District Attorney will not file charges for alleged violation of open meetings act

District Attorney Jaime Esparza announced Thursday he will not prosecute the former El Paso mayor, three former city representatives and current city representative accused of violating the Texas Open Meetings Act.

“The District Attorney’s Office is declining to prosecute these cases due to insufficient evidence of criminal intent,” Esparza said in a statement emailed to ABC-7.

“The investigation revealed former Mayor Oscar Lesser, former council members Lily Limon, Jim Tolbert and Cortney Niland – and current Representative Peter Svarzbein – as well as the members of the El Paso County Historical Commission, lacked the specific intent to circumvent the Open Meetings Act,” Esparza further stated.

Esparza’s office did recommend the City and County ensure all members subject to the Open Meetings Act receive additional training on all aspects of the Act.

In December 2016, El Paso resident Jud Burgess filed a formal ethics complaint against Leeser and the four city representatives over their participation in a closed door meeting with some of those opposed to the proposed location of the Downtown arena.

Surveillance footage obtained by ABC-7 appeared to show Leeser and the city council members engaged in “walking quorum” meetings to discuss possible alternative sites for the Downtown arena.

In his complaint, Burgess states, “I believe the Mayor and 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.”

The complaint further stated, “City Council members and the Mayor cannot rotate members in the meeting over small periods of time to avoid meeting the number that constitutes a quorum for the purpose of avoiding giving public notice.”

At the time, Dr. Max Grossman, opposed to the location of the Downtown arena in the Duranguito neighborhood, told ABC-7 he was contacted by City Rep. Lily Limon. “She asked me if I was willing to organize a meeting with four members of City Council our inner circle in the opposition.”

According to the complaint, Limon, Tolbert, and Svarzbein met in the Mayor’s office privately with local citizens. Tolbert left the closed door meeting just before Mayor Leeser and Rep. Niland arrived to continue the meeting with local citizens, the complaint states. Some time later, Svarzbein left the closed door meeting to allow Tolbert to re-enter, the complaint states.

In a text message sent to ABC-7’s Estela Casas after the DA’s decision was announced, Leeser said, “I have been certain from the beginning that there was no wrongdoing. I always felt as mayor of the city it was my duty and responsibility to listen to all the citizens, not just a selected few. It was a shame that the media rushed to judgment on this.”

After learning of the DA’s decision, Burgess told ABC-7 he wasn’t surprised. “I was angered and I was upset, disappointed, but it just wasn’t surprising. I think it was pretty obvious from the get go that the DA Esparza just never had any intention of actually prosecuting,” Burgess said, “I would’ve liked to of seen a $500 fine and then the verdict that that they’re guilty because everybody knows it was intentional.”

Thursday, Grossman told ABC-7 he was surprised the DA lumped in his exoneration with that of the Council members. “As if what we did good in anyway be equated with what they did. Apples and oranges. They were trained in TOMA. As the county official said repeatedly, including (former County Judge) Veronica Escobar, we were never given the legal training to know that there could be a potential violation.”

At the time the complaint was filed, Niland told ABC-7 she believed Council never violated the Open Meetings Act. “No. No. No. No. We never were at a position where it was a quorum and we are always very cognizant of the open meetings act,” Niland said, “The mayor and I were not participants in the first meeting and we were at the metropolitan organization meeting. We would never jeopardize putting anyone in that situation.”

“I’m delighted and also relieved. I understand it was because they couldn’t prove intent which is what I’ve been saying all along. First of all I don’t ever think we ever did anything wrong. Second of all, there was never any collusion and third there was never any intent. So I’m glad they finally came to this conclusion,” former representative Jim Tolbert said Thursday.

Tolbert added he thinks the case impacted the election in which he was ousted as a city representative.

“What I’m sad about or a little bit unhappy about is I think the election would’ve gone completely different had people in district two known about this in May and June. My opponent and her campaign manager Susie Byrd portrayed me slanderously as a criminal and a corrupt politician and it was just a matter of hey, I’m just trying to help people,” Tolbert said.

In a statement Rep. Svarzbein stated, “For the past year, I’ve been focusing on working hard on serving this community and my district, and I look forward to continuing to do so.”

Former representative Lily Limon also telling ABC-7, “I’m thankful a thorough investigation has been completed and am not surprised that no charges will be filed. I always acted in what I felt was the very best interest of District 7 and the City of El Paso.”

Former representative Cortney Niland could not be reached for comment Thursday.

Meetings of Less than a Quorum in Attempt to Evade the Act: “walking Quorums”

On occasion, a governmental body has tried to avoid complying with the Act by deliberating about public business without a quorum being physically present in one place and claiming that this was not a “meeting” within the Act. Conducting secret deliberations and voting over the telephone, when no statute authorized this, was one such method.

A “walking quorum” is described in Esperanza Peace and Justice Center v. City of San Antonio.

The night before an open city council meeting was to be held, the mayor met with several city council members in the city manager’s office and spoke with others by telephone about the city budget. A decision was made that night and ratified at the public meeting the next day. The federal court stated that it would violate the spirit of the Act and render a result not intended by the Legislature “If a governmental body may circumvent the Act’s requirements by ‘walking quorums’ or serial meetings of less than a quorum, and then ratify at a public meeting the votes already taken in private.” The Esperanza court said that a meeting of less than a quorum is not subject to the Act “when there is no intent to avoid the Act’s requirements.”

On the other hand, the Act would apply to meetings of groups of less than a quorum where a quorum or more of a body attempted to avoid the purposes of the Act by deliberately meeting in groups less than a quorum in closed sessions to discuss and/or deliberate public business, and then ratifying their actions as a quorum in a subsequent public meeting.

The evidence showed that the city council intended to avoid the Act. For example, the mayor met with council members constituting less than a quorum to reach a conclusion; the city manager kept track of the number of council members present so as to avoid a formal quorum; the consensus reached was memorialized in a memorandum containing the signatures of each council member; and the consensus was “manifested” when adopted at an open meeting.