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Hewitt Mayor Pro Tem Steve Fortenberry (right) said he is disappointed the DA will take no action against Hewitt Mayor Ed Passalugo (left) based on Fortenberry’s complaint alleging an Open Meetings Act violation.

McLennan County prosecutors considering if criminal charges should be filed against Hewitt Mayor Ed Passalugo for reported Texas Open Meetings Act violations looked no further than a recent court opinion for the answer.

The DA’s office will take no action in the matter because a February Texas Court of Criminal Appeals ruling declared the portion of the Texas Government Code pertaining to “walking quorums” unconstitutionally vague, said Nelson Barnes, McLennan County first assistant district attorney.

The allegation was investigated by Texas Ranger Jim Hatfield Jr., who recently forwarded his findings to the DA’s office, Barnes said. The Rangers launched the investigation after Hewitt Mayor Pro Tem Steve Fortenberry recorded a phone call with Passalugo in May in which the mayor recounted conversations he had with three other council members.

Counting himself and Fortenberry, the discussion included five of the seven council members, eclipsing the four-member quorum that requires a meeting to be posted. If they discussed city business, the practice could be known as a “walking quorum.”

Both Passalugo and Fortenberry said Friday they are aware of the Court of Criminal Appeals ruling and neither was surprised by the DA’s office decision. Still, Fortenberry said, he is disappointed because he remains convinced that Passalugo violated the spirit, if not the intent, of the Texas Open Meetings Act.

“It is unfortunate, in my opinion, that the mayor will not be held criminally accountable for his actions,” Fortenberry said. “While it appears the charges for the violations will not be pursued, it was always my highest priority for the letter and the spirit of the law to be enforced.”

Fortenberry said he thinks the “pressure of the investigation” played a major factor in Passalugo’s decision not to seek another term on the council.

“At the very least, he won’t be on the council anymore,” Fortenberry said.

Passalugo said he chose not run again because he is caring for his ailing, 95-year-old mother, who is in hospice care at his home, not because of the investigation.

“Nothing was proven,” Passalugo said. “It’s much ado about nothing. It’s much like with Trump. Everybody is going to believe what they want to believe. The liberals will think liberal and they will continue to think like that.”

Passalugo, who leaves the council May 13, said that while he chose not to seek re-election in May, he has not abandoned his interest in politics.

“These kinds of things keep good people from running for public office, but it’s not going to stop me,” he said. “I can guarantee that Mr. Fortenberry will have an opponent in his next election. I might even run against him. Like the world says, ‘What goes around comes around.’ Those who are not honest always get their due and just rewards.”

Fortenberry countered by saying he loves a fair fight.

“I am up for a fair fight,” he said. “If he thinks he can garner the support, more power to him. But I think his past will follow him for the rest of his life. But if he is up for the race, I am ready.”

In the 14-minute recording that prompted the Ranger investigation, Passalugo tells Fortenberry he is frustrated with Adam Miles, then the city manager, because Miles told city employees the council might consider cutting their positions to save money.

“One of the things that upset me but I always figured when him and I talked, or something, that was confidential, and he tells his whole staff what’s going on,” Passalugo says in the recording.

Passalugo continues, telling Fortenberry that high-ranking city staffers started behaving differently around council members after learning of Passalugo’s aims to eliminate positions. Those staffers included Belinda Kay “Katie” Allgood, the city’s managing director of administration; Cassie Rose Muske, then parks and media coordinator; and Assistant Police Chief Tuck Saunders.

All three have since filed formal complaints against Passalugo.

Staff writer at the Waco Tribune-Herald covering courts and criminal justice. Follow me on Twitter @TSpoonFeed.

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