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HomeMy WebLinkAboutMinutes City Council - 08/31/1977 (2)MINUTES OF THE CITY SECRETARY'S_PFFICE PUBLIC HEARING •%' (A verbatim transcript of the proceedings of this public hearing is on file in the Office of the City Secretary and is made a part hereof.) CITY OF CORPUS CHRISTI, TEXAS AUGUST 31, 1977 9:00 A.M. Purpose of the Public Hearing: To hear the charges brought by Mr. Timoteo Gonzalez, represented by Attorney Michael W. Williams, against City Manager R. Marvin Townsend and Council Member Bob Gulley. City Manager R. Marvin Townsend was represented by Mr. Jerry Benadum of the City Legal Department, and Council Member Bob Gulley was represented by Mr. Richard Hatch, Attorney of the Law Firm of Mahoney, Shaffer, Hatch & Layton. PRESENT: Mayor Pro Tem Eduardo E. de Ases Council Members: ' David Diaz *Ruth Gill Gabe Lozano, Sr. Edward L. Sample Mayor Pro Tem Eduardo E. de Ases inquired of Attorneys Williams and Hatch if they had received copies of the suggested procedures as prepared by Trial Supervisor Jerry Benadum and if they are in agreement. Both attorneys indicated that they were. Mayor Pro Tem de Ases indicated that the record should show that Mayor Jason Luby is absent from the City; Council Member Ruth Gill is absent from the hearing; Council Member Bob Gulley is excused from the Council in view of the fact that he is involved In the lawsuit. Attorney Michael W. Williams stated that the plaintiff, Mr. Timoteo Gonzalez will arrive at the hearing between 10:30 and 11:00 a.m., having been unavoidably detained. Mayor Pro Tem de Ases noted the fact that City Manager R. Marvin Townsend and Council Member Bob Gulley were present for the hearing. Attorney Richard Hatch asked that the record reflect the absence of two Council Members, stating that he understood that Mayor Luby is out of the City and questioned whether or not Council Member Gill will be present later. City Manager Townsend verified that Mayor Luby's office had advised him at 4:45 p.m. August 30, 1977 that Mayor Luby was in San Antonio and would not be able to return to the City until the afternoon of August 31, 1977. City Secretary Bill G. Read ascertained that Council Member Gill would be present momentarily. Mayor Pro Tem de Ases called for an opening statement on behalf of Council Member Bob Gulley. Minutes Public Hearing • August 31, 1977 Page 2 Attorney Hatch referred to his written reply of September 19, 1977, and stated that this letter fully states the reply of Mr. Bob Gulley. Be stated also that in regard to Counts 1 and 2, they are aware that there were installations of gas lines on Section 2 of Gulley's Mobile Home Park by the City, operating under a franchise with the Corpus Christi Municipal Gas Corporation, and that these installations were made seven years ago. Mr. Hatch stated that in regard to Count 3, Mr. Gulley is not aware of any work being performed on his property by City employees, and Mr. Gulley would not permit anyone to perform work at the City's expense. *Council Member Ruth Gill arrived at the hearing at 9:25 a.m. Mayor Pro Tem de Ases called on Trial Supervisor Jerry Benadum to present opening remarks on behalf of City Manager Townsend. Mr. Benadum stated that Mr. Hatch had summarized what is known about the situation at this time. He stated that the complaint has been brought by the plaintiff in regard to the installation of a gas line in 1970-71 and some alle— gations that street work on Mr. Gulley's personal property was performed at City expense. Mr. Benadum stated that the installation of gas lines was quite legal according to City specifications. The matter of the street work has not been made very clear in the charges, and all of the allegations need to be proven. Attorney Michael W. Williams called as his first witness, City Manager R. Marvin Townsend, who was sworn in by City Secretary Read. Attorney Williams questioned City Manager Townsend at length in regard to the installation of the gas pipeline on the Gulley Mobile Home Park during the period from December, 1970 to June, 1971. During the questioning, City Manager Townsend explained the operating agreement whereby the City agreed to operate the gas distribution system of CCMGC. City Manager Townsend cited as his authority for installing the subject gas main the Cas Main Extension Policy adopted in 1965. Attorney Williams questioned City Manager Townsend further in regard to what the policy applies to. Mr. Townsend stated that the installation that it applies to is the line that goes down the easement, the line that is in the Minutes Public Hearing August 31, 1977 Page 3 easement and the line to the regulator and the meter. City Manager Townsend drew a sketch on a blackboard to identify the lines referred to. Attorney Williams then questioned City Manager Townsend in regard to whether or not Mr. Gulley's Mobile Home Park had been subdivided. Mr. -Townsend stated