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August 6, 2008

Commissioners split on outside legal help

By Rich Flowers News Editor

The Henderson County Commissioners Court left Tuesday’s meeting without knowing whether or not they had approved a request by County Auditor Ann Marie Lee to hire outside legal counsel to review certain open records requests. Consultation between County Judge David Holstein and the Texas Association of Counties revealed the vote did not pass because it failed to gain a majority of the 4 votes cast.

Pct. 4 Commissioner Jerry West and Pct. 3 Commissioner Ronny Lawrence voted in favor of the item while Pct. 1 Commissioner Joe Hall and Holstein abstained. Pct. 2 Commissioner Wade McKinney was not present.

The agenda item concerned six separate open records requests submitted by County Attorney James Owen. Lee said the requests were broad in scope and could take many hours to fulfill.

Owen filed the request as a private citizen and not in his capacity as a public official.

“My concern is, and I’m not sure how familiar you are with the requirements of the open records act but it is quite involved,” Lee said. “I’m not a lawyer, but I contacted the Attorney General’s office and they recommended that I hire a lawyer. If we are not in compliance with the act, we can be subjected to civil and criminal penalties,” Lee said.

Lee has responded to Owen on five of the six requests asking for a clarification that would narrow the scope of the information sought. A response to the sixth item is also expected. She said she had not heard back from Owen concerning the reply.

“To me, if you’re an elected official, you’re not only an official during the day but all the time,” Pct. 4 Commissioner Jerry West said.

Lee said some of the requests were so broad it would require every bit of information the Auditor’s office has at its disposal to respond. The work would include research and copying what could be many pages of documents.

Holstein said Lee should consult Owen in his capacity as county attorney concerning the requests and ask for a clarification of what items were being sought. Holstein contended that it might trim the number of documents the auditor would have to produce.

Lee wondered how Owen could consult on how the auditor should handle a matter to which he was a party.

“That would be a conflict of interest,” Lee said.

West asked Lee if by looking at the requests she could tell how much work might be involved in preparing the documents. Lee said it could take a few minutes or days to comply depending on what was discovered in the document search.

West made the motion to approve the request for counsel, with Lawrence providing the second. Holstein and Pct. 1 Commissioner Joe Hall abstained.

“We’ve got two in favor and two abstained,” Holstein said. “We’ll make a record of that and see if it passed. If needed, we can address it again next week.”

The Auditor’s Office provides information for other county departments and the public on a regular basis and on occasion is called upon to comply with open records requests. Owens’ latest requests mark the second time Lee has seen the need to consult outside legal counsel concerning the information.

Shortly after taking office in June of 2006, the auditor’s office received requests from various individuals for a number of large documents. Lee said at the time one request was for 12 months’ worth of e-mails from the county’s server, totaling about 129,000 communications.

In July 2006, Lee hired the firm Hardy and Atherton to determine which requests had to be legally fulfilled.

In other action Tuesday, Commissioners:

• approved a change order with Tyler Technologies for the jail records search system, saving the county $825 on the firewall;

• approved a request from the City of Poynor for labor and equipment to repair streets within the city limits;

• accepted a reimbursement from Caney City for road materials in the amount of $485;

• and authorized payment of bills in the amount of $178,100.78.

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