Georgetown City Attorney Sues to Keep Performance Reviews Secret
Georgetown City Attorney Mark Sokolow has sued Texas Attorney General Greg Abbott to contest a decision made by the Attorney General’s Open Records Division.
The lawsuit stems from an open records request filed by The Austin Bulldog on May 16 to obtain copies of Sokolow’s written performance evaluations that had been delivered to him by the Georgetown mayor and city council members during closed-door executive sessions.
The Attorney General’s open records decision, rendered in a letter dated August 3, states that the city may withhold a portion of the information in the performance evaluations that is protected by the attorney-client privilege. But, the letter states, “…we find you have failed to demonstrate the remaining information is protected by the attorney-client privilege…and it must be released.”
Sokolow filed the lawsuit, The City of Georgetown v. Greg Abbott, Attorney General of Texas in Travis County on Friday, August 13. The lawsuit requests that the court find that the remaining information in his performance evaluations is also protected and should be excepted from disclosure under the Texas Public Information Act.
Georgetown Mayor George Garver, City Council Member Patty Eason, and City Council Member Gabe Sansing say that the city council has not discussed the lawsuit and has not authorized Sokolow to file it.
“I am outraged,” Eason said, when informed that Sokolow had filed the lawsuit. “I didn’t know anything about this, and there has never been any discussion with the city council about this lawsuit. I would have never supported it in the first place if I had been asked.”
Eason was adamant, saying, “My concern is the city is actually suing the attorney general and the city council did not authorize it.”
Sansing, who has been on the Georgetown City Council for eight years, says, “I’ve never seen a lawsuit filed without discussion in executive session first.” He was shocked and dismayed when informed by The Austin Bulldog that Sokolow filed the lawsuit with the city as plaintiff.
Mayor Garver says that Sokolow sent an e-mail about the lawsuit to the mayor and council members on Monday, August 9. Garver says that Sokolow’s e-mail states that the city had just ten days from the day it received the attorney general’s opinion on August 4, to file a lawsuit to appeal that decision.
Ten days is incorrect, according to the attorney general’s office and the Texas Public Information Act.
In response to a question from The Austin Bulldog about how long the city had to file such a lawsuit, Thomas Kelley, a spokesman for the attorney general, stated in an August 19 e-mail, “A governmental body has 30 days in which to file a lawsuit contesting an AG ruling.”
The 30-day window is described in Section 552.324 of the Texas Government Code, “Suit by Governmental Body,” as follows:
(b) The governmental body must bring the suit not later than the 30th calendar day after the day the governmental body receives the decision of the attorney general determining that the requested information must be disclosed to the requestor. If the governmental body does not bring suit within that period, the governmental body shall comply with the decision of the attorney general.
In point of fact, The Austin Bulldog notified Sokolow in an August 8 e-mail that a lawsuit challenging the ruling must be filed pursuant to Section 552.324 of the Government Code.
Sansing and Eason said they did not recall getting an e-mail from Sokolow about the lawsuit. At the request of The Austin Bulldog, however, Eason went through her e-mails. Upon reviewing them, she said she found the subject e-mail dated 2:30pm, Tuesday, August 10, but she had not yet read it.
“It doesn’t matter if he sent an e-mail about what he’s going to do,” Eason says. “He’s supposed to ask us (council members). It’s meaningless the idea he thinks that gives him the authority (to file the lawsuit) just because he sent out an e-mail about it.”
The City Council met on Tuesday, August 10. There was a posted agenda item under which this lawsuit could have been discussed in a closed-door executive session, as follows:
Sec. 551.071: Consultation with Attorney
– Advice from attorney about pending or contemplated litigation and other matters on which the attorney has a duty to advise the City Council, including this week’s agenda items.
No discussion of the lawsuit took place at that council meeting, according to Eason, Garver, and Sansing.
Attorney General spokesman Thomas Kelley says that about 19,000 requests for open records opinions were filed by governmental bodies in the last year.
“Fewer than one-half of one percent of the open records rulings per year result in legal challenges,” he says. For the year ending August 31, Kelley said 69 lawsuit cases have been closed. Of those, 13 resulted in judgments, 39 were dismissed, and 17 were settled.
A dismissal usually stems from a plaintiff deciding to drop the lawsuits, Kelley says.
The settlements pertain not to the substance of the cases, Kelley says, but typically address how much money the winning parties will get in attorneys’ fees.
“Governmental bodies have to comply with the Open Records Act completely,” he says. “There’s no wiggle room on that.”
Sometimes the interveners in a lawsuit, such as the Dallas Morning News, for example, will seek attorneys fees when they are on the attorney general’s winning side of a case. “A lot of it comes down to legal fees,” Kelley says.
While every lawsuit involves different issues and different elements of proof, and each lawsuit is judged in a court of law on its own merits, statistically the odds of Sokolow’s lawsuit succeeding appear to be quite slim. If the lawsuit does go to trial and the attorney general wins the suit, it’s a given that the attorney general will ask the trial judge to reimburse the state’s legal fees, Kelley says.
