As the Central Texas towns of Round Rock, Cedar Park and even Georgetown tout new designations as some of the state’s safest places, a lawsuit filed by two former Williamson County employees in a U.S. District Court, Kimberly Lee and Sharon McGuyer v. Williamson County, indicates the county courthouse as another safe zone for those seemingly deemed in a “protected class” like former County Court at Law No. 3 Judge Don Higginbotham. Besides detailing alleged sexual harassment and other profane behavior by Higginbotham, the court document describes county officials appearing complicit in protecting Higginbotham while violating employees’ civil rights. While the filing and other case-related documents suggest Williamson County’s “haven of safety” created a situation adverse to the interests of certain county employees, closer analysis seems to also indicate a disregard for the interests of taxpayers and generates reasonable concern as to the level of judicial integrity to which litigants or other parties are subjected in Williamson County “Justice Center” courtrooms.
The Austin Bulldog has written about the lawsuit and ongoing dissension between Williamson County Judge Dan Gattis, Sr. and County Attorney Jana Duty which appears closely tied to the Higginbotham issue. In an article Federal Lawsuit Alleges Verbal Abuse, Sexual Harassment, and Retaliation, the lawsuit is fully detailed. Williamson County Attorney Steps Up Investigation of Improper Payments covers the actions of key county officials including potential unauthorized use of taxpayer funds to finance Higginbotham’s legal representation and District Attorney John Bradley’s claim of a joint investigation into potential wrongdoing by Judge Gattis and other officials in the Higginbotham matter – claims which, per The Austin Bulldog, the Texas Rangers, the Travis County District Attorney’s Public Integrity Unit and the Attorney General’s office reportedly either denied or refused to confirm.
At EstateofDenial.com, we follow the increasing use of probate venues and probate instruments (wills, trusts, guardianships, powers of attorney) to loot assets of the dead, disabled and incapacitated. These Involuntary Redistribution of Assets (IRA) actions, usually perpetrated by disgruntled family members, wannabe heirs and/or unscrupulous attorneys, often involve an outright diversion of assets from intended heirs/beneficiaries or else incorporate a contrived estate dispute which generates billable legal hours and other administrative/litigation-related expenses designed to deplete estate resources and functionally achieve the looting intent. Because estate theft is rarely treated as a criminal action, targeted families seeking justice are relegated into the pay-to-play civil legal system. County-based courts like that of former Judge Higginbotham and his peers are a common venue for adjudication of such cases thus making accusations involving potential corruption and misconduct of special interest for those who view the probate system and its surrounding culture as an important public policy issue.
Three main components attracted EstateofDenial.com to this case. First, “good ol’ boy” networks entrenched in self-serving county governments often either participate or “turn a blind eye” to abusive probate actions. The lawsuit portrays plaintiffs Lee and McGuyer being victimized as county officials’ put forth a seemingly protectionist attitude with regard to Higginbotham’s actions. Such impropriety rarely occurs in isolation and as it often reflects an overall culture, this case and its associated individuals become of greater interest. Second, as home to the state’s largest retiree population, Williamson County is a prime target for IRA actions. Such a community, including local governmental entities, should act in good faith and work to protect interests of taxpayers, residents and other related parties by demanding honest, ethical officials who respect the rule of law, their constituents and co-workers opposed to those who are professionally and morally compromised, verbally abusive and profane. And third, as former Judge Don Higginbotham presided over probate and other civil dispute cases, one has to wonder how the lack of personal judgment and disregard for societal norms that prompted this lawsuit may also have manifested itself in the courtroom. The filing cites instances of suggestive comments about prosecutors and other court-related personnel. A party involved in a legal case – often at great personal expense – shouldn’t have to worry about a judge’s bad behavior potentially impacting court proceedings. The role of judges in questionable probate cases is coming under increased scrutiny. This case seems to demonstrate the wisdom of such examination.
Upon reviewing the complaint, certain points individually and in totality provide an interesting overview. The presumption of innocence is always important, but as this court document details numerous witnesses and locales, Higginbotham’s alleged harassing and abusive behavior appears to have occurred quite openly. His reportedly addressing the issue not once, but twice with involved parties seemingly speaks to commission of the acts not being in dispute. Instead, the issue appears more a case, for both Higginbotham and other Williamson County officials, that creation and maintenance of a hostile and discriminatory work environment was condoned and even supported – not condemned.
- The acts of abuse/harassment detailed took place routinely in the presence of numerous named witnesses and in both county offices and courtrooms. Higginbotham was said to have “had a pattern and practice of discriminatory, hostile and harassing actions, comments and behaviors, which escalated in October 2009.” (5.1.6) Lee and McGuyer first approached Lisa Zirckle of the Williamson County Human Resources Department on Dec. 22, 2009. (5.1.13) From “Well, I can’t cut the mustard anymore, But I could sure lick the jar!” upon discussing the attire of a prosecutor (5.1.4) to “They would break the springs of his car,” when asked if the plaintiffs had ridden in a new vehicle purchased by Higginbotham (5.1.3), documented remarks were suggestive and sometimes oriented to physical characteristics. “Shut up bitch!” (5.1.11) and “You are nothing but a bunch of fu**ing pukes, nothing but a bunch of go**amn fu**ing pukes!” (5.1.9) are but a few of the other examples listed.