that Lot 2 of the Mobile Home Park was one of the lots in the subdivision, and the gas improvements were installed on a platted lot. Mr. Williams questioned Mr. Townsend for some time in regard to the terms of the franchise agreement which included the policies established which authorized the City to perform work and operate the Corpus Christi Municipal Gas Corporation, particularly as it applies to the installation of gas extensions in Gulley's Mobile Home Park. In reference to the plaintiff's allegation that work was performed by City •employees to improve the drainage, street improvement, fill work and mowing in Gulley's Mobile Home Park, Attorney Williams questioned Mr. Townsend about the ,work that was authorized by him and performed by employees of the Street Division. City Manager' Townsend assured Mr. Williams that the only street repair work performed in the Park was on the public streets and not private streets in the Park. Mr. Townsend also explained that the City is obligated to take drainage away from property and this is done for all citizens whenever it is possible; therefore, the fact that drainage work was performed in the Mobile Home Park by City crews is not unusual. Attorney Williams then questioned City Manager Townsend about the alleged mowing performed in Mr. Gulley's Mobile Home Park by City crews. City Manager Townsend stated that the City only mows the right-of-way of the public streets, and if City employees mowed any other areas in the Park, he was not aware of it, .and it was not authorized by him. - Further questioning followed in regard to the City's installation of the gas extensions in Mr. Gulley's Mobile Home Park. Attorney Williams referred to the denial of a request from Mr. Otto McCloud, owner of Laguna Madre Mobile Home Park, for gas extensions. City Manager Townsend explained that this was a differ- ent situation in that a private gas system existed in that mobile home park. n ' Minutes Public Hearing August 31, 1977 Page 4 Mr. Richard Hatch, Attorney representing Council Member Bob Gulley, ques— tioned City Manager Townsend briefly. Mr. Hatch inquired about the request from Nr. McCloud and asked why gas installations were made in Mr. Gulley's Park and not in Mr. McCloud's.City Manager Townsend stated that Mr. McCloud's property was served by another gas company, whereas, Mr. Gulley's property was served by the Corpus Christi Municipal Gas Corporation; therefore, the City, operating for the CCMGC, was obligated to provide gas extensions for property owners who were served by CCMGC. Attorney Hatch inquired if there were any other mobile home parks in the City in 1970 and 1971 involved in a similar situation as Mr. Gulley's, and if so, were gas installations made in those parks. City Manager Townsend stated.that there were two other mobile home parks. in which gas installations were made. During redirect questioning by Attorney Williams, he inquired about a statement by Mr. B. P. Ledbetter, Gas Division Superintendent, in 1975 which indi— cated that there had been a change in the City policy for installation of gas mains. City Manager Townsend stated that the memorandum from Mr. Ledbetter to which he referred was written after the City's policy of gas main extensions was under review. * * * * * * Attorney Williams called as his next witness Mr. Bob Gulley, who was sworn in by City Secretary Read. After establishing that Mr. Gulley is the owner of Gulley's Mobile Home Park, Mr. Williams questioned him in regard to the gas installation in Lot No. 2 and inquired if that lot is a subdivided lot. Mr. Gulley stated that it was sub— divided as a part of the entire property and it is, therefore, a part of the sub— division. Mr. Williams questioned Mr. Gulley in regard to the fact that no easements were dedicated prior to the installation of the gas extensions, which is ordinarily done. Mr. Gulley stated that at that time he was not member of the City Council and, therefore, was not too familiar with the City policies. He pointed out that Minutes Public clearing August 31, 1977 Page 5 • he had employed an engineering firm to prepare the plat of his property; he assumed that since the plat signed by City officials contained easements, that was all that was necessary; and that obviously there was an oversight on the part of City employees in not obtaining the dedication of the easements, but this oversight has now been corrected. Attorney Williams asked Mr. Gulley if it.was not improper for the City to lay gas lines where there were no dedicated easements. Attorney Hatch objected to this line of questioning because it called for a legal opinion of City policy from his client, and he does not think the question can be answered. Mr. Hatch further commented that he suspects that there are thousands of gas meters in easements that have not been dedicated all over the City. Attorney Williams questioned Mr. Gulley in regard to the alleged mowing