It’s over.

A year-long investigation into whether former El Paso Mayor Oscar Leeser and four City Council members violated the Texas Open Meeting Act ended Thursday afternoon with a written statement from El Paso County District Attorney Jaime Esparza.

“After an extensive review of the alleged Open Meeting violations by some members of City Council and the El Paso County Historical Commission, the District Attorney’s Office is today declining to prosecute these cases due to insufficient evidence of criminal intent,” the statement read.

“The investigation revealed that former Mayor Lesser, former Council Members Limón, Tolbert and Niland and current Representative Svarzbein, as well as the members of the El Paso County Historical Commission, lacked the specific intent to circumvent the Open Meetings Act.”

Esparza said he will recommend additional training for the City and County of El Paso.

Dr. Richard Pineda, director of the Sam Donaldson Center for Communication at the University of Texas at El Paso and local political analyst, said he was surprised to hear Esparza’s decision not to pursue the misdemeanor charge. He believes that although the majority of the elected officials are no longer in office, they should have been held accountable.

“When it comes to how we evaluate what elected officials do, that we should hold them to a much higher standard,” Pineda said. “I think in this particular case, where there was full acknowledgement of the rules, or the violation thereof, the idea that you would take issues of significance to a larger voting pool, and try to make those decisions amongst a handful of people, behind closed doors, regardless of the intent, suggests a lack of transparency and I think more so than ever, we have to hold elected officials to a standard that says those kinds of violations are not allowed.”

Leeser, along with former Council Members Lily Limón, Jim Tolbert, Cortney Niland and current District 8 Representative, Peter Svarzbein, came under a Texas Rangers investigation in January 2017. The heart of the investigation centered on a December 16, 2016 meeting at City Hall, which Leeser always maintained was not what it appeared.

Leeser, who was out of town Thursday, released a statement to KTSM. “I have been certain from the beginning that there was no wrongdoing,” he wrote. “I always felt as Mayor of the city it was my duty and responsibility to listen to all the citizens, not just a selected few. It was a shame that the media rushed to judgment on this.”

Current City Council Member Peter Svarzbein, the only one of the accused to still hold his elected seat, told KTSM “…for me, it was just letting the process run its course.”  He said now he will continue to “focus on solutions and opportunities for this community and my District.”

Former District 2 Representative Jim Tolbert told KTSM Thursday that the Texas Rangers’ investigation cost him his re-election.

“At no time did we collude nor was there any intention to break the law, nor did we,” Tolbert said. “The main thing I guess for me was that I was looking for some way to help the people in Duranguito.”

An open records request by KTSM to the City of El Paso turned up incomplete text messages from Tolbert, while Niland and Svarzbein did not provide emails and text messages. Investigators confirmed to KTSM that they too were not given a full record of electronic communications that they say could have strengthened the case that the group met with the purpose of avoiding public input to discuss the $180-million Downtown El Paso multipurpose arena plan. According to Esparza, Leeser did not provide emails to investigators because he did not use email communication while in office. Without that information, Esparza said, his office was hard-pressed to prove intent. Though willfully withholding emails and texts is a prosecutable offense, Esparza said, he won’t pursue it because the majority of the elected officials are already out of office.

What investigators had to consider

Surveillance video obtained by KTSM through the Freedom of Information Act (FOIA) showed some council members meeting on December 16 in the mayor’s office with members of the Paso del Sur (PDS) and the County Historical Commission (CHC), groups opposed to the building of the City’s proposed Downtown multipurpose arena in the Union Plaza neighborhood (called “Duranguito” by opponents).

Investigators spent hours going over the City Hall tape as well as video recorded by an El Paso Times crew at the nearby Hotel Indigo where Limón, Tolbert, and Svarzbein met before the City Hall meeting with then-members of the CHC, Bernie Sargent and Dr. Max Grossman. Three members of PDS, Dr. David Romo, Dr. Yolanda Leyva and Gilbert Guillen, were also present.

