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March 8, 2016
Sent via email: jdarnell@jdarnell.com and via CMRRR
Article 7015 0640 0000 3593 5615
Mr. Jim Darnell
Attorney at Law
310 N. Mesa, Suite 212
El Paso, TX 79901
Re: Sworn Complaint filed with the City of El Paso Ethics Review Commission
Mr. Darnell:
I am writing on behalf of the City of El Paso Ethics Review Commission (the Commission) with
regard to the sworn complaint filed against your client, Tommy Gonzalez, by James Tolbert.
Section 2.92.090(F)(5) of the Citys Ethics Ordinance requires the disclosure of evidence tending
to negate guilt or to mitigate the seriousness of an alleged offense. In an effort to be as transparent
as possible, the Commission has directed me to provide you with a summary of facts that I believe
will be supported by clear and convincing evidence at a formal hearing, as well as evidence that
may be considered exculpatory in nature. I have separated these facts into three sections, which
correspond to the allegations in Mr. Tolberts allegations: (1) the financial advisor allegations;
(2) the street resurfacing allegations; and (3) the Stanton Street allegations. Ultimately, of
course, the applicability of the evidence to the Citys standards of conduct will be determined by
the Commission after a formal hearing.
Financial Advisor Allegations
Evidence Supported by Clear & Convincing Evidence:

City Councils audit committee, of which Representative Romero was the chair, took no
formal action to recommend changing financial advisers.

The evidence, including emails, suggests that Mr. Gonzalez wished to see a short response
period. In an email dated October 16, 2014, he indicated his preference for a three-week
window for bidders to respond.

When the RFQ was released, it included a three-week response window, consistent with
Mr. Gonzalezs email to Dr. Sutter.

When the legal department was eventually brought in to assist with terminating the existing
financial adviser contract, the question was asked whether the contract was being
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terminated for convenience or for cause. None of the emails exchanged indicate that the
termination would be for cause, nor was any breach of contract alleged.
Evidence Tending to Negate Guilt or Mitigate Seriousness:

In August of 2014, Chief Budget Officer Lynly Leeper emailed the Mayor and Council
(three separate times) a list of Councils budget requests. On each of those lists was a
request, initiated on July 22, 2014, by Representative Romero to [r]eview agreements with
the Citys financial advisor and bond underwriters. Dr. Sutter said that he will review the
contracts and provide feedback regarding timing/options for doing RFQ, etc. No member
of City Council objected to the inclusion of the action item.

The RFQ was ultimately amended to add an additional weeks response time, bringing the
window to respond to four weeks, the minimum contemplated by the Procurement Policy.

Noe Hinojosa denies any contact with City officials regarding the contents, timing, or
issuance of the RFQ.

Dr. Mark Sutter, the Citys Chief Financial Officer, stated in an interview that he received
no pressure from Mr. Gonzalez to sway the outcome of the evaluation process, nor did Mr.
Gonzalez express a preferred vendor.

In an interview, Dr. Sutter, as a member of the evaluation committee, acknowledged that

he believed that First Southwest should have been penalized for failing to stand up and
notify City Council regarding issues related to the ballpark financing. He also
acknowledged that his comments likely swayed the evaluation committee against First
Southwest.

Both Dr. Sutter and Mr. Gonzalez claim to have been unaware of the past business
relationship between Representative Romero and Estrada Hinojosa.

Mr. Gonzalez was within his authority to initiate the FA RFQ without first notifying or
seeking the approval of the City Council.
Street Resurfacing Allegations

Evidence supported by clear and convincing evidence:

In February 2015, the City Council approved a contract for street resurfacing in accordance
with Year 3 of the Citys Street Infrastructure Capital Plan.

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The funding source for the improvements were the Street Resurfacing Certificates of
Obligation approved in 2012.

In submitting the resurfacing contract to the City Council, the City Engineer noted that
[t]his contract will address streets [that] are selected solely on the criteria of the asphaltic
surface condition (Pavement Condition Index Rating) that rank them within the currently
approved CIP funding.1

In August 2014, the Council authorized the City Manager to:

o [I]ncrease or decrease the budget for any capital projects within a Capital
Improvement Plan (CIP) approved by the City Council, provided that the change
of a projects budget of more than One Million and No/100 Dollars ($1,000,000.00)
requires additional Council approval.
o [A]dd to an existing Capital Improvement Program (CIP). Addition of a project to
an approved Capital Improvement Program (CIP) must meet the purpose of the
proceeds from which the original CIP was funded and the addition of such
project(s) cannot exceed more than Five Hundred Thousand and No/100 Dollars
($500,000.00) without City Council authorization.2

City Representative Romero asked Mr. Gonzalez to add the following streets and alleys to
the CIP:
o
o
o
o
o

Polk Street from Byron to Elm ($240,000 completed Dec. 4, 2015)

Louisiana from Mobile to Richmond ($170,925 completed Nov. 11, 2015)
Maxwell from Dyer to US 154 ($240,537 completed Sept. 11, 2015)
Elm from Mobile to Richmond ($190,472 completed Nov. 11, 2015)
Alley between Piedras and Raynor ($29,243 completed Nov. 11, 2015)

Mr. Gonzalez agreed to include those repairs in the CIP.

