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4 Victoria City Council members may have violated open meetings law

By Melissa Crowe
May 18, 2013 at 12:18 a.m.
Updated May 20, 2013 at 12:20 a.m.


A Walking quorum is:

• Meetings of less than a quorum in an attempt to evade the Texas Open Meetings Act. In the case of the Victoria City Council, a quorum would be four out of seven members.

• Deliberating about public business without a quorum being physically present in one place and claiming that this was not a "meeting" within the act is a violation.

•  Conducting secret deliberations and voting over the telephone is also a violation.

• Walking quorums are punishable by fines not to exceed $500, not more than six months of jail time or both.

Source: Texas Open Meetings Act

HOW IT WORKS

• Victoria City Charter Article II, Section 3: The mayor is elected at large with a majority of the votes cast - 50 percent plus one vote.

• Victoria City Charter Article VII, Section 1: If there is a conflict between the Texas Election Code and the city charter, the election code supersedes.

• Victoria City Charter Article VII, Section 2: Runoffs are to be conducted according to the Texas Election Code.

• Texas Election Code 145.097: Provisions governing the withdrawal, death or ineligibility of a candidate for city offices in a home-rule city charter supersede this chapter.

• Texas Election Code 145.005 (d): Does not apply because Will Armstrong did not withdraw from the general election.

• Texas Election Code 2.023 (a): If a runoff is required, then the candidates are the two who received the most votes.

• Texas Election Code 145.095: If a runoff candidate withdraws, the remaining candidate is considered to be elected, and the runoff is canceled.

Source: Victoria City Charter, Texas Election Code

IF YOU GO

• WHAT: Swearing in of councilmen

• WHEN: 5 p.m. Tuesday

• WHERE: Victoria City Council Chambers, 107 W. Juan Linn St.

• FOR MORE INFORMATION: victoriatx.org

When Victoria's top elected official called it quits, David Hagan, Victoria mayor pro-tem, thought he'd hear about it from the man himself.

A week since Will Armstrong announced his withdrawal from the mayoral runoff election, Hagan's memory is fuzzy, but the emotions are still strong.

"It's appalling that as mayor pro-tem I did not receive any official communication," he said. "I'm just disappointed with the entire process."

But it's that process - in particular, the events leading up to the mayor's decision and the council meeting that followed - that Hagan cannot recall; specifically, whether he and three others violated the Texas Open Meetings Act by coordinating their actions before Tuesday's meeting.

The meeting agenda called for three men to take the oath of office and to schedule a runoff between Joe Truman, the District 5 incumbent, and Andrew Young.

However, more than half the council was dead set on having a mayoral runoff election, this one between top vote-getter Paul Polasek and the third-place vote-getter in the May 11 election, Omar Rachid. Armstrong received the second most votes.

In the end, no action was taken after the hourlong heated debate.

The conflict punctuated a year of acrimony on the council with four council members - Emett Alvarez, Hagan, Josephine Soliz and Truman - often aligning on key issues. The opposing voting bloc consisted of Polasek, Armstrong and Tom Halepaska.

At Tuesday's meeting, Alvarez, Hagan, Soliz and Truman used the same arguments and research and raised the same questions in an attempt to illegally put Rachid's name on the runoff ballot for mayor.

As the arguments to change the election disintegrated, the group voted to rescind the runoff amendment it had approved and postpone the decision until this week.

In the final vote, several council members appeared to search for cues from each other before raising their hands in favor of delaying the action. The decision to wait passed 4-3, with Armstrong, Halepaska and Polasek voting against it.

Polasek said he does not have any evidence of wrongdoing but cannot help but think something was planned.

"It just appeared to me that there had been quite a bit of discussion beforehand," he said. "Some of the verbal cues and eye contact, just listening to them. There was no persuasion. They seemed to be supporting each other immediately."

Joel White, an attorney with the Freedom of Information Foundation of Texas, said walking quorums, in which a majority of council members scheme behind the public's eye to vote together, is criminal and can end in jail time.

"In the simplest terms, the public's business should be done in public, and that's why we have an open meetings requirement," White said. "The whole purpose of a walking quorum is to do the public's business secretly so the meetings don't have to be posted, and they'll make decisions in the dark."

Truman said he met with Alvarez for about 30 minutes to pick up a copy of the Texas Election Code before Tuesday's meeting.

