6.28.2005

 

This week there was some unrequited high-fiving, millions of dollars accepted by Council, and yes…a dream fulfilled…a real City Attorney.

                          

Dreamweaver

In Council chambers this week, sitting beside City Manager Joyce Wilson was something that just a month or two ago I was afraid we’d never see again…a real-life qualified, professional City Attorney!  I closed, reopened and rubbed my eyes several times to make sure it wasn’t another Sid hallucination (like that one I had when Wardy, Cobos, et. al. were all color-coordinated in orange tee shirts…the hallucination being that I could’ve sworn that “COUNTY OF EL PASO” was printed on the back).  No…this was reality.  And instead of a “political pawn” sitting in the City Attorney’s seat…yes, it seemed to be true…pinch me, someone, pinch me…it was instead a knowledgeable, experienced, ethical attorney! 

 

Welcome back, Charlie McNabb!

 

New Minutes                    

This week, the council approved the minutes for the new Council…

 

1. APPROVAL OF MINUTES: [Municipal Clerk, Richarda Duffy Momsen, (915) 541-4127] Approval of Minutes for the Regular City Council Meeting of June 21,  2005 and Minutes for the Special City Council Meeting of June 20, 2005.  (Agenda Review)    

(Attachment) Regular City Council Meeting of June 21, 2005

(Attachment) Special City Council Meeting of June 20, 2005

 

on the consent agenda.

 

Two . . . Bullhorns

Also approved on the consent agenda was the following amplification permit:

 

8G. Theresa Caballero and Stuart Leeds to hold a peaceful protest at El Paso Police Department Central Regional Command - 200 S. Campbell (sidewalks only) and across the street at the El Paso County Detention Facility - 601 E. Overland (sidewalks only) on July 2, 2005 from 10:00 a.m. to 12:00 p.m.  Approximately 25 - 200 persons will take part.  This request includes permission to use amplification (2 bullhorns).  PERMIT # 05-082  [Stuart Leeds] (District 8) (Attachment)          

          

I wonder if they made hand signs to their clients.  Wish I were there.

 

Money, It’s a Gas

Friends, the following item came up twice before, but for those of you whose memory can get as bad as mine, you can read the original discussion (fascinating, of course) in my May notes http://www.thestrelz.com/shm/2005_0524.htm):

 

11.  COMPTROLLER:  [Comptroller, Carmen Arrieta-Candelaria, (915) 541-4435] Discussion and action on a resolution to authorize the City Manager  to accept approximately $5.8 million in Palo Verde Rewards from the El Paso Electric Company, determine how the Palo Verde Rewards will be used, and establish any requisite criteria for directing the use and accounting of the Palo Verde Rewards.  (Districts - Citywide) (Attachment)          

 

City Comptroller Carmen Arrieta, who placed this item on the agenda, explained that the resolution before Council would allow the City to accept $5.8 million in Palo Verde Rewards from the El Paso Electric Company, some of which may be considered for use by Project Bravo.  Arrieta said that the funds were “generated from the Palo Verde station operating at a higher than expected capacity, which resulted in lower than expected costs,” and the savings are referred to as the Palo Verde rewards.  The El Paso Electric Company agreed with the Public Utility Commission of Texas that instead of sending the funds to shareholders, 25% would be used on demand-side management programs.

 

Arrieta also mentioned that there were “interveners,” who asked for some of the money in order to send it to Project Bravo (they wanted it used for moderate income household weatherization programs).  The interveners were Texas Ratepayers Organization to Save Energy (Texas ROSE) and the Texas Legal Service Center, who negotiated with El Paso Electric, not the City (for more information on that meeting, see http://www.thestrelz.com/shm/2005_0524.htm).

 

Lozano piggy-backed onto Arrieta’s statement and said that because the agreement didn’t include the City of El Paso, the City was not committed to sending the money to Project Bravo and that it can use that money in other ways; Arrieta agreed. 

 

Lozano ask how Project Bravo had been chosen, and she didn’t know (she wasn’t around back then).  Lozano said no other agencies have the same programs as Project Bravo and then talked about how Juárez has a program called PACO that pays for repairs on streets, sidewalks, etc.  Mayor John Cook had to remind Lasagna that those repairs have nothing to do with weatherization or demand-side (electricity) management.  Pay attention, pasta man!

 

City Manager Joyce Wilson said one of the reasons Project Bravo was recommended was because they already manage a program that helps low- to moderate-income residents with weatherization.

 

Arrieta further explained the possible uses for the remaining $3.48 million.  The money could go to:

 

 

She said that other uses not allowable under the agreement included refunding ratepayers or putting the money in the debt service fund (neither of which would meet the definition of demand side management).  Those options would have to go back to the PUC and El Paso Electric (EPE) and all parties would have to agree to that revised language.

 

Representative O’Rourke asked how much it would cost the City to go back to the PUC in order to negotiate additional options for the money, and Norman Gordon (the City’s utility counsel) said that it would cost less than $25,000.

 

Presi Ortega asked Gordon if he knew how much the ratepayer would get back; Gordon said he did not know.

 

O’Rourke asked what demand side management was and Arrieta said it was any method of reducing electrical usage on a facility or building; such methods included weatherization, fixing windows, etc.

 

Presi Ortega saw an opportunity to use this money in connection with an effort by the Housing Finance Corporation (“HFC,” a non-profit organization that helps low to moderate income folks get into homes http://www.elpasotexas.gov/hfc/) to enable low to moderate income El Pasoans to weatherize their homes.  City Manager Joyce Wilson reminded Council that what Ortega described is exactly what Project Bravo already does and she said she would hate to duplicate an existing program.

