Judge Sanctions Instructor, His Attorney for Suits Seeking to Regain Job, Clear Name
By Ian Shapira
Washington Post Staff Writer
Sunday, January 8, 2006
After all the difficulties David Perino encountered as a teacher -- his arrest on charges of sexually abusing a student, his acquittal in court and his firing in spite of that -- he thought he had one last recourse: Sue. Sue them all.
And so he did. Last summer, Perino filed eight lawsuits against the Prince William County school system and several of its employees, including former superintendent Edward L. Kelly, who died Thursday night.
But last week, Perino's quest to win his job back and clear his name was smacked off course when Prince William Circuit Court Judge William D. Hamblen ordered sanctions against him and his attorney. Hamblen declared that the lawsuits constituted harassment, the school system's attorney said. The judge ordered the pair to pay more than $14,000 to cover the school system's legal fees.
Perino and lawyer Pamela Cave have less than 30 days to appeal the sanctions. They say they intend to.
In the realm of civil litigation, sanctions are rare against a plaintiff or defendant, according to officials with the Virginia Bar Association and the National Education Association.
"I don't recall one of our attorneys ever being sanctioned," said Robert Chanin, who has been general counsel for the National Education Association since 1968. "They are ordered if a lawyer truly brings a frivolous case without good faith or a legal basis. Don't harass the other side and waste the court's time."
In fact, filing lawsuits for the purpose of harassing a party without legal basis can be a violation of Virginia State Bar rules.
Perino and Cave, a Fairfax County family law specialist who is working pro bono, say the suits constituted a proper legal effort to recoup Perino's lost income and his reputation after he was fired. The School Board took away his job after colleagues and supervisors gave statements against him in board grievance hearings.
Perino said that because he had been acquitted in court, he considered their statements to be defamatory. He believed they made their remarks knowing they were false.
"It shocked me that the judge would issue sanctions. If you feel like you have a reason to pursue a cause, you should do that without fear of reprisal," said Perino, 40, who, after losing his job, sold his Fredericksburg home and moved with his wife and three children to southwestern Pennsylvania to be near relatives.
School officials, however, say the employees' comments were used within the context of employment hearings and therefore were "privileged" and could not be considered defamatory.
In her request for sanctions against Perino and Cave, school system attorney Mary McGowan said Perino did not show that school officials acted with malice, a necessary element of defamation.
"It is hard to escape the conclusion that this litigation was intended to harass the defendants and the school division. . . . There was no legal or factual basis for this defamation action, which would have been readily apparent to any reasonable lawyer who investigated the law and facts before filing suits," she wrote.
The dispute between Perino and the school system began Dec. 12, 2003, when a 20-year-old student with Down syndrome accused the 16-year veteran of sexually abusing her inside his empty classroom during school hours. The woman alleged that Perino tried to sodomize her; Perino said they talked about photographs on his wall before he ordered her to return to her regular classroom.
His first trial, in May 2004, resulted in a hung jury. Months later, a second jury found him not guilty of aggravated sexual battery and attempted forcible sodomy.
Last spring, Perino faced a School Board grievance hearing to keep his job. But School Board members voted to fire him, saying they believed he was guilty of sexual abuse. They also discovered pornographic images on his classroom computer and accused him of downloading the items. Perino denied doing any of it and said other people had access to his computer.
In criminal court, jurors must convict if they have no "reasonable doubt" of a defendant's guilt. School Board members need only a "preponderance of evidence" to conclude that a person is guilty.
After his firing, Perino said he turned to what he believed was his last option. He filed six defamation lawsuits -- against the school system and five employees whose statements against him were used in the grievance proceedings -- seeking more than $8.7 million in damages. None of the suits went to trial, and in the past two weeks all were dismissed.
Perino also sought legal action against the School Board in federal court, alleging that his due process rights were violated and that he should get a new grievance hearing. But U.S. District Judge T.S. Ellis III dismissed his case in October, ruling that he had received a fair hearing.
Still, Perino keeps fighting. His attorney recently filed paperwork in a federal appeals court seeking to overturn Ellis's decision.
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