FILED

DALLAS COUNTY
3/31/2016 3:34:57 PM
FELICIA PITRE
DISTRICT CLERK
Anna Negrete

DC-16-03750
CAUSE NO. _______________

IN RE: DALLAS POLICE AND FIRE

PENSION SYSTEM

IN THE DISTRICT COURT OF

DALLAS COUNTY, TEXAS

_____ JUDICIAL DISTRICT

VERIFIED RULE 202 PETITION TO TAKE DEPOSITIONS

Philip T. Kingston (Kingston) files this Verified Rule 202 Petition to Take Depositions
and would respectfully show the Court as follows:
1.

Kingston seeks to investigate potential claims against the Dallas Police and Fire

Pension System (Pension System) and potential claims the Pension System may seek to assert
against him.
I.
IDENTIFICATION OF PARTIES
2.

Petitioner Kingston is a Dallas resident, a Dallas City Council member, and on the Board

of Trustees of the Pension System.

3.

The Dallas Police and Fire Pension System has its principal place of business at 4100 Harry

Hines Boulevard, Suite 100, Dallas, Texas 75219, and its telephone number is (214) 638-3863.
4.

Pursuant to Rule 202.2(f)(1), the following persons are expected to have interests adverse

to Petitioner: Pension System Board Chairman Lt. Samuel Friar, executive director Kelly
Gottschalk, general counsel Joshua Mond, and Vice Chaiman Lee Kleinman. Each may be reached
through the Pension System at the address and telephone number above. Additionally, Steven C.
Sandborg, managing director of sales and operations at Museum Tower, 1918 N. Olive Street,
Dallas, TX 75201, (214) 954-1234, is expected to have an adverse interest.

VERIFIED RULE 202 PETITION

PAGE 1

5.

Venue is proper in this Court under Rule 202 because the witnesses reside or have their

principal place of business in Dallas County. Tex. R. Civ. P. 202.2(b)(2).

II.
BACKGROUND
6.

The Pension System is a governmental pension fund established by the State of Texas in

1933 that provides pension and related benefits to its members who are firefighters and police
officers employed by the City of Dallas. The benefits are funded by contributions from members
and the City of Dallas, along with investment earnings. The Pension System holds various
investments, including Museum Tower, a 42-story residential tower located in downtown Dallas.
Due to past performance, the Pension System is also engaged in major financial restructuring that
could include a change to the cost-of-living adjustment (COLA) members receive.
7.

Kingston is a Dallas City Council member appointed to the Pension Systems Board of

Trustees by Dallas Mayor Mike Rawlings. As a trustee, Kingston is charged with adequately
representing the interest of plan participants and their beneficiaries and defraying reasonable
expenses of administering the system, yet Kingston and other trustees have not received the
information and documents from the Pension System necessary to fully carry out their
responsibilities.
8.

On March 13, 2016, Kingston appeared in an interview broadcast on WFAA-TV, during

which the subjects of the Museum Tower and the COLA were raised, among other issues.
Kingston answered questions put to him by the programs host during the 4-minute interview.
9.

At a Pension System Board meeting on March 24, Board Chairman Lt. Samuel Friar raised

the possibility of censuring Kingston for his comments. Because Friar failed to adequately notice
the issue, however, the measure was moved to a special meeting set for April 1.

VERIFIED RULE 202 PETITION

PAGE 2

10.

On March 25, Kingston wrote Pension System executive director Kelly Gottschalk, general

counsel Joshua Mond, and Friar asking for 15 categories of documents relevant to his duties as a
trustee and the potential censure. Kingston attached a copy of the relevant Texas Attorney General
Opinion KP-0021,which states that a member of a governing body has an inherent right of access
to the records of that body when requested in the members official capacity and for the members
performance of official duties. Kingston also requested a public hearing and deliberation
pursuant to the Texas Open Meetings Act.
11.

Late on March 29, 2016, Kingston finally received a cherry-picked selection of redacted

documents responsive to certain categories of his requests.

Some categories were denied

altogether, and Chairman Friar said he was withholding sales contracts, sales data, names of
brokers, prospects or anything else that is sensitive from Kingstons review.
12.

