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March 10th, 2023:

The whistleblowers’ un-settlement

Plot twist!

A crook any way you look

The whistleblowers who sued Attorney General Ken Paxton say they’re headed back to court unless he agrees that the Legislature must approve their proposed $3.3 million settlement before the current legislative session ends in May.

They are the four former aides to Paxton who allege he fired them in retaliation for reporting him to federal authorities for bribery and abuse of office. Paxton has denied all wrongdoing. Their lawyers said Wednesday they were “forced” to file a motion in an Austin appellate court Wednesday asking for the case to resume.

In a joint statement, the lawyers said a deadline of the end of session for payment was the “fundamental premise upon which they asked us to negotiate in the first place.”

“So we’ll go back to court, where the taxpayers will end up paying more to defend (the Office of the Attorney General) than they would to settle this case,” the lawyers said. “We would still settle the case if the Legislature approved the payment this session, but we cannot and did not agree to give OAG the benefit of a settlement while the whistleblowers wait in perpetuity for legislative approval.”

The attorney general’s office did not immediately respond to a request for comment.

Some members of the Legislature, including Texas House Speaker Dade Phelan, have expressed opposition to approving the settlement. Earlier this month, Phelan said in an interview with CBS DFW that he did not think it was a “proper use of taxpayer dollars.” Taxpayers are already on the hook for $600,000 in legal fees for Paxton’s defense.

[…]

The case now returns to the Texas Supreme Court, where it landed after Paxton appealed in December 2021 a decision by the 3rd Court of Appeals that upheld a lower court’s finding that the state’s whistleblower protection law should have prevented the employees from being fired.

The all-Republican court had not yet decided whether it would grant the case when the whistleblowers and Paxton asked them to hold off on any decisions while the parties finalized their settlement agreement. The court could decide to grant or deny at any time; it is not subject to a deadline.

In addition to the $3.3 million payment, the settlement, which the parties announced last month, would have required Paxton to remove a news release from his website that is critical of the employees. He also would have had to state in the agreement that he “accepts that plaintiffs acted in a manner that they thought was right and apologizes for referring to them as ‘rogue employees.'”

See here, here, and here for some background. The Trib adds some details.

The multimillion-dollar settlement, announced last month, would give back pay to the four former employees and would include an apology from Paxton as well as other concessions. But the agreement needs to be approved by state lawmakers, who have expressed an unwillingness to use taxpayer dollars to settle Paxton’s case. At the request of the parties in January, the Texas Supreme Court put the whistleblower case on pause while the two sides looked to finalize the deal. But without a deadline, the case could be on pause indefinitely, attorneys for the former employees said on Wednesday.

“Sadly, we have not been able to reach a final settlement because [the Office of the Attorney General] will not agree to include in the formal agreement a deadline for the legislature to approve funding this session, even though that was the fundamental premise upon which they asked us to negotiate in the first place,” the attorneys said in a statement. “So we’ll go back to court, where the taxpayers will end up paying more to defend OAG than they would to settle this case.”

Paxton’s office did not immediately respond to a request for comment. He has denied wrongdoing.

Attorneys for the former employees said they would still settle the case if lawmakers approved the $3.3 million settlement this session.

“But we cannot and did not agree to give [the Office of the Attorney General] the benefit of a settlement while the whistleblowers wait in perpetuity for legislative approval,” they wrote.

The fired employees’ attorneys have urged lawmakers to approve the settlement, but its funding looks bleak after top legislators, including House Speaker Dade Phelan, came out against the use of state funds to settle the case. The Legislature’s top budget writers did not include the settlement in their first draft of bills to resolve miscellaneous legal claims.

In a filing to the Supreme Court on Wednesday, attorneys for the former employees said the attorney general’s office has told them verbally that they have put the whistleblowers in a “gotcha position.” If lawmakers do not approve funding for the settlement by the end of this legislative session on May 29, the attorney general’s office has said the whistleblower case should remain on pause until the next legislative session in 2025. If it is not approved again, the filing reads, the attorney general’s office has said the case should remain on pause until the following session in 2027.

“And so on in perpetuity. [The Office of Attorney General] tells Respondents the case will never resume; they have given up their claims forever, even if legislative approval is not forthcoming,” the filing reads. “[The Office of Attorney General] thus reaps all benefits of a settlement, and [the former employees] achieve none.”

In written communications, the fired employees’ attorneys say Paxton’s office has been “craftier,” arguing that it is still researching what would happen if the Legislature refuses to approve the settlement and will not address that potential outcome until it happens.

The fired employees’ attorneys blasted both positions as “preposterous,” arguing that they would have never agreed to put the case on pause indefinitely or for a lengthy time period.

