Saying the Warren School Board was not fair and impartial in its decision to terminate a teacher wrongly accused of sexual assault, Circuit Judge Sam Pope has reversed the board’s decision. Former Warren High School JROTC instructor Col. Robert Avery is entitled to full back pay and benefits which Avery’s attorneys estimate to be in excess of $200,000.

Avery was terminated in January 2010 after a former student wrongly accused him of sexual assault. The 16-year-old girl claimed Avery assaulted her at his Monticello home on a sofa in his garage while his wife was in the home. Avery was arrested on November 25, 2009 and subsequently charged with first-degree sexual assault; however, a Drew County jury found him not guilty.

“This Court finds that the Warren School Board was not fair and impartial in its decision-making in this case,” Pope wrote in his April 4 decision to reverse the Warren School Board’s action.

“Specifically, the Court finds that the superintendent of schools, Mr. (Andrew) Tolbert, had brought before the board on at least one or more occasions matters concerning this case in an off-the-record manner and had discussed this matter with board members,” Pope wrote. “This is clearly established in the record and exhibits reviewed by the Court and depositions of at least one board member. Mr. Avery was entitled to a fair and impartial tribunal in deciding his termination, and one that only considered the evidence presented at his hearing. He did not get that and the Warren School Board’s action with regard to his termination is void.”

In a written statement following Pope’s decision, Avery’s attorneys Cliff Gibson of Monticello and Robert Gibson, III of Crossett said they hope that every member of the Warren School Board, as well as Tolbert “will have the integrity and fortitude to stand up and publicly apologize to Col. Avery for ignoring his request made at the January 28, 2010, school board meeting, that they respect his right to be presumed innocent and that they not make a rush to judgment and terminate his long-standing employment with the Warren Schools before the scandalous charge made against him was tested by a jury in a court of law…”

In addition to the termination, Tolbert filed an ethics complaint against Avery with the Arkansas Education Department’s professional licensure standards board. That complaint and a DHS child maltreatment complaint were both dismissed after he was acquitted of the sexual assault charges.

The accuser’s lack of credibility led to Avery’s October 2010 acquittal.

The young woman, now 18 or 19, claimed that Avery sexually assaulted her in October 2009. In one story, she claimed it occurred on October 31. In another story, she claimed it happened during the morning of October 24. And, in another story, she claimed it occurred during the evening of October 24.

She also said Avery had given her sexually-transmitted diseases. Avery, however, tested negative for those diseases.

Though she claimed Avery raped her for more than an hour on a sofa in his garage during her menstrual cycle, the State Crime Lab found no evidence of blood or semen on the sofa.

While fibers similar to those from her clothing were found in Avery’s vehicle, and her skin-cell DNA was found on a cushion of the sofa where she claims she was assaulted, there was not the type of DNA (bodily fluids) on the sofa that would support her claim that a sex act had occurred on that sofa. Also, had the sofa cushion covers been cleaned prior to testing, there would be an inadequate amount of skin cells there to get the 16-point DNA skin cell match, according to the State Crime Lab.

Explaining how clothing fibers similar to those of young woman’s clothing could have been present in Avery’s truck, and how her skin-cell DNA got on his sofa, Avery’s niece testified that she had borrowed her uncle’s truck on October 24 and she and the accuser, who was one of her friends, had gone riding around then went to her uncle’s house to look at his collection of cars. While there, Avery’s niece said the accuser sat on the sofa.

The Drew County jury deliberated only 31 minutes before finding Avery not guilty.

Through his attorneys, Avery, who retired as a full-bird colonel after 31 years of service in the U.S. Army, has fought for two years to have his name cleared with the Warren School District, Arkansas Department of Education, and Arkansas Department of Health and Human Services.

In April 2011, DHS Administrative Law Judge Sheila J. McDaniel found insufficient evidence to support a determination that Avery sexually abused the girl.

“I find Col. Avery’s denial of the allegations more credible than (the accuser’s) disclosures due to the inconsistencies of (the accuser’s) statements and her admission under oath at Mr. Avery’s criminal trial that she had lied to investigators of this maltreatment investigation about the details of this incident,” McDaniel wrote in her decision.

McDaniel also cited in her decision the lack of bodily fluids on the sofa, the discrepancies in the date on which the young woman said the incident occurred, and the young woman’s claim of sexually-transmitted diseases.

“(The accuser) reported to Sgt. (Rick) McKelvey that she had not been sexually active prior to this attack and that this was her first sexual experience; however, (the accuser’s) medical records showed that (she) had tested positive for two different STDs prior to the date of the alleged rape,” McDaniel wrote. “(She) also tested positive for STDs subsequent to the alleged attack and told (a state Police Crimes Against Children investigator) that she contracted the STDs from Col. Avery during the abuse; however, after submitting to a STD test, Col. Avery was found to be STD free.

McDaniel said she did not find the accuser’s statements to be credible and gave more weight to the sworn statement and forensic evidence provided by Avery than a recorded interview with his accuser, which she admitted was not truthful.

“Col. Avery has had to defend himself against criminal charges before a jury, and also against charges of child maltreatment before the Arkansas State Police Crimes Against Children Division and the Arkansas Department of Human Services, and also against a complaint to take his teacher license made by Tolbert,” Avery’s attorneys said. “He has been acquitted and exonerated by every court and state agency that has taken a look at this, and now the courts have ruled that Tolbert and the school board members were ‘not fair and impartial’ with Col. Avery and actually violated the law in terminating him. It is hoped that Andrew Tolbert and each and every member of the Warren School Board will recognize the errors of their ways and will obey the law in the future as the voters are bound to expect of them.”

