general counsel

On Feb. 6, the State of Texas authorized the payment of $157,803 to Rusty Hardin — general counsel for the House Select Committee on Transparency in State Agency Operations — for his work in the committee’s investigation into the actions of UT System Regent Wallace Hall, according to invoices provided from the Texas Legislative Council. 

Hardin originally billed the state $163,302 for his work from August to October of last year, but the state contested certain charges, including several for “air flight insurance,” marked at just more than $20. Hardin originally billed $508 for dinner at an Italian restaurant, but later requested to cancel the charge. 

The House Committee is trying to determine whether Hall overstepped his duties as a regent after he filed open record requests with the University for more than 800,000 pages of information. Some state legislators have accused him of conducting a “witch-hunt” against President William Powers Jr. 

At one committee hearing in November, UT System lawyers testified Hall was mistakenly given access to private student information — possibly in violation of federal privacy laws — which he subsequently shared with his private attorney. During testimony, Francie Frederick, general counsel for the Board of Regents, said regents must have a valid, job-related reason to see protected information.

“I’m not a FERPA expert, but my understanding is that the regent must have a legitimate educational interest to see FERPA [documents], something related to the regent’s duties,” Frederick said. 

At the same hearing, State Rep. Trey Martinez Fischer, D-San Antonio, requested a review and response from the UT System regarding the potential violation and motioned to have Hardin review Hall’s actions.  

Phillip Hilder, outside counsel to the UT System, submitted a report to the committee stating there was “no credible evidence” that Hall violated any state or federal laws regarding information protection. Hilder billed the state nearly $200,000 for his contributions from September to November of last year, according to reports from The Dallas Morning News.

Hardin has yet to submit his report on Hall’s potential violation of privacy laws, but State Rep. Carol Alvarado, D-Houston and co-chairwoman of the committee, said she is looking forward to his findings.

“We appreciate [the System] getting this to us in a timely manner, and I’m looking forward to reviewing the main report from our own general counsel [Hardin],” Alvarado said.

In a report released earlier this week, private legal counsel representing the UT System concluded there was “no credible evidence” that Regent Wallace Hall violated a state law regarding the protection of confidential information. 

Philip Hilder, outside counsel to the System, submitted a report outlining his conclusions to the House Select Committee on Transparency in State Agency Operations on Monday. The committee is investigating Hall to determine whether Hall overstepped his duties as a regent and whether he should be recommended for impeachment. 

Hall has been accused of conducting a “witch-hunt” against President William Powers Jr. after he filed open-records requests with the University for more than 800,000 pages of information. 

At one committee hearing in November, UT System lawyers testified Hall was mistakenly given access to private student information — possibly in violation of federal privacy laws — which he subsequently shared with his private attorney. Francie Frederick, general counsel to the UT System Board of Regents, said regents are only allowed to view documents with information protected by the Family Educational Rights and Privacy Act — known as FERPA — if the regents have a “legitimate educational purpose” for doing so.

At the same hearing, State Rep. Trey Martinez Fischer, D-San Antonio, requested a review and response from the UT System regarding the potential violation. Martinez Fischer also motioned to have Rusty Hardin, legal counsel to the committee, review Hall’s actions in sharing confidential documents and determine whether Hall committed a crime.

In his letter, Hilder said Hall requested all information protected by FERPA be redacted from the documents, but UT failed to completely remove all potentially problematic information when providing Hall with the requested documents. Hilder concluded Hall did not violate privacy acts because the University “never determined that Regent Hall did not have a legitimate educational interest” in viewing the information. 

“Regent Hall specifically asked that documents with potential FERPA information be withheld,” Hilder said. “However, when potential FERPA documents were provided by UT-Austin, in response to a regental information request, issues surrounding UT-Austin’s admissions process came to Regent Hall’s attention.”

Hilder said the role of a regent includes maintaining admissions standards consistent with the mission of institutions in the UT System, so, once Hall read the documents in question and identified potential issues with the admissions process, he would have an educational purpose. 

In the letter, Hilder said Hall did not violate FERPA when he disclosed the emails because UT did not intend to give Hall access to the information, and Hall did not intend to receive it, demonstrated by his request for all information protected by FERPA to be redacted. 

State Rep. Carol Alvarado, D-Houston and co-chairwoman of the committee, said she is glad the System followed the committee’s request by submitting a report. 

“We appreciate them getting this to us in a timely manner, and I’m looking forward to reviewing the main report from our own general counsel [Hardin],” Alvarado said.

Francie Frederick, a member of the general counsel for the UT System Board of Regents, testified on the ongoing investigation of Hall’s actions as a regent Tuesday morning. In her testimony Frederick explained how Hall shared emails with FERPA-protected information. 

