University of Texas investigations

Texas state legislators have explored an unprecedented legal step -- impeaching an appointed official. University of Texas Regent Wallace Hall, who was named to the post by Governor Rick Perry, was the subject of an investigation by a Texas state house committee. Legislators who were in favor of the impeachment process initially set out to investigate whether Hall failed to disclose information on his regent application, revealed protected information about students and exceeded his role as a regent in requesting massive amounts of information. Although the committee left open the possibility of revisiting impeachment, an August 11, 2014 vote passed 6-1 to censure Hall, possibly bringing a close to the more than year-long process. In response to the censure vote, Governor of Texas Rick Perry issued a statement defending Hall's actions, saying the regent acted in the best interest of Texas "in the face of withering personal attacks."

Only two elected officials in the history of Texas have ever been successfully impeached. Hall is the first regent to have been censured by the Texas State Legislature.

Governor Rick Perry and others have strongly criticized the attempted impeachment. Critics have said it was an effort to criminalize policy differences. In late November 2013, Perry and State House Speaker Joe Straus sent letters to gubernatorial appointees to address the impeachment trial. Perry's letter explained the importance of oversight of state agencies by gubernatorial appointees. In his letter, Straus agreed with Perry and wrote, "Both board members and the Legislature need to ask difficult questions."

After he was appointed in 2011, University of Texas Regent Wallace Hall began looking into what he believed to be clout scandals within the University of Texas system. Hall investigated the university's forgivable-loans program and admissions policies and preferential treatment to politically-connected individuals. Hall filed FOIA requests with the University system after his inquiries via his role as a Regent were initially rebuffed. According to his accusers, Hall filed requests of more than 800,000 pages, which some Texas administrators called an unnecessary burden. However, a letter from University chancellor Francisco Cigarroa in February 2014 said that Hall requested closer to 100,000 pages. In addition, Cigarroa wrote: "During testimony before the Select Committee, some early witnesses implied that the U.T. System has not protected the privacy rights of students, staff, and patients. This is simply not true."

An effort began in June 2013 to try and impeach Hall from his position as Regent. Some legislators justified the impeachment on the grounds that Hall did not disclose several lawsuits that he was involved in when he originally completed his Regent background check. Hall updated Governor Rick Perry's office in April 2013 with the full list. The lack of lawsuit disclosure by Hall is not unique -- more than 9,000 lawsuits were not disclosed by other appointed Texas officials. No unelected official in Texas has ever been successfully impeached or removed from office. Governor of Texas Rick Perry's spokesperson said the investigations send a "chilling message" to gubernatorial appointees. He added that the investigation was "extraordinary political theater." Texas state legislators have never previously tried to remove an appointed official. Only two elected officials in the history of Texas have ever been successfully impeached.

Richard Legon, president of the Association of Governing Boards of Universities and Colleges, criticized the impeachment process in a November interview with the Austin American-Statesman. He called the impeachment process the "nuclear option" and said it could send a chilling signal to other members of higher education boards. Legon suggested that the board should have first been given the opportunity to address Hall's requests. "It’s fine for a board member to seek information through the appropriate path. The first layer of reining in an overly aggressive board member should be the board," he said.

A January 2014 review by the law firm Hilder & Associates concluded that there was "no credible evidence of a violation of [the state government code] that would warrant a referral for criminal prosecution." The report concluded that Hall had a legitimate reason for having the documents in question. "In light of the fundamental role attorneys play, it would lead to an absurd result were it criminal for an official to provide student records to his or her attorney in the face of litigation, or anticipated litigation, involving these records," Philip Hilder wrote in the report. Hilder submitted the report to the legislative committee. The Board of Regents hired the firm to review whether Hall may have violated any federal privacy laws in his handling of student information. November 2013 testimony prompted committee-member Trey Fischer to request the inquiry. Committee member Dan Flynn said he was not surprised by the findings and was pleased the university counsel reached a conclusion.

The hiring of Rusty Hardin to conduct an investigation into Hall's activities ultimately cost the state $500,000. Although the bills ultimately came to more than $588,000, Hardin's team told State Speaker of the House Joe Straus that a cap of $500,000 would be placed on the expenses.

Committee on transparency activity

Fischer is one of the eight members of the Committee on Transparency in State Agency Operations, which is overseeing the investigation into a possible impeachment. The committee was formed in 2013, specifically existing to explore the possibility of impeaching Hall. The committee is holding hearings in late 2013 to hear testimony from individuals from the university system.

