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Texas agencies want option of keeping departed employees on payroll

Texas Attorney General Ken Paxton’s office and four other agencies were questioned Wednesday about granting departing employees “emergency leave” as a form of separation payment.

The inside of the Texas Capitol Building on March 29, 2016.

Officials at several Texas agencies on Wednesday defended the practice of temporarily keeping some departing employees on the state payroll by placing them on leave — sometimes as a form of severance — calling it a longstanding “tool” that can prevent costly legal disputes.

“I think it’s pretty common,” Amanda Crawford, the deputy attorney general for administration under Ken Paxton, told lawmakers on the House General Investigating and Ethics Committee. “The law doesn’t prohibit it, and again, it’s a tool that we have for risk management.”

Paxton’s office, along with four other agencies, faced questions at the hearing about a practice lawmakers have closely scrutinized this year, following news reports detailing how departing employees were granted “emergency leave” or offered other types of separation payments. 

“Having that flexibility has been helpful in avoiding more expensive outcomes," said John Adamo, a top lawyer at the Department of Family and Protective Services. 

Emergency leave is often used as a way of permitting state employees to take a leave of absence for a death in the family, but the law also allows agency heads to grant it for other, unspecified situations. Texas does not formally award severance pay to state employees.

In June, Texas Gov. Greg Abbott and Comptroller Glenn Hegar ordered state agencies to stop placing their departing employees on “emergency” or “administrative leave” until lawmakers could examine the issue. And House Speaker Joe Straus ordered lawmakers to study emergency leave practices that “appear contrary to the intent of the law.”

Texas senators have also discussed the policy in recent months, with several members vowing to "tighten it up."

A state auditor’s report last month examined separation agreements at seven state agencies between September 2014 and June 2016. The agreements — not comprehensive of all offered in Texas government — totaled more than $1.5 million, including more than $432,000 in emergency leave.

Paxton’s office, according to the report, entered into separation agreements with 27 employees during the period, costing more than $121,000 in emergency leave. Additionally, one employee received a one-time payment of $99,000. The agreements granted employees leave ranging from one to 107 days.

The General Land Office, which has seen a major overhaul under first-term Commissioner George P. Bush, signed separation agreements with 69 employees worth more than $1 million, but it did not classify any payouts as emergency leave, according to the auditor’s report. Twenty-six of those agreements — worth $390,000 — were lump-sum payments as part of a retirement incentive program.

The other agencies examined were the Department of Agriculture, Water Development Board, the Teachers Retirement System, the Department of Family and Protective Services and the Parks and Wildlife Department.

Lawmakers on Wednesday seemed to agree that the practice — in some form — was necessary to prevent aggrieved employees from suing the state, but they called for more transparency and more detailed language that would clarify when agencies can offer employees such deals.

“It’s a tool the state needs going forward,” said committee Chairman Rep. John Kuempel, R-Seguin. “It’s just a matter for us to clarify that definition.” 

“I see a purpose as well,” said Rep. Nicole Collier, D-Fort Worth.

Though Crawford, in Paxton’s office, and other agency officials insisted they followed the law in offering emergency leave to avoid lawsuits, Rep. Chris Turner, D-Grand Prairie, suggested otherwise.

He pointed to language in the Texas Administrative Code that says an agency leader can grant emergency leave “to an employee who the administrative head determines has shown good cause.” He questioned how agencies could interpret that as giving them permission to initiate an offer for such leave — rather than relying on the employee to show “good cause.” 

“The statute simply doesn’t allow emergency leave the way the agencies have used it,” Turner said in an interview. 

Turner said he understood the arguments for warding off lawsuits by temporarily keeping ex-employees on the payroll, but he wants more scrutiny over an issue that wasn’t fully probed at the hearing — requiring such employees to sign non-disclosure agreements as well that prohibit employees from talking about their work.

In August, the Dallas Morning News reported that a top lawyer in Paxton’s office, Martha Fitzwater Pigott, was placed on emergency leave and required to keep secret the details of a grievance. She was fired last year after raising concerns about a long-troubled effort to overhaul the agency’s child support system, the newspaper reported.  

“Of the [paid leave deals] we know of, I think the most disturbing one is in the Attorney General’s office, Turner told the Texas Tribune. “If there’s wrongdoing, we don’t need to create ways to silence whistleblowers.”

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Courts Criminal justice State government Attorney General's Office Ken Paxton Texas Legislature