Although judicial precedent has upheld the right of legislative bodies to censure members, in 2018 the HCC Board of Trustees voted to censure Trustee Dave Wilson for what he argues is core political speech protected under the First Amendment.
In filings for Houston Community College System v. David Buren Wilson, attorneys for Wilson acknowledge that official censures are a proper response to “slander, true threats, incitements to insurrection, and non-expressive conduct,” as well as illegal behavior. The HCC censure, however, stated that Wilson was being disciplined in part for his use of “public media to criticize other Board members for taking positions that differ from his own.”
The official censure cited Wilson for giving an interview with a local radio station in which he identified board members who voted in favor of a transaction he opposed. He is also cited for filing lawsuits against the college.
The HCC censure action is unusual because it not only sought to express disapproval of Wilson but added several punishments: banning Wilson from running for board offices, blocking his access to his trustee spending account, and prohibiting his ability to obtain reimbursements for college-related travel.
More significantly, the censure also ordered Wilson to “cease and desist” or face the threat of “further disciplinary action by the board.”
“The issue now pending before the Supreme Court is whether the school board had the authority to punish Wilson for the exercise of his First Amendment rights,” Keith Gross, the attorney representing Wilson told The Texan.
Attorneys for HCC argue that the board is within its rights to censure and that Wilson himself is not protected from criticism, but Gross points out that the board acted as a government entity that sought to retaliate against an individual for exercising his free speech.
“When it comes to the act of individual trustees everybody’s equal,” said Gross. “But when you’ve got eight other trustees who get together and sign a joint resolution, that resolution becomes the act of HCC, a government entity that has power.”
The HCC petition asserts that the censure is an expression of “government speech” and should also be entitled to First Amendment protections as well as legislative immunity, but Gross argued, and a U.S. Fifth Circuit Court of Appeals panel agreed, that legislative immunity protects individuals and not the governing bodies on which they serve. Therefore the censure, carrying a threat of retaliation, was an act of HCC, not individual members of the board.
Elected to the HCC Board in 2013, Wilson frequently drew the ire of his fellow trustees by publicly denouncing controversial board votes, hiring private investigators, and filing suit to address allegedly illegal actions on the part of the board.
In one instance, Wilson alleges the board violated their own bylaws by allowing a trustee to vote from a remote location. After he filed suit over the issue, the board then met in executive session, but excluded Wilson although he was still an elected member of the body.
Wilson added his exclusion from the board proceedings to his lawsuit, arguing that it “prohibited him from performing his core functions as a trustee, deprived him of his right of freedom of association, and deprived the people of District 2 their right to representation.”
In their censure, the board claimed that Wilson’s lawsuit over the matter “demonstrated a lack of respect for the Board’s collective decision-making process” and forced the college to pay legal fees to fight his lawsuit.
The HCC Board also objected to Wilson’s hiring of independent investigators in 2017 as demonstrating a “lack of respect for the Board’s collective decision-making process.”
In 2017, HCC Trustee Christopher Oliver pled guilty to federal bribery charges and was sentenced to prison, giving credence to Wilson’s frequent warnings that the college’s vendor selection process needed oversight.
In response, HCC Chancellor Cesar Maldonado appointed two local attorneys to investigate the college’s vendor and employee selection process, but Wilson held a press conference to inform the public that Maldonado’s chosen investigators included former trustee Gene Locke whose law firm performed work for HCC, and attorney Vidal Martinez who had donated to Oliver’s political campaign and held fundraisers for another trustee.
Saying the chancellor’s choice of investigators was like “the fox watching the henhouse,” Wilson hired two private investigators at his own expense.
Wilson had also hired investigators to ascertain whether another board member resided in her district.
While Wilson initially filed suit over the censure action in a state district court, since he alleged civil rights violations, the case was moved to federal court.
Judge Kenneth Hoyt of the U.S. Southern District of Texas dismissed the case in which Wilson sought $10,000 for “mental anguish,” $10,000 for punitive damages, and reasonable attorney’s fees. Hoyt’s ruling said that Wilson had not demonstrated injury and therefore lacked standing.
On appeal, a three-judge panel of the Fifth Circuit in April of 2020 agreed to a partial dismissal of Wilson’s claims since he was no longer a trustee after losing his 2019 election bid, but the panel affirmed his standing to sue for First Amendment violations.
HCC attorneys then requested an en banc hearing of the entire Fifth Circuit, but the court denied the request with five judges in dissent, leading to the appeal to the Supreme Court.
The Texas Association of School Boards (TASB) filed an amicus brief in support of HCC, arguing that a censure does not prevent a board member from speaking out and “does not punish a board member for using his or her voice.” In Wilson’s case, the censure does proscribe punishment and seeks to deter him from speaking in the future. TASB however, has expressed concern that a ruling for Wilson will intrude on the ability of elected school boards to self-govern and express their own views.
In addition to the suit pending before the Supreme Court, Wilson has another lawsuit filed in 2019 against HCC for the purchase of a 24-acre property in Katy, Texas which lies outside of the college’s existing taxing jurisdiction. The lawsuit alleges that HCC did not publish the required public notice 60 days prior to purchase, and that five trustees violated Open Meetings laws by meeting to discuss the matter without posting public notices. That suit is still pending in local courts.
SCOTUS is expected to hear the constitutional case during Fall 2021.
Both Wilson and Gross have expressed confidence they will be successful in the case.
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Holly Hansen is a freelance writer living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.