The documents indicate that the Board will discuss the potential violation of fiduciary

duties by Kingston. The documents also indicate that the Board will be asked to choose between
four options at its April 1 meeting: 1) do nothing, 2) vote to censure Kingston, 3) request a public
apology on television with Kingston reading from a script preapproved by the Board, or 4) request
Kingstons resignation from the Board.
13.

On March 30, 2016, Kingston, through his attorney, sent a letter to Chairman Friar

demanding that the issue be taken off the agenda until the Pension System complies with Texas
law regarding notice requirements for the meeting and providing requested information (attached
hereto as Exhibit A). To date, there has been no response.
III.
SUBSTANCE OF, AND REASON FOR SEEKING, THE PENSION SYSTEMS
TESTIMONY
14.

Kingston seeks to investigate potential claims against the Pension System for violations of

Texas law as it has refused his requests for documents necessary to adequately represent the
VERIFIED RULE 202 PETITION

PAGE 3

interest of plan participants and their beneficiaries. Kingston further seeks to investigate potential
claims the Pension System may seek to assert against him for breach of fiduciary duty and business
disparagement. Rule 202 depositions are governed by the rules applicable to depositions of
nonparties in a pending suit. Tex. R. Civ. P. 202.5. Thus, Kingston seeks production of
documents or tangible things and deposition testimony under Tex. R. Civ. P. 205.1(c). See also
In re Woodlands Country Club, No. 09-07-352-CV, 2007 WL 2493497 *1-2 (Tex. App.
Beaumont September 6, 2007, no pet.) (allowing reasonable requests for production).
15.

Kingston seeks deposition testimony from the Pension System regarding:

a. Information wrongly withheld from trustees;
b. Efforts by trustees to censure Kingston or force him to resign;
c. Any evidence of potential breaches of fiduciary duty or business disparagement by
Kingston or other trustees;
d. Sales data and other financial information relevant to any breach of fiduciary duty
claim, including detailed information on any claimed lost sales;.

16.

In addition, Kingston requests production of the following documents and things from the

Pension System:
a. Unredacted copies of sales contracts, sales data, names of brokers, prospects or
anything else that is sensitive that are responsive to Kingstons March 25 document
requests;
b. All documents and communications regarding the effort to censure Kingston or force
him to resign; and
c. A copy of the Pension Systems directors and officers liability (D&O policy).
III.
THE BENEFIT OF ALLOWING THE DEPOSITIONS OUTWEIGHS THE BURDEN OR
EXPENSE OF THE PROCEDURE
17.

The benefit of this discovery is it will allow Kingston to investigate whether the Pension

System has violated its duty under Texas law to fully and adequately provide records necessary for

VERIFIED RULE 202 PETITION

PAGE 4

trustees to perform their official duties and whether it has any actionable claims against him for breach
of fiduciary duty or business disparagement.
18.

As noted, Kingston has repeatedly requested the documents necessary to perform his duties

as a Pension Board trustee, but has been repeatedly denied the information. Kingston has also,
through his attorney, sent a letter to Chairman Friar demanding, among other things, that the
Pension System provide the documents he requested. Kingston has attempted to resolve these
issues in good faith prior to filing this Rule 202 Petition.
19.

Finally, without this Rule 202 discovery, Kingston would be forced to file a suit based on the

facts he has already uncovered and seek discovery in order to fully investigate potential claims. This
potentially wastes not only Kingstons time and resources, but that of the Pension System as well.
Thus the burden of a narrowly tailored deposition and document production is low when compared
to the benefits. Kingston has sought to utilize less burdensome and expensive procedures to resolve
these issues, and the Pension System has not cooperated. Accordingly, Kingston is forced to seek a
Rule 202 pre-suit deposition of the Pension System in order to investigate the parties potential claims.
IV.
PRAYER
20.

For these reasons, Philip Kingston respectfully prays that the Court set a date for hearing

on this petition, and after the hearing enter an order: (1) authorizing him to take the deposition of
the corporate representative of the Dallas Police and Fire Pension System and (2) ordering the
Pension System to produce the documents and things requested herein.

