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5/17/2019 12:36 PM

Marilyn Burgess - District Clerk Harris County


Envelope No. 33664674
By: VERONICA GONZALEZ
Filed: 5/17/2019 12:36 PM

CAUSE NO. 2018-73227

JOE MACHOL, INDIVIDUALLY § IN THE DISTRICT COURT OF


AND AS PRESIDENT §
OF THE SOUTHWEST OFFICIALS §
ASSOCIATION, INC.’S HOUSTON §
CHAPTER FOOTBALL DIVISION §
Plaintiff, §
§
v. § HARRIS COUNTY, TEXAS
§
SOUTHWEST OFFICIALS §
ASSOCIATION, INC. D/B/A §
TEXAS ASSOCIATION OF §
SPORTS OFFICIALS, TEXAS §
ASSOCIATION OF SPORTS OFFICIALS §
HOSUTON CHAPTER FOOTBALL §
DIVISION, MICHAEL FITCH, §
NORMAN RICHARDSON, TOMMY §
MOORE, GEOFF MAROLDA, AND §
MIKE ATKINSON §
Defendants. § 151ST JUDICIAL DISTRICT

PLAINTIFF’S FIRST AMENDED PETITION


AND DECLARATORY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, JOE MACHOL, (“Plaintiff”), complaining of SOUTHWEST

OFFICIALS ASSOCIATION, INC. D/B/A TEXAS ASSOCIATION OF SPORTS

OFFICIALS, TEXAS ASSOCIATION OF SPORTS OFFICIALS HOUSTON

CHAPTER FOOTBALL DIVISION, MICHAEL FITCH, TOMMY MOORE, AND

MIKE ATKINSON (collectively “Defendants”) and would respectfully show unto the

Court the following:

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DISCOVERY

1. Plaintiff intends to conduct discovery under Level 3 of the Discovery Control

Plan as stated in Rule 190 of the Texas rules of Civil Procedure.

PARTIES AND SERVICE

2. Defendant Southwest Officials Association, Inc. D/B/A Texas Association of

Sports Officials (“Defendant” or “TASO”) is a nonprofit organization with a principal

place of business in Richardson, Texas. This defendant has answered and appeared.

3. Defendant Texas Association of Sports Officials Houston Chapter Football

Division (“Defendant” or “Chapter”) is a separately incorporated nonprofit entity apart

from Southwest Officials Association, Inc. This Defendant has answered and appeared.

4. Defendant, Michael Fitch (“Defendant” or “Fitch”) is the Executive Director of

TASO and an individual believed to reside in Dallas County, Texas at 4102 Buena Vista

St. #14, Dallas, Texas 75204. This defendant has answered and appeared.

5. Defendant Tommy Moore (“Defendant” or “Moore”) is an individual, who at all

relevant times was the Executive Secretary of the TASO Houston Chapter Football

Division. This defendant has answered and appeared.

6. Defendant Mike Atkinson (“Defendant” or “Atkinson”) is an individual, who at

all relevant times was the President and Chairman of the Board of the TASO Houston

Chapter Football Division. This defendant has answered and appeared.

7. Plaintiff, Joe Machol, (“Plaintiff” or “Machol”) is an individual, the 2018

President and Chairman of the Board of the TASO Houston Chapter Football Division,

and an individual member of the TASO Houston Chapter Football Division. All

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pleadings may be served on his attorney of record, Kathleen A. O’Connor,

O’ConnorWechsler PLLC, 4400 Post Oak Parkway, Suite 2360, Houston, Texas 77027.

JURISDICTION AND VENUE

8. The Court has jurisdiction over the lawsuit because the amount in controversy

exceeds this Court’s minimum jurisdictional requirements.

9. This Court has subject matter jurisdiction because TASO’s expulsion and removal

of Machol was illegal, arbitrary capricious, deprived him of due process and a valuable

and substantial property right, and upon appeal TASO refused to set it aside.

10. Venue is proper in Harris County because one or more of the Defendants is a

natural person with a residence in Harris County, Texas. Tex.Civ.Prac. & Rem. Code

15.002(a)(2). Further, venue is proper in Harris County because all or a substantial part

of the events or omissions giving rise to the claims occurred in Harris County, Texas.

Tex.Civ.Prac. & Rem. Code 15.002(a)(1).

FACTUAL ALLEGATIONS

11. The University Interscholastic League (“UIL”) regulates all high school sports in

Texas. TASO is an organization that provides personnel to officiate high school sports in

Texas. The TASO Houston Chapter Football Division provides officials for Texas junior

high and high school football games in the Houston region. Each school enters into

employment agreements with individual officials to work specific games.

12. The Houston Chapter is a separately incorporated entity apart from TASO with

its own constitution, by-laws, officers, Board members, books and records.