 

O’Rourke reminded Council that all that is being asked in the ordinance is that the City accept the money and figure out how to spend it (be it through Project Bravo or otherwise); Arrieta agreed.

 

Then members of the public spoke.  Carl Robinson, who lost to the talking Melina doll in the District 4 race, said that as a ratepayer, he believed the money should go back to him.  He reminded Council that no one asked him about how this money should be spent.  Ric Schecter renewed his complaints about Project Bravo and the amount of its overhead. 

 

Ray Gilbert, stream of consciousness crankmeister artiste, said that EPE is giving this sum to El Paso but the agreement was being dictated to them.  Among other odds and ends, he recommended giving the money back to EPE in order to get a reduction in rates. 

 

One thing Gilbert said that alarmed me was that he had heard “from outside electrical companies” that El Paso Electric was about to be sold.  That, my friends, would not be a good thing for El Paso.  He added, “All they’re doing is raising their price on their common stock to sell it,” and warned that the company will soon not be locally owned.  If Gilbert is right, then the Council needs to re-examine that franchise they discussed last week, make it a much shorter franchise, and make it a much better deal for the ratepayer.

 

Melina, Not Everybody Loves Raymond

Gilbert exceeded his time by just a few seconds and then wrapped up.  After he had finished, he thanked Council and, as he was walking away from the podium, Melina Castro, in a barely audible voice, asked, “Mayor, can we extend his time?”

 

Mayor Cook responded, “He didn’t ask for additional time, thank you.”  I could’ve sworn I saw Luther Jones skulking in the back holding up a cue card up that read “ASK FOR MORE TIME FOR GILBERT” just a few seconds too late.  Gotta be quicker on the job, there, Luther!

 

Sofia Moreno, executive director of Project Bravo, was the next speaker and she said that over the last 40 years the organization has helped low-income families, and one of their programs is the weatherization program.  She said that 146 households were assisted last year through this program and asked that City Council support using this money to increase that number.  She also explained that the El Paso Electric money is not a refund to ratepayers but is money that would have gone to shareholders, but is instead being given to the City. 

 

Then came Carol Bajitsky (sorry for butchering the spelling of that name), executive director of Texas ROSE, which represents low-income consumers in cases before the Public Utility Commission in Texas.  She said her organization was one of the parties to the original agreement and said Project Bravo was selected because Texas ROSE was aware of the need for weatherization services and what Project Bravo does.

 

Norman Gordon clarified the difference between refunds and these monies.  He explained that the Palo Verde rewards were funds “designed to go to shareholders in the event that the Palo Verde plant performed better than expected” per a 1999 agreement, and he called it a “one-time event.”

 

Steve Ortega said he wanted to discuss the City’s legal options and made a motion to go into executive session that was seconded by Presi Ortega.  David Crowder, El Paso Times City Hall reporter, raised an objection to this and questioned why Council needed to go into executive session.  I completely understand how he feels; I frequently want to raise my objections to the poor coverage of local issues by the Times and question why they call themselves a newspaper.

 

Steve Ortega said—again—that he wanted to discuss the City’s legal options.

 

Crowder, not grasping that attorney-client communications are exempt from the open-meetings requirement, asked that the discussions be carried out in public.   Ortega asked the City Attorney if Council has the authority to move into executive session.

 

It’s a bird…it’s a plane…it’s a real lawyer!

And then, the much-anticipated moment we had waited two years for finally occurred.  The City actually got sound legal advice!  Yes, my friends, it’s no longer just a fantasy…it’s no longer just a dream…the City Attorney (interim, that is) Charlie McNabb spoke.  And no, he didn’t look like a deer caught in headlights.  And, no, he didn’t look around in a panic for one of his assistants to answer for him.  And no, he didn’t take an agonizingly long time to come up with a garbled non-answer designed to hide his rank ignorance.  He simply, authoritatively, answered the question.  I kept waiting for the fireworks to go off inside Council chambers.

 

McNabb told them—with all the professional authority and confidence in municipal law he possesses—that they indeed had the right to go into executive session to receive legal advice on this item and explained why.

 

After McNabb had spoken, Presi Ortega said, “A familiar voice!” and everyone chuckled.

 

Indeed…a familiar and trusted voice…finally.  John Cook, whose idea it was to bring McNabb back. probably should get the “Brilliant Idea of the Year” award.

 

When they came out of executive session (about six minutes later), Representative Susie Byrd said that this money represents an opportunity for areas like hers (central El Paso) where older housing stock exists.  She said that the City should honor the fact that Project Bravo does this work, but was open to asking them to work with new partners.  She said the remaining money could be used by the Economic Development or Community Development departments to create incentives for businesses to move into older parts of town. 

 

(As an aside, this columnist would’ve hoped that the Empowerment Zone would be the organization doing providing those financial incentives instead of spending millions of those precious empowering dollars on street festivals!  Alas, that kind of empowering may be too much empowerment to hope for http://www.elpasotimes.com/apps/pbcs.dll/article?AID=2005506190323)

 

Steve Ortega made a motion to accept the money “with an understanding that we’re just accepting the money; there’s been no decision as to how the money is gonna be used.”  Beto O’Rourke seconded the motion.

