Attorney General rules that Calhoun County settlement agreement is public

Jessica Priest By Jessica Priest

Nov. 15, 2013 at 5:15 a.m.
Updated Nov. 16, 2013 at 5:16 a.m.

The attorney general's office has ruled that Calhoun County must make public the settlement agreement in a lawsuit filed by a former employee.

But the county is still refusing to make the information public.

In a Nov. 8 ruling, Assistant Attorney General Nicholas Ybarra wrote that while the county gave its insurance provider, Hiscox, "complete control of the litigation," it paid a $10,000 deductible, so "public money was spent for the purpose of writing, producing, collecting, assembling or maintaining the settlement agreement."

The provider was only acting on the county's behalf, he wrote.

Ybarra added that the legislature also has designated settlement agreements involving governmental bodies as core public information, so Calhoun County cannot keep the information confidential simply because a party to the lawsuit anticipates or requests that it be so.

Besides, he wrote, Calhoun County never provided a compelling reason why a third-party's interests were at stake.

Joe Larsen, a chairman of The Freedom of Information Foundation of Texas, said the ruling was "spot on."

Larsen, a Houston attorney, sent the attorney general's office a letter in October on behalf of the Victoria Advocate.

"It is abundantly clear that Calhoun County's purpose in requesting this ruling, a request made far outside the required time frame, has been to deprive its constituency of information of legitimate public interest and not based on any well-grounded legal concerns," he said.

Calhoun County District Attorney Dan Heard, however, said there are some things that need to be considered. That's why he added an item to the county commissioners court Nov. 26 meeting agenda.

"We did not receive the opinion until Tuesday this week, so there really wasn't time to get it on the agenda (sooner)," Heard said Friday. "I think that they (the commissioners) need to have the ruling explained to them and just discuss the action, if any, that they will take."

Although Calhoun County Judge Mike Pfeifer had not yet read the ruling, he said he's been following the advice of the district attorney and will continue to do so by adding the item to the agenda.

"I'm as transparent as a piece of glass," Pfeifer said Friday. "I think they're going to release it. I don't see why they wouldn't. I'm sure they will release it just as quick as they can."

The attorney general's office ruling triggers important deadlines, though.

In particular, Tom Kelley, a spokesman for the office, pointed to a provision of the open records law that requires the information be turned over "promptly" after the ruling, which is final, is issued.

Promptly means "as soon as possible under the circumstances, that is, within a reasonable time, without delay."

"That (promptly) doesn't mean 10 days. ... The 10-day rule is only for voluminous-type records," Larsen said.

What's at issue is a piece of paper, which could be obtained from the insurance provider and faxed over within hours, he said.

Larsen expected commissioners would discuss challenging the attorney general's ruling in court. They have 30 days starting from Nov. 8 to sue the attorney general in Travis County district court.

The law also states that if Calhoun County does not file suit and does not comply with the ruling, the attorney general could sue it to enforce the ruling.

"This move will simply commit further taxpayer money in the county's deliberate but ultimately fruitless effort to conceal this information from the taxpayer," Larsen said. "This ruling should be required reading for all governmental bodies. It's very well-written."

The Victoria Advocate is seeking a copy of a settlement agreement that ended a lawsuit between former county employee Amanda Guillen and Precinct 2 Commissioner Vern Lyssy. Calhoun County was listed as a defendant, too.

Guillen claimed Lyssy fired her in 2010 after she discovered and complained about a camera that was set up in an office they shared.

Guillen, who was pregnant at the time, used the office to change clothes because a nearby bathroom was too small and dirty, her attorney, John Melton, told jurors during an April trial.

Guillen thought Lyssy filmed her undressing, but those recordings were never found.

Lyssy maintained he set up and concealed the camera in his computer speaker to ward off potential thieves.

The parties settled in June after Federal Judge Gregg Costa declared a mistrial in April when Lyssy fainted on the stand.

Melton, of Austin, told the Advocate previously that adding a confidentiality clause to the settlement agreement was not Guillen's idea.

The Victoria Advocate filed a complaint with the Attorney General's Office on July 26. Calhoun County requested a ruling Sept. 6.



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