that was performed by City crews. He asked Mr. Gulley if someone from the City mowed his property, would he not be aware of it? Mr. Gulley replied that he was unable to watch his property 24 hours a day, but he doubted that such mowing had occurred because the City does not perform work on private property. He further explained that he would certainly not want City crews to mow his property because they are not supposed to according to City policy, and he would object to their mowing because they might damage some of his property. Attorney Williams inquired about the allegation that shell was placed on Mr. Gulley's property at the expense of•the City. Mr. Gulley replied that if shell was placed there, it was on the public streets and not on private roads in his mobile home park. Attorney Jerry Benadum, counsel for City Manager Townsend, questioned Mr. Gulley and inquired as to how the private streets in his mobile home park are maintained. Mr. Gulley replied that he employs asphalt contractors to do the work. Mr. Benadum then asked Mr. Gulley if he was present when the gas extension installation was performed. Mr. Gulley stated that he was there some of the time. Mr. Benadum then inquired of Mr. Gulley if City Manager Townsend had ever been present when work was being done in the Mobile Home Park, and Mr. Gulley stated 1111, Minutes Public Hearing August 31, 1977 Page 6 that he had never seen Mr. Townsend at his Mobile Home Park on any occasion when any type of work was being performed there. Attorney Hatch, in reference to the allegations by the plaintiff that mow— ing was performed on Mr. Gulley's property by City employees, inquired of Mr. Gulley if he had ever seen anyone mowing on his property who was a City employee. Mr. Gulley stated that he had not and that he had never asked anyone associated with the City to mow his private property. Mr. Hatch stated that plaintiff seemed to be concerned about easements and questioned Mr. Gulley briefly to clarify the fact that CCMGC was serving the Mobile Home Park with gas prior to 1970 when the property was platted. ' Mayor Pro Tem de Ases called for a recess at 11:10 a.m. The public hearing reconvened at 11:17 a.m. Mayor Pro Tem de Ases summarized the proceedings that had occurred prior to this time, stating that the Attorney for the plaintiff had charged that the City had illegally installed gas pipelines in Gulley's Mobile Home Park for which the City was not reimbursed and had alleged that employees of the Street Division had per— formed drainage work, patching work, material hauling and mowing in the Mobile Home Park. Mayor Pro Tem de Ases expressed his concern about the statement in Mr. Williams' letter of August 15, 1977, addressed to the Mayor and Council Members in which he had indicated that the employees who had supplied the plaintiff with information about these charges were hesitant to testify before the Council because they felt that they would suffer hardship in their employment with the City. Mr. Williams indicated that -he would not call on any of these witnesses to appear before the Council in view of the pending court case, stating that the iden—' tity of the witnesses would be made known when depositions are taken for the court. Mayor Pro Tem de Ases assured Mr. Williams that he did not need to be restricted in any way and that employees would not suffer if they testify on behalf of the plaintiff. Mr. Williams stated that he would call witnesses if there were some official action on the part of the Council that employees testifying would not have their • utes Public Hearing August 31, 1977 ' Page 7 jobs endangered. He reminded the Council that he does not have the power to subpoena witnesses. Mayor Pro Tem de Ases stated that if Mr. Williams would inform the Council as to which witnesses he wished to appear, it was his belief that the Council would have the power to subpoena witnesses. Mr. Williams then stated that he had been ordered by the Court not to take depositions and he felt that included calling the witnesses to appear before the Council. 'Attorney Hatch indicated that counsel was inaccurate in that statement, stat— ing that Judge Hamilton prohibited the attorneys involved in this case from taking depositions before the matter had been presented to the Council, but expressed the opinion that there is nothing to prevent counsel from talking to and questioning witnesses today. Mr. Hatch stated that he would hope that if there are such wit— nesses who can testify, that the Council would hear them. Mayor Pro Tem de Ases assured Mr. Williams that the employees referred to would not place their jobs in jeopardy by testifying. Council Member Sample also. gave Mr. Williams the same assurance. Mr. 