The complaint is validly stated, and sufficient evidence of a violation exists to warrant investigation of the complaint.
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Alleged violations
Failure to comply with the spirit and intent of the Public Information Act by destroying public records.
Giving the appearance of a conflict of interests by using official status to endorse a political candidate.
Giving preferential treatment to a private individual by using official status to endorse a political candidate.
Failure to ensure accuracy and reliability of records and City’s ability to comply with the law.
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What’s undisputed…
The mayor’s Facebook account was converted to one reflecting his official capacity and posted about City-related business.
The mayor endorsed a political candidate via his official Facebook account.
The mayor was told by the City Attorney and City Manager that his social media posts must be preserved.
The mayor immediately deleted the posts (or had them deleted) despite being advised of the law.
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Legal Definitions
“Public information” means information written or produced by an individual officer of a governmental body in his official capacity and pertaining to governmental business. (Gov’t Code 552.002)
“Local government record” means any document, including in an electronic medium, created or received by a local government or any of its officers in the transaction of public business. (Local Gov’t Code 201.003)
“Governmental record” means anything required by law to be kept by others for information of government. (Penal Code 37.01)
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Legal obligations
Public Information Act
A current officer of a governmental body who maintains public information on a private devices shall preserve the public information in its original form or forward it to the governmental body for preservation. (Gov’t Code 552.004)
Penal Code
A person commits an offense if he intentionally destroys, conceals, removes or otherwise impairs the verity, legibility, or availability of a governmental record. (Penal Code 37.10)
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Important points
City resources need not be utilized; it is sufficient that the information was created by a city official in his official capacity and relate to city business.
The mayor acted willfully and intentionally because he had been advised of his obligation to preserve information.
The “custodian loophole” central to Adkisson v. Paxton has been closed by the legislature. Each official is responsible for preserving or transferring public information to the city.
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Need for formal hearing
A formal hearing provides an opportunity for further investigation into important matters, including:
Who decided to convert the Facebook page from a “campaign” page to a “mayoral” page?
Who actually changed the page back to a “campaign” page?
Who actually deleted the posts on July 15th?
Can the deleted posts be recovered by the Mayor for review by the Ethics Commission or preservation by the City?