During
the final days of
the last legislative
session, Representative John Hirschi was fed up with
the Attorney General’s (AG) Office. Frustrated by his inability to obtain the agency’s internal financial analyses of the potential
costs of a major piece of pending legislation, Hirschi made a final attempt. He
called Deputy AG Drew Durham to his office, and, in an ironic twist, demanded
that he fork over the goods under the Texas Open Record Act – the very act for
which the AG’s Office is chief enforcer.
“I became aware of the fact that I could use the Open Records Act to get what
we wanted,” Hirschi says. “We felt we needed that information to make an
informed decision on a major bill.”
Durham balked, Hirschi recalls, and tried to dissuade him from seeking the
reports, for two reasons. First, it would compromise the agency in a lawsuit
with another party seeking the same information, and second, because the
information the AG’s lawyers had gathered on the financial impact of Senate
Bill 14 was exaggerated.
But Hirschi refused to back down. Not that it did him any good – the AG
subsequently delivered a batch of documents so heavily censored with black
ink, the papers would have been laughable had they not been such a startling
attempt to hide the truth. Rather than satisfy Hirschi, the redacted materials
piqued his curiosity even more.
“It just confirmed our suspicions that [the AG’s staff] had come to the
conclusion that there would be substantial costs to enacting SB14,” Hirschi
says.
What did Attorney General Dan Morales have to hide? Judging from other recent
Open Records Act disputes and allegations that one of Morales’ top brass may
have lied under oath, critics say plenty.
“All these attempts to hold back information clearly and sadly show that
rather than being the lawyers for the people, the AG’s office is now serving
the political interests of one person: Dan Morales,” says James Marston, the
director of the Environmental Defense Fund’s Southwest office.
Marston says the proof lies in Morales’ attempts during the last legislative
session to keep lawmakers, public policy experts, and reporters from getting
their hands on internal reports the office had prepared on the fiscal and legal
consequences of SB14, otherwise known as the “takings” bill. Morales fought
tooth and nail to keep his agency’s internal predictions concerning the cost of
the takings legislation from seeing the light of day, even as some lawmakers,
like Hirschi, clamored for access.
But why? After all, the other state agencies that were asked to predict the
financial ramifications of the then-proposed legislation handed over their
information without a fight. State employees at the AG’s Office using
taxpayers’ money had gathered information on the possibly profound impact that
pending legislation might have on landowners, ranchers, and industry and
environmental regulators alike. What right had Morales to hide that
information?
Several lawmakers and policy-watchers have come to the conclusion that Morales
did not want to provide info that might have obstructed passage of the takings
bill because it was backed by the powerful property-rights crowd – a group with
which Morales has increasingly aligned himself. “One would have to assume that
[Morales] thought the legislation was okay, and didn’t want to provide any
information that would have damaged the chances for passing the bill,” says
Hirschi, a Democrat from Wichita Falls who opposed SB14. “I was very
dissap-pointed in the position and attitude [the AG’s office] took… but this
is politics, let’s not forget. [Morales] has to run for office.”
The takings bill, which was
drafted by cattle business interests and sponsored in the senate by Senator
Teel Bivins, a rancher with a large spread in the Panhandle, was heralded by
property rights activists. The law creates a new legal avenue for property
owners to sue governmental agencies that enforce a regulation which devalues
their property, or even a small part of their property, by 25%, otherwise known
as a “taking.” Before the takings bill, which will go into effect next month,
the only redress property owners had was to file a hard-to-win takings suit
under provisions in the U.S. or Texas Constitutions.
SB14 also provides that, if a property owner wins a takings suit, the agency
enforcing the regulation devaluing the property can decide to overturn the said
regulation, or continue to enforce it and pay damages to the owner. Sponsors of
the bill argue that the purpose of the legislation is to keep government from
making overly stringent environmental rules that don’t make sense in a “look
before you leap” analogy. However, opponents counter that the bill’s goal is to
intimidate government agencies from enforcing environmental, health, and safety
regulations with the threat of costly litigation.
During the legislative battle over passage of the bill, opponents of SB14
hoped to reveal that the cost to local governments and taxpayers from the
resulting boom in litigation caused by the takings legislation would be too
high. Mary Kelly, director of the Texas Center for Policy Studies (TCPS), a
non-profit environmental research group based in Austin, took it upon herself
to try to pry the AG’s internal memos from Morales’ tight grip. Kelly sued the
AG for the information last May, in the middle of the legislative session,
under the Texas Open Records Act. The absurdity of the situation – the fact
that the AG is charged with enforcing the open records requirements as they
apply to state agencies – was not lost on Travis County Judge John Dietz, who
presided over the dispute. During a hearing, Dietz asked a representative from
the AG’s office: “Is there any irony that the Attorney General, chief
enforcement officer for [open records], says that these records aren’t
public?”
