AG orders release of public records
If mayor refuses, lawsuit to be filed by ECP on behalf of citizens
The Ellis County Press
BARDWELL - On April 7, The Ellis County Press filed a 13 item request for records under the Texas Public Information Act, after evidence was presented by numerous citizens, alleging fund misappropriation, illegal police officers, illegal citations, and other issues of possible public corruption. This open records request was hand delivered to Mayor P.W. "Jinker" Gentry in front of a crowd of some 40 witnesses.
State Rules In Favor Of ECP,Gentry Fails To Comply- Ignores State's Order
During the April 7 meeting, numerous citizens complained about irregularities that they believed were occurring inside City Hall, and at the direction of the Mayor, Prentice Gentry.
The Public Information Act requires the City of Bardwell to have requested a ruling on the issue within 10 business days of receiving the request. The ruling issued by the Attorney General's office cites multiple violations of the Public Information Act. The entire ruling can be found at:
The ruling states in part:"The City of Bardwell (the "city") received a request for thirteen specified categories ofinformation pertaining to the city and its police department. You ask that we "give ruling on these items enclosed." We have considered your request. Initially, we must address the city's obligations under section 552.301 of the Government Code, which prescribes the procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure.
Pursuant to section 552.30 1(b), a governmental body must ask for a decision from this office and state the exceptions that apply within ten business days of receiving the written request. Pursuant to section 552.301(e), a governmental body must submit to this office within fifteen business days of receiving an open records request (1) general written comments stating the reasons why the. stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents.'
"The city did not submit a signed statement or sufficient evidence showing the date the city received the written request. See Gov't Code § 552.301(e)(1)(C). However, the request is dated April 7, 2008. The city did not ask for a decision from this office or state the exceptions that apply within ten business days of receiving the written request. See id. §§ 552.301(b), 552.301(e)(1)(A). The city also has not submitted a copy of the specific information requested or representative samples. See id. § 552.301(e)(1)(D). Thus, the city failed to comply with the requirements mandated by section 552.301.
Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the requirements of section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 552.302; Hancock v. State Bd of Ins., 797 S.W.2d 379, 381-82 (Tex. App.-Austin 1990, no writ); Open Records Decision No. 319 (1982).
You have not provided any arguments to withhold the requested information or otherwise demonstrated a compelling reason to withhold the information from disclosure.Therefore, we have no choice but to order you to release the requested information to the requestor."…..
The ruling goes on to say: "If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id.§ 552.321(a).
If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 ofthe Government Code. If the governmental body fails to do one of these things, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at (877) 673-6839. The requestor may also file a complaint with the district or county attorney. Id § 552.3215(e)."
The Next Step
On May 20, 2008, Todd Phillippi, lead counsel for The Ellis County Press sent a letter to Gentry, on behalf of this newspaper, demanding the production of the documents, citing multiple violations of the Public Information Act.
In a letter dated May 2, 2008, Gentry claims to have 10,156 pages of documents responsive to our request in his possession, however, has refused to produce them to the Attorney General's Office, to Phillippi, or to any party.
Gentry adamantly failed to comply with every request to produce the documents, even to that of state officials. City Attorney Don Stout refused to return the phone calls of the Assistant Attorney General, or correspond with their office in any way.
According to Phillippi, neither Gentry nor Stout have had any communication with his office following receipt of the letter he sent to them on behalf of The Ellis County Press, nor have the documents been produced as ordered by the Attorney General.
As of June 4, no documents or correspondence have been had with the City of Bardwell and Mayor Gentry, between Phillippi,The Ellis County Press, or the Texas Attorney General's Office.
Gentry, along with City Attorney Don Stout refused repeated requests of Assistant Attorney General Thornton Wood, to discuss production of the documents. Gentry spoke with Wood on multiple occasions, however, refused to produce the documents to their office or to any other party. Wood recieved no return phone calls from City Attorney Don Stout.
According city councilmember Maggie Walker, Stout is the city's attorney and it is his responsibility as the city attorney to provide legal services, something he has not been doing. Stout never shows up to council meetings, and has been prohibitied by Gentry to speaking to the council's members regarding legal issues affecting the city, without his (Gentry's) consent. Gentry claims to have sent Stout a copy of his correspondence with ECP, however, when the AG's office contacted Stout, he refused to speak with them.
Wood states that Gentry called him on multiple occasions, but failed and refused to produce the documents for review, thus he issued the ruling on behalf of the requestor,The Ellis County Press, as due to Gentry's failure to comply with the act, along with City Attorney Stout, the documents are now presumed to be in the public domain.
The AG ruling cites no less than 5 violations of the Public Information Act, and states that the remedy to secure the documents can include both civil and criminal penalties against Gentry, in addition to a lawsuit being filed in District Court.
