chris bowers's letter to the texasoag

8/14/2019 Chris Bowers's Letter to the TexasOAG

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City of DallasSeptember 1,2009

Via Federal ExpressPaul D. Carmona,ChiefConsumerProtectionand Public Health DivisionOffice of the Attornev General300 W. 15thStreetAustin, TX 78701Re: W.W. Samuell Charitable TrusUMemorandum of Agreement

Dear Mr. Carmona:This responds to your letter dated August 27, 2009 (copy attached), regarding thecompliance of the City's Park and RecreationBoard ("Park Board") with the above-referencedMemorandumof Agreement("MOA").First, you state that the Park Board failed to comply with paragraph 12 of the MOA,which required the Park Board to review certain reports by the City's Park andRecreationDepartment("Park Department")with respect o the Samuell Trust Propertiesby July 15,2009, andthat the Park Board provide copies of those reports o the Office ofthe Attorney General("OAG") by the samedate. The Park Departmentpresented hosereports to the Park Board for its review and consideration during its public meeting onSeptember3,2009. The same day, Park Department Director Paul Dyer transmitted hereports to Assistant Attorney GeneralMarsha Acock. Assistant Attomey General SusanStarika has informed us that the OAG is in the processof reviewing the reports. Earliertoday, Assistant Attorney General Marsha Acock informed us that the OAG is stillreviewing the reports.Admittedly, the reports were late. tn the future, the Park Board, through the ParkDepartment,will make every effort to submit materialspursuant o the datesset forth inthe MOA or to timely inform the OAG if such materials will be delayed. However, thetardiness n this case resulted in no demonstrableharm to the OAG, the Samuell parkproperties,or the public (the beneficiariesof the W.W. Samuell trust). Nor does thetardiness ndicate that the Park Board has mismanaged he Samuellpark propertiesor thetrust income. The purposeof paragraph 12, as you state in your letter, is to provideassuranceo the OAG that the Park Department s providing the "Park Board informationthat is relevant to the proper exercise of its duty as trustee." The fact that ParkDepartmentstaff inadvertently overlooked the deadlinebecause hey were working longhours on budget and staffing cuts necessitated y the City's projected$190 millionbudget deficit providesno evidence hat the Park Board is lacking such nformation.

oFFICE OFTHECITYATTOFNEY CITYHALL DAUIS, TEXAS75201 TELEPHONE.I4,I7G3519 FT,0{21U87O-c6e2


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Moreover, you state:"After the City failed to producethe reports,we contacted he City.It took until August 3, 2009 to make contact." This is misleading. The OAG initiated nocontact with the Park Board or its attorneys after the July 15thdeadline. On July 24th,Assistant City Attorney Christine Lanners transmitted via e-mail a draft agreementbetween he City of Dallas and anothermunicipality regardingSamuell Farm to AssistantAttorney GeneralAcock even thoughthe MOA does not require the City to provide suchmaterial to the OAG. This transmission s tangible proof of the City's desire to workwith the OAG. Ms. Lanners informed Ms. Acock that she would be unavailable untilAugust 3'd. On July 27'h,Ms. Acock responded: I will review [the draft agreement]andcontact you after the 3'o." Ms. Acock made no mention of the reports to be.submittedpursuant o the MOA until she spoke o Ms. Lannersby telephoneon August 4'n.Second,you state hat a version of the reports that the Park Departmentsubmittedto theOAG on August 21,2009, did not satisfyparagraph12 of the MOA. This issue s mootin light of the revised reports you received on September 3'd. Nevertheiess,yourcontention hat the contentof the August 21" report did not satisfy the MOA is incorrect.Paragraph12 provides that the written reports consist of "1) current operations of allSamuell Park Properties;and 2) a future plan for the Samuell Park Property known asSamuell Farm." The MOA does not further specify the contentsof the two reports. Youindicate that the August 21" submittal was inadequatebecause t consolidated he tworeports nto a single document andprovided "a simplistic, elementaryoverview of the . . .Samuell Park Property operations." However, nothing in the MOA prohibits the ParkDepartment rom consolidating he reports nto a singledocument.We trust that the reportsprovided to the OAG and this letter satisfy the OAG's concerns.Please et me know at vour earliestconvenience f this is not the case.Sincerely,WB-d*-

ChristopherD. BowersFirst AssistantCity Attorney

Attachmentc: The Honorable Presidentand Members of the Dallas Park and RecreationBoardThomasP. Perkins,Jr., City AttorneyPeterB. Haskel, AssistantCity AttorneyChristineLanners,AssistantCity AttomeyLemuel Thomas, AssistantCity AttorneyPaul Dyer, Director, Park and RecreationDepartmentBarbara Kindig, Assistant Director, Park and RecreationDepartment


