Senator: New report underscores need to clarify emergency leave law

Nearly 160,000 state employees — if not more — took about 3.4 million hours of  “emergency leave” last year for reasons other than the death of a family member, the typical definition of the practice.

That’s according to a report issued Friday by the State Auditor’s Office, which painted a clearer picture of how often Texas agencies grant employees emergency leave for vague reasons that have sparked criticism.

The report, which covered the 2015 fiscal year, examined practices at 86 agencies, including at least 66 that granted leave for “good cause” rather than a family death. It found that agencies have interpreted the legal definition of emergency leave very differently, and poorly track how often they grant it. 

The analysis comes as state lawmakers are closely scrutinizing such leave practices, following news reports detailing how departing employees were granted “emergency leave” or offered other types of separation payments — an effort in some cases to prevent lawsuits.

"The State Auditor's report underscores the need to clarify the law," Sen. Jane Nelson, R-Flower Mound, said in a statement. "Emergency leave should be reserved for true emergencies and I will file legislation to address this next session."

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.

Family deaths accounted for far fewer emergency leave hours than "good cause" did during the 2015 fiscal year, according to the report. Seventy-three agencies granted about 347,000 emergency leave hours to about 14,700 employees for family deaths.

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.”

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

Officials at several agencies have defended current practices, calling emergency leave a tool that can discourage dismissed employees from filing costly lawsuits. Some lawmakers have expressed sympathy for that argument.  

The prevalence of emergency leave may be even greater than the auditor’s top line numbers, Friday’s report said, because agencies poorly track it. They use inconsistent accounting codes and multiple accounting systems.

As a result, the report could not estimate the total price tag of the use of emergency leave.

The report also found that agencies “have made varying interpretations of statutory authority for granting emergency leave for good cause.”

And it concluded that 20 agencies appear to have misclassified nearly 320,000 “administrative leave” hours.

The audit recommended that lawmakers clarify the definitions of emergency and administrative leave, and require standardized recordkeeping at state agencies. 

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

Texas Attorney General Ken 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.

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.  

In an interview last month, Rep. Chris Turner, D-Grand Prairie, said such practices appear to violate Texas law. 

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.” Turner 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.” 

Read more Tribune coverage of this issue:

• Texas Attorney General Ken Paxton’s office and four other agencies faced questions at a legislative about granting departing employees “emergency leave” as a form of separation payment.
• Lawmakers peppered policy experts with questions about whether state agencies who keep departing employees on the state payroll by placing them on "emergency leave" violated state law, during a hearing.
  
• Gov. Greg Abbott and Comptroller Glenn Hegar ordered state agencies to stop paying departing employees by placing them on "emergency leave."