Sat 8 Oct, 2005 11:42 am
Fired for Comment in Rove Article, Texas Attorney Explores Legal Options
Mary Alice Robbins, Texas Lawyer
Elizabeth Reyes' employment as a staff attorney at the Texas Secretary of State's Office was cut short last month. Three days after The Washington Post quoted Reyes in a Sept. 3 article about White House deputy chief of staff Karl Rove, the 30-year-old attorney found herself out of a job.
What was Reyes' alleged violation? She had answered a reporter's questions about whether rental property Rove owns in Kerr County, Texas, qualifies him to register to vote in that county.
Reyes says she didn't know the person asking questions was a reporter and she didn't know that the reporter was asking about Rove. In a correction published on Sept. 10, The Washington Post acknowledged that the reporter never asked about Rove by name. But Gabe Escobar, the newspaper's city editor, says the reporter did identify herself to Reyes.
But after Rove called Texas Secretary of State Roger Williams, Reyes was terminated.
Williams, a Gov. Rick Perry appointee who has served as secretary of state since January, confirms (that Rove called him after The Washington Post published the article.
"He and I are friends," Williams says of Rove.
But Williams says Rove did not ask that Reyes be terminated but wanted to know whether what was said in the Post article was the Secretary of State's Office's stance on Rove's voter registration in Kerr County. "I told him the lady [Reyes] had no authority to speak," Williams says.
According to the article, Rove is registered to vote in Kerr County, where he and his wife own rental cottages. The article quotes Reyes as saying that the rental property in question "doesn't sound like a residence to me, because it's not a fixed place of habitation." The article also quotes Reyes as saying that a county prosecutor can come after someone for voter fraud for registering to vote in a place where he doesn't live.
Under the written press policy at the Secretary of State's Office, all media calls concerning any controversial matter or any question involving an opinion, interpretation or statement of policy should be directed to the office's communications director. [See the policy.]
Williams says a decision was made that Reyes had violated office policy. "Policy is policy; we all have to adhere to policy," he says.
It remains unclear, however, whether the office has enforced that policy uniformly in the past. Three former employees of the office, who request anonymity, say the policy was not enforced.
After Texas Lawyer filed a public information request asking whether the office had terminated anyone in the past for violating the press policy, Trey Trainor, the secretary of state's general counsel, responded in an e-mail: "[A]fter a search of our records, we have not identified any documents which would be responsive to your request."
Matt Holder of David Van Os & Associates in San Antonio, an attorney whom Reyes has consulted about her legal options, did not return a telephone call seeking comment before presstime on Sept. 29. Neither did director of elections Ann McGeehan and deputy secretary H.S. "Buddy" Garcia. Human resources director Delissa Keeling declines comment.
Texas Lawyer sought answers to its questions about what happened to Reyes by going to the source. Reyes agreed to an interview only if questions were e-mailed to her and she replied via e-mail. The interview appears below, edited for length and style.
TEXAS LAWYER: How long were you employed by the Secretary of State's Office? The State Bar of Texas site indicates you graduated from law school in May 2003 and have been licensed in Texas since December of that year. Is that correct?
ELIZABETH REYES: I was employed with the Secretary of State's Office from May 23, 2005, to Sept. 6, 2005, so I worked there for over three months. I graduated from law school in May 2003, passed the July bar exam and was licensed in November 2003.
TEXAS LAWYER: Can you confirm that you were terminated by the Secretary of State's Office and that the termination was because of the alleged violation of the office's press policy? Who actually terminated you? What was said?
REYES: I was allegedly terminated by the Secretary of State's Office for "a violation of Section III F of the agency Policies and Procedures Manual." That policy is titled Press Calls/Relations. Ann McGeehan, director of elections, is the individual who informed me that I was terminated as a result of the article.
The morning of Sept. 6, McGeehan came to my office to discuss the article. I gave her my version of events and she asked that I write an e-mail to Trey Trainor, general counsel, about the matter. She then left my office. Seconds later she returned and indicated that I should take down a [Lyndon Baines] Johnson bumper sticker and a picture postcard of President Johnson that I had on my bulletin board. I took them down in her presence and told her that they were a gift from another attorney in the office who had just visited the LBJ library. She told me that she realized that some individuals like historical items but that it was best to stay out of politics, especially in such a critical upcoming election year. I told her that I believed Secretary of State Roger Williams had seen the bumper sticker and postcard that were in my office on Aug. 31, 2005, when he visited our offices. She seemed concerned. [Editor's note: Trainor says the agency has a policy that prohibits the display of "political paraphernalia" in offices. The secretary of state and the deputy secretary of state determine what constitutes political paraphernalia, Trainor says. Asked if pictures of presidents George Washington, Abraham Lincoln or Teddy Roosevelt would be considered political, Trainor says, "I don't know." Williams adds, "If [Reyes] had a bumper sticker in her office, I think that would probably go against policy." A bumper sticker would probably fall under the policy, whether the individual named on the bumper sticker is dead or alive, he says.]
At about 4:45 p.m. on Sept. 6, McGeehan informed [me] that she needed to see me in her office. When I arrived in her office, she told me that Executive [Division] had decided to terminate me. Immediately, I told her that I wanted to discuss the matter because I had done nothing wrong. She told me that Executive had received my e-mail and were aware of my position but had made the decision. She informed me that she was not told of their decision until a few minutes ago and that she had nothing to do with the decision. She also said that she and my immediate supervisor were very happy with the work I had done in the office. She stated I could use her as a reference.
