“Teachers are as a class the members of a community most likely to have informed and
definite opinions as to how funds allotted to the operation of the schools should be spent.
Accordingly, it is essential that they be able to speak out freely
on such questions without fear of retaliatory dismissal.”
Pickering v. Board of Education, United States Supreme Court, 1968
William C. Foil, Sworn. Direct Examination By Mr. Gergel: Q. I want you to focus on a date of December 5, 1990. Do you remember that to be the day that the first letter to the editor was written? A. I think that’s probably correct. Q. Prior to December 5, 1990, did you understand that Ms. Hall’s classroom performance was good? A. I believe it was recommended, observed by the principal and recommended each year. Yes. Q. Her contract was renewed every year in the normal course, is that right? A. That’s correct. Q. No stipulations were ever put on the contract, were they? A. That’s correct. Q. Now, I’m going to hand you, Dr. Foil, a copy of the Plaintiff’s Exhibits so that you might refer to them as I question you, sir. I ask you, sir, if you could refer to Exhibit 40. Now, did you on or about December 5, 1990, read Exhibit 40? A. Yes, I did. Q. And you noted in there Ms. Hall’s assertion that sending of the board members to California for a conference was waste, did you not? A. Yes. Q. And you thought it was improper for Ms. Hall to call the trip waste, didn’t you? A. Yes, I did. Mr. Childs: I want to point out here, we don’t have a jury, but I’m sure the Court would instruct the witness you have to answer yes, or no, but then you have a right to explain your answers, and I’m not objecting to all these leading questions because I don’t think there is a point to it, and I recognize he’s probably categorized as a hostile witness…. By Mr. Gergel: Q. And I believe in there, going down to the next to the last paragraph, Ms. Hall referred to the absolute gall of board members trying to spend money this way. Do you see that, sir, on the second line on the next to last paragraph, ‘Just last week in Marion County six local board members had the absolute gall to request $11,000?’ A. Yes, I see that. Q. You thought it was improper for Ms. Hall to put that in the newspaper, didn’t you? A. Yes, I do. Q. If you would refer to Exhibit 46, do you recall there the letter to the editor of December 12, 1990, called ‘security reasons not reasonable?’ Do you remember that letter? A. Yes, I do. Q. That was sort of aimed at you, wasn’t it, Dr. Foil? A. It named me, I believe. Q. Then if you would look at Exhibit 50, sir, there was still another letter to the editor on December 19, 1990, was there not? A. You have three on this page. Q. Do you see one that says, ‘School Board Junket?’ A. Yes, I see it there. Q. We’re not talking about the fire department, are we? You didn’t pay much attention to that, did you? A. I did not. Q. You were concerned with the one entitled, ‘School Board Junket,’ is that right? A. Yes. It deals with a James Smith, I believe it was. Q. You saw they [the letters] were holding up the board to public criticism, isn’t that right? A. That’s correct. Q. It was holding you up to scorn, wasn’t it, that’s how you saw it? A. It was calling me a liar. Q. And the board members were upset about these letters, weren’t they? A. They were irritated with them, yes. Q. Were they upset? A. Irritated, I believe, means upset, sir. Q. Turn to Exhibit 4, if you would. I believe this is a memorandum from you to the board dated December 21, 1990. Is that correct? A. That is correct. Q. You’re reporting to the board, ‘We, C. LeGette and I, cannot say that the barrage of opinions and innuendoes does not bother us.’ A. I said that. Q. You based that upon your opinion, your knowledge of Ms. LeGette’s feeling…? A. She was Mrs. Hall’s Principal, yes, we had talked. Q. You said, ‘The trick is not to let her know,’ her being Ms. Hall? A. Yes. Q. Then, I want you to focus on the last sentence of that paragraph. You say, ‘Maybe enough rope will allow our gadfly,’ and is that Ms. Hall? A. Yes. Q. ‘To suspend herself in an awkward position. Hopefully it will be an uncomfortable one.’ You were referring to the fact that you were hoping you could catch something on her in her employment, were you not? A. I don’t think that’s the case, no. Q. Well, do you remember me asking you that question in your deposition? A. I do remember the question. I don’t recall my response. Q. Do you recall me asking you, I said ‘Just explain to me what you mean by giving someone enough rope to hang themselves. What are you talking about there?’ What was your answer?” Dr. Foil sat inflexible throughout his hours of testimony, frozen to the witness stand, answering tersely and dispassionately the incriminating questions posed by my attorney. Q. Refer to page 26. I had a question on line 11. The question was, ‘Just explain to me what you mean by giving someone enough rope to hang themselves. What are you talking about there?’ A. My response was, ‘Well, if you can’t do anything about it,’ which is what I had just told you, that she had a right to do these things, ‘but perhaps she’ll do something that is intemperate herself.’ Q. What do you mean by something intemperate herself? A. Something to create ill feelings toward her by either the community, citizens or other teachers, or perhaps the administration. Q. You were looking for something that you couldn’t be accused of retaliating for, isn’t that right? A. I wouldn’t say I was actively looking, but if she did something, then we would be concerned about it, yes, sir. Q. Well…it got to a point where you couldn’t stand it any longer, you had to say something back, isn’t that right? Refer to Plaintiff’s Exhibit 7. I believe on February 7, 1991, you wrote the Board another memorandum about the Halls, is that not correct? A. It was about the board agenda, and I don’t see anything about the Halls there. Q. Go to the last paragraph. And you say, ‘I have asked everyone’s opinion about writing to the newspaper and then ignored their good advice and my own practice of patience by writing some of my thoughts to the editor. I could not stand to hold still any longer.’ Do you see that? A. I see it. Q. Then you go on at the end there and say, ‘There is an ad which I paid for in next week’s paper, the letter is enclosed, the ad will be a surprise.’ That’s what you wrote the board? A. I did. Q. Now, if you’ll look at Exhibit 60, I believe we will find that letter you wrote to the editor, if you’ll refer to Exhibit 60. Mr. Childs: Excuse me. Plaintiff’s Exhibit 60? By Mr. Gergel: Q. I believe that is the letter you wrote— Mr. Childs: It’s actually 61. The Court: No, it’s 60. Mr. Childs: Excuse me. By Mr. Gergel: Q. You refer to Ms. Hall’s husband, Dr. Ronald Hall…to his letters as drivel…? Do you see that? A. Yes. Q. Those are pretty strong words, to be calling somebody’s work drivel. You were pretty upset, weren’t you? A. I didn’t like what he said. Q. Exactly. And you also referred in the next paragraph, the last couple of words, you referred to crank letters, you were seeing his efforts as a crank letter, another crank letter [FOIA requests]. Do you see that? A. Yes. Q. You talked about that surprise, the ad. Let’s go to Plaintiff’s Exhibit 1. Look at the surprise you told the board about on February 7. Titled, ‘Remember This.’…It says, ‘Final Word From Bill Foil.’ That use of the final word, that was a play on words, was it not? A. Yes. Q. And you were trying to send a message to Maggi Hall by this ad, weren’t you? A. No. Q. You were not? This ad was prompted by Maggi Hall, was it not? A. Yes. Q. And you were trying to send a message to Maggi Hall and the rest of the community, weren’t you? A. No. I was sending a message to the community. Q. About Maggi Hall? A. About what they had been reading in the papers, yes. Q. And you wanted to let the community know you were angry about this, isn’t that right? A. I wanted the community to know that I had a philosophy that I subscribed to. Q. Let’s look at…this little advertisement, this surprise you told the board about. ‘If you work for a man, in heaven’s name work for him. If he pays you wages which supply you bread and butter, work for him, speak well of him, stand by him, and stand by the institution he represents.’ That is a statement of your philosophy, is that right? A. Yes. Q. Then it goes on to say, ‘if you must vilify, condemn, and eternally disparage, resign your position.’ Now, what you were stating there was, tell me if I’m correct or not, that if you’re going to criticize your employer to any great length, you should resign first? Isn’t that what you were saying? A. If you’re going to do that publicly, I feel that it is unfair, yes. Q. You felt she didn’t have the right to go public and criticize the district, isn’t that right? Mr. Childs: Objection. I have been real patient over here. But he says she doesn’t have the right, is he talking about a philosophical or ethical right or a constitutional right? I think the superintendent’s position is she had a right to do all this. He didn’t agree with it. And I, you know, I don’t like the style of the questioning. The Court: I’m not going to try to get Mr. Gergel to change his style, but I’ll ask him to rephrase it if he can. Mr. Gergel: I’ll be glad to, Your Honor. By Mr. Gergel: Q. You felt like if an employee of the school district is going to criticize the organization, she should do so within the organization, and it was improper to do it publicly, isn’t that right? A. I believe that’s correct. Q. Now, if you’re not going to resign, and you’re going to criticize, your ad indicates that you’re going to be uprooted and blown away, isn’t that right? A. That’s what the ad says, yes. Q. The Final Word of Bill Foil, isn’t that right? A. That’s what it says. Q. …[D]id y’all hear from Dr. and Ms. Hall about this ad, did the board hear from them? A. The board heard from them. Q. They thought it was threatening and intimidating, didn’t they? A. I understood that from the letter. I believe those are the words he [Dr. Hall] used. Q. Dr. Hall actually came and spoke before the board about his concern about this threatening ad, didn’t he? A. I believe so. Q. Then there was a letter written back to the Halls saying that there was nothing intimidating about the ad, isn’t that right? A. I don’t recall the exact wording. Q. Well, I believe you wrote the letter. This is a letter about you, defending you to the Halls, and you wrote the letter, is that right? A. I put the words on paper at the direction of the board. Q. Now, how common is it to put a teacher off the school grounds under the surveillance of a principal, how common is that? A. It happens. Q. In your district? A. The first time in my district, yeah, but it happens frequently. Q. …[H]aving the principal put the teacher under surveillance off the school grounds? A. When you say having the principal, that implies that I said that. That is not the case. This was done on Ms. LeGette’s own volition, I believe. Q. Mrs. Hall is a very active member of [Wildlife Action]…. And you learned that the Chevron Corporation had given this group based in Mullins its national conservation award as an outstanding organization in America, isn’t that right? A. Yes. Q. And Mrs. Hall was invited at the expense of Chevron to come to Washington, DC to personally receive this national award, is that not correct…? And you indicated that you would not authorize her to be off those days, is that not correct? A. Yes. Q. At that point, you were of the mind that she would go anyway, didn’t you? A. I suspected that would be the case. Q. And you saw something just put right in your platter, didn’t you? A. Yes. Q. You thought you could get Maggi Hall now, didn’t you? A. There was a possibility, yes. Q. And you were pretty excited about it, weren’t you? A. Not real excited. I don’t get too excited. Q. Well, you got your public relations man to write up to the Chevron Corporation and ask them for a photo, so y’all could honor Ms. Hall back in Mullins, isn’t that right? A. Certainly. Q. That was a little deceptive, wasn’t it? A. Yes. Q. Y’all wanted the photo so you could use it in the dismissal case, didn’t you? A. Possibly. Q. And you weren’t too confident about Chevron cooperating, so you went out and spent public money to hire your own photographer in Washington, DC, isn’t that right? A. Yes. Q. I’ll refer you to Exhibit 27. You mentioned earlier that you wrote the board every Friday, but May 22 wasn’t a Friday, was it? A. I don’t recall the dates of that year. Q. Let’s assume for purposes of this questioning it is a Wednesday. You don’t normally write on Wednesday, do you, to the board? A. I write whenever we have things like the bus accident which this memo ended with, it’s very important that the board be kept informed about events of this type where a student may be injured. Q. But that was the second issue addressed. The first issue was Maggi Hall, wasn’t it? A. I don’t always start with that which is most important. Q. But the title of it is—what’s the title? A. A report on our most professional teacher. Q. That is a pretty sarcastic comment, wasn’t