The Facts of the Election-Related Lawsuits

There has been much said about the 4 election-related lawsuits filed against the city.  In many cases, it has gotten overly complex.  Really the whole sequence of events is simple, so I thought I’d shine a light on what happened after the election in May 2018.

In January 2018, the Lakeway City Council called the May election for Mayor and 2 Council seats.  That election was for 3-year terms and the rule dictated by the City Charter to determine the race was to use Plurality (the winner receives the most votes).  In April, the City Council realized that the City Charter was in conflict with the Texas Constitution and decided that the best way (based upon opinions from both the Secretary of State and the Attorney General) was to CONTINUE using Plurality to determine the winner but to change the terms back to the original 2 years (including the prior Council elections).   So, the race started out as plurality and ended as plurality.  When the race was finalized in May, the second place candidate for Mayor filed 2 lawsuits to determine the race by majority vote (50% of the vote +1) and thus require a run-off election because none of the 3 candidates received a majority.  No lawsuits were filed BEFORE the election was finalized to ask for the rules to change, only after the candidate lost.

Over the course of 2 lawsuits, the city prevailed and the judge upheld the rules of the election: Plurality determines the winner.  I was named in both lawsuits only because I WON.  When the first lawsuit was filed, the then City Attorney told me that he could not represent me and that I would need to seek other representation. As he had advised, I did hire my own attorney.  The fees associated with the work were ~$5000 and were paid by my campaign.  I was sworn in and took office on a Monday night May 21, 2018.  I led the Council meeting and in that meeting, the City Council accepted the City Attorney’s resignation.  The next day, the 2nd lawsuit was filed (I was Mayor at that time of this filing).  The City did not have legal representation.  My attorney was listed on the lawsuit, and he received a letter from the court instructing him to file a brief by the following Tuesday. The fees associated with this work were ~$10,000.  Within 24 hours of the filing of the lawsuit, the City hired a litigator. 

The City then called a special election in November for the 2 council seats whose terms had been shortened due to the change from 3 year terms back to 2 year terms using the SAME rules as the May 2018 election: Plurality and 2 year terms.  My current opponent for Mayor, stepped up to the podium at a Council meeting on July 16, 2018 (Item 8:  1:42) and threatened to challenge the City if we did not change the rules to majority vote and add a place system for Council seats.  And, then he filed a lawsuit August 15, 2018, the 3rd lawsuit.  The District court dismissed on August 31, 2018.  He filed a petition for Writ of Mandamus to Supreme Court on Aug 31, 2018 to compel the District Court to not dismiss the lawsuit.  The Supreme Court denied the writ of mandamus on Sep 2, 2018.  He filed the Notice of Appeal on Sep 11, 2018 with the Texas Court of Appeals, where it is to be heard in the near future (Yes, there is still an active lawsuit from the completed November 2018 election which was held 5 months ago).

The fourth (4th) lawsuit against the City resulted from a simple request of mine.  I asked the Council to consider paying my legal fees from the 2nd lawsuit since I was Mayor at the time and the court requested that my attorney respond (this is ~$10,000 out of my total ~$15,000 attorney fees).  The Council deliberated and decided that it was an appropriate use of funds.

(NOTE: I have recused myself and left the dais, as the Council tapes reflect, from all City Council discussions and deliberations regarding the reimbursement of the attorney fees I incurred AFTER being elected.)

Again, my current opponent appeared before the Council on October 15, 2018 (Item 19 – 2:49), having already filed a lawsuit (the 4th lawsuit) that day and threatened to aggressively pursue a permanent injunction. I cannot tell you the details of the Council discussions as it pertains to this lawsuit as I have not been in these executive sessions with the Council. I can only relate what I know from the court proceedings and the City Council video tapes. 

Three depositions, 2 hearings, and countless City attorney interactions later, the district judge ruled in his favor (with a permanent injunction to NOT pay my legal fees) and awarded him his attorney fees of ~$30,000.  Recently, my opponent intimated in a public forum with 2 City Council members present, that he would settle the lawsuit for $1 as long as the City waived the right to appeal and acknowledged that he was right.  The City Council formally made the decision to drop the appeal for the $1 offer in the February meeting (again, I was not involved in these discussions).  In the April City Council meeting, the Council made an updated motion with the caveat that if no decision was made by April 23, the City would appeal the District Court’s decision. His attorney accepted the offer in the afternoon on April 23 and the Rule 11 Agreement was filed with the court in order to officially settle the matter. 

In summary, there have been 4 lawsuit that cost me ~$15,000 and the City ~$120,000.  In three of the lawsuits, the City has prevailed (however, the 1st lawsuit from Mr. Kilgore is still on appeal) and in the 4th lawsuit the City opted to settle.

These are the fact associated with the election-related lawsuits.  In accordance with our current City Charter, the City Council will have to officially amend our City Charter to align the election process and the Council terms with the Texas Constitution.  This is done by a establishing a Charter Review Committee, which the City Council established in the March 2019 meeting.  This committee of 7 citizens will propose changes and updates to the Council.  Once language is approved by the Council (this is anticipated to be in December 2019), those changes will be taken to the voters for approval (in either May or November 2020).