HCC Wants to Seal Records in Lawsuit. Again...
Houston Community College is attempting to seal internal records in the drawn-out legal battle with the former general counsel the college system fired last year.
If this sounds like deja vu, it should. Since early this year, HCC, one of the largest publicly-funded community college systems in the country, has aggressively fought to make sure documents related to its lawsuit against Renee Byas do not make their way into the public eye as the case winds through the courts. HCC lawyers have even gone so far as to argue that publicly-elected HCC board trustees are "representatives of the college," and not the public. A Harris County district court judge largely denied HCC's previous attempts, carving out only a few narrow exceptions under which documents in the case could be filed under seal.
At issue here is why HCC really fired its general counsel. On one hand, the college claims it fired Byas because she was "insubordinate" and because her contract extension with HCC was invalid (HCC says that only the board's chair, not the full board, signed her extension, and that Byas turned her extension back into HR five days late). On the other hand, Byas claims that HCC fired her in "attempt to silence a public servant who refused to let HCC's Board of Trustees use a $425 million public bond project as a private slush fund."
Last week, HCC again filed for a protective order to seal certain internal documents, claiming they fall under attorney-client privilege and shouldn't be publicly filed in court (in past attempts to seal records, HCC has accused Byas of engaging in a "smear campaign" against the college's trustees, claiming she wants to use HCC's own records as a "bludgeon against her former employer and colleagues"). In response, Byas's team, led by local legal big shot Rusty Hardin, filed a motion that contains even more troubling allegations against her former colleagues.
Before we get into this latest filing, first a quick primer on the case:
Byas took over as HCC general counsel in 2008 right as a scandal involving board members accused of shuffling big-dollar contracts to family and friends rocked the college system. Shortly after she was hired, Byas says she helped tighten rules for handing out contracts shortly before voters approved a record $425 million bond program. In court filings, Byas claims trustees at the college hated one new rule in particular -- that the board should hire 14 major construction firms to oversee each of the major bond projects, and that those firms, not the trustees, would tap the numerous local subcontractors to do much of the work (a buffer, if you will, between the board and nearly a half-billion in public bond money).
Byas claims that trustees regularly pressured her to bend the those rules. And by 2013, while Byas served as acting chancellor for the college, an outside attorney named Michelle Morris, who was hired by the college to monitor the bond award process, thought she'd found a problem: shortly after HCC awarded its first construction manager contract to Jacobs Management, a national engineering and construction firm, Morris noticed Jacobs had hired a little-known subcontractor called Five Woods to conduct "public outreach" in exchange for $1.4 million. Only problem was Five Woods, until then a janitorial- and landscape-services company, had little to no experience in "public outreach." Morris grew even more concerned when she learned that Five Woods was owned by a close friend of HCC Trustee Carroll Robinson.
"When I pressed Jacobs about how they came to select Five Woods the Jacobs representatives became very nervous, finally revealed that the Five Woods representative was 'sent' to them by Trustee Robinson," Morris wrote in an email to the college (the email was first obtained by the Houston Chronicle in 2013). "Again, the response from Jacobs to me is a nervous one, and they outright told me that they are in a 'precarious position' (their words, not mine)," she wrote.
Ultimately, Five Woods didn't get the job. But based on Morris's suspicions that Robinson may have meddled in the bond-award process, Byas hired the law firm of Gardere Wynne Sewell, LLP to investigate the matter. And, if you believe Byas, HCC trustees regularly pressured her to fire Gardere and kill the investigation. By January 2014, Byas claims, she was cooperating with an apparent FBI investigation into the college. In court filings, Byas claims she even went into full-undercover-spy mode, "record[ing] conversations with Trustees so she could document the numerous instances that Trustees pressured her to break the law."
