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Thursday, November 5, 2020

Whistleblowers say Texas AG's office retaliated against them — placing an armed guard in the office — after they reported Ken Paxton

Posted By on Thu, Nov 5, 2020 at 12:20 PM

click to enlarge COURTESY PHOTO / TEXAS ATTORNEY GENERAL'S OFFICE
  • Courtesy Photo / Texas Attorney General's Office
At a senior staff meeting one Thursday morning in May, with much of the Texas attorney general’s office working from home and morale seeming low, Texas Attorney General Ken Paxton arrived at the Price Daniel Sr. State Office Building in downtown Austin with a surprise honor for a top deputy: a copy of Scalia Speaks, the late conservative U.S. Supreme Court justice’s book.

Paxton had inscribed it with a congratulatory note for Blake Brickman, and presented it personally at the meeting of about 20 people.

“Blake, I am so grateful you joined our team at the Texas AG’s office,” Paxton wrote in blue ink, honoring the top deputy in a new, if short-lived, tradition, according to two people who attended the meetings. “I am confident that you will continue to make a difference for our office and all of Texas.”

Lacey Mase and Ryan Bangert, two other senior aides, would soon win similar accolades. But by October, Paxton had publicly disparaged Brickman, Mase, Bangert and several of his other most senior aides as “rogue employees” — and by the first week of November, Paxton had fired Brickman, Mase and two other top aides.

The week before his termination, Brickman had told the agency’s human resources department, in a formal complaint obtained by the Texas Tribune, that he was being blocked from meetings and prevented from seeing critical documents; that he believed his computer was being monitored; and that a superior had brought an armed “sergeant” to a staff meeting. His allegations echo formal complaints filed by five other whistleblowers.

The abrupt change, interviews and internal agency documents show, came after seven senior aides and whistleblowers in the attorney general’s office— Brickman, Bangert and Mase among them — reported Paxton to law enforcement on September 30, alleging criminal violations. An eighth senior aide made a similar report to authorities on October 1.

The aides allege that Paxton used his office to serve the interests of a political donor, Austin real estate investor Nate Paul. Documents obtained by the Texas Tribune and media reports in the Tribune and other outlets show four instances in which Paxton intervened on Paul’s behalf in legal matters. Paxton has called the allegations false.

In just over one month, four aides have been fired: Brickman, Mase, David Maxwell, the agency’s former director of law enforcement, and Mark Penley, the former deputy attorney general for criminal justice. Ryan Vassar, another senior aide, was put on leave, and three more — Darren McCarty, Jeff Mateer and Bangert — have resigned.

While the attorney general’s office did not answer questions about the allegations made in the whistleblowers’ complaints, a political spokesperson for Paxton accused the four who were terminated of policy violations.

Ian Prior, the spokesperson, did not address the whistleblowers’ individual claims. But he dismissed them as “the product of desperate former employees trying to spin a false narrative to disrupt and obstruct the operation of the Attorney General's office.”

He added that the whistleblowers are being investigated for “making false representations to the court, illegally leaking grand jury materials and violating numerous agency policies.” He declined to elaborate, citing an ongoing investigation.

The four whistleblowers who were fired have either not responded to requests from the Texas Tribune or declined to comment on the specific allegations made against them.

But detailed personnel files kept by the agency, as well as interviews with former senior officials, show that before the whistleblowers were fired — and publicly criticized — they were recognized by their supervisors as top performers. Their work history with the attorney general’s office would provide critical details in what could become a whistleblower lawsuit against Paxton and the agency.

Lightly redacted personnel records released by the agency show no disciplinary history for three of the four aides who were fired: Brickman, Mase or Penley. The Texas Tribune has requested, but not yet received, Maxwell’s personnel file.

Mase, who started at the agency in 2011, received a half-dozen promotions since 2017 and quadrupled her salary to over $200,000 over the last seven years. Brickman and Penley, who had shorter tenures at the agency, had already proven themselves valuable, and Maxwell was well-respected, said Mateer, the former first assistant attorney general who led the agency for years.

Mateer, one of the whistleblowers, worked closely with the others before he resigned October 2, shortly after joining the group in making the report to law enforcement. He described all of them as superlative workers and colleagues.

“I know no basis for their termination other than they blew the whistle,” Mateer said in an interview this week.

A 'hostile' work environment

Seven of the senior aides — Brickman, Mateer, Mase, Bangert, Vassar, Penley and McCarty — reported Paxton to law enforcement September 30 and notified the agency’s human resources director, and Paxton himself, that they had done so.

Maxwell reported Paxton to authorities on October 1, new documents show — a separate whistleblower report — that he told the agency should entitle him to legal protections under state law.

Later in October, records released by the agency show, six of the whistleblowers filed complaints with the agency’s human resources department.

In their complaints, several of the whistleblowers allege that Paxton and First Assistant Attorney General Brent Webster, who Paxton hired to replace Mateer October 5, created a “hostile environment” after they reported Paxton to law enforcement.

On October 5, Webster’s first day at the agency, an armed guard was posted on the eighth floor of the Price Daniel Sr. building, where the agency’s executive team works, according to the complaints.