'Williams questioned the authority of the Council to subpoena City employees and stated that some of them are hostile witnesses against the City. Attorney Benadum assured Mr. Williams that the Council can legally call any City employee to testify and reminded counsel that the City had sent a letter to him suggesting that he supply the names of all witnesses involved in the case so that arrangements could be made to allow the employees to have time off from their jobs in order to appear before the Council. Mr. Williams stated that he had been out of the City and did not receive the letter in time to supply the City with a list of witnesses. Attorney Hatch expressed his concern about the plaintiff not calling any witnesses, pointing out that serious accusations have been made against Mr. Gulley and City Manager Townsend, and it is the duty of the attorney to •bring forth wit— nesses to support these charges, rather than making such allegations on hearsay 1111, Minutes Public Hearing August 31, 1977 Page 8 information. Mr. Hatch reminded the Council that Mr. Williamq could call any wit- nesses, and pointed out the seriousness of the charges. Mr. Williams responded by stating that he had attempted to take depositions and get the matter heard in court and that he does not want to call the witnesses until he has had an opportunity to talk to them and until he is assured that they will not be harassed. Mayor Pro Tem de Ases asked Mr. Williams if he intended to call the wit- nesses that he had already talked with, and counsel stated that he did not want to call them at this time. Council Member Gill inquired about the Council power of subpoena and asked if Mr. Williams would be able to take depositions if the witnesses were questioned -before the Council. - Mayor Pro Tem de Ases stated that the Council is empowered to call witnesses to give testimony, but Mr. Williams does not want to call them because he does not know what they will say. City Attorney Bruce Aycock expressed the opinion that no objections were outlined in the procedure for conducting this hearing in regard to the calling of witnesses, and he sees no reason why they cannot be called. Attorney Hatch stated that by refusing to call witnesses, he assumes that attorney for the plaintiff is resting his case. Mr. Hatch pointed out that Mr. Williams had not asked that Council continue this case until he can bring witnesses, and regardless of the assurances that Council has given him in regard to protection of the positions of City employees who might be called to testify, he still does not desire to bring such witnesses before the Council. Council Member Sample asked for clarification. He stated that he did not understand how this case ever got to the courthouse and these allegations could have been made when there is nobody here to substantiate the charges. Mr. Williams reiterated that he would have witnesses if he had been allowed by the court to take depositions, select the witnesses he wanted to testify, and then present them before the Council, but since the court would not allow him to Wutes Public Hearing August 31, 1977 Page 9 take depositions, he did not want to jeopardize the court case by presenting wit- nesses now. Attorney Williams stated that he rests his case, and he would hope that the Council would review the case and make a decision so that the case can be taken back to court. Mayor Pro Tem de Ases stated that the next item,' according to the procedure agreed upon by counsel for all parties, was evidence for the defense and called upon Mr. Hatch, Attorney representing Mr. Gulley. Mr. Hatch called Mr. Timoteo Gonzalez, the plaintiff, to the stand. City Secre- tary Read ecre-tary'Read ascertained that Mr. Gonzalez was not present in the Council Chamber or in the vicinity of the Council Chamber. Attorney Hatch then called Mr. Michael W. Williams to the stand. Mr. Williams was sworn in by City Secretary Read. Mr. Hatch inquired of Mr. Williams as to why his client, Mr. Gonzalez, was not present. Mr. Williams stated that he had talked to Mr. Gonzalez early this morning and advised him to be at the public hearing, and Mr. Gonzalez had indi- cated that he would be there at 10:50, but he apparently had not arrived- ' Attorney Hatch questioned Mr. Williams in regard to witnesses who had claimed to see wrongdoing on the part of the City in performing certain tasks on Mr. Gulley's property at City expense. He then asked Mr. Williams how many wit- _ nesses who claim to have expert knowledge that work was performed on Mr. Gulley's property was he aware of. Mr. Williams stated that he had talked to five witnesses who had seen the work performed. Mr. Hatch stated that he objected to Mr. Williams giving testimony with- out the accuser being present. He again requested that the witness who had made the charges appear. Mr. Williams stated that he had talked to someone who claimed to have first hand knowledge of the wrongdoings, and reiterated that there are possibly five witnesses who have first hand knowledge of the acts. • Wes Public Hearing August 31, 1977 Page 10 • Attorney Benadum asked Mr. Williams if he would