Asked if he knows whether the Warren School District intends to appeal Judge Pope’s reversal of the school board’s decision to fire Avery, Avery’s Monticello attorney Cliff Gibson said he doesn’t know.

“The short answer is we don’t know, but we would consider such a complete waste of even more taxpayer dollars in fighting something that every reviewing court and state agency says is untrue,” Gibson said. “It just doesn’t make any sense unless, of course, there is spite involved, or unless the school’s insurance company liable to pay the back-pay to Col Avery wants to put off the day when it has to pay. Col. Avery only wants the long overdue apology owing to him, his back-pay and attorney fees, and to get back to work.”

In a separate action, Avery has filed a lawsuit  in Drew County Circuit Court against his accuser, the Warren School District, Roland Washington, Katie Tatum, and Sharon Miller.

The lawsuit claims that Washington, who worked under Avery in the Warren School District JROTC program and subsequently replaced him, drafted numerous documents containing statements that accused Col. Avery of engaging in inappropriate conduct with female students for years. He provided those documents to administrative personnel in the Warren School District, the Arkansas State Police, and the Arkansas Education Department.

In addition to the documents, Washington told an Arkansas Education Department investigator that Avery “likes to mess with little girls” and that he would “set a trap to bring them closer” by keeping a cabinet full of “goodies” that he gave only to girls, that Avery “got away with it” during his military career; that such conduct was one of the reasons he retired, and that Avery had an ongoing sexual relationship with one particular student, according to the lawsuit.

However, on September 8, 2010, Washington admitted that he had no factual basis for the statements and accusations he made against Avery, according to the lawsuit.

Tatum, a Warren School District employee, denied under oath in April 2010 that she had ever heard anything critical of Col. Avery, according to the lawsuit.

“Despite her previous statements under oath, on or about May 19, 2010, defendant Tatum stated to (an) investigator for the Arkansas Department of Education, among other things, that Avery had improper contact with several of his students, that other female students had called Col. Avery ‘a pervert’, that other faculty had left Warren Public Schools due to Avery’s inappropriate behavior, that Col. Avery was not nice looking, that Col. Avery’s wife was not attractive either, and that Col. Avery and his wife led separate lives,” the lawsuit reads.

In her answer filed in Drew County Circuit Court, Tatum denied most of the allegations. She admitted that she told an Arkansas Department of Education investigator that she had heard students call Avery a pervert and that his wife worked at another school district and did not go to school events with him.

She said any statements she made to the Arkansas Department of Education were made in good faith and were privileged.

Miller, according to the lawsuit, “repeated and republished false statements of (the accuser) while at the same time knowing that (the accuser) is a dishonest, untruthful and deceitful person unworthy of belief,” according to the lawsuit.

As a result of the “false, fraudulent and defamatory” statements, Avery was placed on the Department of Health and Human Services child maltreatment list, was terminated by the Warren School District, and was the subject of a proceeding with the Arkansas Department of Education to revoke his teaching license, according to the lawsuit.

Avery is suing the defendants for both punitive and compensatory damages. While the amount is not listed in the lawsuit, it does say the damages exceed the minimum amount for federal court diversity jurisdiction, which is $75,000. He is asking for a jury trial in Drew County Circuit Court.

Through their attorney Paul Blume, the Warren School District, Tatum, Washington and Miller, subsequently filed a motion to dismiss the lawsuit, saying they are mandatory reporters of suspected child abuse and had any one of them failed to report suspected child abuse they could be subject to criminal penalties.

“Anyone making a good faith report of suspected child abuse is immune from liability, whether of a civil or criminal nature,” the motion to dismiss reads. “Subjecting a school employee to possible liability for a report of  suspected child abuse would deter such reporting, against public policy of protecting children from abuse, whether sexual or not.”

The motion to dismiss says the lawsuit states no factual basis that the school district, Tatum, Washington and Miller’s reports were intended to defame Avery. The allegations are merely conclusions and should be stricken.

The motion to dismiss also says the Warren School District, its agents, officers and employees are immune from liability for negligence and the lawsuit is replete with references to the purported negligence in the defendants making such reports.

“The lawsuit is an attempt to extract more monetary relief than may be obtained through a Teacher Fair Dismissal Act proceeding (reinstatement, back pay and attorney fees),” the motion to dismiss reads. “The Teacher Fair Dismissal Act provides, specifically, that an appeal under that Act is a teacher’s ‘exclusive remedy’ in state court. Therefore, this lawsuit is an illegal attempt to circumvent the intention of the Arkansas Legislature that a teacher have only one remedy resulting from his dismissal.”

Avery’s attorneys Cliff and Robert Gibson filed a response to the motion to dismiss saying the Teacher Fair Dismissal Act only addresses a teacher’s remedy to a school board’s decision to terminate the teacher’s contract. The Act does not in any way refer to, limit, or bar a teacher from filing suit when a teacher has been defamed, subjected to outrage, subjected to malicious prosecution, where the teacher’s contract has been intentionally and unjustifiably interfered with, or where the conduct violated the teacher’s rights under the United States Constitution or Arkansas Civil Rights Act.

Regarding the claim that the defendants are immune from liability, Gibson said the statute states very clearly that a person’s act is immune from liability only when the act is done in good faith.

“(Avery) actually alleges that the defendants’ acts were willful, intentional and malicious,” Gibson wrote, adding that there is no public policy to protect individuals who commit intentional tortious acts.

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