A Houston Independent School District auditor who was ousted two years ago after reporting multi-million-dollar contracting irregularities to authorities was, in fact, innocent of any misconduct that would have justified his termination.
That’s according to Houston ISD school board president Rhonda Skillern-Jones, the very same official who pushed out the district’s chief auditor, Richard Patton.
The admission emerges from a deposition taken for a lawsuit Patton filed in August 2016. It’s supported by another admission, this one by the late Manny Rodriguez, an HISD board member and chair of the board’s audit committee.
Skillern-Jones and Rodriguez were both asked under oath about a secret document known as the Morris Report, which is the district’s official investigation into Patton that it is now trying to bury. In fact, in the lawsuit over why the district canned Patton, the one document nobody gets to see is this report on whether the district should get rid of Patton.
From the testimony of those two board members, it’s apparent that the case against Patton was too weak to discuss openly.
On March 10, 2016, HISD suspended Patton just three days after he disclosed that he had shared information with the Federal Bureau of Investigation. Patton also shared with HISD’s own police chief the results of an audit finding that the district had repeatedly split job orders to avoid a statutory $500,000 cap on no-bid contracts.
The district struggled to explain the suspension to the public, citing a number of unclear reasons, before settling on unspecified “allegations of misconduct and other performance concerns.”
The district hired the law firm of Rogers, Morris & Grover to investigate those allegations and concerns; the firm turned in a document now known as the Morris Report on June 2.
Patton was allowed to return to limited duty in August for a few weeks, but his contract, which expired that month, wasn’t renewed.
Patton sued, arguing that he was protected by the state’s whistleblower law, which forbids government agencies from firing or suspending their employees who report violations of law to the appropriate authorities.
The district took the position that Patton’s contract wasn’t renewed due to unrelated performance concerns, but it has struggled to substantiate any of those concerns.
HISD has denied multiple public records requests to produce the Morris Report; it doesn’t even have to share the report with Patton, after winning two separate arguments in trial court.
The usual legal standard is that factual findings in such reports are public record and that only the legal analysis may be redacted, although there is an exception when the legal analysis is too intertwined with the fact-finding to make redaction possible.
However, HISD is also prohibited from cherry-picking details from the report in its defense, or from asserting that the report was the basis for the decision not to renew Patton’s contract. Under a legal doctrine known as “sword and shield,” if HISD tries to use the document to attack Patton, the whole thing will be put on the record.
That puts the district in a strange position: convincing a jury and the public that its stated reasons for getting rid of Patton are more than pretexts while refusing to disclose its full consideration.
That position couldn’t survive a first round of questioning by Patton’s attorney, David Feldman, who asked Skillern-Jones why the board allowed Patton to return to work after receiving the Morris report.
“Because the results of the investigation did not reveal anything worth termination,” Skillern-Jones said under oath.
The Morris investigation was ordered after a private March 10 board meeting, at which Skillern-Jones and her colleague Jolanda Jones questioned Patton over whether he had used a district scanner to copy three personal documents. Patton said he admitted doing so, as limited personal use of district equipment is allowed by policy.
His assistant, one Cherie Gibson, had told the board about those documents and also claimed Patton was a bully. She was later asked what she meant by bullying in a deposition.
“Richard asked me – not asked me, but informed me that one of my duties would be to make coffee every day as well as have his door unlocked for him in the morning,” Gibson said.
Skillern-Jones testified that the investigation was conducted despite the meagerness of the complaints because the chief auditor “should be held to the highest standard of conforming with policy.”
“But this wasn’t a violation of policy, was it,” Feldman asked. “There is no misconduct here.”
“There was none to be found, absolutely,” she answered.
During the deposition of Rodriguez, the late audit committee chair, Feldman asked him whether the board had “concluded that Mr. Patton had not engaged in any form of conduct that warranted discipline?”
“We did conclude and gave him a return to work letter,” Rodriguez said.
“You did conclude what?”
“That he did not engage.”
On April 13, 2016, the HISD board took its first stab at developing a plausible paper trail to support Patton’s dismissal. A three-page memo by Rodriguez and Skillern-Jones accused Patton of giving an order to somebody he didn’t supervise, of using a hostile tone with another district employee, and of changing the tone of a report.
After Patton wrote a lengthy rebuttal, the district threw in another charge: “We are aware of documented instances in which confidential student and employee information has been released by the Internal Audit Department in a manner that could violate the requirements.”
At a grievance hearing, Patton said the district never followed up with specific allegations on the supposed privacy violations.
At the hearing, the district settled on a position that Patton had just gotten his job severely wrong, that he had misinterpreted the relevant contracting law, “resulting in a conclusion of malfeasance where there was none.”
“Obviously, that’s extremely problematic in terms of the audit department performing its functions,” Kate Skagerberg, an attorney for the district, said in a hearing. “Of course an audit department needs to understand and correctly apply the law that it purports to be investigating.”
The district even has an opinion by the firm of Olson & Olson to support that position, one that dates from June 2016, although the district maintains it contracted the firm to investigate the issue in November 2015.
Patton’s attorney has the job of arguing that this is a whitewash job — an insincere and dubious opinion. He’ll have plenty of evidence on his side, starting with the facts contained in Patton’s original audit of the Construction and Field Services department (CFS).
On every single finding of inappropriate job-splitting, such as a $960,000 demolition job split into two $480,000 jobs, CFS agreed with Patton’s office, and blamed bad advice from a procurement official.
That official, Earl Finley, said that CFS is “throwing me under the bus, aren’t they? Wow. That’s not very nice…. I gave them sound advice. What they did after I gave them advice is on them. It’s their responsibility. I’m not going to take responsibility for their actions.”
Finley produced an email from 2014 in which he advised the others to review their approach, and that the splitting might be permissible if it was “different sub trade work.” In other words, an order for a plumbing job and an electrical job could rightly be treated as separate orders, but a demo job split in two to avoid bidding requirements could not.
The district’s own lawyers looked at the report and concluded the job-splitting was illegal, according to Patton’s testimony.
Then Morris reviewed the legality of the arrangement in a written report, according to recent testimony by the district’s general counsel, Elneita Hutchins-Taylor, apparently concurring with Patton.
Feldman pressed the key question. Did she see the Morris report before Olson & Olson got involved? In other words, did the district go shopping for another opinion after being told that Patton was correct?
“I would have to check the date,” Hutchins-Taylor said. “I’m – I’m not certain. It may have been, but I’m – I’m not exactly sure.”
The Olson & Olson report, supposedly ordered in the fall, was dated June 11, 2016, nine days after the Morris report came back.
Patton is suing for damage to his reputation and loss of income.
The district’s final position at Patton’s hearing was that Patton simply had “a one-year contract, and one year had run. He had never been promised a renewal.”
Jon Cassidy can be reached at [email protected].