- At a second meeting with Zirckle, Lee and McGuyer were allegedly told a written statement wouldn’t be necessary – it might become subject to Freedom of Information Act requests – so an outside attorney, Steve Mierl, would take notes that would be kept confidential as would the source of the complaints. (5.1.14-5.1.15)
- Shortly thereafter, County Judge Dan Gattis is said to have decided an “intervention” that included another outside attorney, Mike Davis, was an appropriate, official response due to the two men having a long-standing friendship with Higginbotham. (5.1.16) Davis is also at the center of an alleged “unauthorized” billing controversy upon his charging the county Commissioners Court (i.e., Williamson County taxpayers) for Higginbotham’s legal representation.
- Despite the two employees being told by Williamson County Human Resources that notes of their complaints (taken by attorney Steve Mierl) would remain confidential, Mike Davis allegedly showed up in employees’ work area openly questioning witnesses to the alleged abuse while flashing notes written on letterhead of Mierl, the Wilco HR-hired attorney. (5.1.17-5.1.18)
- Upon being called back to Zirckle’s office to meet with County Attorney Jana Duty and Hank Prejean, another attorney from the Wilco County Attorney’s Office, Lee and McGuyer were reportedly told the county had no control over Davis and his “open investigation” of Higginbotham’s conduct despite Davis’ actions being viewed by some as an intimidation tactic. (5.1.19)
- After Zirckle contacted Lee saying Judge Gattis had instructed her to offer reprimanding Higginbotham to which Lee replied “the damage had been done with the way they had handled the situation,” Higginbotham reportedly came into the office and apologized to a group of employees saying “that he was depressed and is now on medication and was all-better.” The filing says “Judge Higginbotham apologized to everyone else, but did not speak to Plaintiffs.” (5.1.20)
- When Lee and McGuyer were then summoned by Lisa Zirkle to meet with Jana Duty, Steve Mierl, Hank Prejean and Mike Davis, the women attended the meeting and informed the group they had hired an attorney who asked that the meeting be rescheduled to facilitate his attendance. At the meeting, per the filing, “Jana Duty came in and said, ‘Let me give y’all a hug. I’m glad y’all finally came forward. I don’t know how y’all have put up with this abuse this long.’ Plaintiffs informed them that they had hired an attorney and that he said to reschedule this meeting for a time that he could be present as well and to give his contact information. Jana said, ‘Okay, I don’t blame y’all. Would it work if we could move y’all to another court?’ Plaintiffs told Ms. Duty that she would need to talk to their attorney.” (5.1.21)
- On Jan. 11, 2010, about three weeks after the initial complaint, the court document indicates County Attorney Jana Duty provided Lee and McGuyer with a letter stating “if they did not hire an attorney and give her one week to correct the situation that she would have affidavits drawn up by women who she named in the letter stating that they had also been abused by Judge Higginbotham and/or had witnessed his behavior. The letter also stated that the affidavits would be delivered to Judge Higginbotham through his attorney Mr. Davis and Judge Higginbotham would be informed that he had until Friday at 5:00 p.m. to tell her when he would be retiring or she would hand deliver the affidavits to the Judicial Board of Ethics and Conduct and then go to the press with the information.” (5.1.22)
- Upon Lee and McGuyer evidently agreeing to this course of action, the filing indicates Higginbotham once again acknowledged his behavior as he “called Amanda Vega and Plaintiffs Lee and McGuyer into his office and apologized for his behavior towards said that he would still be retiring, but that he would like to stay until after the primaries, because it would be a smoother transition. He stated that he would be taking a lot of time off until his retirement date and that he was taking medication now and that he had just been under stress due to some deaths of friends and family.” (5.1.23)
- Two days later, Lee claims that two local attorneys, Ed Walsh and Brenda Rhea, had a meeting with Higginbotham during which she overheard the judge tell how Lee and McGuyer made allegations against him so he would lose his retirement. Per the filing, “Judge Higginbotham knew while making these statements that these statements were untrue. Judge Higginbotham has continued to defame Plaintiffs’ character by telling this to various attorneys throughout the community to try to gain sympathy and to sabotage us from being able to maintain our employment until retirement.” (5.1.24)
- During scheduled vacation for a week in mid-March, Kimberly Lee is said to have had a visiting court reporter scheduled for a March 15-17 jury trial. Though the visiting court reporter was subsequently cancelled by the court coordinator due to technical problems associated with video for the jury trial, per the filing, “Judge Higginbotham told the other judges including district judges, that he had to cancel his jury trial for Wednesday March 17, 2010 due to the fact that Plaintiff Lee did not show up for work.” (5.1.25)
Lee and McGuyer’s lawsuit claims that even after filing a charge with the Texas Workforce Commission – Civil Rights Division and the EEOC on March 30, 2010, Higginbotham continued acts of hostile discrimination and harassing behavior plus retaliated against the women by holding meetings in the courtroom with his attorney, Mike Davis, to address claims and by taking employees on the witness list out to lunch. (5.1.26-5.1.27-5.1.28-5.1.29)
The plaintiffs further claim that “Employees who had spoken with the Judge would call and yell and scream and ask Plaintiffs how they could put the Judge through this,” (5.1.30) while other employees give them the silent treatment. (5.1.31) Through these and prior issues, including Mike Davis coming to the courtroom and staying when he has no court business (5.1.32), Lee and McGuyer claim Williamson County Human Resources “wholly failed to follow up with Plaintiffs regarding their complaint.” (5.1.34)
They additionally maintain that Judge Higginbotham’s discriminatory and retaliatory behavior was witnessed by Judges Tim Wright, County Court at Law No. 2, John McMaster, County Court at Law No. 4, and Burt Carnes, 368th Judicial District Court, along with County Attorney Jana Duty. (5.1.37)
And despite being told by the incoming judge, Doug Arnold, that he intended to keep Lee and McGuyer along with court administrator Amanda “Mandy” Vega on staff, all three women were terminated the day after Lee and McGuyer received federal notice of their right to sue.
