Reimbursement of Legal Fees Memo

3/14/23 Commissioners Court

340.
Request for approval of payment of fees for legal services in the amount of $244,533.08 to Locke,
Lord, LLP for representation of a county employee in connection with certain legal proceedings.
23 1707
Take to Executive Session.

Link to RCA
Link to CONFIDENTIAL Backup

Recommendation: Approve

Motion: N/A, approve as is

Background:

Commissioner Ramsey flagged this item, likely to vote no.

See combined note for items 340, 423 and 424 below.

423.
Request for approval of payment of fees for legal services in the amount of $160,184.95 to Rusty
Hardin & Associates, LLP for representation of a county employee in connection with certain legal
proceedings.
23 1811
Take to Executive Session.

Link to RCA
Link to CONFIDENTIAL Backup

Recommendation: Approve

Motion: N/A, approve as is

Background:
See combined note for items 340, 423 and 424 below.

JLH Q&A:
Are these RE fees? I thought it was $450K. Why is it 160 here?
Both this item and item 424 below are for Commissioner Ellis’ fees. Combined, they total
$426,849.
● They are split into two different items because he sought legal representation from two
different firms and each item is to reimburse a different firm.

Please check in with GS

The memo has been shared with him and he is ready for the Monday briefing.

1
424.
Request for approval of payment of fees for legal services in the amount of $266,665.41 to
Feldman & Feldman for representation of a county employee in connection with certain legal
proceedings.
23 1812
Link to RCA
Link to CONFIDENTIAL Backup

CONFIDENTIAL & PRIVILEGED LEGAL ADVICE

The following note applies to items 340, 423, and 424, all of which pertain to reimbursement
of legal fees for County employees.

Take to Executive Session. Commissioner Ramsey has flagged all three of these items, likely
to ask a question or to vote no.

Recommendation: Approve

Motion: N/A, approve as is

Talking Points
[From GS]:
● While the County Attorney represents county employees on civil matters relating to their
official work, the County Attorney's office does not represent employees in criminal
investigations. An employee involved in any way in a criminal investigation needs to
have the protection of outside, independent legal advice. Furthermore, it's accepted
practice in both the public and private sector to reimburse employees for such legal
expenses. Otherwise, an investigator could drive people out of public service or private
employment simply by driving up their legal fees.
[From the 1/31/23 Court transcript]:
● These items are covering the legal fees of employees and elected officials who have had
to expend funds on criminal defense lawyers subject to investigations and other
proceedings and have been seen to have done nothing wrong. Obviously the reason is
covering the legal fees of employees that have done nothing wrong is common practice,
not just in the public sector, but also in the private sector. It is necessary, if you think
about it; any investigator could run people from public service just because they don't
like them.
● I think we can think of one who might not like some of us, just by running up their legal
fees. We don't want people going bankrupt just because they choose to serve the public
rather than serving themselves.
● We are seeing this kind of harassment in Harris County. In September of 2021, around
$20,000 or $30,000 were reimbursed to Jim Bethke, who was the head of the Justice
Administration Department. $21,500 of taxpayer money.
● He had failed to recommend an additional increase to the District Attorney's Office. He
left the county after this harassment. In 2020, Commissioner [Ellis], I'm just going to

2
 make it clear that during your re-election, you were then the victim of this kind of a
practice.
● I have no idea how much your legal fees are, but I hope you bring them back to Court.
There is now a criminal investigation into Cliff Tatum, our Election Administrator and
recent threats by the District Attorney to other public employees who are working in
public safety.
● I just want to make it very clear, for one, I am not scared of her. I have nothing to fear.
● These public officials and their staff are being subjected to extraordinary pressures
whether they are working for public health in the middle of a pandemic or working on
public safety, whatever it is, they are subjected to too many pressures in order to serve
as a political project for others.
● I don't think they should bear the burden of being somebody else's political project or
pay this monetary price because someone is on a political search and destroy mission.
Public service is demanding enough. And so I think it’s tragic and it is ridiculous that we
are having to refund $20,000, $200,000 plus. Let's wait and see how much is to come for
these other investigations because of somebody's political shenanigans.
● I just want to make sure the public is aware of that and I sure hope my colleagues will
support these reimbursements. So I am proud to second it, Commissioner.
[after Commissioners cast their votes]
● I am in favor, the motion carries 4-1 and that is over $200,000 that we didn't need to
spend.
● We are subsidizing a political campaign.