 

Before the vote could be taken, the talking Melina doll spoke.  “I have a question,” she announced meekly.  “I’m just, um, it was already mentioned the City was a part of the low-income agreement suggested by Project Bravo, right?”  She had a blank look on her face as she searched the room for someone to answer her question.  She didn’t have a script in her hand and I didn’t see Luther in chambers at that moment, so it appeared she was flying solo—and it showed.

 

I wanted to go to the podium and ask, “Um, Ms. Castro, were you paying attention?  At all?  Ever?  Or were you waiting for Luther to pull your string?”

 

Instead, Carmen Arrieta came to the podium and politely reminded her that the City was not a part of the discussion.  She said (again) that the agreement was between the Electric Company and the interveners.

 

“Okay, if we approve this agenda item,” asked Castro, “will it be in compliance with all the relevant legal opinions of the City Attorney concerning the appropriation of the funds?”  She asked that last question with a bit of uncertainty on her face and in her voice.

 

I wanted to rush the podium and ask, “Gee, what do you think, Melina?  Do you think our City Attorney, Charlie McNabb, who is sitting only feet from you would have raised an objection if this item were not in compliance?”

 

The answer she was given was, of course, yes, and McNabb explained that the resolution before them today (which she should have read by now) “contains no binding obligation on the City to direct the funds to any particular agency.”

 

“Oh, okay” she said.  Glad we got that straightened out for the talking Melina doll.

 

The motion passed unanimously.

 

The Green Goldmine

The following information regarding the astronomical costs for outside attorneys is something I have been mentioning in my column for a few weeks now:

 

7N. BT2005-1230 CITY ATTORNEY Reallocation of funds from salary savings to cover outside counsel services.  (Attachment)

Decrease $90,000 from 03010024/01101/501000 Salaries

Increase $90,000 from 03010026/01101/502109 ExtLegalCousl

 

7O. BT2005-1233 CITY ATTORNEY Transferring appropriations to cover ongoing outside legal counsel litigation costs. (Attachment)

Decrease $450,000 from 21010050/01101/501012 UniformWag

Increase $450,000 to   03010026/01101/502109 ExtLegalCousl

 

Susie Byrd took this off the consent agenda and said she was concerned about the amount of money being paid ($540,000) and asked to see the invoices.  She was informed by the Interim City Attorney, Charlie McNabb, that the invoices aren’t public record but that any of the representatives could go down to his office and review them.

 

Wow.  And they wouldn’t even have to put in an open records request either!  And I bet they wouldn’t have to have Jimbo send them sarcastic emails.  Now isn’t that refreshing?

 

Under My Thumb

McNabb said “We have a presentation that Jim Martinez from my office would like to present to Council.”  When McNabb said “from my office,” I was grinning from ear to ear.  I looked around, wanting to high-five someone, anyone near me, but then I decided against it and remembered I should observe the rules of decorum. 

 

Jimbo, who, now that Charlie McNabb is running the City Attorney’s Office, must have very reluctantly relinquished his Jabba-like authority, said he wanted to give a “historical analysis” of payments to outside counsel.  He then added a little dig:  “We don’t have an awful lot of historical information, but I can go back at least two years.”

 

(To view Jimbo’s power point presentation, click on the attachment to the agenda item above; for more thorough information on the City Attorney’s office, money paid to outside counsel, assistant City attorney salaries and their experience – their legal experience, NOT municipal experience, an important distinction – see  http://www.newspapertree.com/view_article.sstg?c=d2b4392961c74f9d&mc=809d3b8d3548a29b)

 

Jimbo explained that there are two occasions that make hiring outside attorneys mandatory: collective bargaining (which happened in 2001 and 2002—that’s the police and fire contract negotiations) and cases covered by insurance.  He forgot to mention the third occasion that makes hiring outside attorneys mandatory:  when Lisa Elizondo runs the office.

 

He explained that under the police contract, the City has to hire outside attorneys to defend officers who get sued, and Martinez said that clause has been in effect since 2002.  At that point, Charlie McNabb politely interrupted him and said it has been in the collective bargaining agreement ever since he can remember (which, folks, goes back at least 20 years).  I again had to restrain myself from high fiving anyone remotely near me.  Nice try, Jimbo.

 

An institutional memory is an amazing thing, ain’t it?  McNabb’s authority and knowledge made “El Superstar” look so satisfyingly inferior. 

 

Martinez said that the legal work relating to police cases totaled $883,055 from June 1, 2003-2005 and the budgeted amount was $250,000.  He said it’s difficult to budget for these things because you never know when the City will face a “great big stinking gobsmacker.”

 

And, then Martinez said, “There’s a legal term for these cases, they’re called gobsmackers.” He then quickly added, “That’s a joke.” 

 

Gee, Jim, that was so funny I forgot to laugh.  I guess Martinez felt like he had to fill the gaping humor vacuum left by the departed Robert “I’m a comic genius in my own (and no one else’s) mind” Cushing.  Someone should tell Jimbo that this kind of joking during such a serious discussion is (a) not appropriate and (b) not funny.  He continued along his irreverent path and said, “When you get them in it’s hard to discern whether or not it’s going to be great big stinking gobsmacker that’s gonna cost $160,000 or...not that big a deal.”

 

Gobsmacker? 

 

I’ve heard the word used before, but never in Council chambers (and certainly never by a professional on television).  I sort-of know what it means, but to be sure I looked in my dictionary…wasn’t there.  I checked the internet, and here is what I found:  Gobsmacked  --   “taken unawares or suddenly and feeling wonder or astonishment.”  http://www.thefreedictionary.com/gobsmacked

 

Then I checked Black’s Law Dictionary, the same edition where I found the definition of “do over”—remember that?  (How could any of us forget?)   And, sure enough, it was there.  It’s what my lawyer friends call a “term of art.” 