Don Higginbotham is reported on two different occasions to have made statements to targets and/or witnesses acknowledging his inappropriate behavior. Williamson County Attorney Jana Duty offered to prepare affidavits documenting women – other than Kimberly Lee and Sharon McGuyer – who had either been abused or had witnessed abuse by Higginbotham. (5.1.22) In offering to also go to the press and, although a benign entity, the State Commission on Judicial Conduct, Duty seemed in no way to doubt Higginbotham’s guilt. County Judge Gattis sanctioned a private intervention among friends as an appropriate official response for violation of federal laws – laws for which compliance requires little more than basic human decency. And what of Judges Wright, McMaster and Carnes? If they had no problem with Higginbotham’s conduct, that certainly gives insight to Williamson County standards of judicial temperament and integrity. The apparent openness and widespread knowledge of this situation is troubling.
At EstateofDenial.com, we’re big believers in the 10th Amendment, state sovereignty and non-reliance on the federal government. We view many lawsuits with suspicion as too often they are nothing more than a legalized extortion effort. Experience and anecdotal accounts support Williamson County’s reputation for applying their own rules, and as recent rules seem to have included it being okay for some “bubba” to bully and make life a living hell for a couple of relatively defenseless employees while everyone else, including those in positions of authority, apparently sat around to watch, maybe a federal lawsuit is in order!
And what about taxpayers? A situation like this is a major distraction in a workplace. For those of us who expect our tax dollars to be used efficiently, judiciously and respectfully, it’s time for accountability regarding how this unlawful situation was knowingly allowed to continue. Taxpayers deserve to know the full costs of Don Higginbotham’s public service. Let’s also not forget the former judge’s retirement – the one, per court papers, he was so concerned that Lee and McGuyer were attempting to sabotage – will be an expense for years to come! And even worse, the message that officials of a taxpayer-funded entity elected to not impose significant consequences on known misconduct will only embolden similar behavior and portend additional taxpayer expense for the future.
Those having been subjected to legal actions in County Court at Law No. 3 have additionally been betrayed. Higginbotham is reported to have twice in front of witnesses blamed his misconduct on depression (for which he then claimed to be on medication) and “being under stress due to some deaths of friends and family.” (5.1.20-5.1.23) How then does the county justify leaving an obviously troubled individual on the bench to potentially inflict additional bad judgment on those coming before his court? Judges enjoy commanding respect from those before them, but should the public not have confidence that sitting judges are competent and of a sound state of mind opposed to individuals with no apparent respect for social norms or the rule of law? It’s also fair to assert that public interests were further dismissed if in fact Higginbotham’s judicial peers were aware of the inappropriate and unlawful behavior yet chose to take no action.
This is an issue that Williamson County undoubtedly wishes would go away. An official engaging in open misconduct that is overtly harmful to others in his midst should not be tolerated. Neither should officials or other bureaucrats who allow such behavior. And when financial consequences for these breaches of duties fall on the shoulders of taxpayers, those taxpayers have a right to demand corrective action and receive a respectful, honest response. Per The Austin Bulldog, a group of residents and taxpayers have filed a complaint with County Attorney Jana Duty asking for an investigation of the potentially unauthorized payment to attorney Mike Davis for legal services rendered to Higginbotham. Other individuals or groups – regardless of political affiliation – will hopefully also demand transparency and accountability with this issue.
It’s easy to rail on Washington or the state government as irresponsible and unresponsive, but remember – good government starts at home and will only exist when We the People stay engaged in the process.