2009 Austin City Council E-mails

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Austin City Council
Austin City Council

E-mails Exchanged By Council Members Expose Private Deliberations and Political Maneuvering

More than 2,400 Pages of 2009 E-mails Published Here in a Searchable Format

Updated July 6, 2011 10pm
Updated July 7, 2011 at 11:05am to correct for Chris Riley
Updated 12 noon July 7, 2011 to correct for Randi Shade
Austin City Council
Austin City Council
Randi Shade
Randi Shade
Kathie Tovo
Kathie Tovo

The schisms within the Austin City Council that surfaced during the runoff election between incumbent Council Member Randi Shade and challenger Kathie Tovo were a revelation, as the other incumbents split evenly in lining up to support Shade or Tovo.

Such passionate and public election advocacy among sitting council members is rare, if not unprecedented. The election outcome created deep political wounds in need of healing, not only for personal relations among council members but also for making good public policy when the council’s summer hiatus is over in three weeks.

The thousands of e-mails written in 2010 and January 2011 obtained through open records requests and The Austin Bulldog’s lawsuit, published May 12, foreshadowed some of the differences that surfaced in this runoff election. But the e-mails exchanged by council members in 2009, published here, show the roots of dissent among council members goes back much further.

The latest batch of more than 2,400 e-mails obtained through an open records request raise new issues—not only for what these e-mails reveal, but also because of what was withheld.

Some of these records show council members communicated among themselves about city business in numbers equaling or exceeding a quorum, a possible violation of the Texas Open Meetings Act.

Some of the council members also deliberated through their private e-mail accounts about a $250 million city project that was under consideration.

As for what was withheld, two (not four, as first reported) council members failed to provide copies of e-mails about city business conducted on their personal e-mail accounts during calendar year 2009: Sheryl Cole and Mike Martinez. (Deleted Chris Riley and Randi Shade.)

To withhold private e-mails about city business flies in the face of at least four open records opinions issued by the Texas Attorney General, which state that e-mails about government business that were created or received on personal accounts are public records (OR2003-0951, OR2003-1890, OR2005-01126, OR2005-06753) and thus are subject to release under the Texas Public Information Act.

As reported March 2, The Austin Bulldog filed a lawsuit against the mayor, council members, and City of Austin because of the failure to release copies of personal e-mails about city business exchanged by the city council during calendar year 2010 and January 2011. As a result, the mayor and council members eventually relented and released at least some of those e-mails.

For e-mails sent or received in 2009, Mayor Lee Leffingwell and Council Members Laura Morrison, Chris Riley, and Randi Shade released personal e-mails about city business and Council Member Bill Spelman released city business e-mails from his University of Texas account. As in the earlier releases forced by the lawsuit, the city characterized these actions as being voluntary. (Update July 7, 2011: Click here to see the cover letter provided by the City of Austin that accompanied the 2009 e-mails released by the city.)

The bottom line is the other city council members continue to take the position that they need not turn over e-mails about city business conducted on personal accounts. This position is inconsistent with the e-mail policy the city council adopted in an April 7 resolution that applies going forward. (See The Austin Bulldog report of April 15.)

Personal politics trump public policy

It should come as no surprise that politicians are prone to worrying about the political ramifications of their decisions, and how those decisions affect their chances of reelection or advancement to higher office. Some of the 2009 e-mails provide clear evidence.

In January 2009, Lee Leffingwell was a council member running for mayor against fellow council member Brewster McCracken, former State Comptroller (and former mayor) Carole Keeton Strayhorn, and two others. Council Member Mike Martinez was running for reelection against a single opponent who raised no money for the campaign.

A major issue brewing at the time was whether the city would invest an estimated $250 million to purchase power from a proposed large solar project to be built in the Webberville area in far eastern Travis County. Austin Energy had included the purchase in its renewable energy portfolio when briefing the council in 2008.

Energy activist Paul Robbins was urging council members not to authorize the expenditure unilaterally but instead to let voters decide on funding for the solar project by putting a revenue-bond proposition on the ballot.

