Three City Council representatives asked for a special City Council meeting on Monday so they could criticize three colleagues for issuing a press release supporting County Judge Ricardo Samaniego’s order to close many businesses because of El Paso’s COVID-19 crisis.

The criticism was the latest display of council infighting as El Paso suffers its greatest public health crisis in at least a century.  The City Council spent almost two hours in the meeting and took no action.

City Reps. Cissy Lizarraga, Isabel Salcido and Claudia Rodriguez asked Mayor Dee Margo to call for a special meeting to discuss “the process of communicating to the public regarding personal opinion as outlined in the City of El Paso Code of Conduct; and discussion regarding communication from the city to the public as outlined in the Code of Conduct.”

At the meeting, Lizarraga criticized an Oct. 30 news release by city Reps. Peter Svarzbein, Alexsandra Annello and Cassandra Hernandez. That release criticized Margo for not supporting Samaniego’s Oct. 28 order and said the mayor should “step aside so that our local leaders can come forward to ensure that safety, health, and welfare is prioritized over partisan politics and re-election campaigns.”

Margo finished second in the Nov. 3 mayoral race and will face former Mayor Oscar Leeser in a Dec. 12 runoff.

Lizarraga, who took the lead in addressing council for the item, said she had concerns as to whether Svarzbein should remain as mayor pro tempore — a largely ceremonial post chosen by a vote of council members — based on his comments in the news release.

“As the person who would stand in and make decisions on possible litigation that would include the county in the event the mayor is absent or incapacitated, how can the council have confidence that his primary allegiance and loyalty would be to the city of El Paso?” Lizarraga said. 

The city is not a party to the lawsuit challenging Samaniego’s order, so neither the mayor nor mayor pro tempore could take any action on the suit. 

District Judge Bill Moody upheld Samaniego’s order on Friday and El Paso police began enforcing it that day. The group of restaurant owners who challenged the order, supported by the Texas Attorney General’s Office, have appealed Moody’s ruling to the El Paso-based 8th Court of Appeals. City Attorney Karla Nieman gave City Council an update on the litigation during the meeting.

Lizarraga called for a vote of no confidence on Svarzbein’s role as mayor pro tempore. The city clerk said the motion was improper because the agenda item called only for discussion, not action.

Svarzbein said it is the responsibility of elected officials to respond to the concerns of the community.

“At a time where our community has jumped from four mobile morgues to 10 in less than a week, we have much, much more important things to talk about than press releases to the public,” Svarzbein said. “My actions and the actions of my colleagues have been for one thing — for us to keep people safe and to pursue keeping our community safe during this public health emergency.”

Hernandez said she was “disappointed” by the criticism by her colleagues and said the City Council should “focus on the issues.” Annello didn’t comment on the criticism during the special session.

Rodriguez said the agenda item was not designed to silence anyone.

“We are simply trying to give the message that we act as a body and it does a disservice to this body when members of this council try to go rogue and spread information that is not what this council decided upon,” Rodriguez said. “Unfortunately this body has been hijacked one too many times to stay silent on it.”

Alison Westermann spoke during public comment in support of Svarzbein.

“The items added to the agenda today questioning his loyalty to the city are a distraction and are not really worth spending the time on today. I want to offer my thanks to Rep. Svarzbein for his commitment to our district and to the constituents of his district. I believe he has been exceptional at upholding the Code of Conduct,” she said.

Free speech vs. Code of Conduct

Lizarraga, Salcido and Rodriguez requested the special meeting — which Margo granted — to discuss whether Svarzbein, Annello and Hernandez violated the city’s Code of Conduct by issuing a press release criticizing the mayor. Lizarraga was irked that Svarzbein signed the press release as mayor pro tempore, rather than as District 1 city representative.

The Code of Conduct, adopted last June, states: “The Mayor is the designated representative of the Council to present and speak on the official City position. If an individual Council member is contacted by the media, the Council member should be clear about whether their comments represent the official City position or a personal viewpoint.”

Senior Deputy City Manager Cary Westin said city representatives can express their opinions, but using the city’s seal may have given the impression that they were speaking on behalf of the city. 

The Oct. 30 statement in question was a press release sent to local media. Media who reported on the release made clear it represented the opinion of three council members.

A leading attorney on First Amendment and government transparency laws said individual council members are free to express their viewpoints, but he’s seeing increasing efforts by governmental bodies to suppress dissent.

“I have seen more frequent efforts by the majority of governmental bodies to basically suppress the minority board members to keep them from airing their own views,” said Joseph Larsen, of the Houston law firm Gregor Wynne Arney.

Larsen said the city can place some restrictions on what its employees can say, but elected officials are not employees and they have a First Amendment right to express personal views.

“It’s kind of an assault on dissent and dissent is extremely important. …  The (Texas) Open Meetings Act is set up so that council members can express their dissent,” he said. “These people are not talking about a football game. We are talking about core political speech. They each have a First Amendment right —  they are not employees.”

Svarzbein, Annello and Hernandez have been the most vocal City Council critics of the city government’s response to the pandemic, sometimes joined by city Rep. Henry Rivera. Lizarraga, Salcido, Rodriguez and city Rep. Sam Morgan have supported Margo’s approach, with the mayor often casting the tie-breaking vote on COVID-19 issues.