 

Gobsmacked (adjective) -- “the psychological condition occurring in obscenely overpaid, extremely arrogant government attorneys when their scheme to freely dispense precious taxpayer dollars to friends in private firms blows up in their faces.  Term is often used by such attorneys to hide their incompetence.  Also, Gobsmacker (noun) -- an event that brings about the sensation of being Gobsmacked.“  Black’s Law Dictionary, 5th ed.  Got it.

 

So, I presume that those “great big stinking gobsmackers,” my friends, were the Courts of Inquiry.

 

Martinez said he didn’t want to “anger the anti-police forces unnecessarily” (which meant self-anointed “Hound of Hell” Theresa Caballero, who was sitting in the audience, waiting to comment), and said that “not one, not two, but six” courts of inquiry (COIs) have been initiated and before these COIs the average monthly cost for legal work to the City was $18,802 (between June 2003-2004); after the COIs (between July 2004-2005) it shot up to $69,963 a month, a 272% increase.

 

In response to a request from Mr. McNabb to clarify how the City has been faring in the COIs, Martinez said that two of the COIs have been concluded and the technical finding was that there was “no probable cause,” meaning, he said, that the City and Police Department “won.”  He said that the City is now out of the Hollebeke lawsuit but that legal claims remain pending against two individual officers.  After that, he asked of Mr. McNabb, oh so deferentially, “Is that a fair answer to your question?”

 

That insincere mewling humility gave me the creeps.  But then I suddenly started hearing an old Rolling Stones song in my head—“Under My Thumb.”  I smiled inwardly.

 

Arrogance, Inc.

Martinez said the next costly case had to do with the “policy decision” to oppose the ASARCO renewal permit.  He said “the Asarco litigation, whatever you think about it, whether you are in favor of it or opposed to it—the Council decided to oppose ASARCO’s air permit renewal application.  Well, that costs money.”  Although he nominally couched this is neutral terms, “whatever you think about it:”—the sub-text was very clear:  Martinez (like his former puppet masters, Wardy, Cushing and Cobos) doesn’t like it.  In fact, he also dislikes the elected official at the forefront of the “Keep the Lead Out” movement, Sen. Eliot Shapleigh.  The King of All Arrogance, Jimbo with the jumbo salary, let that be known through his juvenile name calling of the Senator in City Hall memos  http://www.newspapertree.com/view_article.sstg?c=f794d94c32134909&mc=2019fffb535f4ca4.

 

“So far . . . it has cost us $240,000.  We haven’t tried that case yet, the trial is set for July 11th.  I think it’s gonna cost us a great deal more. . . . I suspect you’re probably lookin’ at at least another $100,000 to get, at least to get to the finish line in that case.  That’s just a policy decision from Council,” said Jimbo, making sure, in case we didn’t get it, that this large expenditure was the result of a City Council “policy decision.”  Trust me, Jimbo, we got it.

 

It was totally obvious that Martinez was getting in his digs here.  This “policy decision” is one that he very clearly doesn’t agree with.  More reasons why this arrogant hold-over putz from the Wardy days has to go.  And Martinez didn’t stop there.  He pointed out that the ASARCO figure--$240,876 to be exact—occurred in just this fiscal year, while the police figure--$883,055—was over a two-year period.  In a dismissive tone, Martinez said that the ASARCO litigation was “very expensive.  And again, consider that the ASARCO litigation, so far—and we’re not done with it, has cost $240,000—well, the whole outside counsel budget for the year was $250,000—so, that’s where the money’s going.”

 

That’s right, Jimbo.  Council made a policy decision—no one gives a flying flapjack that you don’t agree with it.  Just pave the way for a replacement and we’ll happily say adios, cabron.

 

He pointed out that although costs are up, “they are not up beyond where they have been.”  He showed high costs for outside counsel in 2001 and 2002 but failed to mention that the reason for those outside attorneys in 2001-02 was a result of the negotiations with the police and fire on new contracts (which are up soon, I believe).

 

The Lisa Elizondo Factor…the Destruction Continues

Then, Jimbo finally arrived at the part I was waiting for:  The part dealing with Lisa Elizondo’s mishandling of the City Attorney’s office.  Martinez said that the mayor had asked about “The effect our staffing levels inside the department and the inside salary costs had on our outside counsel expenses.”

 

“With one exception, the increased costs are mandatory,” Martinez reminded them, saying, “The one exception is for a four-month period when…Lisa Elizondo essentially lost her trial section.”

 

“Lost her trial section?”  If that isn’t a rewriting of history, I don’t know what is!  Lisa Elizondo did not “lose” her trial section.  Elizondo callously fired Laura Gordon on Christmas Eve, and then a few months after she hired Mike Moffeit, he quit (only after signing a confidentiality agreement, of course)!  I would say that Elizondo drove her trial section into the ground.  Yes, indeed, that would be a more accurate description.

 

“And so for four months, Lisa was without a trial section, and what she did in that situation, with Council’s eventual approval, was outsource all the lawsuits,” adding that they were cases “we just couldn’t handle.”  He also forgot to mention that one of their litigators Elizondo hired (after she decimated the trial section) was someone just two years out of law school with no trial or municipal experience and who, as Elizondo informed Council, therefore lacked the experience necessary to handle the cases. 

