Shortly after the city’s Ethics Review Commission voted unanimously to issue a letter of reprimand against Cassandra Hernandez, several individuals reached out to us about the process for removing a city representative from office. As we reported, the El Paso Ethics Review Commission can only recommend the removal of a city representative to the city council as part of a sanction. The Commission did not do this with Cassandra Hernandez. However, a former member of the El Paso Civil Service Commission reached out to us to tell us about a 14-day clause that kicks in as soon as Hernandez is given the letter of reprimand. In addition, and although we were unable to confirm that at least one member of the city council has been discussing the removal of Hernandez openly, we heard from several individuals that they were aware of the removal discussions.
There are two processes for the removal of a city council representative. Because El Paso is a home rule city, the qualifications and the removal of city representatives are governed by the City Charter. (Tex. Elec. Code Section 145.097) The two removal processes in the City Charter are a citizen-led initiative, also known as the recall petition, and the city council voting to remove one of its members.
Article III of the Charter addresses the city council removal process. Section 3.4 states that the city council “shall be the judge of the election and qualifications of its members and of other elected City officials and of the grounds for removal from office.” [emphasis added]
The Charter goes on to state that,
“An officer, including a Representative or the Mayor, charged with conduct constituting grounds for removal from office shall be entitled to a public hearing, and notice shall be published in one or more newspapers of general, daily circulation in the city at least one week in advance of the hearing. Decisions made by the Council under this section shall be subject to review by the courts.”
Should the current city council decide to pursue the removal of Cassandra Hernandez, they would need to post a city council agenda item one week before they vote on it, according to the Charter.
Section 2.1, subsection D, provides reasons for the removal of a city representative. Number three of the subsection states that a city representative may be removed from office if they “violate the City Ethics Ordinance.”
On Thursday, Hernandez was issued a letter of reprimand. The city’s Ethics Review Commission found that Hernandez violated the City Ethics Ordinance when they issued the third most severe sanction. However, the Commissioners did not recommend the removal of Hernandez. Nonetheless, the city council has previously considered removing one of its members and previously removed Cassandra Hernandez.
City Council Discussed The Removal Of Sam Morgan
The city council previously discussed removing a city representative when then-representative Sam Morgan was arrested on assault charges after his wife called police on October 4, 2019 to report that Morgan had assaulted her.
A few days after Morgan’s arrest, then-Mayor Dee Margo posted an agenda item for the upcoming city council meeting. Margo’s agenda item called for discussing the city charter and the provisions for removing a city council member from office. Margo told the El Paso Times then that “in light of recent events regarding District 4, Tuesday’s agenda item will provide clarification” for the “City Charter provisions relating to an elected city official’s removal from office.”
On October 15, 2019, the city council went into executive session to discuss agenda item 31.2. The agenda item called for the “discussion of El Paso City Charter provisions relating to an elected city official’s removal from office.” The item was about Morgan. After emerging from executive session, Dee Margo said that the city council doesn’t have the basis to remove Morgan from office “until this is resolved legally.” The case against Morgan remained in the court system and under the law was innocent of the charges, leaving the city council unable to remove him.
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On October 29, 2019, Morgan was stripped of his mayor pro tempore role and replaced with Cissy Lizarraga by the city council on a vote of four to three. Voting in favor of replacing Morgan as the mayor pro tempore were Peter Svarzbein, Claudia Ordaz and Isabel Salcido. Voting against the item were Alexsandra Annello, Cassandra Hernandez and Henry Rivera. Morgan abstained from the vote. Dee Margo broke the tie vote.
In 2019, Morgan ran for re-election while his criminal case remained pending. The incumbent had four opponents. They were Shawn Nixon who was arrested during the campaign for writing bad campaign checks. Morgan’s other opponents were Sissy Byrd, Wesley Lawrence and Joe Molinar who won the election and currently holds the seat. Molinar was recently issued a letter of admonition by the city council for sexually harassing a female city employee during a recent city holiday event.
On February 15, the felony case against Morgan was dropped by prosecutors. A misdemeanor charge for the same incident remained open. On June 21, the misdemeanor case against Morgan was also dismissed.
The City Charter On Removing A City Representative
An elected official may be removed from office if they are convicted of a felony or misdemeanor involving moral turpitude. According to the Cornell Law School online Legal Information Institute, moral turpitude is generally defined as “An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.”
However, the city council can also remove a city representative if they violate the city’s ethics ordinance.
Cassandra Hernandez Previously Removed By City Council
In September 2019, the city council voted to call a special election to replace Hernandez after a Facebook post appeared that announced Hernandez was going to run for mayor. Hernandez denied that it was an official announcement. Under Texas law, an elected official that announces they are running for another office must resign from their current office.