VERIFIED RULE 202 PETITION

PAGE 5

Dated: March 31, 2016

Respectfully submitted,

James M. Stanton
State Bar No. 24037542
stanton@stantontrialfirm.com
Sean W. Kelly
State Bar No. 24065550
skelly@stantontrialfirm.com
STANTON LAW FIRM PC
9400 North Central Expressway
Ste. 1304
Dallas, Texas 75231
Telephone: (972) 233-2300
Facsimile: (972) 692-6812
ATTORNEYS FOR PETITIONER

VERIFIED RULE 202 PETITION

PAGE 6

Exhibit A

STANTON LAW FIRM PC

JAMES M. STANTON

FORMER STATE DISTRICT JUDGE

BOARD CERTIFIED - CIVIL TRIAL LAW
TEXAS BOARD OF LEGAL SPECIALIZATION

Stanton@StantonTrialFirm.com

March 30, 2016

Via electronic mail: sfriar@dpfp.org
Lieutenant Samuel Friar
Chairman, Dallas Police & Fire Pension System Board of Trustees
4100 Harry Hines Boulevard, Suite 100
Dallas, Texas 75219
Dear Lieutenant Friar:
I represent Pension Board trustee Philip Kingston; please direct all future
communication regarding this matter to me. I write regarding the special Pension
Board meeting you have scheduled for this Friday, April 1, 2016, where you intend
to discuss certain media statements by Mr. Kingston and trustees rights to
investment information. Until you comply with Texas law regarding notice
requirements for the meeting and providing requested information to Mr. Kingston
and the other trustees, the topics should be removed from the agenda. As referenced
in your March 23, 2016, E-mail message with Kelly Gottschalk and Steven
Sandborg, Mr. Kingston is entitled to see all the [g]reat ammunition you plan to
fire at him at the right time during the meeting.
First, you have withheld, in violation of Texas law, information from Mr.
Kingston and the other trustees. As you know, Mr. Kingston requested certain
documents ahead of this meeting and has not been provided with a complete
response. Specifically, you are withholding sales contracts, sales data, names of
brokers, prospects or anything else that is sensitive from Mr. Kingstons review. I
refer you to Texas Attorney General Opinion KP-0021 (a copy of which is attached
to this letter), which states that a member of a governing body has an inherent right
of access to the records of that body when requested in the members official
capacity and for the members performance of official duties. By this letter, I am
demanding to receive unredacted copies of all documents withheld from his request
in order to comply with his responsibilities as a trustee of the Board by noon
tomorrow, March 31, or Mr. Kingston will seek judicial process to obtain the
documents he needs to adequately represent the interest of plan participants and their
beneficiaries. I believe that necessary information has been withheld from Mr.

Kingston and other trustees, revealing a continuing and troubling lack of

transparency by the Pension System.
Second, yesterday you provided written accusations that you believe Mr.
Kingston may have violated his fiduciary duty by making certain statements to the
media. Even though such suggestion is little more than a disagreement over the
Boards investment direction, the fact you put such an assertion in writing makes it
necessary to request a current copy of the Pension Systems directors and officers
liability insurance policy (D&O policy) ahead of Fridays meeting. Please send a
copy to me by noon tomorrow.
Finally, I ask that you please notify Joshua Mond that he, as general counsel
of the Pension System, has a fiduciary duty to the Board, not to individual trustees.
To the extent he seeks to represent the interest of one trustee over another, he is
disqualified in this matter. Please also ensure that all communications including, but
not limited to, phone records, electronic mail, text messages, voicemail messages,
and meeting notes are preserved in accordance with Texas law, and please
immediately notify all Board trustees, the Boards staff and the Boards counsel of
this request to preserve evidence.
Sincerely,

James M. Stanton
Enclosure
cc: Joshua Mond, jmond@dpfp.org

9400 N CENTRAL EXPRESSWAY | SUITE 1304 | DALLAS, TX 75231 | D: (972) 233-2301 | F: (972) 692-6812
_______________________________________________________

WWW.STANTONTRIALFIRM.COM

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 12, 2015

Mr. Wallace Hall

Member, Board of Regents
The University of Texas System
Ashbel Smith Hall, Suite 820
201 West 7th Street
Austin, Texas 78701