it? A. I tend to be flip sometimes, yes. Q. Number 8. The photographer has not yet called to report success-failure. Now, success, ultimate success, for you was to get a picture of Maggi Hall in Washington, DC, wasn’t it? A. That’s correct. Q. You thought it would be good to catch her up there, didn’t you? A. It would be a clear-cut act of insubordination, yes. Q. It would be good because then you could fire her for it, isn’t that right? A. At this time we had great reasons to dismiss her, but this would be clear-cut. Q. And by this day you were getting pretty excited waiting for the picture, weren’t you? A. I don’t get real excited about a lot of things. Q. You might not. Now, you just said a minute ago, Dr. Foil, you don’t get excited about much, and I asked you at page 75, line 21, ‘Y’all were excited about it, weren’t you?’ What was your answer? A. ‘…yes.’ Q. So, not much excites you, but this was pretty exciting, wasn’t it? A. Apparently, I said it was. Q. All that hope, I believe, turned to disappointment when the photo arrived, didn’t it? A. It was not Maggi Hall. Q. Refer to Plaintiff’s 33-B. Is that the photo you got from the photographer you spent $300 of district money on? A. It appears to be. Q. Who is getting the award? A. A young lady. Q. I believe that is Maggi’s 16 year old daughter Erin, who was getting the award for her mother, is that right? A. It was identified to me that that’s who it was. Q. And when you got this picture, you were disappointed, weren’t you? A. Yes. Q. If you would, sir, refer to Exhibit 28. Now, we’re two days later on May 26, and I believe by this point you have seen the picture is that not right? A. Yes, I believe it was. Q. If you go to number 4, you talked about ‘Bruce Davis called today to check on what was new. I explained my feeling like a yo-yo, nothing we have done has satisfied his desire to have clear-cut hard evidence of Ms. Hall’s whereabouts.’ Do you see that? A. Yes. Q. If you’ll go to the next paragraph, sir, could you read the last sentence which begins, ‘Bruce Davis and I?’ A. ‘Bruce Davis and I agree that the reason is a bit thin but I’m ready to take the chance even if the board has to reinstate her and force me to apologize on my knees at high noon on the courthouse steps.’ Q. The case was a bit thin…. But you were trying at that point to move forward to terminate Ms. Hall, isn’t that right? A. Yes. I was satisfied. Q. Now, on May 24, the reason relating to Washington, DC looked pretty dismal, didn’t it? A. Yes. Q. You had received the documentary evidence that the principal had gathered…? You had received the petition from the teachers asking Ms. Hall be transferred. Had you not? A. Yes. Q. But on that day, May 24, you thought, notwithstanding all the information you had gotten, that the evidence against Ms. Hall on disruption was thin, didn’t you? A. I did not have sufficient legal advice to act on that, was my opinion. I was satisfied with it. Q. Let me ask it to you again, let me be sure you understand my question. On May 24, you thought the evidence of disruption was thin, right, Dr. Foil? A. What was my answer? Q. I refer to page 115 of the school board hearing. Line 24. Question, ‘On May 24, you thought the evidence of disruption was thin. Right, Dr. Foil?’ What was your answer? A. I’m sorry. Are you on the right page? Q. 115, line 24. ‘On May 24, you thought the evidence of disruption was thin. Right Dr. Foil?’ A. That’s what I said. Q. I believe you began drafting a series of letters as options, is that correct? Refer to Exhibits 29 through 31, I believe those were eventually the product of…your efforts, is that right? A. Yes. Mr. Gergel: Refer to page 17, Your Honor, of the school board proceeding. By Mr. Gergel: Q. On page 17, line 5. ‘I had drafted some letters for my own use, information late in the week, worked on them on Sunday.’ Do you see that? A. But I had drafted these letters late in the week which meant Thursday and Friday. Working on them on Sunday was simply to refine them. Q. Something else happened on Sunday, didn’t it, Dr. Foil? What happened on Sunday, the 26th? A. I had a newspaper article appear in The State. I say we, there was an article appearing in the newspaper. Q. Could you refer to Plaintiff’s Exhibit 91. Did you view—the headline, I believe, was ‘Teacher feud draws ink.’ Did you see it on Sunday? A. Yes, I did. Q. It was in a very prominent place, wasn’t it? A. Yes. Q. And this was not a flattering article to you, was it, Dr. Foil? A. I didn’t feel it was flattering. Q. Then on Monday after this Sunday article, you go in the office and transfer Ms. Hall for disruption, is that correct? A. That is not correct. Those letters were drafted fully on Thursday and Friday. They may have been typed on Sunday. Q. You said at the school board hearing you worked on them Sunday? A. Working on them means typing them. Q. You indicated you worked on them Sunday. Are you changing your testimony about that? A. I did not write them Sunday. Q. But on Monday, you came in and transferred Ms. Hall for allegedly being disruptive. Is that right? A. Yes, I did. Q. And the press had a field day, with that…? I believe there were two color pictures of Ms. Hall in the boardroom in The State newspaper. A. A four color picture. Q. Now, on the 4th of June, you had Mr. Davis come in and meet with all the teachers right at the end of the school year…Mrs. Hall was already gone, wasn’t she? A. Yes. Q. She wasn’t disrupting anybody up at the boardroom, was she? A. No. Q. I ask you again, Dr. Foil, weren’t you seeking Mr. Davis’s guidance and assurance to avoid any appearance of retaliating against Ms. Hall? A. I don’t recall the word retaliation being used in my response to that, but I would say we were concerned about any appearance of retaliation. Q. Read your answer. This is to a question from Mr. Davis, I believe. A. This is my answer up here? Q. Right. A. ‘We had, as I said, we expressed that concern to you because we had been sensitive to that all year long and we were seeking your guidance and assurance in avoiding any appearance of retaliation, also to look at from the point of separate issues so she would not have the opportunity to screen herself off by the Freedom of Speech Rights there.’ Q. I’m asking you the question that I asked you before we read the testimony. You were hiring Mr. Davis because you wanted his guidance and assurance to avoid any appearance of retaliating against Mrs. Hall, isn’t that right? A. I would have employed any attorney that we had employed. I would have offered that particular concern and advice to. Q. And while Ms. Hall is out there not bothering anybody up in the district office, not causing any disruption, y’all decided to fire her, isn’t that right? A. No. Q. Y’all did decide to fire her, didn’t you? A. It was not while she was there. I think there was a long period of deliberation. I don’t believe there was any decision made until late June. Q. From May 27 when you transferred her to the time of the school board hearing, had she undertaken any activities that would disrupt the school district? A. None that I know of. Q. These letters to the editor that Ms. Hall wrote addressed matters of public concern, do they not? A. I’m not sure they do. It’s some expression of opinion that money was being spent and being wasted. I’m not qualified to identify that. Q. Here’s a question, I believe, from Mr. Davis to you in your direct from the school board hearing, page 6. The question was, ‘Now, Dr. Foil, do you acknowledge that those letters of December, 1990, the one for December 5, 6, 10 and 19 that Ms. Hall wrote on these particular subjects were addressing matters of legitimate public concern?’ And what was your answer? A. Yes, I do, if there was waste, but it was an opinion she was expressing. Q. And you thought the expression of that opinion was improper? A. Yes. Q. Dr. Foil, do you recall early in the process we requested a copy of Ms. Hall’s personnel file, do you remember that? A. Yes. Q. We’ve marked Plaintiff’s Exhibit 141, which was the district’s personnel file. Is that the personnel file as it stood when you responded in June, 1991? A. I don’t know that we had—I’m sorry. We had some Freedom of Information Act things in there, I was not aware they were in the personnel file, but essentially, this is the case, yes. Yes, I believe that’s it, without looking at every item. Q. With the exception of the letter…advising her of the recommendation of discharge dated June 27, 1991, do you see any other indication in her personnel file that she’s a problem employee? A. I doubt there would be anything else in here. No. I don’t see anything else in there. Q. It’s what you would call a clean personnel file, isn’t it? A. Relatively so. Mr. Gergel: Thank you. No further questions.”