) ::z C":> -i -< -;o v. § IN AND FOR ::0 ~ ~ Defllndant's Supplemenllll Answels to Plainlillii• 2 First Jntunoptarles. Requests for Production, and Requesis for Admbsion #494359 ..... INTERROGATORIES INTERROGATORY NO. 3: Identify the names and the positiODS of all persons involved in posting the internet notices ofboard meetings on your website. SUPPLEMENTAL .ANSWER: Karen Linder. For clarification, Karen Linder is solely responsiole for posting internet notices. Suzie Jameson is the IT coordinator. Ms. Jameson was the one responsible for making changes to the District website in January of 2009 which inadvertently resulted in the severance of the link between Boardbook and the website. INTERROGATORY NO. S: State all teclinical problems that you believe caused your failure to comply with the legal requirement of posting internet notices of your board.meetings on your website per TOMA. SUPPLEMENTAL ANSWER: See Answer to Interrogatory No. 4. Defendant did comply with all requirements of TOMA. Defendant would further supplement its BDSWer by stating that Suzie Jameson was the IT employee that updated the District website on or about January 15, 2009. This update resulted in the severing ofth.e in.temet link between Boardbook and the website. This technical issue was not discovered until May of 2009 at which time the link was reestablished. The technical problem was the severance of the link with the updating of the website. Defendant would further supplement by stating that it was a technical problem beyond Defendant>s control because the website link with Boardbook was severed during a website maintenance update by Defendant's IT department. This severance of the link with Boardbook was not known by Defendant and was therefore beyond Defendant's control. INTERROGATORY NO. 6: State all reasons why you believe the technical problem(s) td.entificd in !Dtoaogatory No. S herein above were beyond yaur control. SUPPLEMENTAL ANSWER: See Answer to Interrogatory No. 4. Defendant would supplement its answer as stated for Interrogatory No. S above and would :further state that the technical probl~ i.e. the severance of the link between the website and Boardbook, was not known to Detendant or its employees until May 2009. Defendant would further supplement by stating that it was a technical problem beyond Defendant's control because the website link with Boardbook was severed during a website maintenance update by Defendant's IT deparbnent. This severance of the link with Boardbook was not lm.own by Defendant and was therefore beyond Defendant's control. INTERROGATORY NO. 7: State when and how you became awaro of the technical pmblem(s) identified in Jntetrogatory No. S herein above. SUPPLEMENTAL ANSWER: Defendant became aware when it was reported to Defim.dant by PlaintiffS herein that the notices were not online. Defendant would :further supplement by stating that it was a technical problem beyond Defendant's control because the website link with Boardbook: was severed dming a website maintenance Defemlant"s 5uppllmallll Amweas to .Plainuffs• 3 First fn1lmlp1vries. Reques1s fbr Procluclion.1111d Requests tbr Admission #494359 ..... update by Defendant's IT department. This severance of the link with Boardbook was not known by Defendant and was therefore beyond Defendant's control. Defendant will supplement its answer by stating that Plaintiffs brought to the attention of Defendant the non appearmce on the notices on the District website. This occurred on or about May IS~ 2009. It was brought to the attention of Karen Linder who then checked with SU2ie Jameson about the problem. The problem was then immediately corrected. INTERROGATORY NO. 8: Identify the names of the persons who were aware of the technical problem(s) identified in Interrogatory No. S herein above and of your efforts to resolve them between. the time period August 13, 208 [sic] to May 19, 2009. SUPPLEMENTAL ANSWER: Karen Linder. The problem was resolved when Ms. Linder reported it to Technology Services Department head Suzie Jameson who then determined that the form.er link between Boardbook and the District website had been severed. She then reestablished the link. Defendant would supplement by making reference to the emails (email string in May 2009 between Linder and Jameson) attached to by Defendant to its original Responses to Plaintiffs' Requests for Production. Defendant would :further supplement that the technical problem was discovered in May 2009. INTERROGATORYN0.10: State when and how the technical problem(s) identified in Interrogatory No. 5 herein above were resolved. SUPPLEMENTAL ANSWER: See Answers to Interrogatories 6 through 9. Defendant would supplement its answer by stating that the technical problem with the website notices was both discovered and fixed on or about May 15111 through19th 2009. See the emails attached to Defendant's discovery responses. Also see the Affidavit of Karen Linder attached to Defendant's Response to Plaint:ifrs Motion for Summary Judgment as if si;C: £ort:h. at lcmgth herein.. REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 6: Produce all documents concerning communication to and from vendors includmg BoardBook, of the-technical problems in connection with your failure to comply with the intemet posting requirement of board meetings per TOMA and the resolution of such technical problems. SUPPLEMENTAL RESPONSE: Object to rhe extent that no violations of TOMA occurred. Otherwise, Defendant would respond none. Defendant would further make reference to its Interrogatory· answers above (Interrogatory Nos. 5-8) conceming the technical problem which caused the intemet notices not to be posted (i.e. the severance of the link with Board.book in January 2009) and would further direct Plaintiffs to the emails previously produced in response to Plaintiffs First Requests for Production which represents an email string between Ms. Linder and Ms. Jameson. · Ddendant's Supplemental Ans\\'ers to Plaintiffs' 4 FUst Jn1e1JOpturies. Requests for Producnon. and Requests for Adlrlimon #4943S9 REQUEST FOR PRODUCTION N0.15: Produce all documents concerning your response to Request for Admission No. I, herein. above. SUPPLEMENTAL RESPONSE: None. Defendant would additionally respond that a copy of the •".Boardbook Contraof' as referenced in the Comt's letter m1ing of April 12, 2010 was previously produced to Plaintiffs by Defendant by letter dated August 27, 2009 from Defendant Counsel Andrea Slater Gulley to Plaintiff Thanedar. Defendant would make reference to this production as if set forth at length herein. REQUESTS FOR ADMISSION REQUEST FOR ADMISSION NO. 6: Admit that you have never posted notices of board meetings on a bulletin board in your central administrative building. SUPPLEMENTAL RESPONSE: Defendant withdraws its original objection and response to this Request and responds as follows: Denied. REQUEST FOR ADM1SSION NO. 13: Admit that Karen Linder does not have a college degree or work experience in computer technology. SUPPLEMENTAL RESPONSE: Defendant objects to Request for Admission No. 31 for the reason that it is harassing and seeks the production of information which is not relevant and not calculated to. lead to the production of any relevant information and is therefore beyond the scope of the Texas Rules of Civil Procedure. Subject to the above objection Defendant denies the Request for Admission. REQUEST FOR ADMISSION NO. 26: Admit that internet website notices were not on your website for public viewing 72 hours prior to the board meetings for the period fiom August 13, 200S to Ma.y IR. 2009. SUPPLEMENTAL RESPONSE: Defendant admits that due to a technical difficulty the notices did not actually appear on the website for the period January 15, 2009 until May 19, 2009. Otherwise. Defendant denies. .Defendant's Supplemental Answers w Plaitatiffs' 5 First Jntenogatories. Requests far Production, and RequeslS for Admission #494359 ... > • VERIFICATION STATE OF TEXAS § § COUNTY OF GRAY § BEFORE ME, the undersigned authority, on this day personally appeared Karen Linder, H:irea Ui?dec of Pampa Independent School Distrl~ known to me personally by presenting her driver's license, who being duly swom on her oath deposed and said that she is duly qualified and authorized in all respects to make this affidavit, that she has read the above and foregoing Defendanes .Answeis to Plaintiffs, Interrogatories; and that every statement contained therein is within her knowledge and is true and correct. ·· Karen Linder SUBSCRIBED AND SWORN TO BEFORE ME on the JJ/ tJ. day of April, 2010 to certify which witness my band and official seal. omodant's SupplemCD181ADswC1s10 PlaislliffS• 6 f"im IuterroploriE. RequcslS filr Plocluaion. and ReqllllSIS 1br Admission 1#494359 Appendix 12 Plaintiffs’ Second No-Evidence and Traditional Motion for Summary Judgment .. . 217 CAUSE NO. 35621 REBECCA TERRELL and CHANDRASHEKHARTHANEDAR § § § IN THE 223 RD DISTRICT CQVRT --< 0(/) -> (I):Z: - ~ r o,) <::::) ~ G') ::0 l> --< Plaintiffs, § --f § -iO ::0::0 c;> w ..... o..., (") c:::_ v. § IN AND FOR ·-1 CD :zr- -i rrt 0· ~ ::D :<o § rrr · - :;:,,._ ::;r) ::a PAMPA INDEPENDENT SCHOOL § C:J r;··; -r,; ::::0 f11 .:::-:: -~ ..... -i ITI DISTRICT, § c:: -t 0 >< l> § GRAY COUNTY, TEXAS -< -i :B· (/) Defendant § PLAINTIFFS' SECOND NO-EVIDENCE AND TRADITIONAL MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF THE COURT: Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar file this their second no- evidence and traditional summary judgment motion (Second Motion), and in support respectfully show the Court the following: I. REASON FOR THE SECOND MOTION 1. On remand of this case from the ih Court of Appeals, plaintiffs have filed two supplemental petitions - first supplemental petition on June 11, 2012 and the second supplemental petition on October 18, 2012. Plaintiffs' amended no-evidence and traditional motion for summary judgment was denied by Judge Vanderpool on August 24,2012. 2. Plaintiffs filed their motion to recuse the 223rd district court Judge Phil Vanderpool on September 24, 2012 due to partiality towards defendant PISD and violation of plaintiffs' due process rights. On September 26, 2012, the district clerk entered an order of recusal by Judge Vanderpool. On October 15, 2012, senior Judge Abe Lopez was assigned to this case. 3. The only fact question identified by the 7th Court of Appeals in its opinion was PISD's claim of "good faith" regarding the untimely "creation dates" and the "non-appearance" of its internet notices from Jan. 2009 through 5119/2009 on its website and/or on BoardBook's website. Terrell vs. Pampa ISD, 345 S.W.3d 641 (Tex. App.--Amarillo 2011, pet. denied). See TOMA §§551.056(b) and (d). 4. PISD's alleged "good faith" defense is a fraud on taxpayers of Texas, appeals court, and this Court and a brazen obstruction of justice for the last 3 Y2 years. This defendant governmental entity, a taxpayer funded school district no less, is under the mistaken impression that it can continue to engage in this fraud against pro se Texas citizen taxpayers in this case. Since the beginning of this lawsuit in May 2009, PISD deliberately engaged in obstruction of justice by refusing and failing to produce documents in response to plaintiffs' discovery requests 1 PISD frivolously refuses and resists discovery for the last 3 112 years objecting to such discovery as "not relevant" and "beyond the scope of Texas Rules of Civil Procedure" while brazenly claiming good faith exception based on the same BoardBook service. This is nothing but mockery of TOMA and the justice system. PISD alleges that a link to BoardBook is necessary for public to view TOMA mandated internet notices which reside on BoardBook's website. 