Background:
These three items request approval to use $671,383.44 in general funds to reimburse two Harris
County employees’ legal fees:
● Kathryn Kase: $244,533.08 to Locke Lord, LLP related to the Elevate Strategies
investigation (item 340)
● Commissioner Ellis: $160,184.95 to Rusty Hardin and Associates, LLP (item 423) and
$266,665.41 to Feldman and Feldman (item 424) related to both the Elevate Strategies
investigation and the 2020 investigation into Commissioner Ellis’ storage of a local
collector’s private art collection at a County warehouse.
○ In February 2020, then-County Attorney Vince Ryan requested the District
Attorney’s Public Corruption Unit open an investigation into Commissioner Ellis’
storage of the art collection (Houston Chronicle).
○ In October 2021, the investigation was concluded when a grand jury declined to
charge him with any crime (Houston Chronicle).
● According to the County Attorney’s Office, these expenses were incurred when the
employees were subpoenaed to testify in an investigation.
○ Now that their roles in the investigations are over, they are seeking reimbursement
for their legal counsel in accordance with the Harris County policy adopted by
Commissioners Court on 1/4/22 allowing employees to request reimbursement for
legal costs when participating in a criminal investigation in the context of their job

3
 if the employee has not been charged with a crime. See details on this policy
below.
● Judge Hidalgo has no conflict of interest under Local Gov’t Code chapters 171 or
81.

Summary of recent reimbursement items:

● On 1/31/23, Commissioners Court approved $133,730 in reimbursements, all related to
the Elevate Strategies investigation.
● On 2/21/23, reimbursement for Kathryn’s $244,533 in legal fees related to Elevate
Strategies were placed on the agenda, but the item was held at CAO’s recommendation.
● Now, $671,383.44 is requested today, including Kathryn’s $244,533.
○ Per CAO, it is okay for the Court to consider reimbursing Kathryn’s funds today
because they meet the legal requirements of the policy.
○ Nicole has confirmed CAO’s position on this ahead of the 3/14 CC.

From Kathryn:
● "This item seeks to obtain payment to Locke Lord LLP for my legal fees related to a
subpoena duces tecum that sought production of more than 25,000 pages of documents
to the grand jury and two appearances before the grand jury. The invoices with the
descriptions of the work are being provided to the CAO, as was done with the Jim Bethke
legal fees.
● Outside counsel was hired because the CAO advised me to do so and because this was
in connection with a potential criminal case.
● The amount of these legal fees are higher than those for other witnesses because:
a. I was under an order to produce;
b. The amount of documents that had to be produced was voluminous. More than
terabyte of information was searched and nearly 25,000 pages were produced;
c. I was required to appear twice before the grand jury;
d. There was an associated court hearing over whether some of the documents I
produced were protected by the attorney-client privilege. I was represented by
outside counsel at that hearing and the answer was yes as to most of them; and
e. The CAO advised me that whenever I received a PIA seeking Elevate-related
documents, I had to ask Locke Lord to send me relevant documents from its
discovery platform and that action incurred additional costs.”

2/21/23 Commissioners Court

521.
Request for approval of payment of fees for legal services in the amount of $244,533.08 to Locke,
Lord, LLP for representation of a county employee in connection with certain legal proceedings.
23-1391
If this item is flagged for discussion, it should be taken to Executive Session.

CONFIDENTIAL & PRIVILEGED LEGAL ADVICE

4
Link to RCA
Link to CONFIDENTIAL Backup

Recommendation: Approve

Motion: N/A, approve as is

Talking Points:
From the 1/31/23 Court transcript:
● These items are covering the legal fees of employees and elected officials who have had
to expend funds on criminal defense lawyers subject to investigations and other
proceedings and have been seen to have done nothing wrong. Obviously the reason is
covering the legal fees of employees that have done nothing wrong is common practice,
not just in the public sector, but also in the private sector. It is necessary, if you think
about it; any investigator could run people from public service just because they don't
like them.
● I think we can think of one who might not like some of us, just by running up their legal
fees. We don't want people going bankrupt just because they choose to serve the public
rather than serving themselves.
● We are seeing this kind of harassment in Harris County. In September of 2021, around
$20,000 or $30,000 were reimbursed to Jim Bethke, who was the head of the Justice
Administration Department. $21,500 of taxpayer money.
● He had failed to recommend an additional increase to the District Attorney's Office. He
left the county after this harassment. In 2020, Commissioner [Ellis], I'm just going to
make it clear that during your re-election, you were then the victim of this kind of a
practice.
● I have no idea how much your legal fees are, but I hope you bring them back to Court.
There is now a criminal investigation into Cliff Tatum, our Election Administrator and
recent threats by the District Attorney to other public employees who are working in
public safety.
● I just want to make it very clear, for one, I am not scared of her. I have nothing to fear.
● These public officials and their staff are being subjected to extraordinary pressures
whether they are working for public health in the middle of a pandemic or working on
public safety, whatever it is, they are subjected to too many pressures in order to serve
as a political project for others.
● I don't think they should bear the burden of being somebody else's political project or
pay this monetary price because someone is on a political search and destroy mission.
Public service is demanding enough. And so I think it’s tragic and it is ridiculous that we
are having to refund $20,000, $200,000 plus. Let's wait and see how much is to come for
these other investigations because of somebody's political shenanigans.
● I just want to make sure the public is aware of that and I sure hope my colleagues will
support these reimbursements. So I am proud to second it, Commissioner.
[after Commissioners cast their votes]

5
 ● I am in favor, the motion carries 4-1 and that is over $200,000 that we didn't need to
spend.
● We are subsidizing a political campaign.

