GBIC ANSWERS: GALONSKY'S CLAIMS INVALID, FRAUDULENT

By Juan Montoya

The Greater Brownsville Incentives Corporation has filed a blistering answer to claims made by member/secretary Nurith Galonsky to obtain a Temporary Restraining Order alleging that the hiring of the new executive director was done illegally in violation of the organization's bylaws calling her petition "fraudulent" and asking the court to impose monetary sanctions.

The GBIC is asking Associate District Judge Louis Sorola to dissolve the TRO he issued Wednesday based on claims that the selection of San Antonio-based Toyota executive Mario Lozoya had been illegal because the position of executive director did not exist and that the GBIC board had acted in violation of the Texas Open Meetings Act by not posting notice that action would be taken on hiring a director.

The answer was filed electronically Friday afternoon in the 107th District Court.

Associate Judge Louis Sorola issued the TRO ex parte (without the other side present) citing Galonsky's assertions that Lozoya was scheduled to assume his duties on Friday, July 13, two days alter – and that his assumption of duties "exposes the GBIC and the taxpayers to uncertain financial liability due to the vague, uncertain, and questionably enforceable elements of the contract."

She also claimed that the GBIC bylaws did not authorize the hiring of an executive director.

In the 12-page GBIC response, it states that Galonsky had been appointed to the board of the sales-tax funded board in October 2017, and that the search for an executive director had started in  November 2017, one month after she was appointed. When she came on board, Gilberto Salinas had been interim executive director since late 2016.

The answer continues that Galonsky never objected to the search for an executive director and that the minutes of the board's meetings show that she was in agreement to proceed with the search and seconded the motion to authorize such an action.

"She never expressed any objections to Mr. Salinas serving as interim executive director; it is only now that Mr. Lozoya has been selected that she suddenly believes that there is no legal authority for such a position," the answer continues. "Given the above, her objection to the title of 'executive director' is...ludicrous; there is a difference between directors/ board members and a hired executive director – to say otherwise is just semantics."

As far as the alleged Texas open Meetings Act violations, the GBIC quotes her motion for a TRO and says she admits that notice to consider and hire an executive director was posted on June 21 and stated: "Discussion and possible action on Executive Director Search."

The urgency of attaining a TRO from the court was also obtained under false pretenses, the GBIC answer continues, because while Galonsky's TRO petition claimed Lozoya was to start work on July 13 and would cause the GBIC and taxpayers "irreparable harm," the agreement he signed with chairman Cesar De Leon clearly states that he was not to take office on July 13, but rather that "your full-time start date will be on or before August 1, 2018."

Additionally, the GBIC answer asserts that she failed to show there was no adequate remedy available her to obtain the TRO and that she obtained it fraudulently by using another entity's bylaws. In the TRO petition, Galonsly – an attorney – and her legal counsel David Willis attached a copy of the bylaws of the Brownsville Community Improvement Corporation (BCIC) to show the GBIC board lacked the authority to hire an executive direction.

The GBIC also charges that Galonsky and her counsel violated Cameron County Local Rule 1.3 (b) which requires plaintiffs seeking a TRO to ascertain the defendants are not represented by counsel and if they are, that counsel has been notified and does not wish to be heard, and that the plaintiff's counsel has made a diligent effort to notify them and has been unable to do so.
 
 "In the present case," the GBIC answer continues, "(Galonsky) has made no such effort. Furthermore, (she) knows very well that the defendant is represented by counsel, Mr. Luis Hernandez. (She) is a board member...and has actual knowledge that Mr. Hernandez) is GBIC's attorney...counsel for (Galonsky) indeed made no such diligent efforts."

"(GBIC) would argue that this was a calculated and intentional disregard of the local rules to improperly obtain an ex-parte TRO from this court," it states. "Therefore, this TRO should be in all things be dissolved."

When Galonsky petitioned the court saying that "an act of violation of a statute may be enjoined without showing that the legal remedy is inadequate," she cited 30-year-old case law that had been overturned by a more recent Texas supreme Court decision that a showing of no adequate remedy at law is in fact required to obtain injunctive relief. Since Lozoya's contract didn't go into effect until August 1, she had ample time at the time she sougth the TRO to seek an adequate remedy.

"Should the court believe (Galonsky's) assertion that there were violations of the Open Meetings Act, any such procedural defects can be cured via having a new notice and an agenda posted, another meeting held, and a vote to accept an identically structured contract taken," the answer notes. "(She) in her pleadings, admits that a majority of the board members are in favor of proceeding with the hiring of Mr. Loszoya. The only thing preventing this course of action from already taking place is the TRO. Such a course of action makes this lawsuit completely moot."

GBIC's answer also asserts that the court was "completely and intentionally misled" by (Galonsky) because she attached the bylaws of the BCIC and not the GBIC.

"They are not even an old version of the GBIC's bylaws. They are, in fact, bylaws from another corporation entirely – the BCIC's..." The current bylaws of the GBIC clearly show, the answer asserts, that the board is authorized to enter into contracts.


The actual bylaws of Texas Development Corporations such as the GBIC, the answer continues, contain a "provision (Section 502.051) that clearly authorized the board of directors to enter into a contract for employment with an executive director."

(a) Except under a written contract approved by the corporation's board of directors, a corporation may not pay compensation, including a commission or fee, or another thing of value to a broker, agent, or other third party who:

(1) is involved in business recruitment or development;  and
(2) is not an employee of the corporation.

In GBIC's motion for sanctions, it states that: "(Galonsky) cannot honestly say that this was an honest mistake. (She) is a board member and secretary of the GBIC. She is also an attorney licensed to practice law in the State of Texas. She should be held to a higher standard that a layperson or other, not board member, citizen of Brownsville...(She) despite being an attorney and having advice of counsel, swore to untrue statements.

"This, combined with (her) disregard of Cameron County Local Rule 1.3 (to give notice to defendant), shows a blatant attempt to mislead this court and obtain injunctive relief pn fraudulent grounds.

"If the law allows any board member of any governmental corporation or governmental entity that does not prevail on any given issue to bring suit and get extraordinary injunctive relief, then all governmental entities will be thrown into chaos."

Claiming that the GBIC had been forced to incur "significant" attorneys' fees in responding to this (TRO) petition and in attempting to have "this improper and fraudulently obtained TRO resolved," the answer asks the court to pay attorneys' fees in the amount of $8,500.

The hearing on whether to make the order permanent or dissolve the TRO will be heard by Sorola in the 107th District Court this coming Wednesday, July 18.