Lawyers for Houston Community College went to court yesterday to argue that internal records from a public institution would harm said public institution if made public.
As the legal battle between HCC, one of the largest community college systems in the country, and the college's ousted top lawyer continues to drag on in court, HCC has renewed its push to seal documents and shield some of its own internal records from public scrutiny.
At issue in the case is why HCC really fired Renee Byas, the college's former general counsel. On one hand, HCC claims it fired Byas because she was "insubordinate" and because her contract extension with the college 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. Really.)
On the other hand, Byas alleges 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."
Now, with internal records starting to trickle out in court, HCC insists Byas is engaged in a "smear campaign" against the college's trustees, and that she's intent on using internal HCC records as a "bludgeon against her former employer and colleagues."
Byas took over as HCC's general counsel in 2008, right around the time the college was rocked by allegations that board members shuffled contracts to family and friends and demanded kickbacks from vendors. Shortly after her hiring, Byas says she helped tighten the rules for handing out contracts just as voters approved a record $425 million bond for the college system. In court filings, Byas has claimed that trustees at the college hated one new rule in particular - that board members would 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 the work. (A buffer, if you will, between the board and nearly a half-billion dollars in public bond money.)
Byas claims that trustees regularly asked her to skirt the rules (she claims one trustee even approached her with a list of firms she wanted to receive contracts). By 2013, an outside attorney hired by the college to monitor the bond award process and make sure everything was aboveboard (because that's how much oversight HCC apparently needed) thought she'd found a problem. Namely, the attorney thought it looked like one trustee, Carroll Robinson, 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. Byas claims that sometime around then 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."
In court filings, Byas has claimed she tried to bring HCC Chancellor Cesar Maldonado up to speed on the ongoing corruption investigations soon after the board appointed him. Instead of listening, Maldonado refused to meet with Byas, called her behavior insubordinate, and put her on administrative leave shortly after taking office in June 2014, according to documents Byas filed as exhibits in Harris County District Court - documents HCC has argued should not be public record.
The morning Byas was put on administrative leave, then board trustee Neeta Sane emailed the outside firm tasked with investigating Robinson, her fellow trustee. Sane told the firm to share everything with the new lawyer hired by the board to oversee that investigation, Vidal Martinez. The final report on that investigation, which was finished under Martinez, concluded that there was no reliable evidence that Robinson tried to help a close friend bag a huge contract. Sane's email, at the very least, appears to show that the investigation -- the one that effectively cleared a trustee suspected of meddling in the bond-award process -- was put under the watch of a new, board-appointed attorney the very same morning Byas -- who, if you believe her, faced mounting pressure by the same board to kill that investigation -- was being shown the door.
Byas' attorney Rusty Hardin, whose office first sent us that email, says that particular email surfaced during an administrative hearing last summer, during which the college sought to justify firing Byas. And apparently HCC really, really didn't want the Press to have that email. Last month, as the college sought a blanket protective order to seal a whole bunch of internal documents in the case, HCC lawyers cited that email as the main reason, saying Byas was leaking confidential documents to the media (Harris County District Court Judge Jeff Shadwick ultimately rejected that request).
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Former Texas Supreme Court Justice Tom Phillips was brought in to mediate the administrative hearing between HCC and Byas last summer. In his final report on the matter, which HCC has argued should not be public record, Phillips wrote that HCC "failed to demonstrate good cause" to fire Byas. Said Phillips:
"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."
HCC claims that Byas essentially absconded with confidential emails and documents after Maldonado put her on leave (in fact, Byas did return some flash drives and a computer to HCC just last week). Byas, however, claims she was simply preserving evidence related to ongoing investigations, evidence she feared would disappear as soon as HCC showed her the door. Here's what she testified to in her administrative hearing, according to transcript excerpts filed in court - transcripts HCC has argued should not be public record:
"I believe that they were removing the computer because they knew that there was critical evidence concerning the investigation. ... I have a responsibility as any citizen to protect the interest of the public and preserve any documents that I believe were - that was an attempt to destroy those or to obstruct justice to impede an investigation, and I believed that then and I still believe that."
Phillips had a pretty similar take on the whole absconding-with-documents thing. According to his report - which, again, HCC has argued should not be public record:
"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."
HCC argues that Byas is filing all of this stuff in court in order to "obtain favorable media coverage." Which is quite a remarkable argument, considering Byas didn't make a public peep about any of this 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). As Hardin put it, "They're like the kid who killed his parents and then complains about being an orphan."
And what's been filed in court so far just raises a whole lot more questions that nobody --not Byas, not HCC -- has yet answered. What (or who) was the subject of the FBI's investigation into HCC? What was said during those secretly-recorded conversations Byas had with trustees? Maybe some of those answers will come out in court as the case drags on -- that is, if the records aren't shielded from public scrutiny. When we've asked HCC to comment on the details in Phillips' report (which appears to bolster at least some of Byas' claims), HCC lawyers responded by essentially telling us that the college didn't consider it to be a public document.
This week Judge Shadwick is looking through a binder of documents from Byas' administrative hearing -- the kind of documents we've cited above -- which HCC argues are, at least in parts, confidential. HCC has asked the judge to seal some or redact portions of others if they're entered into the public record.
Maybe HCC really did have a good reason to fire Byas. Maybe this is what it looks like when a public institution eats its own. You know what could help answer these questions? More records.
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