enumerate the reasons why he believes that there will be reprisals against witnesses to these events if they are City employees. Attorney Williams informed him that the apprehension about testifying is on the part of the witnesses, but indicated that he has not discussed this with the witnesses. Attorney Benadum asked Mr. Williams if at the time he filed the lawsuit, he had more detailed facts available to him than were included in the petition. Mr. Williams stated that he did, and he has excluded some of the testimony. Mr. Benadum inquired of Mr. Williams if that information was brought to him by the plaintiff, Mr. Gonzalez, and if so, could Mr. Gonzalez prove some of these allegations if he were here before the Council. Mr. Williams admitted that Mr. Gonzalez did not bring this information to him, but it came from another source, stating that he had received phone calls about the wrongdoing on the part of the City. Mr. Williams also admitted that ' . those phone calls were received by him after the lawsuit was filed. . Attorney Hatch inquired of Mr. Williams why he did not discuss the possi - bility of these people appearing before the City Council if they were aware of illegal acts performed by City personnel. Mr. Williams stated that he did not discuss their appearance before the Council, and Mr. Hatch then asked him how he knew they were concerned about testi— fying before the Council if he had not discussed this with them. Mr. Williams stated again that they only wanted to speak in court. Mr. Hatch stated that a considerable amount of data regarding the alleged misdeeds had been supplied Mr. Williams by Mr. Harry Hoag and asked if he had supplied the information for the allegations listed in Count 3, which referred to the mowing, patching of private streets, and drainage improvements. Attorney Williams indicated that Mr. Hoag had not supplied any information that could be used. Attorney Hatch requested that Mr. Williams, specify just exactly what work was performed at Gulley's Mobile Home Park by the City at City expense.. , -Minutes Public Hearing, August 31, 1977 Page 11 Mr. Williams stated that he had been informed that grading was performed on the property so that drainage would go to City streets, but admitted, under ques- tioning that no change was made on the property by that employee but only grades were taken. - In regard to the alleged mowing by City crews, Mr. Hatch questioned Mr. Williams as to whether or not he had first hand information that mowing was done on Mr. Gulley's private property. Mr. Williams testified that he had talked to a witness who stated that he was ordered by his supervisor to mow on the property. Mr. Hatch inquired where the mowing was done, and Mr. Williams replied that he was told this by a third party, and that he had not actually talked to the one who supposedly did the mowing. Mr. Hatch then referred to the shell that was alleged to have been placed on Mr. Gulley's property at the expense of the City and asked Mr. Williams if this' was placed on the right-of-way or on private property. Mr. Williams stated that he was told this and drove through the property rather rapidly to inspect the area. Mr. Hatch reminded him that the drainage ditches are on public property and asked if Mr. Hoag had prepared a map of the area and questioned Mr. Williams about his examination of the property and ascertained that a thorough investigation had not been made of this area. Mr. Williams reiterated that he had received reports of the placement of shell on private property. Mr. Hatch then referred to the allegation that patch work was performed on the private streets in the Mobile Home Park; he asked for a map of the area; and then asked the court reporter who was recording the proceedings to mark it for iden- tification purposes. He then entered it as evidence and requested Mr. Williams to point to the area where he was told the patch work was performed. Mr. Williams then placed his hand on the map and moved it over a wide area of the map. Mr. Hatch informed Mr. Williams that the area he had pointed to included a public road where the work was done. Mr. Hatch summarized by saying that all of'these allegations are based on statements made to Mr. Williams and which had not been investigated. utes Public Hearing August 31, 1977 Page 12 Attorney Benadum asked Mr. Williams if, when these charges were presented to him, he had brought this matter to the attention of anyone in the City in a supervisory capacity, such as the City Manager, a Director of a department, a supervisor, or a Council Member, before the lawsuit was filed. Attorney Williams stated that he had brought it to the attention of someone within the City other than an employee, but indicated that he did not want to develop - that at this time. Mr. Benadum inquired if Mr. Williams did not think it would be proper for City crews to repair driveways on personal property if they were damaged