2 The Clerk's Record is cited as "CR[page]," and Supplemental Clerk's Record cited as "SCR[page]." Plaintiffs Second No-evidence and Traditional BoardBook service. Exhibits 20, 21. PISD refuses to produce requested documents and its personnel for deposition. PISD's motion to quash depositions has been denied. PISD has further refused to supplement discovery in violation of Tex. R. Civ. Pro 193.5 concerning its alleged contract for service with BoardBook for the period 1/2009 to 5/19/2009. PISD refused and failed to produce documents showing that it ever paid the initial licensing fee of$1,600 or any subsequent renewal fees for service to BoardBook. Exhibits 14, 20, and 21. There is no evidence of an executed contract with BoardBook for the relevant time period in question- 1/2009 to 5/19/2009. Because there is no evidence of consideration moving from PISD to BoardBook for the above period and because PISD refuses to provide such evidence, as a matter of law, the allegation of BoardBook service is legally invalid and at best speculation and not legal evidence. Kindred v. Con!Chem., Inc., 650 S.W. 2d 61, 63 (Tex. 1983). Advantage Physical Therapy, Inc. v. Cruse, 165 S.W. 3d 21, 24 (Tex.App.-Houston [14th Dist.], 2005 no pet.) (without consideration, there is no contract). PISD could not and did not have an executed contract and service with BoardBook for the period in question for which PISD claims good faith. Notably, PISD does not claim good faith defense for 8/13/2008 through 12/2008 and there is no evidence in the record of consideration from PISD, valid contract or service with BoardBook for that period. PISD further refused and failed to provide documents in response to discovery requests evidencing it paid license or renewal fees for BoardBook service and has refused to supplement discovery in violation of TRCP 193.5. The draft BoardBook agreemene (signed only by PISD, 3 The Texas Attorney General's opinion (CR368-371) in favor of plaintiff Thanedar forced PISD to produce this fabricated draft agreement. This draft agreement presumably covers a 12 month period from 10/12/2007 to 10/12/2008. However this draft, even if presumed valid, would cover at the most only about 2 months in question in this case - part of August 2008 to part of October 2008 and does not cover the period Jan. 2009-May 19, 2009 for which PISD claims good faith defense under TOMA. Plaintiffs Second No-evidence and Traditional but not by BoardBook) clearly states that the subscription agreement is not effective until the $1,600 fee or a purchase order in that amount is received by BoardBook. Exhibit 14 (see "Fees" and "Terms"). Because there is absolutely no evidence in the record that PISD ever paid the original $1,600 (or a purchase order for $1 ,600) or subsequent renewal fees to BoardBook for 2008 or 2009, PISD cannot as a matter of law prove that it had BoardBook service for the period in question from 8/13/2008 through 5/19/2009. Thus, there is not even a scintilla of evidence that PISD had BoardBook service in effect from January 2009 through 5119/2009 - a period for which PISD claims good faith defense concerning why internet notices did not "appear" on PISD/BoardBook website. PISD willfully engaged in subterfuge and obstruction of justice by fabricating a good faith defense of missing "link" to BoardBook service in this lawsuit knowing full well that it did not even have BoardBook service because it did not pay the license fees to BoardBook for the period in question. For this obstruction of justice and subterfuge PISD and its counsel deserve substantial sanctions as punishment for this misconduct. In addition, this case concerns persistent willful pattern of violations of Texas Open Meetings Act, Gov't Code Ch. 551, for 22 Meetings from 8/13/08 through 5/19/09 by defendant PISD. 5. PISD's misrepresentation concerning its unsupported assertion that "create dates of BoardBook notices were in actuality print dates" requires sanctions. PISD deliberately misrepresented to the 7th Court of Appeals that the "create dates" of the untimely PDF internet notices in BoardBook were in fact the dates on which website notices were "printed" for plaintiffs. See Appeals Court's Opinion Pgs. 5-6; Exhibit 3. PISD has failed to provide supplementation in question in violation of the appeals court's opinion and TRCP 193.5 and further failed to indicate where in the record such evidence exists, if at all. Plaintiffs Second No-evidence and Traditional As noted by the appeals court, it does not. Opinion Pgs. 5-6. Thus PISD's argument before the appeals court was a deliberate misrepresentation made to delay this case and obstruct justice. Such misconduct on the part of PISD and counsel deserves substantial sanctions. II. PISD'S TOMA VIOLATIONS AND FRAUD A. Actions Taken In 22 Board Meetings Are At Issue: PISD's violations of notice provisions of TOMA concern the actions taken in the 22 meetings of the Board of Trustees of PISD between August 13, 2008 to May 19, 2009 ("22 Meetings"). Specifically, the 22 Meetings were held on 8/13/08; 8/21/08; 9/4/08; 9/18/08; 10/2/08; 10/9/08; 10/23/08; 1116/08; 11120/08; 12/4/08; 12/18/08; 1/15/09; 2/5/09; 2/19/09; 3/12/09; 3/26/09; 4/2/09; 4/16/09; 4/21/09; 4/23/09; 517109; and 5/19/09. Exhibit 7, Exhibit 11 (Req. for Admission No. 19). Thus, PISD's Board of Trustees (Board) held 11 meetings each in 2008 and 2009 from 8/13/08 to 5/19/09. B. Violations of TOMA provisions4 at Issue in this motion: • §551.051: PISD violated §551.051 by failing to post notices of 3/26/09 board meeting and 22 Meetings in a specifically designated place - Bulletin Board in its Central Administrative Office (Central Office) as required by TOMA. • §551.056: PISD violated §551.056 by failing to concurrently post internet notices of 3/26/09 board meeting and 22 Meetings on its website for prescribed time and manner. • §551.043: PISD violated §551.043 by failing to post notices of 3/26/09 board meeting and 22 Meetings at a physical location for prescribed time (72 hours) and manner. • §551.041: PISD violated §551.041 by failing to specify "place" (Pampa, Texas) in its notices (internet and paper notices) of 3/26/09 board meeting and 22 Meetings. • §551.101 and §551.074(b): PISD violated §551.101 by failing to legally close the 3/26/09 Board meeting and violated §551.074(b) by deliberating on Terrell's termination in closed meeting. 4 References to the Texas Government Code Chapter 551 (TOMA) will be by reference to"§ _ _" or "Sections_ _," or "TOMA §_ _." Plaintiffs Second No-evidence and Traditional • §551.045(d): PISD violated §551.045(d) because PISD's notices (website and physical location) of 3/26/09 board meeting and 22 Meetings were signed on behalf of the Board and posted by a person (Karen Linder) not so designated nor authorized by PISD's Board of Trustees (Board). C. TOMA Violations Are Distinct: The statutory language of TOMA is clear that the above notice provisions are distinct, and failure to comply with any one of the notice provisions renders the action(s) in violation ofTOMA and thus voidable. §551.141. III. LEGAL STANDARD A. Post-Remand Proceedings Reason for Remand: On appeal by plaintiffs, the 7th court of appeals acknowledged that PISD indeed was untimely in posting internet notices in violation of TOMA §551.056(b). However, appeals court reversed and remanded the case on the grounds that there is no evidence in the record concerning PISD's alleged argument that "create" dates of its electronic PDF notices posted on PISD/BoardBook's website were in fact dates on which PISD printed the website notices for plaintiffs for delivery to them. See appeals court's Opinion Pages 5-6, Terrell vs. Pampa ISD, ih District Court of Appeals, 07-10-00212-CV, 345 SW3d 641, 04-29-11. Appeals court has further ordered that post-remand proceedings be consistent with its opinion and reason for remand. See 7th court of appeals mandate dated 1/6/12. It is well established that trial court lacks the power to deviate from the instructions in the mandate issued by the court of appeals. "The [lower tribunal] on remand is ... required to proceed in accordance with the rules and reasoning stated in the appellate court's opinion, as both the letter and the spirit of the mandate is to be implemented." 5 Am. Jur. 2d, Appellate Review (1995), §785 at 454. Therefore, [a lower tribunal] is not free to ignore the mandate and opinion of the remanding appellate court, but instead must proceed in conformity with the v1ews expressed by the appellate court. 5 Am. Jur. 2d, Appellate Review (1995), §786 at 455. Plaintiff's Second No-evidence and Traditional Motion for Summary Judgment Cause No. 35621 Page 6 of43 As the appeals court has given specific reason for remand and instructions, the mandate controls the framework of post-remand proceedings. The trial court is required to comply exactly with the mandate in effecting the remand. Hudson v. Wakefield, 711 S.W.2d 628, 630- 631 (1986); ATSPAC v. Sierra Club, 843 S.W.2d 683, 690 (1992); Dallas County v. Sweitzer, 971 S.W. 2d 629 (Texas. App.--Dallas 1998). Therefore in this case, trial court's jurisdiction extends to conducting proceedings and further discovery regarding the reason for remand and applying law to the record facts concerning all of the violations of TOMA alleged by plaintiffs in this case. B. Summary Judgment Standard Plaintiffs move for no-evidence and traditional summary judgment under Rule 166a of the Texas Rules of Civil Procedure. A party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). A party seeking to recover upon a claim may move for a summary judgment in his favor upon all or any part thereof and a summary judgment may be rendered on the issue of liability alone although there is genuine issue as to the amount of damages. Tex. R. Civ. P. 166a(a). Under the no-evidence summary judgment standard, a court properly grants a no- evidence summary judgment if the non-movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the non- movant's claim. See Tex. R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S. W. 2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 119 (1998). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or Plaintiffs Second No-evidence and Traditional suspicion" of a fact, and legal effect is that there is no evidence. Kindred v. Con/Chem., Inc., 650 S.W. 2d 61,63 (Tex. 1983). The party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding. Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962 S.W.2d 193, 197 n.3 (Tex. App.-Houston [1st Dist.] 1998, writ denied). Thus plaintiffs without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a defense on which defendant has burden of proof at trial. See Tex. R. Civ. Proc. Rule 166a(i). Weiss v. Mechanical Associated Serv., Inc., 989 S.W. 2d 120, 123 (Tex. App.-San Antonio 1999, writ denied). C. Texas Open Meetings Act, Government Code Ch. 551 (TOMA) 1. Standing under TOMA: §551.142(a) authorizes any interested person to bring a civil action under TOMA. §551.142(a); see Cameron Cnty. Good Gov't League v. Ramon, 619 S.W.2d 224, 230-31 (Tex. App.--Beaumont 1981, writ refd n.r.e.). In keeping with the purpose of TOMA, standing under TOMA is interpreted broadly. See Burks v. Yarbrough, 157 S.W.3d 876, 880 (Tex. App.