Did El Paso city representative announce he’s running for mayor? What taxpayers spent to get the answer.

EL PASO, Texas (KVIA) -- El Paso city taxpayers paid thousands of dollars to find out whether City Rep. Brian Kennedy officially announced his run for mayor by saying he “was seriously considering” a run for the top seat.  

Earlier this week, members of the El Paso City Council came out of executive session and voted 6-0 to move the private discussion to the regular session – meaning, in front of the public, and not behind closed doors. 

Representatives Cassandra Hernandez and Isabel Salcido were not present for the vote.  

Hernandez, who announced in February she is running for mayor, was the one who asked City Attorney Karla Nieman for a legal opinion on the matter, according to Nieman. At issue was whether Kennedy must resign his city representative position immediately or maintain it if he did announce he was entering the mayoral race.

The item up for discussion? The resign to run provision in the Texas Constitution. It creates, depending on the time of the announcement, an automatic resignation for certain elected officials, like councilmembers, who announce they are running for another office.  

Under the state’s current law, if you’re in the last 13 months of your tenure as an office holder –as Hernandez is-- you don’t have to resign. However, if you have more time than that, the city has 120 days (about 4 months) to hold an election for your seat. Kennedy’s term expires December 2026.

During city council’s work session on Monday, San Antonio-based attorney Frank Garza, who contracts with the city, said City Attorney Karla Nieman reached out to him requesting a legal opinion following a request from City Representative Cassandra Hernandez. 

“Ms. Nieman forwarded an email from Representative Hernandez asking the question, citing the article from the El Paso Inc. as to whether or not his statement ‘seriously considering to run for mayor’ was an announcement that he was running for mayor,” Garza said.  

"The statement 'seriously considering a run' is very easy to address because there is an Attorney General opinion specifically on this point,” Garza explained to council during his presentation. “The Attorney General opinion specifically states that seriously considering to running for office is not a statement without qualification and therefore is not an announcement to run and therefore the resign to run provision is not applicable." 

ABC-7 did a quick fact check on the Attorney General opinion. You can find it here. 

Rep. Brian Kennedy is in his first term as a council member.

Kennedy has not made any formal announcements about his political aspirations beyond his current seat – but when asked by ABC-7 over the phone if he plans to run for mayor, he said he is seriously considering running for mayor. Kennedy said he has not yet made a decision, but he will make a decision one way or another before the first date you can file for a spot on the ballot, which is July 20.  

Paid polling

During Monday’s meeting, Garza also told the council he was asked to investigate another campaign issue. 

"The second issue I was asked to look at was whether conducting polling was an announcement as well and whether or not a campaign treasurer needed to be filed for those purposes," Garza said.   

According to Garza, there is no clear opinion on this issue, however, he said the Texas Attorney General's Office has ruled that having an exploratory committee is not an announcement for office. Garza said he considers an exploratory committee, paid & free polling to be similar in nature and his “opinion that forming a polling committee does not announce running for mayor because what if the polling is not favorable the person might not announce to run.” 

ABC-7 asked Rep. Kennedy if he paid for polling and he responded by saying, "I intend to consider every important piece of information available between now and making my decision by July 20."

Garza told council paid polling is considered a campaign expenditure and there are reporting requirements that come in July.  

“I had a chance to speak to the General Counsel of the Texas Ethics Commission on this issue when it came to my attention on polling,” said Rep. Brian Kennedy during Monday’s council meeting. “And his questions were - Is the poll advocating, saying ‘vote for me’ or ‘support me’ and if the answer is No, then that agreement was exactly with your opinion, which is if there was an exploratory expense it would have to be reported under my current financial reporting, which would be July 15 for the end of June and he said very honestly, ‘Everybody is allowed to look without having committed because it would be a nightmare at the state level if everybody that was looking to run for another office had to resign to even think about it’,”  he said.

What’s next? Policy change

On Monday, some council members took issue with tax dollars being spent to hire outside counsel following the request by a single councilmember. That brought about a change that will now require City Attorney Karla Nieman to notify the entire council if she gets requests from members for legal opinions involving each other.  

“Now, Ms. Nieman, we’ve (we) had a conversation and I think that you’re asking for direction from this council that if you’re directed by a council member to investigate another council member that you bring it out to all of the council members for approval before we go out and spend taxpayers’ money, is that correct?,” Mayor Oscar Leeser asked City Attorney Karla Nieman on Monday.  

“Yes sir, that’s correct. So, historically, we don’t, I don’t get requests like this, but in the past if we do, or I get a request about another member of councils' behavior or actions, my office does not issue legal advice on those matters; I always refer them to outside counsel,” Nieman responded.  

“Regarding prior processes, this scenario was a first for us, so there was no prior process,” City spokeswoman Laura Cruz-Acosta told ABC-7 when asked about precedents for this situation. Now, there will be a procedure. “If a council member makes a complaint or asks for a legal opinion regarding another Council member, moving forward staff will get direction from Council as a whole to determine if we need to get an opinion from outside counsel,” she said.

City Rep. Joe Molinar asked Attorney Frank Garza how much time he spent on this request, and he responded by saying approximately 10 hours.  

“I have a problem with a certain city representative that chooses to do certain things certain ways and uses our city attorney for possible gain,” Rep. Joe Molinar said during the meeting. “It’s just... you heard the gentleman from San Antonio 10, approximately 10 hours. What is that going to cost us the tax, or them the taxpayers? It’s a lot.”  

Molinar said he didn’t know what the city pays Garza an hour, but said it is tax dollars, council is fiduciary and he didn't think it was “being spent correctly.”  

ABC-7 reached out to City spokeswoman Laura Cruz-Acosta to see how much the city spends paid Garza an hour. She provided a contract from 2023 where council approved a rate of $290 per hour for his services.

So, at $290 amount an hour, taxpayers spent around $2,900 to look into Rep. Hernandez’s request.  

ABC-7 reached out to Rep. Hernandez via email asking to chat about this week’s discussion. She told ABC-7 she was traveling this week but sent the following statement:  

“This was a discussion held under attorney-client privilege,” Hernandez wrote.  “It is important to note that the decision to seek an outside attorney was made solely by City Attorney Karla Nieman. I was not present at the work session meeting due to a pressing family matter and was unaware of the agenda item concerning this issue. Additionally, I did not request that Mrs. Neiman hire Mr. Garza or bring this matter before the City Council and never received any briefing on the matter.  For a comprehensive explanation of the decisions made, including the engagement of an outside attorney, I recommend contacting Mrs. Neiman directly.”