Although the Facebook post was live for a few minutes, the then-city council voted four to three to hold a special election for her seat on September 3, 2019. Cissy Lizarraga, Sam Morgan, Claudia Ordaz and Henry Rivera voted to essentially declare her seat vacant. Hernandez was not allowed to vote on the matter because the city council had voted before hand to prohibit her from voting on the special election matter. In a split vote, Morgan, Ordaz, Rivera and Lizarraga voted to prohibit Hernandez from voting on holding a special election for her seat. Peter Svarzbein, Alexsandra Annello, Isabel Salcido and Hernandez voted to allow Hernandez to vote on the special election. Dee Margo broke the tie vote on the measure prohibiting her vote.
The motion to hold a special election for Hernandez’ seat was made by Claudia Ordaz, seconded by Henry Rivera. It carried four to three. Voting in favor of holding the election were Ordaz, Rivera, Morgan and Lizarraga. Voting to not hold the special election were Svarzbein, Annello and Salcido.
Hernandez argued during the ordeal that the posting was an “inadvertent” posting made by a volunteer. She added that she had not authorized the posting. She had previously provided the city council with an affidavit from the volunteer where he said he had published the Facebook post by mistake.
The city council vote to set a special election for her seat did not declare that she had vacated her seat. There was never an official declaration that the Facebook post had forced her resignation.
After the vote, city officials argued that Hernandez would not be allowed to run in the November 5, 2019 election to keep her seat. However, in a later statement, City Attorney Karla Nieman clarified that Hernandez was allowed to run to regain her seat under state law. At the time, Hernandez had said that the special election “was politically motivated.” Hernandez, who ran against three other candidates vying for her seat, received 46% of the vote forcing her into a runoff against Will Veliz, who received 29% of the vote. The two other candidates were Ana Dueñez with 6% of the vote and Brooks Vandivort with 19%. Hernandez kept her seat with 53% of the vote against Veliz’ 47% in the December 2019 runoff election. Only 147 votes separated the two, with over 3,000 votes cast in that election.
Hernandez was first elected in 2017 defeating Jaime Barceleau in a runoff election 59% to 41%.
Hernandez Statement About The Ethics Reprimand
On Friday, Hernandez issued a statement to KVIA about the letter of reprimand she received from the Ethics Review Commission. In the statement to KVIA, Hernandez said;
“After two days and twelve long hours of vigorous defense, the Ethics Review Commission has reprimanded me without sufficient cause or clear and convincing evidence. Full cooperation was provided on my part, as I willingly disclosed my personal checking accounts to showcase my household personal fuel expenses which accounts for a third of the disputed fuel expenses in question. Additionally, I shared the exhaustive work I undertake for my district, which necessitates considerable work-related travel. I also shed light on the importance of my family’s support in fulfilling my responsibilities.
The decision handed down by the Ethics Review Commission is deeply troubling, particularly in its potential application to ALL members of City Council. It appears that the Commission’s reasoning could have far-reaching implications for everyone serving in the City Council. The basis for their reprimand was the issuance of a gas card to me by the City, in the absence of a clear guiding policy, a move which the Commission subsequently condemned.
If the Commission genuinely believes that these matters are of significance, it is essential for them to apply the same standard across the board and issue similar reprimands to all City Council members. Furthermore, they should take a proactive stance in advocating for the establishment of a coherent and applicable gas card policy.
I am profoundly grateful to all the supporters who passionately spoke on my behalf during this challenging time. The outpouring of support from my constituents has been truly heartening, and I draw strength from their encouragement.
Ultimately, I remain committed to serving my district and upholding the trust placed in me by the community. I will continue to work tirelessly in advocating for their needs and aspirations, and in promoting transparent and ethical governance.
Thank you.”
The 14-Day Rule
One of the questions we were asked was whether the city council was required to move to remove Hernandez within 14 days of the formal issuance of the letter of reprimand. The city’s charter does not provide a required 14-day rule. However, the 2020 Ethics Ordinance addresses the 14-day rule in section 2.92.200, subsection F.
The Ordinance’s language states that the 14-day rule only applies if the Ethics Review Commission had voted to recommend the removal of Hernandez when it issued its letter of reprimand. It did not and in the case of Hernandez there appears to be no 14-day requirement for the city council to vote on removing her from office. Nonetheless, there has been frequent recent commentary that the city council needed to act immediately to remove her from office considering the finding that she violated the city’s ethics ordinance.
However, that is not the case, and the city council can act later should they wish to.
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A Recall Of Hernandez
The other possibility to remove Hernandez from office that is available is the recall provision. Under the City Charter, to recall any city representative, any voter seeking to recall an elected official must file an intention to recall the official. After filing their intention, the recall organizers have 60 days to collect the necessary signatures. The Charter states that for the petition to be valid, 20% of the total number of votes cast in the representative’s last election, not including any runoff election, must be collected.