--Houston [14th Dist.] 2005, orig. proceeding; Hays Cnty. Water Planning P 'ship, 41 S. W.3d at 177. Also see City of San Antonio v. Fourth Court ofAppeals, 820 S. W.2d 762,765 (Tex. 1991)(holding that the intended beneficiaries of the Open Meetings Act are "members of the interested public"). Standing conferred by TOMA is broader than taxpayer standing, and a citizen does not need to prove an interest different from the general public, "because 'the interest protected by the Texas Open Meetings Act is the interest of the general public."' See Hays Cnty. Water Planning P'ship, 41 S.W.3d at 177-78 (quoting Save Our Springs Alliance, Inc. v. Lowry, 934 S.W.2d 161,163 (Tex. App.--Austin 1996, orig. proceeding). See also City of Fort Worth v. Groves, 746 Plaintiffs Second No-evidence and Traditional S.W.2d 907 (Tex.App.--Fort Worth 1988, no writ)(resident of Arlington had standing to bring suit for declaratory judgment and injunction against City of Fort Worth for violation ofTOMA). Plaintiffs have standing as members of the general public in Texas. Exhibits 7, 26. See Burks, !d.; Hays Cnty Water Planning P'ship, !d. Further plaintiffs have standing because they are interested persons under TOMA. Exhibit 7. See §551.142(a); Cameron Cnty Good Gov't League, !d. Further plaintiffs Terrell and Thanedar have standing in this case because they are Texas residents, citizens, and taxpayers that fund defendant PISD and all other public school districts, and who are interested in government entities' honest and voluntary compliance with TOMA and open government. Exhibits 7, 23, 24, 25 and 26. Further, Terrell and Thanedar are interested persons under TOMA because PISD terminated Terrell's teaching contract (Exhibit 22) in PISD's 3/26/2009 Board meeting which was held in violation of TOMA's notice provisions as set forth in plaintiffs' original petition and in this motion. Terrell seeks the relief of reinstatement upon voidance of the unlawful Board action terminating her contract on 3/26/09. As such Terrell is interested in resuming her employment with PISD as a Texas certified teacher upon successful conclusion of this legal action in her favor. §551.142(a). Exhibits 7, 25, 26. 2. Unlawful Actions Judicially Voided: An action taken by a governmental body in violation of TOMA is voidable. Tex. Gov't Code §551.141. Swate v. Medina Cmty. Hospital, 966 S. W.2d 693, 699 (Tex. App.--San Antonio 1998, pet denied). Governmental actions in violation of the Texas Open Meetings Act have been judicially declared void. See Ferris v. Texas Board ofChiropractic Examiners, 808 S.W.2d 514, 518-519 (Tex. App.--Austin 1991, writ denied); Also See Point JsabellS.D. v. Hinojosa, 797 S.W.2d 176, 179 (Tex. App.--Corpus Christi 1990, writ denied). An interested person may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of TOMA. Texas Gov't Code § Plaintiffs Second No-evidence and Traditional 551.142. Hays County Water Planning P'ship, 41 S.W.3d at 177-78 (quoting Save Our Springs Alliance, Inc., 934 S.W. 2d at 163). 3. Texas Supreme Court has demanded Exact and Literal Compliance: The law with respect to the compliance with the notice provisions of TOMA has been well settled for more than 20 years. The Texas Supreme Court has demanded Exact and Literal Compliance with TOMA. See Acker v. Texas Water Commission, 790 S.W.2d 299 (Tex. 1990). ("The explicit command of the statute is for openness at every stage of the deliberations. Accordingly, we have demanded exact and literal compliance with the terms of this statute." [citing] Smith County v. Thornton, 726 S.W.2d 2, 3 (Tex. 1986); City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762 (Tex. 1991)). Thus, "substantial compliance" under TOMA, whether done in good faith or not, is no longer sufficient nor valid law in the State of Texas. Nevertheless, the record shows that PISD does not even meet the overruled substantial compliance standard concerning any of the TOMA violations alleged in this case. Whether defendant's actions comply with TOMA is a matter of law and the controlling material facts in this case are admitted or undisputed. This case is ripe for summary judgment in plaintiffs' favor due to violations of TOMA detailed below. Plaintiffs are entitled to summary judgment on facts and law presented herein. IV. SUMMARY JUDGMENT EVIDENCE Plaintiffs rely on the following summary judgment evidence on file which is adopted and incorporated herein. Citations to the Clerk's Record (CR) are included when available. Exhibit 1 Suzie Jameson's E-mail response to Karen Linder (CR820) Exhibit 2 Information about BoardBook software by Tex. Assn. of Sch. Boards (TASB) and its role in posting PISD's internet notices under §551.056(b) which is on file as Exhibit 2 to the plaintiffs' amended no-evidence and traditional motion for summary judgment filed on 5/18/2012 and referenced herein. Plaintiffs Second No-evidence and Traditional Motion for Summary Judgment Cause 226 No. 35621 Page 10 of 43 • 227 Exhibit 3 Plaintiffs' letter dated 2/28/12 requesting supplementation concerning "create dates" of internet notices in BoardBook (which is on file as Exhibit 3 to the plaintiffs' amended no-evidence and traditional motion for summary judgment filed on 5/18/2012 and referenced herein. Exhibit 4 Hardcopy of the website internet notice of the 3/26/09 board meeting. (CR 83-84) Exhibit 5 Hardcopy of PDF document properties of the website internet notice of the 3/26/09 board meeting. (CR85) Exhibit 6 "Revised" Notice of the 3/26/09 board meeting taped to front door of central administrative office (Central Office) (CR18-19) Exhibit 7 Plaintiffs' affidavit dated May 15,2012 in support of Plaintiffs' Amended No-evidence and Traditional Motion for Summary Judgment which is on file as Exhibit 7 to the plaintiffs' amended no-evidence and traditional motion for summary judgment filed on 5/18/2012 and referenced herein. Exhibit 8 Plaintiffs' receipts for monies paid for paper copies of board meeting notices on 5/15/09 which is on file as Exhibit 8 to the plaintiffs' amended no-evidence .and traditional motion for summary judgment filed on 5/18/2012 and referenced herein. Exhibit 9 CD-ROM containing PISD's Internet notices of Board meetings in PDF document format and the electronic document properties of the PDFs posted by PISD to its website at http://www.pampaisd.net, which is on file and referenced herein (2SCR1). Exhibit 10 Hardcopies of the internet notices and document properties on the above CD-ROM, which are on file and referenced herein (CR63-184). Exhibit 11 PISD's answers to plaintiffs' first interrogatories, requests for production and requests for admissions dated 2/23/10, which are on file and referenced herein (CR764-788). Exhibit 12 PISD's answers to plaintiffs' Second set of interrogatories, requests for admissions and requests for production (dated 4/5/10), which are on file and referenced herein (CR800-811). Exhibit 13 PISD's supplemental answers to plaintiffs' first interrogatories, requests for production and requests for admissions (dated 4/14/10), which are on file and referenced herein (CR812-817). Exhibit 14 BoardBook draft subscription agreement dated 10/12/2007 which is on file and referenced herein (CR420-423). Plaintiff's Second No-evidence and Traditional Exhibit 15 Defendant's Notice of Employment termination to Rebecca Terrell (dated April 7, 2009), which is on file and referenced herein (CR312). Exhibit 16 Audio recording of defendant's Board Meeting of March 26, 2009-3 CDs (2SCR3), which is on file and referenced herein. Exhibit 17 Photos of TOMA notices posted on the front door of PISD central administrative office and of central administrative office (CR318-320), which are on file and referenced herein. Exhibit 18 Linder Affidavits (Linder Affidavit 1 at CR338-340; Linder Affidavit 2 at CR726-729) and Haenisch Affidavits (Haenisch Affidavit 1 at CR336-337; Haenisch Affidavit 2 at CR724-725) which are on file and referenced herein. Exhibit 19 PDF Reference, Adobe Portable Document Format (PDF) Version 1.3 on Compact Disk (CD) which is on file as Exhibit 19 to the plaintiffs' amended no-evidence and traditional motion for summary judgment filed on 5/18/2012 and referenced herein. Exhibit 20 Plaintiffs' Third Set of Interrogatories, Requests for Admissions, and Request for Production to Defendant; and Defendant PISD's Response which is on file as Exhibit 20 to the plaintiffs' amended no-evidence and traditional motion for summary judgment filed on 5/18/2012 and referenced herein. Exhibit 21 Defendant's Responses to Plaintiffs' Third Set oflnterrogatories, Requests for Admissions, and Request for Production to Defendant; and Defendant PISD's Response which is on file as Exhibit 21 to the plaintiffs' amended no-evidence and traditional motion for summary judgment filed on 5/18/2012 and referenced herein. Exhibit 22 Plaintiff Terrell's employment contract for 2008-2009 with defendant Pampa Independent School District which is on file as Exhibit 2 to the plaintiffs' second supplemental petition filed on 10/18/2012 and referenced herein. Exhibit 23 Annual Financial Report of Pampa ISD for 2008-2009 is adopted and incorporated as if set forth verbatim herein, with Pages 18, 20, 80 of the report attached thereto, detailing sources of defendant's funding and expenditures which is on file as Exhibit 3 to the plaintiffs' second supplemental petition filed on 10/18/2012 and referenced herein. Exhibit 24 Texas Fact Book 2008 (the Fact Book) by State of Texas Legislative Budget Board is adopted and incorporated by reference as if set forth verbatim herein - Pages 33, 42, 46, 49, 53 from the Fact Book concerning the Sources of Revenue and Spending on public education in Texas for 2008-2009 attached thereto, which is on file as Exhibit 4 to the plaintiffs' second supplemental petition filed on 10/18/2012 and referenced herein. Plaintiff's Second No-evidence and Traditional Exhibit 25 Defendant's salary schedules and information for years 2008-2009, 2009-2010, 2010-2011, 2012-2013; and health insurance premium information for Year 2011- 2012 which is on file as Exhibit 5 to the plaintiffs' second supplemental petition filed on 10/18/2012 and referenced herein. Exhibit 26 Second Supplemental Affidavit of Rebecca Terrell and Chandrashekhar Thanedar which is on file as Exhibit 1 to the plaintiffs' second supplemental petition filed on 10/18/2012 and referenced herein. V. UNDISPUTED FACTS 1. Undisputed facts concerning untimeliness of PISD's website internet notices and Good Faith exception under §551.056(b) and (d) PISD admits that internet website notices required under TOMA §551.056(b) did not "appear" in the prescribed time on PISD or BoardBook's website for 11 meetings from 1/2009 to 5/19/2009. CR814-816, CR767. PISD did not pay any consideration to BoardBook for its service for the relevant period from 1/2009 to 5/19/2009 for which PISD claims good faith exception, or for any other period relevant to this lawsuit. There is no evidence that PISD had BoardBook service from 1/2009 to 5/19/2009. There is no evidence of an executed contract or payment of license fees or renewal fees to BoardBook for 1/2009 to 5/19/2009. PISD has admitted no such documents exist. CR781 (PISD's Response to Request for Production 15). An alleged draft agreement with BoardBook for 2007 is not signed by BoardBook. Exhibit 14. PISD does not claim good faith exception for any period in 2007 or 2008. The properties of the website internet notices show untimeliness in violation of TOMA from 1/2009 to 5/19/2009 for which PISD claims good faith exception. Opinion Pgs. 5-6. There is no evidence that the untimely "created" dates of the PDF notices of meetings in question were the dates when "PISD [allegedly] printed the notices for delivery to plaintiffs." Plaintiff's Second No-evidence and Traditional 2. Undisputed facts concerning notice requirement of posting meeting notices on Bulletin Board - a specifically designated place for school districts under §551.051 PISD admits and does not dispute that it posted board meeting notices on the front door of its central administrative building for the time period in question from 8/13/2008 to 5/19/2009 (22 Meetings). Exhibits 7, 17. See Exhibit 11- Req. for Admission nos. 5 and 7. 