Agency paid fired workers not to sue
Bush kept dozens on land office’s payroll for months
AUSTIN — Texas Land Commissioner George P. Bush has spent nearly $1 million in taxpayer money to entice dozens of people fired by his administration to agree not to sue him or the agency, a practice that may run afoul of a ban on severance pay for state workers.
Bush, a first-term Republican, has directed the General Land Office to keep at least 40 people on the payroll for as long as five months after ending their employment, according to an analysis of records obtained by the Chronicle. The ex-staffers did not have to use vacation time and, in fact, continued to accrue more time for as long as they were on the payroll. In return, they agreed in writing not to sue the agency or discuss the deal.
Many of the recipients were top aides to former Land Commissioner Jerry Patterson who were fired during an agency “reboot” in which Bush replaced more than 100 employees.
Such separation arrangements are made frequently in the corporate world but are not allowed in Texas government, where there is no severance and staffers generally are required to work to be paid, according to employment lawyers, union leaders and former state officials.
“I can understand the thinking of an agency head who wants to get rid of someone and thinks that this is an easy way to do it, but this is not the way to do it,” said Buck Wood, an ethics expert and former deputy state comptroller, noting the detailed rules that govern how agencies
can spend money do not authorize that purpose. “Keeping someone on the payroll when they’re not coming to work so you can avoid the hassle of a lawsuit is just illegal.”
Malinda Gaul, a San Antonio employment lawyer who has represented state workers for 33 years, said she had never heard of such an arrangement.
Spokespeople for the General Land Office and Bush’s political shop did not return multiple messages seeking comment, nor did they respond to a hand-delivered request for comment.
The separation agreements state that they were meant “to give (employees) time to seek other employment and to avoid the po- tential expense to the GLO of any administrative or judicial proceedings related to (employees’) employment.” ‘Emergency leave’
Many of the agreements followed termination letters that said employees could choose to be fired or agree to resign, sign the deal and take the extra pay while not working. Almost everybody offered the deal accepted it, records indicate.
The agency’s practices appear to be part of a pattern of Texas state officials paying certain departing employees for different reasons and through different avenues.
Over the previous decade, agencies have spent nearly $50 million on bonuses for staffers who left state government shortly thereafter. Much of it was given to favored aides by officials who were on the way out themselves, such as former Gov. Rick Perry, who paid more in bonuses in one day during his last month in office than he had in the preceding four years combined.
And more recently, Attorney General Ken Paxton drew scrutiny for continuing to pay three top aides after their resignations by putting them on “emergency leave,” which agency heads can use when they believe there is “good cause.” Paxton’s office has not explained the leave other than to tell a conservative website the attorney general “acted in a compas- sionate, legal and ethical manner” in granting pay to staffers “who had worked tirelessly for the state.”
State lawmakers last week said they plan to look into limiting the use of emergency leave for departing staffers.
Costly practice
A Chronicle analysis found the practice already is relatively rare, however. Over the past three years, about 20 of the 120 state agencies in Texas have had at least 133 staffers end their time on the payroll with an emergency leave stint of two weeks or more. In other cases, the leave appears to have been used to placate disgruntled departing employees and preventing them from suing.
The Attorney General’s Office, Teacher Retirement System and Water Development Board, three of the biggest users of emergency leave, all said they have agreed to give the leave in deals with staffers who promised not to sue.
The land office has spent far more on payments for departing employees than any other agency has spent on emergency leave for ex-staffers, even agencies with far more workers, according to the Chronicle’s analysis.
The state Department of Family and Protective Services, which has 11,000 employees, has given out the most emergency leave to ex-staffers — about 1,375 workdays over the past three years, including 500 days for one worker during an internal investigation.
The General Land Office, which has 600 employees, has given out nearly 1,850 days of pay for ex-staffers in just the year and a half of Bush’s tenure, costing taxpayers at least $655,000 in salaries, plus the additional costs for benefits that the ex-staffers received in that time, including leave accruals, health insurance and retirement contributions. A recent report by the state auditor’s office said those benefits are worth about a third of an employee’s total compensation.
Appropriate use?
Among those who got paid for not working under a separation deal were Christopher Burnett and Julie Masek, the director and the deputy director of the agency’s Office of Compliance and Ethics. Bush fired both of them last month, just a year after announcing the creation of the ethics office.
The ex-staffer who received the most money was Erin Guillette, former Commissioner Patterson’s director of executive administration, who got more than $40,000 in salary while not working for nearly four months.
Patterson’s former general counsel, William Warnick, got the longest stint of pay for not working, five months, under an arrangement in which his salary was reduced so he could make it to retirement age.
On average, the exstaffers each received two months of pay after leaving the agency.
Steve Aragon, a former general counsel for the Health and Human Services Commission, said he thinks there are justifiable reasons to pay employees for not working, including to prevent litigation in cases in which it was clear that a staffer likely would not come back. However, he said, it is not something that state agencies should do frequently.
“These situations should be exceptional and would not be expected as a matter of routine,” Aragon said.
Others objected to any use of the practice, including Seth Hutchinson, a spokesman for the Texas State Employees Union.
“It’s not an appropriate use of state funds,” Hutchinson said. “If people are being wrongfully fired, they’re being wrongfully fired, and they shouldn’t be using state funds to cover it up.”
After being told that it is not uncommon in the corporate world, Hutchinson scoffed.
“State government should be held to a higher standard of accountability,” he said.