Agenda Wars: The Initial Flames

Open Records Requests produced this email exchange between Mayor Steele and Alderman Pena regarding motions, agenda scheduling issues and authority. Note I've added my comments in blue and used bold to highlight important passages in the email. I invite readers to make their own assessments of the personalities involved and the issues to be resolved.


Thank you Alderman Pena for your timely response to my open records request. I will "re-order" the emails in ascending chronological order so that a historical timeline is evident. Through the use of colors, formatting and bolding I will highlight areas to which my comments will be addressed.

I appreciate that Mayor Steele has asked for my opinion based on the research I've completed thus far into the city's records.

The Agenda for the July 7, 2011 Meeting in question can be found at cityofwilmer.com:
 Click Here to View the Agenda of July 7

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from hpena@cityofwilmer.com
to joealdrich@gmail.com
date Sat, Aug 6, 2011 at 3:11 PM
subject FW: Re: Agenda Items For Special Called Meeting Monday, July 11, 2011

Joe, here is the email you asked for.

-----Original Message-----

On Jul 8, 2011, at 3:11 PM, hpena@cityofwilmer.com wrote:

Dear Mayor Steele:

As voted on and passed by council on the July 7, 2011 meeting to hold a Special Called Meeting Monday, July 11, 2011, below is a list of Agenda Items to be placed thereon:

A. DISCUSS AND CONSIDER THE RESIGNATION OF CITY SECRETARY ALICE HOLLOWAY. (ACTION AS REQUIRED)
B. EXECUTIVE SESSION: PURSUANT TO TEXAS GOV’T. CODE §551.074,
( A) (1) PERSONNEL: TO DELIBERATE THE APPOINTMENT, EMPLOYMENT, EVALUATION, REASSIGNMENT, DUTIES, DISCIPLINE OR DISMISSAL OF A PUBLIC OFFICER OR EMPLOYEE: CITY SECRETARY MARCUS SMITH.
C. EXECUTIVE SESSION: PURSUANT TO TEXAS GOV’T. CODE §551.074,
(A) (1) PERSONNEL: TO DELIBERATE THE APPOINTMENT, EMPLOYMENT, EVALUATION, REASSIGNMENT, DUTIES, DISCIPLINE OR DISMISSAL OF A PUBLIC OFFICER OR EMPLOYEE: APPOINTMENT OF CITY SECRETARY/ADMINISTRATOR.
D. ANY ACTION NECESSARY AS A RESULT OF THE EXECUTIVE SESSION.
E. DISCUSS AND CONSIDER RESOLUTION NO. 0711-11 DESIGNATING THE AUTHORIZED SIGNATURES FOR ALL CITY BANK DEPOSITORY ACCOUNTS REMOVING ALICE HOLLOWAY FROM ALL CITY BANK DEPOSITORY ACCOUNTS AND ADDING A NEW CITY SECRETARY. (ACTION AS REQUIRED)
F. REVIEW AND CONSIDER AMENDING THE 2010-2011 BUDGET CHANGING THE CITY SECRETARY LINE ITEM TO READ CITY SECRETARY/ADMINISTRATOR.
(ACTION AS REQUIRED)

Sincerly,

Hector Pena
Mayor Pro-Tem
There is Pena's request for a special meeting, claimed as a result of a council vote on Madrigal's motion. I would call Alderman Pena's attention to the statutory requirement for a City Secretary and a City Ordinance mandating a City Administrator are two different functions and cannot, by law, be combined.

From: "Mayor Steele"
Sent: Friday, July 8, 2011 10:36pm
To: "hpena@cityofwilmer.com"

Subject: Re: Agenda Items For Special Called Meeting Monday, July 11, 2011

I am happy to discuss these items with you. Especially city secretary.
Is there a candidate name?
The Mayor has stated he is aware of numerous candidates for the position. The appropriate venue for discussion is in an Executive Session to deliberate on the candidates. The fact that two people occupy the position currently must be resolved before considering or naming a replacement.

i dont understand you stating there was a vote for a special meeting.
Did you have a vote.
Where was it located?
At the meeting, the motion Alderman Madrigal put to a vote was abbreviated by the Mayor in his restatement when the vote result was called and may not have accurately reflected Alderman's actual statements. Mayor Steele is attempting to ridicule Alderman Pena's assertion, denying the original motion's existence, rather than its' validity.

