Victoria Advocate to file open records complaint against Calhoun County

By Jessica Priest
Victoria Advocate
Originally published July 20, 2013 

A month after Calhoun County ended a law suit with a former employee, it still refuses to release the terms of the settlement.

The Victoria Advocate plans to file a complaint with the Texas Attorney General’s office seeking the terms under the Texas Public Information Act.

The Advocate first requested the settlement agreement on June 18 to shed light on how a federal employment discrimination case between Precinct 2 Commissioner Vern Lyssy and his former employee Amanda Guillen was resolved, including the amount of the settlement.

Guillen accused Lyssy of spying on her with a camera Lyssy set up in his computer speaker.

She also maintained Lyssy knew she used the office they shared to change clothes because the closest bathroom was too small and dirty, her attorneys said.

A recording of Guillen undressing was never found.

Guillen was fired after complaining, but Lyssy said he let her go because she never turned in her time clock punches.

Lyssy said the camera was used to ward off thieves.

The day after receiving the Advocate’s June 18 request, Calhoun County Judge Michael J. Pfeifer and Criminal District Attorney Dan Heard replied the county did not possess a copy of the settlement agreement.

Heard said the county paid a $10,000 deductible to its insurance company Hiscox, of New York, N.Y., shortly after the suit was filed. That money helped pay Neil E. Giles, the attorney hired by the insurance company to defend the case.

Hiscox did not release the settlement agreement to the county because it would then become an open record, Heard wrote in the letter.

The Advocate sent a second letter on July 3 disagreeing with this interpretation of the Texas Public Information Act after consulting with Jim Hemphill, an Austin attorney and board member of the Freedom of Information Foundation of Texas.

Hemphill said the county must reply within 10 days to either comply with the request or inform the Advocate it was going to the Attorney General’s Office for guidance.
Calhoun County did neither.

Heard said via email on Friday that is because the county does not have the settlement agreement.

“Since Calhoun County is not in actual nor constructive possession of the information that you seek, there is no reason for Calhoun County to ask for an Attorney General opinion to withhold information that is not in its possession,” he said.

Still, Hemphill said on Friday “if a governmental entity has a right to access to the documents held by a third party then those documents are subject to the Public Information Act.”

A trial started in April, but Federal Judge Gregg Costa declared a mistrial after Lyssy fainted on the witness stand.

On June 11, the parties settled the case during a conference before Magistrate Judge Nancy K. Johnson, of Houston.