Judge ‘throws shade’ at no-shows

TH Nameplates Cutline:

Nameplates for Sheriff Keith Merritt, County Attorney John Kimbrough and Assistant County Attorney Doug Manning sit next to Orange County Commissioner Jody Crump at Monday’s town hall at the Orange County Expo Center.

The sheriff and attorneys didn’t attend.

By Dave Rogers

For The Record

Perhaps they smelled an ambush.

The five members of Orange County’s Commissioners’ Court — County Judge Stephen Brint Carlton and commissioners Johnny Trahan, Barry Burton, John Gothia and Jody Crump — showed up Monday evening to rehash a long-running federal court case that cost the county and its taxpayers more than $3.5 million.

But the men to whom those five were looking for most of the answers — Sheriff Keith Merritt, County Attorney John Kimbrough and Assistant County Attorney Doug Manning — were no-shows at the Town Hall at the Orange County Expo Center.

About 50 people sat in the audience and listened.

And, in case anyone forgot who was missing from the 75-minute forum, nameplates for Merritt, Kimbrough and Manning sat at the end of a long dais in front of a single chair and Crump’s attache bag.

For more than two months Carlton had said the town hall would examine the events immediately leading up to and since Oct. 12, 2011, when Robert Montano died of renal failure after four and a half days in an observation cell at the Orange County Jail. It would explain the decision-making process through the loss on appeals and a final payment of $3.2 million to the dead man’s family and legal representatives.

And, Carlton said, it would reveal the changes that had been made to avoid similar tragedies.

But often Monday night, citizens questions went unanswered.

“Unfortunately, we don’t have a member of the Sheriff’s Office or District Attorney’s Office to tell us what they’ve done,” Carlton said.

While the sheriff and the attorneys did RSVP their regrets in the form of a “Joint Statement” sent to news representatives earlier Monday, it was left to Carlton to deliver words that Orange County citizens were hoping to hear.

“I am totally against a tax increase to pay for something like this,” he said. “We did this to ourselves. This is not the taxpayers’ problem.”

But Carlton — who revealed Monday the county had also paid $375,000 in legal fees to an outside firm to help with its unsuccessful appeals — warned he was “speaking for myself, not for the court.”

He said the county spent 41 percent of its estimated fund balance for 2017 to pay the lawsuit judgment and needed to replace that money.

“There will be more very, very tough decisions that will come,” Carlton said. “I’d like to see us get that money over time by a reduction in expenditures.”

The statement by Merritt and Kimbrough said, …”not withstanding the fact that we have very good answers [for expected questions], we cannot legally or ethically attend a public meeting and discuss those issues.”

The statement said the two offices (sheriff and county attorney) could not participate because of attorney-client privilege and the rules of the Texas Open Meetings Act concerning discussions in closed session.

Carlton explained to one questioner that as elected officials, the county judge and commissioners, the county attorney and sheriff had no power over one another. They were not beholden to any bosses other than the voters every four years.

New commissioners Trahan and Gothia only joined the court in January, after the decision was made not to appeal the Fifth Circuit Court of Appeals decision to the Supreme Court.

But Burton and Crump backed Carlton when he cited bad legal advice from Manning and pointed to a lack of oversight by Kimbrough.

Those three said Kimbrough never joined them for any closed session discussions of the case nor communicated with them about the case. Crump pointed out that he’d been on the court since 2011, and never heard from Kimbrough about the case.

Carlton said out-of-court settlements were discussed that would have cost the county “substantially less than what the final outcome was.”

But the county judge said Manning urged against them; he was confident in the county’s case.

Carlton, Burton and Crump talked Monday of how Manning based the county’s appeal on the concept of “deliberate indifference.”

Commissioners decided to appeal the original $1.5 million judgment “based on [Manning’s] explanation of what the law was in the Fifth Circuit, which turned out to be incorrect.”

And, Carlton said Monday, commissioners later learned the Fifth Circuit had abandoned that concept back in 1996.

On appeal, the Fifth Circuit cited Manning’s comment in closing arguments that “the death is on our hands” in reinstating a $900,000 “wrongful death” award for negligence that the trial judge had stripped from the jury’s awards.

“That’s a very, very expensive phrase to say,” Carlton said of Manning’s admission at trial. “Basically, the county, at the Fifth Circuit level, got the worst possible outcome that could have come from that.”

Carlton’s Monday overview of the case, which included a generous reading of the Fifth Circuit’s November, 2016, opinion harped on constantly changing testimony by defense witnesses.

Joseph Beadle of Orange rose from the audience to state: “If I were to cost my company $3 million, I wouldn’t have a job. Do you have any information why they’re still employed?”

Carlton answered that “It is my understanding that no one lost their job because of this incident and the two employees who were disciplined are still employed by Orange County to this day.”

For their part, commissioners purchased in 2015 a liability policy through the Texas Association of Counties that will cover up to $3 million in lawsuit damages.

Carlton, Crump and Burton said they were warned soon after their elections during a mandated training session to be sure that the county had liability insurance to cover jail lawsuits.

Crump says he was advised in 2011 that the county had the insurance. But it wasn’t until after Carlton and Burton joined the court in 2015 that it was discovered the county had been self-insuring.

“That works great if you don’t have a big loss,” Carlton said.

The county judge said investigation showed the county had been self-insuring for at least 20 years.

And the Montano case went to trail within weeks of Carlton and Burton joining Crump on court. Carlton admitted he didn’t follow the Beaumont federal trial closely; he said the commissioners’ court was relying on feedback and alerts from Merritt and Manning that never came.

“Most of the information [about the case] in the Fifth Circuit ruling was a shock to me,” Carlton said.

The Record Newspapers reached out Tuesday to Merritt and Kimbrough to respond to Monday's Town Hall Meeting, but there was no reply.

“Is there a communication problem between Commissioners’ Court and the Sheriff’s Office and District Attorney?” one person in the crowd asked.

Carlton said “there had not been much of a problem with communication until this latest incident occurred on Friday,” referring to a suicide by a jail inmate in a holding cell.

The judge and all the commissioners said they found out about the incident via Facebook.

“I had been informed when these types of incidents occurred, but not this one,” Carlton said. “I don’t know if all their time was spent on that issue, or on coming up with reasons why they could not be here this evening.”