Georgetown City Attorney Appears Incompetent

[Editor’s note. This story is reproduced under a Creative Commons license granted by its author, Ken Martin, of The Austin Bulldog. The story here is stripped of its original formatting, graphics, and links to its many sources – and the source materials are especially useful. Original links are NOT indicated here – and there are many. PLEASE click through and read the story at source here: Georgetown City Attorney’s Competence Called Into Question


First published Tuesday, June 15, 2010

Georgetown City Attorney’s Competence Called Into Question

His Contract Never Legally Executed,
His Support Nearly Nonexistent

Investigative Report by Ken Martin

The municipal legal career of Mark Sokolow has seen its ups and downs:

Up: In 1991, Sokolow was hired by the City of League City, Texas.
Down: In February 1996 he was fired as city attorney of League City; he returned the favor by suing the city.
Up: Despite getting canned by League City, he was hired the very next month as city attorney for the City of Port Arthur; a council member in Port Arthur when Sokolow was hired said the council wasn’t aware of what had happened in League City.
Down: Sokolow’s lawsuit against League City was so flimsy it was dismissed without getting a trial.
Up: When Sokolow resigned last October to take the job of Georgetown’s city attorney, the Port Arthur city council handed him a hefty bonus.
Up: Sokolow was hired by the City of Georgetown and started work last October 19 for $125,000 a year.
Down: He is working for the City of Georgetown under a contract that was never legally executed.
Down: The Austin Bulldog reported on May 4 how Sokolow facilitated the illegal payment of $13,600 for Georgetown Council Member Pat Berryman last December.
Down: He screwed up a deal to buy property for city facilities, hacked off the school district and embarrassed the city he represents.
Up: After six months on the job the city council evaluated his performance and gave him a $5,000 raise.
Down: He has alienated numerous colleagues. Examples abound, as detailed below.
Down: City staff is rooting for his ouster, though they fear being fired if they speak up.
The defense rests: Sokolow declined to be interviewed for this story.

Hardball tactics blow up in his face
The city wanted to acquire land where it could build a new fire station, police station and storage yard. The most critical element was the new fire station, which was needed to meet response times on fire alarms on the west side of I-35.

The negotiation process for the targeted site had been underway for almost a year when Sokolow got involved. It had taken that long because of the necessity to coordinate the location of the city’s new fire station with an Emergency Services District, which provides fire protection outside the city limits. Settling the terms of a purchase agreement for the city’s tract was to be the final step in closing the deal.

Sokolow entered the negotiations around the end of last year, after he had been on the job for about 12 weeks. In an effort to push down the quoted price, in mid-January 2010, Sokolow filed an open records request with the Georgetown Independent School District (GISD) to get information about property the district had purchased for a new elementary school. He wanted documents that might be useful in making his case for paying the same dollar-a-square-foot that GISD paid for its tract. If successful, Sokolow’s efforts might have saved the city taxpayers more than a million dollars.

GISD had purchased 14.6 acres of property in a 550-acre master planned development called Georgetown Village, located west of I-35. The GISD tract, with frontage on Bellaire immediately east of the intersection of Shell Road, will serve as the site of a new elementary school. The seller was Wilson Family Communities Inc.

The Austin Bulldog obtained records of Sokolow’s e-mail communications with representatives of GISD through an open records request filed under the Texas Public Information Act.

Those e-mails show that the City of Georgetown was interested in buying a tract of 10.2 acres on the northeast corner of Shell Road and Bellaire as a site for new fire station, police station and storage yard. That tract is adjacent to the GISD tract.

Clark Wilson, the developer of Georgetown Village, considered the elementary school, located within an area of Georgetown Village designated for residential use, to be a big attraction for people to buy the homes he planned to build. So GISD got its land, relatively cheap at a dollar per square foot.

The City of Georgetown’s targeted site, although adjacent to the GISD property, was quoted a much higher price per square foot, because the site was a prime corner tract in the heart of the project area designated for future commercial development. Commercial tracts typically command a higher price, and an appraisal of the property, ordered by the city as a part of the negotiation process, supported the seller’s asking price of $3.50 per square foot.

