El Paso City Council candidate Lyda Ness Garcia has filed a police report and an ethics complaint against Ann Morgan Lilly, the incumbent she seeks to unseat in Saturday's election.
Lilly represents District 1 on City Council.
After reviewing e-mails that went out and were received by City Rep. Lilly's office in the last five years, Ness Garcia believes Lilly has been campaigning on city time and using city resources.
Ness Garcia reviewed and obtained the documents through an open records request. She and two of her campaign managers spent days looking through nearly 9,000 e-mails.
ABC-7 was allowed access to the documents and found a few e-mails that make direct reference to campaign business. None of them were originated by Lilly.
One of the most recent election-related e-mails is between Mark Smith, who works for Lilly's campaign, and Les Parker, the chairman and president of United Bank of El Paso Del Norte. Lilly was CC'd in the e-mail, in which Smith sends Parker a reminder about a fundraiser reception for Lilly.
Parker responded and wrote, "A very good and reliable source told me that El Paso Electric (you know, OUR electric company according to their ads) is doing their utmost to sabotage and quash the election of our Candidate, Ann Lilly. Guess they don't like those who take them to talk on behalf of the El Paso community. Hmmmm." That correspondence is dated April 7, 2011.
There are also e-mails that date back to the last election four years ago. In one of them dated May 8, 2007, Jack Winton of Winton / Flair Homes, and supporter of the Lilly wrote the following to Lilly: "Dear Ann, Just wanted to update you on the mass mailing we conducted last week of approximately 650 letters to Realtors, Broekers and Appraisers, in an effort to encourage all to support your campaign. Attached you will find some images that will help you visualize, how many letters went out. We all wish you luck on the upcoming election!"
Lilly's legislative aid at the time, Anthony Pearson, responded to Winton. "Actually, Ann would like to see the letter that you mailed to the brokers, etc. That is what I am asking you to fax to 541-4380," Pearson wrote.
Another e-mail is between Save the Valley, a civic organization who wrote Lilly asking her to attend their forum. Lilly's current legislative aide, Lupe Hernandez wrote back, saying, "I am emailing you on behalf of Representative Lilly to let you know she will be attending."
"We had heard it from so many people who work currently or previously worked at city hall that we knew it was going on, but now we finally have concrete and hard evidence that we can file a formal complaint, which I believe would have been irresponsible to do before", said Ness Garcia.
A Texas Ethics Commission spokesman said there is no legal distinction between campaign business and personal business when it comes to allegations of misuse of public resources.
According to Opinion 372 by the Commission, personal and business use of public resources sometimes may overlap. "State officers' and employees' personal lives occasionally intersect with their work lives and that reasonable and incidental use of state time or state property in crossing such intersections is not a 'misuse' of state resources for purposes of Penal Code section 39.02."
The key to prove that Lilly was misusing city time and resources will most likely depend on whether it can be proven Lilly has habitually campaigned using city time and equipment.
Among the e-mails, there was also a memo from the City's Human Resources Department reminding all city employees of a city policy that prohibits using city time or resources for political purposes.
"She's used the phone number and she's used that email as her campaign email with some of the records she's filed with the city. But secondly Mark Smith is helping to run her campaign, so the fact that he's communicating with her and with a third party individual and forwarding a campaign document to her would be indicative that they're communicating on city time," said Ness Garcia, referring to Lilly.
Lilly did not agree to an on-camera interview, saying she needed to talk to her attorney about the allegations against her before commenting. She did later send us an e-mail statement through her attorney.
"If the opponent chooses to make any complaints, we will pursue any legal remedies to the full extent permitted by the law. I will not permit that opponent, or anyone, to go unchallenged if she tries to attack my family, my name, my life service to this community, or my service on city council. It is very unfortunate that this opponent has seen fit to attempt to campaign through media attacks, which only serve to reveal the lack of scruples, values and mean spirit of the candidate. Do the good citizens of District 1 deserve a representative like that? Absolutely not. They deserve better, and that is why I am seeking re-election" the statement read.
Ness Garcia said that just because the e-mails don't originate from Lilly, it doesn't mean she's not responsible. She believes Lilly ordered her legislative aids to respond to campaign business.
"I'm dismayed that our city representative is in fact displaying the kind of arrogance that we've seen with other public corruption issues here in El Paso, but at least the tax-payers will know exactly what she's up to with on our tax payer money and on our tax payer dime," Ness Garcia said.
The race between the two opponents has been heated one.
In her statement, Lilly wrote "One of my opponents, a lawyer who has been sanctioned by the Texas Ethics Commission, who has a fine currently pending with the Texas Ethics Commission for being delinquent in a report, who is the subject of substantial federal tax liens, and who is a debtor by judgment to vendors to her law practice, is apparently trying to distract voters from the issues in our campaign by making false accusations against me."
Ness Garcia was fined by the Ethics Commission for accepting a donation from a corporation the last time she ran for public office. She said that she was not aware of the donation until the complaint was filed, at which point, she fired her then campaign treasurer.
Ness Garcia also owes the IRS an undisclosed amount of money and has a federal tax lien on her law practice. An issue that stems, she said, from faulty advice from her first accountant and her initial inexperience in the infancy of her law practice. As for the debt to a vendor of her law practice, Ness Garcia said she could not keep an agreement with a business she contracted, and is now making payments on that settlement.
Ness Garcia's past is not the only one that has surfaced. The challenger points to lawsuits against Lilly as a landowner and business owner.
In one of them, a local company sued Lilly for a property sale that went astray, and, according to a summary judgment, Lilly was ordered to pay about $117,000, plus nearly $20,000 in attorney fees. Lilly denied such a judgment when ABC-7 presented the court document to her and said she only was ordered to pay $18,000 in attorney fees for the plaintiffs.
In the case of the e-mails, The Texas Ethics Commission and the El Paso Police Department will have to decide whether Lilly violated the law. Voters will decide who their next representative will be this weekend.
Other candidates running for City Council District 1 are Manuel "Manny" Hinojosa, Timothy "Tim" Besco, Abraham "Abe" Peinado, Richard Jay Schecter, and Theresa Ann Ware-Asbury.