Openness and Transparency

Openness and Transparency. The State Bar has been often criticized as operating behind closed doors, as if it were a private club controlled by and for “insiders.” Here are a few examples: 

The embezzlement scandal:  The Bar’s failure to communicate the full nature and scope of the nine-year $555,000 embezzlement scandal by the long-time Membership Director was remarkable. Instead of openly and honestly admitting the mistakes, the Bar tried to minimize what turned out to be the largest scandal in the history of the Bar. In April 2012, the Bar issued a short, sketchy press release, which received little press coverage. 

Then not another word for over a year—until the wrongdoer entered a guilty plea, admitting to the massive theft. She received six months “shock probation” with a restitution requirement of only $73,949 of the $555,000 “known” amount stolen. The State Bar did not file any lawsuit or make any effort to obtain a judgment for the full amount stolen. In the end, the thief served less than five months of the six month sentence…and kept $482,000 of the “known” total stolen. Thus only 13% of what she embezzled was repaid—which in effect allowed the thief to profit from her misdeeds to the tune of $3,200 per day for each day served in jail.

The Bar also prematurely submitted its theft insurance claim, for only $507,000.00, before it knew even the approximate amount stolen, which turned out to be over $555,000.

During my investigation of this scandal, a former SBOT President remarked to me that “We clean our own laundry.” To the extent that statement implies that the Bar should not seek full restitution for all amounts stolen—and should be anything other than open and forthcoming with Bar members—I respectfully disagree.

The Non-Existent Sunset Committee: Throughout 2015-2016, the 2017 Sunset Review process was touted as the most important issue facing the State Bar. This emphasis was due to the requirement of legislative reenactment of the State Bar Act for the Bar to continue to exist. In June of 2015, the Board of Directors approved the appointment of former President Trey Apffel to Chair the State Bar Sunset Review Committee. However, no “committee” was ever appointed. Apffel served as an undisclosed “Committee of One.”

Thus this “phantom” committee-of-one was apparently intended to create the illusion that committee members actually existed and were hard at work on the critical Sunset issues. Because the Bar usually operates through committees, one would expect agendas, discussions, plans, votes, minutes, and recommendations to the Bar’s membership and Board, as well as Board approvals sufficient to justify the Legislature’s allowing the Bar to exist for another 10 or 12 years, until the next Sunset review.

Yet none of this happened. The committee never existed.

The result was that the rest of the Board of Directors was left in the dark concerning the Bar Staff’s recommendation to eliminate our decisive right to vote on proposed changes in Disciplinary Rules and Bar Dues. When I inquired about this committee through a PIA request, I was told:

• “Mr. Apffel holds the title of committee chair, and the committee has no other members”
• “[W]ith only one member the Sunset Committee did not hold meetings and therefore there are no minutes or agenda items.”

I was also told that “because the committee does not hold meetings, the State Bar has no responsive records” identifying “location and attendance of each member for each meeting held from 1/1/2014 until the present.”

I was also asked the rather odd “clarification” question of whether my request for “communications with Trey Apffel” (the only person on the “committee”) was made “in his capacity as committee chair.”

This unusual question prompted me to ask the Bar in a second request to identify all committees since January 1, 2000 “consisting of a single solo member who was also designated as Chair.” The Bar replied “The State Bar has no records responsive to your request item no. 2.”

The Bar has yet to explain this “phantom committee,” and I will continue to investigate how Bar staff and Bar leaders came so close to destroying our voting rights.

The Executive Director “election”: Another example of the lack of transparency occurred in the “election” of a new Executive Director.

When I took office, Bar leaders had already appointed a “Search Committee” to seek out a new Executive Director to replace Michelle Hunter, who had announced in January that she was resigning. The Chair of the Search Committee was Bob Black, and he was kind enough to add me to the Committee after I took office on June 22.

Neither the State Bar Act, nor the State Bar Rules, reference a “Search Committee.” In fact, the Bar Act, in Texas Government Code § 81.029(a), provides that “The board of directors, by a majority vote, elects the executive director.” 