Political consultant Mark Littlefield addressed the solar project in a lengthy e-mail dated January 30, 2009, which was among the e-mails obtained from Leffingwell’s private e-mail account. The e-mail was addressed to Mark Nathan and possibly to Leffingwell and Martinez as well. (The redactions make it impossible to identify two recipients who got Littlefield’s message, but both Leffingwell and Martinez participated in the ensuring exchanges.) At the time, Nathan, who is now the mayor’s chief of staff, was a consultant for Leffingwell’s mayoral campaign.

In his e-mail, Littlefield advised caution about putting the solar project on the ballot for the same May 9 election ballot that would seal Leffingwell’s mayoral ambitions.

Littlefield wrote:

1. We know, more or less, who is going to vote in May 2009. The good news is that these voters are ‘our people.’

2. Putting something controversial on the May 2009 ballot will dramatically change the turnout equation. My fear is that it would end up like the smoking ban election in 2005 or the domestic partners benefits election in 1994. Both of these ballots increased turnout, but not ‘our people’. There would be strong support among ‘our people’ to vote for solar panels, but there would not be a lot of money behind such a campaign. It is much easier to vote against something—especially an emotional issue such as this in an equally emotional/uncertain economic time as this. I think (radio host) Bob Cole and some limited government activists would increase turnout. They would not be our people and we wouldn’t know who there were until after election day.

3. I just think it would help Brewster and Carole. Trying to link Carole to Solar Panels to the Nuke Election of the 1980s is too much of a stretch for voters to understand or care about. I think she would instead use it as a positive issue for herself.

Martinez responded, “I spoke to Littlefield. He made great points and I want to bring him into the conversation.”

Leffingwell responded: “We—Council—has already promised to get voter approval for debt for nuke or conventional coal. That could be expanded to include any power generation that costs more than 50%—or so—above the standard cost. That would certainly cover the solar array, but would probably anger the solar guys. And Mike is right—the cost of the solar plant is sky-high and fuzzy to boot. That said, a blanket agreement to have voter approval for all revenue bonds would cripple AE (Austin Energy) and AWU (Austin Water Utility), and very likely force AE into privatization. And keep in mind that Rev (revenue) Bonds are not tax funded, and probably would have to be approved by the entire CCN (area covered by the city’s Certificate of Convenience and Necessity, which extends beyond the city limits)—not just Austin voters.”

On March 1, Mark Nathan wrote, regarding the proposed solar project, “I think the politics makes us have to do something right now with Gemini (Gemini Solar Development Company was the project developer). If we push it off…we won’t be able to escape the ‘we killed solar’ tag in the short term.”

To which Martinez adds, “I hear (Council Member Sheryl) Cole and (Mayor Will) Wynn are flopable. Not sure about the rest but think Shade could be convinced. Brew (Brewster McCracken) is just going to stick to his message about Austin being the leader blah blah blah…he won’t back down at this point….”

Ultimately, the political calculus resulted in not putting the$250 millionsolar project on the ballot. Lengthy e-mail exchanges in early March between Nathan, Martinez and Leffingwell—all on private e-mail accounts—focused on the financial aspects of the project.

On March 5, 2009, the city council voted unanimously to give the $250 million project the go-ahead.

In the May 9 mayoral election, Leffingwell netted 47.23 percent of the vote, while runner-up McCracken got 26.81 percent and then withdrew from competing in a runoff.

Council Member Martinez—who participated in these exchanges via his personal e-mail account—provided no e-mails from his personal e-mail account related to city business for 2009. (To access these e-mail exchanges, click the link at the bottom of this story for Leffingwell’s personal e-mail account and see pages 115-133.)

The solar project is currently under construction and is expected to be operational by the end of this year, the Austin American-Statesman reported June 26.

Maneuvering on Leffingwell vs. McCracken

In March 2009 work was underway on a project to redesign the city’s website. On March 25, 2009—just six weeks before the May 9, 2009, election in which then Council Member Lee Leffingwell beat then Mayor Pro Tem Brewster McCracken and other candidates to win the mayor’s job—an e-mail discussion took place about that project, which was on the next day’s council agenda to authorize negotiation and execution of a contract with Cignex Technologies Inc. of Santa Clara, California.