Initially, GISD was willing to cooperate and was ready to provide the documents Sokolow had requested. Somewhere along the way, however, Sokolow decided that two acres of land would suffice—not the original 10.2 acres—as that would be enough to build the critical new fire station. The police station and storage yard could wait.

In an effort to pinpoint the essential two acres within GISD’s tract, he asked for GISD’s site plan. He massively misjudged the situation when he suggested that he could condemn two acres of GISD’s 14.6 acres for the city’s fire station. At that point, GISD’s cooperation abruptly ended. GISD refused to provide the documents Sokolow had requested.

Members of the school board then communicated with the mayor, city council members and city staff—all of whom were apparently unaware that Sokolow had filed an open records request with GISD.

When asked about this matter after the city council meeting of April 27, Georgetown Mayor George Garver told The Austin Bulldog that upon being contacted by members of the school board, City Manager Paul Brandenburg stepped in and informed Sokolow that he needed to play nice with GISD. The result was that Sokolow’s open records request was withdrawn.

“They are very important to our city and our potential,” Garver said of GISD, “and we are not about the business of trying to create a hardship for them as they try to negotiate school sites.”

By the time the city regrouped and was ready to return to the negotiating table for the property in Georgetown Village, developer Clark Wilson was no longer willing to sell to the city. The city decided not to condemn the land, and had to start looking for a new site.

Fourteen months of work that had gone into efforts to acquire the land in Georgetown Village was wasted—all because of Sokolow’s heavy-handed tactics.

Sokolow’s objective was worthy. He tried to play hardball and get the best possible deal for the city. Instead the game was called on account of bad sportsmanship. This wasn’t playing hardball, this was clobbering the city’s civic teammate with a bat. He gambled and lost.

Sokolow embarrassed himself. He embarrassed the mayor, a former school superintendent in his own right, and he embarrassed the city he represents.

Port Arthur’s good-bye kiss
Sokolow served as city attorney of Port Arthur, Texas, for 13 years before being hired to be Georgetown’s in-house attorney. When he tendered his resignation to Port Arthur, he cut a sweet deal that netted him more than $17,000 he would otherwise not have been entitled to, according to Port Arthur’s existing city policy.

The City of Port Arthur’s Personnel Policy Manual governs payments for accrued sick leave upon an employee’s termination. That policy would have capped Sokolow’s reimbursement for unused sick leave at 480 hours.

Sokolow had accumulated 768 hours of sick leave.

Sokolow drafted, and the Port Arthur City Council approved on a vote of 6-2, a waiver of Sokolow’s sick-leave cap. As a result, Sokolow was paid $46,452 for his 768 hours of sick leave, instead of the $29,033 he would have been paid if capped at 480 hours.

The waiver gave Sokolow a bonus of $17,419. These numbers are clearly explained in a memorandum prepared by the City of Port Arthur’s director of human resources on October 23, 2009.

What did the City of Port Arthur get in return?

Ordinance No. 09-73, Section 4, states: “That Mark Sokolow has agreed to assist in the transition after October 16, and that he will timely respond to requests for information and assistance in the transition months, with a transition period expected to continue to January, 2010.”

In other words, Sokolow was tasked with, according to the ordinance, making himself available for 11 weeks in return for $17,419 in additional compensation—and he would do so while he was serving as the new full-time city attorney of Georgetown, a job he began on October 19.

“He’s double-dipping,” Port Arthur City Council Member John Beard Jr. said of Sokolow’s arrangement, in a May 21 interview with The Austin Bulldog. “How can he do our work and (Georgetown’s) too?”

And who was Port Arthur’s new acting city attorney that required this costly hand-holding by Sokolow? Valencia “Val” Tizeno, who had been the assistant city attorney of Port Arthur for more than five years.

“You got Sokolow,” Beard says. “Your loss is our gain, because we don’t have to worry about him any more.”

The Austin Bulldog filed open records requests to obtain e-mail and telephone records to show how much communication went on between Sokolow and Tizeno. Neither the City of Georgetown nor the City of Port Arthur has responded to those requests yet.

