While we’re laying in stocks of popcorn and beer in anticipation of watching the Senate trial of impeached, suspended Attorney General Ken Paxton, one question is putting a damper on our excitement for what promises to be must-see TV come August.
What about the former employees of Paxton’s office who put their reputations on the line and were fired after they reported the many, many, so very many allegations of corruption that led to Paxton’s recent impeachment by the Texas House? When will they, who have sued Paxton’s office under Texas’ Whistleblower Act, see some measure of just compensation?
If lawyers representing the Office of the Attorney General (OAG) are right about the law it won’t be any time soon — maybe in 2025, possibly 2027 or some later odd-numbered year when a future Legislature is in session and willing to pony up money to settle the case. Luckily for the plaintiffs and Texas, the state’s lawyers are likely wrong. Surprise!
The latest delay facing the whistleblowers is SOP for Paxton when facing legal jeopardy: deny, attack and cobble together a bizarre stew of circular illogic to exploit court procedures in order to halt forward movement on the whistleblowers’ lawsuit. Delay and cover up are the goals.
The strategy is straight from the Donald Trump legal playbook, which isn’t surprising. Paxton isn’t just an ardent Trump supporter. He’s his Mini-Me.
The new roadblock thrown up by Paxton and his minions involves the “mediated settlement agreement” that the whistleblowers reached with the OAG in February, which would have provided them $3.3 million to settle their case, contingent upon the Legislature agreeing to pay.
The trouble is that the OAG and plaintiffs agreed to ask the Texas Supreme Court, which has a separate appeal in the case filed by the OAG seeking to quash the case, to hold off — “abate” — action on that appeal while the settlement agreement went before the Legislature. A favorable ruling for the plaintiffs from the Supreme Court on that appeal would allow the whistleblowers suit to move into the discovery phase, aka the juicy part, in which the plaintiffs could depose witnesses — including Paxton — and gain access to texts, emails and other potential evidence that might bolster their case.
Faced with the settlement agreement negotiated by the OAG, House lawmakers chose to go another way: No money. They impeached Paxton.
If you think it’s just the Observer that believes Paxton’s ultimate goal is to exploit court processes to cover up evidence of his wrongdoing, take a gander at No. 8 among the 20 articles in the House’s impeachment resolution: “While holding office as attorney general, Warren Kenneth Paxton misused his official powers by concealing his wrongful acts in connection with whistleblower complaints made by employees whom Paxton had terminated.
“Specifically, Paxton entered into a settlement agreement with the whistleblowers that provides for payment of the settlement from public funds. The settlement agreement stayed the wrongful termination suit and conspicuously delayed the discovery of facts and testimony at trial, to Paxton's advantage, which deprived the electorate of its opportunity to make an informed decision when voting for attorney general.”
(The bulk of the accusations against him concern alleged bribes he took from an Austin real estate developer in exchange for favorable treatment and subsequent actions Paxton allegedly undertook to cover up the bribery scheme.)
The strategy is straight from the Donald Trump legal playbook, which isn’t surprising. Paxton isn’t just an ardent Trump supporter. He’s his Mini-Me.
tweet this
In March, getting a sense of where the Legislature stood on paying the $3.3 million, the whistleblowers filed a motion asking the Supreme Court to end its abatement and rule on the OAG’s appeal, since the settlement agreement was dead.
“...In oral communications with Respondents, OAG contends that it has maneuvered Respondents into a GOTCHA position. ... OAG tells Respondents the case will never resume; they have given up their claims forever, even if legislative approval is not forthcoming. OAG thus reaps all benefits of a settlement, and Respondents achieve none,” the whistleblowers’ motion states.
In its reply, the OAG argues that it has been doing its darndest to secure the payment, but really, it’s up to the whistleblowers to lobby the Legislature to secure the money. “At no time has OAG suggested that it wishes to delay funding the settlement while simultaneously abating this litigation. To the contrary, by law, OAG is forbidden from using public resources ‘attempt[ing] to influence the passage or defeat of a legislative measure,’” the OAG told the court.
