The City of Fort Stockton sought opinions from the Texas Municipal League regarding the City Attorney simultaneously serving as the Assistant City Manager, The Pioneer has learned through an open records request that sought communications between the city and the TML regarding any city employee holding dual positions from July 2019 .
Two e-mails from the city to TML verify that the city was looking at then-City Attorney Jesse Gonzales, Jr. also serving as Assistant City Manager – even after he was announced in his new position.
Seeking an opinion from the TML is not unusual for a government entity.
The timing of the communication would appear to show the thought of Gonzales remaining as the city's attorney while also serving as assistant city manager was in play even after a July 24 press release from the city announcing his hiring as assistant city manager.
Sent at 5:17 p.m. on July 24, the press release wasn’t clear on his role as city attorney, only stating: “Gonzales became the city attorney in December of 2017 and currently holds that position.”
Then, at 9:22 a.m. on July 25, City Secretary Delma Gonzalez sent an e-mail to Bill Longley, the legislative counsel for the TML, with the subject “City Attorney.”
Delma Gonzalez wrote:
“Good Morning Attorney Longley:
“Can the Assistant City Manager also be the City Attorney? We are a Type A General Law Municipality; City Manager Form of Government. Also, if this is of any significance we provide a municipal court.”
Longley replied at 10:13 a.m. that same day:
“Good Morning Delma,
“While state law likely doesn’t prohibit one person from holding both positions, it may not be a good idea for ethical reasons. The attorney has certain ethical obligations under the Texas Disciplinary Rules of Professional Conduct, and those can be compromised, or at least complicated, by this type of dual service. I’d encourage the attorney to review those rules to understand some of the potential pitfalls if the city wanted to go this direction.”
Delma Gonzalez sent Longley’s response in a new e-mail (it was not forwarded), with the subject “City Attorney.” The email was sent out at 10:57 a.m. on July 25 to Gonzales (who was still City Attorney), Rodriguez, Mayor Chris Alexander, and city council members James Warnock, Mike Ureta, Pam Palileo, Paul Casias, and Ruben Falcon.
Coincidentally, at 10:34 a.m. on July 25, Pioneer Publisher Steve Fountain sent an e-mail to the members of the city council, Rodriguez, Gonzales, Mayor Chris Alexander and Gonzalez that read:
“If I am reading item 18 of the Texas Dual Office Holding & Incompatibility Laws Made Easy, it would appear that Jesse holding both offices presents a conflict of interest (later e-mail corrected ‘Conflict of interest’ to ‘incompatibility’).
“Our view in this may not be accurate, which is why we are formally requesting clarification. … The Pioneer is also requesting that the City Attorney provide a written response representing the city’s legal opinion on the question.”
Rodriguez responded at 2:01 p.m. July 25:
“This is in response to your email.
“The question of incompatibility is a non‐issue. Mr. Gonzales applied for the position of assistant city manager, he was the most qualified applicant and was offered the position. Mr. Gonzales expressed that he will be submitting his resignation as the city attorney, making it effective Friday July 26, 2019.. Mr. Gonzales expressed his desire to solely dedicate himself to the new position.”
Back on July 22 at 6:18 a.m., Rodriguez sent the following e-mail to Amber McKeon‐Mueller, assistant general counsel at TML. The subject was “City of Fort Stockton/employment.” Rodriguez wrote:
“Good morning Amber;
“I wanted to make sure I was clear on an answer. According to our current organizational chart, our city attorney reports directly to city council. He is a contract employee where taxes are not taken from his check, but receives health insurance from the city.
“He has recently applied for an open position at the city, (assistant city manager), if selected, can he perform dual roles as the asst city manager and city attorney ?
“Lastly, are you aware of any city’s that have this function , as I am wanting to call them to see how they operate.”
McKeon‐Mueller responded at 12:27 p.m. with the following:
“There is nothing in the law about dual office holding that would prevent the city attorney from also being the city manager. And there should be no common law incompatibility. That being said, you should check with the state bar to make sure there are no ethical conflicts for the city attorney also serving as the city manager. I hope that helps.”
Gonzales was also being considered to serve as both city attorney and interim police chief, The Pioneer reported online July 6. The agendafor the city council's July 9 meeting included an item entitled “Deliberation regarding Duties of City Attorney Jesse Gonzales, Jr." for discussion in a closed-door session.
No action was taken coming out of the closed session and James Valenzuela was later named interim police chief on Aug. 2.
The Texas Municipal League advises government entities, the media and the public on a range of legal and ethical questions regarding government operations. However, communications with the TML are not protected under attorney-client privilege, making them public record.
TML e-mails include the warning in red type: “Please be advised that the information in this e‐mail is provided for informational purposes only. Neither this communication, nor any other communication with the Texas Municipal League (TML), creates an attorney‐client relationship between the TML legal department or its attorneys and you or your city or any third party. Once received by a city official, this communication may be subject to public release. Every city official and employee should consult with local legal counsel to ensure that any information or documents comply with current law and the particular facts of each situation.”