The Kyle Report

The Kyle Report

Wednesday, February 22, 2017

Tenorio muzzles council’s attempt to discuss alleged illegal activity

Council member Daphne Tenorio obliterated the city’s attempts at transparency last night by invoking a legal maneuver that prohibited the council from discussing allegations she committed a third degree felony by violating state "misuse of official information" laws, but not before slinging some mud of her own at one of her council colleagues and effectively calling the news editor of the Hays Free Press a liar.

In the process, Tenorio bypassed a golden opportunity to display real statesmanship by putting an end to the entire topic of discussion, opting to take the low road instead.

However, last night’s council discussion, while being forced to stop before the specific allegations against her could be made public, revealed enough information to determine more accurately what those charges might entail. That discussion began with City Manager Scott Sellers, at the request of council member Travis Mitchell, describing in general terms a potential economic development project the council discussed during a series of closed, executive sessions that began last August involving one or more private developers locating a sports complex somewhere within the Kyle city limits on land the city was willing to lease to the developers. The relevant council agenda item that was scheduled to be discussed cited Tenorio’s possible "Misuse of Official Information (relating to Texas penal code 39.06)," which states "A public servant commits an offense if, in reliance on information to which the public servant has access by virtue of the person’s office or employment and that has not been made public, the person (1) acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by the information."

Thus, it is not a stretch to surmise the charges against Tenorio were either (a) she purchased an ownership share in the Kyle Stallions basketball teams because of information she learned about in executive session about this possible sports complex and how it could financially benefit the team, and/or (b) as a part owner or prospective owner of the team she failed to recuse herself from discussions about the impending development deal even though the project could be a financial benefit to the team. It’s important to note here, because of spurious countercharges filed by Tenorio’s attorney against Mitchell, that no one is claiming it is any way illegal for her to own the local semi-pro basketball team; the charges against her appear to be related solely to events that allegedly occurred during executive session discussions about a proposed economic development that could have had the effect of boosting the financial worth of that ownership.

And, if these are indeed the allegations that were to made against Tenorio, they are easily supportable and provable. For one thing there are plenty of witnesses to what happened, namely the other council and staff members, as well as the prospective developers, who participated in these executive session discussions. Not only that, Section 551.103 of the Texas Government Code states "A governmental body shall either keep a certified agenda or make a recording of the proceedings of each closed meeting, except for a private consultation permitted under Section 551.071 (which only covers seeking the advice of an attorney concerning "pending or contemplated litigation.") That means official records should exist of what transpired during the executive sessions in question.

Tenorio herself signaled the executive sessions discussions about the economic development project were directly linked to the possible criminal charges against her by recusing herself during the time Sellers outlined the pending project.

Now, however, Tenorio’s attorney, E. Chevo Pastrano Jr., claimed in a letter dated yesterday "To date, council member Daphne Tenorio, has not purchased the American Basketball Association’s ‘Kyle Stallions’ semi-professional basketball team …," a direct contradiction of the news story that appeared in last week’s edition of the Hays Free Press, headlined "Kyle semi-pro basketball team gets new local owner," written by the paper’s news editor Moses Leos III, that said "Tenorio was given, and ultimately accepted, the opportunity to buy ownership of the Kyle Stallions basketball team." Leos also wrote "Her motive, however, was driven by the prospect of potential profitability in the business." By maneuvering to stifle the discussion of the issue, the public does not know whether she realized "the prospect of potential profitability" through information she was privy to in council executive session discussions.

I spoke with Leos today and he told me he pursued the story after seeing many statements posted by Tenorio herself on various social media outlets in which she claimed ownership of the Kyle Stallions. "In my conversations with her, she held herself out to be an owner of the basketball team," Leos told me. "In fact she also told me she was talking to a prospective new general manager for the team, and you can’t do that unless you’re an owner."

Leos’s story also contained this paragraph: "Because she wasn’t initially prepared to take on the (ownership) role, Tenorio made the call to end the 2016 season early, as she needed time to plan." Only an owner can make such a "call to end the 2016 season early." There is absolutely no reason for Leos to manufacture that statement. I’ve worked alongside Leos long enough to know he would not write that unless Tenorio had told him that.

Which means just one thing: Either Tenorio lied to Leos or she’s lying through her attorney now.

And that’s one of the problems of engaging the services of an attorney in the first place. In a story I wrote this past weekend, I suggested Tenorio should hire a crisis communications consultant. Having been one of those myself for more than 20 years (although I am officially retired and the purpose of that story was not because I was trolling for clients) I know a crisis communications consultant would have advised her to issue a statement along the following lines: "It has come to my attention that a perception might exist in the Kyle community of improprieties involving myself and private discussions held in executive session concerning a pending economic development project. I strongly object and vigorously deny any comments that suggest I engaged in any activities that might be labeled illegal or unethical. However, to remove any doubt concerning my actions I have taken steps to guarantee that the Kyle Stallions basketball team will have absolutely no association with this possible economic development project."