13. Fitch is a paid employee and the Executive Director of TASO. Tommy Moore is

the Houston Chapter Liaison to the Executive Board and Immediate Past President.

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14. Joe Machol was elected President of the Houston Chapter in November 2017 for a

term beginning January 1, 2018 narrowly beating Mike Atkinson.

15. Shortly after the Chapter election, Michael Fitch, Bill Theodore, Mike Atkinson

and Geoff Marolda met to discuss the election results. Mike Atkinson lost to Joe Machol

and the discussion at dinner that evening revolved around how to get rid of Machol.

Mike Atkinson used racist laced profanity describing most of the voting members at the

election as the Southside n*****s who voted for Machol and not him. Going on a racist

tirade about how the white members did not show up to vote and repeating the racist

name calling of other members. Fitch and Theodore did not do anything to diffuse

Atkinson’s racist rants nor did they admonish him not to describe the other members of

the Houston Chapter in such derogatory terms. Later, upon the arrival of Norman

Richardson, the entire tone of the dinner changed. The discussion turned to conspiring to

oust Machol.

16. Machol took office in January 2018. Shortly thereafter, Fitch, Atkinson and

Moore’s plans to remove Machol began when members of the Houston Chapter aligned

with Atkinson and Moore began filing grievances lacking any foundation or truth.

17. In July 2018, Joe Machol agreed to officiate at least 14 high school football

games for the following schools:

8/31/2018 7:00 PM Galena Park ISD Galena Park HS Pasadena ISD Pasadena HS 6A
9/7/2018 7:00 PM Friendswood ISD Friendswood HS Clear Creek ISD Clear Brook HS 6A
9/14/2018 7:00 PM Galveston ISD Ball HS Houston ISD Wheatley HS 5A
Fort Bend Christian Academy HS (Sugar KIPP PCS KIPP Generations Collegiate
9/21/2018 7:00 PM Land) HS 0A
9/28/2018 7:00 PM Port Arthur ISD Memorial HS Galena Park ISD Galena Park HS 5A
10/5/2018 7:00 PM Angleton ISD Angleton HS Fort Bend ISD Hightower HS 6A
10/6/2018 6:00 PM Katy ISD Paetow HS Montgomery ISD Lake Creek HS 5A
10/12/2018 7:00 PM Pasadena ISD Dobie HS Humble ISD Kingwood HS 6A
10/19/2018 7:00 PM Goose Creek CISD Sterling HS Galena Park ISD North Shore HS 6A

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10/20/2018 1:00 PM Spring Branch ISD Northbrook HS Cypress-Fairbanks ISD Cy Ridge HS 6A
10/26/2018 7:00 PM Texas City ISD La Marque HS Houston ISD Washington HS 4A
11/2/2018 7:30 PM Katy ISD Mayde Creek HS Katy ISD Katy HS 6A
11/9/2018 7:00 PM Spring ISD Spring HS Aldine ISD MacArthur HS 6A
11/10/2018 ####### Fort Bend ISD Austin HS Fort Bend ISD Elkins HS 6A

18. On July 27, 2018, without a due process hearing on the merits of the alleged

complaints before an impartial tribunal, Michael Fitch disciplined Machol as follows:

• You are Removed from the office of TASO Football Houston Chapter President
immediately.
• You are prohibited for holding any TASO Chapter or TASO Division position, elected or
appointed until July 26, 2028.
• You will be placed on probation until July 26, 2023. o During the probation, any Ethics
Complaint or allegations of other TASO, TASO Football, or Chapter policy violations will be
directed to the TASO office

• You are prohibited from working on the field in any capacity for the 2018 football
season.

Exhibit C.

19. As a result of the illegal actions taken by Fitch depriving Machol of a property

right, namely money to earn a living, Machol suffered financial damages and damages to

his reputation for which he now brings suit. Machol seeks a declaration from the Court

that his removal by Fitch did not follow the requirements of the Constitution Chapter By-

Laws and the removal was unauthorized and illegal.

Concerns over the Houston Chapter’s Finances

20. Exercising his oversight responsibilities as President and Chairman of the Board,

and being made aware of other issues related to financial irregularities, involving 2017

officers, President Machol appointed a finance committee to investigate the Chapter’s

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bank accounts and accounting records and he asked for an audit. According to the

Chapter By-Laws the President shall:

21. Although President Machol called for an audit at the February 5, 2018 meeting, it

was met with resistance by the Chapter Board members who were aligned with Fitch,

Atkinson, Richardson, Moore and others opposed to Machol’s election as President.

Despite the resistance, Machol eventually appointed a finance committee and it

completed its investigation and issued a Finance Committee Report on September 9,

2018 (“Report”). Exhibit A, Report.

22. It is clear from the information contained within the Report, that the issues raised

by then President Machol were justified, reasonable and serious and confirmed as true.

