Also makes clear a Trustee can continue expressing his or her views to the public and seek reelection despite the censure

Houston Community College System v. Wilson, No. 20-804, was a case decided by the US Supreme Court on March 24, 2022. It involved a dispute between the Houston Community College System (HCC), a public entity that operates various community colleges, and David Wilson, one of its elected board members.

The case arose from a series of conflicts between Wilson and his colleagues on the board, who accused him of criticizing their handling of a racial justice protest, misusing HCC funds, and violating HCC policies. In 2017, the board voted to censure Wilson for his conduct, which included a formal reprimand and a restriction on his travel and committee assignments.

Wilson sued HCC, claiming that the censure violated his First Amendment right to free speech, as well as his Fourteenth Amendment right to due process. He argued that the censure was motivated by his dissenting views on matters of public concern, and that he was not given a fair opportunity to defend himself before the board.

The district court dismissed Wilson’s claims, but the Fifth Circuit reversed, holding that Wilson had stated a plausible First Amendment claim and that the censure was not a legislative act immune from judicial review. The Fifth Circuit also held that Wilson had stated a plausible due process claim, because he had a protected property interest in his board position and benefits.

The Supreme Court granted certiorari to review the Fifth Circuit’s decision. The court unanimously reversed the Fifth Circuit’s ruling and held that the censure did not violate Wilson’s First Amendment rights, because elected bodies have the authority to regulate their own internal affairs and discipline their members for disruptive conduct. The court also held that the censure did not violate Wilson’s due process rights, because he did not have a property interest in his board position or benefits, and because he was given adequate notice and opportunity to be heard before the board.

The court’s opinion was written by Justice Gorsuch, who emphasized that the First Amendment does not prevent elected bodies from maintaining order and civility among their members, and that judicial intervention in such matters would undermine the separation of powers and democratic accountability. The opinion also noted that Wilson could still express his views to the public and seek reelection despite the censure.

The court’s decision was consistent with its previous decisions that have upheld the power of government institutions to impose reasonable restrictions on speech within their own domains, such as public schools, prisons, and workplaces. 

Some critics have argued that the decision could undermine the accountability of public officials and discourage them from expressing dissenting views on matters of public concern.

The full opinion may be read by following this link:  https://www.supremecourt.gov/opinions/21pdf/20-804_j426.pdf.

Federal jury found in favor of Yavapai College and co-defendants June 26 on eight-year old multi-million dollar lawsuit; Judge rejected Motion for Judgment as a Matter of Law August 19; appeal possible

The Yavapai Community College District Governing Board met in executive session at its September 14 meeting on the Verde Campus in Clarkdale to discuss the multi-million dollar lawsuit brought eight years ago by former Community College Director of Aviation, Dan Hamilton,  against Yavapai Community College, NorthAire, and Guidance Academy. The case was tried  from June 8, 2021 to June 26, 2021  before a federal district court jury.

The jury acquitted  all defendants of allegations  that they engaged in a fraudulent scheme to obtain funding from the United States Department of Veterans Affairs (“VA”). Plaintiff had   essentially asserted that the  Defendants defrauded the VA by obtaining funding in violation of 38 C.F.R. § 21.4201, otherwise known as Regulation 4201 or the 85/15 Rule.

The Plaintiff brought a motion for Judgment as a Matter of Law following the jury verdict, which was reported dismissed on August 19.  Hamilton v. Yavapai Cmty. Coll. Dist., CV-12-08193-PCT-GMS, (D. Ariz. Aug. 19, 2021). It is surmised that the Executive Session held September 14 was intended to give instructions to the Community College’s defense team should the Plaintiff appeal the jury’s verdict.

The information supplied the public at the meeting about the lawsuit is contained in the below video.

Source:  Motion for Judgment as Matter of Law, filed August 2021, reported August 19, 2021. https://casetext.com/case/hamilton-v-yavapai-cmty-coll-dist-7 

Case was scheduled for trial in June, but Covid apparently delayed it

The Yavapai Community College Governing Board will meet  in secret near  the beginning of the Board’s monthly general meeting on Tuesday, September 14  on the Verde Campus to discuss the status of the eight-year-old lawsuit brought by the former Community College Director of Aviation, Dan Hamilton,  against Yavapai Community College, NorthAire, and Guidance Academy. The trial had been set by the federal district court in Phoenix for late March or early April of 2020. It was then rescheduled for June 2021. However, Covid apparently required a further delay in the matter.

