After an attempt to remove a Mercedes elected official failed in 2019, questions linger over who should pay the legal fees the commissioner incurred to defend himself.
Leonel Benavidez had only sat at Place 2 on the Mercedes City Commission for about five months when an opposing political faction levied accusations against him, saying he had violated the city charter in a manner that could force his censure or expulsion from office.
But before the commission could take a vote on whether to do so, Benavidez hired an attorney who obtained a temporary restraining order that prohibited the commission from taking any action against him — at least until a judge could take a closer look at whether to permanently enjoin the commission from such efforts.
That judge — Ysmael D. Fonseca, who then presided over the 464th state District Court — later ruled against Benavidez, denying his request for an injunction.
But by then, the commission majority’s appetite for unseating Benavidez had soured after one public meeting had devolved into chaos as well as the arrest of four residents who were among the forcefully loud public outcry against Benavidez’s removal.
Fonseca’s decision was based, in part, on his technical interpretation of the city charter. He found that Benavidez had mounted his defense too early in any process to potentially remove him from office.
“(T)he Court finds that Plaintiff Leonel Benavidez’ (sic) complaints of potential violations of the Mercedes City Charter are premature,” reads the September 2019 order denying the injunction.
And with the city seemingly no longer concerned with pursuing the matter, Fonseca later dismissed the case without prejudice “for want of prosecution.”
But the political scare nonetheless had financial costs for Benavidez. To date, Benavidez still owes his attorney, Francisco Rodriguez, nearly $10,000.
During Tuesday night’s meeting, the commission was tasked with deciding if those fees amounted to an expense the city should pay, or if that responsibility falls solely on the commissioner.
“The legal issue has been determined. The only question becomes the city’s position as to whether or not there is a factually sufficient basis to find that this was a fee that would be a city expense, separate from TML’s decision and from the court’s decision,” said Mercedes City Attorney Anthony Troiani.
Since the court dismissed Benavidez’s suit — essentially making the city the prevailing party — the fee is Benavidez’s responsibility, Troiani said, adding that the court ordered “that all costs are to be assessed against the plaintiff.”
Troiani sought to draw a differentiation of the fees, not as a legal expense, but as a “city expense” that the commission could choose to reimburse Benavidez for.
But after being asked repeatedly for more clarity on his advice, Troiani’s answers left some members of the commission visibly frustrated.
“I’m telling you that it is not a legal expense because he was not a prevailing party, and the court has the order,” Troiani said in response to a question from Place 4 Commissioner Joe Martinez.
“What I am saying is he was a sitting city commissioner. … He incurred attorney’s fees and the question becomes, is that something that you feel he should be reimbursed for or not?” the attorney continued.
“We’re getting, I’m sorry to say, half-a—- answers, man,” Martinez said after several long minutes of circular discussion.
Troiani’s assessment of the issue also lay at direct odds with the opinion of former interim City Manager Kevin Pagan, whose last day as the city’s top administrator was April 7.
On his final day, Pagan had submitted the fees to the city’s finance department for payment.
Pagan, who came to Mercedes after retiring as the head of the city attorney’s office in McAllen, issued a detailed memo just after his departure outlining why he felt the fees should be reimbursed.
“(B)ased on my 35 years of practicing law, including 27 in municipal law, it was (and is) my opinion that the fees incurred were directly attributable to the Commissioner’s elected office and were reasonably incurred in defense of that office,” Pagan wrote in the memo.
Pagan went on to explain that during his tenure in municipal law, he had “‘jealously’ guarded the elected offices” of public officials — regardless of political affiliation or circumstance — when their right to hold an office to which they were duly elected was threatened.
Furthermore, Troiani’s obligation to represent the city as a whole, and not individual elected officials, forced Benavidez’s hand in seeking outside counsel during the attempted ouster, Pagan explained.
The former city attorney-turned-administrator also disagreed with Troiani on the success of Benavidez’s legal actions.
Where Troiani repeatedly told the commission that Benavidez’s lawsuit against the city had failed, thus making him responsible for his own attorney’s fees, Pagan opined that the commissioner’s actions nonetheless had their desired effect — keeping him in office — making Benavidez’s actions successful on the whole.
“(T)he remaining sequence of events all took place solely and completely because Mr. Benavides happened to be a City Commissioner,” Pagan wrote.
“As you can perhaps glean from the time I have taken to prepare this, I feel strongly that elected officials should not be required to ‘fend for themselves’ when faced with proceedings directly related to their office, nor should individuals be required to bear the financial burden of serving in public office when there is a reasonable case to be made (as there is here) that the expenses involved are appropriately paid from City funds,” Pagan wrote in conclusion.
After half an hour of discussion, the commission appeared no closer to finding a resolution than when the discussion began.
Ultimately, Place 1 Commissioner Jacob Howell motioned to table the item in order to get more information on what had precipitated the TRO in the first place.
“I’m giving Commissioner Benavidez the benefit of the doubt. Personally, I would just like to research it a little bit more. I want to weigh our options,” Howell said.
“I know the court has already made its decision, but did he have to sue the city of Mercedes? That’s the question.”