The Report exposed ongoing financial abuses by Chapter officers and lack of compliance

with the most basic IRS requirements of a nonprofit corporation.

Baseless Complaints Made to Remove Machol

23. While Machol was calling for an audit of the Houston Chapter’s books, the other

Chapter Board members were rushing to approve the 2017 Financial Statement offered

by the treasurer. Because Machol refused to rubber stamp the approval of the 2017

Financial Statement without an audit, the Board members conspired and began their

campaign to file ethics complaints against him in an effort to remove him from office,

knowing that Fitch would summarily find Machol violated various provisions of the

TASO Standards of Conduct. Machol voices his concerns about the financial

irregularities to Fitch who did nothing about it. Instead Fitch accepted the baseless

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complaints instead of complying with his fiduciary duties to the Chapter and

organization.

24. The first complaint was filed on February 22, 2018 by Norman Richardson and

Eric Dumatrait. The second complaint was filed by Geoff Marolda on April 5, 2018, and

the third complaint was filed by Terri Secrest and “others” on April 8, 2018.

25. The complaints do not identify ethics violations or state cogent complaints, and in

light of the Report, they are made by those with the most to gain by removing the

President and to deflect from many of the complainant’s wrongdoings. It is unclear from

the complaints and it is nonsensical that the President of an organization violated his

ethical duty by performing his duties in the best interest of the Chapter. The complaints

were filed by the members aligned with Mike Atkinson, Michael Fitch, and Tommy

Moore.

26. The Report demonstrates that these were phony complaints made by a select few,

who conspired to remove Machol and remain in control. The 2017 officers and Board

members were never questioned by anyone about their lack of oversight and/or fairness.

Machol campaigned on the issues of transparency, fairness and financial stewardship.

The very members who filed the ethics charges were the ones who covered up the

financial irregularities and set forth in the Report.

The Biased Investigation of Ethics Charges

27. As a result of the farcical ethics complaints filed, Fitch appointed a biased

investigator to review the complaints, interview witnesses, and prepare a report on his

findings. What resulted was a biased report, who did not properly investigate, provide a

written, thoughtful report, or talk to anyone other than the complaining members. He did

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not interview Machol or his witnesses or review financial records that were the subject of

Machol’s concern. Further, the report lacked any basis to support an ethical violation.

Instead it was ripe with “POSSIBLE” violations.

28. Based on the biased investigation, Fitch, without authority, summarily removed

Machol from his Presidency, interfered with his contractual relationships to officiate

games, and prohibited him from running for office for 10 years. Fitch’s July 27, 2018

letter states:

Exhibit C.

29. The report on which Fitch based his discipline did not find one ethical violation

and the investigator only interviewed the individuals making the complaints who had

vested and biased interests in the outcome. See Exhibit B, Investigative Report.

30. The Chapter Constitution and By-Laws states that only the Chapter may remove

an officer, specifically:

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31. The Chapter did not vote to remove Machol. The Chapter was not given any

opportunity to hear the facts of Machol’s case. Instead, Fitch acted illegally and removed

Machol without due process and deprived him of substantial property rights.

Machol’s Appeal

32. Machol timely appealed his illegal removal. The telephonic hearing was set on

October 1, 2018, approximately 4 months after his illegal removal and interference with

property rights to earn money officiating.

33. The telephonic hearing was held on October 3, 2018. Members of the committee

included Fitch, John Miller, and Bill Theodore, all of who illegally removed Machol in

July without due process.

34. The TASO Football Board ignored the plain language of the Constitution and By-

Laws prohibiting removal without two-thirds vote of the Chapter members present and

voting and refused to set aside the illegal removal. Further, Fitch ignored the obvious

bias in the investigation and refused to set aside the illegal removal. The Defendants

clearly failed to comply with the requirements of due process to be heard before a fair

and impartial tribunal composed of neutral and detached persons, depriving Machol of a

valuable right and property interest. Instead, the Defendants decided Machol was right,

but they wanted a “do over” and hire a new investigator to do a new investigation (right

this time) while still depriving Machol of his valuable interests and property rights. See

Exhibit D.

35. The investigation “do over” is not allowed according to Defendants’ own Policies

and Procedures. Defendants’ interpretation that the organization is allowed to “revise the

action in any manner they deem necessary” does not mean the investigation on which

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they based their decision to remove Machol and interfere with his property rights starts

anew. The plain language of the documents defines “action” as the disciplinary action

already taken. Nothing in the Policies and Procedures allows for the Defendants to start

the investigation over after the illegal action had already been taken. Exhibit F.

36. The Defendants failed to comply with the requirements of due process to be heard

before a fair and impartial tribunal composed of neutral and detached persons, depriving

Machol of a valuable right and property interest.