What is the grounds of discussion for marcus smith?
Is there reason to discuss an officer of the city that i have not heard one council member state any grounds to intimidate an employee of the city?
Why does the Mayor refer to intimidation, when none is implied or intended? Indeed, is this not more self relevation, Mayor Steele inserting his bias into the motivational aspects of Alderman Pena's request? The grounds for discussing Smith have everything to do with his position and contract as City Secretary - the Mayor should notice the personnel action discusses "City Secretary Marcus Smith" referring to the fraudulent contract executed by the Mayor at the City Council's direction. Smith was an employee before the contract and still will be after the contract is quashed. He just won't have any claim to the statutory position of City Secretary.

There is not a position of city administrator so I dont understand this
item. your item e is redundant.
According to Wilmer City Codes Section 2-6 there is by ordinance a City Administrator position, although it is temporarily unfilled and the Mayor has assumed the duties, responsibilities, and authorities thereof, whether or not specifically empowered by statute or ordinance.

The secretary can be authorized to sign at time of appointment.
Prior banking signatory authorizations have been completed by resolution of the City Council, appointed boards must make resolutions approving any change in bank account administration. Fiduciary procedures require the City Council act in order to change the banking signatories, as they are the empowered authority of funds for the municipality.

Finally, you item f dealing with the budget will have to be researched. As i understand any change of the budget requires notice and possible public hearing. I will check and you can too
Mayor Steele's understanding of budgetary process is less-than-rudimentary and definitely non-compliant, but this time he errs on being overly cautious. Conducting a regularly noticed city council meeting is all that's required for a budget amendment, just like last year in case the Mayor has forgotten.

Last thing Mr Pena, if this is your idea of leadership, i can only hope that you see the errors that you are making because you are in for a rude awakening by these actions.
What are you trying to do to this city by these immature and irrational actions? I suggest you pick up a book and read it, perhaps the local government code for starters.
The Mayor's belittling comments are Arrogant and Insulting. There is an implied threat by the Mayor of a rude awakening. I would suggest the Mayor look in the mirror for immature and irrational actors in the city government and brush up on his own reading comprehension skills. I understand his best use of the Local Government Code is to hurl it across the City Hall at Mr. Pena.

Jeff Steele


-----Original Message-----
On Wed, Jul 20, 2011 at 6:07 PM, hpena@cityofwilmer.com wrote:

Dear Mayor Steele:

In response to your email wherein you have questions regarding a simple email directing items be placed on a Special Called Meeting agenda which, in my humble opinion, you have no authority to question, I will attempt to answer as briefly as possible.
Sorry Mr. Pena, everybody has a right to question - statute gives three aldermen the right to call a meeting of topics of your choosing in LGC 22.038(b)

These items are not up for discussion with you or anyone else outside of council chambers in a meeting. The Attorney General for the State of Texas has determined that the presiding officer (you) are not authorized to control the content of the agenda, even though by statute you are the presiding officer. Under LGC 22.037(a) By statute and by virtue of our position, any one council member may place any item on the agenda for discussion and action if they so choose. No Reference

As to a Special Called Meeting. I call your attention to the motion made by council woman Madrigal and seconded by myself, passed with a 3-2 vote, wherein the motion was:
I make a motion to approve the consent items with the exception of any legal bills for City Attorney, any City Secretary appointed, interim or otherwise until we can set up a time to appoint a City Secretary that we can work with and possibly have a Special Called Meeting on Monday July 11, 2011 to appoint a City Secretary with action as necessary.

You were present at the meeting, presided over the meeting, and called for the vote of the council on this very motion. It is a fact at this point, you have once again failed and ignored the will of the majority of council and did not call a Special Called Meeting. Am I to exercise my right as Mayor Pro-tem and call the meeting myself, do you leave me another choice? Under LGC 22.037(c) There were no other legal motions that could be taken on the agenda you posted, typed and signed wherein you listed all other agenda items to be "(Discussion Only)" with no other line items for action necessary as a result of executive session. Therefore, any other actions, motions and votes taken after the above motion are null, void and invalid. The motion stands.
??? Evidently there's some disagreement between the Mayor and Alderman Pena on the Motion as passed by the Council!!!
Didn't the Executive Session proceed out-of-order and occur immediately after the discussion of consent items was initiated? Or did any action on the consent items get deferred? The only action item on the agenda was consent items - the only other item that could have resulted in an action would be the motion for adjournment. [ED NOTE: See the Link Above for the Agenda]

Marcus Smith is not to be discussed outside of council chambers and call your attention to 551. Mr. Smith is a personnel matter and shall be dealt with as such. Basic GC 551 compliance on employee matters If you perceive intimidation, no intent is made. Question Mayor how many employment agreements for the position of city secretary were signed and issued to employees?
I have two in my possession, one for Marcus Smith and one for Alice Holloway.

