By Ashley Kontnier and Amira Van Leeuwen
After almost eight years as Kyle’s chief administrative officer, city manager Scott Sellers announced his resignation, effective Sept. 6.
The resignation comes on the heels of several closed door meetings and was accepted following an executive session during the Kyle City Council meeting Tuesday, Sept. 6.
During the executive session, the council deliberated an internal complaint against the city manager and also discussed the continued employment of the city manager. The council reconvened at 1:51 a.m., where it unanimously approved a separation release waiver agreement with Sellers and appointed acting city manager Jerry Hendrix as interim city manager.
Sellers went on an unplanned sabbatical sometime between June 21 and June 25. City records show that Sellers was present at the regular council meeting on June 21. Although he was on the posted agenda for a June 25 meeting, minutes show he was not in attendance at that meeting. Instead, Jerry Hendrix stood in as acting city manager.
Through an open records request, the Hays Free Press determined that, at the next regularly scheduled council meeting on July 5, council members signed a confidentiality agreement during executive session.
The agreement states, “1. By signing this Agreement, I acknowledge and understand that the information discussed, heard, or read in City Council executive session on July 5, 2022 regarding resolution of a personnel matter (the “Matter’) is received by me in the course and scope of my duties as a City Council member and that the release of such information could adversely affect the property, government, or affairs of the City… Therefore, I agree that all information discussed, heard or read in the City Council Executive Sessions will not be released, copied, discussed or shared in any manner with any individual other than City Council members present in the Executive Session, legal counsel representing the City in this matter, except as may be required by the Ethics Ordinance or applicable state or federal law.”
It continues, “2. I further agree not to make disparaging remarks in any form and to anyone, whether oral, written or electronic, and whether to the community or on social media about the Matter. I agree that I shall not respond to any written or verbal requests for information about the Matter and shall refer all such requests to the Interim City Manager or City Attorney. The obligations in this clause continue after the employee involved in the personnel matter is no longer employed with the City.”
According to the Texas State Government Code, Sec. 552.001 states, “Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”
Kelley Shannon, Executive Director of the Freedom of Information Foundation of Texas, explained the use of confidentiality agreements or non-disclosure agreements to contract the silence of council members is against their first amendment rights.
“City council members have a First Amendment right to speak out publicly if they wish, and the city can’t quash that right of elected officials with a non-disclosure agreement,” Shannon said. “Plus, the city cannot declare on its own that certain information is secret. That would be in conflict with the Texas Public Information Act.”
“Council members have the first amendment right to talk about what goes on in meetings, whether they are open or closed,” Shannon stated. “If they choose not to, that is their decision, but they cannot be forced into silence. That is the choice of council members at their own discretion.”
The Texas Attorney General agrees with Shannon. On July 11, 1989, in response to a request for an opinion interpreting a provision of the Open Meetings Act section 2A, the Attorney General of Texas states, “You state that some local authorities have interpreted the quoted language to mean that persons present in an executive session cannot make any statements regarding the subject matter of the session, even to voice their own opinion about that subject.” He continues with his ruling, which says, “We interpret subsection 2A(h) as applying only to the records of executive sessions which governmental bodies are required to keep pursuant to section 2A of the act. It does not prohibit persons who are present at the executive session from afterwards talking about the subject matter of the session.”
“Government cannot just take it upon themselves to rewrite the Texas Open Meetings Act. If they think they can tweak it to apply to them differently, they are wrong,” Shannon continued. “You can’t just state that something is secret because you want it to be secret. The state law prevails.”
According to July 5 meeting minutes, “Mayor Mitchell called the meeting back to order at 11:50 p.m. Council Members Ellison and Tobias and Mayor Pro Tem Rizo did not return from executive session. Mayor Mitchell announced that no action took place in executive session and no action would be taken now.”
According to Shannon, city officials signing city contracts are action.
Sellers was placed on paid administrative leave July 23 pending the outcome of an internal investigation.
On Aug. 2, the Hays Free Press submitted an open records request to the city of Kyle. The request states, “Please provide my office with a copy of any complaints filed against Scott Sellers with the city of Kyle. The relevant time period for this request is the last 365 days from receipt of this request. Complainant identifying information may be redacted from the responsive material.”
In response, the Hays Free Press received an email on Aug. 17, containing a letter to the Attorney General of Texas requesting to exempt requested information from required disclosure of public information citing 67 exceptions. In a follow up letter received Aug. 24 the city narrowed the exceptions to one and no longer cited the others.
The letter goes on to explain, “The City is investigating the complaint that is enclosed as Exhibit B, and that investigation is currently ongoing. The information set forth in Exhibit B is information that is confidential under Section 552.101 and under previous rulings by the Attorney General’s Office.”
“Common law privacy excepts from disclosure private facts about an individual -facts or information that are (1) highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) for which there is of no legitimate public interest in its disclosure.”
A press release sent after Sellers’ resignation stated that after a “thorough investigation,” the city found no unlawful harassment or discrimination.
“Considering all factors both internally and externally, Mr. Sellers has decided to resign,” the press release stated. The press release did not disclose the amount of severance upon which the parties agreed. On Sept. 8, the Hays Free Press requested a copy of the severance agreement, which had not been received as of press time.
Seller’s employment contract, dated Jan. 1, 2017, and extended through Dec. 31, 2025 allowed for termination events as follows:
a. Mutual agreement of the Council and Manager in writing and signed by them;
b. Retirement of the Manager in which case the Manager shall provide the City six (6) months notice of his intent to retire.
c. Voluntary resignation of in which case the Manager shall provide the City two (2) months notice of his intent to resign;
d. Death of the Manager;
e. If the Manager becomes permanently disabled because of sickness, physical
or mental disability, so that the Manager will be unable to complete any of his duties under this Agreement with a reasonable accommodation as permitted by the Americans with Disabilities Act, the City has the option, consistent with applicable law, to terminate this Agreement upon 60 calendar days written notice of termination to the Manager. If terminated, Manager shall be eligible for long term disability benefits provided to other City employees. Such termination will be without prejudice to any right or remedy to which the City or Manager may be entitled either at law, in equity, or under this Agreement.
f. Termination of Manager’s Employment for “good cause” without notice or severance (as defined in Paragraph 6.2 below);
g. A Unilateral Severance (as defined and set forth in Section 6.3 below); or,
h. Expiration of the term of this Agreement, provided the City gives Manager at least thirty (30) days notice prior to the expiration of the Term that City does not intend to renew this contract or extend the Term. If City does not give such thirty (30) day notice, the contract would automatically renew on the date of the end of the Term for an additional one-year Term.
The Hays Free Press reached out to the city for clarification on the sabbatical start date, but had not received response as of press time. The Hays Free Press will await the ruling of the Attorney General of Texas on or before Oct. 24.