Background:

Judge Hidalgo has no conflict of interest under Local Gov’t Code chapters 171 or 81.

This item requests approval to use general funds to reimburse CJO employee Kathryn Kase
for legal fees incurred during participation with the investigation regarding Harris County’s
contract with Elevate Strategies.
● Under a policy adopted by Commissioners Court on 1/4/22, Harris County employees may
request reimbursement for legal costs when participating in a criminal investigation in the
context of their job and if the employee has not been charged with a crime. See details on
this policy below.
● The total amount requested for reimbursement is $244,533 to legal firm Locke Lord,
LLP.
○ On 1/31/23, Commissioners Court approved $133,730 in reimbursements.
● These expenses were incurred when the employee was subpoenaed to testify in the
Elevate investigation and obtained their own defense counsel.
○ Now that their role in the investigation is over, they are seeking reimbursement for
their legal counsel in accordance with the County policy described below.
● Note: Commissioner Ellis also has legal fees he will be bringing to Court at some point.
However, they are not on the 2/21/23 agenda.

From Kathryn:
● "This item seeks to obtain payment to Locke Lord LLP for my legal fees related to a
subpoena duces tecum that sought production of more than 25,000 pages of documents
to the grand jury and two appearances before the grand jury. The invoices with the
descriptions of the work are being provided to the CAO, as was done with the Jim
Bethke legal fees.
● Outside counsel was hired because the CAO advised me to do so and because this was
in connection with a potential criminal case.
● The amount of these legal fees are higher than those for other witnesses because:
a. I was under an order to produce;
b. The amount of documents that had to be produced was voluminous. More than
terabyte of information was searched and nearly 25,000 pages were produced;
c. I was required to appear twice before the grand jury;
d. There was an associated court hearing over whether some of the documents I
produced were protected by the attorney-client privilege. I was represented by
outside counsel at that hearing and the answer was yes as to most of them; and
e. The CAO advised me that whenever I received a PIA seeking Elevate-related
documents, I had to ask Locke Lord to send me relevant documents from its
discovery platform and that action incurred additional costs.”

6
Q&A:
Should I discuss this at the press conference in the am? I feel like the more I bring it up
the more of a drumbeat/attention.
● We don’t recommend bringing this up at the morning press conference. It would be
unrelated to the presser’s topic of the apprenticeship program and distract from the
focus of highlighting a major investment in workforce resiliency in Harris County.
● Because the press conference weaves a story of building back stronger post-pandemic,
the messaging is aspirational and positive. Mentioning this would also shift to a more
negative tone.

1/31/23 Commissioners Court

367.
Request for approval of payment of fees for legal services in the amount of $3,500 to McClees
Law Firm, PLLC for representation of a county employee in connection with certain legal
proceedings.
23 0772
Link to CONFIDENTIAL Backup

368.
Request for approval of payment of fees for legal services in the amount of $46,194.30 to Rusty
Hardin and Associates, LLP, for representation of two county employees in connection with
certain legal proceedings.
23 0804
Link to CONFIDENTIAL Backup

369.
Request for approval of payment of fees for legal services in the amount of $84,036.12 to Khalil
Law PLLC for representation of two county employees in connection with certain legal
proceedings.
23 0742
Link to CONFIDENTIAL Backup

CONFIDENTIAL & PRIVILEGED LEGAL ADVICE

The following note applies to items 367, 368, and 369, all of which pertain to reimbursement
of legal fees for County employees subpoenaed in the Elevate Strategies investigation.

If any one of these items is flagged for discussion, it should be taken to Executive Session.