Bangert wrote that he asked Webster why the guard had been brought there — since he had never observed someone stationed there before — and that Webster said the guard was there for Webster’s own protection, as “he trusted no one and was not about [to] ‘leave his flank exposed.’”

“Other OAG staff complained to me that the presence of an armed officer in meetings was an unprecedented attempt by Mr. Webster to intimidate senior members of OAG staff on his first day as First Assistant,” Brickman wrote in his complaint.

On the same day, Bangert wrote in his complaint, a large stack of empty cardboard boxes was delivered to the eighth floor — which he considered an unspoken signal “that we were to pack our personal belongings in those cardboard boxes and leave.”

During a senior staff meeting on October 8, a week after the group reported Paxton to law enforcement, McCarty asked Paxton and Webster whether the office would continue to publicly disparage whistleblowers. The agency had called them “rogue” and told reporters, without providing evidence, that it was investigating their behavior. There was no answer to McCarty’s question, according to several of the complaints.

The whistleblowers reported being excluded from meetings, sidelined from their routine job responsibilities and denied access to documents they needed to perform their duties.

Several also wrote that they believed superiors at the agency were monitoring them through their electronic devices.

“Attorney General Paxton and Mr. Webster have placed me under unusually extensive scrutiny seeking detailed information on large projects I am leading... I also have reason to believe that my OAG issued electronic devices are under surveillance,” McCarty wrote. “These actions have negatively affected my prestige in the workplace, tarnished my professional reputation both internally and externally to the OAG, created a toxic working environment, and could affect my ability to obtain work outside of the OAG.”

Both Maxwell and Penley, who were placed on paid leave before being fired this week, said they were not told why they were put on leave.

Maxwell wrote in his complaint to the agency’s human resources department that he warned Paxton on multiple occasions that “his association with Nate Paul and the investigation that he was attempting to force me to conduct was not proper and could get him indicted for Bribery.”

Maxwell had been involved in investigating unusual complaints made by Paul, the Paxton donor, that Paul had been mistreated by authorities during a 2019 raid on his home and office. In an internal email obtained by The Texas Tribune, top Paxton aides said the complaints had been vetted and were meritless.

But Paxton has said he was not satisfied that his staff had sufficiently vetted the allegations, and he ultimately hired an outside attorney to do so — a step that pushed his top deputies to mutiny.

“General Paxton was adamant that he wanted to continue the investigation,” Maxwell wrote.

'A pretty open and shut case of whistleblower retaliation'

Employment attorneys say the whistleblowers seem to have positioned themselves well for a lawsuit, though the aides have not announced whether they will pursue one. Their internal complaints could be a precursor to a lawsuit, employment attorneys say, because whistleblowers must exhaust their internal grievance processes before they can file cases outside the agency.

The Texas Whistleblower Act — as the attorney general’s office’s own website explains — protects government workers who report their superiors to authorities for what they believe to be legal violations. Under the law, whistleblowers are protected from retaliation, and if any adverse actions are taken against them within 90 days of their report to authorities, those actions are presumed to be retaliation.

“At first blush, with what I can see as an outsider, it looks like a pretty good case — a pretty open and shut case of whistleblower retaliation,” said Dustin Paschal, an employment attorney in Dallas.

If the aides do file a lawsuit, and are successful, the state could be on the hook for hundreds of thousands of dollars in damages, including lost wages and attorneys fees. Texas law caps damages at $250,000 for an agency the size of the attorney general’s office. The whistleblowers could also pursue a case under federal law.

Texas is an “at will” state where employment laws give workers limited protection from termination; workers can be fired for any reason so long as it’s not an illegal reason.

But to avoid massive payments and a court loss, labor lawyers say, the attorney general’s office will have to convince a jury that it fired or took other adverse action against the whistleblowers not because of their report to law enforcement but for some other plausible reason.

“They can come up with anything they want,” said Eric Roberson, an attorney in Dallas who has handled whistleblower cases. “But the more ridiculous the reason, the less likely a jury of reasonable citizens will believe it. You’re talking about highly skilled, highly trained, very seasoned attorneys. As a general rule these folks don’t get fired for being two minutes late.”

It will help the whistleblowers’ cases if their lawyers can convince jurors that they were exemplary employees, labor law experts said — for example, by showing they won personal honors from Paxton as recently as a few months ago, and that they won frequent positive performance reviews and promotions.

A recent performance review in Mase’s file said she “consistently exceeded standards” in her jobs at the agency.

Prior, the Paxton spokesman, said that Mase was fired for “violating office policy, specifically mistreatment of subordinates”; Brickman was fired because he was “insubordinate and violated other policies”; Penley was fired because he “omitted or misrepresented to a court material facts, as well as other policy violations”; and Maxwell was fired for violating agency policies, including making employment decisions without consulting the human resources department “that have resulted in allegations of discrimination.”

None of those four whistleblowers has specifically addressed those allegations in response to questions from the Texas Tribune.

Shannon Najmabadi contributed reporting.

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