Published: August 14, 2008 08:41 am      

Auditor getting second opinion

County attorney’s records requests lead to stalemate

The Henderson County Auditor’s Office would like County Attorney James Owen to be more specific.

The Auditor’s Office has responded to each of the six open records requests filed by Owen last month, asking him to narrow most of his requests and be more specific about the documents sought.

Owen said he made the open records requests as a private citizen and not in his capacity as the county attorney. The requests were made under the heading of James and Laura Owen with the inclusion of his home address.

Documents sought by Owen include:

• each written request for information received by the Auditor’s Office between Jan. 1, 2007, and July 29, 2008, from the County Attorney’s Office, the County Judge, the County Treasurer, the Henderson County Sheriff’s Department and any employee of those offices;

• a copy of any information provided in response to those requests;

• a copy of any information provided to any person other than an employee of the Auditor’s Office related to the County Attorney’s Office, the County Judge’s Office, the Treasurer’s Office and the Sheriff’s Office whether pursuant to a written or oral request for information;

• a copy of any document related to the evaluation of the operation of the County Treasurer’s Office;

• any documents provided to or evidencing information provided to David Monk or any member of the Henderson County Hospital Authority Board; and

• any documents evidencing the collection of any fees related to the cost of responding to any request for the information identified in the aforementioned requests.

County Auditor Ann Marie Lee appeared before Commissioners Court August 5 to discuss an agenda item concerning whether he could consult outside legal counsel concerning Owen’s requests. In most cases, questions regarding open records requests in Henderson County are forwarded to Owen. In this case, Owen is the party making requests.

Attempts to reach Owen Wednesday were unsuccessful.

“I’m don’t know how familiar you are with the workings of the Open Records Act, but it’s quite involved,” Lee told the commissioners. “If you’re not in compliance with the act you could be subjected to criminal and civil penalties.”

Lee said she spoke to a representative of Texas Attorney General Greg Abbott’s Office and was advised to hire an attorney to help with fulfilling the requests.

When the item came to a vote, two commissioners — Jerry West and Ronny Lawrence — were in favor and two — Joe Hall and Holstein — abstained. After the meeting, Holstein contacted the Texas Association of Counties to determine whether the vote had passed due to only two commissioners voting.

TAC officials found an Attorney General’s opinion that states if an entity is operating under Roberts Rules of Order, the vote was 2-0 with the abstentions not taken into account. Officials began to dig back into county records to determine if commissioners had ever adopted Roberts Rules. At last report, that search continues.

The commissioners’ vote became less important when it was learned that Lee had received a district court order giving her permission to consult with outside legal counsel. Lee’s office is supervised by the county’s three district court judges.

The scenario is similar to the one Lee faced shortly after she took office in June 2006. Inundated with open records requests, Lee received consent from the judges of the 3rd, 173rd and 392nd district courts to hire outside legal help to determine how to respond to certain requests with broad parameters.

On November 1, Owen wrote the Attorney General’s Office to ask whether district court judges can authorize a county auditor to hire legal counsel to perform the duties of the county attorney or county commissioners. Owen also asked if the judges could appropriate county funds outside the normal budget to pay for the services.

Abbott’s response read in part, “The County Attorney of Henderson County has no exclusive duty to represent Henderson County in all civil legal matters. Thus, the County Auditor’s retention of outside legal counsel did not improperly impinge on an exclusive duty of the County Attorney.”