In September 2013, Dan Flynn, co-chair of the select committee, said three basic questions would be asked during the process.

1. Did Hall fail to disclose material information on his application to be a regent?
2. Did he reveal information about students that violated their privacy?
3. Did he exceed his role as a regent in requesting massive amounts of information from UT-Austin?

Request for personal computers

In November 2013, committee member Trey Martinez Fischer submitted a request indicating a desire to look at Hall's personal computers, iPads and smartphones as part of the investigation. "We must consider forensic examination of the personal or professional electronic communications of the regents in order to ensure compliance with the law," Fischer wrote in a letter to committee attorney Rusty Hardin.

Subpoena of Hall

At a November 12, 2013 meeting, the committee issued a subpoena for Hall to appear on December 10. However, legislators quickly rescinded the subpoena, since no meeting was scheduled until December 18. Legislators also voted to issue subpoenas to University of Texas Chancellor Francisco Cigarroa and University of Texas, Austin President Bill Powers to appear at the December 18, 2013 meeting. With no subpoena having yet been issued to Hall, his lawyers sent a letter to the committee asking for clarification. With Francisco Cigarroa and Bill Powers already subpoenaed, Hall's lawyer Allan Van Fleet requested that the committee respond regarding whether it would also subpoena Hall. He said that Hall's lawyers have told him not to appear before the committee without a subpoena. On December 5, 2013, Van Fleet sent a letter to the committee requesting that the co-chairs announce whether Hall would indeed be subpoenaed. Van Fleet's request asked for an answer by the end of the day. In response, committee attorney Rusty Hardin said "We're not going to adhere to his deadline. He doesn't get to pick the time and place." Van Fleet pointed out that providing two weeks' notice for testimony is the standard to allow individuals to prepare testimony. He added that the letter has "caused confusion about the committee's intentions."

On December 10, 2013, the committee sent a letter to Hall asking that he testify -- but they did not issue a subpoena. The committee sent a one-page, two-paragraph letter that invited Hall to testify and provide a list of witnesses. On December 16, 2013, Hall's attorney Allan Van Fleet said Hall would not testify at the December 18 committee hearing. Van Fleet wrote: "Regent Hall has volunteered a number of times in the past to share his views with legislative Committees about the challenges and opportunities faced by the UT System. Though these offers have never been accepted, he remains interested in sharing his views, in collaborating with all policy makers on initiatives that will benefit the UT System, and in working with the committees to improve the transparency and accountability practices that should guide all UT System activities."

Hall was invited to testify but was not given a subpoena, which is often perceived to provide some legal protection to the witness. Other individuals -- such as Chancellor Francisco Cigarroa and University of Texas Austin President Bill Powers -- were given formal subpoenas. Legislators criticized Hall for not agreeing to testify, despite the differing set of circumstances given to Hall. "It’s very disappointing to me that he and his attorney do not understand or do not care to observes the rules and procedures of the Texas House of Representatives and have decided they are not going to appear to testify," said co-chair Dan Flynn. Committee member Charles Perry noted that while all individuals who testified were given an official subpoena, Hall himself was not granted one. In fact, it was more directly avoided by the committee, after it first sent him a subpoena only to withdraw it. A subpoena would have insulated individuals from risk in violating FERPA.

Empower Texans response

In December 2013, the nonprofit organization Empower Texans sent a mailer criticizing committee chair Carol Alvarado. The mailer stated that lawmakers improperly focused on Hall's behavior, rather than investigating the allegations of clout at the University of Texas, Austin. Alvarado called the mailer the action of "an outside group that’s trying to influence an investigation." Empower Texans president Michael Quinn Sullivan said the legislature was engaging in a "whitewashing" of potential university wrongdoings. "We're impeaching someone for asking questions," he said.

Committee report

Note: The full draft report can be found here

On April 7, 2014, the San Antonio Express-News and Houston Chronicle viewed an advance copy of Hardin's 176-page report. The newspapers reported that the document was previously made available to committee members on April 4, 2014. The report alleges that Hall broke state and federal law. As of April 8, 2014, the report was not yet made public. Hall's lawyers said he would not comment on the report until he had seen it. According to the newspaper summary, the report alleges that Hall attempted to coerce UT administrators prior to their testimony. The report refers to Hall's "burdensome" requests for records as one of the critiques laid out against the regent.

