Mayor John Cook wants the City Council to reject a referendum that would stop the demolition of City Hall because the city's attorneys have said such ballot measures are illegal.

If they are illegal, Cook said he may charge the city more than $500,000 in legal fees he incurred in fighting a recall drive that resulted from a ballot measure over health benefits for gay and unmarried partners of city employees.

The council gave initial approval to the ballot measure about City Hall earlier this month, and a final vote to put it on the May ballot is scheduled for Tuesday.

Petitions with measures going to voters have become more frequent since a November 2010 ballot measure ending health benefits for gay and unmarried partners of city employees.

Marty Schladen

Cook and his lawyer, Mark Walker, argue that the City Charter never contemplated such ballot measures. They would allow five percent of the electorate to paralyze city government by calling time-consuming, expensive elections any time residents disagreed with an act of council, Cook and Walker said.

Cook said the 2010 measure should never have been on the ballot in the first place. The mayor said that because of then-City Attorney Charlie McNabb's legal advice, he might be forced to bill the city for the $535,000 in legal fees in fighting a recall attempt.

Cook also said the City Council needs to clarify what powers it and the public have under the City Charter and stop futile ballot measures that waste advocates' time and cripple the city government.


"To me, the law is very clear," said Cook, who leaves office in a few months.

But city Rep. Susie Byrd, an advocate of the ballpark project who also was the focus of the recall, said she believes citizens should have the right to put referenda on the ballot.

"Although I don't always agree with the petitions, I support citizens' right to bring their objections to council or put something on the ballot," she said. "I think it's a good thing when citizens are involved in the legislative process."

An Austin judge declined to address the matter last week when he ruled from the bench that the city could go ahead with the demolition of City Hall as part of a project to build a Triple-A minor league baseball stadium despite two petitions to put the matter on the May ballot.

Opponents of the project are angry that it was never put to a vote.

Attorneys representing the city filed papers with the Austin court arguing that it did go to voters.

All that was on the November 2012 ballot was whether to fund part of the stadium project with hotel taxes and whether to designate the plan as a "venue project." The city council committed itself to the $50 million project in June -- just days after it was publicly announced.

A member of the city's legal team, Dallas attorney Norlynn Price, did not respond last week to questions about the claim that the stadium project went to El Paso voters.

She and her team also argued that the City Charter doesn't allow for ballot measures to overturn ordinances passed by the City Council.

"Principals of statutory interpretation compel the conclusion that the city charter affords no right to place the proposed matters on the ballot, let alone delay (stadium construction) while the referendum process continues," they wrote.

The council will vote Tuesday on whether to put one such measure, filed by Salvador Gomez, on the ballot, while it has rejected a petition for another, filed by David Ochoa.

Under the City Charter, citizens can petition the council to place an initiative on the ballot by gathering signatures of a number of registered voters equal to at least five percent of the number who voted in the last city election. If the council rejects the petition, gathering a second such petition would require the council to put the measure on the ballot anyway.

The city's lawyers now make a critical distinction between "initiative" and "referendum," which the charter says can only be used to rule on collective-bargaining agreements between the city and its employees.

Black's Law Dictionary "defines 'referendum' as 'the process of referring a state legislative act, a state constitutional amendment, or an important public issue to the people for a final vote,'" the legal team representing the city in the ballpark litigation wrote in a brief it filed with the Austin court. "Initiative, on the other hand, allows the proposal of new law not already passed by the legislature."

In other words, a vote to undo the council's decisions concerning the ballpark and destruction of City Hall would be a referendum, which is not allowed under the charter.

City Attorney Sylvia Borunda Firth said petitions to reverse votes by the council can slow down city business.

She said the purpose of a representative democracy is that citizens express their viewpoints by choosing elected officials who make legislation.

"Really, these petitions should be few and far between; they shouldn't be so frequent," she said. "It makes it difficult if every time we have legislation that someone doesn't like, we have to go through all these petitions and legal actions. That's what (City Council) elections are for."

Stephanie Townsend Allala, an El Paso attorney who has helped lead the effort to stop the demolition of City Hall, could not be reached for comment.

Just verifying that signatures on petitions belong to registered voters is a time-consuming process, said Municipal Clerk Richarda Momsen.

How much time can vary dramatically depending on the quality of the petition, Momsen said.

"The number of hours and amount of work really depends on how good the petition is. But it's a pretty intensive process that takes up a good amount of time."

The clerk's office spent about 180 hours authenticating Ochoa's petition to save City Hall.

By comparison, Momsen said it took her staff nearly 700 hours to verify recall petitions for Cook, Byrd and city Rep. Steve Ortega.

Gomez, the sponsor of one of the City Hall petitions, sponsored one of the recall petitions as well.

He and other organizers attempted to recall the elected officials because they voted to restore health benefits to gay and unmarried partners of city employees after the November 2010 referendum ended them. Cook, Byrd and Ortega "stole our votes" was the rallying cry.

Cook racked up more than a half-million dollars in legal bills arguing that the recall effort was undertaken illegally. The Eight Court of Appeals emphatically agreed last year, and the Texas Supreme Court this year declined to take up the case.

The mayor is considering whether to bill the city for his expenses because he now believes the 2010 referendum should never have taken place.

"We got bad legal advice," Cook said.

Walker, Cook's attorney, said he wasn't sure when the legality of referenda would again be considered by a court.

Firth said Tim Sulak, the Austin judge who last week ruled that City Hall can be demolished, might take up the matter in his written order.

"Hopefully, the final judgment will give us some clarity on this issue."

Marty Schladen may be reached at; 546-6127.

Evan Mohl can be reached at;546-6381.