The Flower Mound Town Council voted Monday night to authorize Mayor Tom Hayden to subpoena Deputy Mayor Pro Tem Itamar Gelbman to testify under oath as part of the independent investigation of the ethics ordinance and Town Charter Section 3.12 violations.
Gelbman has until the end of Thursday to agree to testify within the following 10-calendar days, prior to possible punitive action—including contempt.
Gelbman was not present at the meeting, but sent an email to Town Manager Jimmy Stathatos after 4 p.m. As read by Stathatos, Gelbman wrote:
As I won’t be there tonight, please address my following concerns in the
meeting:
“Mr. Foster contacted me a couple weeks ago asking me to be investigated
under oath in front of a court reporter. I responded that I will be more
than happy to do so and even scheduled a date and time to do so.
I asked Mr. Foster when is he investigating the rest if the council members,
he replied that only me and Council-member Rountree are going to be
investigated under oath, Mayor Hayden and Council-member Webb just need to
sign an affidavit.
I asked Mr. Foster to see the evidence he has in his custody and the topics
he is going to investigate me on. Mr. Foster replied that he refuses to
answer my question and refuses to release the evidence. This is a clear
violation of my constitutional rights and not according to the normal
practice of law and/or normal practice of conducting an investigation.”
Please don’t hesitate to contact me with any further questions and/or
comments you may have.
Yours,
Itamar Gelbman
Deputy Mayor Pro Tem
Town of Flower Mound
Gelbman included no information for his absence at the council meeting.
During the public session earlier in the meeting, several speakers called for both Gelbman and Rountree to testify for the investigation.
Patsy Mazur said that Gelbman has refused to answer questions on financial transparency and that Rountree has used “cheap tricks” on social media to take shots at people. She also told Rountree: “You, not your attorney, were elected to Town Council. You aren’t sitting up there for yourself.”
Mayor Tom Hayden shared that he’d given his sworn deposition on Saturday.
“I sat for about 45-minutes and answered questions,” said Hayden. “I didn’t know what was going to be asked before … I raised my hand and he asked questions and I answered them.”
Councilman Rountree was asked whether he would voluntarily meet with the investigator. He said that he felt he was at a disadvantage and that Foster was being “presumptuous.”
“We asked to review the evidence and were refused,” said Rountree. “He [Foster] said I should swear the truth to what I’m [Foster] going to ask you.”
He added that he’d: “like to fast forward and take a vote if we’re going to kick people off the council.”
Hayden answered that he had not heard anyone mention anyone on council being “kicked off,” except when he [Rountree] had asked what the procedure would be to remove councilman Webb for sharing information from a closed meeting.
An email received on Monday, earlier in the afternoon, from Foster was read. It stated that he had questions regarding the ethics ordinance and Town Charter based on some of the evidence following sworn statements. He added that “the allegations are serious and may be detrimental or adverse to some of the council members positions; evidence against them would condemn them.” Ross wrote:
“I have requested Councilman Rountree and Councilman Gelbman
sit for an interview under oath with regard to the investigation the
Town has ask[ed] me to conduct. I appears that both have refused
to sit for the requested interview. Councilman Rountree through his
attorney has affirmatively refused. Although ten days have passed
since my request to Councilman Gelbman, he has not responded
affirmatively to my request. The relevant communications are attached.
The refusal frustrates my ability to do complete investigation. Section
3.12 of the Town Charter anticipates the need to be able to compel
the attendance of witnesses in conducting an investigation. The
power to compel the attendance of witnesses by subpoena and the
production of documents in a investigation is given to the Town
Council. Please have the Town Council consider the issuance of a
subpoena to Councilman Rountree and Council[man] Gelbman to
require they sit for an interview under oath.
If you have questions please contact my office.
Ross T. Foster
Foster & East
Hayden asked Rountree if he’d like to save everyone some heartache and agree to meet with Foster.
Rountree answered that he’d have to refer to his attorney.
Hayden asked him: “Is it accurate to say that you’re not willing to participate?”
Town Attorney Bryn Meredith said that deposition questions are not typically presented prior to a witness testimony.
At this point, councilman Webb said that he also gave his sworn testimony on Saturday morning.
“Folks, when you serve on this council, it’s the expectation that you will uphold the U.S. Constitution, the State’s laws and the Charter of the Town of Flower Mound,” he said. “I don’t think telling the truth falls outside that expectation.”
He then went on to share that on Thurs., Sept. 5, he’d received a phone call from a reporter asking about an email supposedly sent to him from Webb. The reporter said he was questioning the email coming from Webb, because although it had his beginning email address, it was from “hotmail,” not “gmail”—which is Webb’s address. The content was from the Town Attorney sent to the Town Council with a copy to the Town Manager and it included attorney-client privileged information.
“The next day, on Friday, I filed a police report about the email sender for ‘impersonation of a public official;’ a Class C felony,” said Webb. “If they [Gelbman and Rountree] will not do what they should do, then we need to take steps to do what needs to be done.”
Councilman Kevin Bryant said that the investigation is not in the best interest of the town, but the council cannot give an incomplete report; it needs to act from fact.
“We’re creating our own problem,” he said.
The genesis for the investigation was a July 10 request by councilman Brian Rountree to investigate councilman Webb for violating the executive session privacy rules. It was later revealed that Rountree had contacted and given directions to town staff. In addition, he had requested Stathatos to put the investigation about Webb on the agenda “discretely” and “quickly” and without a vote from the majority of the council.
On July 20, 2015, the Town Council provided direction for staff to conduct a third-party investigation of the Town Council concerning possible violations of local and/or state law, including, but not limited to, the Town Charter, ethics ordinance and state open government laws. Investigator Ross Foster of Foster & East in North Richland Hills was contracted to conduct the investigation.
On September 8, 2015, that direction was ratified and the Council moved to continue the investigation as originally scoped covering violations of Texas Open Meetings laws, Flower Mound’s ethics ordinance, and violations of the Town Charter.
Councilman Steve Dixon asked Meredith for guidance on what needs to be done to compel Rountree and Gelbman to meet with Foster
The Town Attorney said that the council can authorize the mayor as its chief executive to issue a subpoena for each person to meet with the investigator. Penalities for non-compliance include a Class C misdemeanor and a punitive judgment of $500. In the Texas legal arena, that’s a 10-calendar day timeframe.
Meredith added: “If council motions to authorizes him, Foster can take it to district court for contempt.
Again, Hayden asked Rountree to save a lot of headaches and just sit down with the investigator.
“I just want to protect my rights,” said Rountree. “Can my attorney be present?”
Meredith said he saw no reason why Rountree’s attorney couldn’t be present during the deposition.
Hayden asked Rountree if he agrees to testify under oath within the next 10-days.
Rountree said: “yes.”
Councilman Steve Dixon said he’ll take Rountree at his word that he’ll testify.
“But since Mr. Gelbman isn’t here, I think we’re forced to go ahead to issue the subpoena for him,” said Dixon.
The motion to wait until the end of Thurs., Oct. 22, before issuing a subpoena for Mr. Gelbman to testify within 10 days, before punitive action will be taken passed 3 to 1; Rountree voted against.
The next turn-in-the-investigation will be determined by Friday morning; to subpoena, or not to subpoena—that’s the new question.
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