The Attorney General’s website states:
“The appellate courts of Texas have consistently held that attorney general opinions, although not binding on the courts, are entitled to ‘great weight.’ An opinion of the attorney general should be deemed to state the law correctly, unless or until the opinion is modified or overruled by statute, judicial decision, or subsequent attorney general opinion.”
Attorney general opinions are signed by a single assistant attorney general, but the product is the result of careful analysis and review.
“Regarding the issuance of our open records rulings,” Kelley said in an e-mail, “I can tell you that all rulings are thoroughly vetted by multiple attorneys at all levels of the Open Records Division.”
By contrast, the City of Georgetown’s law department consists of one paralegal and two attorneys. The attorneys are Sokolow and Assistant City Attorney Bridget Chapman. As reported by The Austin Bulldog on July 11, Sokolow hired Chapman four months ago. She had no experience in municipal law, as required by the job posting. Sokolow violated the Georgetown City Charter by failing to get the hire approved by the City Council. Mayor Garver personally researched and analyzed this flawed hiring process and wrote a report dated July 30. The report notes that the hire may have exposed the city to a complaint that could be filed with the Equal Employment Opportunity Commission, and suggested a means by which the situation might be rectified. This matter is posted (Item E) for discussion in a closed-door executive session at 4pm Tuesday, August 24.
The potential financial liability for the City of Georgetown that could result from Sokolow’s lawsuit against the attorney general is of concern to the mayor and council members contacted for this story.
Mayor Garver says he was struck by the fact that the lawsuit was lodged on behalf of plaintiff City of Georgetown, yet the issue at stake—whether or not Sokolow’s performance evaluations should be released—seems to be more of a personal matter.
“He filed this petition with the court on behalf of his personal issue, rather than the city’s,” Garver says.
Under the Georgetown City Charter, the city attorney works directly for the City Council, which has the authority to direct Sokolow to withdraw the lawsuit and reduce the city’s exposure for potential legal fees.
Mayor Garver is not inclined to withdraw the lawsuit, despite the fact that he says it could have and should have been discussed by the City Council before it was filed.
“He has supporters (on the council) who want to let the courts test this,” Garver says. “Whether or not he had council approval is academic. It’s moved forward. The facts are—whether we like it or dislike it—the horse is out of the barn.”
Sansing and Eason take a different view and say they favor withdrawing the lawsuit.
“If we have to pay attorneys’ fees over this, I’d be in favor of docking Sokolow’s pay,” Sansing said. “The fact the council didn’t vote on this is just nuts.”
“I agree,” Eason says. “If we don’t withdraw this and we end up with legal fees, it needs to come out of Sokolow’s pocket.”
Eason says that one of the things that she criticized Sokolow for in the performance evaluations—which are at the heart of this lawsuit—was that, “He refuses to follow the process. He should not do anything without a majority vote of the council.”
In response to The Austin Bulldog’s open records request for Sokolow’s performance evaluations, on May 28 Sokolow and Assistant City Attorney Bridget Chapman referred the request to the attorney general with a letter that, including exhibits, ran 28 pages.
On June 7, The Austin Bulldog sent a letter and exhibits to the attorney general to refute certain arguments made by Sokolow and Chapman. The Texas Public Information Act allows interested parties to submit comments about why information should or should not be released, and the attorney general considers these comments in making a decision.
On August 3, the attorney general’s Open Records Division sent a letter to Sokolow informing him that the city could withhold only a portion of the evaluation that is protected by the attorney-client privilege and concluded that the remaining information must be released.
Sokolow was hired through a Letter of Agreement dated September 14, 2009, that granted him an annual salary of $125,000. Sokolow started work on October 19, 2009. The Letter of Agreement states, “After the initial six months, the City will review and consider an increase of $5,000 to be added to the base salary.”
As reported by The Austin Bulldog on April 28, the Georgetown City Council violated the Texas Open Meetings Act when it hired Sokolow. The Act requires the city council to take action to hire an employee in an open session for which proper notice has been published in the council agenda.
Sokolow’s employment agreement was not legally executed, because Mayor George Garver signed it without being authorized to do so by a vote of the city council in a properly posted open meeting. Sokolow has now been on the job for 10 months and his employment agreement has still not be ratified in an open session of the city council.
Nevertheless the city council has continued to honor the agreement. The city council reviewed Sokolow’s performance after he had been on the job six months and, in an open meeting of April 27, the city council voted 5-2 (Eason and Sansing opposed) to give Sokolow a raise of $5,000 per year.
Filing this lawsuit against the attorney general without the city council’s authorization is not the first time that Sokolow has acted unilaterally and upset the City Council.
As reported by The Austin Bulldog June 14, as part of an in-depth investigation of Sokolow’s performance, his heavy-handed tactics in unsuccessfully negotiating to purchase of 10.2 acres in the Georgetown Village as a site for city facilities upset the Georgetown Independent School District’s board of trustees, embarrassed the city council, and angered the mayor.
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