City sought opinion on having City Attorney also serve as Assistant City Manager

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The City of Fort Stockton sought an opinion 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.

Seeking an opinion from the TML is not unusual for a government entity. The timing of the question came after City Manager Frank Rodriguez considered having Gonzales hold both the City Attorney and Interim Police Chief positions, and prior to an item being placed on last week's City Council agenda to change to city's organizational chart to put the Assistant City Manager over all departments and positions except the City Manager. The item was removed within an hour after its initial posted and thus not addressed at Tuesday's meetings.

The first e-mail was sent at 6:18 a.m. on Monday, July 22 by City Manager Frank Rodriguez 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:

"Hi Frank,

"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."

Then, on Thursday, July 25 at 9:22 a.m., 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 Jesse Gonzales, Jr. (who was still City Attorney), Rodriguez, Mayor Chris Alexander, and city council members James Warnock, Mike Ureta, Pam Palileo, Paul Casias, and Ruben Falcon.

Also on July 25, Pioneer Publisher Steve Fountain sent an e-mail at 10:34 a.m. to the members of the city council, Rodriguez, Gonzales, Alexander and Gonzalez that read:

"Dear Frank and Jesse, mayor and city council members:

"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. We are also in process of reviewing Traps for the Unwary:

https://texashistory.unt.edu/ark:/67531/metapth577157/

"On behalf of The Pioneer, I am formally requesting comment from EACH (Council Members, mayor, City Manager and Assistant City Manager) of you specific to this question.

"The Pioneer is also requesting that the City Attorney provide a written response representing the city's legal opinion on the question.

"I apologize for the formality of this e‐mail, but the response to The Pioneer's phone calls, texts and e‐mails to some of our elected and appointed officials has been spotty at best, and frequently non‐existent.

"Reporter Aurora Sain is reporting this story. Please include both her and I in your response, or call her at (432) 336‐2281.

"In addition to this e‐mail, Aurora will be calling each of you directly. Thank you."

Rodriguez responded at 2:01 p.m.:

"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."

The council, Gonzales, Alexander, Sain, and Gonzalez were cc'd on the reply. Only Rodriguez responded to Fountain's e-mail.

Fountain's e-mail was in response to a Wednesday, July 24 press release sent at 5:17 p.m. announcing Gonzales had been hired as assistant city manager. But the press release wasn't clear on his role as city attorney, stating: "Gonzales became the city attorney in December of 2017 and currently holds that position."

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."

The information was contained in an 178-page e-mail string that was received Thursday by The Pioneer from the Marina Cantu, Administrative Assistant to the City Secretary, on Thursday afternoon in response to an open records request sent Aug. 1.

We will have more on this story as we continue to work through the e-mails.

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