The cost to include the streets and alleys proposed by Mr. Romero added projects totaling
approximately $871,177 to the Plan as it related to District 2. Because these additional
projects exceeded $500,000, Mr. Gonzalez was required to secure City Council
authorization before making these additions to the Plan. Mr. Gonzalez failed to secure the
requisite City Council approval before making these additions to the Plan.

Mr. Gonzalez authorized the addition of an alley (located between Piedras and Raynor
Streets) to the Plan. The alley was resurfaced using funds from the Street Infrastructure

1
2

Department Heads Summary Form dated January 27, 2015, by Irene D. Ramirez, P.E.
FY 2015 Budget Resolution adopted by Council in August 2014.

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Capital Plan. The Plan itself envisioned the use of Plan funds to pave unpaved alleys, but
did not speak to resurfacing alleys that had already been paved. Therefore, the alley at
issue did not qualify for improvement with Plan funds.

Subsequent to the resurfacing, a Capital Improvement Street Reconciliation Report

prepared by City staff and presented on December 7, 2015, included reference to the streets
and alleys proposed by Mr. Romero.

The evidence supports the allegation that Mr. Gonzalez recklessly disregarded a City policy
the FY 2015 Budget Resolution - relating to his job duties.

Evidence tending to negate guilt or mitigate seriousness:

Despite the basis of the resurfacing bid and resulting contract, there was an ongoing effort
by Mr. Gonzalez to seek input from each City Representative regarding each Districts
resurfacing priorities.

Before a revised plan was brought forward, resurfacing work started in District Two. It
has been suggested by multiple staffers that the general resurfacing plan was to begin on
the east side and move westward in order to save on mobilization costs. After
Representative Romeros modified priorities were submitted to the Citys staff, the staff
suggested further modifications designed to address the Representatives requests but
reduce mobilization costs.

Most of the added streets were adjacent to streets within the CIP. In an interview, Fred
Lopez opined that the added streets (with the exception of Polk Street) merited attention
from both a planning and engineering perspective.
Stanton Street Allegations

Evidence supported by clear and convincing evidence:

The City Council adopted the Neighborhood Traffic Management Program (the NTMP)
in March of 2008.

The NTMP itself sets forth what is referred to as the NTMP Process. That process can
be initiated by City staff, an elected City representative, or a member of the public.
However, the process involves determinations to be made by the traffic engineering staff,
the application of study criteria, the development of project scope, the identification of
funding and, ultimately, a public discussion.

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The NTMP also includes a section entitled NTMP Implementation that sets forth the
criteria for the installation of traffic calming devices.

The NTMP (including its process and implementation components) envisions a public
process with outcomes based on standardized engineering criteria.

The City was approached by representatives of Cathedral High School about the
installation of some traffic calming devices on Stanton Street near the school. Frank
Rimkus, a retired Cathedral teacher and alumnus, reached out to the City at the behest of
Cathedral Principal Aurora Lujan.

City staff considered flashing lights to be the preferred solution for addressing speeding at
schools located on arterial streets, and the Citys Streets and Maintenance Department
prepared an estimated cost for the installation of flashing lights; the costs for the flashing
lights would have been borne by the school.

In order to mitigate the cost to the school, the installation of speed humps or cushions was
proposed as an alternative.

The City had speed cushions in its inventory which had been purchased with NTMP funds.
However, according to the terms of the NTMP, Stanton Street did not meet the criteria for
installation of speed humps or speed cushions.

Although NTMP inventory was used to install speed cushions on Stanton Street, neither
the applicable process nor the applicable criteria were utilized.

Ted Marquez of the Streets and Maintenance Department wrote a memorandum explaining
why the speed cushions were not intended to be installed on an arterial street like Stanton.
Both Fred Lopez and Irene Ramirez have claimed that they relayed Mr. Marquezs
concerns to the City Manager, who nevertheless instructed staff to proceed with the
installation of speed cushions from the NTMP inventory.

After public scrutiny of the use of NTMP funds for the installation of the speed humps, the
expenditure was reallocated to the general fund.

Evidence tending to negate guilt or mitigate seriousness:

Mr. Gonzalez asserts that he was unaware of the applicable NTMP criteria.

Mr. Gonzalez claims that he was not involved in the details of the Stanton Street project
and was unaware of the funding situation.
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Mr. Gonzalez denies being made aware of Ted Marquezs concern prior to the installation
of the speed cushions on Stanton Street.

Feel free to contact me with any questions.

Ross Fischer
Special Counsel
City of El Paso Ethics Commission
rf@gobergroup.com
phone (512) 354-1786
fax: (877) 437-5755
cc:

Members of the El Paso Ethics Review Commission

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