Is Texas Attorney General Still A Friend of the Highest State Court?

Paxton asks Supreme Court to dismiss whistleblower lawsuit against him

JAN 7, 2022 | REPUBLISHED BY LIT: JAN 8, 2022

Texas Attorney General Ken Paxton has asked the Texas Supreme Court to toss out a whistleblower lawsuit by four former officials who say they were improperly fired after accusing Paxton of accepting bribes and taking other improper acts.

Paxton told the court that his agency “enjoys … the right to fire its employees — especially employees whose political appointments require they act on behalf of the duly elected Attorney General — at will.”

Paxton also argued that he can’t be sued because the Texas Whistleblower Act was intended to protect government employees from on-the-job retaliation by another public employee.

“The Attorney General is not a ‘public employee,'” said the appeal, filed Wednesday and made public Thursday. “Like the Governor, the Lieutenant Governor, and members of this Court, he is an elected officer, chosen by the people of Texas to exercise sovereign authority on their behalf.”

Paxton made similar arguments before the Austin-based 3rd Court of Appeals, but that court allowed the lawsuit to continue, ruling in October that the whistleblower act protects government workers from being fired for making “a good-faith report of illegal conduct … by the employer.”

Interpreting the act to exclude elected officials as employers would create a substantial loophole that runs counter to the law’s purpose of improving transparency and accountability, the 3rd Court ruled.

The legal fight goes back to late September 2020, when eight high-ranking officials at the attorney general’s office approached the FBI, Texas Rangers and the Travis County district attorney’s office to accuse Paxton of criminal conduct on behalf of Austin real estate investor Nate Paul.

All eight resigned or were fired within two months.

Four filed suit, arguing they were improperly fired: James Blake Brickman, deputy attorney general for policy and strategic initiatives; David Maxwell, director of the agency’s law enforcement division; Mark Penley, deputy attorney general for criminal justice; and Ryan Vassar, deputy attorney general for legal counsel, the agency’s top legal officer.

Their whistleblower lawsuit alleges that Paxton illegally used his office in 2019 and 2020 to help Paul in exchange for benefits that included remodeling Paxton’s Austin home, employing Paxton’s mistress and receiving a $25,000 political donation.

Paul had approached the attorney general’s office with a complaint that state and federal investigators improperly searched his home and businesses in 2019.

Paxton has defended his actions as appropriate, saying Paul’s case was serious and deserved to be investigated. He also described the whistleblowers as “rogue employees” who sought to stymie that investigation.

Paxton’s appeal also took exception to the central allegations made in the whistleblower lawsuit:

• That Paxton improperly intervened in an open records request by Paul, who wanted access to an unredacted FBI document and state investigative records, despite Paxton having “never personally involved himself in any of the 30,000-40,000 open records decisions OAG (the office of attorney general) issues each year,” the lawsuit said.

• That he intervened in a dispute between Paul and a charitable trust after his agency had declined to get involved.

• That he pushed for an unusually rapid legal opinion, issued at 2 a.m. on a Sunday, limiting public foreclosure sales due to the pandemic — days before one of Paul’s properties was scheduled for a foreclosure sale.

• That he overruled Maxwell and Penley, who had concluded that Paul’s allegations of misconduct by investigators lacked merit, to hire an outside lawyer to dig into Paul’s claims.

In his appeal to the Texas Supreme Court, Paxton characterized the complaints as matters involving policy disagreements — not a good-faith report of potential crimes as required by the whistleblower act.

“Plaintiffs were political appointees of the Attorney General who were dismissed from their posts following several policy disagreements. These disagreements each regarded duties well within the Attorney General’s authority, such as whether to retain outside counsel, issue a legal opinion, investigate potentially criminal acts and intervene in pending litigation,” the appeal said.

Paxton urged the all-Republican Supreme Court to reject the whistleblowers’ “vague, conclusory and speculative allegations,” saying they do not constitute a good-faith report of wrongdoing.

Lawyers for the whistleblowers will have the opportunity to respond to Paxton’s appeal in the coming weeks.