Hamilton is a professional aviator, a veteran and a decorated former F-16 fighter pilot who served as a captain in the U.S. Air Force from 1997 to 2007. He reportedly started his job with Yavapai College in Sept. 6, 2011, and was terminated on or about May 31, 2012. (His claims are outlined in earlier Blog posts; see “lawsuits” index.)

In response to an interview last year with Mr. Hamilton’s lawyer, the Blog received the following  letter the lawyer  sent to the College’s lawyers  regarding the lawsuit.

Liz and Georgia (Community College lawyers):

I am writing in connection with the meeting you have scheduled with the Board of Trustees of Yavapai Community College today.  I trust you will candidly apprise the Board that the landscape of the upcoming trial in US ex rel. Hamilton v. Yavapai Community College et al. has become much more settled.  Please be sure to communicate the following to your client.

The Court has ruled against Defendants Yavapai and its contracted flight schools (Guidance and NorthAire) on key pre-trial motions.  The Court ruled that the Defendants cannot introduce testimony or argument that any violations were the result of a subjective good faith belief that they were acting lawfully.  See, Doc. 739 pp. 4:5-4 and 5:23 (“No Defendant shall be permitted to argue its/their subjective good faith belief.”).  Defendants waived that argument in favor of concealing anything they told their lawyers or their lawyers have told them about VA requirements and any violations by the College’s flight programs.  The Court also declined to rule on Defendants’ motion to preclude evidence of damages. See, Doc. 739 p. 3:5-7.  Together these rulings mean Hamilton will introduce evidence of over $110 million in False Claims Act damages and penalties and the College will not be able to argue that it believed it was acting lawfully.

With a new Board President seeking accountability, there are several questions the Board deserves to have answered.  Will you please share this letter with your clients and include this letter with the following questions in the record of your meeting today?

What is the maximum financial exposure to the College if Hamilton wins? Is the College not at risk, as Hamilton claims, for up to $110 million in fraud damages based solely on Hamilton’s claims that the JTED students were improperly counted as non-supported under the 85/15 Rule? If he wins against all Defendants, will the College be responsible for the full amount of the judgment?  What amount, if any, will be covered by insurance?  What amount of Hamilton’s attorneys fees and costs would the College owe if he wins?

What evidence supports Hamilton’s claim that the College violated the 85/15 Rule by certifying to the VA that JTED high school students were “non-supported” even though the College reduced and then waived tuition for those students without ever disclosing that fact to the VA? Are there not internal documents and testimony from Defendants showing that the Defendants came up with the JTED scheme specifically to enrol more veterans under the 85/15 Rule? What are the College’s defenses to this claim? What are the specific defenses against Hamilton’s JTED claims? Other than a letter to the VA disclosing that JTED would pay the tuition for JTED students, is there any evidence of the College having disclosed to the VA the other aspects of the JTED program that might violate the VA’s funding regulations?  For example, that JTED students were part-time? That they had tuition reduced? That they had tuition waived? That they took different courses than veterans?  That while they were included in the Operations Management program, they took different courses than those disclosed to the VA for that program?  Did not the College, Guidance and NA come

What evidence supports Hamilton’s claim that the College violated the 85/15 Rule during summer terms? Are there not internal documents (e.g. email from V.P. Greg Gillespie, meeting minutes, email from Dan Hamilton) and also testimony from Yavapai College witnesses (e.g. Sandra Aldirch and John Morgan) saying that the College had to comply during summer terms? What are the College’s defenses to this claim?  How will Hamilton respond to those defenses?  How does the College overcome the regulatory requirement to report to the VA if it ever falls out of compliance?  Are summer violation damages for 2012, 2013 and 2014 over $26 million as Hamilton claims in the pretrial order?  Is there a reason why summer damages would not include another

Does the fact that the United States never dismissed this case impact the College’s argument that the VA did not care about any claimed violations?

How many failed attempts have Defendants made to throw this case out? Is there some reason to now believe Defendants will easily win? If we win or lose are there issues that Hamilton might appeal?

What efforts have been made to settle the case? Did Hamilton respond to the Defendants’ initial offer of $1,000,000.00?

The Board’s consideration of candid and complete answers to these questions will be of great value in considering Yavapai’s exposure at trial and the alternative merits of settlement.

