May 25, 2018 • Local News
El Paso Times: Text messages show El Paso mayor wanted public to think city attorney retired
Text messages sent to and from Mayor Dee Margo show that he told at least one City Council member that the public perception around City Attorney Sylvia Borunda Firth's departure should be that she retired.
Messages appear to show that some City Council representatives were unaware that the city attorney was resigning hours before the mayor issued a public statement saying Borunda Firth "retired."
Documents obtained by the El Paso Times through the Texas Public Information Act show that at 3:25 p.m. on April 26, an unidentified city representative asked Margo: “Did Sylvia quit?”
Margo responded: “In process. No comment to media till agreement signed. We’ll put out press.”
In another text sent by the mayor at about 8:50 p.m. to city Rep. Cassandra Hernandez, he said: “Public perception will be retires. No disparagement."
Hernandez responded by asking the mayor to put an item on the executive session agenda for discussion, according to the documents.
Margo and Hernandez could not be reached for comment.
In an earlier text from Hernandez sent at 4:33 p.m., she told Margo: "I think we should call a special meeting regarding this. I want to see any agreements related to what I am hearing and vote on this issue. Any action should come to council."
Margo responded with: "Agreement coincides with her contract and simply pays what she is contractual ... Contractually owed Had outside counsel review. I'm signing today."
The agreement included paying Borunda Firth $274,081, which included six months of severance pay, or $124,340, $103 for her vacation balance, $127,116 for sick leave and an additional $22,484 in "vacation runout."
Borunda Firth's employment contract states that she is entitled to accrued sick and vacation pay if she resigned and provided a 30-day written notice.
The separation agreement negotiated between the mayor and city attorney also gave her six months of severance pay, which she would have been entitled to if she was terminated by a majority vote of the City Council.
Austin attorney Bill Aleshire, an expert on the Texas Open Meetings Act, has said paying Borunda Firth salary, or severance pay, may be a violation of the state constitution.
Under the state's constitution, the Legislature "shall have no power to grant, or to authorize any county or municipal authority to grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered, or a contract has been entered into, and performed in whole or in part; nor pay, nor authorize the payment of, any claim created against any county or municipality of the State, under any agreement or contract, made without authority of law.”
Aleshire has said that the separation agreement gives her benefits that are not allowed in her employment contract.
On Wednesday, in response to questions emailed May 17 and 18 from the Times regarding the legality of the severance pay, the city emailed a statement:
"The City of El Paso and Sylvia Borunda Firth agreed to terminate their employment relationship and negotiated the terms of her separation. The term 'retires' was agreed upon to announce her departure, out of respect for her privacy.
"The Separation and Release Agreement was approved and ratified at the special meeting of the City Council on May 14, 2018. The approval by City Council of the Separation and Release Agreement makes legal the severance payment."
Margo and Borunda Firth on April 20 began negotiating the separation agreement with the help of outside legal counsel. City officials have not said which firm helped with the negotiations.
The wording of the news release was changed from "resigns" to retires and the city issued the revised statement six days later.
It also stipulated that future news releases about Borunda Firth's departure must receive her approval and any requests for comment from the media will be directed to the city manager, who "agrees to provide positive responses to any requests."
Borunda Firth could not be reached for comment.
The City Council ratified the agreement May 14 after talking behind closed doors for more than an hour. City Rep. Peter Svarzbein voted against approving it.
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