CAUSES OF ACTION

Tortious Interference with Contract

37. Plaintiff incorporates paragraphs 11-36 as if fully set forth herein.

38. As an officiating referee, Machol entered into 16 contracts with various Texas

high schools to officiate football games. Machol was selected by the various high

schools to officiate along with his crew. Machol agreed to officiate and the high schools

agreed to pay Machol for his services.

39. Defendants willfully and intentionally interfered with Machol’s contracts and the

interference proximately caused injury and financial and reputational damages.1

Defendants’ interference was intentional and as a result Machol is entitled to exemplary

damages.

Breach of Fiduciary Duty

40. Plaintiff incorporates paragraphs 11-36 as if fully set forth herein.

41. Machol, as the Chapter President, has standing to bring a claim on behalf of the

Chapter against Defendants, Fitch, Marolda, Richardson, Atkinson, and Moore, who owe

fiduciary duties to the Chapter. The removal of Machol as President did not follow the

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Chapter Constitution and By-Laws, and therefore his removal was without authority and

ineffective. As President, Machol is entitled to bring a claim on behalf of the Chapter.

42. Defendants owe the organization and Chapter members a duty of loyalty, a duty

of candor, a duty to act with integrity of the strictest kind, a duty of honest and fair

dealing, and a duty to refrain from self-dealing. The Defendants breached their fiduciary

duties and as a result the Plaintiff and the Chapter suffered damages and financial injury.

43. The officers and Board members who approved the 2017 Financial Statement

acted in bad faith and each are individually liable for their actions.

Conspiracy

44. Plaintiff incorporates paragraphs 11-36 as if fully set forth herein.

45. The Defendants were members of a combination of two or more persons.

46. The object of the combination was to accomplish and unlawful purpose, or a

lawful purpose by unlawful means.

47. The Defendants had a meeting of the minds on the object or course of action.

48. At least one of the Defendants committed an unlawful, overt act to further the

object or course of action and the Plaintiff suffered injury as a proximate result of the

wrongful act.

Declaratory Judgment

49. Plaintiff seeks a declaration that his removal from office was without authority

and ineffective. Pursuant to Section 37.004(a) of the Texas Civil Practice & Remedies

Code, a person interested under a written contract may have a court of competent

jurisdiction determine any question of construction or validity arising under the

instrument, and obtain a declaration of right, status, or other legal relations under it.

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See Exhibit G.
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50. Article IV, Section VI of the Chapter By-Laws requires that a two-thirds vote of

the members present and voting is required to remove from office any officer or Board

member whose actions or conduct is detrimental to the best interests of the organization.

See Exhibit E, Constitution and By-Laws. The only way the Defendants could have

properly removed Machol as President was through that voting mechanism. The

procedure was not followed and Machol’s removal was illegal, ultra vires and ineffective.

51. Machol seeks a declaration that the Chapter’s Constitution and By-Laws must be

strictly followed and that two-thirds of the members did not vote to remove him. Machol

seeks a declaration that he is still the Chapter President.

Attorneys’ Fees

52. Pursuant to Section 37.009 of the Texas Civil Practice & Remedies Code,

Plaintiff seeks costs and attorneys’ fees.

JURY DEMAND

Plaintiff hereby demands a jury trial on all issues that can be submitted to a jury.

PRAYER

Plaintiff prays that Defendants be cited to appear and answer herein and Plaintiff
be granted judgment against Defendants, jointly and severally for damages as follows:

(a) A Judicial Declaration that the removal of Joe Machol as President of the
Chapter was ultra vires, unauthorized and violated the Chapter Constitution
and By-Laws;

(b) A Judicial Declaration that Joe Machol is reinstated as President.

(c) Actual Damages not to exceed $1,000,000.00;

(d) Plaintiffs all costs and reasonable and necessary attorney’s fees, as the Court
deems equitable and just;

(c) Exemplary Damages not to exceed $1,000,000.00;

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(d) Pre-judgment and post judgment interest at the maximum amount allowed by
law; and

(e) the Court grant to Plaintiff such other and further relief, general or special,
either at law or in equity, to which Plaintiff may show himself to be justly
entitled.

Respectfully submitted,

O’CONNORWECHSLER PLLC

/s/ Kathleen A. O’Connor


Kathleen A. O’Connor
State Bar No. 00793468
Jeri P. Wechsler
State Bar No. 00794831
4400 Post Oak Parkway, Suite 2360
Houston, Texas 7027
T: (713)562-6336
F: (713)225-6126
kaoconnor@o-w-law.com
jpwechsler@o-w-law.com

CERTIFICATE OF SERVICE

On this 17th day of May 2019, I hereby certify that a true and correct copy of the
foregoing document was served via e-service as indicated below:

Gregory B. Godkin
Stephanie K. Denton
Roberts Markel Weinberg Butler Hailey, P.C.
111 Congress, Suite 1620
Austin, Texas 78701

/s/ Kathleen A. O’Connor


Kathleen A. O’Connor

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