Retaliation and Secrecy at HCC: A Tale of Two Lawsuits

There are some familiar, unifying themes in two lawsuits that continue to nag at Houston Community College. Retaliation and secrecy.

We've already written much about the community college system's ongoing legal battle against its former general counsel Renee Byas — how HCC says it fired Byas last summer (without cause, if you take the word of a retired chief justice of the Texas Supreme Court first brought in to mediate the dispute) because she was insubordinate; how Byas alleges she was terminated because she wouldn't play ball with HCC trustees who wanted to use a near-half billion dollar bond like a “private slush fund” and because she cooperated with a federal investigation into shady activity at HCC; and how, amid an ever expanding laundry list of searing allegations against former and current HCC trustees, lawyers for the taxpayer-funded community college system (one of the largest in the country) have spent much of their time in court fighting to keep internal records from a publicly-funded institution from becoming public record.

If you think that's something, just wait till you hear what happened to Johnjay Portillo.

The former HCC police officer was one of many who back in 2010 began to anonymously alert HCC higher-ups of what they perceived to be serious management problems at the school's police department. Among other issues, Portillo and some of his fellow officers alleged that HCCPD was inadequately training incoming officers, who in turn couldn't perform basic police duties. They said HCC's new flashy, heavily-armored tactical team was even worse than useless — not only did it introduce high-powered weapons to the school, but it also siphoned officers away from patrol duty, leaving skeleton crews to actually police the system's campuses. Portillo, in his letter to one administrator, referenced an instance in which campus police took ten minutes to respond to a report of a man beating a woman in a campus parking lot.

In short, most if not all of these complaints pointed to then new-ish HCC Police Chief Gregory Cunningham. And, as former Houston Press staffer Chris Vogel wrote in 2010, Cunningham for some reason kept firing HCC police officers for what appeared to be pretty suspect reasons (like, say, letting an F-bomb fly during an off-duty exchange with an EZ TAG clerk).

While Portillo's letter to the college administrator, back then obtained by Vogel via a public information act request, was cited in the Press's 2010 story, Portillo had declined to talk publicly about his concerns with the department and wasn't a source for the piece. But Cunningham apparently didn't believe him.

Portillo claims his superiors questioned him about that Press story shortly after it ran, making sure he knew that Cunningham was not at all pleased with the increased scrutiny placed on his department. Portillo alleges there were even threats of retaliation.

Then, on July 27, 2010, while Portillo was patrolling HCC's Northline campus with two other officers, police got a call that an angry student was inside the building tearing up a classroom, throwing chairs and flipping tables. As Portillo later wrote in his incident report, he ultimately found the student outside, yelled that he was an officer and told the student to stop, but the guy ran, got into a black Dodge Voyager, and started to take off. METRO cops ultimately stopped the car, police drew their guns, and cops put Joshua Murray in handcuffs. Portillo says when he asked Murray why he ran, the student told him he was having a bad day and was afraid of cops because HPD had shot and killed his brother days earlier.

Portillo says he called the Harris County District Attorney's Office, which authorized charges of evading arrest against Murray.
Portillo thought it was an unremarkable arrest. But later that summer, Murray complained to the HCC Board of Trustees, claiming Portillo used excessive force. Portillo insists Cunningham used the complaint as a pretext to not only fire him but destroy him.

An internal affairs report shows Cunningham ordered one of his sergeants, David Moore, to “conduct a preliminary internal affairs investigation into allegations that HCC Police Officer John (sic) Portillo may have made false statements” on his report of the incident with Murray. That internal affairs report doesn't mention anything about allegations of excessive force. Instead, Moore claimed that security camera footage and the testimony from one officer on scene conflicted with Portillo's story — namely that there was no evidence Portillo yelled at Murray and told him to stop. (Portillo says the video in question doesn't even show where the chase occurred, and, from looking at the records, the fellow officer's narrative statement in his own report after Murray's arrest largely conflicts with the internal affairs investigator's version).

On October 18, 2010, Portillo was charged with tampering with a government record, a felony. Murray's charge was dropped a few days later. In March 2014, Portillo's case finally went to trial, and a jury delivered a unanimous not-guilty verdict.

At this point, you might think Portillo, having been cleared by a jury of his peers, would be free to go back into law enforcement. Not if HCC has anything to do with it.

Shortly after HCC filed charges against and terminated Portillo, they filed a termination form called an F-5 with the Texas Commission on Law Enforcement Officer Standards and Education, the state law enforcement licensing board, which becomes part of an officer's permanent record. Cunningham gave Portillo a dishonorable discharge, effectively making him unhireable, Portillo says.

Portillo says that dishonorable discharge made it impossible to work in law enforcement while he waited for his day in court. So after he was cleared by a jury, Portillo petitioned to the State Office of Administrative Hearings to change his termination from “dishonorable” to “honorable.”

“I figured if a freaking jury acquitted me, and that criminal case was the whole reason for the dishonorable discharge, then it should be a pretty easy thing,” Portillo told the Press. But Cunningham contested the move, and soon Portillo got pulled into another drawn-out legal battle. In a SOAH hearing on the matter last month, Portillo claims that HCC's “main concern was keeping the proceedings private and asking for a gag order from the Judge.”

Earlier this year, Portillo filed a lawsuit against HCC, Chief Cunningham, and pretty much everyone else who he feels played a part in his case — including Murray, the guy he arrested. Portillo says the lawsuit could have been avoided if HCC had just let him move on with his life. “I interview for (law enforcement) jobs, everything looks good, my background check looks fine, and then they get to the whole HCC thing,” he says. “They can't hire me, not after they see that dishonorable discharge.”

And, true to HCC form, the college last week filed for a protective order in the lawsuit, asking the judge in the case to keep many HCC records that are turned over in the course of discovery out of the public eye. Among the documents that Portillo and his attorneys have asked for is an internal report from back in 2010, the so-called Kathy Butler report, named after an outside attorney brought in to investigate complaints and allegations, like Portillo's, against Chief Cunningham (in an email Thursday, Cunningham declined to answer questions from the Press about Portillo's case).

Since HCC never released that report to the public, it shouldn't now be made public through a court case, HCC says. Here's what the college's lawyers say about that report in a court filing made last week: “This report is confidential and is subject to attorney-client privilege and attorney work-product privilege. It was developed by an attorney retained by the College, completed at the direction of the College, and was not released to the public.” (It should be noted that, according to officers that spoke with the Press back in 2010 who were interviewed for Butler's report, Butler was unambiguously acting as an investigator, not an attorney.)

HCC's lawyers also scoff that one of the attorneys helping out on Portillo's case is Manuel Barrera, the watchdog/blogger behind the website (Earlier this month, HCC sued the Texas Attorney General's Office after it ruled that Barrera was, under state open records law, entitled to see invoices submitted by law firm Monty and Ramirez between June-November 2014; that law firm is also defending HCC against Portillo's lawsuit.)

“Plaintiff's counsel intends to make this litigation a sideshow by publishing on the Internet whatever discovery it obtains from Defendants in an attempt to sully the reputation of the College," HCC says in its filing, asking the judge to sign an order barring Portillo from sharing any internal HCC records with third parties — like, say, journalists — as the case drags on.

Which begs a very interesting question that, for some reason, just keeps coming up in HCC's legal battles: Should a public institution get to hide internal information that comes out in the course of a lawsuit just because it might be embarrassing? 
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Michael Barajas
Contact: Michael Barajas