3. Undisputed facts concerning "place" requirement under §551.041 PISD admits that for both paper and internet notices it did not specify or include the name of the city in its notices from the period 8/13/2008 to 5/19/2009 (22 Meetings). Exhibit 6, Exhibit 11-Req. for Admission no. 15. In certain cases, defendant's notices merely state "Pampa High School" or "Pampa Junior High School" without stating the address. PISD does not dispute this. Exhibit 10- See CR70-71, CR75, CR89-90, CR129-130, CR147-148, CR156, CR167-168, CR170. 4. Undisputed facts concerning "72 Hour" notice requirement under §551.043 concerning 3/26/2009 and 5/19/2009 board meetings Plaintiffs did not see the notice for 3/26/2009 meeting posted on the front door of the central administrative office or in a bulletin board inside the central administrative office at 5 p.m. or 6 p.m. on 3/23/2009. Exhibit 7. This is undisputed. Plaintiffs saw the notice for 5/18/2009 meeting posted on the front door of the central administrative building on Saturday, 5116/2009. Karen Linder confirmed to plaintiff Thanedar that there was an error in posting this notice because the meeting date changed to 5/19/2009 and that Linder posted a corrected notice for a board meeting on 5/19/09 on the front door of Carver Center -central administrative office- on 5/18/2009 because the change in meeting date to 5/19/09. Exhibit 7. No board meeting took place on 5/18/2009. 5. Undisputed facts concerning requirement to identify section(s) authorizing closed meeting under §551.101 Plaintiff's Second No-evidence and Traditional The presiding officer of the Board did not identify the section or sections under TOMA that authorized closing of the 3/26/2009 board meeting to public. See Exhibit 11-Req. for Admission no. 14; Exhibits 7, 16. 6. Undisputed facts concerning requirement to deliberate in open session under §551.074(b) The audio recording of the closed meeting on 3/26/2009 shows discussion among PISD Superintendent Haenisch and the PISD board members on Terrell's termination. Terrell had specifically requested the action be deliberated in open meeting per §551.074(b). Exhibits 15, 16 (Tape 2 at Counter 43:45). 7. Undisputed facts concerning "designated person" requirement under §551.045(d) PISD's Board of Trustees did not designate or authorize Karen Linder to sign meeting notices or post board meeting notices on Board of Trustees' behalf. PISD admits this. Exhibit 12-Req. for Production 28. Karen Linder signed and posted board meeting notices on behalf of the Board of Trustees ofPISD. See e.g. Exhibit 6. VI. ARGUMENT Plaintiffs repeat the preceding paragraphs in their entirety as if set forth verbatim herein. A. Declaratory Relief under TOMA Plaintiffs are entitled to declaratory relief under TOMA whether or not any other relief is granted and whether or not PISD's actions in violation ofTOMA are voided. 1. Plaintiffs are entitled to declaration that PISD violated TOMA §551.056 specifically concerning the 3/26/09 Board meeting and 22 Meetings. a. PISD refused and failed to produce evidence that it paid the required $1,600 fee and any renewal fees for service to BoardBook to post internet notices for PISD PISD admits that from January 15, 2009 through May 19, 2009 internet website notices did not appear on its website (or its agent BoardBook's website) as required by §551.056(b). Plaintiffs Second No-evidence and Traditional CR816. PISD alleges that it had BoardBook service 5 to post internet website notices of its Board meetings on BoardBook's website since 2007. CR772. Thus by PISD's admission, BoardBook is an agent of PISD and they were parties in joint enterprise to post PISD's Board meeting notices as required in §551.056(b) on BoardBook website via a link on PISD website. See CR206; CR772. PISD claims good faith defense under TOMA §551.056(d) because it claims that the "Link" to internet notices on BoardBook's website was not established in error for 5 months until plaintiff Thanedar pointed out the problem to PISD on 5/15/2009. CR767. PISD has the burden to produce evidence and persuade on its good faith statutory defense under TOMA. See §551.056(d); §§551.043(b)(l) and (b)(3). Inspite of PISD's bare self-serving claim, PISD has steadfastly refused and failed to produce absolutely any competent evidence that PISD in fact had BoardBook service for the period in question from 112009 to 5/19/2009 or from 8/13/08 to 5/19/2009 for 22 Meetings and that PISD paid consideration ($1600 or any renewal fees) to BoardBook to have a valid agreement. Exhibit 14 (See "Terms" and "Fees"). PISD refuses to produce documents or checks showing payment of license fees and their dates, renewal notices, purchase orders from BoardBook, or any document or communication between BoardBook and PISD showing that BoardBook service was in effect from 1/2009 thru 5/19/2009- the period for which PISD claims a technical problem with "Link" to BoardBook internet notices. In addition, PISD further refused and failed to produce evidence of BoardBook service from 8/13/08 to 12/2008 - See 5 It is not disputed that BoardBook software is licensed by Texas Association of School Boards, Inc. (TASB) to its members and that TASB is governed by its member school districts according to its public website. Exhibit 2. BoardBook is an agent of PISD to post PISD's internet website notices to comply with TOMA §551.056(b) as the internet notices are produced in PDF format by BoardBook and posted and presented for public view on BoardBook website on behalf on PISD. CR205-206. Further, BoardBook is a party in joint enterprise with PISD in posting PISD's TOMA internet notices on BoardBook's website. Tex. Dept. ofTransp. v. Able, 35 S.W.3d 608, 613 (Tex. 2000). Plaintiffs Second No-evidence and Traditional PISD's objections to plaintiffs' subpoena duces tecum at CR356-357. Incredibly, PISD further stated no such documents exist. CR781 (PISD's Response to Request for Production 15). Inspite of PISD's refusal, the Attorney General of Texas ordered PISD to produce "BoardBook agreement" pursuant to plaintiff Thanedar's Texas Public Information Act request. See CR368-371 (Attorney General's Opinion); and CR367 (Thanedar's Open Records Request). It is revealing that the "BoardBook agreement" PISD produced was a "Draft" agreement for 2007 (Exhibit 14) which was not executed because there is NO evidence of payment of consideration of $1 ,600 from PISD to BoardBook in the record. This "draft" or "offer" is not signed by BoardBook and contains no space for BoardBook's signature. Thus the purported agreement (Exhibit 14) was not executed, and is invalid because no consideration was paid. Further the alleged 2007 draft agreement with BoardBook clearly states that unless and until payment of fees (or a purchase order) is received by BoardBook, the BoardBook service will not be in effect. Exhibit 14 (see "Terms" and "Fees"). Here, PISD produced no evidence whatsoever that it ever paid the license fee for BoardBook service, nor issued a purchase order for the license fees, for the period in question in this lawsuit from August 13, 2008 to May 19, 2009. In fact, PISD refused to produce any evidence that it ever paid license fee for BoardBook service for any year from 2007, 2008, and 2009. See CR356-357. Exhibits 20, 21. It further refused and failed to produce renewal notices, payments, any correspondence concerning delivery and execution of agreement, communication between PISD and BoardBook concerning the alleged BoardBook service PISD claims it had for these years (CR356-357) further stating no such documents exist. CR781 (Response to Req. for Prod. 15). Exhibits 20, 21. Because PISD refused and failed to show that it paid consideration for BoardBook service, and refused and failed to show that it did delivery and execution of agreement, as a matter of law, there was no Plaintiffs Second No-evidence and Traditional Motion for Summary Judgment Cause No. 35621 Page 17 of43 agreement between PISD and BoardBook for BoardBook service to post internet notices under TOMA. See Exhibit 14 ("Terms and "Fees"). Advantage Physical Therapy, Inc. v. Cruse, 165 S.W. 3d 21, 24 (Tex.App.-Houston[14th Dis.], 2005 no pet.) (without consideration, there is no contract). Thus as a matter of law, PISD's good faith defense based on the alleged link to BoardBook service [which it did not have] for posting PISD's internet notices must fail. PISD's bare unsupported assertion that it had BoardBook service from 8113/2008 through 5/19/2009 is hearsay, mere surmise, speculation which is not legal evidence. Kindred v. Con/Chem, Inc. at 63. Because PISD refused and failed to produce evidence of payment of license fees for service posting internet notices to BoardBook, as a matter of law, PISD's good faith defense under §551.056(d) must be rejected and it must be concluded that PISD's good faith defense was subterfuge and obstruction of justice deserving sanctions by this Court. b. "Created" Dates of Internet Notices Show Untimeliness: The ih Court of Appeals in its opinion on 4/29/2011 ("Opinion") on this matter has found that internet notices of the 22 Meetings in question (including the 3/26/09 meeting) were indeed untimely i.e. appeared on PISD/BoardBook's website well after the meetings in question were held. See Opinion at 5-6. Also see Exhibit 13-CR814-815; Exhibit 12-CR802; Exhibit 7. The appeals court, however, remanded the case due to PISD's alleged contention that the "created dates" of its internet Adobe PDF notices on BoardBook website were in actuality the dates on which PISD printed the internet notices for delivery to plaintiffs. See Opinion at 5-6. On remand, plaintiffs requested supplementation on this issue (Exhibit 3), but PISD failed to supplement written discovery concerning the above argument it made before the appeals court, nor did it indicate where in the record it produced such pertinent evidence. Exhibits 20, 21. Plaintiffs Second No-evidence and Traditional As explained above, there is no evidence that PISD even had BoardBook service, thus "created" dates being "print" dates in BoardBook is an issue created to divert court's attention and to mislead it- and is fraud on this Court and the appeals court. Importantly, this is an absurd contention by PISD wholly unsupported in the "PDF Reference version 1.3." See Exhibit 19. 6 Collins English Dictionary-complete and unabridged, Harper Collins publishers, 1991-2003 defines create: ''to cause to come into existence." Merriam-Webster Dictionary 2012 defines create: "to bring into existence." 