Ken Paxton acquittal could quiet future whistleblowers, experts say

Texas’ government code is clear: A public employee is entitled to compensation if they face retaliation after making an accusation in good faith that their employing agency or a government official violated the law.

Reality may not be as clear.

The impeachment acquittal of Attorney General Ken Paxton last week renewed attention on a whistleblower lawsuit filed by four men who were fired from top jobs in the attorney general’s office after they told authorities that Paxton improperly used the agency to help a friend and political donor.

The former employees and Paxton negotiated a settlement earlier this year. It would have awarded them $3.3 million and required the attorney general to apologize. But state lawmakers balked at having to pay that bill — and launched a far-reaching inquiry into how Paxton ran the office. In May, the House overwhelmingly voted to impeach Paxton. Last week, the Senate refused to convict him, returning Paxton to the helm of the agency.

Now legal experts and political observers worry the impeachment proceedings and acquittal — plus the vows of political retribution against lawmakers who voted to oust Paxton — will have a chilling effect on state employees who witness what they believe to be wrongdoing and corruption. In short, some are concerned state workers will not want to report wrongdoing in the wake of Paxton’s acquittal.

“Even in cases where they actually might be successful but don’t have the same political context, the reality is that if you’re a whistleblower, at a very high level you saw a group of well-respected, conscientious whistleblowers go to the FBI only after they were unable to convince their boss that he was engaging in transgressions and the response of all this is that their names get dragged through the mud, they get fired,” Rice University political science professor Mark Jones said. “The lesson they’re going to draw from it is, ‘Why bother?’”

A request from Paxton to dismiss the whistleblowers’ lawsuit is currently pending before the state Supreme Court.

When the settlement was announced, Paxton said it would save taxpayers’ money.

But in closed-door meetings, the House General Investigating Committee panel began probing the whistleblowers’ claims to determine whether, in essence, the Legislature was being asked to participate in a cover-up. Ultimately, lawmakers did not earmark money to fund the agreement and the House voted to impeach Paxton upon the investigation’s conclusion.

Paxton and his former deputies could try to settle again, legal experts said, though Texas political observers said it is difficult to imagine a scenario in which the Legislature wants to fund such a settlement.

“This is yet another kind of legal quandary that Ken Paxton finds himself in,” University of Houston political science professor Brandon Rottinghaus said. “The impeachment is separate from the civil lawsuits. It’s still the case that we could have him vindicated politically through impeachment but still be liable civilly.”

Legal quandaries have followed Paxton, a former state senator, for most of his stint as the state’s top lawyer. Months after taking office in 2015, he was indicted on state securities fraud charges. Since then, the case has been delayed by pretrial disputes.

Perhaps more serious to Paxton’s future is an ongoing federal investigation opened by the FBI in October 2020 when whistleblowers went to them with concerns their former boss had committed crimes that included bribery. No charges have been filed in relation to the alleged corruption, though the case reportedly reached a grand jury in San Antonio.

Paxton has denied any wrongdoing.

The whistleblowers’ claims were central to the impeachment. In impeaching Paxton in May, the House alleged he had abused his office by delaying foreclosure sales of Austin real estate investor Nate Paul’s properties, investigating and harassing Paul’s adversaries and attempting to get private police records for him. Paul allegedly gave a job to the woman with whom Paxton had an extramarital affair and paid to renovate Paxton’s home.

The impeachment acquittal did not affect the viability of those claims, said Mike Golden of the University of Texas at Austin’s School of Law. As discouraging as the impeachment procedure may have been to would-be whistleblowers, Golden said, the public trial was filled with evidence that may be helpful in other settings — like a federal prosecution for corruption or abuse of office.

“There is a way that some whistleblowers might view all this attention as a positive,” Golden said. “Which is: Hey, we’re getting our message out. … We were able to tell our story live on television and explain why we thought we were wrongfully fired and why we thought that what we were doing was protecting the people of Texas, protecting the integrity of the office.”

However, the whistleblowers who sued Paxton remain without compensation. The attorney general’s office did not respond to a request for comment for this story.

The impeachment proceedings should have been independent of the question whether they were entitled to compensation, said Joe Knight, a lawyer who represents one of the four, Ryan Vassar.

“The whistleblowers’ statutory right to compensation got caught up in the whole political battle between the people who support Paxton, the people who don’t,” Knight said.

As he sees it, he said the Legislature passed the statute to encourage people to report wrongdoing, with lawmakers essentially telling potential whistleblowers “we will have your back.”

“That’s sort of the social contract that was made with all public employees to give them the courage to risk their careers and financial well being in reporting corruption. And in this case, that end of the bargain has so far not been upheld,” he added. “There is a grave risk to the future of our state government if that promise is not honored and if other employees realize, ‘If I report this corruption and then I get fired, there’s a chance that I get nothing.’”

Disclosure: Rice University, University of Texas at Austin and University of Houston have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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