By April 2014, right around the time Byas switched from acting chancellor back to general counsel, trustees hired Vidal Martinez as outside attorney to act as special counsel for the board. In a motion Byas filed in Harris County court on Friday, she claims trustees hired Martinez "to engineer Ms. Byas's termination because she would not comply with Trustees' requests to change bond procurement rules governing the bond procurement process." Just a few days after HCC's new Chancellor Cesar Maldonado started at the college, Byas claims, Martinez started sniffing around for a for any pretext to fire her. Ultimately he found one, and on June 6, 2014, Maldonado called Byas into his office to let her know she was on administrative leave while HCC investigated the "validity" of her contract.
That very same day, then- board chair Neeta Sane emailed Gardere investigators, ordering them to share everything with Martinez, who would oversee the investigation into Robinson. The final report on that investigation concluded that there was no reliable evidence that Robinson tried to help a close friend bag a huge contract. (Still, Sane's email, at the very least, shows that the investigation -- the one that effectively cleared a trustee suspected of steering a $1.4 million contract to a friend -- was put under the watch of a new, board-appointed attorney the very same morning that Byas -- who, if you believe her, faced repeated pressure by the same board to kill that investigation -- was being shown the door.)
In a motion filed in court on Friday, Byas's lawyers argue that much of what's so far been withheld by HCC -- such as emails between Martinez and trustees -- either aren't attorney-client privileged or fall under an exception to the rule for information that "aids anyone to commit or plan to commit a crime or fraud." In that motion, Byas cites detailed notes she apparently kept in a journal during her time at HCC. Although she's waiting on a judge's approval to file the actual entries in court, Byas included "summaries" of those entries in her motion on Friday that detail a number of serious allegations:
-- "After she commenced the Gardere investigation into allegations that Mr. Robinson improperly influenced selection of a subcontractor, Mr. Robinson sought for Trustees to hold a no confidence vote against Ms. Byas. After learning of the investigation, Mr. Robinson called Ms. Byas and instructed her to fire the outside bond counsel who had informed others about the possible improprieties."
-- That when Board Chair Neeta Sane met with Byas in February 2014 she "informed Ms. Byas that she did not like how HCC staff had evaluated the bond contract bids" and refused to put contracts on the board agenda.
-- That trustees rejected legal opinions from HCC's bond counsel, and that when Byas sent trustee Sane one legal opinion, "Ms. Sane was angry and 'asked [Ms. Byas] not to ever send something to her like this in writing again.' Ms. Sane wanted Ms. Byas to ask outside legal counsel to rescind the opinion." Byas even further claims that Sane hid legal opinions from other trustees.
--That trustees told Byas they would not support bid evaluations performed by HCC staff because "the evaluations did not award contracts to people in the Trustees' districts."
Sane didn't respond to requests for comment. But Robinson, who just resigned from the HCC board to focus on his run for City Controller, flatly denies that he called for a no confidence vote against Byas or pressured her to fire outside the lawyer that triggered the investigation into his actions. Moreover, Robinson says he welcomed and even asked for that investigation (although, according to Gardere's final report, Robinson didn't cooperate or submit to an interview with investigators).
And, while he denies he tried to bag a contract for his friend, Robinson still scoffs at the notion that Five Woods was unqualified for the job. Board minutes show that when HCC staff recommended Jacobs for the construction manager contract in June 2013, Five Woods was listed as a subcontractor. And back in 2013, Robinson even publicly supported making Byas permanent chancellor for the college system.
"This is a Pig Pen lawsuit," Robinson said via email. "[Byas] is just throwing mud to try and distract everyone from the fact that it was she, outside counsel and the staff that recommended Jacobs and Five Woods as the best value on June 2013 and then by October 2013 was saying the same Five Woods was unqualified."
Perhaps. Maybe Byas really has spun a wild, convoluted conspiracy in hopes of prevailing in court or at least getting back at some former colleagues she feels wronged her.
But there are a few points to keep in mind: Byas didn't make a peep until HCC sued her in court to invalidate her contract (the college also asked a judge to order her to pay the college's legal fees); what little has been made public in the case appears to actually bolster some of Byas's claims; and it's HCC, a public institution, that's been fighting to keep records hidden throughout the case, not Byas.