 

Jimbo said that the Lisa E. debacle was a one-time event and the costs were realized in fiscal year 2005.  I bet they were!  And although he was quick to point out how much the ASARCO and COI-related costs were, he never bothered to inform us how much money was paid to the outside lawyers during this four-month period, a result of Elizondo’s bad management and poor decisions.  Not only did Jimbo not tell, but no one asked.  This irritated your cranky friend, of course, because I was hoping one of the Council members would ask, “And just how much was paid to Carl Green for those cases, Jimbo?”  Alas, no one did, and so he and Lisa were again let off the hook. 

 

He also said once he joined the department (recall that eery transformation from Darth Vader to Jabba), he said that all but 7 or 8 cases (that Council chose to leave with the law firm) came back in. 

 

Then, after saying that the City has not done any more outsourcing, Martinez admitted that in what he called the “Montwood high school riot case” (Lopez v. the City of El Paso) the City has had to “augment its in-house staff.”  He added that when it came in, “it had gobsmacker written all over it…we knew immediately this is going to be extremely expensive and very taxing.”  Then it wasn’t technically a “gobsmacker” was it, Jimbo?  (For more on the Montwood case see http://www.texascivilrightsproject.org/newspub/elpaso.htm).

 

He said that in his opinion, the City needed two lead trial lawyers in that case instead of one, and they received Council’s permission to hire one outside lawyer to join him in this endeavor.  (More on this in a moment.)  

 

Martinez said that the Montwood case would be very costly.  “For example, I went to depositions on Thursday and Friday on this case,” he said, “We deposed four and a half witnesses, four witnesses and we started a fifth.  The City was paying five different lawyers to attend these depositions because of that labor contract.  The hourly rate was $750 per hour, collectively for the five lawyers.  In the course of two days we spent $20,000 between the lawyers and the deposition transcripts.”

 

Folks, it turns out (according to a loyal reader who’s in the know) that Martinez (self-proclaimed lead trial attorney on this case) never even showed up to the Thursday deposition at all.  Furthermore, it turns out that the City (read: the taxpayer) is paying for two lawyers for two different police personnel who might not be subject to the police contract anymore.  And to add insult to injury, the City has TWO additional lawyers to help Jimbo—not one—from Carl Green’s law firm sitting in for Jimbo with the Jumbo salary.

 

Here’s another little tidbit on the Montwood case.  Jimbo had initially informed the party suing the City that he would gladly sit down and mediate the case in order to avoid those “gobsmacker” costs.  Two days before the mediation was to occur, Jimbo announced that the City would proceed with its case, and there was a tiny little blurb about this in the newspaper when they reported (with as little detail as possible) that the opposing attorney had delivered a Motion for Sanctions against the City for this last-minute switcheroo.

 

The Aftermath

Back to the meeting.  Jimbo announced that his presentation was over, and before Council could ask any questions, Charlie McNabb made a statement.  At the very beginning of Jimbo’s power point presentation, he claimed that the high number of cases that had to be outsourced were “not a product of staffing levels in the City Attorney’s office, they’re not a product of the salaries paid the lawyers inside the City Attorney’s office.  They’re completely extrinsic to that.”

 

Before Council made any comments, Interim City Attorney Charlie McNabb said, “On the stabilized outsourcing, Jim and I have spoken about this, and I am not prepared to say to Council that staff does not need to be increased.  It takes a lot of historical data to make that call and I am still assessing that situation.  My feeling is that it is light at this time, but I am going to assess that and make recommendations to you on that part and that will be part of the budget process.”

 

Wow.  Experience and knowledge.  Amazing.

 

Susie Byrd asked if the air permit case and the civil case in Austin were both on the ASARCO tab and Martinez said they were.  (What isn’t on that tab is the lawsuit that the Wardy administration filed against ASARCO for remediation costs, and Jimbo should have clarified that for Byrd.)  Lozano asked questions about what we’re doing on ASARCO and Jimbo gave a broad overview of what was being done to oppose the air permit.

 

Have You Ever Been Mellow, Part 2

Local anklebiter Theresa Caballero, looking quite unkempt and physically frazzled, said she wanted to add to Martinez’s presentation.  She talked about the COI and the seven pending lawsuits against the Police Department in federal court and she warned that there would be more and that they would cost millions.

 

She promised that one upcoming court of inquiry will be very big, “and what you’re seeing in the increase in the cost of litigation is a product of City Councils for the past two administrations not dealing with the problem in the police department, and it is going to get worse,” again warning that it would cost taxpayers in the millions.  And then, referring to Martinez’s claim that the City had won the COI, she said, “The City has not won them,” and said the judge decided not to issue arrest warrants.  “Nobody wins when you have a police department that’s out of control, that’s why we’re having a demonstration against the police department on Saturday.”

 

She ran out of time, asked for and was granted more time, and took another minute to say that the pre-COI monthly costs are “unacceptable.”  She said there are over 4,500 complaints against the police, asked them to look at the numbers and take corrective action.

 

Byrd made a motion to approve the transfers and encouraged everyone to look at the invoices.  The item passed unanimously.

 

El Paso’s Halliburton

And speaking of outside legal work, and in case you missed it, you must read the article in the latest Newspapertree article about the case initiated by Joe Wardy & Co. against ASARCO http://www.newspapertree.com/view_article.sstg?c=a6bdcb81251b4011&mc=3cb7c806b0f43fe8. 