It would take 4,884 signatures from voters in her district to recall Hernandez. Hernandez is termed out and the next election for her seat is in 2024.
The Political Calculus
El Paso News spoke to several individuals about the possible ongoing discussions among one or several members of the city council about removing Hernandez. None had first-hand knowledge of any discussions among current members of the city council, but they have institutional political knowledge and prior experience in government. All agreed to speak to us on background only because of the political sensitivity behind the removal of an elected official.
One of the calculations being made is that another city representative is expected to go before the city’s Ethics Review Commission with similar allegations to the ones presented by George Zavala against Cassandra Hernandez. In the Annello case, Deborah Paz alleges that Annello “has allowed someone else to use her fuel card.” Among the Commission’s findings in the Hernandez case was that Hernandez allowed the “unauthorized use of the card” by having her husband fill up her gas tank with it and leaving it unsecured and accessible to unknown individuals.
If the Commission reaches a similar decision in the Annello case, that would put Annello in the same predicament of the possible removal from office that Hernandez may be facing. The political calculus for the removal of Hernandez involves the likelihood that representatives Alexsandra Annello, Art Fierro, Brian Kennedy would vote to expel Hernandez. That would be three votes in favor.
However, as happened in 2019, when Hernandez was effectively removed from office because of the Facebook post, the then-city council voted to prohibit her from voting on the measure. With this precedent in place, it is possible that a similar vote would be held again. If that were to happen, there are likely four votes in favor to remove Hernandez, assuming the other city representatives voted against.
But for that to happen, Annello would have to vote in favor of removing Hernandez from office leaving her to face the same consequences should the ethics commission reach a similar finding in her case. There is also the pending ethics complaint against Kennedy that has not been forwarded to the Ethics Review Commission.
There is another vote that must be considered – the vote by Joe Molinar. A recall signature collection is underway to recall Molinar. Although Molinar would likely vote to remove Hernandez, his possible recall will likely impact his decision. It takes 5,189 signatures to recall Molinar.
There is also the cost to the taxpayers to hold another election. All three representatives, Annello, Hernandez and Molinar have terms that end in 2024. Voters would likely expect officials to make the decision on all three candidates in the upcoming scheduled elections rather than have the taxpayers pay to fill the Hernandez unexpired seat this year. All three would serve until the end of 2024.
There are at least three individuals considering recalling Hernandez, according to individuals with first-hand knowledge who have confirmed the information to us. It is unclear whether they will file the recall notice with the city clerk in the coming days.
We asked George Zavala for his comments about the possible removal of Hernandez or a recall of her. Zavala was the El Paso resident who filed the ethics complaint against Hernandez that resulted in the letter of reprimand that was issued to her by the city’s Ethics Review Commission last week.
George Zavala Comments
Zavala wrote to us via email that he is “satisfied as to the decision that the ethics review commission rendered on Thursday.” Zavala added that “as for any other action beyond that I feel that it would be best made by the voters.”
We asked Zavala if he had been contacted by individuals seeking to recall Hernandez. Zavala replied that “yes, I’ve been contacted in regards to recalling Hernandez for which I will not participate in but will sign if it is presented to me.” Zavala added that “my goal with the ethics complaint was to hold Hernandez accountable and hopefully this will set some type of precedent for others to follow.”
Because of the political calculus, city council is unlikely to move to remove Hernandez several of our sources told us. However, some have expressed hope that a recall is launched as it would provide cover to the existing office holders to argue they are not involved, thus making the potential political fallout less important in their political calculations, according to a former elected official who explained it to us as background information only.
This article was updated on July 26, 2023 to correct a calculation error in the number of signatures needed to force a recall of Hernandez. The correct number is 4,884 signatures.
We will continue to monitor this developing story and update you as more information becomes available.
The number of signatures required to recall a select list of current El Paso city representatives:
- Alexsandra Annello – election signature count: November 3, 2020, 20% = 3,576
- Art Fierro – election signature count: November 8, 2022, 20% = 3,357
- Cassandra Hernandez – election signature count: November 3, 2020, 20% = 3,576
- Brian Kennedy – election signature count: November 8, 2022, 20% = 4,245
- Joe Molinar – election signature count: November 3, 2020, 20% = 5,189
Disclosure
It is the policy of El Paso News to disclose the names of the political candidates or individuals the author’s branding and technology company provides services to when reporting news on topics that relate to them. The Women’s Voice for Political Reform Political Action Committee has contracted for technology services. The technology services are provided separately from the publication and have no influence on our reporting.
