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August 3, 2018 • Local News

El Paso Times: El Paso Mayor Dee Margo's use of personal email is latest in city's transparency lapses

Mayor Dee Margo this week acknowledged that he used his personal email account to discuss legal challenges with an opponent of the controversial Downtown arena, a move that violates city policy. 

The admission came after a report by the El Paso Inc. stated that the city had failed to disclose at least seven emails that were sent from Margo’s personal account under a request made through the Texas Public Information Act.

Margo, who declined to be interviewed, issued a statement saying that J.P. Bryan, a retired Houston oilman funding the legal battle against the city's multipurpose arena project reached out to him on his personal email. He said he did not switch over to his city email when responding.

“In an effort to alleviate legal costs and settle the litigation, I inadvertently continued those discussions through my personal email," Margo said in the statement. "I recognize that emails in my personal account were not captured by IT. I have reviewed the City’s 2013 resolution regarding governmental transparency and I have taken measures to rectify this situation. I will no longer use my personal email to conduct city business.”

Austin attorney Bill Aleshire, an open government expert, said the mayor may have violated state law as well as city policy. State records laws and public information laws have rules that apply to the use of private emails.

"It is a criminal offense, to delete/destroy an official-business email even if it is on the official’s personal email account. It is destruction of a government record. Elected officials and employees should not be conducting public business using a personal email account ... period," Aleshire said. "But if they do, they should not hide that business from the public anymore than they would if the email was on the city’s computer server. When the mayor took the oath of office to uphold the laws, that includes the laws on government transparency."

The incident is the latest example in which the city has struggled with transparency. 

Former city Rep. Cortney Niland failed to provide text messages and former city Rep. Jim Tolbert provided incomplete texts in response to requests seeking information after then Mayor Oscar Leeser and four city representatives rotated in and out of meetings with arena opponents in December 2016.

In 2015, the city failed to produce hundreds of emails from City Manager Tommy Gonzalez and former Chief Financial Officer Mark Sutter in response to a Times request for information on the city's effort to replace its financial adviser at the request of former city Rep. Larry Romero. Romero sought to replace the city's long-time firm with a company he had personal ties to. City officials at the time attributed the problem to "human error."

The city passed a resolution and city policy in 2013 that said elected officials, employees, contractors and volunteers with city email addresses should refrain from using personal email addresses to conduct city business to ensure that such conversations are open and transparent.

The policy also stated that if officials use personal accounts to conduct government business, they must forward those communications to the city.

It is unclear how much training city officials are receiving on the policy and what the repercussions are for those who violate the transparency rules. The resolution does not cite repercussions for violating the policy and city officials did not respond to questions regarding what occurs if the policy is violated.

Margo, who was elected last year, was unavailable to answer questions related to the open government training he received and whether he was aware of the previous incidents, which were reported on extensively by the media. 

City officials also declined a request for an interview regarding city policies and training.

“The City of El Paso recognizes the importance of governmental transparency, and approved a resolution in 2013 regarding personal emails," Interim City Attorney Karla Neiman said in a statement to the El Paso Times. "City staff made the Mayor aware of the 2013 resolution and Mayor Margo has stated he will no longer use his personal emails to conduct City business. 

"The 2013 resolution provides the guidelines and best practices for electronic communications when conducting City business. In order to ensure that elected officials comply with the City’s communication process and policies, the City will schedule a training session on this topic,” Neiman said.

But Aleshire said the recurring transparency issues with the city are more likely attributable to attitude than training.

"Officials who respect democracy understand and accept the public's right to know what they are saying and doing," Aleshire said. "I don’t think it takes any training if the official has a positive attitude about transparency."

Aleshire said the solution to local transparency issues may be at the polls.

"Voters need to understand that secret government is against their interest and punish officials at the polling place who disrespect transparency," Aleshire said. "Also, it would help if local prosecutors took criminal violation of transparency laws more seriously and bring charges."

City Rep. Alexsandra Annello said she has not been clearly told what, if any, repercussions there are for violating the city policy. Asked whether there should be a consequence for violating city policies, Annello said yes.

"If there is no consequence, people are not going to follow them," Annello said.

City Rep. Claudia Ordaz Perezsaid she did not get training related to the city policy until after a 2015 incident involving deleted text messages from her personal cell phone that were the subject of an open records request.

At the time, Ordaz Perez said she didn’t have responsive documents from her personal cell phone because her phone was programmed to automatically delete them.

She said she consulted with the city attorney who advised her to find a way to produce the documents. Ordaz Perez ultimately purchased software to retrieve deleted text messages and released about 3,000 responsive documents.

“Just to be extremely cautious and safe I released everything, even personal texts,” she said.

Ordaz Perez said that she continues to pay an extra fee to ensure that her phone automatically stores all text messages.

“Every time we receive an open records request, we have an obligation to release anything that pertains to public business whether it’s a public or private device,” Ordaz Perez said. “I can’t speak to what happened with Mayor Margo, but I can certainly speak for myself.”

Ordaz Perez said it's the responsibility of each elected official to maintain public records. She said elected officials receive ethics training, but she was not sure if they are informed about the 2013 policy during that training.

Annello said she and other newly elected officials received a brief ethics training which included a video that is available on the city's website, but could not recall specifics about whether it addressed the policy.

The ethics training presentation and the video available online do not include information or guidelines regarding the Texas Public Information Act, according to a Times review.

But Annello said she was aware of the policy on personal devices prior to taking office because of a high-profile 2014 lawsuit. The lawsuit filed against the city was related to the release of emails from city officials for business about the development of the Downtown ballpark.

In the lawsuit, the city argued it only had to release documents that were responsive to an open records request that it had on official city accounts and devices. 

The Texas attorney general's office ruled that emails about the project held on private devices were also subject to disclosure.

Annello also said that city officials get specific instructions when they are required to produce documents that are responsive to open records requests.

"It specifically says you have to send them in," Annello said. "It says that every time we get an open records request."

The email notice, obtained by the El Paso Times through the open records act, says correspondence or text messages that are either physical or electronic must be produced by the city official regardless of whether the information is on personal or city-owned devices.

It also instructs the respondent to specify whether more than one computer is used for work-related emails. The Information Technology department, which conducts the searches, must also be told whether work-related emails are stored anywhere other than the server so that the computers and personal folders can be searched.