The motion to pause the case — which was requested, drafted and filed by the attorney general’s office with agreement by the fired employees — was “intended to briefly postpone” any potential ruling while the two sides sought legislative approval for the $3.3 million settlement. But attorneys for the fired employees say Paxton’s refusal to set a deadline is preventing the two sides from completing the settlement agreement while at the same time not letting their case against him move forward.

Couple things. First, let’s remember that SCOTx was going to rule on the question of whether Paxton could be sued at all under the Texas Whistleblower Act. Paxton had argued that he could not be sued under that law because he’s not public employee, because elected officials don’t count under that law. By asking SCOTx to resume their deliberation on that question, the four plaintiffs are risking that their answer will be to rule in Paxton’s favor and toss the lawsuit altogether. And even if they win on that question, it just means that the lawsuit can go back to a district court and be heard on its merits. Which, again, they could lose, or they could get a lesser amount awarded to them. And the whole thing will then have to go through the appeals process, because of course Paxton will fight it for as long as he’s in office, and the verdict could get overturned or the award could be reduced, and the whole thing could take years. Whatever else you may think about their case and the initial settlement, these guys are taking a substantial risk by doing this.

But you can see why they’re willing to take that risk. Paxton, who has always been able to turn a bad situation of his own making into an advantage, is using the Lege’s understandable unwillingness to pay for his sins as an indefinite stalling tactic. As things stand now, he has zero incentive to take any action. The case is frozen in amber. And even if SCOTx ultimately rules that the lawsuit can proceed, if there’s one other thing (besides criming) that Paxton is good at, it’s delaying legal reckonings. Who knows how long he could draw this out, assuming he remains in office?

All of which suggests a fairly easy way out for SCOTx, if they want to take it. They can rule that the Lege doesn’t have to apportion any money to pay the settlement, and let Paxton pay for it out of whatever budget the Lege sees fit to give him. This is of course what I have been arguing they should do, as it is the most fair and just solution at this point, so I’m a little biased. But, you know, it really is a good solution – it allows the whistleblowers to get their back pay and their apology, it guards against a much larger potential verdict while also not putting the public on the hook, and it makes Paxton bear the brunt of the financial penalty. It might damage the AG office’s ability to do its job, but that’s just too bad. This is what happens when you put a crook in charge of law enforcement. I hope SCOTx comes to the proper conclusion and saves us all a multi-year saga.

Wheatley’s fate

We may learn today of the TEA’s intentions with HISD. Whatever does happen, let’s remember that in the end this will affect a lot of people, and some of them are not happy with the position they’ve been put in.

Samuel Ollison, a junior at Phillis Wheatley High School, already has started working on his back-up plan.

He spends his free time looking into schools he should attend senior year because Houston ISD may be taken over by the Texas Education Agency at any moment, and he has heard rumors his school may close.

“I’m nervous, honestly,” Ollison said. “They say my school is the No. 1 factor in why TEA is taking over HISD …We just need to do better at this school because I really don’t want Wheatley to get shut down, or for the TEA to take over.”

It’s an uncertain time for students at Wheatley High School, as the 96-year-old Fifth Ward campus continues to be thrust in the spotlight for its multiple failing accountability grades that puts the district at risk of losing its superintendent and elected board. Meanwhile, rumors are circulating about what will come of a possible state intervention, leaving parents and students alike in fear of the school’s closure.

Ollison grew more concerned when read an article in which Mayor Sylvester Turner said Texas Education Agency Commissioner Mike Morath told him he has two options — appoint a board of managers or close Wheatley high school. Other public figures since have made similar comments.

State code indicates that closing a school is an option, but the TEA never has stated that it plans to. Morath has spent years pursuing the other option — appointing a board of managers, which temporarily was blocked by an injunction. However, the TEA declined to comment on the mayor’s remarks or if intends to close Wheatley.

[…]

Throughout the years, the school’s enrollment began to drop, and subsequently the dollars tied to that enrollment. By 1976, the school was in the bottom 12% for reading scores, according to a 1978 Texas Monthly article. In 1995, the Fifth Ward school had the highest dropout rate and lowest math score of the high schools in the Houston ISD.

From 2014 to 2017, it earned an “improvement required” rating from the state, and in 2019, under a revamped accountability system, the school earned an ‘F.’ Ratings were paused in 2018 for Hurricane Harvey and in 2020 and 2021 for COVID.

In 2022, the school earned a ‘C,’ but some argue that the standards were lowered.

Either way, the previous streak of failing ratings, in part, triggered a takeover battle that has been slowly making its way through the courts.

