City officials will withhold the details of its two top executives’ annual performance evaluations after a ruling from the Texas attorney general gave them the option whether to disclose the documents based on “attorney-client privilege” — a move an open government expert said may have consequences throughout the state.
“I think a ruling like this gives a green light to governmental bodies to insert an attorney into the chain of communications for the sole purpose of withholding information,” said Joseph Larsen, a Houston-based lawyer with the firm Gregor Wynne Arney.
At issue is the city’s efforts to withhold detailed documents of routine annual performance evaluations for the second year in a row for City Manager Tommy Gonzalez and City Attorney Karla Nieman. Gonzalez received a 5% pay increase of $18,971.25, boosting his salary to $398,401.73 based on his evaluation. Nieman received a 2% pay raise totaling $5,228.27, which boosts her annual salary to $266,641.52.
The city hired attorney Austin Beck of the Davidson Troilo Ream & Garza P.C. law firm in San Antonio to advise Mayor Oscar Leeser and City Council during the evaluation process.
It is the first time outside legal counsel has been hired for performance evaluations since the executives were hired. Gonzalez was hired in 2013 and Nieman was hired in 2018.
“The question is, why do you need a lawyer for this?” Larsen said.
Through the Texas Public Information Act, El Paso Matters requested detailed information about the 2021 evaluations including all forms, handwritten notes, scoring sheets and emails exchanged between city officials regarding the evaluations.
The city released the final evaluation forms for the pair, but those have limited information and are only an aggregate of the process. Beck sent the remaining documents to Texas Attorney General Ken Paxton’s office for a ruling on whether that information could be withheld from the public.
Paxton issued a ruling in August stating, in part, the city “may” withhold the documents based on attorney-client privilege. The ruling does not require the city to do so.
From 2017 to 2019, the city released the detailed documents and evaluation forms to the public through Texas Public Information Act requests without seeking an attorney general opinion.
The city attempted to withhold the documents related to the city manager and city attorney’s evaluations in 2020, but the attorney general ruled in favor of releasing the information. The city did not hire outside legal counsel that year.
Larsen said it is clear that after the failed attempt to withhold the documents last year, the city tried a different strategy.
“They get the bright idea ‘OK, well, I know how we’re going to do it. We’ll get a lawyer involved and that oughta do it,’ and sure enough the (attorney general) just rolled over on his back and gave it up, but I don’t think properly,” Larsen said.
Paxton’s office did not respond to a request for comment.
Larsen said one of the issues with citing the attorney-client privilege is that an attorney must be hired to render professional legal services and it is unclear why the city hired outside legal counsel when it had not done so in the past. He said simply having an outside attorney present or involved in communications does not prove legal services have been rendered.
City officials did not respond to El Paso Matters’ request for an interview, but in an emailed response said the city hired the firm to provide “advice regarding employment law as it relates to the city’s contract with its employees.”
Larsen said the city’s response is so vague as to be meaningless.
The city said that following the attorney general ruling that it would not release the documents based on a confidentiality clause in the employment contracts for Nieman and Gonzalez. Larsen said that rationale is “flimsy.”
He said if the city wanted to withhold the documents based on a confidentiality clause, they would have had to include it in the letter to the attorney general, which they did not. He added that if the city had included the clause, local governments can’t override the Texas Public Information Act through an independent contract such as an employment agreement.
“It’s pretty obvious that the (city’s hired) attorney is just being inserted into this process as a means to try and shield these documents from release,” Larsen said.
Cover photo: The entrance to the El Paso City Attorney’s Office. (Photo courtesy of City of El Paso)
