Texas’ 2012 primary is basically a year away. Williamson County’s ongoing political turmoil and apparent funding of bad behavior over good government is undoubtedly going to impact that election with two developments this week providing new fodder for the county’s ongoing poli-drama.
The Austin American-Statesman reported on a news conference called Thursday by County Judge Dan A.Gattis to dispute allegations of a lawsuit filed against him by County Attorney Jana Duty. In the lawsuit, Duty cited five counts of the judge hiring outside legal counsel without proper authorization including failure to obtain advance approval from the County Commissioners Court as per mandated open meeting laws.
Weeks after its filing, Bell County District Judge Rick Morris dismissed the suit basing the decision not on case merits, but on a legal premise called the “forgiveness doctrine” in which Texas law says “An officer may not be removed from office for an act the official committed before election to office.” As all alleged acts were committed prior to Gattis’ Nov. 2, 2010, election, this law functionally barred Duty’s removal effort.
At Thursday’s conference, Gattis reportedly disputed Duty’s allegation that he and County Commissioner Ron Morrison hired Potts & Reilly in March 2007 to assist in a landfill contract renegotiation yet didn’t obtain Commissioners Court approval for the hiring until July. Duty’s lawsuit provides a March 23, 2007, letter indicating Susan E. Potts’ impression of the hiring, an impression further supported by her June submission to the Commissioners Court of an 18-page opinion on the landfill contract and an Aug. 9 invoice billing $23,172 for work performed. The suit also includes a copy of the July agenda approving Potts & Reilly’s hiring.
Two of Duty’s other cited counts against Gattis involved hiring attorneys to deal with a situation in which now-retired County Court at Law Judge Don Higginbotham was (per multiple accounts) allegedly committing open acts of sexual harassment and verbal abuse, a situation that’s now the basis of a federal lawsuit filed against the county.
Both attorneys were paid at Williamson County taxpayer expense for their involvement with the Higginbotham matter. Gattis denies hiring either and defers the engagement of one attorney, Steve Mierl, to Lisa Zirkle, the county’s human resources director. While perhaps true in a technical sense, Duty’s lawsuit maintains Zirkle acted at Gattis’ direction and provides documentation that payment for these services was outside proper authorization channels.
Though Gattis’ initial request for the county to hire Mike Davis as Higginbotham’s counsel was denied, Duty’s lawsuit describes Davis’ attendance of a January 2010 meeting set to discuss the sexual harassment complaints during which she says Davis claimed to be representing Higginbotham. When told the Commissioners Court was not going to approve such representation, Duty quotes Davis as saying “That’s fine. I’ll just work for free. It wouldn’t be the first time.” The lawsuit then details Duty’s discovery that Davis was in fact billing for the Higginbotham case work, but that the invoices were “disguised under another case’s cause number in which Davis had been previously legally retained.” Despite the Commissioners’ clear desire that Davis’ payments on the Higginbotham case should be returned to the county, the suit documents Gattis’ additional intervention by offering Davis the option of issuing a credit memo.
One of the public’s biggest frustrations in today’s political climate comes from recognizing the cronyism culture in which many elected officials and other bureaucrats happily participate. With this, people increasingly decry those operating in political arenas who take self-interested action often at the expense of constituents and the general public.
The lawsuit seeking to remove Judge Gattis was dismissed, per his own counsel’s argument, on a technicality. It doesn’t alter any facts, it just means he’s “off the hook.” The judge certainly has every right to call news conferences and say what he wants, but the public – especially Williamson County voters – will hopefully look deeper to see how the basis of this lawsuit and the actions taken by Gattis fail to reconcile with his words.
Jana Duty did her homework on this lawsuit and should be commended for breaking ranks with the traditionally protectionist legal industry of which most parties in this case appear to belong. It’s made her a target of that industry as this week’s second Williamson County poli-drama development reminds.
The Feb. 20 edition of The Williamson County Sun reports that the State Bar of Texas has dismissed a professional conduct violation claim put forth by Georgetown attorney Kerry E. Russell against Duty. The complaint was first filed with Williamson County District Attorney John Bradley accusing Duty of a Class A misdemeanor offense through “intentional destruction of a local government record” and copied to the State Bar of Texas. Submitted on Jan. 13 in the weeks between the Gattis removal suit filing and its dismissal by Judge Morris, Duty termed the move as retaliatory – a view likely shared by many watching this situation.
The Williamson County Commissioners voted unanimously on Jan. 25 to also file a State Bar grievance against Duty, but are calling their grievance process “private.” While details of that complaint have yet to be released, the Court says they have identified eight alleged violations of the Texas Disciplinary Rules of Professional Conduct.
Per the Sun, “The Office of Chief Disciplinary Counsel informed Mr. Russell that the information he provided as evidence ‘does not demonstrate any disciplinary rule violation’ by Ms. Duty.” In response, a Feb. 10 letter from Russell to the Bar is quoted: “Perhaps I am totally wrong, but it seems to me your letter lends to a public perception that the State Bar condones Ms. Duty’s admitted violations of her legal and ethical duties as a licensed attorney in Texas.” The letter further states “Such a public perception is not fair to our industry.”
Public perception of the Bar is generally that its a protectionist organization promoting the appearance of the legal industry responsibly self-regulating itself, but that its disciplinary action record is unimpressive and shows a bent contrary to the public’s bests interests.
And with regard to Russell’s complaint, the degree and volume of misconduct and corruption that continues emerging out of Williamson County makes Duty’s worst “offense” seem to be serving in the untenable position of supporting people with no sense of responsibilty for their own positions of trust.
Former County Court at Law Judge Don Higginbotham’s conduct is the subject of the document which Duty sent to the other three Williamson County Court at Law judges and is now accused of destroying. The Austin Bulldog’s Complaint Comes on Heels of Lawsuit to Remove Williamson County Judge Gattis gives detailed information on the charge against Duty, competing arguments and “back channel” activities that appear at work.
Most interesting is that this development once again illustrates the time and attention that Judge Higginbotham’s misconduct commanded over a course of years. Both his judicial peers and other county officials seem to have long had knowledge of the inappropriate and unlawful behavior, but instead of responsibly addressing it, efforts seemed to focus on covering the behavior and shutting down any potential negative consequences.
Higginbotham handled various types of cases including probate matters. His judgment – the same judgment that apparently subjected county employees to systemic, routine sexual harassment and verbal abuse – impacted the lives and lifelong property accumulations of many people.
Kerry Russell self-righteously asks if the State Bar condones Duty’s alleged ethical violations. A better question is perhaps what kind of people would for years condone Higginbotham’s open abuse of employees, elected position and public trust? What kind of people would conspire to conceal rather than work to resolve Higginbotham’s known abuse? And one more – how did this ongoing pattern of dysfunction in any way serve the interests of Williamson County taxpayers or those who fall under the county’s jurisdiction or those acting in good faith to conduct business with the county?
The biggest question, however, will be answered next March when the primary election provides an important opportunity for Williamson County residents to cast their votes to hopefully replace supporters of cronyism and bad behavior with those truly committed to good government policy that serves public interests.
Lou Ann Anderson is an advocate working to create awareness regarding the Texas probate system and its surrounding culture. She is the Online Producer at www.EstateofDenial.com, a Policy Advisor with Americans for Prosperity – Texas Foundation and a Director of Women on the Wall. Lou Ann may be contacted at info@EstateofDenial.com.