Loading...
2020-025 City Attorney Response to ArticleDate: March 20, 2020 Report No. 2020-025 INFORMAL STAFF REPORT TO MAYOR AND CITY COUNCIL SUBJECT: City Attorney’s Response to Richard Gladden’s Letter BACKGROUND: The City Attorney is responding to attorney Richard Gladden’s article where he claims the City Attorney provided the Denton Police Chief erroneous and illegal advice in connection with the Darius Tarver incident. DISCUSSION: NOTE: The City Council has authorized this Informal Staff Report and has provided a limited waiver of the Attorney-Client Privilege as to facts and legal opinion expressed herein. The Monday, March 9, 2020 edition of the Denton Record-Chronicle included an article in the Opinion section entitled, “City Attorney’s Bodycam Advice Was Not Legal.” This article was penned by Richard Gladden, a local criminal defense attorney. His article addressed Council Member Armintor’s request to view the Denton Police Department body camera videos depicting the police shooting of 23-year old University of North Texas student Darius Tarver. According to Mr. Gladden, he claims that the City Attorney advised the Police Chief to disallow Council Member Armintor from viewing these videos unless the Denton City Council “collectively” gave its permission first.” According to Gladden, such legal advice was erroneous and illegal. In support of his opinion, Gladden wrote that since 1983 the Texas Attorney General has opined that under Texas law “a member of a governing body has an inherent right of access to the records of that body when requested in the member’s official capacity and for the member’s performance of official duties.” Thus, in his opinion Council Member Armintor should have been allowed to view the body cam videos of the Darius Tarver incident. However, his opinion is incorrect, because Gladden assumed that Council Member Armintor’s request was made in her “official capacity” and related to the “performance of official duties” as a Council Member. The facts in this case show otherwise. A. A Council Member’s Inherent Right to View City Records is not Absolute. I agree with Gladden’s recitation of the Attorney General’s legal opinion concerning a council member’s inherent right of access to City records. In fact, I have previously advised the Denton City Council of this right since being appointed as City Attorney. Members of a governing body making such requests are not treated as members of the public under the Texas Public Information Act. The reason is two-fold. First, the governing body is responsible for the governance and Date: Report No. control of the governmental entity. Second, under the Texas Public Information Act, the governing body is charged with the duty of preserving and maintaining information. However, such a request is subject to two criteria that must be met. The request must be made in the council member’s “official capacity” and in furtherance of their “performance of official duties.” The Texas Attorney General has made it clear that these two criteria must be met. Texas Attorney General Opinion KP-021 (Ken Paxton, 2015); Texas Attorney General Opinion KP-0186 (Ken Paxton, 2018); Texas Attorney General Opinion GA-0138 (Greg Abbott, 2004); see also Open Records Decision No. 15914 (Tex. A.G., 2010).1 The takeaway from these Attorney General opinions and Open Records Decision is that the Attorney General recognizes that a request to view documents made by a member of a governing board should not be automatically treated as being made in the member’s “official capacity” and in furtherance of “performing their official duties.” The facts surrounding the request need to be closely analyzed to determine that the request was made either pursuant to the member’s “official” or “individual” capacity; the latter which is treated like any other Public Information Act request made by a member of the public. a. “Official Capacity” CM Armintor’s email request of Chief Dixon to view to the body cam videos was made on March 1, 2020. There was no indication in her email that she was making the request in her “official capacity” as a Council Member. However, there were several known facts, both before and after the date of her request, that demonstrate that she was not making the request in her “official capacity.” For example, prior to her March 1st email, she sent an email to the City Manager and Police Chief on February 20th requesting that the videos be released during the Texas Rangers’ investigation. In her February 20th email, she did not indicate that she was requesting the videos in her capacity as a Council Member. Instead, she wrote that she was making the request on the basis of Darius Tarver’s father’s claim, after viewing the videos, that his son was not holding a meat cleaver, did not attack the police, but instead was attacked by them. She further added that she wanted the videos released so that the “public can see for themselves.” The contents of this email were also included in her letter that appeared in the February 18th edition of the Denton Record Chronicle. On February 29th, Council Member Armintor appeared and spoke at a protest across the street from the Denton Police Station. She later wrote on her Facebook page that she had spoken at the protest in support of the request to release the videos. Shortly before the protest, Council Member Armintor created a petition on Change.org calling for the release of the body cam videos. She posted on her Facebook page that she had obtained over 1,500 signatures in support of the petition. Finally, CM Armintor had some meetings with Darius Tarver’s family and attorney, Lee Merritt (as disclosed in more than one in her Facebook posts) regarding the Tarver incident. On one occasion, a local news channel (KDFW Fox 4 – Dallas) interviewed both CM Armintor, the Tarvers and Lee Merritt; portions of which were aired on the channel’s nightly news. After her 1 In ORD No. 15914, the Attorney General’s Office analyzed whether a council member’s request for information was made under her “official” or “personal” capacity pursuant to the law