Judge’s order leaves Richland School District, board members open to liability for Busey firing

A federal judge has sided with the Richland School District on some parts of former superintendent Jim Busey’s lawsuit for wrongful termination, but left the district and its board members open to liability for the 2013 firing.

U.S. District Judge Thomas O. Rice recently granted the district’s request for summary judgment regarding Busey’s employment status with the district and whether he is still owed compensation under his past contract.

“A bona fide dispute existed as to (Busey’s) continued employment relationship with the school district; thus, no reasonable jury could find willful withholding of wages here,” Rice said in his order.

The judge rejected similar district requests regarding Busey’s claims that his firing violated his right to due process and that the decision was largely based on his marital status, something the district has denied.

“Although (the district) presented several seemingly legitimate non-discriminatory, conduct-based reasons for Dr. Busey’s termination, especially that Dr. Busey had engaged in an undisclosed relationship with a subordinate employee, it is for a jury to weigh the evidence and decide whether (Busey’s) direct evidence of discrimination and evidence discounting (the district’s) reasoning demonstrates his marital status was a substantial factor motivating (the district’s) decision,” Rice said.

Busey was dismissed in January 2013 for violating his contract’s morality clause for an extramarital affair he had with a district employee, conducted with the aid of district email accounts and a district-provided cellphone. Busey and the woman met during school hours, often during lunch breaks, to have sex off school district property.

His dismissal also stemmed from “threats to misrepresent” the district, district officials said, including a claim that the board hid money in its budget and overestimated the money needed in a $98 million bond measure.

Busey and his attorney have said the relationship with the woman was consensual, and it became an issue only after it became public knowledge.

Busey also said he was discriminated against by being fired because of his marital status, while the other employee wasn’t disciplined. His lawsuit, filed almost three years ago in federal court, seeks more than $1 million in damages.

Neither the district nor Busey’s attorney, Brian Iller of Kennewick, returned messages asking for comment on Rice’s ruling.

While Busey has said he is still technically employed by the district and was never properly removed, Rice said the district gave notice to Busey that he was being terminated and advised him of his right to appeal that decision in a hearing with the board, satisfying that portion of the law. Busey never appealed and did not seek a board hearing.

Similarly, the district has not wrongfully withheld wages because it is in a valid dispute with its former superintendent about his employment status, the judge said.

But Rice said Busey was still owed some level of pre-termination process before he was fired. The district said it satisfied that requirement through an interview of Busey by an agent of its insurer the day before deciding to remove Busey, but Rice said a jury could determine the former superintendent wasn’t given full notice.

“As the investigation was still ongoing at the time of (the insurance agent’s) interview, it is unclear how Dr. Busey could have been given notice of all charges and an explanation of all the evidence that would be used against him,” Rice said.

That also means board members aren’t immune from a lawsuit for the decision.

Rice similarly denied the district’s contention it fired Busey regardless of whether he was married because he maintained a sexual relationship with a subordinate, something that could affect his standing among other employees.

The district cited Busey’s marital status in its official comments to media that he was being fired. State anti-discrimination law bars employers from firing people for several reasons, including marital status.

The date of the next hearing in the case was not immediately available.

This story was originally published January 1, 2016 at 10:45 AM with the headline "Judge’s order leaves Richland School District, board members open to liability for Busey firing."