Dietz was also compelled to comment on the fact that, if the public knew that
it would cost the agency $1 million to administer the law as opposed to $1,
support for the property-rights legislation might wane considerably. Just before the open records hearing began, an assistant AG tried to head off
Kelly and the TCPS with censored versions of the reports, but Dietz ruled that
the AG did not provide “any legally recognized privilege or exemption,” and
ordered Morales to hand over the records immediately. But the AG employed an
old lawyer’s trick to buy more time: His office appealed. According to the
agency, the information that AG staffers had gathered on the effects of the
takings bill was merely “opinion,” and thus not discoverable. Despite the agency’s efforts, the drumbeat for the secret records grew louder.
A group of 30 legislators of the progressive Legislative Study Group (LSG)
followed Rep. Hirschi’s lead with records requests of their own. According to
LSG Executive Director Gary Keith, the LSG members believed that the AG’s
in-house study of the legal and fiscal consequences of SB14 was crucial to a
knowledgeable debate on the house floor. But the AG’s office refused to help
them out. Again, as chief enforcer of the Open Records Act, the office got to
rule in favor of itself to withold the documents. The agency did finally
release its internal reports – which predicted millions of dollars in
litigation costs for local governments – 30 minutes after the House debate was
over. The bill passed by a 91-44 vote.
“The whole reason for getting information is to be well informed,” Keith says.
“What [the AG’s failure to produce the documents] meant was that the most
significant round of debate happened in an air of ignorance and suspicion.” After the legislative session was over, the AG’s Office settled its lawsuit
with Kelly, and agreed to pay the TCPP’s $19,000 in legal fees.
Sonya San-chez, a public information officer with the AG’s Office,
says that the agency did not release its internal reports because, according to
the Open Records Act, certain “advice, opinions, and recommendations” in
agency memorandum are excepted from disclosure. “We are also protected by the
same laws that apply to other governmental bodies,” Sonya says.
But why, then, was the AG’s Office the only governmental agency unwilling to
give up its internal financial analyses connected with this bill?
“We do not want anyone to take the information produced in a decisision-making
process out of context,” Sanchez says. “The ultimate decision was made by
management and the attorney general, and that was the information presented.”
The information that the AG officially “presented” to the Legislative Budget
Board in place of the internal reports made SB14 look like an innocuous rule
change. It read, “Like the State, local governments would be required to go
through a more formalized procedure for performing takings assessments for
their activities and would be required to pay monetary compensation for
dimunition in property value.”
However, the AG’s original internal memo, which was kept from the Legislators,
had two additional sentences that were deleted in the public version: “Since
claimants can collect their awards from local governments without an
appropriation from the Legislature, the impact on their budgets is likely to be
sizeable. The costs could easily be in the millions of dollars.” Critics say that Morales
downplayed the effects of the bill because the very people he has been wooing
lately – property owners – avidly supported it. Morales drew his property
rights line in the sand last year when he filed a lawsuit against the federal
government for its attempt to set aside critical habitat to protect the
golden-cheeked warbler. The longtime Democrat later showed his Republican
stripes when he jumped on Commisioner of Agriculture Rick Perry’s bandwagon to
wipe out the Endangered Species Act.
Morales continues to surround himself with people who are waving the property
rights flag. Marshall Kuykendall, the property rights advocate who once
suggested that emancipation of the slaves was a “taking” for which slaveholders
should have been compensated, has been spotted more than once on the AG’s
“eighth floor.” Morales has also appeared at events coordinated by Kuykendall
in his role as the leader of Take Back Texas. Morales will appear next
Thursday, August 31, at a two-day property rights event at the Marriott Hotel
in Austin coyly entitled: “Stewards of the Range.” Among those taking the dais
will be Republican State Representative Susan Combs, who sponsored the takings
bill in the House.
“It’s no secret that Dan Morales has increasingly courted the political
support of the property rights activists and has increasingly aligned himself
with Representative Susan Combs and her [takings] bill,” noted the TCPP’s
lawyer, Charles Herring, Jr., in court papers. “To what extent did the cost
estimates change as they worked their way up the chain of command to the
`eighth floor’ in the AG’s Office, and as persons close to Morales [e.g.,
Durham], had input?”
Critics like Marston of the Environmental Defense fund and Tim Curtis of Texas Citizen Action, the state’s
largest consumer advocacy group, say it’s bad enough that Morales hid important
information during the last legislative session to protect his new best
friends’ interests. But they are particularly appalled by the discrepancies
between what is offered in the original documents and what the agency told the
Legislature. Before the end of the legislative session, Marston and Curtis
acquired the reports from an unidentified source, and subsequently leaked the
papers in a hastily called press conference on the steps of the Capitol.
“By giving false official testimony and purposefully witholding public
documents, the Attorney General is perpetrating fraud against the people of
Texas,” Curtis said in papers he and Marston disseminated. Curtis and Marston point out that Durham’s testimony on March 28 before the
House Land and Resource Management Committee directly contradicted the hidden
internal memos generated by lawyers within the office just days before. For
example, Durham testified, “In reviewing the provisions of the bill, I see
nothing that repeals any of the environmental or pollution abatements here, so
that I don’t see any basis that there’s going to be some polluters let loose.
As a matter of fact, there’s no intent as stated within the provisions of the
act itself.”