League City fired Sokolow
According to court records of a federal lawsuit, Mark Sokolow vs. City of League City, Sokolow served as city attorney for the City of League City, Galveston County, Texas, from April 1991 until February 6, 1996.

Following an executive session on the latter date, the city council voted 4-2 to terminate Sokolow’s employment for breaching his duty of loyalty and confidentiality to his client and exposing the city to legal liability.

Sokolow retaliated by filing the federal lawsuit against the city. His lawsuit alleged that: (1) he was unlawfully discriminated against because he is Jewish; (2) that he should be compensated for services allegedly rendered after his termination; (3) that he was unlawfully terminated because of two instances of opposition to racist remarks allegedly uttered by city employees; and (4) that the city council took action to terminate him without providing the proper notice required by the Texas Open Meetings Act.

The defendant City of League City filed a motion for summary judgment, in effect asking the court to decide the case on the basis of statements and evidence presented for the record without a trial. In response, Sokolow abandoned the first two claims in his lawsuit.

As to the two remaining claims, the court found no causal link between Sokolow’s actions regarding the racially offensive comments and his termination. The court found the city had not disagreed with the concept of Sokolow addressing the offensive comments, but did find fault with how Sokolow went about it. He wrote a memorandum, and failed to mark the document as a confidential privileged attorney-client communication. Without that label providing legal protection for the memorandum, it was subsequently discovered in the course of a pending lawsuit and used as evidence.

“As the city attorney, (Sokolow) had a duty of loyalty and confidentiality to his client, the City. City administrators perceived that he had breached that duty by unnecessarily exposing the city to legal liability,” the court record states.

Sokolow’s lawsuit also alleged a violation of the Texas Open Meetings Act, in regard to how the executive session item on the February 6, 1996, council agenda was worded. The court found, however, “The city council’s notice indicated that the city attorney’s job would be a topic of discussion and that action might be taken. As a matter of law, this is sufficient notice of the various consequences, including termination….”

On March 4, 1999, the U.S. District Court for the Southern District of Texas, Galveston Division, found Sokolow’s allegations groundless and granted the city’s motion for summary judgment, citing the standard that “Summary judgment is appropriate if there is no genuine issue as to any material fact….”

The outcome of Sokolow’s civil lawsuit does not demonstrate great competence in civil trial law—something Sokolow claims to have been board certified in since 1987, according to the résumé he submitted to the City of Georgetown, as part of his application for employment.

How did Sokolow get hired by the City of Port Arthur the very next month after he was fired by the City of League City?

Willie Lewis, who served as a Port Arthur city council member for 21 years, was on the city council at the time Sokolow was hired as Port Arthur’s city attorney in March 1996.

“We definitely did not know he had been fired by League City,” Lewis said of Sokolow’s hiring by Port Arthur. Lewis said it was only after Sokolow was hired as Port Arthur’s city attorney that the city council learned he had been fired and had filed the federal lawsuit.

In Georgetown, things were different.

The city council members were indeed informed that Sokolow was terminated by League City. And the Georgetown city council members were informed of Sokolow’s subsequent lawsuit before his final interview. For whatever reason, the majority of council members chose to overlook his checkered past and hire him anyway.

Who on the Georgetown City Council voted to hire him?

Actually, the city council never did vote in a properly posted open meeting. So who wanted to hire Sokolow, and who did not, is not a matter of public record.

Sokolow’ hiring was accomplished in violation of the Texas Open Meetings Act, and he is currently working under a contract that was never legally executed.

Sokolow alienates colleagues
In several instances discovered in the course of this investigation, Sokolow’s tactics have resulted in a breakdown in working relationships that’s been frustrating for people who had previously operated without the kind of iron-grip supervision and dominating control that Sokolow demands.

Sokolow no doubt wants to be certain that things are done right. Nevertheless, numerous people interviewed for this story view his interventions like a monkey wrench thrown into a heretofore smooth running operation. This is especially true given the fact that the city outsourced the duties of the city attorney before Sokolow was hired. The responsibility for a lot of what he insists on deciding these days was spread widely throughout the various departments.