Please Mayor Steele, place items A. thru F. on the August 4, 2011 agenda that I previously emailed to you on July 8, 2011 for the special called meeting on July 11, 2011.

The governing body may change the budget for municipal purposes Mayor Steele. A simple change in wording. Post the agenda items and call the meeting Mayor Steele.

Blatant disrespect and disregard for the council members will not be tolerated by this council as long as I am a part of it. The high handed actions you are exhibiting could be construed as intentional unlawful behavior including an intentional or corrupt failure, refusal, or neglect to perform a duty imposed on you by law. And that would be the definition of official misconduct under LGC 21.022(4)


From: "Mayor Steele"
Sent: Thursday, July 21, 2011 12:15pm
To: hpena@cityofwilmer.com

Subject: Re: Agenda Items For Special Called Meeting Monday, July 11, 2011

Mr. Pena,

First , I would like to address what you are assuming to be the authority that you have. The authority in which you have is null by yourself. It is only within a quorum of the governmental body in which you are a member vote on an issue. I am trouble by your lack of comprehension of the will of the council. You state there was no further action after executive session but sir, you are mistaken. After reconvening into open session, Mr. Turner moved to pay the Interim City Secretary. The motion was seconded by Vicky Vandygriff. The vote was 3-2 in favor of the motion.

As to the special meeting, I direct you to your own words of the motion,
"POSSIBLY have a special called meeting" Mayor Steele has a point on the verb used at the time, once the motion was followed with a written request, intent was clarified and the agenda items should have been accommodated in either a special or regular meeting. Intent of the majority was declared during the meeting. The follow-up email clarified that. Or not as you wish Mayor.
Your refusal to not speak to me and discuss what your issues with the secretary and city attorney are cowardly and immature. You have no authority to call any meeting whether you are mayor pro temp or God himself. I refer you again sir the the Texas Local Government Code.
More rude belittling commentary regarding Alderman Pena. Amusing the use of the phrase "refusal to not speak" which should mean you're getting an ear full! The incredibly blasphemous proclamation from the Mayor assuming authority over God for control of his precious meeting agenda. What else can I say except to remind Mayor Steele that I myself have un-called some of his meetings and unhinged an agenda item or two in the months leading to the election!

As to the governing body may change the budget. If the budget officer of the city (which is me )
The above sentence fragment is unintelligible and redundant.

Sec. 22.042. POWERS AND DUTIES OF MAYOR. (a) The mayor
is the chief executive officer of the municipality. The mayor shall at all times actively ensure that the laws and ordinances of the municipality are properly carried out. The mayor shall perform the duties and exercise the powers prescribed by the governing body of the municipality.
(b) The mayor shall inspect the conduct of each subordinate municipal officer and shall cause any negligence, carelessness, or other violation of duty to be prosecuted and punished.
(c) The mayor shall give to the governing body any information, and shall recommend to the governing body any measure, that relates to improving the finances, police, health, security, cleanliness, comfort, ornament, or good government of the municipality.
(d) The mayor may administer oaths of office.
(e) In the event of a riot or unlawful assembly or to preserve the peace and good order in the municipality, the mayor may order and enforce the closing of a theater, ballroom, or other place of recreation or entertainment, or a public room or building and may order the arrest of a person who violates a state law or a municipal ordinance in the presence of the mayor.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

Sec. 102.001. BUDGET OFFICER. (a) The mayor of a municipality serves as the budget officer for the governing body of the municipality except as provided by Subsection (b).
b) If the municipality has the city manager form of government, the
city manager serves as the budget officer.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

In summation I will say, how dare you accuse me of intentional unlawful behavior and you or Joe Alderich may visit and speak to me on your issues.

I observed no accusations from Mr. Pena, although he mentions the possibility of an appearance of intentional (mis)conduct. The second rule of disinformation is the Mayor's oft used "how dare you" ploy; it has no effect on matters of fact.

[ED NOTE: "2. Become incredulous and indignant. Avoid discussing key issues and instead focus on side issues which can be used show the topic as being critical of some otherwise sacrosanct group or theme. This is also known as the 'How dare you!' gambit." from 25 Rules of Disinformation at http://www.whale.to/m/disin.html]

My observation is that Mayor Steele maintains his ignorance of propriety and the obligations of his office to the detriment of the City and the taxpayers. IMHO it amounts to "Criminal Stupidity".

And I thank Mayor Steele for inviting me to share my comments on his issues with you all. I would remind the Mayor that I will speak on these and any other issues I may have regardless of Mr. Pena's stance on matters, although I'd prefer not to subjugate myself to a personal visit with the Mayor!