However, one internal memo that Morales sat on stated that “the proposed
legislation will greatly impact environmental regulations, far beyond regular
rulemaking.”
Again, Durham downplayed the bill’s price tag with his testimony that “We’re
not able to see that we’re going to incur any additional expenses out of our
office. This does create a new cause of action, but it would be included in a
claim that we would be defending those lawsuits anyway. And so, we really don’t
see that there’s going to be a fiscal [cost].”
But another document the AG declined to release predicted a far more pricey
scenario. The memo predicted that the office would have to hire a minimum of
eight attorneys, four secretaries and two paralegals in the AG’s Transportation
Division. “How much litigation will be instituted under this legislation is
difficult to estimate, but since legislation allows attorneys fees and recovery
costs, any estimate should be on the high side.”
Just five days before Durham testified, an analysis prepared by a staff lawyer
in the AG’s Natural Resources Division, (and subsequently witheld by Morales),
also contradicted Durham’s tesimony. It called for the addition of eight to 12
attorneys, three to five experienced appraisers, four to six paralegals and
three to six administrative techinicians.
Having Durham testify before the committee was not a natural choice
considering he is head of the AG’s Criminal Justice Division, an area that
would not be involved in any litigation related to the takings bill. The
attorneys who originally generated the buried reports actually work within the
affected divisions. “Real lawyers using real numbers said that the bill would
hurt the agency big time, but within a week the people on the eighth floor, for
political reasons, cooked the numbers and went under oath, claiming it would
cost nothing when their own internal analysis said it would be very costly,”
Marston says.
But a closer look at Morales’ choice of Durham as his point man with the
Senate committee may make some sense. The former conservative prosecutor from
West Texas is considered to be Morales’ top gun, and the Deputy AG has fostered
his own well-publicized relationship with property owners. At a property rights
rally in Georgetown last year he raised eyebrows when he announced that there
were no endangered species in Sterling County from where he hails “because we
killed them all. I’m the chief executioner. And I don’t think that speaks very
well for the warbler.”
When Durham was deposed later in connection with litigation over the open
records controversy, he explained that he viewed the memos from within the
affected departments as more of an exaggerated Christmas wish-list than an
actual estimate of real needs. But Marston says Durham’s creative math was a
naked political move to cover up the high cost of the takings bill.
“Somebody ought to look closely at whether [Durham] violated the rules for
governing lawyers when he made those statements before the committee,” Marston
says.
The AG stands by Durham’s testimony. “The report before the House committee by
the Deputy AG was completely accurate,” Sanchez says. “It was a comprehensive
and complete presentation – not the thoughts and opinions of one or two
specific employees.”
Marston declines to say
whether his organization will take legal action against Durham, but he does not
rule out the possiblity. He says he is awaiting the outcome of another
grievance stemming from another open records dispute against Morales’ other
close associate – first assistant Jorge Vega.
As Morales’ chief hatchet man, Vega oversaw the firings of several division
and section heads in Morales’ remaking of the agency from a consumer
protection-driven office to an agency centered around criminal justice issues.
The charges against Vega stem from his dismissal of former assistant AG W.
Scott McCollough, a high-profile advocate in disputes against telephone and
electric utilities over the last decade. After Vega fired him, McCollough made
an Open Records request for all documents and phone records related to his
termination. After eight months of waiting for the information, McCollough sued
the office under the Open Records Act and received what he says was only
partial information.
“I find it very interesting that the AG’s office has a different timeline when
it comes to answering open records requests,” McCollough says. “For some people
it pops out real quick, for others they choose to take their time.”
When Vega testified during the open records suit about the day he fired
McCollough, Vega claimed that McCollough never informed him that he was due to
appear in a long-running trial the next day. However, McCollough had secretly
taped the conversation, in which he repeatedly warns Vega that he should wait
until the conclusion of the trial to terminate him. After Vega’s statements to
the contrary before a judge, McCollough brought the tapes to the attention of
the State Bar Panel, which formally charged Vega last June with five violations
of professional conduct rules, including two charges of lying under oath. Vega
faces possible public reprimand, suspension, or disbarment by the State Bar of
Texas, which will render its decision this fall.
Immediately after the State Bar recommended sanctions against Vega, Morales
jumped to the defense of his first assistant, dismissing the charges as sour
grapes from a disgruntled former employee. Morales was not so quick to go to
the mat for former assistant AG Gary Bledsoe when he was investigated for
misuse of government funds last year. Morales eventually pressured Bledsoe (who
was then state president of the National Association for the Advancement of
Colored People), to resign, despite the fact that he had been cleared of
wrongdoing.
The recent controversies surrounding Morales’ agency don’t bode well for the
public. Pulling teeth appears to be easier than obtaining records from the AG’s
office, and Morales has chosen to surround himself with lawyers who, some say,
have little respect for the truth. It’s politics first, and public service a
distant second, critics lament. McCollough warns: “I hope that at some point
the people in this state begin to understand the terrible things that have
happened to the AG’s office under Dan Morales.” n
This article appears in August 25 • 1995 and August 25 • 1995 (Cover).