Bush Faces Lawsuit in Texas
Washington Post Staff Writer
Monday, August 23, 1999; Page A3
A 45-year-old Democratic operative from Austin who was fired from her Texas state job is questioning the honesty of Texas Gov. George W. Bush, and she wants the GOP presidential front-runner found in contempt of court because she thinks he lied in an affidavit.
A judge in Austin on Aug. 30 will take up the question of whether Bush must testify in the lawsuit filed by fired state official Eliza May. She asserts he misstated events when he signed an oath denying that he had spoken to anybody about a regulatory crackdown she had mounted against one of his big political contributors.
The lawsuit has thrust Bush into a bizarre controversy involving foul smells, a warped mahogany coffin, leaking embalming fluid, a private investigator sniffing out damaging information and claims that a wealthy funeral home magnate who is a Bush family friend wielded political influence over the governor's office.
May's lawsuit also has lifted the lid on what Bush critics say is a network of cozy relationships between state officials and Service Corporation International (SCI), which is the world's largest mortuary company and one of Texas's most generous political donors. Chumminess is a tradition in the Texas funeral industry--for years one of SCI's current lawyers was both general counsel to the state agency that regulates funeral homes and also the top lobbyist for the morticians' trade association.
At the center of the messy argument is May, who last February was sacked from her job as executive director of the state agency that licenses funeral homes and investigates consumer complaints. She later filed suit against the nine-member board that fired her, as well as SCI, alleging the firm got her canned because of her investigation of SCI's practices.
The other character at the heart of the drama is SCI's chairman and chief executive, Robert L. Waltrip, who also is a friend of both Bush and his father. Over several decades, Waltrip parlayed a single Houston funeral home into an empire that buries one in nine Americans.
Waltrip was already a political player in the 1960s, when the elder Bush first moved to Texas as an ambitious politician. Bush sought out Waltrip and the two became friends. Waltrip is now a trustee at the elder Bush's presidential library, which reports he has given it between $100,000 and $250,000--in accordance with its practice, the library provides only a range. SCI also has donated $45,000 to the younger Bush's political campaigns.
Last week Gov. Bush told reporters that May's lawsuit is "frivolous," and that he should not be forced to testify about a short conversation he acknowledges having with Waltrip last year that touched on the agency's probe. "Every single time somebody has a lawsuit, do you want your governor being drug through the courts?"
State Attorney General John Cornyn, a Republican ally of Bush, filed a motion to quash May's subpoena of the governor, saying that Bush "has no personal knowledge of any fact which is relevant to this controversy" and that May wants to bully Bush into court "purely for purposes of harassment."
For their part, SCI officials assert that May was belligerent and broke state rules in her investigation. In a letter to state officials last year, Waltrip said she cultivated a tough enforcement style "the like of which I have not encountered in all my years in funeral service."
The trouble started in 1996, when the Texas Funeral Service Commission hired May as director. In some ways she was a logical choice--May was a veteran employee of several state agencies. But her work as treasurer for various Democratic Party organizations made her selection a strange one for a panel dominated by Bush appointees. In any case, she set out to jump-start the 10-employee agency, which had been harshly criticized for years by the state auditor's office for lax enforcement.
She quickly butted heads with Leo Metcalf, an SCI executive who was a commission member and who often berated May's staff for cracking down on mortuaries, said Lamar Hankins, a Texas attorney who heads a consumer group, the Funeral and Memorial Societies of America, that monitors funeral homes. Hankins praised May for standing up for consumers--"she was a very conscientious public servant trying to do an honest job."
State Sen. John Whitmire (D), who represents the Houston area, disagrees. Under May, the commission became "a runaway state agency" that treated funeral homes in its investigative sights "like mass murderers," said Whitmire, who has received $5,000 from SCI in campaign gifts.
Early last year May's staff uncovered evidence that some SCI funeral homes were using unlicensed or inexperienced embalmers. In March 1998 she issued subpoenas for documents to 23 SCI mortuaries, prompting the company to complain bitterly to state officials. SCI said, among other things, that only the commission itself, not the staff, had the power to issue subpoenas.
Numerous state legislators from both parties, all of whom had received thousands of dollars in campaign gifts from SCI, contacted the commission demanding it probe its own staff, according to documents in the lawsuit and state campaign finance records.
On April 15, 1998, Waltrip and SCI lobbyist Johnnie B. Rogers visited the office of top Bush aide Joe Allbaugh carrying a Waltrip letter decrying May's "storm trooper tactics." This is the meeting at the center of the controversy about Bush's truthfulness.
Bush said in a July 20 sworn statement in connection with the May suit that "I have had no conversations with SCI officials, agents or representatives," or with anybody connected to the funeral commission, about May's investigation of SCI.