Example 1: The City of Georgetown is responsible for securing right of way for roads that are to be built within the city limits; sometimes the city also secures right of way within the extraterritorial jurisdiction beyond the city limits for property to be annexed later, says Assistant City Manager Jim Briggs.

At present the City of Georgetown needs to secure right of way for the Southeast Loop roadway that will, when built, connect I-35 to State Highway 29 at County Road 104, east of the SH 130 toll road. To that end, the city initiated the condemnation process to secure the necessary land.

As it happens, the path of the Southeast Loop roadway crosses over two existing major water lines owned by the Jonah Water Special Utility District. These water lines, which have been in operation for decades, together serve an estimated 700 to 1,000 customers located over a large, mostly rural area, says Bill Brown, general manager of Jonah Water.

Typically, in securing right of way through condemnation the governmental agency acquiring right of way would be responsible for the cost of moving utilities that may be affected by the intended construction project.

In the case of the Southeast Loop, Jonah Water needs written assurance that its water lines will be allowed to continue in operation. Basically, a statement needs to be inserted in the condemnation paperwork to indicate the City of Georgetown agrees not to impair or impede operation of these water lines and the city will repair damage, if any, that might be caused by construction of the new roadway.

Matters such as this would normally be worked out well in advance and reduced to writing before a condemnation case goes before a panel of special commissioners, who are appointed to hear evidence and determine a fair value for the property being condemned. In the case of the Southeast Loop, these matters were definitely not settled in advance. The parties came before the special commissioners on June 8 and had to immediately ask for an adjournment to work out the details.

The City of Georgetown’s hired outside attorney for the condemnation, Kent Sick of Austin, then huddled with and worked out language satisfactory to Jonah Water’s attorney, Mark Hawkins of the Austin law firm Armbrust and Brown LLP.

Sick then took the draft language to Sokolow for approval. Sokolow would not agree. He wants all encumbrances removed from the right of way. With no deal acceptable to both parties, the hearing was postponed—much to the consternation of the special commissioners and the parties involved.

Assistant City Manager Briggs conceded that it’s unusual for such straightforward issues as providing for the preservation of water lines to get hung up in a condemnation hearing, like this one did. “I don’t know if you checked the record you’d find there’s been a deferment on something as simple as this in the past.”

If the condemnation were to go forward as it now sits, without the matter of Jonah Water’s utilities being accommodated, Jonah Water’s only recourse will be to file a lawsuit in district court to appeal.

Jonah Water’s Bill Brown said he was confident the issues will be worked out before the next condemnation hearing this Friday, June 18. “They’re trying to protect their interests and we’re trying to protect ours,” he said of the city.

Even before the June 8 condemnation hearing, attorney Kent Sick had told Assistant City Manager Briggs that he was frustrated over how to deal with City Attorney Sokolow. Briggs says Sick has had a long-term, open, and productive relationship with the city.

“As management, I take that information, deal with it, and move on,” Briggs says of Sick’s complaint. “That’s what we’re doing.”

Some staff members overheard Sick’s conversation with Briggs and indicated to others that Sick had told Briggs he no longer wants to work with Sokolow. Sick declined to be interviewed about this matter.

“I’m not saying that discussion didn’t occur,” Briggs says. “But how it gets resolved and rectified, that’s what I’m working on.”

How these kinds of legal matters have to be handled under Sokolow’s regime is far different from the way things were done when Trish Carls, the outsourced city attorney, was handling these matters. Managing change, as anyone who’s had to steer an organization in a new direction would attest, is a tough task to master.

The question to be resolved is whether Sokolow, a former naval officer, is up to the challenge of turning the ship of Georgetown government in a new direction, quelling the grumbling below decks, and restoring morale.

Will it be The Caine Mutiny (the captain is removed from command and in the ensuing court martial he is found to be paranoid), or Master and Commander (the captain holds the reins tight, maintains discipline, and wins a mighty battle)?