Photo Credit: Jonathan Garza | Daily Texan Staff

During the complex process required to fulfill Regent Wallace Hall’s massive open records requests to the University, Hall was mistakenly given access to private student information — possibly in violation of federal privacy acts — according to testimonies of several UT System lawyers at a House hearing Tuesday.

Testimonies were given as part of the House committee’s ongoing investigation into the recent behavior of Hall, trying to determine if he overstepped his boundaries as regent.

In her testimony, Francie Frederick, who serves as the general counsel for the UT System Board of Regents, said regents must be “diligent in seeking information.” If a regent requires information protected by the Family Educational Rights and Privacy Act, they must have a valid, job-related reason in order to see it, Frederick testified.

“I’m not a FERPA expert, but my understanding is that the regent must have a legitimate educational interest to see FERPA [documents], something related to the regent’s duties,” Frederick said. 

Frederick said over the course of reviewing documents, Hall came across a chain of emails he should not have been allowed to see.

“It had not been determined in advance that [Hall] had legitimate educational interest,” Frederick said. “No determination was made, [the emails] were in the files, and he saw them.”  

According to Frederick, Hall saw the emails after a series of untraditional moves were made in order to fulfill his “massive requests for information.” Because Hall’s requests were so large, University employees turned documents over to System lawyers with the understanding that System employees would redact private information. In her testimony, Frederick said the System employees failed to redact such information in at least a few cases.

“If I were replaying this, we would not hand one document to Regent Hall before someone in my office actually looked at it,” Frederick said. “I think we failed him by allowing this to happen.”

Frederick said her office could not have foreseen the problems that arose as a result of the unexpectedly sizeable requests.

“I don’t think when it started out there was any intention to be disruptive,” Frederick said. “I don’t think anyone could’ve predicted the volume and the spin-off requests.”

Frederick said regents are legally barred from sharing protected documents with outside parties, even if they have demonstrated educational purposes. Despite this legal barrier, Frederick said Hall shared emails containing FERPA-protected information with his private attorneys. Though Hall was required to return the emails, no other steps were taken.

State Rep. Trey Martinez Fischer, D-San Antonio, motioned to have Rusty Hardin, legal counsel to the committee, review Hall’s actions in sharing confidential documents and determine whether Hall committed a crime. The motion passed unanimously.

“I take it they want us to look at and to see if it’s a matter that ought to be referred to prosecuting authorities,” Hardin said after the hearing. 

Barbara Holthaus, the UT System’s senior attorney and privacy coordinator, said FERPA regulations are not always clearly defined. According to Holthaus, UT System handled Hall’s exposure to information protected by FERPA in the correct manner. 

“The remedy under FERPA is to make a concerted effort to get the document returned, ascertain that you have gotten all copies of it and remind the individual that it was given to them in error,” Holthaus said. “The nature of FERPA is that it’s very confusing … FERPA is not a black and white kind of proposition.”

In his testimony, Daniel Sharphorn, general counsel for the UT System, directly contradicted a statement made by Kevin Hegarty, chief financial officer and custodian of records at UT.  

At the first committee hearing, Hegarty said the UT System denied him the opportunity to seek outside counsel while his office was dealing with Hall’s requests. Sharphorn denied this claim at Tuesday’s hearing.

“I went through every email that I have, and I asked one of our office assistants to do the same,” Sharphorn said. “There was nothing in our systems where Mr. Hegarty was asking for outside counsel.”

Sharphorn also provided an explanation for reminding Barry Burgdorf, who resigned as general counsel in April, that attorney-client privilege was still in effect before his testimony in October. 

Sharphorn said he reached out to Burgdorf at Hall’s request.

“I did not think of [Hall’s request] as a directive,” Sharphorn said. “I did it because he was right.”

At the end of the meeting, the board unanimously voted to issue subpoenas to Powers and UT System Chancellor Francisco Cigarroa. Their testimony is scheduled for Dec. 18. 

Correction: An earlier version of the story misattributed a quote about reviewing a motion passed by the committee. Rusty Hardin, legal counsel to the committee, said the quote.

Editor’s note: This week, the Texas House of Representatives’ Select Committee on Transparency in State Agency Operations has heard public testimony concerning UT System Regent Wallace Hall’s conduct vis-a-vis UT-Austin. Beginning in the fall of 2012, Hall overwhelmed UT officials with open records requests for over 120,000 documents, leading many at UT and in the state legislature to allege that he was on a “witch hunt,” with the goal of creating sufficient grounds for the dismissal of UT-Austin President William Powers Jr. The Committee will attempt to determine whether, as his opponents have argued, Hall should be impeached and removed from office. On Monday, Tuesday and Wednesday the Committee heard from several witnesses, including lawyers for Hall and the UT System, Rep. Jim Pitts, R-Waxahachie — one of Hall’s most prominent critics — and former UT System General Counsel Barry Burgdorf, who resigned in 2013 after submitting a report on unfairly favorable loans granted to UT law school faculty. Burgdorf claims he was encouraged to leave after several regents, Hall foremost among them, wanted his report to lay more blame at Powers’ feet. What follows are some of the hearings’ highlights.

