City may hire 3 Midland law firms

Odessans have already paid more than $100,000 in lawsuit

Following several recent legal setbacks, the Odessa City Council on Tuesday is scheduled to consider hiring three Midland law firms to defend them in their ongoing open records lawsuit brought by the Odessa American.

On Tuesday’s council agenda the council is being asked to approve the hiring of the law firms of Cotton Bledsoe Tighe & Dawson, PC, Brockett & McNeel LLP and Keith Stretcher, all of Midland.

During the past 506 days the city has spent $112,138.47 to fight a lawsuit brought by the OA to enforce the state law that guarantees the public’s right to see basic police records.

City officials have not yet disclosed how much it will cost taxpayers to retain the three new law firms. The city previously hired an Austin law firm to represent them and paid them more than $112,000 last year before cutting ties with the firm during the heated city council races.

Mayor Javier Joven, City Attorney Natasha Brooks and City Manager Michael Marrero did not respond to requests for comment Monday.

The council is being asked to approve a resolution that would enable the city to hire the three Midland-based law firms “to represent the City of Odessa in all matters and actions before district and appellate courts of the state and in the courts of the United States, in which it may be heard in the case styled City of Odessa, Texas vs. AIM Media Texas, LLC d/b/a The Odessa American.”

If passed, the resolution would give City Attorney Brooks authorization “to execute any documents necessary to implement this resolution, and declaring an effective date.”

Brooks’ proposal to hire the three law firms to help her defend the city comes after the 11th Court of Appeals in Eastland handed the city it’s second legal loss in May by shooting down the city’s argument that a lower-court judge should not be allowed to hear and rule on the newspaper’s lawsuit that alleges the City has been violating open records laws by stymieing timely and complete access to public police reports and probable cause affidavits, laws that that municipalities throughout the state have always abided by.

Authoring the ruling on behalf of the three-justice panel, which heard oral arguments, Chief Justice John M. Baily concluded: “Viewing the factual allegations in the newspaper’s petition as true and construing the petition liberally in support of the newspaper’s intent, we conclude that the newspaper has adequately pleaded a claim for mandamus relief. . . We overrule the City’s sole issue on appeal.”

The lawsuit will next go before visiting state District Judge Rodney Satterwhite, who ruled in October 2020 that the case should be allowed to proceed. The City initially filed a motion to dismiss the newspaper’s lawsuit, arguing the judge did not have jurisdiction to adjudicate the matter. But Satterwhite denied the motion by the City, which then chose to launch a baseless appeal to the Eastland court.

The appeal served only to delay the final ruling sought by the American in October and obstruct the American’s suit to enforce the Texas Public Information Act.

In its appeal, the City argued that the newspaper failed to sufficiently plead factual allegations in its case filings and therefore the City should enjoy “sovereign immunity” from the lawsuit before a state district judge. But the appellate court did not buy the argument, asserting in its written ruling:

“The newspaper has sufficiently pleaded factual allegations in support of its claim that the City refuses to supply public information.’” The Eastland court cited several specific examples of public records law violations alleged by the OA.

The OA filed its lawsuit against the City more than a year ago, alleging the municipality was violating the Texas Freedom of Information Act by requiring the newspaper to file formal freedom of information requests in order to obtain police reports and probable cause affidavits, records that have always been readily and promptly available to any member of the public. The process resulted in delays in the release of the public records, which oftentimes contained information that was redacted. The newspaper’s lawsuit seeks a writ of mandamus by the court, which essentially is a ruling that forces the City to comply with state open records laws.

Today, the council is also expected to vote to adopt the audit findings of an independent audit conducted of the city’s 2019-2020 fiscal year which concluded Sept. 30, 2020.

Even though COVID-19 played havoc with Odessa’s economy, the city still managed to generate a $3 million sales tax surplus, Assistant City Manager of Administrative Services Cindy Muncy told council during last week’s work session.

“We weren’t sure we were going to make it at first,” Muncy said. “I think the first three months of (2020) saved us.”

The independent audit was conducted by Midland-based Weaver and Tidwell, LLP.

The auditors did cite one “significant discrepancy” discovered during the city’s audit – they initially couldn’t find about $200,000 in the city’s record books.

Muncy explained that the money was there, but due to a technical glitch the auditors did not see it.

The auditors noted they also discovered several minor financial record-keeping discrepancies, but agreed with Muncy that the errors were due to a new accounting system that the city installed in October 2019.

The city was not penalized for any of the errors, but auditors encouraged city officials to work with the company they purchased the system from to make sure the errors don’t occur during next year’s audit.

A poor or mediocre audit can affect a city’s credit rating and result in higher interest rates if officials borrow money or pursue a bond, Muncy said.

The city received “clean” or high marks in their audit, which revealed that the city is financially “very healthy,” auditors said.

The city ended the 2019-20 fiscal year with a $105.9 million balance in its general fund and boasted a healthy $24 million in its fund equity, which is also referred to as its contingency savings account.