TESTIMONY
Judicial Conflicts of Interests
University of Houston Board Meeting
August 18, 2005
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Injudicious Conflicts of Interests
University of Houston Board Meeting -Public Comment Segment
August 18, 2005
Good morning. I would like to address the Board on an ethics issue
today.
In doing so I speak on behalf of faculty members who have
employment grievances, and on behalf of the general public, which
has an obvious interest in public integrity issues.
In December 2004 we submitted an open records request to the
General Counsel's Office requesting that UH identify all judges who
worked for the University of Houston and heard cases in which the
University was a party.
The General Counsel's Office refused to give us anything, but the
Attorney General's Open Record Division eventually ruled in our favor
earlier this year, and compelled disclosure of the information we
sought. (OR2005-1643 and OR2005-03942).
Relevant Facts
The records UH was required to release show that judges who were
hearing cases against the University were receiving money from the
University through the University of Houston Law Foundation. One
judge admitted in open court that the arrangement was put in place
to circumvent state law which prohibits them from being paid directly
because they are already being paid for full-time work as state
officials. He refused to recuse himself.
The records show that federal judges were paid too. One of them
recently stated that the $1,000 he had received was not enough to
sway him. He too declined to recuse himself, stating that his
connection to UH was only moderate.
We beg to differ.
If a private litigant were to offer the judge hearing her case $1,000,
she would likely be charged with attempted bribery. $1,000 is
certainly not de minimis under penal provisions governing corruption
in public service. A juror would be disqualified as matter of cause
had he or she received even a small amount of money, or a favor,
from a defendant.
But even if we were to concede that $1,000 isn't enough to constitute
undue influence, where do you draw the line?
In any event, all of the Adjunct Professors-Judges on the list given to
us received more than $1,000 because they are paid at least $1,500
to team-teach a class. Many have taught during successive
semesters.
How much is too much?
The top beneficiary of the University's largess was paid at total of
almost $30,000 in less than six years and sat in multiple cases
involving the University of Houston. He was not even listed as an
Adjunct Professor.
We believe that judges and justices who are on the University's
payroll (or are paid out of a third-party fund) should recuse
themselves when the University comes before them as a litigant,
whether as a plaintiff, or - which is more common - as a defendant.
We would further submit that judges already have that obligation, at
least ethically, if not in the form of legal rule that can be enforced by a
litigant, not to mention the general public.
We also believe that such financial ties between the university and
local judges should not be concealed from the public. The General
Counsel's refusal to release the payment records, and even the
names of the judges, is itself indicative that they think this is
something that better be covered up.
Public Disclosure
We think that the relationships between universities and judges
ought to be exposed. And so does Attorney General Greg Abbott. He
ruled in our favor on this issue.
The Justices on the local First and Fourteenth Court of Appeals are
already disclosing the law schools they graduated from. Justice
George C. Hanks, specifically, states on his official web page that he
is an adjunct professor at the University of Houston Law Center. To
his credit, he recently recused himself from an appeal involving a
UH official.
The trial court judges should do so likewise.
We readily concede that this University has no control over these
Adjunct Professors in their capacity as judges. UH does have
control, however, over whether they are hired in the first instance,
and whether they are reappointed.
To the extent the University is involved in litigation, it also has control
over whether it discloses the conflict of interest and suggests
recusal or transfer to another court in the cases where this issue
arises. It should make that disclosure as a matter of course.
The University's General Counsel is aware of these judicial conflicts
because all litigation is handled through her office in conjunction
with the litigation division of the AG's Office. Hiring decisions are
also reviewed by Counsel, and are subject to Provost approval.
A plaintiff suing the University, by contrast, may not know that the
judge hearing his case has accepted something of value from the
Defendant University, and thus cannot file a motion to recuse under
Rule 18a of the Texas Rules of Civil Procedure. Nor do the judges
themselves typically volunteer the information.
A modest proposal
To safeguard the integrity of the judicial process in employment
litigation, and in other suits involving UH, such as condemnation
proceedings and disputes with contractors, we make a very modest
and common-sense proposal:
That UH stop hiring judges who have failed to recuse themselves
from cases in which UH or a UH official is a party; and
That UH make it a condition of employment for judges on its
teaching roster to step out of cases in which UH or a UH official is a
party.
Proposed solution would not unduly burden the University
Venue for suits by and against the University of Houston is fixed in
Harris County and Travis County. See Tex. Educ. Code §111.33. UH
would thus be free to hire district and county judges from other
counties, assuming that doing so does not violate some other law.
Appeals from suits filed in Harris County are heard by the First and
Fourteenth Courts of Appeals in Houston. Cases in Travis County go
to the Third Court of Appeals in Austin. That would still leave eleven
other judicial districts from which UH could recruit justices to teach
at its law school.
As for federal courts, the affected judges are those in the Southern
District-Houston Division and the Western District-Austin Division.
UH would be free to hire judges from the other divisions of the
Southern and the Western District, as well as from the other federal
districts in Texas, assuming again that doing so does not violate
other law.
Request for Attorney General Opinion
We realize that not everyone agrees with us, especially not the
judges who have a stake in the matter. Should there be members
on this Board of Regents who find it acceptable that the University
pay judges who adjudicate cases involving the University (or
dismiss them without even reaching the merits), we respectfully
request that the Board, or any of its members, ask for an Attorney
General's Opinion on the matter.
As members of the public we have a statutory right to obtain
information under the Open Records Act, but we have no standing to
request an Attorney General's Opinion under Tex. Gov't Code
402.042 and 402.043.
You do.
Please make use of that authority and do your part to enhance the
perception and reality of integrity of our judicial system in Harris
County, not to mention the image of the University of Houston.
Thank you for your attention.
_____________________________________________________
FACULTY RIGHTS COALITION
www.faculty-rights-coalition.com
FacultyRightsTx@cs.com
2038 ½ Lexington
Houston, Texas 77098
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Ethics Opinion on Regent-Law Firm Ties
August 22, 2005. --Attorney General issues opinion on conflict of
interest involving a member of the Board of Regents of Texas A&M
University and the member's law firm.
Summary
Common-law conflict of interest rules do not invalidate a
contract formed before the conflict arose. When The Texas A&M
University System had previously contracted with a law firm, the fact
that a university regent was appointed after contract formation and
subsequently joined the law firm as a partner did not invalidate the
contract.
Common-law conflict of interest rules do not prevent the university
from paying for services that the law firm provided under the
pre-existing contract after the regent was appointed to the board
and joined the law firm.
The Texas A&M University System may not enter into another
contract with the law firm while a regent is a partner in the firm.
For Opinion click GA-0351. To see request letter click RQ-0320.
To find AG opinions all the way back to 1939 click here.
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Faculty Rights in Texas | Status of Adjunct Professors in Texas
Action Agenda | Friend of the Court Briefs | Texas Higher Education
Court Cases | Cases Pending in the Texas Supreme Court
Fifth Circuit First Amendment Cases | FRC v. Hossein Shahrokhi
Fifth Circuit Employment and Sovereign Immunity Cases
Faculty Rights Action Agenda