The Texas Tribune, which also received a copy of the report, wrote that "ironically a substantial number of the actions that the Hardin report highlights as potentially triggering impeachment occurred in part or entirely because of the committee’s investigation." The report listed four items as a sufficient basis for articles of impeachment. The report does not make any explicit recommendation to the committee.

The draft report recommended to the committee that impeachment could be pursued for at least four bases.

Hall's lawyers' response to the report

On May 6, 2014, Hall's attorney Allan Van Fleet sent a letter to the Transparency Committee in response to the report issued by Rusty Hardin. Van Fleet accused the committee of withholding information that would "exonerate Regent Hall from all of the committee's charges." The letter alleged that the committee "manipulated the process to prevent public exposure to the truth."

Van Fleet's May 6 letter made reference to a previously sent letter on April 25, 2014, that requested the release of an audio recording from an August 22, 2013 University of Texas System Board of Regents board meeting. According to the letter, a recording made by Regent Alex Cranberg at the meeting pinpoints the exact position of the Regent members regarding President Bill Powers' employment situation. The letter maintained it is a key piece of evidence that has not been released to the public. Hall's lawyers requested that the recording be released and sent to the Travis County District Attorney. The Texas Tribune also requested the recording. University of Texas System officials then asked the Attorney General for permission to withhold the recording.

The letter from Van Fleet lists seven facts that he alleges refutes the committee's assertions. Those facts listed were as follows:

1. "Regent Hall fully disclosed information on his nomination application"
2. "Regent Hall did not violate FERPA protections"
3. "Regent Hall did not “leak” or otherwise disclose student information"
4. "Regent Hall properly represented the UT System in discussions about charitable donations"
5. "Regent Hall’s information requests were reasonable and necessary"
6. "Regent Hall did not tamper with or coerce testimony"
7. "The committee has manipulated the process to prevent public exposure to the truth about every issue under investigation"

Post-report meetings

On April 24, 2014, the committee met privately for three hours discussing Hardin's report. Legislators would not disclose the conversations held behind closed doors.

A committee hearing was held on May 12, 2014 where legislators voted 7-1 that there were grounds for impeachment. Committee co-chair Dan Flynn (R) called the vote a "historical time." Charles Perry (R) was the one representative who voted against grounds for impeachment. In response to the vote, Hall released a statement, in which he defended his actions and accused the transparency committee of interfering with investigations of the University. "My efforts as a regent are to serve the interests of our great educational institutions, the students, faculty, and staff who make them great, and the taxpayers who fund them, not to appease a privileged class who abuse them," Hall said in the statement.

Reaction

Anne Neal, president of the American Council of Trustees and Alumni (ACTA), said the investigation of Hall was "simply off the rails." Throughout much of the investigation, legislators have maintained that Hall was on a "witch hunt" for President Bill Powers. Neal's statement took the opposite approach, accusing the legislature of engaging in an "expensive witch hunts designed to discourage public servants from asking tough questions in pursuit of the public interest." According to its website, the ACTA is "an independent, non-profit organization committed to academic freedom, excellence, and accountability at America's colleges and universities." The Texas Coalition for Higher Education Excellence supported the report's conclusions. Spokeswoman Jenifer Sarver called the findings, "deeply troubling."

After the release of the report, Hall's lawyers sent a letter on April 8, 2014 to the committee on transparency. In the letter, Hall's lawyers requested that a copy of the report be sent to their offices, as they had not been delivered a version prior to the leak of the report to the media.

In light of the report, editors at the Houston Chronicle called for Hall to resign.

Document requests

Despite criticizing Hall's record requests of the university, Fischer has filed a large number of requests as well. Fischer's office obtained more than 12,000 emails and documents relating to the University of Texas System, including emails between Governor of Texas Rick Perry and Regent officials.

Kroll Associates report

In February 2015, an independent report by Kroll Associates, commissioned by the Regents Board, confirmed a "pattern of special treatment for well-connected applicants to UT." While the report did not show evidence of any quid pro quo, it did show that "extra acceptances were extended every year to accommodate special cases" and that the "President’s Office ordered applicants admitted over the objection of the Admissions Office." It added that "efforts were made to minimize paper trails and written lists" during the process." The Wall Street Journal wrote that the report should "should put an end" to the concerns over Hall's clout investigations.