Three still on the board who participated in the Erwin savaging are Kurdell, Olson, and Lamb
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Ex-School Official Wins Whistleblower Suit
By LENNY SAVINO lsavino@tampatrib.com
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After nearly three days of deliberations, the jury awarded Erwin at least $175,000 in damages for emotional pain and mental anguish. He could get an additional $196,000 in salary for being pressured to retire 18 months before his scheduled retirement date of
Erwin, 59, worked in the district for 33 1/2 years, serving as principal of Robinson, Hillsborough,
Beginning in November 2001, Erwin complained to the media about $560,000 in misappropriated funds, as well as leaky roofs, mold, faulty air- conditioning systems in schools and more, which he said ran up millions in costs to taxpayers. At least two district investigations triggered by Erwin's allegations documented fraud and corruption, and the
After two public debates with the school board, the tapes of which were played during the trial, Superintendent Earl Lennard reassigned Erwin in January 2002 to a new job to find the millions in district losses. He was banished to a windowless room with no secretary. He announced his retirement the next day and, in July 2002, sued the district under the Florida Whistleblower's Act, claiming harassment and intimidation.
After Wednesday's late ruling, the former principal was beaming. ``The jury went above the call of duty,'' he said, ``and came back with the right verdict.''
For the past 2 1/2 years, Erwin said, he has driven 20,000 miles back and forth from his new home north of
Lennard was present when Judge James Whittemore accepted the jury's verdict late Wednesday. ``Obviously, I'm disappointed,'' Lennard said. ``I don't believe the facts supported the ruling.''
Whittemore will decide how much money Erwin will get in lost pay for retiring early, but the judge did not set a deadline. The jury of five women and three men ruled in favor of two out of the three counts against the school board. They found that Erwin's pressure to retire violated
School board attorney Gregory Hearing said he will file motions to persuade Whittemore to dismiss the jury's findings. ``If there was no breach of contract,'' Hearing said, ``then there can't be a constructive discharge,'' a legal term meaning being made to work under such intolerable conditions that a reasonable person would feel compelled to resign.
By Wednesday evening, when it appeared the jury could not come to a unanimous decision on each of the three counts, Whittemore suggested both sides agree to accept majority rulings on each count to break the logjam. It worked. After the judge explained the agreement to the jury and told members to return today at
Since he retired, Erwin said, he has not been able to find a job as a school executive. ``School districts require three references,'' he said, ``two of which have to come from your most recent two supervisors.'' He has made at least two requests for his two former supervisors to send recommendation letters, but the recommendations never were sent, he said. On a third application, Erwin said he tried walking it through the proper channels. That didn't work either.
Reporter Marilyn Brown contributed to this report.
Reporter Lenny Savino can be reached at (813) 259-7567.
They agree on the whistle-blower and First Amendment violations, but not on breach of contract.
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He said over and over how he publicly exposed widespread waste, mismanagement and shoddy construction in the
Late Wednesday, a federal jury agreed with him.
After three days of difficult deliberations that almost ended in deadlock, a majority of jurors agreed the school district retaliated against Erwin under the state's whistle-blower law and violated his First Amendment free speech rights.
They awarded him $175,000 in damages for pain and suffering, plus extra money for his lost earnings. His attorney said the lost wages would total about $196,000.
Jurors, however, did not agree with all of Erwin's allegations. They concluded that school officials did not breach his employment contract, as he had claimed.
After the jurors were dismissed, a stoic Erwin turned to his wife, Pat, and smiled.
"I'm thankful to be living in a country where we can be heard," Erwin said. "The jury in my opinion went above and beyond the call of duty."
Erwin's attorney, Priscilla Ryan, said the key issue was whether the school district retaliated against her client, and the jury believed it did.
"We're just pleased the jury spent the time and gave it the attention it needed," she said.
Hillsborough superintendent Earl Lennard seemed stunned with the verdict and speculated about what swayed the jury's verdict toward Erwin's side.
"Obviously I'm disappointed in the ruling," Lennard said. "There was a great amount of emotionalism attached to it. The facts certainly don't support the verdict."
A 33-year school employee and former principal of the year, Erwin quit in January 2002 after Lennard reassigned him to a task force from his job as director of operations and maintenance. His new job was to work with the task force to organize, research and analyze his own allegations about $100-million in waste, but Erwin said many of his duties were nearly impossible. He claimed the stress was escalating his blood pressure to dangerous levels.
Two days after his reassignment, Erwin retired from the district, one year earlier than planned.
During the two-week trial, Erwin maintained that when he began reporting waste, his superiors created a difficult work environment by reducing his responsibilities, seeking a psychological evaluation and forcing him to answer School Board questions or else be found insubordinate.
In two tense School Board meetings where Erwin was asked to detail his charges, Ryan said administrators tried to paint him as an incompetent liar.
On Wednesday, before presiding U.S. District Judge James Whittemore intervened, the eight jurors appeared ready to deadlock after sorting through the testimony and about 100 pieces of evidence. After jurors sent Whittemore a question in the afternoon, he asked the lawyers for the two sides if they would accept a verdict reached by a majority of jurors instead of a unanimous decision.
"I think it's necessary," Whittemore told the attorneys. "I suggest this because of the emotional and economic investment in this case."
Attorneys' fees have cost the school district about $184,000.
Whittemore was prepared to send the jury home for the night Wednesday, but they asked for 15 minutes to come back with a verdict.
They voted 6-2 on both the whistle-blower and First Amendment claims, and 8-0 against breach of contract.
The vote on lost wages was 4-2, with two more wanting to give Erwin some money, but not as much as the jury awarded. That vote is certain to be debated by the attorneys since it was not a majority of the eight jurors.
