Georgetown council member Berryman may have violated Texas constitution
City Attorney hired in secret
The Austin Bulldog has done yeoman’s work in bringing two issues to light in the last week. First, Georgetown city council member Pat Berryman has been receiving pay as a member of the city council member. At the same time she was working for the state, for Sen. Steve Ogden (R-Bryan). It is a violation of the state constitution for a state employee to also receive payment for being on a city council. The Bulldog asks, Who Will Hold Berryman Accountable?
Georgetown City Council Member Pat Berryman has taken $13,600 from the taxpayers of Georgetown to which she is not legally entitled. As detailed in the accompanying investigative report, she appears to have violated both the Texas Constitution and her oath of office.
In investigating this matter, using the Texas Public Information Act, I filed the seven open records requests with the City of Georgetown between February 12 and April 15. I have obtained some of the records requested and the accompanying report is based on those records. City Attorney Mark Sokolow referred many of the open records requests to the Texas Attorney General for a determination.
Berryman—who was a state employee barred by the Texas Constitution from drawing a salary for serving on the city council—was informed of that by the city manager in July 2008. The city manager’s letter told her she would be reimbursed for her actual expenses if she supplied receipts. She did not do so.
She waited 17 months—until the city hired a new in-house attorney—to request payment. Even then she provided no information that would satisfy the requirements of the Texas Constitution, as interpreted by several attorney general opinions. The new city attorney—who serves at the pleasure of the city council—facilitated the back payment.
Council Member Berryman has not been forthcoming about this matter. She has not responded to numerous requests for an interview. She has stonewalled and evaded responsibility for her actions.
City Attorney Sokolow conveyed a transparently flimsy offer on her behalf: “If requested by the State, Council Member Berryman is quite willing to provide additional documents to state officials who so request.”
Who are these “state officials” to whom Berryman would be accountable? Neither Sokolow nor Berryman say. Would a call from the attorney general’s office suffice? Will a prosecutor be needed to unearth the truth in this matter?
Obviously no one can be compelled to talk to a journalist. But if an elected official refuses to answer pertinent questions about her conduct and defend her actions in the court of public opinion, it would appear more a matter of evasion than the transparency to which the governing body of Georgetown, Texas, professes it aspires.
Georgetown Mayor George Garver told The Austin Bulldog, in an interview at city hall after the April 27 City Council meeting, that he was not aware of the payment of $13,600 made to Council Member Berryman. It seems no one on the city staff bothered to tell him.
“I was not aware that she was being funded with any of the city’s compensation. Later through the grapevine I heard something to that effect, but I never inquired into the particulars, nor was I offered any information. That wasn’t transparent.”
They have the full investigative report on this issue on their website, Georgetown Council Member’s Pay Violates Texas Constitution.
The second issue points this out, Georgetown City Attorney Hired In Secret.
What actually occurred, however, was revealed in the minutes of the September 8 council meeting, which under “Action from Executive Session,” reads as follows:
“Motion by (Council Member Pat) Berryman, second by (Council Member Gabe) Sansing that the Human Resources (sic) have the authority to continue his discussions with the candidate for city attorney and, upon completion of these discussions, he move forward with the recommendation addressed in Executive Session. Approved 6-1 (Council Member Dale) Ross opposed.”
This indicates the city council decided, behind closed doors, to hire the new city attorney. The public had no way of knowing that the council was discussing the hire.
The lack of specificity in the wording of this agenda item may be a violation of the Open Records Act.
Attorney [James] Hemphill said, “In general, how specific the notice needs to be depends on how significant the action is. Routine matters don’t need to be noticed with a great deal of specificity. But the more consequential the matter is, the more specific the notice needs to be.
“I would consider the hiring of a city attorney to be a fairly consequentlal action.”
The name of the new city attorney was publicly announced October 1 when the city issued a press release, which stated:
Mark Sokolow, currently the city attorney for Port Arthur, will start as the new city attorney for Georgetown on October 19. The Georgetown city council voted on September 8 to hire Sokolow after a six-month search process.”
Thus, the press release inadvertently confirmed the fact that the decision to hire Sokolow was made behind closed doors.
Following the September 8 meeting, the Georgetown City Council met on September 22, October 13, and October 27. Sokolow was not named in the minutes for these meetings until October 27.
In examining the agendas for these meetings, it is clear that the city council failed to hire Sokolow “only in an open session properly noticed in accordance with section 3A of the Open Meetings Act.”
George Garver was informed of these facts by The Austin Bulldog at Georgetown’s city hall after last night’s city council meeting.
Garver called The Austin Bulldog this morning to say that he had just reviewed the city’s contract with Mark Sokolow. The mayor said that both he and the city secretary signed the contract on September 14, 2009.
“Your premise on the hiring process is absolutely correct,” Garver said. “The contract was never formally presented to the council. We clearly, in my opinion, dropped the ball by not having the city council ratify the hiring.”
“I’m embarrassed. This fell through the cracks. I apologize to you and the people we serve.”
Here’s the worst part though.
“The Open Meetings Act is clear that actions taken in violation of the act are voidable,” attorney Hemphill said, pointing to Texas Government Code Section 551.141.
“What that means precisely, and what other consequences may flow from a violation, are arguably unclear,” he said.
“Voidable may mean that if an action is challenged, and if a judge finds a violation of the Open Meetings Act, then the court has no choice but to declare the action void. Others argue that a judge has discretion whether or not to declare an action void, even if the action violates the Open Meetings Act.”
Sokolow’s hiring is subject to legal challenge, should anyone desire to press the matter.
Who knows how this will end but at least the city council is now aware of their violation.
“In our society people are very suspicious of government,” Garver said. “The government is responsible to recognize that people have not given us carte blanche. People want us to become accountable for how we govern. The more open, the more transparent we are, the greater the trust in what we do.”
Mayor Garver told The Austin Bulldog that the city is studying what it should do to rectify the problems created by flaws in the city attorney’s hiring process. We will monitor and report on what action the city takes.
It’s not suspicion it’s called accountability, checks and balances, trust but verify, whichever one prefers. Essentially if you’re supposed to do things in the open, don’t do them behind closed doors. And always save your receipts.