Earlier this month Newsweek magazine raised questions about Bush's oath. On Wednesday, May filed a court motion saying Bush should be declared in contempt of court. She cited the new information that Bush had indeed stopped by for a brief chat with SCI's Waltrip and Rogers that day in Allbaugh's office.
An SCI spokesman said Bush's participation in the talk "was just in passing, a 'what's up?' "
"Bush asked why Waltrip was there," the SCI spokesman said. "Waltrip said he was having trouble with the funeral commission."
SCI lobbyist Rogers recalled that Bush asked Waltrip, "Are folks still messing with you?" Rogers said Bush then asked him, "Hey, Johnnie B., are you taking care of him?" Rogers replied, "I'm doing my best, governor."
Bush, too, acknowledges the conversation, but says his sworn statement is consistent with that admission. "It's a 20-second conversation," Bush told reporters last week. "That hardly constitutes a serious discussion."
Moreover, Dick McNeil, the funeral panel's chairman, has told reporters that he, too, talked briefly with Bush about the SCI probe. At a Bush campaign visit to Fort Worth last autumn, McNeil shook Bush's hand and said, "I sure hope we haven't embarrassed you," McNeil told the Austin American-Statesman. Bush replied, "I will be embarrassed if you have not done your job." McNeil did not return telephone messages.
In any case, in May 1998, May was called to a meeting in Bush's office with Allbaugh, other Bush aides and Whitmire, as well as SCI's Waltrip and Rogers. Whitmire and Rogers denounced the probe at length, and "the meeting ended with Allbaugh, in a hostile, peremptory tone, demanding that [commission] staff deliver to him by 1 p.m." a list of tasks needed to close the investigation, the May suit said.
A few weeks later, several May friends were called or visited by a man seeking "dirt" in May's background, she said in her suit. SCI admits it had its security office perform an investigation of her. May visited Allbaugh to seek help in responding to SCI's probe of her, but he only asked for more information about her inquiries into the funeral industry, she said in her suit. Allbaugh, now Bush's presidential campaign manager, declined to comment on her assertions about him.
"We never tried to influence the investigation," said Linda Edwards, spokeswoman for the governor's office. "Our role was to listen and get the parties to communicate."
One year ago, the commission fined SCI $445,000 for a range of violations, such as using unlicensed apprentice embalmers and delaying compliance with subpoenas. SCI has not paid the fine, and recently state Attorney General Cornyn issued a legal opinion saying SCI's actions did not violate state law.
In February 1999, the commission fired May, saying it had lost confidence in her. Around that time the state legislature approved a law, partially written by lobbyists for the state mortuary association, that reconstitutes the commission and mandates a new crop of board members.
One of the SCI mortuaries targeted by May for using unlicensed embalmers was SCI's Sparkman-Crane home in Dallas, the subject of macabre complaints in a lawsuit filed by a Texas family.
The suit was filed in June against SCI by the parents of Frank "Tres" Hood, a newscaster in Wichita Falls who died of cancer last summer. They retained an SCI funeral home, which in turn transported his body to Dallas for an autopsy required in an unrelated lawsuit. While the corpse was in Dallas, SCI had it embalmed at Sparkman-Crane without the family's knowledge.
The family said the mortuary botched the embalming by vastly overfilling the body with fluid--which SCI denies. When the family viewed the body in an open casket, fluid was seeping from the eyes and mouth, and the dead man's brother fled the funeral home, yelling, "That's not my brother," said family attorney John Horany. The body was entombed in a coffin inside a family crypt. But whenever the dead man's mother, Gayle Johnson, visited to lay flowers, the place reeked, the attorney said. When she asked the funeral home about this, it said a mouse must have died in the crypt--even though none was found, he said.
Soon brown ooze from the body rotted the casket and pooled on the floor, the lawsuit said.
The commission rejected the family's allegation that the embalming at Sparkman-Crane was improper, but it fined SCI $2,000 because the SCI home in Wichita Falls had not informed the family of the body's poor condition. SCI said the family was informed, and blamed the smell on another firm's failure to seal the crypt.
Family lawyer Horany says he strongly suspects that what he considers Sparkman-Crane's flawed embalming job was a result of inadequate supervision of embalmers--the very violations that May investigated and that resulted in SCI's fines. The firm denies it.
The Hood case demonstrates why states must scrutinize funeral homes, he said.
"SCI was emboldened by the relative ease with which it sidetracked the commission, so it felt it had no accountability," Horany said. "If an agency is understaffed and dominated by industry powerhouses, there is a great danger to consumers."
© 1999 The Washington Post Company