Collin County vs. Auditor: Who won? Who lost?

by Bill Baumbach of The Collin County Observer

It was on April 8, 2008 that Don Cozad, the Collin County Auditor asked the Texas Attorney General to rule whether the auditor had the right to access county computer software for auditing purposes. A year later, on April 28, 2009 the Auditor and the County Commissioners have signed a settlement.

What year its been getting to a settlement!

Background: The issue of access by the auditor's office had been long simmering since the county installed the PeopleSoft program to run all of its HR and payroll functions. After being frustrated by roadblocks to read-only data access thrown up by the commissioners and other elected department heads, the Auditor, with the consent of the District Judges, asked County District Attorney John Roach for a written opinion on the question.

DA Roach declined to issue an opinion and suggested that Cozad take the matter to the Attorney General. He did, and the county commissioners filed suit in district court to stop the AG from ruling. The auditor filed a counter suit and then also filed suit as an individual against the commissioners.

The commissioners then refused to pay the auditor's legal bills.

After much legal gymnastics, visiting Judge Jerry Calhoun denied the county's request for a trial and ruled in a summary judgment for the Auditor on all counts. The county filed a new law suit, this time asking for a trial to prohibit the auditor from accessing computer software without prior permission from the county. Once again, Judge Calhoun refused the county a trial and ruled in favor of Cozad. The county then appealed.

After losing in court twice, the commissioners asked Rep. Jerry Madden to file a bill in the Texas Legislature that would limit the rights of the auditor to inspect computer software. The bill was roundly criticized in committee and will not survive to a vote.

At this point, with the chances of a successful appeal doubtful, it seemed that the commissioners court would have to come to some sort of agreement with Cozad.

With the signing of the final settlement who really did win?

The settlement or Memorandum of Understanding (MOU) between the Auditor and commissioners requires that the county pay Mr. Cozad's attorneys, Siebman, Reynolds, Burg, Phillips & Smith, $150,000. With the estimated cost of the county's own legal bills from Gardere Wynne Sewell at over $200,000, it seems that the lawyers could certainly count themselves among the winners.

In the MOU, the commissioners promise that Cozad would be able to gain read-only access to the PeopleSoft program, and to any software "owned, operated, and/or in the custody/custodian control of Commissioner's Court departments."

The restriction to "Commissioner's Court departments" could be an issue in the future. In her testimony before the Texas House County Affairs Committee in March, Caren Skipworth, the county's IT director, testified that some departments under elected officials controls had refused read-only access to the auditor. Skipworth specifically mentioned the District Attorney's office and the Tax Assessor-Collector.

The MOU between the commissioners and Cozad could be read as to exclude these departments from the agreement, although sources who are familiar with the MOU have told me that they expect no such challenges. The MOU also does not address access to the Odyssey system, which many believe was the real issue behind the commissioner's lawsuits. (I have heard rumors that Tyler Technologies has upgraded much of Odyssey to allow for an auditor's portal.)

As a result of the agreement, Don Cozad gets all his legal bills paid without having to wait for a lengthy appeals process. In the end, he gave up virtually nothing and did get just about all he asked for. Cozad is a winner here. He wants to retire. Now he can, and with the assurance that he will not take a huge personal financial hit as a result of these lawsuits.

Collin County got off the hook on its lawsuit. The Commissioners negotiated an inexpensive software package (the same ACL software the auditor asked the court to authorize on two separate occasions, but was refused) that the auditor will use for read-only access to their large software systems instead of requiring major and expensive modifications.

However, now that Cozad is retiring, the County will have a difficult time recruiting a top-notch replacement auditor. After all, what seasoned professional wants to go to work for an employer who tried to financially ruin his predecessor?

In the end, it is the Taxpayers of Collin County who are the big losers. They paid well over $350,000 to litigate a law suit that the Texas Attorney General could have decided for free.

Postscript: In this uncertain financial environment, I hope but do not expect that our elected Commissioners Court will accept the responsibility for their actions and repay the taxpayers the money that was frivolously spent pursuing these disastrous lawsuits against the taxpayers' auditor.

Budget planning for FY 2010 has already started. It will take a $70,000 salary cut by the County Judge and each of the 4 commissioners to pay back the taxpayers for the court's recklessness.