Example 2: The City of Georgetown needs to secure right of way for the Southwest Bypass that will when built connect I-35 to SH 29 on the west side of Georgetown. The roadway would be built with proceeds from bonds approved by Williamson County voters.

The Georgetown City Council at its meeting of June 8 voted unanimously to appoint a committee consisting of City Council Member Danny Meigs, City Manager Paul Brandenburg, and Assistant City Manager Briggs to be the point of contact with the landowner, Texas Crushed Stone.

By design, as discussed at a meeting more than a month ago attended by city and county officials and lawyers, City Attorney Sokolow will not be a party to these sensitive negotiations. At least two elected officials who attended that meeting made it pointedly clear that Sokolow was not to be involved for fear he would botch it.

Bill Snead, president of Texas Crushed Stone, is widely perceived as a tough and respected negotiator. The process of procuring the necessary right of way for the Southwest Bypass needs to be fast-tracked so the project can get underway before the new ozone standards are put into place under the Clean Air Act.

Assistant City Manager Briggs said each of the men on the team approved by the city council to negotiate with Snead bring something important: “I bring years of history with Mr. Snead, Paul (Brandenburg) brings experience in economic development, and Danny Meigs represents the taxpayers in that district.”

As for who will handle the legal work to consummate the transaction, Briggs says the city council will decide that.

But some who attended the meeting of county and city officials and lawyers say the job is likely to go to the Round Rock law firm of Sheets and Crossfield PC, who have successfully negotiated with Snead on other matters on behalf of the City of Round Rock.

Example 3: Before Mark Sokolow started to work for the City of Georgetown last October, It was common practice for attorneys hired by the city to do outsourced legal work to be invited to executive sessions to brief the city council on the legal matters they were handling.

Sokolow has pretty much put an end to that procedure.

In most cases, Sokolow has wanted to be the sole point of contact with the city council on all legal matters. That saves the city some money by foregoing the billable hours that are racked up by outside experts. But some council members are clearly not comfortable with this method. They would prefer to be briefed in person by those outside attorneys and be able to ask them questions—and not hear only what Sokolow chooses to tell them.

So what does all this mean?

The upshot is that Sokolow has a growing reputation for being anywhere from difficult to impossible to deal with. Attorneys contacted for this story did not want to be quoted on the record because they don’t want to have their bread and butter taken away. After all, Sokolow decides who gets to do the legal work city staff doesn’t do. As one attorney who declined to be interviewed said of Sokolow, “He’s my boss.”

The growing reality, however, is that Sokolow wants to be at the center of every legal transaction, even to the point of controlling responses to open records requests that were always handled directly, and far more expeditiously, by department heads.

Sokolow is increasingly viewed by city staff, some members of the city council, and others who have business with the city, as clearly not being up to the task of exerting such sweeping control. Is it because he’s too new to the job? Has he been promoted to what the Peter Principle called his level of incompetence? That’s for the city council, his employer, to decide.

But one thing is clear: attorneys with years and even decades of legal experience in working with the city are chafing under Sokolow, who doesn’t know the players, the history, or the culture of Georgetown. They want the freedom to use their professional judgment to satisfy the needs of the city without undue interference—as they had always done before Sokolow came aboard.

Flawed hiring process
The minutes of the Georgetown City Council meeting of January 27, 2009, indicate the city council voted 5-2 (with Council Members Ben Oliver and Patty Eason voting no) to fire the longtime outside counsel, Patricia “Trish” Carls of the Austin law firm Carls, McDonald, and Dalrymple LLP, who functioned as the city attorney. The council voted to replace Carls with an in-house legal staff consisting of a city attorney, assistant city attorney and paralegal.

Over the objections of some council members, the council majority also decided that hiring a professional search firm to find qualified candidates for a city attorney’s position would be an unnecessary expense, and instead opted for a do-it-yourself approach.

Kevin Russell, director of the city’s human resources department, was tasked with placing advertisements and doing other chores to solicit applications. Russell screened the applications to select candidates worthy of being interviewed by city council members. Russell and City Manager Brandenburg checked references, did independent research, and contacted Sokolow’s previous employers.