Joseph Williams took the helm of the school as principal in 2018, not long after the district was put on alert for a potential takeover. When Williams first took the job — he knew “time was of the essence.” His first priority was to improve the school’s culture and the morale.

“In some cases, there was apathy with some of the scholars,” Williams said. “We just wanted to revive the spirit. When you just keep hearing your name and its associated with this negative thing, it can kind of wear on you.”

He tightened up the attendance policy, restructured the classroom layout to make sure grades were grouped together, allowing administrators to better monitor students.

They implemented an online merit system, where teachers could award students points for good attendance or high scores. They could cash in the points they earned for snacks or a free hoodie. The school saw some modest improvements on test scores and earned a C for its most recent accountability rating. This is a point many education advocates, lawmakers, and critics of state intervention make when talking about the potential takeover.

There’s more in the story from current students and their parents, who are trying to figure out what their options would be if Wheatley is closed. I don’t think that will accomplish anything positive, especially with the school on a better path now. You know my feelings on this, so I’ll just leave this here. And I hope that tomorrow, and the next day and the day after that, I don’t have to write about what happens next in a post-takeover world.

Ashby Highrise 2.0 gets a permit

It’s happening!

Did you miss me?

For years a controversial proposal to build a high rise in the wealthy enclave of Boulevard Oaks appeared to be dead — a lesson in how land-use battles can erupt even in a city with virtually no zoning.

But after six years of sitting on the proposal — and the vacant, proposed site at Ashby and Bisonnet sitting dormant — the owners, Hunt Cos. of El Paso, last spring resurrected efforts to build the tower. They brought on a new development team, Dallas-based Street Lights Residential, to create a scaled-down version of the high-rise, now called The Langley, that they hope would win over neighbors who had fiercely opposed the earlier project dubbed The Ashby.

Almost a year after StreetLights filed updated plans with the city, the developer says it is weeks from breaking ground on the 20-story apartment building. The city of Houston granted StreetLights Residential a permit for site work and foundation work Monday, though it still is waiting approval to start vertical construction.

Stephen Meek, developer at Street Lights Residential, said the approved work could begin in early April.

“(The site now) is a brown field that looks like a black eye right at the entry of beautiful neighborhood,” Meek said. “What we’re proposing is bringing something beautiful and something as architecturally significant.”

The spacious units and high-end design of The Langley are aimed at attracting well-heeled empty-nesters, and Meek believes some neighborhood residents would want to live in The Langley if they decide to downsize but want to stay in the area.

Many of the neighbors, however, remain opposed. Several houses around the project site are adorned with bright yellow signs with a menacing carton caricature of a high-rise and the phrase “Tower of Traffic” and “Protect Our Neighborhood” — a nod to past protests against the previous high-rise proposal.

A small group of concerned neighbors have been quietly working to pressure city officials and Street Lights Residential to abide by a 2012 agreement reached between the city of Houston and the site’s owners that set certain parameters for size, traffic, noise and other concerns. (StreetLights rejects, saying it is following the 2012 deal to the letter.)

Neighbors also argue StreetLights should be required to follow updated city ordinances — rather than being built according to laws that were in place at the time Hunt Cos. and Buckhead Investment Partners first applied for building permits in 2007.

As of Tuesday evening, it wasn’t immediately clear if the city’s legal department had determined whether The Langley could be grandfathered.

See here for the background. As the story notes, some residents and neighborhood groups aren’t trying to stop The Langley – I will try to use the new name, but in my heart it will always be the Ashby highrise – but just want it to abide by the new 2012 rules. Which, hey, more power to them. The original 20-story concept never made much sense, but that doesn’t mean that some multi-story building there wouldn’t be a good fit. Could this story finally have a happy ending, or at least a tolerable one, for all? Maybe! Hopefully it won’t take as long to find out.

Dispatches from Dallas, March 10 edition

This is a weekly feature produced by my friend Ginger. Let us know what you think.

This week in Dallas news: The DPD evidence scandal grows, more about Marvin Lowe, water cremations, winter weather, Star Wars, and finally some good news at the Dallas Zoo.

I complain a lot about the Dallas Morning News, but they’ve done a good job covering the Dallas PD evidence scandal. Here are the two most recent stories about what the investigation into missing evidence is finding: Murder cases could be in jeopardy as Dallas police review 450 cases for missing evidence [Archive link] and What we know about Dallas police search for missing video evidence in murder cases [Archive link]. 13 homicide convictions are in jeopardy and now they’re going through violent crime cases. One does wonder whether this is a problem with DPD or whether review of other law enforcement agencies would show the same kinds of negligence in evidence handling. Meanwhile, I hope the last line of this DMN story about official reactions to the missing evidence [Archive link is correct and someone is going to be held responsible for these screwups.