There has been a lot of activity on the ongoing email scandal between the city and Stephanie Townsend Allala. With the city’s sustained campaign of disinformation and the El Paso Times continued journalism dysfunction I thought it important to set the record straight on a few issues and fill in some blanks.
First and foremost it is important to note, that contrary to the city’s assertion that this issue is now settled it is simply not true. Not only does this issue remain unsettled, the city is still actively keeping public information out of the community’s hands.
As the rhetoric continues to play out it is also important that you remember one thing about the issue. Regardless about how you feel about your form of government being either a trustee or a representative one, the fact is that no one has ever given up the “right to decide what is good for the people to know and what is not good for them to know”. The rhetoric emanating from Steve Ortega is that he is the only arbiter of what you have the right to know.
However, it is important to know what is going on, so here are the facts:
Taxpayer Monies are Still Being Spent
The city is still using taxpayer funds to keep from having to fulfill the open records request filed by Stephanie Townsend Allala. In other words, the city is spending your money to keep you from seeing what is rightfully yours.
I Thought the Emails Had Been Released
Contrary to the manufactured perception, although certain current and former officials have released some emails, there is no proof that they have fully complied with the open records request. Some records have been released but we only have the word of the city attorney’s office, the city government and the city officials telling us that they have released everything that rightfully belongs to the community.
Why is this important?
There is much controversy in the community about the release of the emails. There is also much disinformation about the issue. More importantly there is a lack of trust in the community about the city’s role and the actions taken by certain city officials. In order to allay any lack of confidence in the actions of the government officials it is important that they answer truthfully that they have complied with the open records request.
This is simply done by stating, under oath, that they have complied as required. Remember that Martha Stewart didn’t go to jail for her actions but rather for lying to the government. Likewise, former baseball athlete Barry Bonds is going to do jail time, not for the crime he was alleged to have committed but rather for lying about it.
The question for Susie Byrd, Steve Ortega and Joyce Wilson is simple; did you turn into the city everything that you are required to under the open records request? If the answer is yes then why refuse to sign a documenting attesting to that fact?
What About Steve Ortega’s Allegation That This Request Violates the Constitution
Steve Ortega bases his argument on the constitutional prohibition against unreasonable searches.
First, let’s set some facts that are important to understand:
The open records request do not make allegations of wrong doing, they are just legal requests for the release of information that the law clearly states is public information. In fact, the Constitution that Steve Ortega seeks to hide behind clearly states that the people have the right to question their government. One way to question the government is to ask for all of the records that it holds.
It is also important to remember that in today’s El Paso Times article; “Former El Paso city Rep. Steve Ortega subpoenaed over emails”, Steve Ortega is quoted by Cindy Ramirez as stating that “he has emails ‘on hundreds of issues’ having to do with city business”. Either Ramirez lied, or misquoted Ortega, or Steve Ortega has emails that are city business related.
If we accept the quote as valid then Steve Ortega has admitted that he holds records that have to do with “city business” and therefore belong in the public domain because they are the people’s property. The Texas Public Information Act defines public records as any record “in connection with the transaction of official business”.
In addition, in a KVIA report on September 18, 2013, María García quotes Steve Ortega as stating that he “has about 10 emails that deal with the ballpark, from the media, other city representatives and team owners”.
Now, let’s address Steve Ortega’s erroneous notion that turning over the public’s property is somehow violating his Fourth Amendment rights. The basis of the amendment is that the government requires “probable cause” to search a citizen’s private property. This assertion is bogus, as used by Steve Ortega because, on the onset Ortega alleges that the open records request is a search and seizure of his private property.
I’m actually very surprised that an attorney would assert such a ludicrous argument. In fact it reinforces the notion that Steve Ortega has something to hide.
However, that aside, Steve Ortega has already admitted that he has property that belongs to the community. How he can assert that asking for property that belongs to the community is somehow violating his right to unreasonable search and seizure is beyond me. Of course, if he has something criminal to hide I would suggest that he assert the right not to incriminate himself by releasing the documents instead of his bogus assertion.
I Thought the Travis County Judge is Dismissing the Lawsuit
Unfortunately this is part of the propaganda being perpetuated by the city and being spread by the El Paso Times. This morning, September 20, 2013, the El Paso Times reported that the judge set a hearing to dismiss the lawsuit. In reality what happened, as I reported yesterday is that the city filed a motion late in the process that needed to be addressed by the court before the judge could rule on any other motion. Therefore the court simply rescheduled the hearing for September 30 to rule on that motion in order for the process to proceed. It was a simple scheduling activity that, in my opinion, was part of the city’s continued effort to gum up the process and further delay releasing the emails.
The City says it has Done All It Can Legally Do
First it is important to note that the Texas Public Information Act defines public information “as any information collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a government body; or (2) for a government body and the government body owns the information or has a right of access to it”. Second, the Texas Code defines a government record as any record “created or received by a local government or any of its officers or employees”. To be clear, Susie Byrd and Steve Ortega were “officers” of the city when the records were “created” or “received” by them and thus they are custodians of government records. Likewise, Joyce Wilson is an employee of the city and thus she falls within these same guidelines.