applicable to each scenario, since there were not sufficient facts to make a definitive determination. Date: Report No. March 1st email request, CM Armintor left her post to walk out of the March 3nd Council Meeting to protest with individuals who had demanded that the videos be released during the Public Meeting portion of the Council’s meeting. On March 11, 2020, Council Member Armintor submitted another written demand to the City Council to see the additional documents involved in the Tarver criminal investigation. On March 17, 2020, Council Member Armintor’s attorney, Richard Gladden, wrote the Council advising them that if they refused her request, he would file a lawsuit against the City. These actions undertaken by CM Armintor before her March 1st email request are both adverse to the official position taken by the City through its Police Chief, and detrimental to the ongoing criminal investigation. The Police Chief had advised Council that the investigation was being conducted by the Texas Rangers, and it was his desire to maintain the integrity of a thorough and unbiased investigation. He did not want to undermine that integrity by releasing the videos until the Denton County Grand Jury ruled on the matter. Council Member Armintor did not agree with the Police Chief’s position and instead openly advocated against it through her actions and later through her private attorney, Richard Gladden. She has become one of the leaders advocating against the City in this matter. In essence, she has abandoned her role as a Council Member elected to serve all of the citizens of Denton. She has become an activist undermining the City Police Chief’s official position concerning the investigation, as well as undermining the legal advice of the City Attorney. This is not the first time CM Armintor has chosen to align herself in support of individuals with claims as against the City. She has met with, and advocated for, a former employee in connection with the employee’s racial discrimination lawsuit against the City. Prior to this meeting, Council Member Armintor was in possession of two confidential attorney-client privileged City Attorney legal opinions concerning the merits of the former employee’s lawsuit. In another case, she attempted to obtain confidential documents behind the City Attorney’s back to provide them to a member of the public who was upset that the City had filed a request to the Texas Attorney General to rule on whether the documents were confidential and excepted from disclosure. The Attorney General ruled in the City’s favor. Further, in the Tarver incident, and in at least a couple of past controversial incidents, she has sought the legal advice of a private attorney each time she disagreed with the City Attorney’s legal opinion. Given her actions in the Tarver matter and her past history, it was reasonable to conclude that her request was not made in her “official capacity”, but rather as a member of the public. Instead of requesting a ruling from the Attorney General pursuant to the process set forth under the Texas Public Information Act, my advice to the Police Chief and City Manager was to submit this to Council for their consideration and consent in a future closed session. a. “Performance of Official Duties” There was nothing in CM Armintor’s March 1st email that indicated her request was necessary and related to the performance of her official duties as a Council Member. For example, if the request had been made to view the Police Department’s budget to determine whether funding is sufficient, then arguably that is a request related to the performance of her official duties of reviewing and approving the PD’s budget. However, based upon the facts described in the “Official Capacity” Date: Report No. section above, there is nothing to support such a claim. Moreover, CM Armintor posted on Facebook that the reason for her request was that she had been asked by the Tarver family to view the videos. Finally, it is important to note that the videos are part of an on-going criminal investigation conducted by the Texas Rangers in coordination with the Denton County District Attorney’s Office. When the Police Department conducts criminal investigations, they are acting on behalf of the State of Texas. These criminal investigations and criminal charges will never be brought to the Council for consideration. They are instead brought to the District/County Court for prosecution. It is very difficult for CM Armintor to argue that the “performance of her official duties” includes viewing the videos that are part of a criminal process that no other Council Member or the entire Council has any involvement with or control over. As such, it was reasonable to conclude that her request was not in furtherance of performing her official duties as a Council Member. So instead of requesting an AG Letter Ruling pursuant to the Texas Public Information Act, my advice to the Police Chief and City Manager was to submit this to Council for their consideration and consent in a future closed session. b. Gladden Fails to Address “Official Capacity” & “Performance of Official Duty” Criteria Gladden did not address these two criteria in his article. It is possible that Gladden did not have all of the above facts. Or perhaps they were made available, as they were easily accessible on social media and websites, and he simply chose to ignore them. He used three Texas Attorney General opinions as support for his legal conclusion, yet he failed to point out that these same and other Texas Attorney General opinions recognize the inherent right to view City records is not absolute. He failed to include any facts to support that Council Member Armintor’s request was made in her “official capacity” and in the furtherance of her “performance of official duties.” Thus, his legal conclusion that I provided the Police Chief with erroneous and illegal advice is without merit and simply false. STAFF CONTACT: Aaron Leal, City Attorney Aaron.leal@cityofdenton.com (940) 349-8333 REQUESTOR: City Attorney PARTICIPATING DEPARTMENTS: City Attorney’s Office