GALVESTON — By the narrowest of margins, the city council on Tuesday voted to hire an attorney to investigate who at city hall might have released confidential documents to The Daily News.
In a pair of 4-3 votes, the council voted to retain Ross Fischer of the law firm Denton, Navarro, Rocha & Bernal as special council in the area of ethics and compliance and to direct him to investigate the source of a leak that led to The Daily News’ report last week on a legal opinion outlining the city’s possible challenges to public housing.
Fischer told the council that he would begin his investigation this week and that he planned on conducting interviews with council members and city employees to determine whether any parts of the city code were violated.
He said he expected to deliver his findings to the council at its scheduled June 13 meeting.
‘A political vendetta’
Tuesday’s meeting was called by Mayor Lewis Rosen at the request of City Attorney Dorothy Palumbo after a Daily News article was published May 16.
The report outlined potential paths to litigation over a proposal to build more than 300 scattered-site housing units and proposed ways the city could move at least some of those units off the island.
The city has not objected to the contents of the report but to the fact that it was marked confidential and had only previously been shared between city staff and council members during executive session meetings.
Council members Elizabeth Beeton, Norman Pappous and Terrilyn Tarlton voted against both motions.
The opposed council members suggested that an internal investigation was a waste of time and money.
“I think we’re wasting time pursuing an agenda that is the result of someone getting their feelings hurt,” Pappous said. “We are sitting here pursuing somebody that we’re never going to find.”
Beeton, too, suggested that the ethics investigation was more a result of politics than privileged communication.
“This is a political vendetta,” Beeton said. “And those who are supporting it, I hope that if you move forward, if you find the source of this, and it turns out to be one of you or your political allies, that you don’t drop it then because I don’t think you’re going to be happy with the results.”
District 6 Councilwoman Marie Robb said the potential negative effects from the revelation of the document warranted an investigation.
“I think we step beyond a line if we just allow actions like this to go on without looking at them,” Robb said.
No vote on ethics
Fischer and his firm will be paid up to $15,000 out of a discretionary fund controlled by City Manager Michael Kovacs.
In a separate 5-2 vote, the council voted to defer changing the city’s ethics ordinances about the retrieval of public documents. Beeton and Tarlton voted against the deferral, saying they did not support the changes and would not consider voting for them in the future.
Palumbo said she would do further research into the proposed ordinance changes, including an additional one made by Robb that would prevent documents distributed during executive session from leaving the meeting.
A final agenda item, which if passed would have demanded that The Daily News hand over the documents that allowed it to report on the legal opinion, was not voted on, though it did spark a lengthy discussion.
Palumbo, citing part of the Texas Local Government Code that allows for a “right of recovery” of public documents, told council members they had the ability to demand the return of any city document that had not been authorized to be released.
Charles Daughtry, the newspaper’s attorney, said the Local Government Code was not the issue.
“Apparently, Galveston City Council realized, or their outside counsel advised them, that the First Amendment and the Texas Free Flow of Information Act trumps an obscure Local Government Code that was never intended to address this type of situation,” he said.
District 2 Councilman Rust Legg suggested that the point of demanding the return of documents obtained by The Daily News was to help identify the newspaper’s source.
“At some point, we have to make the statement that we all have to adhere to the laws and the regulations of this state and this city,” Legg said. “This individual has to stop, and this is one way, hopefully, to get this individual to stop.”
‘Where to point the finger’
In a written statement, Rosen criticized the newspaper for reporting on the legal opinion, an action he said damaged the city’s relationship with the state’s general land office and potentially jeopardized $100 million in federal disaster recovery money promised to the city.
“If Galveston goes bankrupt over this, everyone on this island should know where to point the finger,” Rosen said. “Not at City Council for trying to do what is best for Galveston, but at irresponsible individuals trying to sell papers at the expense of the island’s future.”
In a tense moment during the discussion, Palumbo interrupted Kovacs as he suggested that initiating legal action against the newspaper would further deteriorate relations between the city and state authorities.
Palumbo herself was interrupted by Beeton with a shout of “point of order,” a tactic often used by council members to interrupt or end discussions they do not agree with.
“I think this particular action goes a little bit beyond more than the city’s internal ethics,” Kovacs said. “It has the potential to start a flash point with the paper that could escalate. Given all that, I would not be the one to spend my money potentially seeking this from the newspaper.”
‘No one should be surprised’
The legal opinion in question was written by Dallas attorney Terry D. Morgan, who was retained by the city in March following a council vote. The opinion was delivered to the city council on April 17, the same day the city council held a special meeting to respond to the General Land Office’s decision to freeze the city’s recovery money until certain issues were resolved.
In the his prepared statement, the mayor also defended the legal opinion.
“The city is required by the charter to ensure that public housing affirmatively furthers fair housing,” Rosen said. “It is only prudent, and no one should be surprised to discover, the city council has been exercising due diligence.”
The matter concerning the newspaper ultimately passed without a vote.