Thanks,

Rich

In a VA claim similar to that made against Yavapai Community College Academy agreed to pay $512,000; violated 85/15 rule

The Florida Academy in Fort Myers, Florida has agreed to pay $512,500 to the United States to resolve allegations that it made misrepresentations to the United States Department of Veterans Affairs (VA) in order to maintain its eligibility to receive VA funding under the Post-9/11 GI Bill. Among the claims made in Hamilton v. Yavapai College, et. al., is one almost identical to that made by the Government against the Florida Academy.

Beginning in 2012, the VA provided financial assistance for veterans taking classes at Florida Academy as part of the Post-9/11 GI Bill.

The Post-9/11 GI Bill is a VA educational benefit program for veterans who served on active duty after September 10, 2001. As part of that program, the VA provides tuition and fee payments directly to qualifying schools on behalf of eligible veterans. In order for a school to qualify for the program, it is required to certify to the VA that no more than 85% of the students for any particular course are receiving VA benefits. This requirement, commonly referred to as the “85-15% Rule,” is intended to prevent abuse of Post-9/11 GI Bill funding by ensuring that the VA is paying fair market value tuition rates since at least 15% of the enrolled students would be paying the same rate with private funds. Schools that receive GI Bill funding are required to certify their compliance with this rule and notify the VA in the event they are no longer in compliance.

According to the Settlement Agreement, the United States alleged that, from January 1, 2017, until January 1, 2018, Florida Academy received Post-9/11 GI Bill funding during a time when they knew, or reasonably should have known, that it did not qualify because almost all of the students who were enrolled in the Heating, Ventilation, and Air Conditioning (“HVAC”) Advanced Fundamentals class were veterans, whose tuition was paid for by the VA. The settlement resolves allegations that Florida Academy made misrepresentations to the VA regarding its compliance with the 85-15% Rule.

The claims resolved by the settlement are allegations only, and there has been no determination of liability. 

Source:  Department of Justice Press Release, Monday, January 27, 2020.  Please click here to read the entire press release.

Plaintiff’s lawyer shares letter sent to College attorneys regarding million dollar settlement offer

The Yavapai Community College Governing Board met in secret on Monday, February 3, 2020 to discuss the status of the seven-year lawsuit by the former Community College Director of Aviation, Dan Hamilton,  against Yavapai Community College, NorthAire, and Guidance Academy is that a trial has been set by the federal district court in Phoenix for late March or early April of 2020. Hamilton is a professional aviator, a veteran and a decorated former F-16 fighter pilot who served as a captain in the U.S. Air Force from 1997 to 2007. He reportedly started his job with Yavapai College in Sept. 6, 2011, and was terminated on or about May 31, 2012. (His claims are outlined in earlier Blog posts; see “lawsuits” index.)

In response to an interview with Mr. Hamilton’s lawyer, the Blog received the following  letter he sent to the College’s lawyers  regarding the lawsuit.

Liz and Georgia (Community College lawyers):

I am writing in connection with the meeting you have scheduled with the Board of Trustees of Yavapai Community College today.  I trust you will candidly apprise the Board that the landscape of the upcoming trial in US ex rel. Hamilton v. Yavapai Community College et al. has become much more settled.  Please be sure to communicate the following to your client. 

The Court has ruled against Defendants Yavapai and its contracted flight schools (Guidance and NorthAire) on key pre-trial motions.  The Court ruled that the Defendants cannot introduce testimony or argument that any violations were the result of a subjective good faith belief that they were acting lawfully.  See, Doc. 739 pp. 4:5-4 and 5:23 (“No Defendant shall be permitted to argue its/their subjective good faith belief.”).  Defendants waived that argument in favor of concealing anything they told their lawyers or their lawyers have told them about VA requirements and any violations by the College’s flight programs.  The Court also declined to rule on Defendants’ motion to preclude evidence of damages. See, Doc. 739 p. 3:5-7.  Together these rulings mean Hamilton will introduce evidence of over $110 million in False Claims Act damages and penalties and the College will not be able to argue that it believed it was acting lawfully.

With a new Board President seeking accountability, there are several questions the Board deserves to have answered.  Will you please share this letter with your clients and include this letter with the following questions in the record of your meeting today? 

