City leaders conducting city business on private cells, not complying with record requests

KFOX14 Investigates finds city leaders are using their personal phones for city business and not turning their records over.

It would be a direct violation of city policy and KFOX14’s expert attorney in open records said it would also be a violation of the public information act

KFOX14 has sent public-information requests for calls and text messages made by city reps and the mayor, and found some aren’t using their city phones at all --which raises questions about why.

An unannounced meeting involving city Reps. Cortney Niland, Jim Tolbert, Peter Svarzbien and Lily Limon and Mayor Oscar Leeser is now under investigation by the Texas Rangers. It may have been a violation of the Texas Open Meetings Act.

It led KFOX14 Investigates to request the city leaders' cellphone records.

But we didn’t receive much.

Limon turned over a few text messages between herself and Tolbert and messages she exchanged with Niland.

KFOX14 was told there weren't any other records.

Neither Tolbert or Niland turned over the same set of messages from their exchange with Limon.

An open-records law attorney with Freedom of Information Foundation Texas, Bill Aleshire, said the council's text messages are considered government records.

“They cannot delete them, they have to retain them,” said Aleshire.

KFOX14 Investigates also went through call logs from the city's cellphone provider.

It shows from September until January, Leeser, Niland and City Rep. Michiel Noe didn't use their city cellphones.

This would mean they're either conducting all of their city business on their personal phones, or haven't conducted city business on a cellphone in five months.

“They ought not be using their personal devices for official business, because they are co-mingling what is otherwise private information,” said Aleshire.

Under state law and city policy, any public business taking place on a private device still has to be turned in.

“So those records that they have on their personal devices are official records that belong to the city,” said Aleshire.

KFOX14 Investigates found when the city receives an open-records request, the city attorney’s office sends anyone involved a letter reminding them of city policy.

It states: "You are individually responsible for searching both your city-owned device as well as any personal-owned device for text messages responsive to the request."

“If they don't, the public official is in violation of the Public Information Act. They are a custodian of the records and must give it up to the government that owns it,” said Aleshire.

KFOX14 requested the mayor's cellphone records from the night he had an alleged altercation with former City Rep. Ann Morgan Lily and her husband in December.

KFOX14 was told there weren't any records.

In documents given to KFOX14, it says the mayor's city cell was not used in December.

But in cellphone records the city turned over to the El Paso Times, it shows the mayor made four calls to city employees the night of the altercation.

“When a request is made for disclosure of that official business, that public official should have already turned over to the government those official records. But if they haven’t, then certainly when a request is made, the official should turn it over so they can comply,” said Aleshire.

None of the city leaders were at City Hall Monday afternoon when we went to speak to them.

KFOX14 was told the mayor was unavailable, and City Council members did not return requests for comment.

In 2013, council passed a resolution related to city business communication on a private device after a change in the state legislature.

The resolution states that any electronic communication, including text messages, related to city business that are created or received on a personal device must be forwarded to the employee/city leader's city email address.

Correction: An earlier version of this story stated none of the mayor's text messages were released to KFOX14. One text between the Mayor and Jim Tolbert was released to KFOX14. It had been labeled by the city in the release as 'Tolbert Text' which was in fact the Mayor's text to Tolbert. The city labeled the text messages sent by Rep Lily Limon as 'Limon Texts.'

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