Opinion No. KP-0021

Re: Authority of the University of Texas
System Board of Regents to prohibit a regent
from accessing records in the possession of
the University (RQ-0020-KP)

Dear Mr. Hall:

You ask two questions related to the authority of the University of Texas System ("the
System") Board of Regents ("the Board") and the Chancellor of the System to prohibit a regent
from obtaining documents in the possession of the University. 1 Before we address these
substantive questions, we must address a procedural question raised by the System and the Board.
The System and the Board suggest that "[a]n individual Regent is not authorized to seek an opinion
of the Attorney General in his official capacity without the consent of the Board." System Brief
at 2. In subsection 402.042(b) of the Government Code, the Legislature has authorized specific
individuals who may request an opinion from the attorney general, including, among others:
"(1) the governor; (2) the head of a department of state government; (3) a head or board of a penal
institution; (4) a head or board of an eleemosynary institution; ( 5) the head of a state board; [and]
(6) a regent or trustee of a state educational institution." TEX. Gov'T CODE ANN. 402.042(b)
(West 2013). Pursuant to this language, in most instances a single member that is not the head of
a multi-member board is not authorized to seek an opinion of the attorney general individually.
The plain language of subsection 402.042(b)(6), however, does not create such limitations with
regard to state educational institutions. 2 See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500,
1

See Letter from Bill Aleshire, Counsel to Wallace Hall, Regent, Univ. of Tex. Sys., to Honorable Ken
Paxton, Tex. Att'y Gen. at I (Apr. 20, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinionrqs. After the System and the Board suggested that a regent may not ask for an attorney general opinion through
private counsel, you submitted an identical letter directly requesting the opinion in your capacity as a regent. Letter
from Wallace L. Hall, Regent, Univ. of Tex. Sys., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 6, 2015),
https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). See Letter from Daniel
H. Sharphom, Vice Chancellor and Gen. Counsel, Univ. of Tex. Sys., and Francie A. Frederick, Gen. Counsel to the
Bd. of Regents, Univ. of Tex. Sys., to Honorable Ken Paxton, Tex. Att'y Gen. at 2-3 (May 4, 2015) (on file with the
Op. Comm.) ("System Brief').
2
The System and the Board contend that a prior version of the statute allowed only "the heads of boards" of
various institutions including "regents and trustees of State education institutions." System Brief at 3-4. However,

Mr. Wallace Hall - Page 2

(KP-0021)

507 (Tex. 2012) ("The plain language of a statute is the surest guide to the Legislature's intent.").
That the Legislature limited the authority to request opinions to the heads of other entities suggests
that it knew how and could have done so with regard to regents of educational institutions if that
was its intent. See Zanchi v. Lane, 408 S.W.3d 373, 380 (Tex. 2013) (holding that the Legislature
demonstrated that it knew how to require service of a document to mirror service by citation
because it had done so in article 59.04 of the Code of Criminal Procedure but not in the Medical
Liability Act). Thus, under the plain language of subsection 402.042(b)(6), any individual who
serves as "a regent or trustee of a state educational institution" is authorized to request an attorney
general opinion. TEX. Gov'T CODE ANN. 402.042(b)(6) (West 2013).
You explain that as a member of the System's Board, you have concerns about the System's
student admissions practices, and you have requested records and working papers the System holds
of an independent investigation related to the same. Request Letter at 1. You advise that to date,
none of the records have been provided. Id. at 2. You first ask whether the Board has "authority
to prohibit, by rule or otherwise, a regent from obtaining access to and copies of records in the
possession of the University that the regent believes are necessary to review to fulfill his duties as
a regent." Id. at 1. You emphasize that you are asking about access by "a regent in his official
capacity," distinguishing such access from a request made as a member of the public under the
Public Information Act. Id. at 3; see Tex. Att'y Gen. Op. No. JM-119 (1983) at 2 ("when a trustee
... , acting in his official capacity, requests information maintained by the district, he is not a
member of the 'public' for purposes of the Open Records Act"). Thus, we look to law outside of
the Public Information Act to answer your questions.
The government of the System "is vested in a board of nine regents appointed by the
governor with the advice and consent of the senate. The board may provide for the administration,
organization, and names of the institutions and entities in The University of Texas System in such
a way as will achieve the maximum operating efficiency of such institutions and entities." TEX.
EDUC. CODE ANN. 65.11 (West 2002). Furthermore, the Board is charged with setting "campus
admission standards consistent with the role and mission of the institution and considering the
admission standards of similar institutions nationwide having a similar role and mission." Id.
51.352(d)(4) (West 2012).
The Board "has authority to promulgate and enforce such other rules and regulations for
the operation, control, and management of [the System] as the board may deem either necessary
or desirable." Id. 65.31(c) (West 2002). Pursuant to that authority, the Board has promulgated
rules concerning access to information by members of the Board. 3 Relevant to your inquiry, Board
Rules provide that "Members of the Board of Regents are to be provided access to such information
as in their individual judgments will enable them to fulfill their duties and responsibilities as
the Texas Supreme Court construes codified changes intended to be nonsubstantive according to their plain terms.
See, e.g., Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286 (Tex. 1999) ("We are compelled to conclude
that when, as here, specific provisions of a 'nonsubstantive' codification and the code as a whole are direct,
unambiguous, and cannot be reconciled with prior law, the codification rather than the prior, repealed statute must
be given effect.").
3

