The state’s hiring of Gavra Flood last spring seems rather unremarkable at first glance. The Health and Human Services Commission (HHSC) needed an attorney who specialized in contract law. Flood, who analyzed contracts for Bank One in Dallas, appears qualified. It turns out, however, that Flood also happens to be the wife of the agency’s inspector general. That raises the potential for glaring conflicts of interest between one of HHSC’s attorneys and its internal watchdog.
Gov. Rick Perry appointed Brian Flood HHSC inspector general last October. His office monitors the agency and investigates wrongdoing in all departments. In March, HHSC General Counsel Steve Aragon decided he desperately needed to hire an attorney to advise agency officials about contracting with private companies. (HHSC is ramping up the privatization of state programs under the social services overhaul passed during the last regular legislative session.) And, as luck would have it, Gavra Flood had just moved to Austin.
Agency documents, obtained by the Observer through the Texas Open Records Act, reveal that Aragon exchanged a number of emails with Brian Flood about the possibility of hiring his wife. “I have some potentially good news,” Aragon wrote to Brian Flood on March 22. A week later, Aragon sent Commissioner Albert Hawkins a memo asking for permission to bypass the state’s job-advertising requirements and hire Flood immediately without a candidate search. After detailing Gavra Flood’s skills and work experience, the agency’s general counsel wrote, “I will accept responsibility to ensure and guard [sic] any conflict of interest or appearance of impropriety. . . . Ms. Flood will not be assigned any responsibilities relating to contracts, or cases of the Office of Inspector General.”
Hawkins approved the request. The $65,000-a-year government opening was never posted publicly, and Aragon promptly hired Gavra Flood after one interview. In contrast, thousands of other state workers ensnared in HHSC’s reorganization haven’t been as fortunate. In June, for instance, HHSC advised nearly 70 human resources workers that their jobs would be opened to new applicants and they would have to reapply for their own positions.
HHSC lacks a nepotism policy. Texas law, however, stipulates that no state worker at any agency can supervise or have any “personnel responsibility” for a close relative. Gavra Flood’s hiring appears safely within that boundary since the Floods work in separate departments of a massive bureaucracy, but the situation seems rife with potential conflicts. State contracts with private companies often come under scrutiny from inspectors general offices, so it’s likely that eventually Brian Flood’s office will probe work involving his wife.
In a phone interview, Aragon defended Gavra Flood’s hiring as a rare opportunity to add an attorney who has experience with contracting in the private sector. He said that filling the public position without even posting the job wasn’t ideal, but the HHSC overhaul left his office desperate for more full-time help. “I had folks who were dropping like flies they were working so hard,” he said. “I wanted to get them some help right away.”
The agency’s general counsel conceded that employing Gavra Flood created the “potential” for conflicts of interest, but he expects those will be avoided. “I didn’t do this lightly,” Aragon said. “I will do everything that I can to ensure that we don’t have an irrevocable conflict. We’re definitely concerned and want to make sure we don’t create even the appearance of that.” But Aragon also admitted he can do only so much. He doesn’t always know what the inspector general is investigating, so it’s incumbent on the Floods to recuse themselves from any conflicts.
With that in mind, it’s worth noting that three weeks after Gavra Flood started working at HHSC, according to agency documents, Aragon emailed his staff, including Flood, a notice about an upcoming legal seminar. The subject: “Ethics training for government lawyers.”
Tiger Tussle Turning?
Greenpeace USA had a giddy week of successes in late May, but it will likely take stronger forces to sway its chief corporate foe, ExxonMobil. On May 19, U.S. District Judge Adalberto Jordan granted Greenpeace’s motion for dismissal in a controversial case brought against the activist group by U.S. Attorney General John Ashcroft. It all began on April 12, 2002, when two Greenpeace activists boarded the 965-foot APL Jade as it approached the Port of Miami. The ship carried in its hold 70 tons of mahogany cut from the Brazilian rain forest. Once on board, the activists unfurled a banner that read “President Bush stop illegal logging.” As is customary with such actions, the activists involved pleaded no contest to misdemeanors and were sentenced to time served and fined $500.
A year later, the Justice Department went after the organization, wielding a federal maritime statute from 1872 that was designed to prevent brothel owners from boarding ships in port to entice sailors to their establishments. The law prohibiting “sailor-mongering” had only been used twice and more than a century ago on both occasions. Nonetheless, a U.S. attorney in Miami convinced a grand jury to indict Greenpeace under the statute. Shortly after the government presented its case in May, however, Judge Jordan abruptly ended the trial, contending that the boarding occurred six miles from the Port of Miami, too far to apply under the statute’s language that the ship must be “about to arrive” in port.