 

Remember the discussion about whether or not to have a superfund site in El Paso?  Joe Wardy and his Council Cronies determined that they would sue ASARCO instead. 

 

If you don’t remember, here’s a very brief recap of the March 29th meeting:

 

Once Council was done with the City business on the agenda, they went into executive session.  When they came out they unanimously approved suing ASARCO.  They also approved hiring outside legal help if necessary.

 

So, let me get this straight.  Instead of moving forward with getting on the National Priorities List, getting put near the top of that list when it comes to receiving funding (as the EPA stated), having cleanup start in June and be completed in 18-36 months, and then having property owners get themselves off the superfund list once the properties are clean, here’s what Wardy & Co. have chosen to do:  File a lawsuit against ASARCO, a company that has waged a public relations war against taking responsibility for its own actions. 

 

In Wardy’s discussion earlier, there were no details released about how long that lawsuit will last, how much it will cost, what Wardy’s own personal deadline is for cleanup, what will happen if ASARCO declares bankruptcy, or when he would be willing to declare the lawsuit a failure if there are no immediate successes.

 

Hmmmm.  Sounds a lot like current U.S. policy when it comes to the war in Iraq:  Hidden agendas for going in and no strategy for getting out!

 

If you want to read more about that offensive discussion (when Cobos and Cushing suggested using the devil’s tool – certificates of obligation – to  remediate the site and the Chamber of Commerce absurdly warned that no troops would be sent to El Paso if we got on the National Priorities List as a superfund site) visit http://www.thestrelz.com/shm/2005_0329.htm.

 

I knew that this lawsuit was bad news, especially when on April 19th Council approved hiring Baron & Budd to handle this case.  If you recall, John Cook and Susan Austin were under the impression that the City Council had NOT authorized a lawsuit against ASARCO.  We never heard more on that:

 

Before the vote on the motion to authorize the City Attorney to execute any agreement between the City and Baron & Budd was taken, John Cook asked, “Does this in any way authorize the City to file a lawsuit?”

 

“This motion does not.  That’s already been done,” replied Martinez.

 

“What?” asked Austin.

 

“When did we authorize a lawsuit?” asked Cook

 

Cobos did NOT want to talk about Cook’s question and asked, “Is that this item?” and wanted to move on to the vote.

Jabba answered, replying that it happened, “three or four weeks ago…some time ago.”

 

John Cook said, “That wasn’t my understanding.  My understanding was that we authorized you to seek legal counsel and to come up with some law firms, which is what’s before us today.”

 

“I believe Council authorized a lawsuit,” responded Jimbo.

 

Cobos, eager to get to the vote (and his eagerness always sets off my “caution signals,” dear reader!) said, “I think we can get that clarified at a later time.  I know that’s not what’s on the agenda here today.”

 

I was hoping that Cook would press the issue, because it’s kinda important, at least to me.

 

The motion passed, with the only no vote coming from Cook.  After the vote was taken, Cook asked for the minutes of the meeting and Austin said she, too, wanted the minutes as well as the tape of the executive session.

http://www.thestrelz.com/shm/2005_0419.htm

 

Well, it turns out that not only did the City authorize the lawsuit, it’s a really great deal for the pigs at the trough. 

 

According to the Newspapertree article, if the City were to win its case against ASARCO, 30% of any award would not go to cleaning up properties but would instead go to making the wealthy Dallas law firm of Baron & Budd wealthier.  According to NPT:

 

In addition to the 30 percent contingent fee, Baron & Budd are entitled to reimbursement for all costs incurred related to the pursuit of such claims or actions resulting from this agreement. A non-exhaustive list of examples of reimbursable costs provided within the agreement includes investigative services, travel expenses, deposition/court reporter fees, exhibits and graphics preparation fees, fees associated with copying, postage, shipping, courier services, and technical expert witnesses. The hiring of such technical experts is left at the discretion of Baron & Budd. Should such costs be incurred on behalf of more than one client, Baron & Budd retains the discretion to disseminate those charges equally or pro-rata among its clients, with such costs thereby reducing the City’s damage recovery.

http://www.newspapertree.com/view_article.sstg?c=a6bdcb81251b4011&mc=3cb7c806b0f43fe8

 

Now, I understand that contingency fees are standard in these types of cases.  But, instead of having the federal government pay to remediate affected properties, we’ll be paying a fancy plaintiff’s law firm thousands of dollars in costs and 30% of any judgment obtained from ASARCO.  And this is assuming that after what will undoubtedly take many years of expensive litigation, we get a judgment.  Not at all a sure thing.  And this is from the Wardy cronies who portrayed themselves as “fiscally responsible.”  What a joke.  Well, unless we reverse this stupid decision, the joke will be on us. 

 

If the City terminates its contract with Baron & Budd, we have to pay them all the expenses they have incurred to date.  Fair enough.  I say, let’s cut our losses and do it.

 

Oh, and one more thing you should know…Baron & Budd has engaged an El Paso attorney to serve as local counsel.  Who do you think it is, folks?  Take a wild, out of this world guess.  Drumroll, please.  It’s none other than Martie Jobe (fellow troikette with Luther Jones and David Escobar, friend of Carl Green, wife of Stanley Jobe, and a bleach-blonde piggy at the trough)!  According to NPT: 

 

Ms. Jobe will receive 10 percent of any recovery made related to this agreement. Her 10 percent will come directly from the 30 percent retained by Baron & Budd and will not be an additional fee incurred by the City. Accordingly, Baron & Budd will actually receive 20 percent (plus all costs), Ms. Jobe will receive 10 percent, and the City will receive 70 percent, less any and all incurred costs.

 

Now if that doesn’t make you want to pummel Joe Wardy and his cronies, I don’t know what does.  The continuous raping of this community at the hands of this group of parasites is infuriating, offensive and should result in public outrage. 

 

Ethics in the House

When the roll call for approval of the following item was taken, Steve Ortega abstained from the following item:

 

15. PURCHASING DEPARTMENT: [Purchasing Department, Byron Johnson, (915) 541-4308] (Attachment) Approve Change Order No. Twelve to J.A.R. Concrete, Inc., for Contract No. 2003-199 EPIA Fixed Base Operator Ramp & NASA Apron Reconstruction Project.  The amount of this change order represents a CREDIT (to the City of El Paso) of Five Hundred Sixty Three Thousand, Four Hundred Thirty Six Dollars and Eighty Three Cents ($563,436.83) against the amount bid by J.A.R. Concrete, Inc. for the Scope of  Work defined by specification books #1 and #2, the project drawings, amendments and change orders.  The amount of this credit is awarded as per recommendations from the Departments of El Paso International Airport, the Project Manager, Paragon Project Resources, Inc. and Engineering.  It is requested that the City Manager be authorized to sign the requested (credit) change order against the final adjusted contract amount and be authorized to execute budget transfers for these changes as necessary.  Funding Source: 62620024-PAP0019-41054-508027.

 

He cited his close relationship with the Rosales family (owners of JAR Concrete) as the reason.

 

Imagine that…someone openly citing a relationship with a recipient of an award and abstaining from it.  This never would have happened in Wardyland.

 

CSC New Rule

More civil service changes in the following item:

 

16.  PUBLIC HEARING - HUMAN RESOURCES: [Human Resources, Terry A. Bond, (915) 541-4509] An ordinance amending Ordinance 8065, Civil Service  Rules and Regulations, To Add A New Rule Addressing Working Out Of Class for Civil Service Employees. (Attachment)          

 

Assistant City Attorney Elaine Hengen explained that this was a new rule to clarify the circumstances in which CSC employees may work “out of class” (a higher classification than they are assigned to), when they will receive credit for that class to apply for a promotion, and if employees works 15 consecutive days or more out of class for departmental convenience, they would receive compensation.  She said that this was negotiated with a CSC committee, approved by the CSC, and is now up before Council. 

 

Hengen said Joyce Wilson had some concerns over the fact that the rule requires the Civil Service Commission to grant permission to the department heads to have the employees work out of class; requires that paperwork be sent to the CSC sign off on developmental assignments; and contains a provision that the CSC provide reports to the City Manager on when the department head has violated the rule.  She said there are some legal concerns about liability issues for CSC members on that new rule that they have not addressed with them yet.  She was recommending that Council deny approval of the rule so the City Attorney’s Office could review the legal issues with the CSC and address the City Manager’s concern over the amount of paperwork this rule would generate.

 

City Manager Joyce Wilson said that the City staff was in agreement with much of the work on the rule, but not the additional paperwork and reporting requirements, which create costs in money and time. 

 

Bill Ellis, Chairman of the Commission, said the Commission believes the rule should be passed.  He said that removing the paperwork “deprives the commission of its appropriate oversight of the process.”  He said it was the “mission of the commission to ensure fairness of the civil service system, which this rule does.”  He recommended that instead of rejecting the proposed rule that Council send it back to the Civil Service Commission; not doing so, he warned, would set an “unhealthy precedent” because the previous Council (essentially) did everything the CSC wanted them to do.

 

When Ellis made that last statement about the unhealthy precedent I wanted to guffaw.  This is the same commission that rubber stamped all of Wardy’s employment abuses; now they are warning this Council to simply do as they instruct?

 

Interim City Attorney McNabb reminded Council that failure to approve or deny a Civil Service Commission rule after 60 days of Council’s receipt of the ordinance results in their automatic adoption; therefore, Council did not have the option to modify the rules.  He said rejection of the rule was not an indication of the City’s unwillingness to work to modify the rule.

 

More sound legal advice…could it get any better?

 

Mayor Cook said that he didn’t believe that the Civil Service Commission should have to approve every single assignment, and I agree completely.  The Civil Service Commission is not “management,” and for them to believe they are or act as if they are means they do not understand their position. 

 

Joyce Wilson said the only objection to this item was the reporting requirement, and Steve Ortega made a motion to deny the ordinance; Ortega’s motion passed unanimously.

 

The Downtown Swap Meet

The following item is one that has gotten my goat for a long, long time:

 

17C. An ordinance granting a Special Privilege to the Central Business Association of El Paso Incorporated to permit temporary sidewalk vending for participating merchants within certain public rights-of-way in Downtown El Paso from July 4, 2005 through July 3, 2006.  (Total Fees: $26,900.00, SP-05015) (District 8) (Attachment)          

 

Although this item was approved in the end, Representative Steve Ortega raised some of the same issues I have in the past about the way the downtown outdoor vending makes El Paso look.  He said that he doesn’t believe that downtown should look like a “neighborhood swap meet,” and because the City gave the Paso del Norte group the green light to work on downtown revitalization, he said he’d like to hear from the PDN group about their feelings about this.  He asked to postpone this item for one week.

