Without ceremony or vitriol, city Rep. Melina Castro requested a moment of personal privilege near the start of this morning’s City Council meeting and announced that she was paying off a pending legal judgment to clear up confusion about her eligibility to take office.
Castro gave the city a $30,000 cashier's check. In response to news media questions after the council meeting, she refused to say where she got the money and directed further questions to her lawyer. (Download a copy of the check below)
Contracted at his office, lawyer John Mobbs said, "I'm sorry, I cannot make a comment."
The city's ethics ordinance prohibits elected officials from taking gifts of more than $75, and the Texas Election Code says that campaign contributions cannot be used to further individual or family purposes not connected with the performance of duties of a candidate or officeholder.
In short, Tim Sorrells of the Texas Ethics Commission said, campaign funds can't be used for personal use.
Castro said she was paying the judgment stemming from the lawsuit she filed against City Attorney Charles McNabb in 2006, which she lost at the district court level.
The judge in the case awarded the city $30,000 to cover its legal fees. Castro’s case is on appeal and was argued two weeks ago before the state’s Eighth Court of Civil Appeals in El Paso.
The judge advised Castro that if she appealed her case and lost, she would owe the city $10,000 more and that if she then appealed to the Texas Supreme Court and lost she would owe an additional $15,000. [The question is, can Castro take office?, Feb. 2, 2009]
Before handing Municipal Clerk Richarda Momsen the check, Castro said she was paying the judgment “to make sure to clear up the error and let the voters of Northeast El Paso know that if I do win this election I can take (my) seat in office.”
Castro submitted the check with a letter to the mayor that she asked be made a part of the meeting’s official record. (Download a copy of the letter below)
The City Charter prohibits a person who owes a debt to the city from taking elective office.
Last week, Mayor John Cook released a legal opinion prepared by McNabb stating that the district court judgment against Castro, even though it is on appeal, constitutes a legal debt to the city and would have to be paid before she could take office. [City opinion: Rep. Castro cannot take office if elected, April 29, 2009]
Castro faces five challengers in the May 9 city elections.
Castro's deposit
‘A problem fraught with difficulties’
The El Paso City Charter section on indebtedness states that, “No person shall be eligible for any elective office who, at the time of taking office, whether by virtue of election or appointment, is indebted to the City in any sum of money on judgment, contract or valid tax levy or assessment.”
The question in Castro’s case is when a court judgment constitutes a debt that must be paid before she could take office, if elected.
Assistant City Attorney Kenneth Krohn, whom McNabb assigned to write the legal opinion requested by Mayor John Cook, framed the issue this way: “What effect does the filing of a notice of appeal have on the enforceability of a money judgment pending appeal?”
“Once a money judgment is rendered and signed, the judgment creditor is entitled to initiate procedures to enforce it,” Krohn wrote.
Filing a notice of appeal alone “does not suspend enforcement of the trial court’s judgment,” he wrote, but the person who owes that debt may suspend the execution of the judgment or collection by filing a bond pending an appeal, which Castro has done.
From that opinion, McNabb advised the mayor that if Castro “obtains the required votes for re-election, her debt to the city, if not paid prior to her taking office, will render her ineligible.”
In an interview, McNabb said, “All we issued an opinion on is whether the bond erases the debt, and our opinion is it does not.”
Dr. Robert Bezdek, a professor political science at Texas A&M University at Corpus Christi who has been a student of city government and elections in Texas for 30 years, said he does not believe the charter provision should be forcefully applied in an uncertain situation to threaten a candidate with being barred from office over a judgment on appeal.
A provision prohibiting someone from taking office if they owe money to the city is common in Texas, he said, “but it seems to me that it was written with something simpler in mind, like a fine for a traffic ticket or taxes.”
“Charters are supposed to be very flexible documents and most of the time … it would seem you should give the benefit of the doubt in the charter to the person running for office.
“The guiding principle you don’t want to lose is you don’t want to destroy the general principles of democracy, that anybody has a right to run and to take office, if elected.
"Obviously, a debt like taxes would have to be paid, but a questionable debt like a lawsuit should get the benefit of the doubt.”
Told that the situation was complicated today by the fact that Castro paid the city with a cashier’s check and then refused to say where the money came from, Bezdek sighed.
“You have a problem fraught with difficulties,” he said.
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To reach David Crowder, write to dcrowder@epmediagroup.com or call (915) 351-0605, ext. 30
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