7 Plaintiffs filed PISD's internet notices with document properties on CD-ROM and Hardcopies of CD- ROM in the record as they were posted by PISD on PISD's website. Plaintiffs downloaded the internet notices to CD-ROM and printed hard copies for filing in the record of this case as evidence. Neither said CD-ROM nor Hardcopies of CD-ROM were given to plaintiffs by PISD. Exhibits 4, 5, 9, 10. Plaintiffs Second No-evidence and Traditional dispute plaintiffs' assertion that plaintiffs printed the internet notices from PISD's public website themselves. Exhibit 12-Interrogatory No. 24(CR804). Further PISD's vague unsupported assertion that v1ewmg PDF notices changes the "created" and "modify" dates and times is mere surmise, incorrect, and speculation and is not evidence. Exhibit 12-Interrogatory No. 25; Kindred, Id at 63. Also see Exhibits 7, 19. The competent summary judgment facts are indisputable that defendant's postings of its internet notices of board meetings from August 13, 2008 through May 19, 2009 are untimely and they were not posted during the prescribed period under TOMA in violation of Sections 551.056(b); 551.041, 551.043(a). The web notice document properties posted by defendant PISD on its/BoardBook website for 22 Meetings unambiguously show that the web notices were produced or created in May 2009 and then were posted on the website untimely on 5/19/09. Exhibits 1, 7; CR807; CR816. The definition of"created" here means to prepare or produce the internet notices in Adobe PDF format for posting to the website for public to view the internet notices. See Exhibit 7; Exhibits 9, 10, 19. PISD admits that internet notices did not appear on its website from 112009 until5/19/2009. Exhibit 1; Exhibit 13-CR814-815; Exhibit 12-CR802. The properties of the website notice of the 3/26/09 meeting (Exhibits 4 and 5) show that the web notice was created on 5/8/09 and untimely posted on defendant's/BoardBook's website on 5/19/09 in violation of TOMA, Texas Gov't Code §551.0568 , §551.041 9, §551.043(a) 10 • 8 The Open Meetings Act requires a school district to post notices of its board meetings on its website concurrently for the prescribed 72 hours before the meetings. Texas Gov't Code §551.056 9 TOMA requires that "A governmental body shall give written notice of the date, hour, place, and subject of each meeting held by the governmental body." Texas Gov't Code §551.041. 10 The notice of a meeting of a governmental body must be posted in a place readily accessible to the general public at all times for at least 72 hours before the scheduled time of the meeting, except as provided by Sections 551.044-551.046. Tex. Gov't Code §551.043(a). Plaintiffs Second No-evidence and Traditional Exhibit 1; Exhibit 7. PISD admits that the internet notice for 3/26/09 meeting did not timely "appear" on its website. Exhibit It-Interrogatory 13. c. PISD's Good Faith Defense Fails As A Matter Of Law: Remarkably, notwithstanding the subterfuge and obstruction described above, PISD's "good faith" defense still fails as a matter of law. For the 11 out of 22 Meetings in question concerning the violation of §551.056(b), PISD claims good faith defense under §551.056(d). TOMA §551.056(d) provides that: The validity of a posted notice of a meeting or an agenda by a governmental body or economic development corporation subject to this section that made a good faith attempt to comply with the requirements of this section that is due to a technical problem beyond the control of the governmental body or economic development corporation. The definition of "Good faith" is statutorily defined: A governmental body satisfies good faith under TOMA when it "makes a good faith attempt to continuously post the notice on the internet during the prescribed period ... " See TOMA §§551.043(b)(l) and (b)(3). PISD admits that for 11 meetings from January 15 to May 19, 2009 (including the 3/26/09 Board meeting) for about five months, the internet notices did not appear on its website, but claims that it did not know that the "link" to the notices on BoardBook was not established or was allegedly "severed." The ih court of appeals did not find that a material fact question remains regarding the above assertion of good faith of the alleged "severance" of the "link" to notices for 5 months. See Opinion 1-6. Thus good faith claim by PISD is ripe for summary judgment in plaintiffs favor for the following reasons. 1. Failure to Establish Link: Because PISD failed to show competent evidence that it paid for or had BoardBook service in January 2009, PISD's good faith defense fails. PISD failed to "establish the link" on its new website in 1/2009 to BoardBook because PISD did not have Plaintiffs Second No-evidence and Traditional BoardBook service. Exhibit 1. As explained before, PISD refused and failed to produce evidence of payment to BoardBook for its service. Thus, the alleged claim of "severance" of link to BoardBook is subterfuge. Suzie Jameson simply did not think the link to BoardBook notices was necessary because there was no BoardBook service in January 2009 through May 19, 2009. Exhibit 1. There was no "accidental" "problem" here. PISD admits that it did not "know" of the severance of the link to BoardBook for 5 months until plaintiff Thanedar told PISD (Linder) of the "non-appearance" of internet notices on 5/15/09. CR814-816. Such claim of "ignorance" of the link problem for 5 months flies in the face of common sense and is further proof of subterfuge. Exhibits 1, 7. 2. PISD Failed to Verify "Appearance" of Internet Notices on its website and failed to Verify Compliance with TOMA for 5 Months: PISD's good faith defense fails because PISD failed to verify compliance with §551.056(b) for 5 months, and even notice or remedy the non-establishment of "link" to notices for 5 months. This is in violation of §551.043(b)(1) and (3) which requires the continuous attempt to comply i.e. verify compliance and fix any problems during the prescribed 72 hours. See §551.043(b)(l) and (b)(3); Exhibits 1, 7. The simple truth here is that PISD did not verify "appearance" of its internet notices on BoardBook because it knew that it did not have BoardBook service during 1/2009 thru 5/19/2009- there was no need to verify what it already knew, that is, it was not posting internet notices on its website and was not complying with §551.056(b). 3. Failure to Establish Link is not a "Technical" problem and is not "Beyond the Control" of PISD: PISD's good faith defense fails because the only evidence PISD produces is Jameson's claim that she did not establish the link to internet notices on BoardBook because she did not think it was necessary on PISD's new website. Exhibit 1. This belief, or negligence, or Plaintiff's Second No-evidence and Traditional Motion for Summary Judgment Cause No. 35621 Page 22 of43 mistake by PISD (Jameson) is neither "technical," nor "beyond PISD's control" for 5 months. Due diligence in compliance with TOMA is PISD's obligation under law and is well under the control of PISD. Thus PISD fails the §551.056(d) test. PISD tries mighty hard to pass its negligence or consciOus indifference to TOMA §551.056(b) as a "technical problem" "beyond its control," but produces no evidence in support. PISD produces no authority or evidence to justify why negligence or mistake is a technical problem beyond its control. The truth is PISD (Jameson) very quickly established the link when told that it was "necessary" after 5 months. Exhibit 1. The above is merely subterfuge because PISD produces no evidence that it even had BoardBook service from Jan. 2009 to 5/19/2009. 4. Importantly, there is no evidence that PISD ~Checked its Website Even Once in 5 long months to verify whether or not its internet notices required under TOMA "appeared" on its website so that public can actually see them. No one at PISD, not Linder, not Jameson, not superintendent Haenisch bothered to check the "appearance" of its internet notices on its website. CR807; CR768. There is no evidence of due diligence during the 5 months of non-appearance of internet notices on PISD's website. CR807. This is "conscious indifference" or admission of guilt and cannot meet the good faith test under §551.056(d). Exhibit 1. CR768; CR807. 5. Plaintiffs objections to PISD's summary judgment evidence - Linder's Affidavits and Haenisch Affidavits and PISD's answers to interrogatories Plaintiffs object to Karen Linder Affidavit at CR338-340 ("Linder Affidavit 1") and her supplemental affidavit at CR726-729 ("Linder Affidavit 2") and further object to Barry Haenisch Affidavit at CR336-337 ("Haenisch Affidavit 1") and his supplemental affidavit at CR724-725 ("Haenisch Affidavit 2") and PISD's answers to interrogatories. A. Objections to Linder Affidavits (Exhibit 18): The Texas Supreme Court has held that affidavits must be based exclusively on personal knowledge and a composite or hybrid Plaintiffs Second No-evidence and Traditional affidavit must be disregarded. See Humphreys v. Caldwell, 888 S.W.2d 469, 470-71 (Tex. 1994). Linder Affidavit 1 and Linder Affidavit 2 are both defective substantively and in form as they are not made exclusively from personal knowledge, make impermissible factual and legal conclusions, are based on hearsay, vague, contradictory conflicting information, and are irrelevant in part to the issues. Further, Linder is not competent to testify about any technology issues, or TOMA and its provisions, as she purports to do in Linder Affidavits 1 and 2 which are thus made in bad faith and must be disregarded. TRCP 166a(h); Also see Humphreys, id., Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). Tex. R. Civ. Proc. 166a(c); Casso v Brand, 776 S.W.2d 551, 558 (Tex. 1989). Larson v. Family Violence & Sexual Assault Prevention Ctr. Of S. Tex., 64 S.W.3d 506, 514 n.6 (Tex. App.-Corpus Christi 2001, pet. denied)( Affidavits must set forth facts, not legal conclusions.) These case authorities apply to all objections below. Objections to Linder Affidavit 2 cover same issues in Linder Affidavit 1. 1) Assertions regarding authorization to post notices (Linder Affidavit 2, ,-3, ,-4): must be disregarded as they are vague i.e. do not state who (Board or otherwise) authorized/designated Linder, make legal conclusions and opinions concerning compliance with TOMA which Linder is not competent to make. Further, Linder's sworn statements are conclusively false and contradict defendant's polices and bylaws viz. BE (Local) at CR821-823, BDAA (Local) at CR832, and BJA (Local) at CR834-836 show that the Board retained the authority to call, sign, and post board meeting notices to itself and did not delegate it to anyone. 2) Linder Affidavit 2, ,-5, ,-6, and ,-7 must be disregarded as they are composite and hybrid, not exclusively made from personal knowledge, are hearsay, irrelevant in part, and make impermissible legal and factual conclusions. Specifically: Plaintiffs Second No-evidence and Traditional Motion for Summary Judgment Cause No. 35621 Page24 of43 ~5- "Accessibility" of front door posting: is hearsay, vague, irrelevant to the issues, and makes impermissible legal and factual conclusions and subjective opinions. Linder's assertion that "[each notice] was posted on the front door at least 72 hours before each respective meeting" is vague i.e. does not state the date and time and does not dispute that the notices of 3/26/09 and 5/19/09 board meetings were not continuously posted for the entirety of 72 hours before the meetings, and thus her assertions must be disregarded as they do not raise a fact issue regarding said meetings. ~6 and ~7 - Assertions about public complaints: are hearsay, vague, speculative, and irrelevant to the issues in this case, and make factual and legal conclusions and subjective opinions and must be disregarded. Linder is not competent, nor can make and express legal opinions in her affidavit regarding compliance with TOMA. 3) Assertions about 3/26/09 notice (Linder Affidavit 2, ,.8): Linder's statement- "On or before March 23, 2009, I became aware that the notice had been taken or lost from the front door" is vague, composite, hybrid including collected "second hand" information, speculative and must be disregarded. Linder's statement that she posted notice "still more than 72 hours" is vague and irrelevant to TOMA issues herein as Linder does not specifically dispute that 3/26/09 meeting notice was not on the front door continuously for 72 hours without revisions before the start time of 3/26/09 meeting. Linder does not specify the time and the date on which she taped or re-taped the notices to the front door. Further 3/20/09 was a Board approved holiday-week of "Spring Break", and Linder fails to assert that she worked during "Spring Break" holiday. 