I insisted on speaking to someone about the matter who could overturn the decision. McGeehan told me I could call the deputy secretary [H.S. "Buddy" Garcia] from her phone. She told me he would very likely pick up the phone thinking it was her and I could speak to him directly. I did so. We went back and forth for about two or three minutes, with me insisting on a meeting with him. He stated that I needed to talk to the HR representative first about how to appeal the termination and the call ended.
After I hung up the phone, the HR person, Delissa Keeling, processed my termination. I asked her for the reason of my termination and she said it was for violating the press policy. She showed me the press policy. I asked if I could keep the copy of it and she agreed. I asked her for information about the appeal process. Keeling told me that I could write a letter but she cautioned me that she had never seen a termination decision overturned. She did not give me a copy of the grievance policy at this time.
TEXAS LAWYER: What, in your understanding, constitutes routine questions under that policy? Did you consider the questions posed by The Washington Post reporter to be routine? Did you know that the person who was asking the questions was a reporter? The reporter says she did identify herself as a reporter.
REYES: The definition of a "routine question" is not clearly identified in the press policy. However, I would define questions about residency for voting purposes to be a routine question because it is one that we have historically provided a response to on the phone, in writing and in election law seminars and it is a question that we have authority to respond to since it is defined in the Election Code and the Secretary of State's Office has interpretive authority of election laws.
I did not know that the individual I spoke to was a reporter. She may have given me her name but she never said she was a reporter, a member of the press, an employee of the Washington Post or anything like that. I know that [Lori] Montgomery insists that she identified herself but I completely disagree with that contention.
I had no idea that I was identified in any articles until a family member read the article in the San Antonio Express News and mentioned it to my mother who brought it to my attention on Sunday afternoon [Sept. 4]. At that point, I still had no idea what the article could be about until I paged through a copy of the Sunday edition of the San Antonio Express News and found my name in an article concerning Karl Rove's homestead and residency issues. I did not know that the article was in The Washington Post until the director of elections made me aware of that when she talked to me about the article on Tuesday morning. I had several calls on residency the day Montgomery called, which I believe to be Friday, Sept. 2, 2005, a day before the article was printed in The Washington Post. I recall getting several different calls on residency that day.
Generally, all calls are answered by the receptionists. They attempt to help the caller but if it is a legal question, they route it to the attorneys that are "on phones" that day.
TEXAS LAWYER: Had you answered similar questions in the past without first checking with the communications director? To your knowledge, had other lawyers in the Elections Division handled these types of questions without first going through the communications director?
REYES: Yes, I have answered questions about residency in the past without checking with the communications director. Other lawyers in the Elections Division have answered residency questions without going through the communications director. This is a very common question for us from concerned citizens, candidates and election officials. During our election law seminars to election officials, the Legal Division discusses residency and takes residency questions directly from the audience without the presence or the advice of the communications director.
TEXAS LAWYER: To your knowledge, has anyone previously been disciplined for a violation of the press policy?
TEXAS LAWYER: I read in one news report that you had sent a certified letter requesting the termination action to be reconsidered. When did you send the letter? Have you received a response?
REYES: I sent an e-mail the day after my termination. I sent a letter by certified mail on Sept. 9 to the deputy secretary of state. I hand delivered a second letter on Sept. 13. I included copies of The Washington Post fc and my appeal letter dated Sept. 9 with the Sept. 13 letter. I faxed another letter and documents on Sept. 26. I have not received a response.
TEXAS LAWYER: Is there any type of grievance process at the Secretary of State's Office? If so, were you given a chance to access it? I'm trying to find out whether you received due process.
REYES: I received a copy of the employee grievance policy on or about Sept. 12 along with a letter from the director of elections. In the letter, she informed me that neither she nor my immediate supervisor had the authority to overturn the termination decision and that I would need to appeal directly to the deputy secretary of state, Buddy Garcia. I had already sent an appeal letter to him but I hand delivered another letter on Sept. 13 indicating that the letter dated Sept. 9 was intended to be my second written grievance pursuant to the grievance policy and included the letter from McGeehan and The Washington Post correction as attachments. [Editor's note: Trainor says Garcia made the final determination about Reyes on Sept. 26. "The determination was made not to reinstate her," Trainor says.]
TEXAS LAWYER: Do you plan to file a wrongful-termination suit (or another type of action)? Do you have a lawyer?
REYES: Matt Holder of David Van Os & Associates in San Antonio is advising me on this matter. We are currently exploring my legal options.
We don't put up with that free speech crap in Texas.
This is an example of the general attitude Rove projects that has him in such hot water. He may loose his power to push people around any second.
They've had a long time to co-ordinate stories, to remove bits of paper and hard-drive contents, to get spies into Fitzgerald's office and, of course, they have access to some of the slickest lawyers kicking about in DC. Hopefully, they've behaved badly enough and unethically enough to really piss Fitzgerald off. And hopefully, they've made the sort of mistakes that prideful, greedy, pathological types commonly make.
Sorry, but any lawyer working in a law firm, let alone a lawyer for a governmental agency, knows that press requests must be handled by a press relations official or some other kind of specifically designated spokesman. If the reporter told Reyes that he was a reporter seeking information for publication, Reyes was wrong to give out that information herself.
That's a wonderful quote from Daley!