Floresville officials sue their colleagues over probable illegal move of election date

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The mayor of Floresville and three city council candidates are suing the council and the city secretary for canceling the South Texas town’s Nov. 4 election.

Mayor Cissy Gonzalez-Dippel and David Johns, Nick Nissen and Paul Sack are asking that a judge order a special election and that the council be blocked from taking any official action until the legitimacy of the council can be reestablished.

The lawsuit, filed Thursday with the Wilson County district clerk by Von Ormy attorney Art Martinez de Vara, says that by voting to reschedule the local election to May 2020, the council violated the Texas Election Code, resulting in a council made up of a majority of members whose terms have expired. 

A judge has not yet been assigned to the suit.

The suit asks the court to block those three members — Gerard Jimenez, Cantu, Gloria Morales and Juan Ortiz — from taking part in council meetings. The suit also names  Marissa Ximenez and Gloria Martinez, whose terms do not expire until November 2020, for taking part in the vote July 17 to cancel the election.

The council’s regularly scheduled meeting is this Thursday. Gonzalez-Dippel, who by city charter does not have a vote on city business, told The Texas Monitor on Friday she expects the council will meet in private with the city attorney Sylvia Rodriguez to discuss the suit. She said she intends to exercise her right to sit in on that meeting.

“I don’t anticipate that it will be a pleasant meeting,” Gonzalez-Dippel said. “In my gut I felt like they didn’t think we’d go forward with the lawsuit.”

The Floresville city council has met once, Nov. 14, since the election was canceled. A discussion of the election and the possibility of a lawsuit was not on the agenda.

The lawsuit is one of the first of its kind in Texas since the legislature changed the election code in 2017 prohibiting city officials from moving their November election dates. Many cities moved their election dates from May to coincide with other local, state and national elections held in November to encourage greater voter turnout.

The Floresville City Council voted in 2011 to move the city election date to the first Tuesday in November, although the first Tuesday in May election date is called for in the city’s charter.

Officials with the Elections Division of the Texas Secretary of State’s office have been largely silent on the matter. Keith Ingram, the state’s director of elections, and Stephen Chang, communications director for the Elections Division, once again did not respond Friday to requests by The Texas Monitor for comment. 

Gonzalez-Dippel told The Texas Monitor she has gotten mixed signals from state election officials since she began making inquiries months before the Nov. 4 election date. In an email exchange in November, an attorney in the division’s legal department suggested to her that Floresville would have to wait until what would be an illegal election in May for the state to take action.

It isn’t clear what action the state would take. The code makes clear the Floresville council’s action violated the code but says nothing about what, if any, sanctions the state could hand down.

Johns, Nissen and Sack, the other plaintiffs in the suit, filed their candidate papers for city council between July 27 and Aug. 14, well within the deadlines posted for the original election.

The council, however, called a special meeting with one agenda item, the postponement of the November election, for July 17. Rather than holding a public discussion of item, the five-member council met privately with Rodriguez, emerged and voted unanimously, without discussion, to cancel and reschedule the election.

Gonzalez-Dippel voiced her objections to that private meeting. The only explanation she was given by council members was that they wanted the city to comport with the city charter.

Wilson County Attorney Tom Caldwell drafted a letter July 25 advising Rodriguez and the council that the vote violated state law and recommending they rescind their action, according to the lawsuit.

Caldwell also said it was his opinion that meeting in private under the pretense of discussing personnel matters and not discussing the matter in public before voting violated the Texas Open Meetings Act, according to the suit.

“It appears to me that at best, the city council mistakenly and inadvertently discussed an item not authorized for executive session under a different agenda item, then went and took action on the item,” Caldwell wrote. “At worst, the city council deliberately went into executive session under a false flag to mislead any citizens in attendance at the meeting before they reconvened and took an action that significantly affected every voter in the city of Floresville.” 

Rodriguez, the city attorney, who has not responded to any Texas Monitor inquiries, declined to return a call on Friday.

Concerned about the status of the school board election Sherri Bays, superintendent of Floresville schools, contacted Chuck Pinney, an attorney for the Elections Division in August. Pinney recommended the school district go ahead with its election.

“As we have explained, Election Code 41.0052 does not currently provide any authority for the city to move the date of their general election at this time,” Pinney said in an email to Bays. “Pursuant to Election Code 41.008, an election that is held on a date not permitted by the Election Code is considered void.”

In addition to blocking any more official action by the council, the suit asks that Cantu, Jimenez and Ortiz be prohibited from taking part in further meetings and that Johns, Nissen and Sack be allowed to participate in the meetings, even though they are not elected officials.

Editor’s note: Attorney Art Martinez de Vara has done legal work for The Texas Monitor.

Mark Lisheron can be reached at [email protected].

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Mark Lisheron has more than 30 years of experience in newspapers and was most recently the managing editor for Reason.com. He also served as deputy editor, national reporter and Austin bureau chief for Watchdog.org. He was the founding Austin bureau chief for the bureau's predecessor, Texas Watchdog, winning the First Amendment Award from the Society of Professional Journalists in Texas.

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