4) Linder's assertions about website changes by Jameson and BoardBook problems: Linder Affidavit 2, ~9 lacks personal knowledge, is second hand information gathered from others, composite in nature and not exclusively from Linder's personal knowledge. As Plaintiffs Second No-evidence and Traditional secretary to Haenisch, Linder is not competent to testify about BoardBook software or any alleged technical problems at issue here e.g. Jameson not establishing "link" to BoardBook website concerning missing Board notices. Linder's statement - "Once the notice was created I would release it to the District website and the BoardBook software would send and automatically place the notice on the district website" must be disregarded as this is grossly vague, speculative, contradictory, and draws factual conclusions and is not competent summary judgment evidence as Linder is not competent to testify about the technology problems and software technical matters between BoardBook software and PISD website. For example, indisputable evidence shows that BoardBook software does not send internet notice to "district website." To the contrary, BoardBook displays an internet meeting notice on BoardBook's website after a notice is released. See CR205-206 showing notices on www. boardbook.org. Further, Linder fails to even aver whether she had personal knowledge that PISD did or did not have BoardBook service at all during 112009 through 5/19/2009 for which PISD claims good faith exception. Further, Linder's statement "On or about January 15, 2009 Suzie Jameson of the Information Technology Department made some changes to the District website. In the course of making these changes the link between BoardBook and the website was severed" is hearsay, lacks personal knowledge, is second hand collected information, and is based on vague speculation. Linder's hearsay testimony on behalf of Jameson is not competent summary judgment evidence and thus, must be disregarded. Linder's hearsay about "some changes" being made and the link being "severed" is vague, misrepresent facts and are in contradiction with Suzie Jameson's email to Linder. See Exhibit 1. Linder's repetitive impermissible hearsay statements about how BoardBook software worked are irrelevant to the issues in this case as there is no competent evidence that PISD even had BoardBook software from 8/13/2008 through Plaintiff's Second No-evidence and Traditional Motion for Summary Judgment Cause No. 35621 Page26 of43 5/19/2009, and Linder is not competent to testify about technical workings of BoardBook software. Linder's statement "However, I was unaware that the link between BoardBook and the website had been severed and BoardBook did not indicate that the link had been severed. Instead, it appeared that the notices were still being posted to the website just as before. It was not until May of 2009 that I was informed that the notices were not appearing on the website" must be disregarded as it is grossly vague, speculative, composite and hybrid in nature, lacking personal knowledge of the facts. Thus the entire ~9 must be disregarded. Humphreys, id. 5) Assertions of appearance of Notices on website (Linder Affidavit 2, ,10): Linder's assertions are bare conclusions, vague, and speculative, thus are not admissible as evidence because Linder does not affirmatively state that she verified appearance of each of PISD's internet website notices on PISD's website or BoardBook website for the public to view for the prescribed period for Board meetings from August 13, 2008 to January 15, 2009. Linder further fails to state how she "knows it for a fact" that postings were properly made to the website and how many times and whether she checked the appearance of notices on PISD website or BoardBook website during the said time. This is pertinent because there is absolutely no competent evidence that PISD even had BoardBook service until May 19, 2009 and further PISD has admitted that TOMA notices did not "appear" on PISD website or BoardBook website for 11 Meetings from January 2009 to May 19, 2009. Further defendant's own website postings conclusively show that the electronic TOMA notices posted on BoardBook's website were untimely created in May, 2009, weeks or months after the board meetings in question took place. CR814-815. Thus the entire ~10 must be disregarded. Humphreys, id. 6) Linder's assertions about TOMA compliance (Affidavit 2., 11) must be disregarded as Linder makes impermissible legal conclusions and Linder is not competent to make them. Plaintiffs Second No-evidence and Traditional Thus, Linder's statement "All of the notices for the meetings of the District's Board held between August 13, 2008 and May 19, 2009 meet the requirements or an exception set forth in the Act" must be disregarded. Plaintiffs object to the entirety of Linder Affidavit 2 and Linder Affidavit 1 as they are egregiously defective substantively and in form as explained above. PISD introduced Linder Affidavits in bad faith. Linder Affidavits are not in compliance with TRCP 166a(f). Linder Affidavits must be disregarded in this summary judgment proceeding. B. Objections to Haenisch Affidavits (Exhibit 18): The Texas Supreme Court has held that affidavits must be based exclusively on personal knowledge and a composite or hybrid affidavit must be disregarded. Humphreys v. Caldwell, 888 S.W.2d 469, 470-71(Tex. 1994). Haenisch Affidavit 1 and Haenisch Affidavit 2 both are not made exclusively from personal knowledge, are based on hearsay, vague, conclusory, and are irrelevant to the issues, thus must be struck and disregarded. Objections to Haenisch Affidavit 2 cover same issues in Haenisch Affidavit 1. See Exhibit 18. 1) Assertion concerning Linder's authorization to post notices for 8 years (Haenisch Affidavit 2, ,3): is hearsay, vague and conclusory as Haenisch does not state who exactly authorized Linder and how, lacks personal knowledge as Haenisch was not employed for 8 years. Further, Haenisch's sworn affidavit is conclusively false and contradict PISD's polices and bylaws viz. BE (Local) at CR821-823, BDAA (Local) at CR832, and BJA (Local) at CR834- 836 show that Board retained the authority to sign and post board meeting notices to itself and did not delegate it. The entire ~3 must be disregarded as vague, hearsay, composite, and lacking personal knowledge. Plaintiffs Second No-evidence and Traditional 2) Legal conclusions about "accessible," "convenient", "visible," and "place" CHaenisch Affidavit 2, ,4, ,7): must be disregarded as they are vague, hearsay, and make impermissible factual and legal conclusions concerning TOMA about - what is "accessible," what is "visible" for 24/7, the convenience of posting notices on the front door, what affords most access to general public, and legal requirements of "place." Haenisch' s opinions are hearsay as they make assumptions on behalf of the general public and Haenisch is not a competent authority to make these legal conclusions or opinions. Further, Haenisch has not been employed by defendant for 8 years. This paragraph must be disregarded in entirety. Humphreys, id; Larson v. Family Violence & Sexual Assault Prevention Ctr. OfS. Tex., 64 S.W.3d 506, 514 n.6 (Tex.App.-Corpus Christi 2001, pet. denied) (Affidavits must set forth facts, not legal conclusions.) 3) Discussion of Terrell contract in closed meeting (Haenisch Affidavit 2, ,5) must be disregarded as it is false and is conclusively contradicted by the audio tapes of the 3/26/09 meeting (2SCR3- Exhibit 8.3 at Counter 43:45 onwards, and Exhibit 8.2 at Counter 19.44 which is the undisputed competent evidence in this case that show that Haenisch and the Board members discussed Terrell's employment status and contract in the closed session of the Board meeting on 3/26/09. ~5 must be disregarded as it is in bad faith and contradicted by undisputed evidence. Humphreys, id. Haenisch affidavits are not in compliance with TRCP 166a(f). C. Objections to PISD's answers to interrogatories: PISD did not attach verification to its answers and supplemental answers to Terrell's interrogatories in compliance with TRCP Rules 197.2(d) and 193.5(b). See CR764-769; CR685-690; CR708-711; CR800-811; CR812- 817. TRCP 197.2(d) requires that "A responding party- not an agent or attorney as otherwise permitted by Rule 14 - must sign the answers under oath ... " The "Responding Party" here is Pampa Independent School District. PISD has attached Karen Linder's affidavit or PISD Plaintiffs Second No-evidence and Traditional Motion for Summary Judgment Cause No. 35621 Page29 of43 attorney's signature to its answers to plaintiffs' interrogatories; however, her affidavit or counsel's signature is not sufficient to comply with TRCP 197.2(d). Linder performs clerical duties at PISD as secretary to Haenisch. Linder neither has real, express, implied, nor apparent authority to represent PISD, a government body, to make legal representations on behalf of PISD. It is obvious here that Linder is being put up by PISD as a shield. As Linder Affidavits above must be struck, it is proper that answers to interrogatories verified by Linder and PISD counsel must also be struck. It is well established PISD can only act through its Board as a whole and did not grant any kind of authority to Linder in this matter. PISD's above answers and supplemental answers to plaintiffs' interrogatories should be struck and disregarded for failure to comply with TRCP 197.2(d) and 193.5(b). Further, Linder's affidavits and PISD's assertions concerning BoardBook (CR800-811) are not legal evidence because Linder does not claim expertise, nor assert knowledge or experience in technical matters relating to PISD's website or the alleged "link" issues, or BoardBook software. PISD's claims concerning how "created" dates in document properties of Adobe PDFs in BoardBook changed due to printing (refer to appeals court's opinion at 5-6) are frivolous, vague, mere surmise and are not legal evidence. Kindred, Id at 63. Further, there is no evidence that Linder has any knowledge, responsibility, or experience concerning document properties of internet notices or BoardBook software's technical or security functions. Plaintiffs note that PISD has deleted the internet notice for 5/19/09 meeting and replaced it with a notice for meeting on 5/18/09. It is not disputed that no meeting ever took place on 5/18/2009. Plaintiffs object to this tampering with evidence. The original correct internet notice for 5/19/09 is in the record on CD-ROM and in Hardcopy formats. Exhibits 9, 10. Plaintiffs Second No-evidence and Traditional PISD's good faith defense under §551.056(d) is a fraud on the Court, a subterfuge and must be rejected. Plaintiffs are entitled to summary judgment in their favor in this regard. 