Apparently the limits on what the OAG can do to lobby legislators are flexible. As The Dallas Morning News reported on May 27, as the House took up the impeachment resolution: “‘I would like to point out that several members of this House, while on the floor of this House doing the state’s business, received telephone calls from General Paxton personally, threatening them with political consequences in our next election,’ [Rep. Charlie Geren, R-Fort Worth] said.”
To a layperson it might seem obvious that if the Legislature declined to approve the payment outlined in the settlement agreement and voted to impeach Paxton instead, in part because the OAG made the agreement for shysterish reasons, then the settlement agreement is no longer in effect. Surely there’s some fancy legal principle that shoots down the OAG’s argument. Nullus felix equus cacas, perhaps? We put that question to two lawyers with expertise in employment and whistleblower law, and while our Latin is iffy and tasteless, the principal is clear: The settlement agreement is dead.
Settlements are contracts, Austin Kaplan with the Kaplan Law Firm told us. If the settlement is contingent upon money being paid but none is forthcoming, then the settlement agreement is no longer in effect. In this case, “the Legislature says no, no, and hell no, and impeaches the attorney general,” then obviously the contingency included in the settlement agreement hasn’t been met.
Michael Maslanka, an associate professor at the UNT-Dallas College of Law, said much the same: “The settlement agreement was contingent upon the Legislature, therefore the settlement agreement is off, full-stop.”
Maslanka said it’s a rule in law that courts give a “reasonable interpretation” of the language in contracts in order to achieve the intent of making the agreements. In this case the intent was to settle the case now, “not in 2040.”
If the Supreme Court agrees that the settlement agreement is no longer in effect, then it’s free to rule on the OAG’s original appeal, the one that put the brakes on the case. In it, the OAG argues that Texas’ Whistleblower Act, intended to protect government employees who report wrongdoing by their bosses from retaliation, applies only to actions by state agencies themselves and public employees. Whatever bad things Paxton might have done weren’t done by the agency itself, the OAG’s argument goes, and Paxton is a different species of fish. He’s an elected official, no mere public employee, an argument Maslanka described as “a distinction without a difference.” (A non-lawyer might simply ask, “So where’s ol’ Ken drawing his paycheck from, then?”)
Judge Amy Clark Meachum in Travis County, where the original case was filed, rejected the OAG’s argument about the scope of the Whistleblower Act, as did the 3rd District Court of Appeals in Austin.
“We decline to adopt the interpretation of the Act proposed by the Office of the Attorney General of Texas (OAG), which would have the effect of stripping whistleblower protections from employees who might report misconduct by the thousands of elected officials throughout the State — particularly by those who direct and lead the agencies of this State,” the appellate court wrote.
“The settlement agreement was contingent upon the Legislature, therefore the settlement agreement is off, full-stop.” – Michael Maslanka, UNT-Dallas College of Law
tweet this
Kaplan said the notion that the Whistleblower Act was not intended to apply to the very people with the most power to both commit bad acts and punish those who report them “would make absolutely no sense … If the law were to protect anything, it would apply to these set of circumstances.”
Perhaps it’s cynical to suggest that the OAG was motivated to make the settlement agreement to forestall the Supreme Court from agreeing with the lower courts and sending the case back for discovery and a potential trial. On the other hand, if you’re following Paxton’s career and this case and not feeling awash in cynicism, you should try harder. Let us help: If the whistleblowers’ case does go to trial and succeeds, the bill will likely be much more than $3.3 million. Want to know who’ll end up paying? Find a mirror.
Kaplan offered at least one bright spot: While going to trial would be a less-than-ideal outcome for the plaintiffs, it would be “a great result for the rest of us,” as we’d get a peek inside Paxton’s office, possibly uncovering more wrongdoing.
True, but while we enjoy uncovering wrongdoing as much as the next reporter, we’re not thrilled about that prospect. For our part, we know all we need to know about Paxton. Instead, let the Senate convict Paxton and chuck him out of office for good. Then call the Legislature into session to quickly approve a settlement with the whistleblowers. That’ll at least get them some measure of justice and give the rest of Texas the chance to put an awful, dishonest and sleazy man behind us.