Larry Schooler, who at the time was a policy director for Council Member Leffingwell, participated in the e-mail exchange concerning the city’s work on a new website. Schooler—who used his private e-mail address to send a message to five council members on their private e-mail accounts—offered political advice pertaining to Brewster McCracken (BM).

Schooler wrote, “Especially in light of the statement that BM (Brewster McCracken) put out, it now seems even more worthwhile to consider moving forward. BM bills himself as a tech/new media candidate but he wants to both halt the website redesign AND potentially undo a lot of work already done with Plone (an open-source content management system) on the city’s internal intranet, which would cost us a lot of money. I know questions may remain, but I think BM actually dug himself a hole with his statement and we should consider the ramifications of jumping in that hole by opposing the item or postponing it.”

The council ignored Schooler’s advice, however, and voted unanimously the next day(open the minutes and see Item 38) to postpone the item indefinitely. (To access this e-mail exchange, click the link at the bottom of this story for Leffingwell’s personal e-mail account and see pages 22 to 25.)

Do as I say, not as I do

Mayor Leffingwell chided Council Member Bill Spelman because Spelman had sent an e-mail to all council members containing his analysis concerning whether to build Water Treatment Plant 4. (See Leffingwell’s city e-mail account, page 71.)

Leffingwell wrote on September 16, 2009: “Bill: The Texas Open Meetings Act considers emails to a quorum of Council members a potential violation of the Act. It’s particularly problematic when it’s a discussion of business before the council. I’m not a lawyer, so I don’t have an opinion in this particular case, but I do know that it has come up several times in the last few years. (Integrity Officer) John Steiner and/or (City Attorney) David Smith could give you an opinion.”

But Leffingwell himself just weeks earlier had written an e-mail that might warrant the same kind of caution: On August 28, 2009, he wrote to every council member that, “I am very open to the idea of increasing the charge for the 5th tier” of water rates to encourage conservation. (See Leffingwell’s city e-mail account, page 83.)

Leffingwell’s e-mail of September 16 did not deter Spelman. On October 1, Spelman sent his third and final PowerPoint presentation on Water Treatment Plant 4, this one involving a risk analysis. Like the other analyses Spelman sent on August 25 and September 14, the October 1 PowerPoint was sent to all council members. (See Spelman’s city e-mail account, pages 7, 62, and 88)

Dealing with the press

City council members are often irritated when reporters pose prickly questions. Such was the case when KXAN reporter Matt Flenner was set to air a story that the city was spending about $1,100 per council meeting to buy lunch and dinner for council members and some 65 staff members.On August 19, 2009,Flenner e-mailed a synopsis of his story to all council members and solicited comments.

Council Member Martinez sent a message to all council members on their city e-mail accounts the next morning, writing, “I personally think there should be one ‘official’ coordinated response to a hyped up story like this. I would urge all to consider this.”

Five minutes later, the recently elected Mayor Leffingwell replied to Martinez through personal Blackberry e-mail account, writing, “Sounds like a story for a high school paper. I plan to ignore it. Nothing good can come from responding to something like this, especially to a reporter demonstrably unconcerned with the facts.” (See Leffingwell’s personal e-mail account, pages 17 and 18)

The council members were let off the hook when Mark Nathan informed everyone that City Manager Marc Ott had gone on-camera to respond to KXAN’s Flenner. (See Martinez’ city e-mail account page 139.)

Warring council factions

A number of the e-mail exchanges indicate that council members were teaming up to play a game of one-upmanship, usually at the expense of Council Member Laura Morrison.

Don’t make a lawyer cry—During the February 12, 2009, council meeting, at 3:35pm political consultant Mark Nathan, who was working on Leffingwell’s mayoral campaign, e-mailed council members Leffingwell, Martinez, and Shade on their personal e-mail accounts to urge postponement of the controversial Wildflower Commons Planned Unit Development zoning case.

