UPDATED Houston Community College Has a Unique Definition of "Insubordinate"
HCC Chancellor Cesar Maldonado, center (obviously), at a press junket earlier this month.
(See update at the end of this story) Let's say you've just been named chancellor of one of the largest community college systems in the country and the college's top lawyer reaches out to you. She tells you she wants to bring you up to speed on ongoing corruption investigations into board members and whether they've been using the college's $425 million bond fund like a private piggy bank. She tells you the FBI has even been sniffing around.
What do you do? If you're Houston Community College Chancellor Cesar Maldonado, you call her insubordinate and put her on administrative leave.
That's according to documents recently filed in the legal battle between the HCC and the college's former general counsel, Renee Byas, who was fired last summer. While HCC argues that Maldonado simply "lost faith" in Byas shortly after taking office, Byas contends her firing was "HCC's 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."
As we've previously written here, Byas took over as general counsel for the college system in 2008, just as HCC was rocked by allegations that board members shuffled contracts to family members and demanded kickbacks from vendors. Byas says she helped implement new rules for handing out bond contracts around the time voters approved a record $425 million bond for the college system.
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Byas claims trustees hated one new rule in particular: Instead of handpicking numerous contractors for each of the bond's 14 major construction projects, the new rules required that trustees tap 14 "construction managers," or general contractors large enough to put up a $2 million bid bond. Those firms would then tap the numerous local subcontractors to finish the job. Those construction managers would act as a buffer between the trustees and the millions that would need to be doled out to subcontractors -- meaning trustees, if they wanted to, would have a hard time micromanaging the bond and shuffling contracts to friends and family.
Byas alleges that trustees routinely pressured her to skirt those rules. Then in 2013, an outside attorney hired by the college to simply watch the bond award process and make sure everything was kosher (because apparently that's how much oversight HCC's board needed) found a problem. Namely, the attorney thought a trustee may have tried to prod one of those construction manager firms into giving a close friend's company a $1.4 million contract for "public outreach" (never mind that it was a landscape- and janitorial-services company with little-to-no experience in public outreach).
So Byas hired an outside law firm to open up an investigation -- an investigation that, if you believe Byas, HCC's trustees routinely asked her to kill. Sometime around then, Byas claims, she started cooperating with an FBI investigation into the college, and even wore a wire to "document the numerous instances that Trustees pressured her to break the law."
That is what Byas says she wanted to talk to Maldonado about in April and May 2014, around the time HCC's board tapped him to be the college system's new chancellor. According to a whistleblower's complaint she filed with HCC on June 20, 2014, Byas finally met with Maldonado the morning of June 6. "Dr. Maldonado made it clear that he did not want to discuss the current status of the investigation," and instead put Byas on administrative leave while HCC investigated the "validity of my employment agreement," she wrote in the complaint.
"I believe, therefore, that the true reason I was placed on leave was because I was actively involved in leading an investigation into, and reporting upon, potentially unlawful conduct by certain Trustees," Byas wrote in her complaint to the college, which her attorneys filed in court on Friday. That complaint ultimately led to an administrative hearing last summer mediated by former Texas Supreme Court Justice Tom Phillips. It appears Phillips heard 14 hours of testimony from Byas, Maldonado and certain HCC trustees during the hearing.
Here's part of what Phillips wrote in his final report on the matter saying HCC "failed to demonstrate good cause" to fire Byas:
"I am not persuaded that Ms. Byas's admitted attempts to discuss ongoing corruption investigations with the Chancellor-designate in April and May 2014 constituted, in whole or in part, good cause for termination. ... While Ms. Byas might well have irritated her presumptive superior by raising the issue a second time, thereby giving rise to a perception that she would not be an easy employee to manage, I do not believe that her choice to try again was wrongful or insubordinate."
Byas's whistleblower complaint and the report from her administrative hearing were attached as part of her response to HCC's attempt last week to seal certain records in the case -- a case HCC initiated when it filed a lawsuit against Byas to nullify her contract with the college.
Byas's high-profile attorney, Rusty Hardin, argues that one of the nation's largest publicly funded community college systems shouldn't be allowed to shield internal emails, memos or other communications filed in court from public scrutiny, calling HCC's request overly broad and an unconstitutional prior restraint of free speech (Hardin even cites the famous Pentagon Papers case in his response).
HCC contends that Byas essentially stole confidential emails and documents from her work computer after the college put her on administrative leave. Phillips, in his report on the matter, had another take:
"Even taking her insubordination as true, however, I am persuaded that the unusual circumstances surrounding Ms. Byas's actions as general counsel justified her taking at least selected documents into her possession before leaving the premises. In particular, no one contests that she was in an ongoing cooperative relationship with the Federal Bureau of Investigation, and that she had a hostile relationship with certain trustees who were the focus of that investigation. Whether there was any merit to the allegations is beside the point and beyond the scope of my engagement; the fact that the responsible authorities had continued the investigation over a period of years gave her an implicit license to protect her sources of information."
Yesterday, we asked Maldonado about Byas's whistleblower complaint and Phillips's report. He wouldn't answer any questions, but the response we got from Ayesha Najam, an attorney hired by HCC to handle the Byas lawsuit, was quite illuminating:
"With respect to Mr. Phillips' letter, please note that the document contains confidential, attorney-client privileged information that was presented during a closed hearing. HCC, as holder of the privilege, did not consent to Ms. Byas's inclusion of same [sic] in a public filing. As you are aware, HCC has filed a motion to prevent this type of public disclosure by its former counsel of HCC's confidential, privileged information, and as you heard today, the Court will decide the issue."
That's right. HCC's only response, as of now, is simply to say that these documents shouldn't be public -- documents that show the college's former general counsel was fired after she tried to brief the new board-picked chancellor on investigations into alleged misconduct by board members; documents that appear to corroborate that Byas was indeed assisting an FBI investigation into the college.
This week, Harris County District Court Judge Jeff Shadwick is considering whether or not to seal these documents and others like them. If he agrees to HCC's request, who knows if the public will ever really know the full extent of what happened with Byas, why she was cooperating with the feds and why she was ultimately fired by HCC. See also: HCC Wants to Seal Records in Lawsuit Claiming Trustees Treated Bond Money Like a "Private Slush Fund"
-- Update 1/28/15 at 10:30 a.m.: Judge Shadwick yesterday filed an order denying HCC's request for a protective order to seal certain internal documents in the case. "[T]he documents which are the subject of HCC's request are described only generally, leaving the Court with the prospect of issuing an order which may be too vague to enforce," Shadwick wrote. The judge says he'd be willing to consider "an appropriate order (a temporary restraining order or temporary injunction, for example)" to seal documents if HCC submits a revised request in the future. HCC wouldn't respond to questions yesterday.
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