By Elida S. Perez
El Paso Times
Originally published Jan. 19, 2017
Text messages between Mayor Oscar Leeser and city Rep. Jim Tolbert clearly show that City Council members violated state law when they cycled in and out of a closed-door meeting to discuss alternative sites for a planned $180 million Downtown arena, a Texas open government expert said.
Tolbert texted Leeser on the same day that the mayor and several City Council representatives met behind closed doors with opponents of a plan to place the voter-approved arena in Union Plaza’s Duranguito neighborhood. In his text, Tolbert expressed his frustration at not being invited because of concerns that too many elected officials would constitute a quorum, which would trigger a requirement that the meeting be posted and open to the public.
“I have been involved in this whole thing longer than most of the people you invited. Yet I cannot be at your meeting because of a quorum. At least give me the courtesy of a call afterwards,” Tolbert said to Leeser in a text message on Dec. 16, the day of the meeting.
The mayor responded: “If you want to come and be a part of the meeting, I will step out. I just didn’t want to have any questions regarding quorum.”
Houston attorney Joe Larsen, a leading expert on the Texas Open Meetings Act, said that exchange shows that City Council knowingly skirted state law, which in and of itself is a criminal violation.
The Texas Open Meetings Act makes it a crime for any member of a governing body to knowingly conspire to circumvent state law by gathering in numbers less than a quorum for the “purpose of secret deliberations.”
“You have a council member texting the mayor that ‘I’d like to join your meeting, but can’t because it’ll make a quorum’ and then the mayor responds, ‘well, I’ll step out,” Larsen said. “I don’t know how much harder we can chew on it. It looks like a textbook case.”
The El Paso Times obtained the text messages through an open records request Thursday. They were first obtained by Channel 9-KTSM.
Leeser could not be reached for comment but, in an interview with the El Paso Times, Tolbert argued that the group never conspired to avoid a quorum. He said his text exchange with the mayor was not a pre-planned effort to circumvent the law.
“The mayor was simply speaking about a situation at the moment,” Tolbert said. “There was never any plan ahead of time to do that. There was never any plan to avoid quorum. It just never crossed our minds.”
The gathering with the mayor was one of two closed door meetings that City Council members attended on Dec. 16.
City Reps. Lily Limón, Jim Tolbert and Peter Svarzbein first met with opponents of placing the arena at the Duranguito site at the restaurant for the Indigo Hotel. When the El Paso Times arrived, the group quickly secured a room to talk in secret. The council members and the opponents then walked to City Hall to meet with the mayor and city Rep. Cortney Niland.
Five members of the El Paso City Council are required for a quorum. The entire group was never together at one time.
Shortly before 10 a.m., Limón, Tolbert and Svarzbein met in the mayor’s office. Tolbert left the meeting before Leeser and Niland arrived, keeping the meeting under five members.
Tolbert said he texted the mayor after he left because he had been involved with speaking to community members and wanted to attend. The mayor never stepped out of the meeting as he suggested in the text but, at about 10:30 a.m., Svarzbein left the meeting.
Fifteen minutes later, Tolbert returned, and joined the closed-door discussions.
“There was maybe no reason to go back, but I did,” Tolbert said. “As far as I’m concerned, I never did anything wrong. I don’t think anyone else did anything wrong.”
Four days after the meetings, Limón, Tolbert, Svarzbein and Niland voted to scrap a plan that would place the arena in the Duranguito neighborhood and instead consider the current site of the Judson F. Williams Convention Center. The remaining council members, who were not included in the meetings, either did not vote or voted against the change.
In a text message to Limón before the vote, Max Grossman, a member of the El Paso County Historical Commission who attended the meetings on Dec. 16, said “I hope we’re still good. Cortney and Jim are telling us about heavy pushback.”
Limón responded, “My feet are firmly planted.”
Grossman said he did not want to comment on the text messages because there may be a criminal investigation, but he said his text should not be viewed as an indicator that assurances were made during the meetings.
“No promises were made to us and no assurances were made to us,” Grossman said. “Ideas were discussed. Possibilities were discussed.”
Grossman said he did not know for a fact that the Duranguito neighborhood would be taken off the table following the closed-door meetings.
“If the law was broken, then I didn’t intend it and I wouldn’t have attended,” Grossman said. “We are sorry that this is happening, but it’s certainly not our fault.”
Violations of the law are punishable by up to six months in jail and a $500 fine.
District Attorney Jaime Esparza has declined to comment on any possible criminal investigation into the meetings.
Larsen said the district attorney would be responsible for prosecuting elected officials who violate the Texas Open Meetings Act but that such prosecutions are uncommon.
“I don’t think it’s because the violations are not happening,” Larsen said. “It’s because they are not being prosecuted and it’s at their discretion. There are all kinds of reasons why. I think the DAs are not comfortable prosecuting. Sometimes it’s because of the local political establishments.”
City Council members face two separate ethics complaints for the closed-door meetings.
The City Attorney’s Office has yet to determine whether the city Ethics Review Commission will hear the complaints. The commission met Wednesday and issued harsh criticism that the City Attorney’s Office had not yet made a determination on the complaints. It is set to meet again Tuesday.
City Rep. Emma Acosta, who has said that she believes the decision was predetermined during the closed-door meetings, said the texts appear to show that city representatives were purposely trying to avoid a quorum.
“It’s unbelievable. It’s really unbelievable,” Acosta said of the text messages. “I guess they knew, let’s meet and make sure we don’t have a quorum and that’s circumventing the law.”
She added, “This should have been transparent so we could be accountable.”
Niland and Svarzbein could not be reached for comment. Limón released a statement on Thursday following an El Paso Times request for an interview based on the text messages that were released.
Limón said she firmly believes in following all city, state and federal guidelines for elected officials.
“I do not want public comments to obstruct or alter the review of an ethics complaint that has been filed against me,” she said in the statement. “I am refraining from commenting on it until the city attorney and the Ethics Commission have rendered a ruling.”