elpasospeak

The old city council sued the attorney general of Texas in an effort to avoid disclosing certain communications between city representatives, and between city representatives and city staff, that were sent or received on an individual’s personal electronic device.

The attorney general has ruled that those communications are subject to disclosure if they pertain to city business.

Our new city council has instructed the city attorney to bring the lawsuit  to closure.  They fell just short of telling the city attorney to drop the lawsuit.  It is certainly reasonable to believe that the litigation will be settled shortly and that the city will stop objecting to the release of the communications.

That leaves a question about what the former city council members will be compelled to do.  It is possible that one or more former city representatives will refuse to turn over the documents.

Regardless of who owns the communication device, Texas law says that elected officials are the official custodians of records in their offices. Section 201.003(2) of the Local Government Records Act defines “custodian” as the appointed or elected public officer who … is in charge of the office that creates or receives local government records.”  The city representative operates an office — the office of city representative.

The Texas Public Information Act then makes the chief administrative officer (in El Paso that is the city manager) also responsible for complying with the act.

The city representatives that are no longer on city council may think that they are off the hook.  One or more may initiate a lawsuit against the attorney general, but that is unlikely since they would have to use their own money.

The public can take civil action if the former city representatives  refuse to turn over the documents.  That may happen given that there are local activists that do not want to give up on this.  Or a member of the public could bring a complaint to the local district attorney or county attorney with the hope that one of those two elected officials would pursue the issue on behalf of the public (using public money).  The prosecutor would then have 31 days to either decide to pursue the issue or drop it.  That would be an interesting dynamic given our recent 74% vote.  These prosecutors have been noticeably reluctant to take action against government officials in the past but may fear the wrath of the voters in this case.

A civil case would be complicated by the fact that the city representatives are no longer in office.  They may get away with not turning over their side of the communications.  However any communication with a sitting city representative or a city staff member would still have to be disclosed by the city itself.

There are also criminal penalties for violating the law, including penalties for destroying information.

Putting the legal arguments aside, refusing to comply could get expensive for the former city representatives.  My guess is that they may start by ignoring the requests.  Someone will have to file a civil or criminal complaint or file a civil lawsuit.  At that point I would imagine that the former city representatives will give up and turn over some of the emails.  They will face considerable risk if they forget to turn over other emails and those emails are disclosed by a third party.

We would all be better served if the documents were released without any of this drama.  These documents may lead to ugly disclosures but I don’t see how or why anyone would prevent this.

We deserve better

Brutus

Tomorrow’s (July 15, 2013) city council agenda has this item on it:

Discussion and action on the status of the Texas Attorney General’s opinion on the release of personal emails that pertain to official city business by various members of city council and staff and the cost to date, on hiring outside legal counsel acquired by the city to challenge the AG’s opinion.  [Representative Emma Acosta, (915) 541-4515]

Members of the public requested the emails through the Texas public information act.  The city resisted and asked the attorney general for permission to conceal them.  The attorney general ruled that they must be released according to the law.  The old city council then voted to spend our taxpayer money to sue the attorney general.

The city suit will fail.  This is a stalling tactic to keep us from knowing the truth about what those people did to us.  To add insult to injury, the old city council used our taxpayer money to try to deny us what we are legally allowed.

The city representative that put this on the agenda has done a good thing.  The new council should vote Tuesday to stop the lawsuit and release the documents per the attorney general’s ruling.

This issue is very important.  Holding up the release of these emails is keeping the public from knowing what has been happening and what might be happening now.

Contact your city representative today.  In particular let the mayor know what you think.

You can leave a comment on the mayor’s city web site here http://home.elpasotexas.gov/mayor/feedback.php or you can email him at mayor@elpasotexas.gov

The city representative deserves our encouragement.  The comment link for her at the city is http://home.elpasotexas.gov/city-representatives/district-3/contact-district-3.php you can email her at district3@elpasotexas.gov

You do not have to leave your name or any other information with either one.

Here we have a chance to make a difference.

We deserve better

Brutus

It’s hard for me to believe that city staff would do what they have done.

I’ve been writing about a proposed ordinance that would change some city council procedures.  When the item was posted on the agenda the posting indicated that passing the ordinance would repeal a prior ordinance.  Unfortunately city staff listed the wrong ordinance number to be repealed.

I watched the video of the city council meeting and missed the part where council approved the ordinance introduction.  I waited for the next agenda to be posted and saw that included in the agenda was an item to approve the minutes of the meeting in question.  That new agenda did not have the required backup material (the minutes to be passed) attached even though it should have.

This morning I see that someone has finally attached the minutes to today’s agenda.  Reading the minutes I see that the ordinance number to be repealed was changed to the right one.  How did that happen?  It is against the law in the state of Texas to tamper with a government record.

I went back to re-watch the video of the original introduction.  I saw that he item was passed without reading and without correcting the number.  Normally the city clerk reads the introduction.  Curious.

What happened?

If the agenda was changed after posting but  before the council meeting, the Texas Open Meetings Act has been violated.

If the agenda was not changed until after the council meeting, then the newly posted agenda has been tampered with — a violation of Texas law.  The minutes would then also be false.  Falsifying a public document is also against the law in Texas.

We still have the fact that the backup material posted on June 27, 2013 for the public comment session still refers to the wrong ordinance to be repealed.  So even today they have a fatally flawed ordinance in spite of their efforts to falsify the public record.

This is serious business.

We have the right to be informed in advance about what council is considering.  We have the right to have accurate records about what they have done.  We are not talking about simple clerical errors here.

I guess now that the cover up will not only continue but will probably get more involved.

The records will show who did what and when.  More than one person must have been involved.

We deserve better

Brutus