Tuesday, March 27, 2007

Governor should reconsider TYC "Master": Issue too big to fly by seat of his pants

It's taken a while since Texas Governor Rick Perry first appointed him "Special Master," but the Lege has finally figured out, and the Master finally admitted at a House Corrections Committee hearing yesterday, that Jay Kimbrough has no authority - zero, zilch, nada - to reform the Texas Youth Commission. Reported the Houston Chronicle ("Kimbrough: No authority to make changes at TYC," March 27):
"Kimbrough's not carrying a badge or ordering law enforcement to do this or that," said Perry spokesman Ted Royer. "He is the point man that is making sure that nothing falls through the cracks." ...

Kimbrough told lawmakers Monday he is "trying to be a coordinator, facilitator, an idea guy," and his investigation is empowered by Perry's appointment.

"I ain't got no statutory anything," Kimbrough said. ...

"We now know Mr. Kimbrough doesn't have any authority to do anything," said Rep. Pat Haggerty, R-El Paso.
As a result of confirming the Special Master's impotence (legal impotence, that is - I'm not saying riding a Harley at Kimbrough's age and station is overcompensating or anything!), the Corrections Committee yesterday approved the creation of a "conservator" for TYC over the objections of the chair, according to Quorum Report, which is a rare move indeed.

In this case, though, I hope Chairman Madden and the Governor both reconsider and go along with the conservator plan.

Let's review. Governor Perry named this "special master" who answers only to him and has no formal power, instead of the statutorily defined "conservator" who could actually run the agency with the authority of law. Perry "suggested" that the TYC board name Department of Corrections' second in command, Ed Owens, as interim TYC executive director, which it did, vesting him with dictatorial power before the board resigned en masse. For his part, Owens was accused in a lawsuit that was settled last year at TDCJ of failing to act upon serious sex abuse allegations at that agency.

So now we're in the following situation: TYC does not have a board as required under law and Governor Perry has not moved to appoint new boardmembers as he's empowered to, nor has he created a conservatorship, his other legal option. All power is vested in an executive director for whom the state last year paid a civil settlement in response to charges he helped cover up a sex scandal at Texas' adult corrections agency. No board nor anyone else is there with legal authority to provide him oversight. Still, Perry is resisting the legal "conservatorship" and insisting on this "Special Master" mechanism that has no basis in history or law.

This issue is way too big, the media frenzy too intense, and the stakes too high for the Governor to just make up the rules as he goes along.

Before he decided to flout both law and custom with this Special Master foolishness, Governor Perry could legitimately say he had little more responsibility than many other government officials for the Pyote sex scandal - less than most, since the Texas Governor is a relatively weak office. But ignoring the law to use Jay Kimbrough as some sort of free-ranging, maverick reformer with a bully pulpit but no power makes this the Governor's scandal and the Governor's problem.

Somebody gave the Govenor bad advice.

If Kimbrough, as seems inevitable, runs up against the limits of his authority to reform the agency, it will be Governor Perry's fault for not using the statute for conservatorship. Indeed, at this point with no TYC board, there's no one who could even legally fire Ed Owens if he does a bad job!

I don't know what the Governor and his advisors were thinking. Apparently, something along the lines of, "Hey, here's an albatross! Let's hang it around our necks!"


Anonymous said...

NOW do you all see that voting Perry in again was a bad idea?

Gritsforbreakfast said...

To give Texans a little credit, 61% voted against him last fall.

It's funny, a few years ago when Garry Mauro lost with 39% for Governor as a D, everybody said the Democratic party was dead! Now that's all Perry can muster, but through an accident of history (and the disarray of the Democratic Party) he won.

Bottom line: in addition to Rs and Ds, there's a 22-25% swath of Texas independents out there who don't vote consistently with either party, but who nearly all voted against Rick Perry in 2006. Sometimes it's better to be lucky than good. Any other year that would have been enough to oust him.

Anonymous said...

Dont you go in for tactical voting over there then? Here, often one party candidate will step down and tell their supporters to vote for another opposition candidate, just to get the incumbent out of office. But maybe that only works well with more than 2 parties.

Anonymous said...