Greg Hearing, who represented the school district, called the jury's verdict inconsistent. He asked how jurors could conclude that school officials retaliated against Erwin and violated his free speech rights if the officials did not breach his contract. They either committed all three violations or none, he argued.
The school district argued that Erwin was put in charge of the task force because he was the logical person to pursue evidence of his own claims. And he quit, he wasn't fired.
"If he quit, there's no breach of contract," Hearing said. "If he quit, there can't be constructive discharge," a legal term meaning he was forced to work under intolerable conditions.
Hearing called the verdict inconsistent, and said he will ask the judge to reconsider the decision, and based on that response, the school district may appeal.
Ryan, meanwhile, said the jury acted within its rights.
"I feel confident the judge will let the verdict stand," she said.
Erwin said he feels good knowing he told the truth and fought what he called the school district's numerous attacks on his character and integrity. He believes his allegations of waste eventually improved school operations and saved taxpayer's money.
After Erwin made his allegations, an internal investigation showed $560,000 might have been misappropriated in the grounds department. An earlier and separate investigation of the maintenance department accused two employees of using district money and equipment for their own benefit.
An outside school system audit done after Erwin's retirement could not substantiate $100-million in waste but it did say the school district needed greater accountability in construction, maintenance and operations.
At the trial's conclusion, Erwin and his wife headed to their new home in
"We're ready to go on with our lives," he said.
Whistleblower lawsuit goes to jury
The jury will begin deliberating Monday on the case brought against Hillsborough schools by an ex-administrator.
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Erwin has accused his former bosses of violating his First Amendment rights, breaching his employment contract and failing to protect him under the state's whistleblower law.
A 33-year school employee, Erwin quit in 2002 after superintendent Earl Lennard reassigned him to a task force to organize, research and analyze his allegations of theft, waste and mismanagement in the maintenance, grounds and construction departments. Erwin said the new job was nearly impossible, and said the stress was escalating his blood pressure to dangerous levels.
The jury will begin deliberating after hearing two weeks of testimony, watching video of School Board meetings and receiving numerous binders of documents.
Both sides made closing arguments Friday in U.S. District Judge James Whittemore's court room.
Erwin's attorney, Priscilla Ryan, said that after Erwin complained of waste, Erwin's bosses forbade him from attending certain meetings, reorganized his department without his input, and at one point, accused him of being mentally ill and trying to extort money.
In two School Board meetings where Erwin was asked to detail his charges, Ryan said administrators tried to paint him as an incompetent liar.
"What was going on was Mr. Erwin was systematically being pushed out of his job," she said.
Greg Hearing, representing the school district, said the school district did not retaliate against Erwin but listened to him and pursued investigations to prove his allegations.
He said Lennard, the superintendent, reassigned Erwin to document his waste allegations because he was the logical person to do so. Plus, Erwin had said he could document the waste building by building.
"You know what," Hearing told the jury. "He did a good job. That's why Dr. Lennard asked Mr. Erwin to work with the task force."
If Erwin though the reassignment was a retaliatory action, why didn't he complain to Lennard, Hearing asked. He described Erwin as someone who perceived retaliation but never received it. He also said Erwin's blood pressure at the time he retired was not as high as it had been two years earlier.
Instead of complaining to his superiors about his assignment, Erwin retired two days later, leaving about 16 month earlier than planned, Hearing said. "Was it responsible for him to not even try under the circumstances?" he asked jurors.
Whistle Blower Resigns After Reporting $100 Million in losses to the F.B.I.
"We based it on our attorney's recommendation," school board Chairwoman Candy Olson said
after a closed board meeting Tuesday to discuss litigation. "I still think we did nothing wrong, but
we've got other things we need to pay attention to. We need to move on." Erwin, reached at his home near
at this point in time. I'm happy to see the end of it."
Erwin said he is spending his time working in his garden and "enjoying life as much as possible"
with his wife, Pat.
The district's battle with Erwin will cost taxpayers $215,184 in the school board attorney's fees, school board attorney Tom Gonzalez said, plus Erwin's attorney's fees and costs. Erwin's attorney, Priscilla Ryan, has asked for more than $1.6 million, Gonzalez said, which will be determined in a court hearing.
Erwin's saga started in November 2001, when he went public with allegations of shoddy work,
mismanagement and coverup in school construction and maintenance. A 33-year school district employee, Erwin had been a popular principal before being promoted to general director of operations in 1998. There, he sparked internal investigations into wrongdoing in the maintenance and grounds departments he supervised. Those led to criminal charges against former school district employees
and showed $560,000 apparently misappropriated in the grounds department.
Erwin's original request to air his concerns before the school board was denied, followed by
heated debates with the board.
In late January 2002, then-Superintendent Earl Lennard reassigned Erwin, ordering him to find an estimated $100 million in district losses. Erwin announced his retirement the next day and sued the district, saying he was forced to resign after his allegations. A trial in December before U.S. District Judge James D. Whittemore resulted in the $175,000 award, not yet paid because the district appealed.
In late September, Whittemore refused to overturn the award.
"I think the judge is dead wrong, but the truth about an appeal is that the odds are against you,"
Gonzalez said. Ryan, Erwin's attorney, has filed for $43,246 in costs plus $799,180 in fees and has asked that the fees be at least doubled, Gonzalez said.
The money to pay Erwin and all attorneys comes out of the district's general fund used to pay
employees and operating expenses, he said. Only four of seven school board members were at Tuesday's meeting. Two of them, Doretha Edgecomb and Susan Valdes, were not on the board when the Erwin case made headlines. "I just think it's a new administration, and we have to move forward," Valdes said.
Edgecomb agreed: "We have done all that we could. I think we have bigger issues to focus on.
We should just accept the judgment and move on from there."
( SOURCE: MARILYN BROWN , The