Shade replied at 4:37pm: “Looks like we’re good to go. LM (Laura Morrison) knows the reality of the situation. She’ll try to get public process added (i.e. back to ZAP and Enviro Board) but she knows this is the deal now. Good job.”

Nathan replied, “Thanks Randi. FYI I think (Wildflower Commons PUD attorney Stephen ‘Steve’) Drenner will break down and cry if directed to go back to ZAP (Zoning and Platting Commission) and Environmental.”

The council followed Nathan’s advice, voting 6-1, Morrison opposed, to postpone the zoning case till August 20 and allow it to return directly to the city council, bypassing the Environmental Board and Zoning and Platting Commission. (See Leffingwell’s personal e-mail account page 134.)

Child care issue—Laura Morrison was targeted by Randi Shade in an e-mail exchange that started August 19, 2009, when Susan Moffat wrote to all council members to express her concerns about moving the starting time for zoning cases from 4pm to 2pm, in part because it could force working parents to pay for a baby-sitter and have trouble finding one during school hours.

Shade and Moffett exchanged e-mails about this on August 23, then Shade wrote to Mayor Leffingwell: “See exchange below. Seems like a good way to go: 2pm posting with no confusion by offering possible postponements and then agree to review after 3 months. And we don’t let LM (Laura Morrison) own the child care issue.” (See Leffingwell’s city e-mail account pages 86 to 89.)

Historic preservation tourism—Robert “Bob” Lander, president and chief executive officer of the Austin Convention and Visitors Bureau, wrote an e-mail to all council members at 5:35pm on August 27, 2009, to answer questions about funding to promote tourism associated with historic preservation. This was a matter of concern for Council Member Morrison, who replied to Lander (and no others) at 7:38pm the same day saying she wanted to get a productive dialog going on this topic.

Council Member Shade e-mailed Council Members Sheryl Cole and Mike Martinez at 8:05pm that evening: “Looks like LM (Laura Morrison) is going to try to take the lead on this one … we need to beat her to the punch.”

Martinez replies at 8:07pm, “Tell me what to do … I’m in.”

At 9:52pm, Shade writes, “Give me till Monday to get some thoughts together and then let’s go to Laura. I don’t want her to be left out, but we can’t meet in a quorum and experience has taught me that it is better to start with something and then have Laura react than it is to play defense after Laura already has something in her head ready to go. I want us to create a proposal not react and/or (do) damage control (on) hers.” (See Cole’s city e-mail account pages 118 to 121.)

Water Treatment Plant 4—WTP 4 and water conservation were on everyone’s radar in 2009. At 1:36pm on October 28, Council Member Shade shared an opinion piece she had written for the Austin American-Statesman with Mayor Leffingwell and his chief of staff Mark Nathan, and passed along notes that her policy aide, Glen Coleman, had taken at a meeting that morning “(he graciously invited himself to the meeting)” with people involved in pushing for water conservation instead of a new treatement plant, including Council Member Morrison and former Council Member Brigid Shea.

“…as you know, the Morrison/Spelman/Riley team have been meeting. Morrison wants to have something on the next meeting agenda (November 5). … “I would really like to have a conversation with you—a powwow among all of us if possible—today or tomorrow to come up with a strategy to work with Marc Ott and Rudy, so that together we can lead instead of playing in Re-Act mode to whatever Morrison’s got cooking.”

To which Leffingwell replied, “It is evident from the notes (Coleman took) that Brigid and crowd know next to nothing about our water contracts with LCRA, and they know nothing about Colorado basin priorities [see today’s paper re: LCRA curtailing agreements with other (customers) so that they can meet their contractual obligations—i.e. COA)]. There is no date certain for the water trigger—it’s based on consumption—it could be now or never.

Leffingwell closes with, “As Charlie Brown would say: ‘Good grief.’” (See Leffingwell’s city e-mail account pages 43 to 46.)

Zoning issue—A different power play at Morrison’s expense came during the city council meeting of November 5, 2009. Council Member Shade e-mailed Mayor Leffingwell at 8:07pm: “If you call on me before Laura grabs the mic—I’d love to make the motion to deny both appeals, adopt staff’s findings, and adopt the ZAP rec of 8 years.”