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Orrlcp of the ATTORNEYGENERALG R E G A B B O T T

August 7,2009

Mr. ThomasP,Perkins, r.DallasCityAttorneyMr. ChrisBowersAssistantCity AttorneyCityAttorney'sOffice1500Marilla 7BNDallas,TX 7524t

By Fax Transmission:214.670.0622

Rei Memorandumof Agreement/SamuellharitableTrustDearMessrs. erkins ndBowers:I rarite o informyou hat heCity of Dallass in breach f theApril 10,2009,MemorandumfAgreement"MOA'), betweenheOfficeoftheAttorneyGeneral.'OAG"), heCityofDallas, ndthe ParkandRecreationoardof theCityof Dallas, "ParkBoard").TheCity must emedyhisbreach y 5:00p.m.onSeptemberl, 2009. f theCity ails odoso, heOAG s eftwithnochoicebut o take egalactiono enforceheMOA. Amonghe egal emediesvailableo thisoffice s anaction o removeheParkBoardas rustee f theSamuell rust. Becausef theCrty's ailure ocomplywith theMOA, asubstituterusteemaybenecessary.Asyouknow,Paragraphwelve 12)of theMOA req-uireshat:Ttrolater hanJuly15,2009, heParkBoard hall eviewhe ollowingwritten eports y heParkDepartment:) current perationsof all Samuell arkProperties;nd2)a uture lan or heSamuell arkProperfynownasSamuellFarm.Theseeports hallbeprovided ontemporaneouslyo theOAG."TheCity and heParkBoard ailed o producehe aforementionedeportby July 15,2009,asrequired.Further,heCitydidnotseek nextensionfthedateorreceipt orofthedateorreviewby heParkBoard.After heCity ailedoproducehe eports, e contactedheCity. It tookuntilAugust3,2009 o makecontact.We advised f themissed eadline, nd t becamemmediatelyapparentthattheitywasnotaware ftheexistencefthedeadline,or ocused nthepreparationof the equiredeports.Nevertheless,heOAGwasassuredhe eportswouldbe orthcoming.nlaterconversation,e weresubsequentlynformedhattheParkBoarddid notmeet n July-a factthat shouldhavebeenapparento theCityat the ime t signedheMOA. TheCity of DallasParkandRecreation epartment"ParkDepartment")inallytransmittedsingleeport, incorporatingbothof thereports elineatedn Paragraphwelve),on August2I,2009. However,he eport sIittlemore hana imitedPowerPointpresentationhatprovides simplistic,elembntaryverviewof the operationsf the SamuellParkProperty perations.mportantly,he report s not evenscheduledo bepresentedo theParkBoarduntilSeptember,2009.

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LetteroCityof DallasPageAugust7,2009

In a telephone onversationwith the City prior to the report'sproduction, he OAG reiterated hata reportof "current operations" hould ncludedetailed nformation about he currentuse of eachpark,operational osts,andotherbudgetary nformationwhichwould adequately ducate heParkBoardabout he use of thepropertiesor which t cunentlyseryesn afiduciary capacttyas rustee.Moreover, heCityfailedto providesupporting ocumentation,rafinancialoverviewinthereport.Finally,yourreport doesnot include he datanecessaryo inform the Park Board 9f its options orthe futureof SamuellFarm. For example,you failed to include information that would support hePark Department's current recommendation that a contract be entered into with the City ofSunnyvale.Put simply, he August 2l,2009,report doesnot satisf the requirementhat the City provide theParkBoardwith a report of cunent operations.The reportalso acks he requiredfutureplan forSamuellFarm.TheOAG's nitialreviewofthe SamuellCharitable rustfocused,n largepart,ontheCity's failureto adequately rovide theParkBoarri information that is relevant o the proper exerciseof its dutyas trustee. The reporting requirements ncluded in the MOA were intended to assure hat suchinformationwouldbeprovided n thefuture. It is well establishedhata rustee-in his case he ParkBoard-cannotsatisfr its fiduciary duty if it is not adequatelynformed. In this case,he ParkBoardmust be apprisedof all factors elevant to the SamuellPark Propertiesn order to competentlyexecutets duty as stewardoverthe public's property.The City of Dallas's failure to comply with therequirementsof ParagraphTwelve further evidencesits deficientexerciseof properstewardship ver he SamuellCharitableTrust.

ConsumerrotectionndPublicHealthDivision

cc: ChristineLannersAssistant ityAttorney

By Fax Transmission:214,670.0622

Pos rOFr r cEBox l254S , Aus r t N , TExAsTST l t - 2548E L : ( 5 1 2 ) 4 5 3 - 2 1 0 0EB : www. oAc , s rA rE . r x 'usAnEqual nploynenl ppoftnltyEnployer'ulnledonRecycledaper

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