Judge hears case against City

By RAY QUIROGA
publisher@sbnewspaper.com

BROWNSVILLE, TX —Visiting judge Michael V. Garcia of Wells County is reviewing evidence and testimony from a Monday morning hearing at the 197th District Court to determine whether the City of San Benito and the San Benito City Commission violated any laws or its own charter when the Commission approved a charter amendment election on the current Nov. 5 General Election ballot.

During the nearly two-and-a-half-hour proceedings, the issue was whether the City provided ample opportunity for citizens to be aware of and have input on the proposed charter changes per state and local Open Meetings laws. Houston-based trial attorney Jeff Diamant, acting at the behest of a local citizen and former San Benito Economic Development Corporation [EDC] Board President Julian Rios, asked for an injunction to stop the election. However, the City’s stance is that at this juncture, it has no authority to stop the election. The question now is if the City has the authority to implement the voters’ will, regardless of the election’s outcome, if it’s determined that the City did bypass any laws in getting said charter amendments on the ballot.

Last week, the City, represented by McAllen attorney Javier Villalobos, countersued Rios to recoup legal fees incurred during the process.

In his suit, Rios alleges that the City Commission approved the charter amendment election through a “consent agenda” without proper notification to the public.

“The public has an absolute right to know, number one, what the government is doing, but number two, what the government is going to do. We went to the judge, and we said they put this information on the ballot in a way that’s violative of the Open Meetings Act, and if the voters are allowed to vote on it, there’s going to be irreparable harm,” said Kelsey Gailbraith of the Diamant Law Firm.

One of the proposed amendments seeks to change the charter so that the city manager is not required to reside in the City of San Benito, “which will benefit no residents of San Benito – just Fred Sandoval, the current city manager, who has repeatedly expressed his intention to not move to the town he represents,” reads a statement issued by Dolcefino Media, headed by investigative journalist Wayne Dolcefino.

Dolcefino’s services were obtained by an unknown client(s) last spring to initially investigate the City’s dealings with VARCO, a development agency acquired by the City/EDC to build and lease the Resaca Village commercial center, located off Business 77 and Sam Houston Blvd. in San Benito.

During sworn testimony on Monday, it was revealed that the $5,000 bond for Rios’ suit was paid for by Dolcefino as Villalobos attempted to interject that Dolcefino was hired to disrupt the democratic process and cause chaos in San Benito. Dolcefino replied to these allegations, saying he’s “helped” communities and individuals and will continue to do so. This is exemplified by his role in a recall petition currently being verified by the City, which may lead to a recall election for the entire City Commission.

“The city manager living in San Benito has been a controversial item for the last seven years. They put this item for the voters to decide, but it doesn’t change the fact of how hypocritical they’re being,” stated Rios in a statement to the media.

But during his court testimony Monday, current San Benito City Manager Fred Sandoval said the issues addressed by the proposed charter amendments were raised as far back as his hiring processes over a year ago when commissioners asked how he’d go about organizing a charter amendment election and how’d he would bring the charter more in-line with other communities’ charters and in-line with state mandates. Sandoval has long maintained that the City’s requirement to have its city manager reside within city limits violates state law. However, detractors maintain state law does not apply to city managers.

Sandoval also said that despite what’s alleged in Rios’ suit, the City went out of its way to inform the public of the initiative specifically by holding the amendment election during a presidential election year, which tends to attract more voters to the polls. However, when pressed by the plaintiff’s attorney, he also admitted that consent agenda items tend to be more routine.

“The public officials continue to embarrass themselves by violating their oath to the citizens of San Benito,” said Dolcefino. “The restraining order issued was known to the voters before the first day of early voting, yet they proceeded to try and sneak these highly controversial things on the ballot. I don’t know whether it’s arrogance or stupidity, or a combination of both.”

Villalobos countered by saying that the City broke no Open Meetings laws and allowed the public ample opportunity to review the proposed amendment changes (See the Oct. 11 and Oct. 18, 2024 editions of the San Benito News for the proposed amendments in their entirety) adding that if the proposed changes are so secretive that Rios has yet to see them, as he testified at the hearing, then how could his attorney have submitted them verbatim as part of the suit?

According to the San Benito City Charter, Section 9.01, under Proposal of Amendment, Amendments to this Charter may be framed and proposed: (a) In the matter provided by law, or (b) By Ordinance of the City Commission containing the full text of the proposed amendment and effective upon adoption, or (c) By report of a Charter City Commission created by Ordinance, or (d) By a Petition signed by a number of qualified voters of the municipality equal to at least five percent (5%) of the number of qualified voters of the municipality or 20,000 whichever number is smaller.

According state statute, Sec. 9.004. (a) Except as provided by Section 9.0045, the governing body of a municipality on its motion may submit a proposed charter amendment to the municipalities qualified voters for their approval at an election. The governing body shall submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by a number of qualified voters of the municipality equal to at least five percent of the number of qualified voters of the municipality or 20,000, whichever number is the smaller.

(b) The ordinance ordering the election shall provide for the election to be held on the first authorized uniform election date prescribed by the Election Code or on the earlier of the date of the next municipal general election or presidential general election. The election date must allow sufficient time to comply with other requirements of law and must occur on or after the 30th day after the date the ordinance is adopted.

(c) Notice of the election shall be published in a newspaper of general circulation published in the municipality. The notice must:

(1) Include a substantial copy of the proposed amendment;

(2) Include an estimate of the anticipated fiscal impact to the municipality if the proposed amendment is approved at the election; and

(3) Be published on the same day in each of two successive weeks, with the first publication occurring before the 14th day before the date of the election.

(d) An amendment may not contain more than one subject.

(e) The ballot shall be prepared so that a voter may approve or disapprove any one or more amendments without having to approve or disapprove all of the amendments.

(f) The requirement imposed by Subsection (c) (2) does not waive governmental immunity for any purpose and a person may not seek injunctive relief or any other judicial remedy to enforce the estimate of the anticipated fiscal impact on the municipality.

The first publication of the proposed changes was published by the City in the San Benito News on Oct. 11 with the second published on Oct. 18, 2024.

Diamant concluded by providing case precedent as evidence where the courts ruled against a Texas school district that voted on a superintendent by way of consent agenda.