"It only becomes an issue when they ask you how to vote," Truman said. "No request to vote in any way was made. Only information was exchanged."

Although Alvarez pointed out relevant sections, Truman said his fellow councilman did not tell him how to vote.

In order to be prepared for the meeting, Truman said, he needed the information ahead of time, which is why he did not receive it in Tuesday's public meeting.

"No one wants to look stupid up there," Truman said. "You want to have the information of what is pertinent to the issue at hand."

While Victoria County Criminal District Attorney Stephen Tyler is not formally investigating the matter, he said he was aware of the mounting questions.

The city received an open- records request from the Advocate on Wednesday asking for correspondence involving the council members leading up to Tuesday's meeting. Those records have not been received yet.

About 11 p.m. Monday, Hagan said, he took a phone call from a friend with the news on the runoff. He did not remember if the friend was fellow Councilman Alvarez or another Victoria politico.

"I can't remember if it was Emett or Ron Reyna," Hagan said Wednesday by phone. "One or the other called me. Somebody called me."

Furthermore, Hagan denied on camera Tuesday in the council chambers that he met with Alvarez that morning to speak with Tyler. He denied it again during a phone interview Wednesday but later said he did join Alvarez.

Hagan said he did not recall when the meeting was arranged or how he and Alvarez coordinated a time to see the district attorney.

Tyler said the two men came to his office first thing that morning, when he was on his first pot of coffee, to ask for a legal opinion.

"The two council members came with some questions about the interaction between the city's charter as it concerns elections and the Texas Election Code," Tyler said. "They had a legal question about which applies in runoffs."

Although two council members meeting together is not a violation of the Texas Open Meetings Act, bringing other members in on the discussion with plans to act at a council meeting is.

Although the four council members are pushing for a runoff between Polasek and Rachid, Rachid said he accepted that Polasek would be mayor. He talked with Elections Administrator George Matthews on Monday when he heard Armstrong withdrew.

Rachid said he is not pushing for a runoff. He has removed his campaign signs and is planning a summer vacation.

However, when Rachid spoke at the meeting, he said he wanted to leave "the ball in their court."

"It wasn't my role to speak as far as rescinding the motion," Rachid said. "It's up to them. ... They could have decided to drop the whole thing on their own."

Alvarez, Soliz and Truman were less clear about when they heard the news and what they did immediately afterward.

Alvarez said he found out Monday night that Armstrong was dropping out of the race and began researching Tuesday morning how the election law addresses it. Like Hagan, he was not clear on details.

"It was pretty late, and I was pretty tired, and this week has been bizarre," Alvarez said.

He said his mind was made up when he went to the council meeting Tuesday.

Aside from meeting with Hagan and Truman, Alvarez also met with Clara Ramos, who opened the public hearing Tuesday by objecting to Polasek being named mayor.

Alvarez said Ramos asked before the meeting to talk with him about the charter and the election code. Ramos works at the office next door to Alvarez.

Alvarez said those who voted in the bloc of four did not coordinate.

"Clearly, we (Hagan and I) met that morning with Steve," he said. "What everybody did on their own is their business."

Alvarez said the four did not exchange visual cues or look to each other before voting.

"I don't know what that's about," Alvarez said. "I wasn't waiting for somebody else to raise their hand."

Soliz said because of the way the vote turned out, it could appear that the four had conspired.

"We're not a walking quorum," she said. "Nobody was talking to nobody. We had the same questions."

She said she read about Armstrong's announcement in the newspaper Monday afternoon. The article published online about 6:30 p.m. Monday and in the print edition Tuesday.

She said her son, former councilman Gabriel Soliz, helped her research.

"That's my prerogative to get help from somebody if he wanted to help, and he did," Soliz said. "The only person I talked to anything about was just Gabriel."

During Tuesday's meeting, Truman said Gabriel Soliz had contacted him. That was the first time, Soliz said, she knew of that call. Soliz and her son live together.

Through it all, Truman said, the best outcome is to have Polasek sworn in as mayor.

However, he said he is still not confident in that statement, and the city attorney's opinion is not enough.

"It is still completely gray," he said. "I see the intent (in the charter) being clear. I want someone other than our employee to tell us that."

During the meeting, the city attorney said he had consulted with the district attorney and received his agreement about the runoff laws. The elections administrator also supported the city attorney's position and said he had received the same opinion from the Secretary of State's Office.

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