It is incomprehensible that the city would assert it has no legal way to recover records that are clearly government records unless there are other ulterior motives.
The City says it Has No Way to Comply
I have already established above that the records in question are government records owned by the city. I have also established that the city not only has the authority to demand the records but it has the obligation to do so because it is the custodian of the records. The records belong to the City of El Paso and thus they belong to the community.
For the city to pretend that it has no right to recover the records is analogous to someone stealing a patrol car and keeping it in his garage, and the city asserting; “hey we can’t go into the guy’s garage to get it back”. How long would you allow that to go on?
The City is Asserting That the Case is now Moot
On September 18, 2013, the city filed a motion that asserts, among other matters, that the judge no longer has jurisdiction over the case because the city has done everything it can legally do. Among all of the legalese of asserting “its Plea to the Jurisdiction because all of the claims in this lawsuit are now moot”. Basically the city is stating that the lawsuit should be dismissed because it has done all it can to meet the release of the records under the open records requests. However, the judge did not rule on this yet. The city’s assertion has forced all of the other motions to the backburner until the judge has decided, if in fact the lawsuit is moot. The judge is expected to rule on that by September 30, 2013. The city’s basis for the argument is the same as outlined above, that it has done all it can.
You should also notice that the city is also now claiming sovereign immunity in this case. Basically it is asking the city to state that the citizens do not have a right to sue the city for their records. In this filing, Joyce Wilson also filed an affidavit asserting that the city has gathered all of the records that it can and that it has released them to the community.
For the various reasons I have outlined herein I believe that Joyce Wilson’s assertion is false because the city has not done all it can to recover the property that belongs to the community.
Thousands of Emails Have Been Released, Yet There is No Proof of Wrongdoing
This argument is being perpetuated by those who are seeking to keep certain things secret about how the ballpark process has progressed. Although “proof of wrongdoing” is highly subjective there are still many important disclosures that have come to light recently because of the ongoing battle to open up the records to the public. However, before I go into that, it is very important that readers understand that the battle for transparency is not about proving wrongdoing by the government but rather about keeping government accountable to the electorate.
There are many open records requests that I file that result in only confirming for me that the actions taken by the government were in fact appropriate. This is accomplished by confirming that all of the necessary steps were taken as required or that the reasons that something looked wrong were not because of the assumptions that I made because I did not have all of the information. Once I read the complete information the government actions were in fact correct.
Assuming that an open records request is about finding a “smoking gun” for wrongdoing is plainly wrong. Open records and government transparency is about providing the information necessary to make an informed decision.
That said; the perception that the records released so far have proven to be a waste of time is part of the disinformation campaign perpetuated by the city and supported by an incompetent media.
Take for example the following.
When the issue of building the ballpark where city hall once stood first entered the community consciousness there were many questions about the need to rush the process. The city and the ballpark proponents, including Susie Byrd and Steve Ortega told the community that there was only one chance to get the team to El Paso.
We know now that the “rush” is questionable, at best. In fact, in my July 22, 2013 post titled; “John Cook and Joyce Wilson Questioned the Rush to Vote for the Ballpark”, I reveal, through the documents already released, that John Cook and Joyce Wilson questioned whether there was an actual need to rush the process through as per the stated reasons.
Recently we have also learned that John Cook has stated that he was kept out of loop until the last possible moment. He has on numerous occasions opined that the city manager, Joyce Wilson did most of the negotiating for the city. He and others have added that certain city representatives were kept out of the process on purpose.
There is also the matter of the group picture of Byrd, Lilly, Niland, Noe and Ortega that was taken shortly after the vote for the ballpark passed in which all five members in the picture were wearing baseball caps. In a September 17, 2013 KVIA report by Ashlie Rodriguez, Cortney Niland is quoted as stating that “Steve Ortega’s staff had the hats ready in case the ballpark passed”. Notice the ball cap emblems of teams. I am willing to wager that those emblems represent each representative’s favorite team. If this is so, it is very astute of Ortega’s staff to know what each individual’s favorite team is, or was, without talking to them first.
Ok, So I See Where There May Be Questions, But That’s Not Proof
I cannot and will not speak for what those seeking the records are after. I can, however, tell you that each new record gives the community a better understanding of the process.
How Long has this Issue Being Going On
Since September of 2012 when Stephanie Townsend Allala filed her first open records request asking each city representative and the city manager for “correspondence conducted in the transaction of official business, including such official correspondence that the City officials had chosen to conduct using their personal email accounts”.
It appears to me that from the onset that the city has done nothing but delay releasing the records. Some of you will question that assertion. Obviously I can’t prove it, just yet, but I can offer you some evidence to ponder it. Besides the many actions taken by the city where the perception is created that the emails have been released, numerous times; that the case has been settled or that Stephanie Townsend Allala is unreasonably seeking access beyond access to records that belong to the community I would offer the following as additional evidence.