See The Univ. of Tex. Sys., Rules and Regulations of the Bd. of Regents, https://www.utsystem.edu/boardof-regents/rules ("Board Rules").

Mr. Wallace Hall - Page 3

(KP-0021)

Regents of the U.T. System." Board Rule 10101 3.1 (emphasis added). Board Rule 10801,
section 5.4 outlines a specific process by which a member of the Board or the Chancellor may
request information. The rule begins with a statement that the process "is not intended nor will it
be implemented to prevent a member of the Board ... from access to information or data that the
Board member . . . deems is necessary to fulfill his or her official duties and responsibilities."
Board Rule 10801 5.4.1. The rule further provides:
Within 5 business days of the receipt of a Regent's information
request, the Chancellor's Office will provide the requesting Regent
with an estimated date for delivery or production. . . . In the rare
circumstance when there are concerns about a Regent's request, the
matter will be discussed with the Regent . . . . If concerns about a
request for information or data are unresolved following discussion
with the Regent, the matter will be presented to the Board as quickly
as possible .... For the purpose of a Board vote on this issue, the
vote of any two or more Regents in support of the request is
sufficient to direct that the request will be filled without delay.
Board Rule 10801 5.4.5.
Rules adopted by a university system's board of regents in the exercise of the board's
delegated authority have the force and effect of law. See Foley v. Benedict, 55 S.W.2d 805, 808
(Tex. 1932) (orig. proceeding) (stating that rules of the board "are of the same force as would be
a like enactment of the Legislature"). Courts will not interfere with rules of a board of regents of
a university in the absence of a clear showing of arbitrary action or abuse of discretion. Id at 80809. The rules of a board of regents of a university system, however, may not be contrary to the
constitution or statutes. See R.R. Comm 'n v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992)
(stating that a state agency's rules must be consistent with state law).
The Legislature has not expressly conferred upon regents the right to access documents in
possession of a university. However, "[e]ach member of a governing board has the legal
responsibilities of a fiduciary in the management of funds under the control of institutions subject
to the board's control and management." TEX. Eouc. CODE ANN. 51.352(e) (West 2012); see
also Board Rule 10101 3.1 (requiring regents to become "knowledgeable in some detail
regarding the operations, management, finances, and effectiveness of the academic, research and
public service programs of the U.T. System"). That the Legislature has charged the regents with
administration of the System, including its admissions process, and has imposed fiduciary
obligations upon the regents individually necessarily implies that regents may have access to
System information and records. Cf Chavco Inv. Co. v. Pybus, 613 S.W.2d 806, 810 (Tex. App.Houston [14th Dist.] 1981, writ ref d n.r.e.) (holding that a director of a corporation has a right to
inspect the corporate books and records).
While we have found no Texas court decisions directly addressing the issue in the context
of university regents, Texas attorneys general have consistently concluded that "a member of a
governing body has an inherent right of access to the records of that body when requested in the
member's official capacity and for the member's performance of official duties." Tex. Att'y Gen.

