UPDATED: City Manager Threatens Legal Action After Threatening Phone Call

July 12, 2015

UPDATED: Councilmember Brennan Reilly’s response has been added to the article. 

West University Place City Manager Michael Ross threatened Friday to take legal action, including a possible criminal complaint, to force the West U City Council to comply with the Texas Open Meetings Act.

After a “harsh” telephone conversation from newly elected City Councilman Brennan Reilly, in which Ross said that Reilly threatened to “manufacture some ‘cause’” for firing him, Ross repeated his earlier demand that all council discussions about his future employment be conducted in a public, open meeting.

In a letter to City Attorney Alan Petrov, Ross warned that he would take legal action to force the council to meet in an open session Monday evening.

In an email to InstantNewsWestU.com on Sunday, Reilly responded and said their two-hour telephone conversation on Friday was neither harsh nor threatening.

“Regarding my conversation with Michael Ross, I never stated that anyone would manufacture “cause” for his termination, never threatened him with anything, and was not harsh,” Reilly wrote. ” Michael requested that we talk via multiple emails and texts over several days.  We spoke for almost two hours, and our conversation was cordial and professional about the possibility of compromise with his separation.  We would not have spoken for that long if his characterization were correct,” Reilly concluded.

Reilly said Sunday that he was on vacation, “with limited email access.”

The agenda for the council’s meeting on Monday includes a closed executive session, during which the council is scheduled to discuss Ross’ future with the city. The council will first meet with Petrov to discuss the Open Meetings Act.

“Obviously, based upon Mr. Reilly’s harsh tone and threats of earlier today, coupled with the fact he has requested the opportunity to speak with council regarding my contract in a closed, executive session, I am deeply concerned that I be treated fairly and lawfully in all respects,” Ross stated in the letter.

“I expect all discussions regarding my relationship with the City to be conducted in open session as required under Section 551.074 of the Texas Open Meetings Act,” Ross said.

“It seems that I may need to seek a judicial order in advance of the meeting of July 13 to ensure the City’s compliance with its obligations not to discuss my employment relationship with the City in any closed session,” Ross continued. “Before I do so, I am asking you to advise me whether the City intends to comply with my request and state law in this regard.  Accordingly, please let me know before Noon on July 13, 2015, whether the City intends to conduct any of the July 13, 2015 City Council meeting regarding my employment in anything other than a fully open and public session.”

The veteran City Manager, who has been employed by West U for nearly 14 years, also said he might file a criminal complaint with the Harris County District Attorney’s office.

“I may be forced to ask an attorney to obtain a temporary restraining order compelling such compliance and/or I may report any violation to the Harris County District Attorney’s Office, although I am hoping that neither are necessary,” Ross wrote in his letter.

Ross suggested that the some of the council members might have already engaged in a violation of the Texas Open Meetings Act, by meeting in groups of less than a quorum, to avoid complying with the law.

“Based on conversations with individuals I remain concerned about apparent violations of the Texas Open Meetings Act where a ’walking quorum’  of council members are intentionally meeting outside of a properly posted meeting regarding my employment,” Ross’ letter stated.

In an earlier letter to the city council, Ross’ attorney William Helfand advised the council that Ross wants any and all discussions of his future with the city to be held in open sessions.

Ross’ continued employment with the city has been an issue since a slate of four candidates, including former Mayors Bob Kelly and Burt Ballanfant, along with Reilly and Mardi Turner, won election to the council in early May. The slate of candidates had campaigned on a pledge of bringing more “transparency” to city government.

Three days after taking office, however, Reilly and Ballanfant approached Ross privately and told him they wanted him to resign. During that meeting, the two council members said that the newly elected council had agreed that he should resign. At that time, they indicated that they would comply with Ross’ employment contract with the city of West U.

“These gentlemen suggested that, in their words, I “write the script” for my separation, including any new agreement that might be appropriate,” Ross said in his letter.

That contract includes a provision that Ross will be paid a full year’s salary if he is terminated.

That provision of Ross’ employment contract was in place when Kelly and Ballanfant were serving as mayors of West U. Both Kelly and Ballanfant voted to ratify Ross’ earlier employment contracts.

“Over the last 13 years as City Manager, no one has ever expressed any concern with my contract until now,” Ross said.

Under Ross’ contract, he would be entitled to payment of about $300,000 if he is ousted by the council.

Kelly said that Reilly was not speaking at the request of any other member of the council during the telephone conversation with Ross.

“I don’t know anything about it,” Kelly said. “We haven’t had a meeting. All I know is we are scheduled for an executive session on Monday.”

Kelly suggested that Richard Rothfelder, the special attorney hired by the council to negotiate the terms of Ross’ separation from the city, might know about the conversation. Rothfelder could not be reached for comment.

Turner said late Friday that she wasn’t aware of Reilly’s conversation with Ross.

“This is not my show,” Turner said. “I suggested, long ago, we look at other ways of solving whatever problems the other council members have with Michael Ross.”

Ballanfant did not respond to emails and telephone calls seeking comment about Reilly’s conversation with Ross, or Ross’ subsequent letter.

Former City Councilman Dick Yehle wrote a letter to Mayor Susan Sample and the members of the council late Friday. In his letter, Yehle said, “It is now time for some of you to set aside what appears to be a personal vendetta and end this foolishness.”

Yehle also tried to set the record straight about the city manager’s employment contract.

“While I remain critical of the new West U City Council’s lack of justification for the $300,000+ expenditure they are proposing in order to replace the City Manager, some of them have tried to deflect blame on the cost of the severance package by asserting that the previous Council “doubled the value of the severance package”.  That is untrue and despite efforts to correct statements to that effect, a misunderstanding has been allowed to persist in the public arena and perhaps at the Council table,” Yehle wrote in an email to Instant News.

“The fact is that for years dating back to prior administrations where both Ballanfant and Kelly were involved, the terms of employment for West U’s City Manager have been contained in a contract.  To protect the City Manager from capricious acts of new City Councils, the contract has always had a provision providing a full year’s pay if the City Manager was dismissed without cause in the first six months of a new term,” Yehle wrote. “No change was made affecting that clause, a clause repeatedly endorsed by Council members Ballanfant and Kelly during their prior terms.  Thus rumors that the prior City Council ’doubled the severance pay‘ are simply untrue.”

Yehle also suggested that the council try to work with Ross, to insure that the city continue its excellent reputation for city services.

“You should work to formally define any unique expectations and challenge Michael to meet them.  I think he will cheerfully and successfully follow your instructions.,” Yehle wrote. “ Life in West U can then return to normal without the turmoil which is disheartening to Michael, disruptive to the City, and impairs your ability to function without resorting to the non-productive procedural maneuvers still being used to camouflage your actions.”

According to  the Texas Municipal Leauge’s guide to the Open Meetings Act: “Penalties for violating the Act range from having the action voided to the imposition of fines and incarceration. Any action taken in violation is voidable and may be reversed in a civil lawsuit. There are four criminal provisions under the Act, including: (1) knowingly conspiring to circumvent the Act by meeting in numbers less than a quorum for the purpose of secret deliberations; (2) calling or participating in a closed meeting; (3) participating in an executive session without a certified agenda or tape recording; and (4) disclosure of a certified agenda or tape recording to a member of the public. Upon conviction, fines may be up to $2,000, and incarceration may be up to six months. ”