Phone records reveal contact between council members
Sept. 28, 2013 at 4:28 a.m.
Phone records of a former Victoria City Council member show a series of discussions occurred outside the public's view.
Joe Truman, who was defeated in a June runoff election, produced the phone log, which showed he and other council members talked repeatedly before a heated May 14 meeting. Their actions at that meeting led others to accuse the council members of violating the state's open meetings law.
Only Truman has produced the records requested by the Victoria Advocate. The three current members - David Hagan, Emett Alvarez and Josephine Soliz - refused again last week to provide the records required by law to be open.
"If it's government business, you would think any government-related correspondence or discussions normally would be produced," said Freedom of Information Foundation of Texas attorney Margaret Maddox. "I wouldn't talk about business anywhere except a publicly noticed meeting."
Despite the phone records, Victoria County Criminal District Attorney Stephen Tyler said he would not investigate whether council members withheld records or collaborated in a quorum outside posted meetings.
"You can't criminalize political activity if we're going to have a democracy," Tyler said.
Tom Kelley of the Texas Office of the Attorney General said the city certified to the state's Open Records Division that it had released all responsive information.
City Attorney Thomas Gwosdz said he made no attempt to "independently verify" statements from council members.
Kelley said the "logical next step" would be for the newspaper or a concerned resident to file an application for a writ of mandamus, which would compel the council members to release the documents.
Advocate Publisher Dan Easton said the newspaper "is in the business of reporting the truth, not in the business of prosecution or litigation."
"We filed multiple open records requests based on the law, but unfortunately, some council members have refused to comply, and no one has stepped in to provide any enforcement," Easton said. "Any private individual or business has a right to sue, but we would prefer to see our elected officials do the right thing and for our government enforcement agencies to step in when they don't."
The dispute began at the May 14 meeting when the council was to ratify its election results. What set off the flurry of communications was then-Mayor Will Armstrong's decision to withdraw from a runoff election against top vote-getter Paul Polasek.
Truman said he and the others became concerned that the city charter required a runoff election.
Truman, Hagan, Alvarez and Gabriel Soliz, the son of council member Josephine Soliz, began coordinating research and reviewing state laws about how to proceed, Truman said. They also talked with Omar Rachid, the third-place finisher who they thought should be in the runoff if the mayor dropped out.
Truman said he voted his conscience and still believes a runoff between Polasek and Rachid is necessary.
"All I ever had in my heart was doing what was right for my constituents," he said.
A walking quorum, sometimes called a rolling quorum, occurs when a governmental body takes action or discusses public business outside a public meeting. If it occurs, it violates the Texas Open Meetings Act.
Truman said he and his colleagues meant no harm.
"All we were trying to do is get the information that was not given to us," he said.
"I felt my phone records proved nothing was done in an untoward manner," Truman said. He also had the city attorney review his text messages and emails, he said.
Truman said he couldn't answer why the three current City Council members have refused to release their records.
"I can only speak for myself on that. ... It's their skin they have to live in."
Along with the phone calls, Truman said he met with Alvarez about noon before the council meeting.
When asked about the walking quorum, Alvarez said, "There's nothing to talk about."
Councilwoman Soliz also refused to be interviewed for this article.
"I have no comment on anything you could possibly ask me right now," she said.
Soliz and Hagan both submitted statements to the city attorney that they had no records pertaining to the open records request filed by the Advocate.
However, Truman's records show he had multiple phone conversations with Hagan before the May 14 meeting and talked with Soliz's son.
Asked about the records, Hagan walked out on an interview.
"I don't have any comment about anything," Hagan said.
As he walked out of his office after a one-minute interview, he said, "I think that's the end of our visit."
As for council members saying they have no records, Tyler said, "Lying is not illegal."
"If you want me to exercise the power of the state, charge people, require them to get an attorney, infringe upon their liberties and freedoms where they're on bond and have the weight of the state coming against them, I need something more than what you need to print an article," Tyler said.
Former Mayor Armstrong said he thinks an investigation would reveal the law was broken.
He said he saw a double standard in how the district attorney was interpreting the law now compared with 2007, when Tyler charged city officials who had expressed concern about an investigation into Tyler's chief of staff.
"About $500,000 was spent the last time he took on the city when he indicted me, the mayor; the police chief; the police lieutenant and the city attorney," Armstrong said. "Every person was exonerated. Here is some hard evidence. He has subpoena power, and he won't get involved."
The public deserves the transparency those council members promised when they ran for office, Armstrong said.
"Stonewalling doesn't work for public officials," he said. "Emett, Josephine, David, if you made a mistake, admit it, and let's get on with business."
Tom Willis, a former planning commission member, said he had seen a pattern of behavior that pointed toward a walking quorum by Truman, Hagan, Soliz and Alvarez.
He cited another council meeting earlier in the year when the four voted against the planning commission's recommendation on a sign variance.
"What got me was the fact that all the discussion went one way, and then all of a sudden, the vote went completely opposite with no discussion at all," Willis said. "When I saw it coming again, that's what triggered it. These people have a pattern that is not apropos."
Some residents have raised concern that a friendship between the district attorney and Hagan is influencing his decision not to proceed with an investigation.
"I don't make a habit of making friends in the first place. ... I have no social life," Tyler said.
He said the fact that he knows some people has not accrued to anyone's benefit.
"Demonstrate a single instance of favoritism," he said. "You won't find any."