As it fought to seal some internal records in a legal fight against its former general counsel, lawyers for Houston Community College trotted out a strange argument in court earlier this month.
Along with a swath of internal memos, emails and transcripts HCC wanted to seal or redact, the publicly-funded college system also argued against disclosing certain communications between college lawyers and HCC trustees. Here was the college's basic argument: The HCC Board of Trustees are "representatives of the college," and anything shared with them by an HCC attorney remained attorney-client privileged information, and therefore isn't public.
It was an argument Harris County District Court Judge Jeff Shadwick literally scoffed at when HCC attorneys and lawyers for Renee Byas, the college's former general counsel who was fired and ultimately sued by the college last year, showed up in court on February 9 to argue over a temporary injunction to keep certain records in the lawsuit hidden from public view.
So, HCC's attorney from Gibbs & Bruns (the law firm hired to handle the Byas case) wrote Judge Shadwick a letter four days after the hearing, reiterating HCC's position: "Respectfully, contrary to the suggestion at the hearing, the Trustees are representatives of the College -- not strangers or third parties -- and a communication between a member of the Board and the College's counsel maintains its privileged nature."
This week, Judge Shadwick denied HCC's request for an injunction and laid out just a handful of instances in which HCC can redact or seal records if used in the Byas lawsuit (the so-called sealing order covers far less than what HCC had asked for; we're still digging through it, so more on that to come). Shadwick also wrote:
"HCC and the Court apparently disagree about the role of the HCC Board of Trustees (the "Board") in relation to the attorney-client privilege. The Court believes that the Board represents the public and, in fact, is the public. When HCC communicates with its Board it is communicating with the public. The Board is not just another administrative department; it is distinct from HCC as an entirety. Trustees lose their way when they forget this, and HCC cannot pull the Board in close as a means of protecting information and disqualifying public watchdogs from doing their duty to the public."
Notwithstanding some rare instances (like, say, emails between a lawyer specifically hired to represent the Board, not HCC), communications between HCC lawyers and board members are public record, Shadwick wrote.
Shadwick's ruling essentially means communications between Byas and HCC trustees are free to enter the public record. And here's why that could be important as the Byas lawsuit plays out in court:
While HCC claims it fired Byas due to poor performance and "insubordination," she filed a counterclaim last year saying she was ousted because she wouldn't play ball with trustees who wanted to turn the college's record half-billion dollar bond fund into a private piggy bank. Byas even claims that she eventually started cooperating with an FBI investigation into the college and wore a wire to "document the numerous instances that Trustees pressured her to break the law."
Go here for a primer on the drawn-out convoluted mess that has become the HCC/Byas lawsuit.