Housing Authority of the City of El Paso suing Texas AG over release of CEO’s contract

The Housing Authority of the City of El Paso (HACEP) is suing the Texas Attorney General over the release of its CEO’s employment contract. The Housing Authority said the lawsuit stems from “an oversight” of a lawfirm it hired.

CONTEXT

Last fall, attorney John Wenke filed an open records request with HACEP asking for a copy of the employment contract of CEO Gerald Cichon.

Wenke also asked for copies of reimbursements requested and received by Cichon from HACEP since 2010.

Wenke is representing former HACEP employee Woodrow Bare who is suing the HACEP and Cichon for wrongful termination, accusing Cichon of mismanaging funds and unethical hiring practices.

Wenke said his open records request is not connected to his client’s lawsuit against HACEP.

“I filed this as a private citizen. I had my own questions about HACEP,” Wenke said.

HACEP is not convinced by Wenke’s claim that his request for information does not stem from his lawsuit against the agency and filed a request with the Attorney General asking it not be required to release Cichon’s contract to Wenke.

HACEP alleges Wenke is attempting to gather information relevant to the lawsuit outside of the standard rules of discovery in court.

The agency cites Texas Government Code 552.103 which partially states “Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.”

Wenke cites the government code that requires a government agency to treat requestors of information equally. Section 552.223 of the Texas Public Information Act states government agencies “shall treat all requests for information uniformly without regard to the position or occupation of the requestor, the person on whose behalf the request is made, or the status of the individual as a member of the media.”

Bill Aleshire, an attorney who volunteers for the Freedom of Information Foundation of Texas hotline, said he thought it’d be best for HACEP to release the information, regardless of whether it relates to the lawsuit.

“They’re going to have to turn it over sooner or later anyway, even in a lawsuit. The CEO’s personnel file is going to have to be required to be turned over so why go through the trouble of fighting it with the Attorney General,” Aleshire said.

Wenke said it would have been easier to request the document in court.

HACEP’s Public Information and Government Relations Officer Shane Griffith sent a statement to ABC-7.

“Early in the proceeding, John Wenke, attorney for the plaintiff, attempted to circumvent customary discovery procedures by improperly using the statutes outlined by the Texas Public Information Act. Based on Texas State law, HACEP is exempt from having to provide the requested information on the basis that it is related to ongoing or anticipated litigation,” the statement partly read.

HACEP SUES ATTORNEY GENERAL

After HACEP filed its request for exemption with the Attorney General, the AG responded by saying it “had no choice” but to require HACEP to release Cichon’s contract – not because it agreed with the requestor but because HACEP didn’t follow an essential rule in the process.

Anytime a government agency contends an open records request, it must send the requested information or a “representative sample” to the Attorney General.

HACEP did not send Cichon’s contract or any information on his reimbursement to the AG. The Attorney General ruled HACEP waived its request for an exemption by failing to provide the documents and thus had to release them to the requestor.

HACEP said the documents were not sent to the AG because of an “oversight” by the lawfirm who prepared their request to the AG. “Regretfully, HACEP’s law firm of Gordon, Davis, Johnson & Shane, P.C., did not include all of the relevant documents in the request for an exemption… In an attempt to remedy its oversight, Gordon, Davis, Johnson & Shane, P.C. filed suit on behalf of HACEP to have these documents reviewed by the 98th District Court. This was done at no cost to HACEP or to taxpayers. All costs will be paid by the law firm responsible for the oversight that limited access of the documents to the Attorney General. ,” Griffith said through a statement.

HACEP filed suit against the AG in late December in Travis County and is hoping the Judge of the 98th District Court grants HACEP the exemption.

Wenke said he hopes the court will require HACEP to release him the documents.

Griffith acknowledged Cichon’s contract is public record and said HACEP would comply with an open records request from media for the document. ABC-7 filed an open records request asking for the same information.

Newspaper Tree filed a story on this. You can read it here.
http://newspapertree.com/articles/2014/01/14/el-paso-housing-authority-files-suit-to-keep-ceo-contract-and-financial-documents-from-public-view