Mr. Wallace Hall - Page 4

(KP-0021)

Op. Nos. GA-0138 (2004) at 3, JC-0283 (2000) at 3-4, JC-0120 (1999) at 3, JM-119 (1983) at 3.
In addressing a request for audit information by a member of the board of trustees of a community
college district, this office explained that "a member of that board has an inherent right of access
to such records, at least when he requests them in his official capacity." Tex. Att'y Gen. Op. No.
JM-119 (1983) at 3. The chancellor in that situation claimed that, as custodian ofrecords, he could
decline to furnish to any requestor records that he determined were protected by law. Id. at 1.
Contrary to that claim, this office explained that a chancellor's ability "to prevent a district trustee
from obtaining those records ... would create an anomalous situation in which a district employee
could prevent such trustee from discharging his official duties." Id. at 3.
Access to records is a necessary part of a board member's fulfillment of his or her duties.
While a governmental body may adopt reasonable procedures with regard to the timing, copying,
and process for review of records, a "governmental body cannot adopt a policy that prevents a
member of the body from performing the duties of office." Tex. Att'y Gen. Op. No. JC-0120
(1999) at 3; see Tex. Att'y Gen. L0-93-069, at 5 ("we believe the legislature would have expressly
authorized the board to adopt rules limiting the board members' access to the board's personnel or
investigative records if it had intended the board by majority vote to limit an individual member's
access to those records"). The Board's own rules acknowledge this principle by providing regents
"access to such information as in their individual judgments will enable them to fulfill their duties
and responsibilities as Regents of the U. T. System." Board Rule 10101 3 .1 (emphasis added).
Thus, unless a state or federal law requires otherwise, a court would likely conclude that the Board
may not prohibit an individual regent from obtaining access to records in the possession of the
System that the regent believes are necessary to fulfill his duties as a regent.
Your second question asks whether the Chancellor has authority "to prohibit the regent
from having access to or obtaining copies of records that the regent believes are necessary to
review to fulfill his duties as a regent." Request Letter at 1. You explain that the System has in
the past withheld some of the information you have requested because the documents included
student records that the Chancellor has determined are protected under the Family Educational
Rights and Privacy Act ("FERPA"). Id. at 2. Although an assessment ofFERPA's application to
a given set ofrecords is beyond the scope of this opinion,4 we note that FERPA also provides that
"nothing in [FERP A] shall be construed to prohibit State and local education officials from having
access to student or other records which may be necessary in connection with the audit and
evaluation of any federally or State supported education program." 5 20 U.S.C.A. 1232g(b)(5)
(West 2010).

4See Letter from LeRoy S. Rooker, Dir., Family Policy Compliance Office, U.S. Dep't of Educ., to
Katherine M. Cary, Chief, Open Records Div., Office of the Tex. Att'y Gen. at 3-4 (July 25, 2006) (on file with the
Op. Comm.) (stating that the Office of the Attorney General is not generally authorized to obtain and review specific
documents to determine the applicability ofFERPA).
5

To the extent that some of the requested documents involve student records protected under FERPA,
FERPA requires that "any data collected by [state educational authorities] shall be protected in a manner which will

Mr. Wallace Hall - Page 5

(KP-0021)

SUMMARY

Unless a state or federal law requires otherwise, a court

would likely conclude that the Board of Regents of the University
of Texas System may not prohibit an individual regent from
obtaining access to records in the possession of the University that
are necessary to fulfill his duties as a regent.
A court would likely conclude that the Family Educational
Rights and Privacy Act does not allow a university to withhold
student records from state or local education officials that are
necessary in connection with an audit and evaluation of a state
supported education program.
Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Assistant Attorney General

not permit the personal identification of students and their parents by other than those officials, and such personally
identifiable data shall be destroyed when no longer needed for such audit, evaluation, and enforcement of Federal
legal requirements." 20 U.S.C.A. 1232g(b)(3) (2010).