In the latest court documents it is revealed that Townsend Allala’s attorney has tried to set an amicable date and place to conduct the depositions of Byrd, Niland and Wilson before he filed his subpoenas. The city delayed numerous times to set a date and time. More importantly, one of the (this was corrected at 10:11pm ET, to reflect it was not a city attorney, rather it is Texas Attorney General attorney) Texas Attorney General assistant attorneys that “wants to attend any depositions held” in the case will be unavailable from October 4, 2013 until December 13, 2103 because of an upcoming medical leave. Therefore if the depositions are not set before October 4, then it can be reasonably inferred that the city would seek to delay them until next year because a key attorney in the case is unavailable, thus further delaying the process.
Also, according to the court documents, there is a key date of November 6, 2013 where certain “discovery” functions need to be accomplished before that date.
As if that wasn’t enough, court filings further expose the city’s goal, of actively seeking to delay the process. “George Hyde, lead counsel for El Paso, sent an email apparently intended for his co-counsel, Scott Tschirhart” where he wrote; “Delay and generalize our resistance as you discussed.”
Is the City Attorney’s Office Turning Rogue
There is also something important that you should consider as you think about this ongoing saga and that is that the city attorney’s office may be acting unilaterally without the authority of city council. In other words, evidence is starting to emerge that shows that key decisions are being made by the city attorney’s office rather than city council, as it should be.
Consider the following.
The city attorney’s office is expending money on outside attorneys and city resources to file motions after city council directed them to bring this case to a close on August 21, 2013. To my knowledge there has yet to be any official action by city council directing the city attorney to file motions to quash the depositions of Susie Byrd and Steve Ortega that are no longer in office.
I also clearly heard Cortney Niland state publicly during the call to the public on Tuesday, September 17, 2013 that the city had never “officially” asked her to turn over her responsive documents.
In fact, in an El Paso Times article dated September 18, 2013, Niland is quoted by the paper as stating that she has “never been formally required or directed by the city attorney or the city manager” to turn in her documents before the city issued the “voluntarily” requests.
Furthermore, in a September 18, 2013 report by KVIA, María García reported that John Cook stated that the “city attorneys never gave council direction as to whether the elected officials should turn over the requested documents”. García added that Cook stated that “council had told the [city] attorneys ‘we don’t want you to setting a precedent by releasing this stuff’”. The report adds that Cook said that he turned over his documents after the initial request over a year ago, adding that it was the city attorneys who refused to release them to the public. The KVIA report added that Cortney Niland stated that she as well was not “required or told to turn over” her personal emails, according to the city attorneys.
As you can clearly see this issue is from over. As the events continue to develop I will strive to add new blog posts so that by the time this issue is resolved there is a clear and unequivocal record that you can refer back to whenever you like.
“The question for Susie Byrd, Steve Ortega and Joyce Wilson is simple; did you turn into the city everything that you are required to under the open records request? If the answer is yes then why refuse to sign a documenting attesting to that fact?”
This seriously undermines the credibility of City Officials and the attorneys defending them while wasting taxpayer’s money.
I think Ortega considers it a search…one should not perform their own search, especially under any duress, or else one runs risk of charge of obstruction if something missed or overlooked….better let Gov’t miss it with a warrant. No doubt this issue may be First Impression legally. I have not check case law from other states on FOIA re personal email accounts…a city rep may get hundreds of tele calls at his home phone re city biz…email is much more efficent for communication than phone tag. The nexus of city biz may never end, anything or everything in a way could be considered city biz even ‘offical city biz…where is the line drawn? Not only that but Ortega has a First Amendment right to speak and communicate by any electronic means.
People lie all the time under oath, how many police officers have lied under oath….to sign a affidavid under any duress and that be a the crime and not the underlaying subject matter is a joke
Ortega has a 4th amendment affimative defense claim, right or wrong it his the 4th amendment he would assert and then the courts would rule. The Law is a Knife…why do criminals who get a search evidence excluded on the 4th amendment walk free? Because the Bill of Rights was not included for their benefit [albeit life outside a cage has value] NO! the 4th amendment was included in Bill of Rights not so murders could walk free on a “techo” [4th amendment is not really a ‘little techo’] IT WAS included to protect all Americans from ABUSIVE GOVERNMENT.
I helped fight against the ballpark for free when Gomez and I went to Austin, got a narrow ruling and Judge denied city request that Judge rule that no election need be held re the Gomez Petition….I went not for political camps, but for the law AND THE RIGHT TO PETITION. Thus not political I can say I agree with Ortega, IT TAKES A WARRANT and I say this from personal expericence of “law enforcement acting in concert” incident envolving the 4th amendment and law enforcement misprison of felony.
Martin spends a lot of time writing and researching about Gov;t issues and one and I really appreicate this and find his writings informative and interesting. Yet I post only a few times here in hopes more will start posting here.
Fourth amendment valid IF a) no evidence of city business b) he wud sign affidavit stating no city business