The first motion is Steve Ortega objecting to the subpoena for oral deposition scheduled for December. In it, Steve Ortega objects to the “request because it is overbroad, seeks confidential information/private property interests protected by the Texas and United States Constitutions, and because the phrase ‘or other forms of written communication regarding any matter of public business of the City of El Paso’ is vague, ambiguous and undefined”. His objection is to “E-mails (including emails written using personal email accounts), letters. memoranda, notes, or other forms of written communication regarding any matter of public business of the City of El Paso from You [Steve Ortega] to (or copied to, or blind copied to) any council representatives(s) or the Mayor or the City Manager from January 1, 2012 to October 5, 2012. This request includes all such written communication of whether other persons also were sent the communication.”
I realize that the business of lawyering in the United States is based on interpreting legalese for the benefit of one party over another. In this case Steve is arguing that the request is “overbroad [and] seeks confidential/private property interests”.
As a non-lawyer I find it difficult to understand how a request for any material that is a “matter of public business of the City of El Paso” would be “overbroad”, or “seeks confidential/private property interests”.
Ortega adds that he also objects to the request because “it constitutes an impermissible fishing expedition in violation of The Texas Rules of Civil Procedure”. Since I do not know what the rules of civil procedure are I will refrain from commenting on that issue.
Likewise Steve Ortega writes that he objects to the request for “E-mails, letters, memoranda, notes, or other forms of written communications regarding public business of the City of El Paso” from Steve Ortega to Paul L. Foster, Scott D. Weaver, Joshua W. Hunt, H.L. Hunt, MountainStar Sports Group, LLC, or any representative or attorney thereof”. This request also includes Franklin Mountain Sports Group, LLC and Hunt Holding Sports Group, LLC and their respective representatives or attorneys.
Again, I’m not sure how Steve Ortega argues that communications involving “public business” between the city and parties conducting business with the city would be “overbroad” or “seeks” confidential information. However that is what he is arguing.
In the second motion, Steve asks that the oral deposition scheduled for him be “quashed” and a “protective order” be issued to keep him from having to answer questions under oath.
In that filing, Steve Ortega argues that he “is no longer in office and is a bonafide private citizen”. He also argues that the documents and that Stephanie Townsend Allala seeks do “not constitute public information as defined by Texas Government Code section 552.002 when prepared”.
Notice the two words; “when prepared”?
Steve is arguing that although the state legislature clarified this year that emails and other communications belong to the community, the clarification was not in effect at the time the documents he has in his possession were created and according to his reasoning are not subject to the updated law.
Basically he is saying, yes the law changed but it doesn’t apply to me.
Most of you already know that personally I feel that the legislature’s clarification was just that a clarification and not an acknowledgement that previous emails and text messages related to city business did not belong in the public realm. However, I grudgingly accept that jurisprudence in the United States is interpreting the law rather than accepting it for what it is. So let’s accept for the moment that Steve can argue that the new law does not apply to him.
He goes on to ask the court for a “protective order because the purpose of Ms. Allala’s Subpoena is to harass a private citizen”.
And then he gets into the crux of his reasoning for keeping public information secret.
First, Steve Ortega argues that the Texas Public Information Act does not consider emails not in the possession of the government to be public information. He cites a City of Dallas v. Dallas Morning News, LP as the precedent to defining that an “individual is not a ‘government body’ for purposes of the Act”. As I know that the court will eventually address this I will withhold my comment for the moment. However it is important to note the basis of Steve’s argument and that he did not consider himself part of the government body when the records were compiled.
Steve goes on to argue that the although the law was updated in 2013 he is not subject to it because at the time the documents were created the law hadn’t been clarified and thus a new law cannot be applied retroactively. He cites the “Ex Post Facto” application of the law. To be clear that is his argument and my lack of comment on it at this moment should not be construed that I somehow believe he might be right. He is completely wrong from a layman’s point of view but for now I’ll leave it alone.
Steve Ortega goes on to cite the 4th Amendment to the US Constitution as another reason he should not be compelled to release the records. He argues that he maintains “an expectation of privacy”, under both the US and the Texas constitutions.
Steve then goes on to again ask for a “protective order” because he feels that he is being “harassed”.
As you know these latest legal maneuverings are arguments that a court, or courts will eventually settle. Some of you would argue that since I am not an attorney I really do not understand the nuances of the filings and that I may be interpreting them wrongly. That may be correct.
However, why do Ortega’s actions drive me crazy? Why is it hypocritical?
You will remember that in late 2004 and early 2005 there were rumblings within the community about a FBI investigation into public corruption. Initially the public corruption investigations seem to center around Anthony Cobos and Luther Jones and then it exploded across the County with people in the community playing “who’s next” each Friday looking to see who was indicted, mentioned or arrested the Thursday before. All politicians became very conscious about being stigmatized or possibly named in the next “information” that were periodically released by the investigators. Susie Byrd, Veronica Escobar, Steve Ortega and Beto O’Rourke, among others went around the community proclaiming how they were not part of the corruption.
On Saturday, June 23, 2007 at Tom Lea Park, a “Contract with El Paso for Ethical Government” was signed by some local politicos. Among what the signers, of the contract “vowed to establish” was a “blue-ribbon commission on ethical government with the authority to investigate and advocate best practices”, establish a “hotline” to take reports on “misconduct” and a “way to make all public meetings accessible to the public” through the Internet and public television. The signers also sought to create a website that makes “available financial disclosure reports filed by all El Paso elected officials” and to set up nonpartisan voter initiatives. The “commission” proposed to setup a mechanism with which to report “misconduct to proper law enforcement”.
Those who signed the “contract” were: Susie Byrd, Eliot Shapleigh, Presi Ortega, Beto O’Rourke, Ann Morgan Lilly, Lisa Colquitt-Muñoz and Steve Ortega.
On June 24, 2007, a guest editorial titled; “Officials vow more ethical government” was published in the local paper. The editorial references the “historic public corruption scandal” and the need “to rebuild the public trust”. The signers agreed to “ensure that candidates and future office holders agree” to the “Contract with El Paso”.
They go on to write that as they “work in public office” they expect the community to “demand the highest level of ethical, honest and principled conduct in local governance”. They added; “For government to function at its best, officials must actively promote and honor principals of good government, and ferociously combat conduct that impedes good government”.
Among 14 signers to the “pledge to El Pasoans” was none other than Steve Ortega.
Therefore the only question I have now and the only question anyone should be asking themselves is: where in Steve Ortega’s motion and actions does “good government” fit in?
Click here to read the actual court filings.