Judge Hidalgo has no conflict of interest under Local Gov’t Code chapters 171 or 81.
Texas law does not allow public officials to deliberate or vote on contracts in which they have a
direct or indirect monetary interest.
○ Local Gov’t Code chapter 171 prevents a County official from deliberating or voting on
a contract in which they have a “substantial interest”, defined as: (1) owning 10 percent or
more of the voting stock or shares of the business entity; (2) owning 10 percent or $15K

7
 or more of the fair market value of the business entity; or (3) receiving funds from the
business entity that exceed 10 percent of his or her gross income for the previous year.
○ Local Gov’t Code § 81.002 prohibits a County official from having a direct or indirect
interest – again defined as a monetary interest – in a contract with the county. Where the
public official has a monetary interest in the approval of a contract with the county, the
Local Gov’t Code requires the official to file an affidavit declaring the interest and not
deliberate or vote on the contract. However, where the public official will not benefit
financially from approval of the contract, the public official may deliberate and vote on the
contract.
○ Texas Penal Code § 36.02 prohibits a public official from voting, deliberating, or
recommending in favor of a contract in exchange for a monetary benefit or advantage.
Under section 36.01(3) of the Penal Code, a “benefit” is defined as “anything reasonably
regarded as pecuniary gain or advantage” to the public official or to any other person in
whose welfare the official has a direct and substantial interest, such as a family member
or business associate.

Therefore, a public official may deliberate, recommend, and vote in favor of a contract as long as:
(1) the public official will not directly or indirectly benefit financially from approval of the contract,
and (2) a person in whose welfare the public official has a direct and substantial interest will not
benefit financially, in the contract.

About the Items:

These three items request approval to use general funds to reimburse several Harris County
employees, including Commissioner Garcia, for legal fees incurred during participation with the
investigation regarding Harris County’s contract with Elevate Strategies.
● Under a policy adopted by Commissioners Court on 1/4/22, Harris County employees may
request reimbursement for legal costs when participating in a criminal investigation in the
context of their job and if the employee has not been charged with a crime. See details on
this policy below.
● The total amount requested for reimbursement is $133,730.42. Each request is as
follows:
○ Item 367: $3,500 to McClees Law Firm, PLLC for representation of Senior
Assistant County Attorney Manasi Tahiliani;
○ Item 368: $46,194.30 to Rusty Hardin and Associates, LLP for representation of
Commissioner Garcia and a second unidentified employee (only Commissioner
Garcia is named in the backup); and
○ Item 369: $84,036.12 to Khalil Law, PLLC for representation of Dave Berry and his
Deputy Chief of Staff, Traci Buttram.
● According to the County Attorney’s Office, these expenses were incurred when the
employees were subpoenaed to testify in the Elevate investigation and obtained their own
defense counsel.
○ Now that their roles in the investigation are over, they are seeking reimbursement
for their legal counsel in accordance with the County policy described below.

About the Legal Fees Reimbursement Policy:

Harris County officials and employees are allowed to seek payment by Commissioners Court of
reasonable legal fees and expenses for responding to a criminal investigation when:

8
 1. The investigation relates to or concerns the bona fide performance of the
official’s/employee’s job duties with the County; and
2. The investigating agency has announced that the investigation has concluded, or if the
investigation’s status has not been made public, it can be reasonably inferred that the
investigation has concluded; and
3. The official or employee has not been charged with a crime; or
4. Where the official or employee is charged with a crime at the conclusion of the
investigation, the official or employee may apply for reimbursement of investigation-related
legal fees and expenses only where:
a. The prosecution concluded in the trial court; and
b. The official or employee received a not guilty verdict, or the case has otherwise
been dismissed.
i. Guilty or nolo contendere (no contest) pleas, a probation sentence, or
deferred adjudication are specified as disqualifying reimbursement of legal
fees and expenses because none of these resolutions are equivalent to an
outright case dismissal or a not guilty verdict.

Submission of Payment Application

Officials and employees who meet the above criteria must contact the First Assistant Harris
County Attorneys, who will:
1. Confirm that prerequisites for consideration of payment have been met;
2. Obtain appropriate documentation (including copies of all legal bills for which the
official/employee seeks payment); and
3. Add the request for payment to the agenda for a regularly scheduled meeting of
Commissioners Court.

How Reasonableness Will Be Determined

The proposed policy leaves the determination of reasonableness to the Commissioner Court’s
discretion. It does not specify a dollar range for the determination of a “reasonable” legal fee nor
list acceptable expenses. The Policy also does not provide criteria for how the Court can
determine whether legal fees and expenses are “reasonable.”

Typically, when the winning party in civil litigation is entitled to seek legal fees, that party must
provide the Court with:

1. Evidence of: (a) particular services performed, (b) who performed those services, (c) when
the services were performed, (d) the reasonable amount of time required to perform the
services, and (e) the reasonable hourly rate for each person performing such services;
2. The prevailing market rate in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation; and
3. Evidence that the fees and expenses sought were reasonable and necessary for the
specific legal representation.

Similar showings must be made by court-appointed counsel in complex criminal cases when
seeking legal fees above caps imposed by trial courts. The proposed Policy does not specifically
bar utilization of these criteria and methods to assist Commissioners Court in making its
determination of reasonableness. However, it is recommended that the Judge consider
asking the County Attorney to include these or similar criteria to aid the Court in
determining reasonableness.