To which Leffingwell replied at 8:14pm, “I will consider this a request to speak first.” (See Leffingwell’s city e-mail account page 36.)

The theme that runs through all these examples is that Leffingwell’s faction on the counsel—and particularly Randi Shade—spent a lot of energy in an effort to contain Laura Morrison and thwart her initiatives.

Shade’s defeat in the June 18, 2011, runoff at the hands of Kathie Tovo—aided by support from Council Members Cole, Morrison, and Spelman—shows what a strong ally the mayor lost.

While Mike Martinez’ decision not to compete with Cole for the mayor pro tem’s slot last month was characterized in the press as being gracious, Cole’s election as mayor pro tem by the council members was a foregone conclusion, given the election alliance of Cole, Morrison, Spelman and Tovo.

Pouting over protocol

On October 22, 2009, the city’s public information office issued a press release to announce the council’s appointment of Kenneth J. Mory as city auditor. The release listed Council Member Sheryl Cole’s policy director, Stephanie McDonald, as the point of contact for press calls.

Leffingwell’s chief of staff Mark Nathan immediately wrote to Leffingwell, Martinez and Shade, “Just curious, did y’all agree that Cole’s office would be announcing this hire?”

To which Martinez replied, “Never discussed. Quite honestly anything that Cole’s office handles concerns me.”

As the e-mail conversation ensued, Shade defended Cole’s action, and Leffingwell ended the discussion, writing, “There is no question that it was inappropriate for Sheryl to make the announcement. That said, nothing to be gained by pursuing it that I can see.” (See Leffingwell’s city e-mail account pages 47 to 53.)

Resents environmental press conference

On September 1, 2009, the Sierra Club sent an early morning e-mail to all council members to invite them to attend a 10am news conference that would publicly urge Austin Energy to quit using coal to generate electricity. The press conference was designed to gain attention before Austin Energy’s Town Hall Meeting scheduled for that evening.

Organizations participating in the press conference included the Sierra Club, Re-Energize Texas, Public Citizen, Environment Texas, and PowerSmack.

“We hope you can attend the press event this morning. … Our environmental groups appreciate your leadership and want to provide input on the City’s future generation resources,” wrote Donna Hoffman, communications coordinator for the Sierra Club.

Martinez immediately e-mailed the mayor’s chief of staff, Mark Nathan, Leffingwell, and others, stating, “This kind of stuff is unnecessary and irresponsible. We are doing absolutely everything as a city to go green as soon as possible. Not using coal is just not an option right now and all of these folks know it.” (See Leffingwell’s personal e-mail account pages 9 to 11.)

The documents

The Austin Bulldog’s open records request asked for only those e-mails exchanged by the mayor, council members and city manager from January 1, 2009, through December 31, 2009. Our request did not ask for e-mails about any particular topic. E-mail exchanges that included other individuals are only incidental.

All of these records—a total of 2,437 pages—are presented in Portable Document Format (pdf) files that have been converted from image files to text recognition files to allow comprehensive searches.

Mayor Lee Leffingwell:

City e-mail account: 176 pages

Personal e-mail accounts: 137 pages

Mayor Pro Tem Mike Martinez:

City e-mail account: 370 pages

Personal e-mail accounts: None

Council Member Sheryl Cole:

City e-mail account: 231 pages

Personal e-mail accounts: None

Council Member Laura Morrison:

City e-mail account: 615 pages

Personal e-mail accounts: 8 pages

Council Member Chris Riley:

City e-mail account: 106 pages

Personal e-mail accounts: 58 pages

Council Member Randi Shade:

City e-mail account: 300 pages

Personal e-mail accounts: 81 pages

Council Member Bill Spelman:

City e-mail account: 117 pages

University of Texas account release: 10 pages

Personal e-mail accounts: None

City Manager Marc Ott:

City e-mail account: 228 pages

Personal e-mail accounts: None

This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help to sustain The Austin Bulldog’s reporting by making a tax-deductible contribution.