Investigators considered several issues before deciding whether to move forward with the case: whether the meetings were purposely called to discuss public policy or take a formal action without public input; whether the elected officials deliberated their votes behind closed doors; and, who might have aided in organizing a closed meeting.

Niland organized the Hotel Indigo meeting as well as the meeting at City Hall, according to the Rangers’ interviews of the mayor and some members of council. KTSM archives show a recall petition against Niland was filed the day before the controversial meetings as a result of her support of the City’s Union Plaza development plan which was in her district.

The Hotel Indigo meeting ended about an hour after it started and the group headed to City Hall. According to investigators, the mayor said Niland asked for the meeting at City Hall to discuss the recall and to meet with constituents. Leeser, Esparza said, stated he was unaware of the earlier meeting at the Hotel. A text message between Limón and Tolbert appeared to support that.

Limón texted Tolbert, “Spoke to mayor. No mention of canceling meeting. Wants to talk to me at 10. See you at 8:55.” Tolbert responded, “As long as we are on for 9. The mayor’s meeting will be moot.” Limón responded, “True. Mission will be accomplished.”

Though she organized the two meetings, Esparza said, Niland did not attend the meeting at the Hotel Indigo. Instead, she attended a Metropolitan Planning Organization meeting with the Mayor.

The surveillance video

The December 16 video began with Limón, Tolbert and Svarzbein walking through the front doors of City Hall, which was closed that Friday. Following them inside were the other attendees of the earlier meeting at the Hotel.

The video showed a security guard opening the door to City Hall, as well as the group entering the Mayor’s office. Tolbert left almost immediately. Twenty minutes later, Leeser and Niland arrived and walked into Leeser’s office and beyond the view of the hallway surveillance camera. Svarzbein was seen on video leaving the office moments after the Mayor’s arrival. Interviews by Rangers revealed that Svarzbein was told to leave because he was sitting in the Mayor’s seat with his feet on the Mayor’s conference table.

The text messages

A text message between Tolbert and Leeser’s phones appeared to show the group was aware of the potential implications of meeting.

“I have been involved in this whole thing longer than most of the people you invited,” Tolbert texted Leeser. “Yet I cannot be at your meeting because of a quorum. At least give me the courtesy of a call afterwards.” The response: “If you want to come and be a part of the meeting, I will step out. I just didn’t want to have any questions regarding quorum.”

TEXT MESSAGES SURROUNDING ETHICS COMPLAINT

Time stamp comparisons of the video with the text message led investigators to believe that’s when Tolbert was seen on video going back to the Mayor’s office. Esparza said Leeser explained that the text response, an alleged “smoking gun,” was not him, but instead, his administrative assistant, Taylor Moreno, answering on his behalf.

The District Attorney said the video showing the entering and exiting of Council Members was concerning. And what of the Hotel meeting? Had Council purposely engaged in a “rolling quorum” meant to give the impression they were abiding by the law though engaging in an ongoing policy conversation? Esparza said though all five Council Members attended parts of the meetings, it appeared that no more than four were ever present at the same time. And that, he said, may have saved the group from possible prosecution.

“I’m thankful a thorough investigation has been completed and am not surprised that no charges will be filed,” Lily Limón told KTSM in a written statement. “I always acted in what I felt was the very best interest of District 7 and the City of El Paso.”

The fallout

On December 20, four days following the City Hall meeting, Limón, Tolbert, and Niland voted to reject their previous votes in support of the City’s Duranguito location and, along with Svarzbein, voted instead for the City to consider building the multipurpose arena at the current site of the Judson F. Williams Convention Center.

Investigators reviewed video of the council meeting when the vote changed. Dr. Yolanda Leyva testified in public comment that she had been a part of the Duranguito meeting at City Hall. “You said that we need to stop this process, that you were ready to look for a new location,” she said.

Investigators looked into whether any promises by elected officials were made. In the end, Esparza said, none could be proven.

The change in votes, the surveillance video and the text messages prompted weeks of public outcry. Members of the El Paso Chamber of Commerce lobbied Council publicly to reconsider the expense of the move and the “will of the voters” who had approved the arena as part of a bond project in 2012. El Paso County Commissioner Vince Perez wrote an open letter to Esparza asking for an independent investigation into the meeting.

