The Field Review - Local

Kyle City Manager May Default on Lawsuit, Where it is Claimed he Violated the Abuse of Official Capacity Statue

The Kyle City Manager, J. Scott Sellers, was served a lawsuit on October 21, 2021. The suit, filed in Hays County District Court, claims Mr. Sellers violated the Abuse of Official Capacity statue of the State of Texas.

The claim is, Mr. Sellers allowed his Police Chief, Jeff Barnett, to violate the laws which are obligated to be enforced by the City Manager. Mr. Sellers also allowed Chief Barnett to remain out of compliance with policies and procedures which are mandated in City Ordinance for the City Manager to require proper application.

Here is the lawfully required duty imposed upon the City Manager through creation of City Ordinance (or a law of the State of Texas):

  • Sec. 7.01. – City Manager. The council shall appoint and may remove the city manager upon the affirmative vote of five members of the council, and shall supervise the city manager by a majority vote.
    • The city manager shall be the chief executive and administrative officer of the city and shall be responsible to the council for the proper administration of all the affairs and business of the city. The city manager shall be required to:
      • (a) Enforce all state laws and city ordinances, and require compliance with all policies and resolutions.(b)

The City of Kyle has more than a few City Ordinances which impose a duty on a public servant; either directly or indirectly:

  • Sec. 2-123. – Personnel manual. The personnel manual of the city shall be on file in the office of the city secretary.
  • Sec. 2-142. – Statement of purpose. It is essential in a democratic system that the public have confidence in the integrity, independence, and impartiality of those who act on their behalf in government. Such confidence depends not only on the conduct of those who exercise official power, but on the availability of aid or redress to all persons on equal terms and on the accessibility and dissemination of information relating to the conduct of public affairs. For the purpose of promoting confidence in the government of the City of Kyle and thereby enhancing the city’s ability to function effectively, this code of ethics is adopted. The code establishes standards of conduct, disclosure requirements, and enforcement mechanisms relating to city officers and employees and others whose actions inevitably affect public faith in city government, such as former city officers and employees, candidates for public office, and persons doing business with the city. By prohibiting conduct incompatible with the city’s best interests and minimizing the risk of any appearance of impropriety, this code of ethics furthers the legitimate interests of democracy.
  • Appearance of impropriety: Public service is a public trust. All city officers and employees are stewards of the public trust. They have a responsibility to the citizens of Kyle to enforce and adhere to the City Charter and the associated ordinances and codes. The appearance of impropriety may itself be a conflict of interest. To ensure and enhance public confidence in city government, each city officer must not only adhere to the principles of ethical conduct set forth in this code and technical compliance therewith, but they must scrupulously avoid the appearance of impropriety at all times.
  • Sec. 4.04. – Duties of Officers and Employees. The council shall from time to time, after hearing the recommendations of the city manager, establish personnel policies and regulations and the duties, responsibilities and authority of each appointed officer and employee of the city, not inconsistent with this charter.
  • Sec. 7.04. – Department Directors. Such directors shall supervise and control their respective departments.
  • Sec. 7.06. – Police Department. (a) The chief of police shall be responsible for the administration of the police department and shall evaluate and supervise the department and all its employees.

The State of Texas has a Penal Code directly related to the duties of representatives of the City of Kyle. This law is known as Texas Penal Code 39.02, Abuse of Official Capacity:

Sec. 39.02.  ABUSE OF OFFICIAL CAPACITY.  

(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:

(1) violates a law relating to the public servant's office or employment; or
(2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment.

The law also has specific definitions related to terms used for this statue:

Sec. 39.01.  DEFINITIONS.  

In this chapter:(1) "Law relating to a public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly:

(A) imposes a duty on the public servant; or
(B) governs the conduct of the public servant.

(2) "Misuse" means to deal with property contrary to:
(A) an agreement under which the public servant holds the property;
(B) a contract of employment or oath of office of a public servant

The Penal Code has its own set of definitions applicable to every part of the Penal Code statue in Texas, and here are a few applicable terms related to the concerns of the City Manager and Police Chief:

Sec. 1.07.  DEFINITIONS.  (a)  In this code:

(25) "Harm" means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.

(30) "Law" means the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute.

(44) "Rule" includes regulation.

(48) "Unlawful" means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.

Mr. Sellers was provided numerous complaints related to his Police Chief. Many of them cite violations of personnel policy and laws.

The personnel policies, begin adopted under a statue, becomes a law of office or employment.

Here is the City of Kyle Personnel Manual (highlighted):

Here are the City of Kyle Police Department polices and procedures; applicable to the lawsuit filed (highlighted):

Here is an Ethics Complaint filed on Chief Barnett, but was placed on hold due to improper influence of a Hays County Assistant District Attorney:

Here is a complaint related to employment concerns of Chief Barnett:

Above are just a few items the City Manager received. During the period of approximately late 2018 to early 2019 through 2020, the City Manger was contacted by email, to his government email account. Mr. Sellers never replied, but he did provide emails in a discovery hearing related to a matter where his Police Chief abused his office.

Specifically, going against many laws, policies, and procedures applicable to the City of Kyle; Chief Barnett controlled, by virtue of his office or employment, multiple city officials to suppress the complainants rights. He also created a fictitious name so the public would not know he was the claimed “victim,” of a scheme to harass, stalk, intimidate, and harm someone.

The matter became so concerning, the Hays County District Attorney recused his office of any cases related to the citizen.

The case was assigned to the Travis County Attorney. The person assigned, stated in a hearing on October 16, 2021, she was told by someone in the Hays County District Attorney’s Office not to pursue any cases, but only on the person Chief Barnett stalked with his officers. She also informed the court her Chief Investigator doesn’t review cases before he swears to them.

The interesting thing about Texas Law and most laws is a concept called cause and effect:

Sec. 6.04.  CAUSATION:  CONDUCT AND RESULTS.  (a)  A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

Essentially, the City of Kyle planned to violate their own laws to have a citizen arrested. This means, the citizen cannot be held criminally responsible. The failure to answer a Petition of Mandamus only doubles down on the intent of the City of Kyle to violate its own laws; therefore, creating an interesting dynamic in the legal system.

Should the court order the City Manger to perform his clearly obvious duty, he may also be found in contempt of court if he refuses to take action, according to law.