CITY STRIKES OUT AGAIN ON AG'S DIANE DILLARD RULING

By Juan Montoya
Remember that information request we made to the City of Brownsville regarding whether there had been any Requests For Proposals (RFPs) done when it doled out a professional services contract to Diane Dillard, the wife of federal judge Andrew Hanen?
Well, it was hard enough getting the amounts that Dillard had been paid as an outside real estate attorney, but the city hedged on turning over the August 3, 2013 invoices for which it paid her a total of $34,124.50.
Instead, contract attorney Mark Sossi and his underlings recurred to the time-worn stratagem of asking for a Texas Attorney General's Office for an opinion on whether they were required to release the reasons why the city paid her money and the services she rendered like they are on any other vendor.
El Rrun-Rrun requested the information from the City Secretary under the normal information request process September 6, a Friday.
Under the law, the city has 10 working days to provide
the information requested or to ask the Texas Attorney General for a ruling on any information they deny to provide the public.
The 10-working-day rule expired Sept. 20, the date of the city letter was sent via certified mail to the publisher's address.
The information request from El Rrun-Rrun was for:
1. for "all disbursements to vendor Diane Dillard" and,
2. "all responses to city RFPs (Requests For Production(?) (sic) Proposals from vendor Diane Dillard."
According to the City Assistant Attorney Allison Bastian, "as the Professional Services Procurement Act does not apply to the solicitation of legal services, and state law provides no particular procedure for obtaining such services, the city has nothing in response to Item 2.
"The city does have invoices from Ms. Dillard which address item 1," Bastian wrote. "We are releasing those to you in redacted form; it is however, the city's position that portions of these items are subject to withholding exceptions pursuant to the Texas Public Information Act. The city is therefore seeking the opinion regarding the redaction of these portions. Should the Attorney General subsequently rule the items you seek may be released, we will do so at that time."
Well, what we got way back then, in September, was a handful of blacked out pages (see graphic on top right) that said nothing at all about what the citizens had paid the vendor for. And we awaited the TAGO's response, which arrived in a letter to us dated Nov. 26. The actual invoices (with stuff also blacked out), was made available to us Dec. 11.
The TAGO's opinion did give partial justification for some information (such as names of people) which can be omitted from the public under the attorney client privilege, but in very few occasions. On the other hand, the TAGO's office disagreed with the city's justifications for omitting all the information. In the opinion, it states that:
ATTORNEY-CLIENT PRIVILEGE
"(We) note portions of the remaining information document communications with parties with whom the city was involved in negotiations. Because the parties were engaged in negotiations, their interests were adverse at the time the communications were made. Accordingly, at the time the communications was made, the parties did not share a common interest that would allow the attorney-client relationship privilege to apply to the communication.
"Upon review," the opinion continues, "we find the remaining information you have marked either documents communications with individuals you have not demonstrated are privileged parties or you have not demonstrated the information consist of a communication. Thus, you have failed to demonstrate the remaining information you have marked documents confidential communications between privileged parties. Accordingly, the remaining information may not be withheld under Texas Rules of Evidence 503."
ON ATTORNEY WORK-PRODUCT PRIVILEGE:
"In order to withhold attorney's core work product from disclosure...a governing body must demonstrate that material was (1) created for a trial or in anticipation of litigation and (2) consists of mental impressions, opinions, conclusions, or legal theories of an attorney or an attorney's representative.
"Upon review, we find you have not demonstrated any of the remaining information at issue consists of  mental impressions, opinions, conclusions, or legal theories of an attorney or an attorney's representative that were created for trial or in anticipation of litigation. Accordingly, none of the remaining information at issue may be withheld under Texas Rule of Civil Procedure 192.5."
ON WITHHOLDING CELL PHONE NUMBERS IN THE DILLARD INVOICES:
"We note you have marked the cellular telephone number of an individual who is not employed by the city. As such, the city may not withhold the cellular telephone number you have marked under section 552.117."
ON WITHHOLDING EMAIL ADDRESSES IN THE DILLARD INVOICES:
"Upon review, we find that the email address you have marked consists of an e-mail address subject to section 552.137. Accordingly, the city may not withhold this e-mail address under section 552.137 of the Government Code."
That was for the information on the disbursements to Dillard. On the second part, any or all of her responses to city RFPs, the opinion stated that:
"You state the city does not have information responsive to the second portion of the request.
(1) The Act does not require a governmental body to release information that did not exist when  a request for information was received or to prepare new information in response to a request."
In other words, Dillard did  not respond to any city RFPs for the work she performed and no responses are on record. That means that the city's established purchasing process was not followed and that the contracts for the work was steered to her bypassing the city's own guidelines.
The invoices reveal that Dillard performed legal and real-estate title work for the procurement of bike trails and as a recreational consultant at $250 per hour for a total of $11,062.
Another $23,062.50 was racked up with work given to her "as per Mayor Tony Martinez" as attorneys fees with the "city's efforts to locate UTB campus" downtown. Prominent among these are the negotiations with UTB and TSC for the acquisition of the Cueto Building and the second-floor offices at Downtown Plaza (Municipal Court on Levee Street).
We are not ready to join the conspiracy theorists among bloggers that "someone" overheard or saw Martinez conspire with Hanen to steer contracts to the judge's wife in return for letting the mayor's son off the hook in the Limas corruption investigation. Trey Martinez was Limas campaign treasurer in his last run for 404th District Court, but that does not make him guilty of racketeering as far as we know.
Until a U.S. Attorney or a federal grand jury makes those charges, we can find no reason for making those allegations as other have.
However, Martinez's name is all over the Dillard invoices and it indicates he did have a say-so in her getting those contracts. By not following the city's own purchasing process, he allows the appearance of a conflict of interest to gain traction among the city's residents.
In the end, in the court of public opinion over appearances could issue a verdict that could turn out worse than if a real crime had occurred.