As of press time Wednesday, the time has now expired for Gentry to file suit as required by law to overturn the AG ruling, nor has he complied with the order to produce the documents issued by the Attorney General. Gentry, according to the ruling issued by the state, has no right to appeal the AG's decision to the Attorney General's office.
Attempts were made to contact Bardwell Mayor Gentry, however, these were unsuccessful.
After being presented with a copy of the ruling by the Attorney General's office, councilmember Maggie Walker became concerned that Gentry has now cost the City of Bardwell a large sum of money in legal fees. Bardwell residents we spoke with on Wednesday agree.
Legal costs that the City could potentially owe as a result of Gentry's failure to comply with the Public Information Act could be in the tens of thousands of dollars, in addition to any other sanctions that the court awards for Gentry's failure to comply with the act. In addition, jail time for Gentry is also possible. Gentry, in essence, for failing to comply with the Public Information Act, has cost the citizens and the city coffers large sums of money, after being given multiple chances to produce the documents.
Todd Phillippi, a local attorney and counsel for The Ellis County Press is preparing a suit against The City of Bardwell and Gentry, citing multiple violations of the Texas Public Information Act, to force Gentry to produce all the documents immediately. The Attorney General's office is also contemplating sanctions against the City, which can result in criminal prosecution.
In addition,The Ellis County Press, upon receiving the ruling from the AG's office, has contacted their open records hotline, as the City of Bardwell is willfully failing to comply with the Public Information Act.
Taxpayers Foot The Bill
For any legal action that is taken against the City, the City and Gentry are liable for all court costs and attorney fees, in addition to possible other fines and sanctions, including jail time for failing to comply with the Public Information Act.
The taxpayers would ultimately be penalized, as any funds paid by the City in defense of the suit are the responsibility of the City, including the attorney fees and court costs incurred by The Ellis County Press.
Document Cover-up, or Criminal Activity Cover Up?
The documents requested by The Ellis County Press could possibly shed light on missing funds, illegally written tickets, illegal personnel, water bill irregularities, all of which could be tied to non-bonded personnel collecting fines and fees, including water fees illegally. Spurgeon has reportedly bribed residents in exchange for reducing fees, while some residents report water bill payments 4-6 times their normal rate.
In addition, Spurgeon, while a city employee has also collected unemployment benefit compensation, which was approved by Mayor Gentry. Some say that Gentry has things to hide to protect himself from criminal wrongdoing, in addition to the Police Chief Michael Spurgeon and City Secretary Shannon Spurgeon, and that he has refused to comply with the requests, as they potentially contain information which could lead to multiple indictments and arrests.
However, the information contained in the documents remain unknown.Gentry claims to have 10,156 pages of documentation in his possession, yet has refused to release any of the documents, despite a state ruling to do so.
Documents requested included water statements, fund balances, checking account statements, tickets issued, and other documents which can prove a pattern and practice of illegal conduct in city hall. Gentry does not want these documents released. On June 3, 2008, he promoted himself to City Secretary in addition to being the town's Mayor.
The question remains, why does a college educated Mayor, such as Gentry fail to comply with state law? One possible reason, is that illegal activities are being alleged to have occurred, involving him and other participants. Numerous citizens raised these allegations, which led to the filing of the original open records request.
Recently, Shannon Spurgeon, Bardwell's "volunteer" city secretary was quoted as saying "she had done things illegal in City Hall, and did not know how to get out of it."
Failure to produce the documents may result in serious penalties, including fines, and or imprisonment. Should government documents be altered or tampered with in anyway, this too, can lead to fines and imprisonment.
The Ellis County Press remains committed to exposing the City of Bardwell and confirming or denying the allegations of corruption, and will use every means necessary to ensure that Gentry complies with state law, or face the stiffest possible penalty.
A lawsuit is pending in District Court against the City of Bardwell and Mayor Prentice Gentry to compel the production of the documents. The Ellis County Press has retained legal counsel, and legal action is being taken.
Once the suit is filed, a copy will be released online and/or in print.
The Press' intention is not to cost the taxpayer's money, but to compel the City to produce the documentation which may shed light and expose to the taxpayers that they have been wronged by their city government and Gentry regarding multiple issues on multiple occasions.
It is not the intent of The Ellis County Pressto penalize the taxpayers with this suit, but to expose potential wrong-doing in City Hall, which could potentially lead to large sums of money being returned to the Citizens for city officials violating state laws, and to prosecute any persons found to have violated laws regarding public funds.
Gentry has been given as of press time 60 days to comply with the request, and was given multiple chances to do so by the ECP, it's attorney, and state officials, yet chose to continually violate state law.
AG Ruling Issued May 6, 2008:
Letter To Bardwell Mayor P.W. Gentry From Mr. Todd Phillippi, Attorney-at-Law
Sent May 20, 2008: