City Attorney Caught in Power Struggle

firth-borundaAs you probably already know, the recent questions about Sylvia Firth-Borunda’s employee evaluation is nothing more than a power struggle between Oscar Leeser and some members of city council. However, it is important to note that this is speculation at this point. We are forced to speculate because the city is notorious for keeping relevant and important community discussion behind closed doors. The only thing we know at this point is that Sylvia Firth Borunda should have been evaluated earlier this year and that the evaluation, although delayed, is ongoing. We also know that some members of city council want to change how the evaluation of the city attorney is conducted.

That is all we know because almost all of the discussion on this matter has been held behind closed doors – in executive session. I believe this is abuse of the executive session exception but I’m probably alone on this. Although the law allows for personnel discussion to be held in executive session the political ramifications about the possible removal of the city attorney is an important public discussion matter that needs to be vetted by the community.

Sylvia Firth-Borunda was appointed by John Cook on December 20, 2011 to an initial five-year contract. It was originally written as a three-year contract; however, two city council representatives lobbied and pushed forth the increase to five years. When her contract was later extended another five-years, a clause was inserted that states that if Firth-Borunda were terminated within three years of the extension, the city would be required to pay her the full five-year salary. Prior to her appointment, she was Cook’s Chief of Staff. At the time of her appointment, Sylvia Firth-Borunda was fighting the recall attempts of John Cook, Susie Byrd and Steve Ortega. The recalls were in response to the domestic partnerships debacle at city hall. It was Byrd and Ortega that pushed forth the additional two-years on her initial contract.

Besides the domestic partners issue, Firth-Borunda has been involved in two other significant city policy controversies.

The first is the hiring of city manager Tommy Gonzalez. In “Comedy of Errors: City Manager Appointment” I shared with you how the city may have violated the open meetings laws by meeting in executive session and apparently making a decision to extend a contract to Gonzalez as the new city manager. Ultimately, the argument from the city was that a formal vote had not been taken but rather a “consensus” had been reached. Regardless of the technicalities, the city attorney’s office facilitated the perception that a vote had taken place in executive session to offer a contract to Tommy Gonzalez.

The other issue that the city attorney has been intimately involved in was the Stephanie Townsend Allala open records case. There were various open records requests filed by other individuals as well looking for information about the ballpark. Initially, Sylvia Borunda-Firth, acting on behalf of a city council led by Susie Byrd, Cortney Niland and Steve Ortega, refused to release the public records requested by Stephanie Townsend Alla. Firth-Borunda contracted an out of town law firm and fought the Texas Attorney General in court to avoid releasing the public records.

After Oscar Leeser was sworn into office and at the direction of the new city council, Sylvia Firth-Borunda released the open records that had been requested and continued to fight the disclosure of documents stored in private email boxes. The issue of public documents stored in personal email accounts is still pending as an appeal has been filed by the plaintiff in the case.

Through October 10, 2014, the law firm of Denton, Navarro, Rocha & Bernal has been paid $135,002.24 litigating Townsend Alla’s open records request. Many opposed to the ballpark saw the actions of the city attorney as an attempt to keep public records away from the community.

The most recent debacle concerning the city attorney was the release of information to the public about a major developer that resulted in a public reprimand of Cortney Niland by Oscar Leeser. In the October 7, 2014 city council meeting during a discussion about local developer River Oaks Properties, the city attorney explained that the land developer was an obstacle for the pending land annexation on the east side of town.

As the exchange got heated, Oscar Leeser exposed that Cortney Niland was having “sidebars” and behind the scenes discussions with the developers. It is no secret that this public reprimand of Niland was the result of the city attorney releasing information publicly.

After that meeting, the issue of Sylvia Firth-Borunda’s employee evaluation has become an issue that has resulted in some public exchanges at city council and executive session meetings. Ann Morgan Lilly first attempted to introduce a disjointed requested to have the city attorney’s office evaluated by department heads through some form of survey system and at the same time, other city representatives have posted agenda items asking for clarifications on how information is exchanged at city council.

In regards to Ann Morgan Lilly, she stated twice that she is “not after anyone” forcing us to question why she felt it necessary to make that statement. Morgan Lilly has been a close ally to Cortney Niland before.

City council will again be dealing with the city attorney evaluation today, mostly in executive session and hopefully, some in public. Unfortunately, it is highly unlikely that we will know what is driving the issue and what “deals” may be made behind closed doors.

3 thoughts on “City Attorney Caught in Power Struggle

  1. Martin,

    Out of curiosity why are you talking about Sylvia Borunda when the city attorney goes by Sylvia Firth? I know that the naming conventions in Mexico are different than in the US but it seems odd to do that with her name when you don’t do that for other people that you talk about. I’m honesty curious and looking at the city website her name is shown as Sylvia B. Firth (so this isn’t even a case of having a hyphenated last name).

    Once again I will point out that you are taking valid information and spinning it to encourage a specific, pre-determined, and not entirely honest conclusion.

    In the case of the Allala and the ORR, while it is true that the plaintiff appealed the decision, the more salient point is that at this time the legal argument put forth by Firth and the legal dept has been upheld in court. She successfully argued that the city is not obligated to go on fishing expeditions to see if someone has “public” records in their private email accts. We can debate the social correctness of this and whether that right or wrong but the mayor and council let her proceed with that course of action and as it relates to her job performance, she did he job (protected the city from having to incur the costs to go after information that may or may not exist).

    Keep in mind that I am not saying this is right or wrong but that in that case she did her job and protected the city from expenses and she had the support from Council and the Mayor who could have explicitly ordered her to drop that portion of the case and stop arguing it in court just like they ordered her to stop fighting the release of documents that the city had in its possession.

    Also, out of curiosity, it was hard to tell but wha did you mean about the “domestic partnership debacle”? Normally you will point us at prior articles when you have written about something before but it didn’t look like there was a link for that and I was curious about your take on that. Certainly as it relates to the city attorney I would be curious to know why you mentioned it and how you think Firth handled it.

    1. Drakovic,

      Thank you for the in depth and detailed comments you normally post. Whether we agree or not your comments add to the discussion. I really hadn’t given much thought about her name and looking over my write up I used the standard I’m familiar with; married last name hyphenated when the married woman keeps using her maiden name; i.e. Firth-Borunda. I am the first to admit that name conventions are always confusing to me as well as other grammatical nuances like whether to capitalize month names or not. Although I gave up trying to adhere to grammar standards that will always escape me, I try to at least keep my sentences as coherent as I can. In regards to her name, my usage had no other intent other than to refer to her. It seems that the proper usage is Sylvia Borunda Firth and I will try to refer to her that way in the future.

      As to your issue about my characterization of the open records debacle, it seems you believe I had an ulterior motive by not writing “she successfully argued” her case on the merits of “fishing” expeditions. The fact is that I can write on and on about the legal arguments argued about the case however the purpose was to point out that she has been at the center of public policy issues at the city. I clearly wrote that she was acting on the direction of city council when she made the arguments in court and I have also previously written that her primary function is to limit the city’s legal exposure on legal matters. I do not disagree with you that she is doing her job in protecting the city’s exposure and I have also previously written that it is city councils’ responsibility to explicitly order her to stop defending the obfuscation of emails in private mailboxes.

      In regards to the domestic partners issues, I have written numerous blog posts referencing it. Link However, I have not taken a position on the issue other than to write about the circumvention of the citizens’ right to referendum. At the risk of someone taking and twisting the following comments because I’m not going to share a fully detailed explanation I’ll nonetheless share with you my quick thoughts on the issue.

      I do not care about how marriage is defined I just care that the taxpayers are not paying for benefits that the private sector does normally not pay for. As far as I know, and no, I have not polled every private business, normally private businesses do not extend benefits to unmarried couples. The key here, being what the local jurisdiction, as in the State of Texas, consider as legally married. If the local jurisdiction considers the couple to be legally married then the city should be required to extend the same benefits to everyone equitably. Unmarried couples should not get benefits that the public sector does not normally offer.

      Thank you for your continued participation on my blog,
      Martin

      1. Martin,

        Thank you for explaining what happened with the naming. It’s not a big deal, but it did stand out a bit (although to be fair I had to look up her name myself before I said anything) and I was curious if it meant anything.

        As far as the open records debacle, the issue I had was that the way you wrote your original post came across as if Firth had somehow done something wrong. Lawyers argue what their clients want them to argue (within reason) and the open records debacle was (IMO) a good example of Firth doing her job well and following the instructions that she received from council and the mayor. You did state that “Many opposed to the ballpark saw the actions of the city attorney as an attempt to keep public records away from the community.” and that feels like a mis-characterization of a situation where you are now saying that “she was acting on the direction of city council when she made the arguments in court”

        I don’t want it to sound like a purely semantic debate, the point that I was trying to make is that as a lawyer, Firth is going to have to argue positions based on what the mayor and council want (if I understand the power structure correctly, council can request that the city attorney do or not do something and the mayor has the ultimate say since he is the city attorney’s direct supervisor). That portion of your post in particular sounded like you were ascribing motivations to the city attorney which were more correctly attributed to council and the mayor.

        This is why I was curious about your comments about the domestic partner benefits issue. Once gain, the city attorney was basically operating based on direction from council and the mayor and in this case I think that they were right to pursue the course of action that they did. There is no “citizens’ right to referendum” in a representative democracy. We elect our representatives and give them the power to make and change laws on our behalf. Yes, there was an election where a majority of the people voting to deny benefits to domestic partners, but you missed one important component of this specific case. Leaving aside private businesses and the state of Texas, the city of El Paso had previously chosen to extend benefits to unmarried heterosexual partners of city employees and the unions representing police and/or fire (not sure which ones at this point) had informed the city that they would be suing because the city was effectively going back on contract terms that they had previously agreed to.

        In that context I am very glad that the city council and mayor talked to the city attorney and chose to nullify a vote that was going to open up the city to litigation expenses and was likely to result in a legal loss. On one level this was a simple economic decision. Providing those benefits to the gay couples in the city would cost a great deal less than fighting to keep those benefits away from straight couples who were covered by collective bargaining agreements. I don’t know if you recall, but the problem was that since the people who wrote the item that was voted on were being disingenuous about why they wanted to pass it, they wrote an overly broad item that caught heterosexual couples who hadn’t married (for whatever reason) and stripped domestic partner benefits from city employees who were protected by previous contractual agreements. I remember reading a great deal about that case at the time and I fully support the city not only doing the right thing morally (IMO) but also doing the smart thing economically.

        Beyond that I could point out several Fortune 500 companies that now provide benefits to domestic partners in states where gay marriage is still illegal and given the current trend in legalizing gay marriage at the federal and state level (in other states), I would argue that the city was smart in adapting to changing cultural norms rather than digging in their heels and trying to pretend that what the voters had chosen to do wasn’t wrong. Not to be too heavy handed but 150 years ago voters were voting to deny black people basic human rights, 100 years ago they were voting to deny civil rights to women, and 50 years ago they were voting to deny those rights to minorities. “The people voted” is a poor and pathetic way to try to justify injustice and discrimination which runs absolutely counter to our principles in this country.

        Ok, enough of my soapbox. I do enjoy debating issues with you Martin and while we don’t see eye to eye on a lot of things I find your commentary interesting and thought provoking and as such I appreciate it.

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