“It’s the first real hearing, but we don’t have a clue what’s going on ... It’s kind of like they’re throwing an impeachment, but we’re not really invited.”

-Allan Van Fleet, lawyer for UT regent Wallace Hall on Monday

“It will be a step toward public disclosure as to what happened and description from live witnesses, as opposed to people announcing their own side of the issue ... The committee’s name is ‘transparency,’ and I think the public will get a chance to look and see what happened and judge for themselves, as will the committee.”

-Committee special counsel Rusty Hardin

“In my opinion Mr. Hall has gone on a fishing expedition in hopes of finding something, anything with which he can use to oust President Powers. If he was truly trying to measure compliance, why would he only target one institution out of the fifteen in the University of Texas System?”

-Rep. Jim Pitts, R-Waxahachie, on Tuesday

“Are regents above the law? Transparency in government does not trump the privacy of those involved.”

-Pitts on Tuesday

“We do not have to show Mr. Hall broke the law, we only have to show misconduct and abuse of power.”

-Pitts on Tuesday

“I do believe that there is enough evidence to show that Mr. Hall should not be allowed to continue in his current capacity as a regent.”

-Pitts on Tuesday

“The chancellor [Francisco Cigarroa] met with me and told me that Regent Hall was unhappy with me and the regents aligned with him were unhappy, they were going to make my life difficult.”

-Former UT System general counsel Barry Burgdorf on Wednesday 

Lawmakers attempt to limit UT System Board of Regents through budget measures

Texas lawmakers took steps Thursday to prevent the UT System Board of Regents from conducting another investigation into the UT Law School Foundation by prohibiting regents’ from spending money on the investigation.

Rep. Jim Pitts, R-Waxahachie, who chairs the House Appropriations Committee and serves on a joint committee to investigate regents’ governance methods, filed a series of amendment to limit the UT System’s spending power.

One amendment would prevent the System administration from using any of the $23.5 million in proposed state funds for the upcoming biennium to pay for investigations into individual institutions within the system and the administrations of those institutions. It would also prevent the System from spending to request open records from those institutions.

In 2011, President William Powers Jr. instructed Larry Sager, then dean of the School of Law and current faculty member, to resign as dean after Sager received a forgivable loan of $500,000 from the foundation. Last week, the regents voted 4-3 to conduct an additional external review of the foundation. The System would spend about $500,000 toward the investigation.

An internal audit of the foundation conducted by Barry Burgdorf, UT System general counsel who resigned earlier this month, found the loan was awarded inappropriately. The attorney general’s office largely concurred with the report’s findings.

The amendment would also require the System to submit an annual report to Gov. Rick Perry’s office and the Legislative Budget Board detailing the System’s investigations into individual institutions and their administrations. The System would have to list the intent of the investigation, evidence to justify conducting the investigation, the cost of the investigation and the findings of the investigation.

An additional amendment, co-filed with state Rep. Donna Howard, D-Austin, who also serves on the joint committee, would trust the System’s $23.5 million to the Texas Higher Education Coordinating Board. The coordinating board would transfer those funds back to the System pending approval from the Legislative Budget Board and Gov. Rick Perry’s office.

Another amendment would limit the System administration’s share of revenue from the Permanent University Fund, a state endowment that funds the UT and Texas A&M University Systems that typically funds infrastructure and construction projects. However, the amendment would allow UT to continue accessing the fund.

A final amendment prevents the System from paying for transportation and lodging of regents who have not been confirmed by the Senate.

The amendments follow a week of criticism by lawmakers over the regents’ decision to conduct the additional investigation.

Lt. Gov. David Dewhurst said Wednesday that if regents decided to conduct a “duplicative investigation,” they should use Texas Attorney General Greg Abbott’s office to prevent spending additional tax dollars. A letter signed by 18 senators sent to board Chairman Gene Powell on Tuesday asked the board to seek the attorney general’s assistance if regents insisted on continuing what the senators called “an unnecessary probe.”

Powell responded in a letter Wednesday and said the board’s General Counsel Francie Frederick informed the attorney general’s office of the board’s possible actions prior to last week’s meeting. He said Frederick would brief Abbott and his first assistant Daniel Hodge if the board decided to investigate the foundation further.