1. What is the maximum financial exposure to the College if Hamilton wins? Is the College not at risk, as Hamilton claims, for up to $110 million in fraud damages based solely on Hamilton’s claims that the JTED students were improperly counted as non-supported under the 85/15 Rule? If he wins against all Defendants, will the College be responsible for the full amount of the judgment?  What amount, if any, will be covered by insurance?  What amount of Hamilton’s attorneys fees and costs would the College owe if he wins? 
2. What evidence supports Hamilton’s claim that the College violated the 85/15 Rule by certifying to the VA that JTED high school students were “non-supported” even though the College reduced and then waived tuition for those students without ever disclosing that fact to the VA? Are there not internal documents and testimony from Defendants showing that the Defendants came up with the JTED scheme specifically to enrol more veterans under the 85/15 Rule? What are the College’s defenses to this claim? What are the specific defenses against Hamilton’s JTED claims? Other than a letter to the VA disclosing that JTED would pay the tuition for JTED students, is there any evidence of the College having disclosed to the VA the other aspects of the JTED program that might violate the VA’s funding regulations?  For example, that JTED students were part-time? That they had tuition reduced? That they had tuition waived? That they took different courses than veterans?  That while they were included in the Operations Management program, they took different courses than those disclosed to the VA for that program?  Did not the College, Guidance and NA come
3. What evidence supports Hamilton’s claim that the College violated the 85/15 Rule during summer terms? Are there not internal documents (e.g. email from V.P. Greg Gillespie, meeting minutes, email from Dan Hamilton) and also testimony from Yavapai College witnesses (e.g. Sandra Aldirch and John Morgan) saying that the College had to comply during summer terms? What are the College’s defenses to this claim?  How will Hamilton respond to those defenses?  How does the College overcome the regulatory requirement to report to the VA if it ever falls out of compliance?  Are summer violation damages for 2012, 2013 and 2014 over $26 million as Hamilton claims in the pretrial order?  Is there a reason why summer damages would not include another
4. Does the fact that the United States never dismissed this case impact the College’s argument that the VA did not care about any claimed violations?
5. How many failed attempts have Defendants made to throw this case out? Is there some reason to now believe Defendants will easily win? If we win or lose are there issues that Hamilton might appeal? 
6. What efforts have been made to settle the case? Did Hamilton respond to the Defendants’ initial offer of $1,000,000.00? 

The Board’s consideration of candid and complete answers to these questions will be of great value in considering Yavapai’s exposure at trial and the alternative merits of settlement. 

Thanks,

Rich

Plaintiff is probing the nature of communication,  if any,  between the College and the Higher Learning Commission that involves him

Discovery involving the  six-year lawsuit between decorated air force veteran and former director of Yavapai Community College’s aviation program, Dan Hamilton,  and the College and other defendants is heading for trial sometime in late March or early April.  (See earlier posts in this Blog for complete information),  In the meantime a process lawyers label “discovery” continues.

For example, most recently, the plaintiff’s attorney made a public records request for “Any communication between Yavapai College and the Higher Learning Commission regarding: (1) the litigation pending in Arizona District Court between Dan Hamilton and Yavapai College, … (2) VA’s suspension of the Professional Pilot Helicopter program in 2011; (3) VA’s suspension of any AVT program in 2015; and (4) potential financial exposure in the referenced litigation.”

The Higher Learning Commission a regional institutional accreditor. It  accredits degree-granting post-secondary educational institutions in the North Central region, which includes Yavapai Community College.

Defense lawyers apparently convinced they can win the 6-year-old whistle-blower employment dispute involving the decorated Air Force Veteran and former employee despite loss of some summary judgment motions in federal court

The latest information on the six-year-old lawsuit by the former Community College Director of Aviation, Dan Hamilton,  against Yavapai Community College, NorthAire, and Guidance Academy is that a trial has been set by the federal district court in Phoenix for late March or early April of 2020.  Lawyers for the defendants are no doubt confident that they can win the action before a jury despite losing some portions of their efforts to dismiss the case via a series of summary judgment motions scattered over the past six years.

Hamilton is a professional aviator, a veteran and a decorated former F-16 fighter pilot who served as a captain in the U.S. Air Force from 1997 to 2007. He reportedly started his job with Yavapai College in Sept. 6, 2011, and was terminated on or about May 31, 2012. (His claims are outlined in earlier Blog posts; see “lawsuits” index.)

Recall that the parties met on July 11 in Flagstaff for a settlement conference. However, no agreement could be reached.

The case, which has dragged on for over six years, has obviously driven the various defense lawyer fees high (there have been  a half dozen or more defense lawyers associated in one way or another with the case.)  A jury trial will mean even more revenue in the pockets of the defense lawyers,  regardless of the outcome.  Apparently, there is little concern about the defense lawyer fees as it is believed they will be (or already are being) paid out of an insurance trust fund of some sort, although this issue has never been publicly addressed and explained by the Governing Board.  One way or another, the fees will come from taxpayers.