City Rep. Melina Castro cannot take office if she wins re-election, according to an opinion from the city attorney's office.
The opinion, dated Wednesday (click link below story for the document), states that Mayor John Cook is the presiding officer of the final canvassing authority, which means he would be responsible for certifying the election. The opinion, authored by Assistant City Attorney Kenneth A. Krohn and signed by City Attorney Charlie McNabb, argues that if Castro won the election, Cook should not certify the election. Instead, states the opinion, "the office should be declared vacant and a new election held."
Castro owes the city more than $30,000 after she lost a lawsuit against the city and City Attorney Charlie McNabb. The lawsuit had its origins in 2005, when Castro demanded to see documents related to the $500,000 city settlement with former City Attorney Rita Rodriguez. [castro threatens to sue mcnabb, nov. 28, 2005]
The court action went back and forth, with a December 2006 judgment followed by a March 2007 notice of appeal. [castro goes another round with mcnabb, july 5, 2007]
An appeals court heard arguments on the issue about three weeks ago. [appeals court hears castro's appeal, April 9, 2009]
The question at hand in regards to Castro's eligibility began to surface at the beginning of the official campaign season. Castro's lawyers argue that by filing what is called a "supersedeas bond" the judgment against her is not final until the final appeal has been exhausted.
The city attorney's office contends in today's opinion, as the city's outside counsel suggested in this Feb. 2 NPT story, that while the supersedeas bond bars the city from executing the judgment -- for example, attempting to collect through payroll deduction -- it does not affect the status of the judgment. In other words, Castro owes the city money.
And under the City Charter (section 2.2 (B)), someone who owes money is not eligible to hold elective office.
Because the issue has been in question for several months, the natural question is, why issue an opinion now (an opinion stamped at the top with the words, "Confidential Attorney-Client and/or Attorney Work Product/Communication Not Intended for Public Dissemination")?
Cook said it was because of comments Castro made in a Sunday El Paso Times article and previous comments made by Luther Jones, one of her advisors, in NPT (see link above to the Feb. 2 NPT story).
"I think the law is pretty clear. The case is on appeal, and because of that I can take office," Castro said in Sunday's Times. "I wouldn't be working this hard to get re-elected if I didn't think I could take office."
Cook said that "I was not aware that she didn't think she had to pay the obligation until she made the comment … most people who would read that, they would believe that's the legal opinion and that is not."
When asked why not let a court decide her eligibility, Cook said, "If she gets elected and she refuses to pay the $40,000 in the judgment, what Charlie is telling you when it comes time to canvass the votes is that I'm going to have to say she's not eligible to get sworn in. Prior to receiving the opinion I had no idea it was my responsibility to call the shot. I tried to stay as far away from her race as possible and from the other council races too. Now it looks like the monkey is going to be on my back after the election, if she gets elected."
As for whether it's a conflict for the opinion to come from the office of the person who was the target of the lawsuit, McNabb said: "I was sued in my official capacity, which means the city was sued. I'm the attorney for the city and we have to give advice."
Castro could not be reached for comment.
"Only an innocent child could fail to understand what Cook and company, and McNabb and the Times are trying to achieve with Ms. Castro," Jones wrote in an e-mail response to a request for comment. "Misuse of power never works over time."
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