2. Plaintiffs are entitled to declaration that PISD violated TOMA §551.051 specifically concerning the 3/26/09 Board meeting and 22 Meetings. TOMA §551.051: School District: Place of Posting Notice specifically states: A school district shall post notice of each meeting on a bulletin board at a place convenient to the public in the central administrative office of the district. Tex. Gov't Code §551.051. No material fact question remains here. It is undisputed that PISD taped TOMA notices to front door of its central administrative office (Central Office) for Board meetings for 3/26/09 and 22 Meetings e.g. See Exhibits 7, 17. See Exhibit 11-Req. for Admission nos. 5 and 7. TOMA mandates a physical location i.e. Bulletin Board in central administrative office, where PISD must post TOMA notices. §551.051. This is further emphasized by §§551.043(b)(2) and (b)(3). The statutory language of "Bulletin Board" is clear and unambiguous. Therefore, the court lacks the power to interpret or change it and must apply the most obvious and common meaning of the words. See the Tex. Dept. ofTransp. v. City of Sunset Valley, 146 S.W. 3d 637, 642 (Tex. 2004) (If a statute is clear and unambiguous, courts should afford it its common 11 Merriam-Webster's Collegiate Dictionary, Eleventh Edition defining bulletin board ( 1831 ): "a board for posting notices (as at a school)." Merriam-Webster, http://www.merriam-webster.com/dictionary (last visited 3/16/2012) defining bulletin board (1831): "a board for posting notices (as at a school)." Plaintiffs Second No-evidence and Traditional The meaning of front door 12 has been well established for more than 250 years. It is obvious to a reasonable person that the predominant purpose of a "door" is to "enter or leave a structure" or create a "barrier" to close or open an entry and the predominant purpose of a "Bulletin Board" is to "post notices." Thus as a matter of law front door is not bulletin board and does not meet the requirement of §551.051. PISD violated §551.051 by failing to post notices of the 3/26/09 meeting and the 22 Meetings on a bulletin board in the Central Office. Further it is undisputed that PISD had a glass enclosed bulletin board inside the central administrative building that PISD did not use for TOMA notices. PISD taped notices on the front door of its Central Office building so that the general public is forced to stand outside of the building to read notices of meetings. Exhibits 7, 17. After this lawsuit was filed, defendant knowingly removed the bulletin board in the Central Office lobby and placed it outside the front door of the Central Office building on or about 6/5/09. See Exhibit 11-Req. for Admission 3 and 4; Exhibit 7. Thus it is obvious that PISD knows the difference between front door and bulletin board. Front door is not bulletin board under TOMA. Even assuming arguendo, "Front Door" is bulletin board, front door of a central administrative office building as place to post TOMA 12 Cambridge Dictionary of American English, http://dictionaries.cambridge.org (last visited l 0/21120 l 0) defining 'the "front door" of a building, esp. a house, is the door on the side of the building that faces the street, or the main entrance door.' Dictionary.com, http://dictionary.reference.com (last visited 10/211201 0) defining "front door (1740- 1750): "the main entrance to a house or other building, usually facing a street." Merriam-Webster (thesaurus), http://www.merriam-webster.com/dictionary (last visited 3/16/2012) defining door: 1) "a barrier by which an entry is closed and opened"; 2) "the opening through which one can enter or leave a structure" <a steady stream of visitors through the front door>. Plaintifrs Second No-evidence and Traditional notices is not "convenient" 13 and further is not "accessible" 14 under TOMA as a matter of law. Forcing general public, citizens, and taxpayers to stand outside the administrative building braving snow, rain, heat, cold, traffic in and out of the building is neither safe, accessible, easy, comfortable, advantageous, nor suited to read notices, thus not convenient under TOMA §551.051. Further forcing taxpaying public to stand outside of the building they paid for is offensive to the purpose of TOMA. Being forced to stand outside of a building is not proper, suitable, or safe as it exposes readers to harm coming from the street's unsafe conditions including crime. PISD's front door posting of notices of 3/26/09 and 22 Meetings does not comply with the "in" the Central Administrative Office requirement of §551.051 because PISD's notice cannot physically be read from inside PISD' s central administrative office. Exhibits 7, 17. To read PISD's meeting notice posted on its Central Office front door, one must stand outside the Central Office building to read the notice. The clear language and intent of §551.051 is that a reader must be able to enter the Central Office and read a notice "in" the central administrative office. Because PISD's front door posting of notices of 3/26/09 and 22 Meetings fail this requirement, PISD is in violation of §551.051. Based on above, posting TOMA notices on front door does not meet "convenient" test of §551.051 and further fails the "readily accessible" test under §551.043. As explained above, PISD fails even the overruled "substantial compliance" standard here - posting notices on front door does not meet reasonable standard of suitability for reading 13 The American Heritage Dictionary defining convenient: "Suited or favorable to one's comfort, purpose, or needs." Merriam-Webster Dictionary defining convenient: "Suited to personal comfort or to easy performance; suited to a particular situation; affording accommodation or advantage." 14 Merriam-Webster Dictionary defining accessible: "capable of being used or seen." Collins English Dictionary defining accessible: "easy to approach, enter, or use." Plaintiffs Second No-evidence and Traditional notices and because it is an "unwelcome mat" to "keep out" or to discourage, frustrate taxpayers and public from entering the central administrative office to participate and observe their school district. PISD fails the Texas Supreme Court law of the Exact and Literal compliance standard because PISD failed to post notices of the 3/26/09 and 22 Meetings in question in the place specifically mandated for school districts by law- "Bulletin Board." See §551.051; Acker, !d. If this court were to permit PISD to make its own law and not comply with the specifically designated place in TOMA, it would be an invitation to government entities throughout the State of Texas to post TOMA notices on back doors, side doors, front/back/side windows, on plants in central office, on restroom doors, office doors, and so on. This is not only offensive, but will eviscerate TOMA. Plaintiffs are thus entitled to declaratory relief that PISD violated TOMA §551.051 for the 3/26/09 Board meeting and 22 Meetings in question. 3. Plaintiffs are entitled to declaration by the court that PISD violated §551.043 concerning the 3/26/09 Board meeting and 5/19/09 Board Meetings Plaintiffs' sworn testimony is undisputed that the notice of 3/26/09 Board meeting was not witnessed or seen posted in the bulletin board in PISD's Central Office nor on its front door at 5 P.M. and after 6 P.M. on 3/23/09 i.e. notice was posted less than the prescribed 72 hours in violation of §551.043. Exhibit 7. PISD's (Linder) vague claims and surmise that it posted all notices on the front door more than 72 hours ahead of time are not competent summary judgment evidence or legal evidence and must be disregarded. Kindred, Supra, Further such conclusory assertions do not specifically dispute 1) Thanedar and Terrell's conversation with PISD's employee Ramiro Soto that there was no board meeting notice posted at or immediately after 6 P.M. on 3/23/09 and 2) that plaintiffs noticed that Linder was not at work at central office at PISD at 5 P.M. or at or after 6 P.M. on 3/23/09 and that 3) the notice appeared on the front door Plaintiffs Second No-evidence and Traditional the next day on 3/24/09 i.e. less than prescribed 72 hours (a "revised" notice was taped to the front door of central office building on 3/24/09). Exhibit 7. Similarly, plaintiff Thanedar's sworn testimony about his conversation with Linder regarding PISD's 5/19/09 Board meeting is undisputed i.e. Linder mentioned to Thanedar that the notice for 5/19/09 meeting was posted on 5/18/09 because the date of the meeting had changed. This caused the notice to be posted for less than the prescribed 72 hours in violation of §551.043 and the Exact and Literal Standard of compliance with TOMA promulgated by the Supreme Court in Acker. Exhibit 7. Because PISD posted (paper) notices of 3/26/09 and 5/19/09 Board meetings at a physical location for less than the prescribed 72 hours, PISD violated §551.043. 4. Plaintiffs are entitled to declaration by the court that PISD violated §551.041 when PISD failed to give notice of "place" of its 3/26/09 Board meeting and 22 Meetings There is no evidence and it is undisputed that PISD's notices of 3/26/09 board meeting and 22 Meetings refer to "321 W. Albert" and do not specify a city where the meeting will be held. See e.g. Exhibit 6, Exhibit 11-Req. for Admission no.15. In certain cases, defendant's notices merely state "Pampa High School" or "Pampa Junior High School" without stating the address. PISD does not dispute this. Exhibit 10- See CR70-71, CR75, CR89-90, CR129-130, CR147-148, CR156, CR167-168, CR170. Such truncations require the general public to "fill in the blanks" which is in violation of TOMA. TOMA §551.041 specifically requires that the general public or a "reader" be notified of the "place," but PISD failed to do so. The Texas Supreme Court has "demanded exact and literal compliance" with the Open Meetings Act. See Acker v. Texas Water Commission, 790 S.W.2d 299 (Tex. 1990). Here defendant's truncations mentioned above violate the plain language of TOMA. Further it is public record and is undisputed that PISD encompasses two counties - Gray county and parts of Roberts county, Plaintiffs Second No-evidence and Traditional where meetings could be held in different cities. 15 Thus plaintiffs are entitled to declaration that PISD violated §551.041 's "place" requirement in regards to 3/26/09 Board meeting and 22 Meetings in question. 5. Plaintiffs are entitled to declaration by the court that PISD violated §551.045(d) concerning the notices of 3/26/09 Board meeting and 22 Meetings It is undisputed that Karen Linder, secretary to Superintendent, signed notices of 3/26/09 board meeting and 22 Meetings on behalf of the Board of Trustees. 16 See e.g. Exhibit 6. There is no evidence that PISD Board of Trustees ever designated or authorized Linder to sign on its behalf or post notices of its meetings. PISD admits that Board never authorized nor designated Karen Linder under TOMAto sign notices of meetings on behalf of the Board. Exhibit 12-Req. for Production 28. §551.045(d) requires an authorized or designated person to post notices of meetings. The language of the section in this regard is clear - it applies to all notices - not just emergency meetings. 17 See §551.045(d). Thus plaintiffs are entitled to declaration that PISD failed to comply with §551.045(d) because Linder was neither authorized nor designated by Board to post meeting notices when she did so for 3/26/09 meeting and 22 Meetings. Acker. 