by the City when City work was being performed. Mr. Williams stated that the City would have a duty to restore personal property that was damaged by the City. Attorney Benadum asked permission to call one witness before the Council recessed since that witness had traveled from Medina, Texas, to appear. He then called as a witness Mr. Henry Lewis, former Street Superintendent of the City of Corpus Christi. City Secretary Read gave the oath to Mr. Lewis. Mr. Lewis testified that he had been employed by the City for 31 years prior to his retirement in February, 1977. He stated that he was employed and in charge of street work in 1975 and indicated his familiarity with Tuloso Circle, which is one of the public streets in Gulley's Mobile Home Park. Mr. Benadum asked Mr. Lewis about the drainage improvement project performed in Mr. Gulley's Park in 1975 or 1976 and requested that he explain the matter. Mr. Lewis related that a drainage complaint had been received from Mr. Gulley and explained that he had notified the Director of his Department, Mr. James K. Lontos. He stated that he and Mr. Lontos had investigated the complaint and he had then followed the usual procedure that the Street Division does in correcting drainage problems and indicated that this was just the same type of procedure that was followed on any citizen's complaint of a drainage problem. Mr. Lewis also assured the Council that no preference was given to the request from Council Member Gulley, and that he had instructions from the City Manager that any request from him or a member of the Council should be given the same treatment as any other citizen. Minutes Public Hearing . August 31, 1977 Page 13 Attorney Benadum inquired of Mr. Lewis if City Manager Townsend had person- ally approved of this drainage work on Mr. Gulley's property, and Mr. Lewis replied that to his knowledge, Mr. Townsend had not. In regard to the allegations that shell was placed on Mr. Gulley's personal property, Mr. Lewis explained that some of the driveways were possibly damaged during the drainage work performed by City crews, and in such instances, the driveways must be repaired when they are damaged by the City. He also stated that the only mowing that was done in the Mobile Home Park was on the right-of-way of the public streets, and indicated that this might have been construed to be personal property. Mayor Pro Tem de Ases inquired if Mr. Williams had any exhibits to present to the Council in connection with the case. Mr. Williams stated that he had none. Mayor Pro Tem de Ases inquired about the cost of the work performed in laying the gas lines, and it was determined that the cost was between 4 and 5 thousand dollars. Mr. Williams waived his right to a closing statement. Mr. Hatch gave a brief closing statement in which he stated that Attorney Williams has urged the Council to do nothing and not intervene in the lawsuit, but he requested,that the Council make a determination as to whether or not there has been any wrongdoing by City employees, pointing out that no evidence to that effect had been presented. Mayor Pro Tem de Ases declared the hearing closed at 12:55 p.m. * * * * * * The Council reconvened at 1:15 p.m. to deliberate on the allegations that had been made. Council Member Lozano stated that anybody can say that they observed City employees working on personal property, but nothing has been proven during the hearing. He stated that he does not feel that City Manager Townsend nor Council. Member Gulley have been guilty of any wrongdoing. Council Member Diaz stated that he feels that the plaintiff has utterly failed to prove any wrongdoing; all of the allegations were based on hearsay; and that no wrongdoing on the part of either City official occurred. Minutes Public Hearing August 31, 1977 Page 14 Council Member Gill stated that, based on what was presented today, she cannot see that any wrongdoing was performed by anyone. She further indicated that in regard to Counts 1 and 2 of the charges, which dealt with the installation of gas lines, she does not have enough knowledge of the law to make a judgment. Mayor Pro Tem de Ases expressed the opinion that the party who brought the lawsuit had the burden to prove the charges, and he did not even appear before the Council. He stated further that the plaintiff had an opportunity to make a full presentation, but this was not done, and the allegations were based on hearsay. Mr. de Ases also stated that he felt that the actions taken by the City Manager and the City employees were in compliance with general City policy. Motion by Sample that the Council find that there has been no wrongdoing or malfeasance by City Manager Townsend or Council Member Bob Gulley; seconded by Diaz, and passed by the following vote: de Ases, Diaz, Gill, Lozano and Sample voting "Aye"; Luby, absent. The Public Hearing was adjourned at 1:25 p.m. August 31, 1977. 0__KAAc ous 4 I e d °-1(L CtUJQf