Ultimately the city council members held two rounds of interviews for the city attorney’s job. The first group of applicants were rejected. Sokolow was one of the finalists in the second round, and he was ultimately hired. Mayor George Garver signed an employment contract for Sokolow on September 14, 2009.

But to this day the legality of Sokolow’s employment contract is in question. As reported in The Austin Bulldog on April 28, Sokolow was hired in secret, in violation of the Texas Open Meetings Act. The story also reported that Sokolow’s hiring might be voidable and any legal decision that Sokolow makes also could possibly be voided.

The City of Georgetown’s response to that story was to hire an outside attorney, Julia Gannaway of the Fort Worth law firm of Lynn, Pham, and Ross LLP, to review these matters.

The Austin Bulldog has obtained copies of two confidential letters, dated May 10 and May 11, that Gannaway wrote to advise the city regarding the appointment of City Attorney Sokolow.

In the May 10 letter, Gannaway’s legal opinion was that the city did not violate the Open Meetings Act and that Sokolow’s actions are not void, but added, “those actions are subject to being declared void through judicial action.”

Gannaway’s letter of May 11 noted that Mayor Garver had no independent authority to sign Sokolow’s employment contract, as he had done on September 14. The City Charter does not give the mayor that authority, and the city council had not voted in a properly posted open session to authorize him to sign the contract.

Gannaway advised the city council not to ratify the agreement that was signed by the mayor and make it retroactive. Instead, she recommended that the council consider executing a new agreement with the city attorney.

To date, no action has been taken to ratify the original contract or to execute a new agreement.

What to do?
The minutes of the January 27, 2009, Georgetown City Council meeting, Item L, reflect considerable discussion about the pros and cons of the city having its legal services outsourced vs. having an in-house legal staff. Council Member Ben Oliver warned that the council would not get the depth and breadth of experience needed from paying an in-house city attorney $130,000. That’s Mark Sokolow’s annual salary now.

Sokolow has been on the job less than eight months. In that short time he has managed to alienate many of the people who have had to deal with him. To say he is not perceived to be a team player is an understatement.

Despite all this, in accordance with Sokolow’s aforementioned legally questionable contract, his performance was reviewed after six months on the job and, at the council meeting of April 27, he was given a performance evaluation and a raise of $5,000 per year. The vote was 5-2 (Council Members Patty Eason and Gabe Sansing opposed).

The raise was supported by Council Member Keith Brainard, who was defeated in his reelection bid by Danny Meigs. The raise was also supported by Council Members Pat Berryman, Ben Oliver (who did not run for reelection and was succeeded by Tommy Gonzalez), Dale Ross, and Bill Sattler.

What did the council members’ evaluations of Sokolow’s performance say about his work in the first six months on the job? Who knows. While it is common practice for performance evaluations to be considered public records, available upon written request, Sokolow pulled out all the stops to keep his evaluations under wraps.

The Austin Bulldog filed an open records request on May 16 to obtain copies of Sokolow’s performance evaluations given by the mayor and council members in connection with his raise. On May 28, Sokolow referred that request to the Texas attorney general with a seven page letter and numerous exhibits, 28 pages in all. All to justify why his performance evaluations should be kept from public inspection. On June 8, The Austin Bulldog submitted written comments and exhibits to the attorney general as to why those performance reviews should be released. The attorney general has not yet ruled on this matter, and is not likely to do so in the near future.

As Georgetown city attorney, Mark Sokolow is an at-will employee who works directly for the city council. After properly posting contemplated action on the agenda of a city council meeting, a simple majority of four council members could vote to terminate his employment—just like League City did.

The same majority could choose to take whatever legal action it deems appropriate to cure his defective employment contract.

Or the council could continue to leave his contract in limbo, and leave him twisting in the wind.

The next city council meeting is scheduled for June 22.

All records mentioned in this report are available here.

This Investigative Report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit. The Austin Bulldog has many other investigative projects waiting to be funded. You can bring these investigations to life by making a tax-deductible contribution.

This report is licensed under a Creative Commons Attribution 3.0 United States License, and can be republished with attribution and a link to The Austin Bulldog.

 

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