So I inquired as to why we had a Search Committee at all, and why didn’t the Bar simply accept applications, and then have an open and free election by the Board.  The answer was: “We always do it this way.”  [As far as I can tell, that’s true. The Bar apparently used the search-committee process in 1994, 2004, and 2008—instead of just an open “election,” as provided in the Bar Act.]

On August 4, I proposed to have an open streaming video public meeting for at least the seven “finalists” that the Search Committee had recommended, so that Bar members could see their performance, ask questions, and provide input. 

My motion failed for lack of a second.

On August 8th the Texas Lawyer ran an article on about the committee’s embrace of secrecy. Many Bar members protested the secrecy—and then, on August 25th, the Search Committee partially reversed its position, releasing the names of the “finalists” and their redacted application forms on the Bar’s website. 

The Search Committee conducted its interviews with the finalists in secret on September 11 and by a 15-1 vote, recommended a single applicant, Trey Apffel, for the Executive Director position. The Search Committee’s recommendation was confirmed by a 42-1 roll-call vote (with one abstention) at the September 22 Board of Directors’ meeting in Lubbock. I was the only “No” vote on both occasions. 

As a result of the foregoing history, I score openness and transparency within Bar operations pretty low at this point. I believe we can—and must—do better in conducting the business of the Bar, an “agency of the judicial department of the state.” 

Fair Elections. Last April, many Bar members objected to the actions of the Bar’s Executive Director, who inserted “editorial comments” in reply to my candidate-questionnaire responses in the Bar Journal. Those members complained that the Bar was using State Bar funds, staff, and resources to put a heavy thumb on the election scales. Additionally, the Board’s Policy Manual imposed several “guideline” restrictions on campaign activities that many lawyers believed to be unconstitutional.

I’m happy to report that the Bar recently eliminated many of the unfair, unconstitutional provisions in the Policy Manual “guidelines” for the upcoming 2018 President-elect race. Bar President Tom Vick announced that the Nominations and Elections Subcommittee unanimously voted to “suspend” several of these restrictions. I voted with President Vick. This is a good start, but several other changes are still needed to achieve truly open and fair elections. Nevertheless, I appreciate President Vick’s leadership and cooperation in bringing about this progress.

However, I still have serious questions regarding the use of State Bar funds, staff, and resources to influence the outcome of President-elect races. Texas law generally prohibits use of state resources to attempt to influence an election. We must continue to monitor our election process and to guard against such improper use of State Bar resources and funds to ensure that the Bar remains scrupulously neutral during all State Bar elections.

Fiscal responsibility. As President-elect, I am Chair of the State Bar’s Budget Committee. Board Policy Manual § 3.02.04(C). 

Last July, to get fresh eyes and independent voices to review the Bar’s budget issues, I proposed that a nine-member Financial Responsibility Task Force be appointed with Lisa Blue as its Chair. This was promptly done and this Task Force is now hard at work looking for ways and means to reduce State Bar spending. 

In 2000, our Bar budget was “only” $25.5 million, but now has ballooned to over $51 million. It has increased much faster than the lawyer population, but I’m optimistic that this Financial Responsibility Task Force will lead the way to significantly reduce the Bar’s budget, while maintaining essential services and core functions. 

As a sidebar, I note that the ABA, whose membership is voluntary and four times larger than the State Bar, recently imposed a reduction in its own 2018 general-operations budget of more than 10 percent. I believe that we should strive for similar substantial savings in in the Bar’s 2018-2019 combined budget.

Transparency Task Force. I will soon propose a President-elect Task Force to examine openness and transparency within the Bar operations. This Task Force will include recognized experts in open-government law and procedures. Its mission will include analyzing the Bar’s policies regarding Open Records, Open Meetings, and Open Elections, which are vital to the Bar’s continued existence as a self-governing state agency. 

 

Conclusion. This completes my Report. As you can see, the State Bar has much to do to as a functioning state agency to improve its record; especially for openness and transparency.  I hope you will join me in the continuing efforts for positive reform within the structure of our State Bar. 

If you have any questions or suggestions, feel free to email me at joe@joelongley.com or joe.longley@TEXASBAR.com

Best Regards,

Joe K. LongleySBOT President-elect
2017-2018

October, 2017