10 ethics complaints filed against city reps, city attorney, mayor

Nine ethics complaints have been filed this week alone against several city reps, the city attorney and the mayor.

According to documents obtained by ABC-7, two complaints were filed by Jud Burgess and seven by David Aviles.

Both men filed the initial complaints on December 19th and 20th, against City Councilors Lily Limon, Jim Tolbert, Peter Svarzbein, Cortney Niland and Mayor Oscar Leeser. The group is accused of holding a rolling quorum by walking in and out of a meeting held December 16th, 2016, without notifying the public. Surveillance video obtained by ABC-7, shows the city reps entering and leaving city hall during the meeting. Four days later, the group voted to remove the Duranguito neighborhood as a possible location for the voter-approved Downtown arena.

Monday, City Attorney Sylvia Borunda-Firth dismissed the two ethics complaints against the mayor and city reps. In a letter obtained by ABC-7, Firth stated the complaints filed by the two men did not describe a city ordinance that was violated, and instead, centered on a possible violation of state law. Firth added the complaints should have been filed by the district attorney or county attorney.

Conspiring to avoid a quorum by walking in and out of meetings is a violation of the law. District Attorney Jaime Esparza has referred the case to the Texas Rangers for investigation.

Burgess filed a complaint against City Attorney Silvia Borunda-Firth. In his complaint, Burgess states Firth missed her deadline to reach a decision regarding the ethics complaint filed on December 19th, regarding the violation of the Texas Open Meetings Act.

Firth had 20 days to respond to the complaint. In an ethics commission meeting held last week, Firth said her office interpreted the deadline to mean 20 working days, considering city hall was closed for 10 days during the holidays.

“I chose to file ethics complaints against her because I find a pattern of willful disregard for local citizens attempting to shine light on ethical lapses among our public servants, herself included. For her to re-interpret the plainly written 20-day requirement she had to respond to my complaint by adding her own assumption that it meant 20 days excluding weekends, city non-working days and holidays is a huge stretch for an attorney that should and likely knows better. She waited to the last day possible to respond, 35 days after my complaint was filed and 15 days late according to the 20 day requirement,” Burgess said in an emailed statement to ABC-7.

Burgess also states “Firth should have immediately recused herself from my complaint and forwarded it to outside council for review rather than involving in it since the day of my filing, on December 19th, 2016. It is a conflict of interest for the city attorney to be involved in it at all under city ethics rules and under (State Bar) attorney ethics rules.”

In another part of his complaint, Burgess states Firth “committed a breach of ethics by dismissing my original ethics complaint filed against Mayor Leeser and four City Council reps on December 19th.” Burgess cites the letter sent to him, dismissing the complaints. He adds, “It is my contention that she had no jurisdiction to make that determination because she should have immediately recused herself and sought outside counsel after I filed the complaint 30+ days earlier.”

Burgess filed a second complaint against Leeser, Tolbert, Limon, Niland and Svarzbein. Burgess states, “I believe that Mayor and the four City Council members named in this complaint intentionally conspired to avoid quorum by gaming the Texas Open Meetings Act and participating in a rolling quorum which allowed them to conduct closed-door meetings without public notice.”

Burgess states it is an ethical violation of City Council Procedures and Rules, citing two parts of Section 3.5:

A. “Meetings. Regular meetings of the Council shall be held in Council chambers no less than once every other week at such times as may be prescribed by resolution. Special meetings and informal work sessions of the Council shall be called by the Mayor or a majority of the entire Council by giving written notice to the City Clerk. All meetings of the Council and of any committees thereof shall be held as permitted by the Texas Open Meetings Act.”

C.”Quorum. Except as otherwise provided in this Charter, a quorum to do business shall consist in more than one-half of the number of members of the Council, including the Mayor; provided, however, that a lesser number may adjourn until a specific time and compel the attendance of absent members, in the manner prescribed by ordinance.”

David Aviles also filed a complaint against the group, citing Section 2.92.050, Paragraph G, Standards of Conduct, of the city’s ethics ordinance, which states: “Officers or employees shall not knowingly perform or refuse to perform any act in order to deliberately thwart the execution of the city ordinances rules or regulations or the achievement of official city programs.”

Aviles further states “the listed individuals deliberately acted to avoid a technical violation of the Texas Open Meetings Act. They conspired to avoid a violation of this later.” Aviles also cites the surveillance video obtained by ABC-7, which show city reps rotating in and out of the meeting area to avoid five of them being in the room at the same time. Aviles also cites text messages obtained by ABC-7 which show a conspiracy to avoid a quorum.

In another complaint filed against the group, Aviles again cites Section 2.92.050, Paragraph G, Standards of Conduct, of the city’s ethics ordinance. Aviles specifically states, “To be very clear, this specific complaint is not alleging any kind of criminal activity. It is only an ethical complaint against the conduct of these city employees.”

Aviles also states “there are no meeting forms as far as I know, which is why I am filing this complaint. The decision to have this meeting not accessible to the public was made deliberately. There are eye witness accounts of the meeting taking place as well as admissions by the parties involved in the meeting took place. The parties involved have also admitted that they did not violate the Texas Open Meetings Act because all five members were not in the room at the same time.”

Another five ethics complaints were filed by Aviles, one each against Leeser, Tolbert, Limon, Niland and Svarzbein. Aviles states each was knowingly involved in the rolling quorum on December 16th, in spite of knowing it was unethical action per Section 2.92.050, Paragraph G, Standards of Conduct, of the city’s ethics ordinance.

In Niland’s complaint, Aviles states he’s dependent on the attorneys of the city and the Ethics Commission to understand his “subjective complaint.” Aviles uses a comparison of rape to drive his point, stating, “I do not know the name or the subsection of the law that makes the act of rape illegal in El Paso. However, if a city representative was accused of rape, being that rape is unethical in my mind, I would hope that a complaint could be files without the filer knowing the exact paragraph in city, state or Federal law that makes rape illegal. I would also hope that a serious charge such as what I am filling about could be investigated without the accused parties being fund guilty in a court of law. Crime can be unethical. Murder and rape are unethical, even if the law did not state murder and rape were bad, I would feel that way. As such, the actions of Councilwoman Niland, either in a legal violation of the Texas Open Meetings Act law, or trying to explain a loophole in it, constitutes an ethical violation. At the very least, that is worth an investigation, it for no other reason to show the innocence of Niland.”

In his complaints against Limon and Svarzbein, Aviles cites Section 2.92.050, Paragraph N, Standards of Conduct, of the city’s ethics ordinance, which states, “officers or employees shall not, in the case of an employee, recklessly disregard the established practices or policies of the city relating to the duties assigned to the employee.”

Aviles adds Limon publicly discussed text messages she had sent, arranging the meeting of the city representatives and Svarzbein “knew that is was unethical for city reps to meet in his manner, yet he was willingly and knowingly part of it.”

The violations are considered a misdemeanor. If found guilty, a person could face up to a $500 fine and/or six months in jail.