6. Plaintiffs are entitled to declaration that PISD violated TOMA §551.101 by improperly closing its March 26,2009 meeting and further violated §551.074(b) It is not disputed that defendant's president, Mr. Charles Smith did not identify the section or sections of TOMA that authorized closing the 3/26/09 board meeting to the public 15 While it may seem possible to guess that "321 W. Albert" is in Pampa, Texas, there are over 1,030 school districts whose names do not necessarily lend to guessing names of the cities where the meetings may be located e.g. Pharr-San Juan-Alamo (PSJA) lSD; Spring Branch lSD, etc. 16 The internet notices required under §551.056(b) posted untimely by PISD were not signed by anyone. 17 Tex. Gov't Code §551.045(d) requires: "A person who is designated or authorized to post notice of a meeting by a governmental body under this subchapter" to post notice for the governmental body. The "subchapter" referenced above is unambiguously the "Subchapter C: Notice of Meetings" and the requirement of an authorized or a designated person posting notices of meetings applies to all postings of notices under TOMA and not just the emergency meetings. Plaintiffs Second No-evidence and Traditional under TOMA before closing the 3/26/09 meeting. See Exhibit 11-Req. for Admission no.14; Exhibits 7, 16. PISD thus did not comply with the Tex. Gov't Code §551.101(2). Therefore, plaintiffs are entitled to declaration that PISD unlawfully closed meeting on March 26, 2009 in violation of Tex. Gov't Code §551.1 01. Acker, Supra. Plaintiffs are entitled to all legal and equitable relief and that 3/26/09 closed meeting and actions taken in it be declared unlawful and contents of the closed meeting be made public and allowed to be freely copied and distributed. PISD further violated §551.074(b) by deliberating on Terrell's contract termination in the closed meeting on 3/26/09 when Terrell had specifically requested the action be deliberated in open meeting per §551.074(b). Exhibits 15, 16 (Tape 2 at Counter 43:45.). Plaintiffs are entitled to the declaration that PISD violated §551.074(b). Acker, Supra. B. Voidance of PISD's unlawful actions is proper due to subterfuge, persistent conscious and defiant violations of TOMA committed over numerous months The action taken in 3/26/09 Board meeting terminating Terrell's contract violated TOMA's notice provisions as shown before, thus it is voidable and should be voided. §551.141; Ferris, Infra; Acker, Supra. The 22 Meetings including the 3/26/09 meeting were unlawfully convened as shown before. Since all the actions taken in the 3/26/09, 5/19/09 and 22 Meetings violate TOMA's notice provisions as demonstrated before, said actions in 22 Meetings are voidable and should be voided. §551.141; Ferris, Infra; Acker, Supra. See other additional case authorities below. Therefore, upon voidance of the action terminating Terrell's employment contract (Exhibit 15), this Court should issue mandamus ordering PISD to reinstate Terrell and pay her damages for back pay and benefits, currently estimated at $209,000 to date and continuing (Exhibits 25, 26). Ferris v. Texas Board ofChiropractic Examiners, 808 S.W.2d 514, 518-519 Plaintiffs Second No-evidence and Traditional (Tex. App.--Austin 1991, writ denied) (Employee terminated in violation ofTOMA is entitled to back pay and reinstatement). Even if PISD's Board attempts a second time to terminate Terrell, such termination cannot be retroactive to 3/26/09. Ferris, ld. Further, Terrell's termination cannot be retroactive under Texas Education Code. Pursuant to Texas Education Code, Terrell's teacher contract cannot be terminated without providing 45 days notice (for 2012-13 school year- 10 days) before the last day of instruction in a school year. Failure to provide 45 days notice and termination in a lawfully convened meeting in compliance with TOMA automatically renews Terrell's teaching contract for another year. See Texas Education Code §21.103. This court should further issue injunction against PISD to stop and prevent further violations ofTOMA's notice provisions. Plaintiffs should be granted litigation costs and attorney fees as plaintiffs have substantially prevailed in this litigation having established TOMA violations and prosecuting this case in good faith and for public good and to augment public interest. §551.142(b). Authority For Voidance Is Overwhelming: There is overwhelming authority for voidance of PISD's actions taken in violation of TOMA's notice provisions in unlawfully convened Board meetings and for other relief requested in this suit. Courts have repeatedly voided actions of governmental bodies taken in violation of TOMA. Ferris v. Texas Board of Chiropractic Examiners, Supra; City of Bells v. Greater Texoma Uti!. Auth., 744 S.W.2d 636,640 (Tex. App.-Dallas 1987, no writ); Point Isabel ISD v. Hinojosa, 797 S.W.2d 176 (Tex.App-Corpus Christ 1990, writ denied). There is not a single case in TOMA jurisprudence where a court did not void unlawful actions under TOMA faced with subterfuge, a defiant willful persistent pattern of violations of Plaintiffs Second No-evidence and Traditional TOMA and obstruction of justice as here. Further PISD has refused and failed to ratify its 18 In Austin Transportation Study Policy Advisor Committee v. Sierra Club, 843 S.W.2d 683,686-87 (Tex. App.--Austin 1992, writ denied), the court did not void the unlawful actions because the governmental entity acknowledged its violations of TOMA on 33 occasions and ratified the actions in subsequent meetings convened in compliance with TOMA upon admitting its violations. Sierra Club was granted in excess of $146,000 in costs and attorney fees plus additional attorney fees for each stage of appeals, because Sierra Club was found to have substantially prevailed. Plaintiffs Second No-evidence and Traditional and time (over 1,650 hours over 3 ~ years). Exhibit 26. Plaintiffs will produce details of hours and money spent by plaintiffs for Court's review at the direction of the Court. C. Special damages and Sanctions on PISD and counsel are appropriate in this case: Special damages are warranted here due to the subterfuge and obstruction of justice by defendant and counsel in this case. Plaintiffs rely on the facts and arguments in the preceding paragraphs in this regard. PISD which is entirely funded by taxes from Texas citizens continues to flaunt its defiance against TOMA and the will of Texas citizens, legislature, taxpayers, and the Texas Supreme Court. Plaintiffs' urge sanctions on PISD. This case isn't only about plaintiffs- it's about the Texas citizens who expect honesty and voluntary compliance to openness, transparency, and integrity from their government. The failure to void PISD's egregious and defiant violations of TOMA will eviscerate protections granted to Texas citizens under TOMA, undermining and abrogating concepts of honest voluntary compliance with the promise of open government and transparency, and further lowering Texans' regard for democratic processes, judiciary, and the rule of law. VII. CONCLUSION The appeals court identified only one fact question - PISD's good faith claim under §551.056(d). However, as shown above, PISD's good faith claim is brazenly fraudulent and is constructed to obstruct justice against pro se plaintiffs and Texas citizens and taxpayers. PISD and its counsel deliberately misrepresented its good faith claim to the 7th Court of Appeals to improperly obtain remand of this case. After achieving its purpose of delay and obstruction, PISD now has defiantly refused to supplement the discovery concerning its claim of good faith. This Court should not countenance PISD's misconduct and perversion of TOMA's purpose to foster openness and integrity in government. Plaintiffs Second No-evidence and Traditional Motion for Summary Judgment Cause No. 35621 Page 40 of43 For these reasons, plaintiffs ask for summary judgment on all their claims as set forth above in their favor. VIII. PRAYER FOR THE FOREGOING REASONS, plaintiffs Terrell and Thanedar pray that the Court grant their second no-evidence and traditional motion for summary judgment, and 1) Declare that defendant violated TOMA Sections 551.051, 551.056, 551.043, 551.041, 551.045(d), 551.101, and 551.074(b) in regards to its actions in the 3/26/09 Board meeting; and 2) Declare the March 26, 2009 board meeting unlawfully convened; and 3) Declare the termination of plaintiff Terrell's employment contract (adverse action taken by defendant in March 26, 2009 meeting) unlawful, and void, and issue an injunction to reverse, stop, and prevent illegal termination and removal of Terrell from her job as a teacher, and further violations of TOMA; and 4) Issue mandamus to reinstate Terrell as a teacher and pay her all back wages and benefits (currently calculated at $209,000 from said adverse action from 2009-2010 school year through 2012-2013 school year) accrued to her, and set this matter for subsequent hearing to determine the amount of back wages and benefits accrued and payable to Terrell; and prohibit PISD from preventing Terrell from resuming her duties as teacher at PISD; and 5) Declare the closed meeting of Board of Trustees on March 26, 2009 unlawfully convened in violation of TOMA and grant legal and or equitable relief of making the certified agenda, transcript, and/or audio recording of this meeting fully available to public inspection and copying and make its contents public; and 6) award plaintiffs costs, fees, expenses, attorney fees, special damages (plaintiffs have currently incurred 1,650 hours of their time prosecuting this case as of the filing of this motion Plaintiff's Second No-evidence and Traditional multiplied by hourly rate to be fixed by the Court), and damages accrued to date and continuing; and set this matter for subsequent hearing to determine the amount of special damages; and 7) Declare that PISD violated TOMA Sections 551.051, 551.056, 551.043, 551.041, and 551.045(d) in regards to all actions taken in 22 Meetings and 551.101 and 551.074(b) in regards to the 3/26/09 meeting; and 8) Declare 22 Meetings held during the period August 13, 2008 to May 19, 2009 unlawfully convened; and 9) Declare all actions taken in the 22 Meetings unlawful, and void; and 10) Issue a permanent injunction to prevent future and further violations of TOMA and impose appropriate sanctions on defendant PISD and its counsel due to its subterfuge and obstruction of justice in this case now for more than 3 Y2 years and continuing; Alternatively, plaintiffs Terrell and Thanedar pray that the court grant partial summary judgment in their favor; further declare that plaintiffs have substantially prevailed in their lawsuit, grant them costs, damages, special damages, and fees in this case, and that plaintiffs have all other and further relief to which they may justly be entitled to receive. Date: October 29, 2012 Respectfully submitted, Rebecca Terrell CB/t~ Chandrashekhar Thanedar Plaintiffs Plaintiff's Second No-evidence and Traditional Motion for Summary Judgment Cause No. 35621 Page42 of43 6503 Dancing Ct. San Antonio, Texas 78244 (956) 445-3107 (512) 271-6840 Fax [email protected] CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing Plaintiffs' Second No-evidence and Traditional Motion for Summary Judgment has been served upon the following by United States priority mail on October 29, 2012 as follows: W. Wade Arnold Andrea Slater Gulley Underwood Law Firm 500 S. Taylor Street, Suite 1200 Amarillo, Texas 79101-2446 Rebecca Terrell Chandrashekhar Thanedar Plaintiffs Second No-evidence and Traditional CD "' Ci)