Exactly a week later, on May 26, Greenpeace activists returned to Texas, where they are defending themselves in court against ExxonMobil over a direct action at the company’s Irving headquarters (see “Tiger Tussle,” April 23, 2004). That case stems from a worldwide campaign launched by Greenpeace to brand ExxonMobil as the corporate face of global warming. The group regularly castigates the company both for its efforts to debunk the science that proves climate change is underway (www.exxonsecrets.org) and for its unwillingness, as the largest oil company in the world, to embrace renewable energy (www.dontbuyexxonmobil.com). As part of this effort, teams of Greenpeace activists broke into the oil giant’s Irving headquarters dressed as cartoon tigers on May 27, 2003. ExxonMobil—likely embarrassed by the ease with which the tigers infiltrated its headquarters—went after Greenpeace with a vengeance. The company obtained from a Texas court an unprecedented nationwide restraining order against the environmental group. The ruling has already withstood several appeals. (As the Observer went to press, a Greenpeace lawyer filed a petition for review with the Texas Supreme Court.) ExxonMobil is also proceeding with its civil lawsuit against Greenpeace for damages.
Undeterred by ExxonMobil’s legal muscle, Greenpeace returned to Dallas County the night before the company’s annual shareholder meeting on May 27, 2004. Experimenting with a new form of protest, Greenpeace members projected 100-foot images of the devastation caused by global warming on the side of the Morton Meyerson Symphony Center, where shareholders were scheduled to meet the next day. The following morning, the activists took the show to Irving, where they projected it on a building across from ExxonMobil’s headquarters. As the Greenpeace caravan drove around the company’s headquarters, it was tailed by 40 watchful Irving policemen, according to one participant. At the shareholders meeting, ExxonMobil Chairman and CEO Lee Raymond promised that oil and gas “will predominate in the world throughout the middle of this century.” Shareholders then voted down a number of progressive resolutions, including one on global warming.
A month later, state Sen. Gonzalo Barrientos (D-Austin) drafted a letter to the company asking that it drop its lawsuit against Greenpeace. “I worry that by taking an unusually aggressive and creative approach through the courts…you may risk setting some dangerous legal precedents with respect to peaceful protest and the exercise of free speech, and that such precedents would not be limited to the facts of your case.” Sixteen Democratic state representatives also signed the letter. Frank Snow, ExxonMobil’s vice president for safety, health and environment, provided a quick and telling response by letter to the legislators.
Snow argued that the actions of the nonviolent, tiger-clad activists were far from peaceful because they caused “severe anxiety” to company employees and minor property destruction. “From my personal observation, I was not sure that the people crossing our lawn, forcing their way into our offices and onto the roof, were protestors, not terrorists,” he wrote.
Snow also recast accepted American civil liberties, arguing that because Greenpeace is not oppressed, it should not be afforded the “right of non-violent protest.” Snow concluded, “Greenpeace breaks laws not because its members are subject to unjust laws, but because Greenpeace has failed by democratic means to get its way.”
Putting aside the fact that ExxonMobil’s current pull in Washington, D.C., is not the result of “democratic means”—if the U.S. Supreme Court had not thrown the election to George W. Bush, the nation would most likely already be a signatory of the Kyoto accord on global warming—Snow’s comment reinforces the point that the company won’t change its ways until a new administration forces it to do so.
Dignity and Dollars!
Texas isn’t exactly known as a progressive innovator when it comes to welfare programs. On the contrary, in recent years state lawmakers have excelled at crafting creative and especially mean-spirited ways to cut poor people off government programs. For once, though, the Lone Star State has created a section of the safety net that other states are emulating. Since 2001, the state’s health and human service agencies have nurtured an initiative that allows thousands of elderly and disabled patients on Medicaid to leave nursing homes for the residence of their choice.
In most states, elderly and disabled people on Medicaid are forced to remain in nursing homes to receive government assistance. If they leave the homes, they lose their federal and state Medicaid funds. Such rigid policies leave vulnerable citizens and their families with few alternatives.
In 2001, Texas tried something new. A rider to the appropriations bill during the 2001 legislative session stipulated that if Medicaid recipients chose to leave a nursing home for community-based care, their government benefits would follow them. Officials with the Department of Human Services (DHS) said Texas was the first state in the nation to implement such a flexible program (Missouri, Ohio, and Mississippi have since taken similar approaches). Lawmakers reauthorized the rider in 2003—one of the 78th Legislature’s very few progressive acts.
During the last three years, DHS caseworkers have worked to inform nursing home residents of their new options. Nearly 3,500 of the poorest, most vulnerable Texans have taken advantage of those options. They can leave nursing homes for several permitted living arrangements, including living with family, on their own with nursing assistance, or in another community facility of their choice. Granting needy Texans the freedom to decide the best place to live is the program’s greatest benefit, said DHS spokesman Michael Jones. “It’s about people having choice and dignity,” he said. “That’s a choice any adult would want to make for themselves.”