San Marcos City Councilmember Kim Porterfield, left, and Mayor Susan Narvaiz, right, said a lawsuit attempting to enjoin them from using city resources to support Austin Community College annexation is a political ploy. Photos by Andy Sevilla.
By ANDY SEVILLA
Outgoing San Marcos Mayor Susan Narvaiz and incumbent Councilmember Kim Porterfield fired back at a lawsuit against them seeking an injunction in district court, calling it frivolous and politically motivated.
In documents filed with the 274th District Court last Friday, Citizens Advocating Responsible Education (CARE SMCISD) are asking the court to prevent Narvaiz and Porterfield from using city resources to promote the Austin Community College (ACC) annexation that will be before San Marcos CISD voters in November.
“This is politics, pure and simple,” Porterfield said in a statement. “This is an attempt to influence the outcome of the ACC election. It won’t work. This lawsuit asks the Court to order us to stop doing something we never did. That makes no sense. This lawsuit is a reckless abuse of the judicial system.”
Said Narvaiz, “(The lawsuit) is a political move with no substance. It’s an action to try and influence the outcome of the ACC election.”
Porterfield serves as a co-chair of San Marcos ACCess, the steering committee tasked with realizing ACC’s annexation. The other co-chairs are Albert Sierra and Miguel Arredondo,
In March, the San Marcos City Council unanimously voted to approve a resolution in support of ACC’s annexation.
“The city council recognizes the importance of comprehensive community college programs and services for the residents of San Marcos and the role community colleges play in the State of Texas’ Closing the Gap Initiative and in promoting economic development,” the resolution stated. “Be it resolved by the city council of the city of San Marcos, Texas: that the city council of the city of San Marcos hereby supports annexation of the city of San Marcos into the Austin Community College District.”
Narvaiz emphasized that the resolution passed with unanimous support, adding that the council passes resolutions all the time,
“That’s our job,” Narvaiz said.
CARE said Porterfield and Narvaiz used city email to communicate with ACC personnel and that they’ve also used the San Marcos Public Library as a meeting room for the annexation effort, as a distribution point for the petition that placed the measure on the November ballot, and as locale to distribute brochures and showcase an ACC campus model proposed for San Marcos.
CARE further asserts that Porterfield and Narvaiz used the San Marcos Activity Center as a locale to show and distribute ACC annexation brochures and also used the San Marcos City Hall lobby to procure petition signatures for the annexation effort.
The suit further states that city staff was used to draft the city council resolution in support of ACC annexation, and that city council facilities were used to stage a presentation by ACC President Stephen Kinslow. CARE also said that the City Hall conference room was used for planning meetings between ACC personnel and annexation advocates.
San Marcos City Attorney Michael Cosentino said city staff, resources and time can be used in legislative matters, such as drafting resolutions on which the council is scheduled to vote. Cosentino said the city council is a governing body that handles legislative matters, and city staff is there to accommodate and cater to council in effort to legislate public policy.
Natalie Abelaja, an attorney with the Texas Ethics Commission, said the Texas Election Code doesn’t specifically address city passed resolutions, but did say that issues raised by CARE describe potential Election Code violations. Abelaja cautioned, however, that she could not speak to the specifics, since no complaints had been filed with the commission against Porterfield or Narvaiz.
The Texas Election code states it’s unlawful to use public funds for political advertising.
“An officer or employee of a political subdivision may not spend or authorize the spending of public funds for a communication describing a measure if the communication contains information that: the officer or employee knows is false; and is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against the measure,” states Title 15, Section 255.003 of the Election Code.
The same section of the Election Code specifies that the prohibition “does not apply to a communication that factually describes the purposes of a measure if the communication does not advocate passage or defeat of the measure.”
An offense under Election Code Title 15, Section 255.003 constitutes a Class A misdemeanor.
CARE treasurer and legal counsel Andrew Gary said CARE didn’t seek criminal action against Porterfield or Narvaiz because “we weren’t out for blood … We’re not trying to crucify anybody on this thing.”
In a statement, Gary said, “After lengthy deliberation, CARE – SMCISD determined to pursue injunctive relief … in order to obtain accountability of public officials and employees for activities prohibited under Sec. 255.003 of the Texas Election Code and to generate public awareness as to such prohibited activities and the legal limitations on political advocacy by officials and/or employees of a political subdivision, which also applies to officers and/or employees of a school district, a university system or institution of higher education (Sec. 255.0031), as well as to a city.”
Cosentino said he didn’t think that the mere presence of the ACC annexation petition at city buildings constituted an Election Code violation. He said the petition was the measure itself and not political advertisement.
The Texas Election Code defines political advertising as, “a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that: in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television; or appears: in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication; or on an internet website.”
Cosentino also said councilmembers do not give up their First Amendment rights once being elected to office. He said councilmembers are allowed to advocate their causes outside of their elected office capacity, and they’re allowed to speak as citizens, as well.
Gary’s statement said other city officials and staff were not sought to enjoin because CARE didn’t obtain evidence pointing toward their unlawful use of city resources. The statement said that other councilmembers’ votes on the resolution was not a “sufficient” basis to include them in the suit.
In February, San Marcos ACCess kicked off its 2010 campaign to get ACC annexation on the November ballot at the San Marcos Public Library, with speakers advocating the proposal including Porterfield, Texas State University Provost Perry Moore, then-Texas State Associated Student Government (ASG) Vice President Tommy Luna, San Marcos Education Foundation Executive Director and mayoral candidate Daniel Guerrero, San Marcos Chamber of Commerce Governmental Affairs Chair Denise Collazo, and San Marcos ACCess co-chairs Arredondo and Sierra.
In 2006, ACC pulled its effort to annex SMCISD into the ACC taxing district after the petition process was riddled with findings of signature fraud, though nobody was prosecuted.
CARE is an unincorporated, non-profit association, registered with the Texas Ethics Commission. CARE’s general-purpose committee campaign finance report shows it took in $900.20 in contributions and spent $244.20 in expenses for the Jan. 15 to June 30 reporting period. Gary provided $400 in in-kind donations, and Joe B. Millican donated $500.20 during the reporting period.
CARE expended $100 to WDS Corporation to set up a website domain and email address. CARE also spent $135 and $9.20 in open records requests with ACC and San Marcos, respectively. CARE remains with $256 in its campaign war chest against the San Marcos CISD annexation into the ACC taxing district.
If annexation is approved in November, San Marcos residents will receive the in-district tuition rate of $42 per credit hour, as opposed to the out-of-district $150 per credit hour. Tuition also includes general fees, student fees, and sustainability fees totaling $16 per credit hour.
ACC taxes at 9.46 cents per $100 property valuation, of which an even nine cents goes to maintenance and the rest goes for debt service.
(Editor’s note: The above has been clarified to report that Natalie Abelaja, the Texas Ethics Commission attorney, said issues raised by CARE describe potential Election Code violations.)Email | Print