 

Mike Breitinger from the El Paso Central Business Association and the Downtown Management District said that he’s on the PDN downtown committee and they are in support of the sidewalk vending.  He said this type of outdoor vending is  “just the nature of the beast in an international city,” and added that consultants agree that the market helps generate jobs and money.  This reference to our being an “international city,” my friends, is code for “it’s just Mexicans shopping downtown, so who cares if it looks like a swap meet?”

 

Sorry, folks, but that kind of “nature of the beast” attitude infuriates me.  I think outdoor cafés are great, and I think outdoor markets (like farmers markets, crafts markets, etc.) are wonderful; however, I don’t believe that our neighbors to the south deserve trashy, unkempt, unattractive swap meet-like conditions along our downtown corridors simply because they are from Mexico.  Breitinger’s conclusions border (no pun intended) on the offensive to me. 

 

Ortega said he wanted to send a strong message that “the status quo for downtown is not acceptable,” and said that he knows there are families that have owned buildings for a long time and have done nothing with downtown.  Ortega also reminded Breitinger that his organization was opposed to increasing parking fees that would help fund the Plaza Theatre, which in my opinion, will be an enormous economic and cultural driver for downtown El Paso. 

 

This time I had to sit on my hands so I wouldn’t high five any unassuming people near me (I might be accused of assault considering the vehemence I would have used in this particular high five).

 

Beto O’Rourke said he strongly supports the ordinance and the retailers who are making their investment in El Paso.  He also said that he realizes that downtown isn’t where everyone wants it to be right now, and that he didn’t want to “destroy” what was there already.

 

Lozano urged support of the ordinance because the downtown representative (O’Rourke) is supporting it.

 

Susie Byrd said she, too, approved this, but wanted to see some aesthetic guidelines created; Breitinger said that they’ve already done that.  But, he said, “if it looks too fancy, like a Target or Wal Mart,” the consumers wouldn’t bother to stop, adding, “I want to see Rodeo Drive in El Paso.  Is that gonna happen?  Not today.”

 

Positively insulting and lame-brained this argument is.  And these are the same guys, my friends, who supported Wardy and the Crony Crew’s re-election.  So, Yoda asks, discern where their values lie, can you?

 

The item passed unanimously.

 

(P.S. I first complained about this back in my pre-independent days when I was still an NPT co-conspirator and columnist.  For that original column visit http://newspapertree.com/view_article.sstg?c=9ad24fcebc9941b6.  And my publisher back then, Anthony Martinez, gave Breitinger a chance to respond and that can be found at http://newspapertree.com/view_article.sstg?c=7dc60de6761f4be5.)

 

Lowe and Behold, If You Will

The following item was taken off the consent agenda by Presi Ortega:

 

3B. That the City Manager or her designee be authorized to sign, on behalf of the City of El Paso, notices of termination for the following Tax Abatement Agreements:

Company                                                       Agreement Date

Lowe's Home Centers                               February 1, 2001

Plastic Molding Technology (PMT)                  April 17, 2001

Providian Bancorp Services                        May 29, 2001

in accordance with the terms of the respective Agreements and with the recommendation of the staff and Director of the Economic Development Department.  [Economic Development, David G. Dobson, (915) 541-4680] (Attachment)          

 

Presi Ortega said he wanted to hear from Economic Development before the vote was to be taken, so David Dobson explained that there are 20 active abatements and the three businesses mentioned in the agenda item have been contacted on “numerous occasions” and have failed to provide the City with information necessary to maintain the abatements.  “Therefore, we cannot certify, if you will, as we are required to do to the Central Appraisal District on an annual basis their eligibility for tax abatements,” said Dobson.  Because they have not complied, staff was recommending termination.

 

Susie Byrd asked if the rescinding of this abatement applied to the County as well and Dobson said the department only handles abatements for the City.  She said that her understanding was that the City administers this on behalf of the County and everyone chimed in, saying no at the same time.

 

The item passed unanimously.

 

Executive Session Odds and Ends

Council went into executive session for about an hour and when they came out they discussed a variety of items.  The first was the following:

 

18A. ASARCO Incorporated Air Quality Permit No. 20345; TCEQ, Docket No. 2004-0049-AIR (551.071)  [City Attorney's Office, James A. Martinez, (915) 541-4550]

 

The motion was to allow the City’s attorneys to proceed with the case listed above and the motion passed unanimously.

 

18B. ASARCO Particulate Reduction Contract (551.071) [City Attorney's Office, James A. Martinez, (915) 541-4550]

 

On the above item, the motion was to allow the City Attorney’s office to have settlement authority with the case mentioned in 18B.  The item passed unanimously.

 

On the following item, Assistant City Attorney John Nance recommended that the City sue Media Copy to recover the abated tax amounts due the City of El Paso.

 

18D. Regarding Tax Abatement Agreement dated January 8, 1998, between The City of El Paso and MediaCopy Texas, Inc.  (551.071) [City Attorney's Office, John Nance, (915) 541-4550]

 

The item passed unanimously.

 

And that was that…a four hour meeting came to an end.

 

Dry and shaken, this week, but not stirred

This week’s meeting didn’t have much controversy or quotable quotes from either Melina or Lasagna.  And although there were a few interesting tidbits, there just wasn’t much going on.

 

Let’s hope that Melina and Lasagna speak up a bit more next week and stir things up, if you will.

 

Until then…have a great independence day.

 

Comments or questions: shmaven@yahoo.com

 

My commentaries are posted weekly at http://www.thestrelz.com/shm/shm.htm

Also, if any of my readers would like to add their own comments or thoughts, they can do that at

http://strelzbacktalk.proboards19.com/index.cgi?board=shm