Why doesn't Perry just say "You want me to appoint a conservator? Fine. I appoint JAY KIMBROUGH!" and get it over with??

Sheesh but the politics are ridiculous!!

Gritsforbreakfast said...

@ anonymous: Good question! I haven't looked at the conservatorship statute, but the way it was explained to me, if Perry named Kimbrough conservator he reports to the Legislature and requires their confirmation. If he's named Special Master, he reports only to Perry since it's a made up thing. So it's a subtle but potentially meaningful difference.

Anonymous said...

Who does Perry think he is; the decider? He is finding out he is really just a figure head and I don't think impeaching him would hurt anyone's feelings. Dewhurst will never become Governor, he is not smart enough and not liked at all.

If Strayhorn had stayed out of the race, Chris Bell would be our Governor now and he is a fair, honest person and should be governor right now. I have met him and he is very nice and very honest.

Anonymous said...

Folks, there are some major issues with conservatorship. For one, TYC is a 'with-cause' agency, meaning, you cannot force people to resign in executive positions without cause. An acting conservatorship will effectively in turn create an 'at will' employment situation thereby violating due process and employee rights. By senator whitmire's own description 'fire everyone and let the courts sort it out' he is admitting his blatant disregard for the law.

Further to this, conservatorship is through the SAO, state auditors office, and was created to oversee state agencies in FISCAL crisis..TYC budget is intact and there is no issue there. So they are without jurisdiction and precedence.

I can't stand Rick Perry - he's a moron, but when the legislature says 'hurry up' I can't help but wonder...what are they trying to hide? People that force haste make me want to slow down. This has imminent disaster and legal nightmare written all over it

Anonymous said...

There is another way to view the "hurry up" attitude of the legislature. They know (as do MANY) that every day that passes allows the "dirty staff" still within TYC (and YES, there are MANY still there) to shred, alter and continue to cover-up whatever they need to in order to save themselves or "their friends".

Anonymous said...

as of yet, they haven't discovered a cover-up. Repeat, there are only allegations. And after having gone through the foia requests, and seen the investigative docs...the investigators have found nothing. TYC didn't screw up, the DA's office did by not prosecuting but that doesn't sound as sallacious. No question TYC needed to be revamped, but the witch hunt is very unfortunate.

Anonymous said...

When individuals at TYC took things out of reports that show previous knowledge to issues as well as the current allegations and then fail act to prevent the issues from happening again..... uh.... how is that not "covering up"?

Anonymous said...

no one took anything out of a report that wasn't necessary. Reports are fluid documents that are changed all the time -- there was a suspicion but the investigators never found proof that anything was changed that wasn't necessary. Keep in mind, this was 2005 -- the DA hasnt prosecuted in 2 years when the evidence was turned over IMMEDIATELY to not only them but also the Texas Rangers, who also have the authority to arrest on site but didnt...There's more to this story but the media are creating a frenzy for the benefit of the legislature. I want to know why the DA sat on this for 2 years when the statute of limitations is running out.

Anonymous said...

To 9:53 pm
Your whole paragraph reeks of the stink and smoke & mirrors used within certain dept. of TYC.
"no one took anything out of a report that wasn't necessary". Who's definition of necessary?

"Reports are fluid documents that are changed all the time..."
I agree, but should only be changed by the author, not the clean up and protect brigade.

" -- there was a suspicion but the investigators never found proof that anything was changed that wasn't necessary".
Help me out here lawyers, isn't that the exact same words every guilty party uses?

"Keep in mind, this was 2005 -- the DA hasn’t prosecuted in 2 years when the evidence was turned over IMMEDIATELY to not only them but also the Texas Rangers, who also have the authority to arrest on site but didn’t."

"There's more to this story but the media are creating a frenzy for the benefit of the legislature".
Oh, I'm sure there is. But, I guess someone cut that part out of their fluid report to the media feeling it "wasn't necessary".

" I want to know why the DA sat on this for 2 years when the statute of limitations is running out".
Very good question. It is possible it has the same residue as why most local DA's won't prosecute the students who assault the staff. Let's refresh- oh yeah, it's that "agreement" between TYC and the local prosecutors to "handle it within TYC".