New City Council Uses Trickery to Avoid Transparency

June 29, 2015

West University Place City Manager Michael Ross wants all future discussions of his ouster by the new City Council to take place in public, Ross’ attorney advised the council Sunday.

But, Councilmembers Brennan Reilly and Bob Kelly have asked that the council’s July 13 agenda include an executive session to consult their attorney for “legal advice concerning the City Manager’s employment and/or separation agreement.” Although they campaigned on a pledge of “transparency,” the new council members want those  discussions to be held behind closed doors.

The agenda proposed by Reilly also calls for the council to “reconvene into open session” for “any desired action” resulting from the closed session.

Bill Helfand, an attorney who represents Ross, told the council on Sunday that the veteran City Manager wants all future discussions of his employment to take place in open sessions.

“He has asked me to express to the City his desire to exercise his right under the Texas Public Information Act that any further discussions regarding any aspect of his employment and future with the City be held only in open session,” Helfand wrote, adding: “And, specifically that the City Council should refrain from any further private discussions or executive session meetings regarding any aspect of Mr. Ross’ employment with the City of West University Place. “

Helfand wrote the letter to attorney Mike Falick, a partner in the law firm of Rothfelder & Falick. The new council recently hired Richard Rothfelder, a former mayor of Southside Place, as special counsel in their negotiations with Ross.

Ross sent copies of Helfand’s letter to Mayor Susan Sample, City Secretary Thelma Lenz and all members of the city council.

The “personnel matters” section of the Texas Open Meetings Act, Section 551.074, authorizes the council to meet in executive session to discuss personnel matters.

However, that section of the act does not apply “if the officer or employee who is the subject of the deliberation or hearing requests a public hearing.”

Reilly, however, wants the council to be able to meet behind closed doors on July 13, and specifically requested that the executive session be held under a different section of the Open Meetings Act, section Section 551.071. That section of the law allows city councils and other governing bodies to consult with an attorney in an executive session to seek his or her advice on legal matters.

In his email requesting the agenda items be included on the July 13 agenda, Reilly specifically wrote: “Please do not modify the wording of the first item relating to closed executive session.  This item differs from the wording used in our meetings on June 22 and June 18.  That difference is intentional.  We are seeking the advice of counsel only.”

Ross last week wrote an email pledging his full commitment,  “renewed energy” and “a thankful heart” that the new council did not terminate his employment at its June 22 meeting.

“I understand this to mean that several council members have reversed their position and that the Council has decided to retain my services as City Manager for the foreseeable future,” Ross wrote in the email last Friday. “ I am thankful for this decision since it has never been my desire to leave this job, to which I remain fully committed.”

However, the city manager’s attorney detailed the council’s recent efforts to force Ross to retire or resign.

Helfand said “the City was asking for additional consideration from Mr. Ross beyond that which was required under his current contract for separation initiated by the City, as was being contemplated. “

“ I suggested that, if it was their intent, the City Council could either fire the City Manager under the terms of his current contract or, if they desired additional concessions and consideration from Mr. Ross, the City Council should contemplate offering additional consideration in return.”

Helfand’s letter also said, “That said, should a majority of Councilmembers continue to have an interest in separating Mr. Ross’ employment from the City, I anticipate that he will continue to expect them to comply with his written contract or be prepared to offer additional consideration in exchange for any additional concessions they might wish to have. “



Reilly also asked that the July 13 agenda include a time for public comments, and an item titled “Special Legal Counsel.” That item related to “retaining special legal counsel to  analyze and advise Council regarding the City Manager’s employment agreement, to consult with Council regarding the same, and to assist Council in implementing changes to the same.”

Reilly also asked that the July 13 meeting agenda include a discussion of the council’s rules of procedure, a discussion of green yard waste and a list of other future agenda items.

At a special meeting on June 18 and at the regular West U Council meeting on June 22, several West U residents spoke out against the council’s apparent intent to terminate the veteran city manager. Ross, who has been City Manager for 14 years, won high praise from many residents.

In his email, Ross traced the history of the new council’s efforts to end his employment with the city.

Ross wrote: “On June 4, 2015 newly elected councilmembers Burt Ballanfant and Brennan Reilly met with me. They told me, in clear and unequivocal terms, that all four new city councilmembers had decided to either fire me or allow me to resign. They said their preference was for me to ‘develop the script’ for my departure and they wanted my exit it to be as positive as possible for everyone but they made it clear that, either by separation or resignation, I would not be working for the City much longer.”

After the council retained Rothfelder, Ross said that he “was informed that these Council members wanted a new separation agreement to replace my existing agreement, even though my current contract clearly spells out the circumstances of any decision by a majority of Council to fire me.  Inexplicably, therefore, the agreement proposed by the City’s retained counsel added numerous new restrictions and requirements on me, but provided exactly the same benefits to me as defined by my current contract.  I am sure you can understand why I did not think this was appropriate or fair, even if the majority of councilmembers wished to terminate my employment with the City,” Ross wrote.

Ross explained that he then asked Helfand to communicate his response to Rothfelder.

“If  it was the wish of a majority of Council to fire me, they could and should do so in accordance with our long-standing and current agreement which completely addresses such a contingency.”

Ross, who was in Austin Monday attending a meeting of the Texas Municipal League, said he did not wish to publicly comment on the council’s apparent decision to continue with his severance from the city.

“I am going to continue to take the high road and not comment,” Ross said.