Esparza found himself in the middle of the controversy when KTSM and other news outlets reported that he had been appointed to the Mexican American Cultural Center Subcommittee by then-Rep. Limón in March of 2015. The subcommittee served as the fundraising arm of the Mexican American Cultural Institute or MACI which was previously chosen by council to be placed adjacent to the Convention Center. Esparza would resign from the subcommittee in January 2017.

After hearing feedback, both for and against the Duranguito location, as well as the announcement of a Rangers investigation, council again changed its vote in February 2017, voting not to look into other possible locations and effectively placing the city’s arena plan back in its original spot – Union Plaza.

The move placed Council out of favor with the Paso del Sur and multiple lawsuits ensued. Opponents filed a lawsuit arguing the wording on the 2012 bond was misleading, allowing the City to use the arena as a “sports center” rather than “entertainment facility.” In August 2017, an Austin judge ruled that the City of El Paso could move forward with its arena plan so long as the facility was not used for sports. The City is appealing that ruling.

Private property owners in the arena footprint found themselves stuck in legal limbo in a different lawsuit. Dr. Max Grossman, who attended the December 16 meeting, received a temporary restraining order that currently prevents the City from purchasing property, finalizing contracts, or issuing demolition permits in the proposed arena site. The order was requested after property owners, whose contracts to sell their properties to the City required demolition prior to the close of sale, began to tear down their buildings on September 12. Preservationists arrived and within hours, El Paso Police wearing protective gear, were pushing back the crowd. No one was hurt or arrested. Since then, pro-Duranguito supporters have remained on a 24-hour vigil to stand watch in the neighborhood.

Dr. Pineda said all but Svarzbein, who was not up for re-election in 2017, were touched by their association with the Duranguito meeting. “If you go back to the elections, it was a sub-story in almost all the races,” he said. Duranguito cost Limón and Tolbert their offices in May 2017, Pineda said, and Niland, once considered a possible mayoral candidate, resigned from her position mid-term in April 2017, citing family issues.

But it was Leeser, who had announced plans for a congressional run to replace U.S. Rep. Beto O’Rourke prior to the discovery of the December 16 meeting, who Pineda said quietly left public office when he chose not to run for a second mayoral term. “He was in the best position to move to the next higher office,” Pineda said. Pineda believes even without the District Attorney pursuing a charge against them, the Mayor and Council will have a hard time shaking an association with the Duranguito meetings in the future.

“I think that parties can walk away feeling vindicated or feel like their decisions were not in question. (But) I think at this point, for each of these figures, even if they choose not to become involved in public policy or an elected office any time in the near future, I think this is always going to be a question,” Pineda said. “I think optics always matter and in a case like this, the significance is in fact that this is something that people will be able to point back to.”

The County Historical Commission

The District Attorney also Thursday announced he will not pursue prosecution against two volunteer members of the County Historical Commission (CHC) for an alleged Open Meeting violation.

In a written statement, Esparza said he would not pursue the misdemeanor charge against former CHC Chairman Bernie Sargent and Vice Chairman Max Grossman because the case “lacked a specific intent to circumvent” the Act.

Esparza said he would recommend training on the Texas Open Meetings Act (TOMA) to the County of El Paso, training the County began in March 2017 following the announcement of a Texas Rangers investigation.

Sargent told KTSM through a written statement, in part: “… it has been our contention since this was begun that we were not properly trained.”

Sargent and Grossman were not re-appointed to the CHC in February 2017. The commission fell under investigation over alleged violations of the Texas Open Meetings Act when its membership, including Sargent and Grossman, voted via email to oppose the city’s Downtown arena plan in the Union Plaza neighborhood (called “Duranguito” by opponents).

“I’m glad this is behind all of us, current and past City Council Members, former Mayor Leeser and Mr. Grossman. As a volunteer with a passion for El Paso’s heritage and culture, I and others won’t have this hanging over us.”