If she had just said something like that, the story is over. Finished. Done. A statement such as the one I proposed above contains absolutely no admission of guilt — just the opposite, in fact, it declares innocence — and it does not even suggest she owns the basketball team because the "steps" referred to are actions she could take quite reasonably as a member of the city council.

But instead of taking that high road Tenorio, through her attorney, petitioned for a declaratory ruling from the ethics commission which effectively removed jurisdiction from the city council to the ethics commission. "Any discussion today is non-sworn, non-binding, and I believe … could possibly influence your independent body that makes these decisions and determinations," City Attorney Frank Garza told the council, arguing the council should stop discussing the matter.

Here’s the problem, however: That doesn't immediately silence official discussion and accusations -- it simply prolongs it through the Ethics Commission procedures and the trouble with that is simply this:  Bad news is like dead fish. The smell doesn’t improve with age.

I hate to even bring this subject to the table, but the ridiculousness of the charges  Pastrano made against Mitchell need to be addressed and refuted. In his letter to Garza, Pastrano writes "Mitchell Family Motor Trikes collected a total of $1,929.66" according to the city’s accounts payable ledgers. He further alleges those payments mean Mitchell violated sections of the Texas Penal Code.

What makes these charges unfounded, at least to these eyes, is because a person, by definition, must have taken some action in order to be charged with committing some form of criminal activity. Mitchell took no action in his role as a city council member in these transactions. They never came before the city council for approval. And even if they had, no criminal activity would be involved if Mitchell had recused himself from any and all council discussions and actions involving such transactions. There is nothing illegal in a city purchasing goods and services from a concern owned by a city council member or official as long as no coercion was involved in the purchases. And Pastrano is not alleging coercion, only that the purchases were made. He is not even alleging the city received some kind of discount not available to anyone else making the same purchases. His allegations make as much sense as saying it would be illegal for any council member to own stock, either directly or through a mutual fund, in an company that manufactures any of the snacks or drinks council members have at their disposal during meetings and workshops.

The only other item to generate any real controversy during last night’s meeting was one that ultimately passed on a 4-3 roll call vote to create a PUD on 35.5 acres located at the northern terminus of Creekside Trail. The controversy was generated by the NIMBY reaction to the project, some of which concentrated on drainage problems residents who live along the road are experiencing — problems that appear to be completely irrelevant to this property because it slopes in the opposite direction, thus draining would flow in the direction of Plum Creek and not down Creekside Trail. One of the more interesting claims (I swear, I’m not making this up) is that the cul-de-sac at which the development plans to locate is already an overnight refuge for motorists leaving San Marcos "who are too drunk to make it to Bastrop." Another one of the NIMBYs actually said they had no objections to a senior living facility "just don’t locate it next to me."

A more pertinent argument involved who would make the necessary improvements to the one lane section of Creekside Trail leading to the development as well as who would pay for these improvements. Ultimately council members Becky Selberra and Shane Arabie voted against the rezoning issue because of these road concerns. Tenorio was a third vote against it but she said she wanted to wait until the residents and the developer could come to terms on a development agreement, a strange thing to say for a couple of reasons. The first is, if she had understood what the NIMBYs were saying during the public hearing on the item, she would realize the residents are not going to agree to any development on that property with the possible exception of another single family residence. The second is, the very next item on the agenda was the approval of another such development agreement and Tenorio cast the only vote against approving that one.

Mitchell said this was one of the toughest zoning decisions he has had to make "in the last two or three months." But the reality, he said, is the city is growing and development is going to happen, not only on this property but on those adjacent to it "Everything I see makes me think the applicant does intend to put in a quality project and all things considered I must side with the applicant," Mitchell said

Council member David Wilson agreed with Mitchell. "The senior living aspect is something that’s in demand in my community," he said. "I hear it from it from friends and family members all the time."

Before this request was originally considered by Planning & Zoning, I visited and took pictures of the site and expressed some concerns of the pond I saw there. It turns out, the applicant said, the pond will serve as a gathering spot for the active seniors who will reside at the facility. That certainly alleviated any concerns I might have had.

In other action last night, the council:
  • After admonishing the Planning & Zoning Commission for attaching the same illegal amendment to two separate, but related zoning requests, voted 6-1 to approve the requests to apply R-1-3 residential zoning to land located between Scott Street (immediately west of the Public Library) and Stagecoach Road after removing the offending amendments. Selberra cast the lone no vote after voicing concerns over the effect developing the property would have on flooding on nearby Center Street.
  • Postponed hearing a similar rezoning request for property on Beebee Road until March 21, even though the agenda item stated the "applicant is seeking to postpone the request until the March 7 city council meeting." At the conclusion of the meeting, Sellers told me the city received the amended delay request from the applicant just that morning.
  • Heard a report from Police Chief Jeff Barnett that the city is as clean as the driven snow on the subject of racial profiling in 2016.

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