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Mayor did not violate charter, legal experts rule

By Gheni_Platenburg
June 15, 2010 at 1:15 a.m.


IN OTHER BUSINESS

Twenty-one resolutions were adopted, including a resolution to:

Grant variances to the city code that govern the city's requirements for itinerant vendors at the Fourth of July Fireworks event.

Renew the annual supply contract for bagged type 1 Portland Cement with Alamo Cement Company.

To authorize the city manager to execute a utility cost review agreement with Exmarc Solutions.

Accept the proposal for the Police and Fire CAD, Records Management and Municipal Court software from SunGuard Sector, in an amount not to exceed $864,666.

Also, two ordinances were passed, including the ordinance to change the collection of hotel taxes from quarterly to monthly.

Members of the public also asked the council for stronger enforcement of permits to sell animals on the sides of roads.

Amended report

Mayor Armstrong also provided a correction affidavit that was filed on June 3 with the city secretary's office in response to a state ethics board complaint Jeff Williams made about Armstrong's campaign spending.

The affidavit outlined expenditures that should have been included on Armstrong's eight-day report and included a third expense of $1,313.20.

No action will be taken against Victoria Mayor Will Armstrong for comments he made about former city council candidate Jeff Williams.

If the complaint was brought to municipal court by the police department, City Attorney Thomas Gwosdz would not prosecute it, the lawyer said during Tuesday's city council meeting.

" ... It is un-convictable as it stands," Gwosdz said.

During the May 4 city council meeting, Armstrong suggested an invitation-only meeting of Williams, Councilmen Gabriel Soliz and Joe Truman at Victoria resident Homer Hill's house was an election-strategizing session.

Williams contends the meeting was to discuss a property value issue in Hill's neighborhood.

The Victoria Police Department received three complaints, including one from Williams, that Armstrong's comments violated Article XII, Section 9 of the city charter. Williams lost his bid for the council in the May elections.

The charter forbids city employees or elected officials from influencing others to favor or oppose a candidate for city office, or make derogatory remarks about candidates for elected positions.

Violations of the charter could result in a misdemeanor charge, a fine not to exceed $500 or forfeiture of office.

Gwosdz said he hired San Antonio-based law firm Denton, Navarro, Rocha & Bernal to review Armstrong's comments to ensure the public didn't perceive a conflict of interest on his part.

The city attorney said he chose to use this firm, which has expertise in legal ethics, because the city council gave him in October approval to use the firm for all special projects.

Gwosdz would not reveal the cost of the law firm's investigation, citing attorney-client privilege.

The firm presented a written statement outlining its findings.

"The municipal court of the City of Victoria had no jurisdiction to consider the offense of improper assistance to a city candidate," the San Antonio law firm said in its statement.

It continued, "However, such an ordinance, if ultimately adopted would likely fail to withstand strict constitutional scrutiny because of the wide and undefined burden that is placed on core speech."

Both Gwosdz, who would be responsible for enforcing this part of the city charter, and Victoria Police Chief Bruce Ure sided with the law firm.

Gwosdz said it is his opinion:

The conduct alleged in the two complaints cannot be prosecuted in municipal court because the court does not have jurisdiction over crimes created solely in the city charter.

The First Amendment would protect any defendant from conviction under this charter provision.

Ure, the police chief, agreed. He said a violation of the charter is "not criminally enforceable" because the city does not have a municipal ordinance that criminalizes potential violations.

Ure added even if a court had such jurisdiction and were to question whether a violation occurred, the police department doesn't believe a violation occurred.

The investigation into the mayor's comments is "administratively closed," Ure said.

Gwosdz said the outdated city charter removes the municipal court's power to prosecute the case.

"I have no doubt the citizens who adopted our city charter intended this section to be enforceable when the city charter was adopted in 1956," Gwosdz said. "However, the citizens chose at that time to delegate the jurisdictional limits of the municipal court to the state legislature."

He added, "They delegated to the state government the decision about what jurisdiction municipal court has and as a consequence of that, it's out of their hands. This provision did not stand the test of time."

Williams, who filed one of the complaints against the mayor, responded to the city attorney's decision not prosecute.

"Great job sweeping this under the rug," Williams said. "There is a difference between freedom of speech and outright slander."

Williams said the only truths Armstrong said during his questionable comments was there was a meeting and that James Wayne contributed to Williams' campaign.

Williams said everything else was an "outright lie."

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