Crockett Council Accepts Recusal of City Attorney
Hiring of Special Legal Counsel Approved in CEIDC Matter
By Will Johnson
Messenger Reporter
CROCKETT – The latest chapter in the surreal atmosphere surrounding the Crockett City Council played out on Monday afternoon, Sept. 17 with a special, called meeting of the council to discuss who would provide legal representation for the city in a lawsuit brought against the municipality by Precinct One Councilman Butch Calvert.
At the heart of the matter stands the Crockett Economic and Industrial Development Corporation (CEIDC). Earlier this summer, Calvert indicated he would like to see the CEIDC disbanded. A petition was generated calling for a measure to be placed on the November ballot to determine the fate of the economic development organization.
The petition was circulated with a requirement of receiving signatures from at least 10 percent of registered voters in Crockett in order to secure a ballot slot. The petition received 373 signatures, 12 more than the necessary threshold of 361.
Council members Ernest Jackson, Darrell Jones and Marquita Beasley had argued because neither initiative, recall nor referendum elections were delineated in the city charter, the petition should be declared null and void.
In reference to ballot placement, the Texas Government Code Section 504.351 states if 10 percent or more of voters in a municipality sign a petition “… the governing body of the municipality shall order an election on the issue.”
Rather than agree to place the referendum on the ballot, the council failed to pass a measure to do so when a motion to that affect, died for lack of a second. As a result, Calvert sued the city of Crockett to force a vote on the CEIDC measure.
Once the legal action was brought about, 349thDistrict Court Judge Pam Foster Fletcher and 3rd District Court Judge Mark Calhoon recused themselves from the legal proceedings. In addition, Crockett City Administrator John Angerstein confirmed Crockett City Attorney Bill Pemberton had recused himself as well.
The Sept. 17 meeting was called to order by Crockett Mayor Joni Clonts at 1 p.m. and the sparks began to fly almost from the start.
The first actionable agenda item concerned the approval of minutes from a special session of the council held on Aug. 13.
“Mayor and council, this is the meeting where there was some concern over the minutes. I went through and reviewed them again with (City Secretary) Mrs. (Mitzi) Thompson,” City Administrator John Angerstein said.
Angerstein indicated the minutes had been placed on a computer “thumb drive” so the individual councilmembers could ascertain the accuracy of the written record.
The city administrator asked if there were any concerns after the minutes had been amended and corrected. Councilman Ernest Jackson, in reply, said he still had some issues with the official record.
“As I listened to the audio – at the end – we don’t have quite the concept of how that meeting ended with the mayor coming forth and giving instructions to go see (District Attorney) Donna Kaspar and filing suit against the city. That is not in the written minutes. I think it is critical for the understanding of this particular issue,” he said.
After Jackson concluded his pontification, he moved to table the item until the minutes could be amended. The motion was seconded and approved unanimously.
As the meeting continued, the matter of Crockett City Attorney Bill Pemberton’s recusal from the lawsuit brought against the city by Calvert was addressed.
Pemberton cited Rule 3.01 of the Texas Disciplinary Rules of Professional Conduct as his reason for withdrawing from the case.
The mayor read an e-mail from the city attorney which stated, in part, “… Rule 3.01 provides that a lawyer may not defend a proceeding unless he reasonably believes that there is a basis for doing so that is not frivolous. I cannot defend the case because I do not believe that there is a basis for doing so that is not frivolous.”
Once Pemberton’s recusal had been accepted by the council, the next order of business was to hire legal counsel for the pending litigation.
Angerstein apprised the council when he learned off the recusal, he contacted the Texas Municipal League (TML) about legal representation. He reported he was informed by TML Staff Attorney Charles Joseph the TML would not be able to assist the city because no monetary damages were being sought by Calvert.
Recommendations for legal counsel were sought from the TML, Angerstein said, and the organization provided three for the city to review.
One of the three barristers recommended by the TML was attorney Erica L. Neill. She was contacted and in response to an e-mail from the City of Crockett, Neill stated, “I have reviewed the material you have provided in the referenced matter and determined that I cannot in good faith provide a defense on behalf of the City of Crockett.”
Attorney Jeff Moore was also contacted concerning legal representation but stated he would “… have to decline the offer.”
Because there was no precedent the city could draw from, the city reached out to the Texas Secretary of State for guidance.
In response to the city’s inquiry, Krystine N. Ramon, a staff attorney in the Office of the Secretary of State replied to municipality and stated, “Since this petition was to terminate an existence of the Crockett development and economic district which is created by State law this is not a referendum or a recall election under a city charter. Therefore, under Section 504.351 of the Local Government Code if the petition was signed by 10 percent of the registered voters then the city council shall order an election.”
Angerstein added the third attorney recommended by the TML– Bob Heath – was also contacted about representing Crockett.
In response, Heath stated in an e-mail, “I have reviewed the material you sent and the statute. For the same reasons expressed by the Secretary of State, TML and the city attorney, I don’t think there is any argument that I could make that would be helpful.”
“We received one more reference – an attorney out of Houston – from Councilman Jones,” Angerstein said. “I reached out to him in the same manner as I did the other three attorneys. HE said he would accept the request to represent the city.”
The attorney is Carroll G. Robinson. According to his biography, Robinson “… teaches law at the Thurgood Marshall School of Law and has taught at the South Texas College of Law. He is a former member of the Board of Directors of the State Bar of Texas and National Bar Association.”
Following a brief discussion of his biography, the mayor commented, “So everyone turned us down because we did what we were supposed to do, but the council voted they didn’t want to do this. The Secretary of State and all the attorneys all were of the opinion the petition was done correctly – with 10 percent of the voters. We’re taking the rights of the citizens of Crockett away?”
Jackson made another argument that because the areas of initiative, recall and referendum elections were not specified in the charter, despite what state law provided for, he would maintain his position against the petition until he was told to do so by a judge.
“I have no regrets about the decision the council made on that day until somebody can correct me – be it a judge or whoever – and tell me it was not the proper decision. If that’s the case, I will gladly raise my hand and allow the citizens to place that referendum, that initiative on the ballot so the good citizens of our city can vote on it, either up or down,” Jackson said.
A motion was made, seconded and approved to retain Robinson as legal counsel for the city. With no further business the meeting was adjourned.
In other matters brought before the council:
- The payment of invoices from the demolition of buildings at 704 E. Goliad and 201 N. Fifth Street out of the energy performance contract contingency funds was approved by the council.
Will Johnson may be contacted via e-mail at [email protected].
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