City Attorney

 Austin’s Failing Public Information System

Well-intentioned reforms were made during county attorney’s
investigation but the City’s TPIA compliance is still shaky

© The Austin Bulldog 2015
Investigative Report by Ken Martin
Part 1 in a Series
Posted Monday November 23, 2015 1:40pm

“Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees....” —Texas Public Information Act

Major flaws in the City of Austin’s response to public information requests were exposed in The Austin Bulldog’s stories about the experiences of requestor Brian Rodgers in his lawsuit, Brian Rodgers v. City of Austin.

The City not only failed to provide the information but ignored complaints from Rodgers’ attorney, Bill Aleshire—even his final warning that litigation would ensue if the information were not provided. Then when the lawsuit did hit, the City heedlessly claimed in its original answer that the information had already been provided. During discovery that claim was proven to be patently false.

The lawsuit was settled with the City agreeing to pay Rodgers $5,000 for its poor handling of his several information requests and to avoid a motion for sanctions for its inept response to the lawsuit. That’s only about half the amount he spent to force the City to pay attention.

This article will detail how and why the City’s system for processing public information requests became what it is today. Later articles will show that what happened to Rodgers was not an isolated incident but rather an indication of systemic problems.

Big changes made but flaws remain

These problems have persisted despite numerous major initiatives.

The City created a team of senior advisors to review its practices and make recommendations to enhance compliance and oversight, and streamline the process for public information requests.

The City moved responsibility for processing public information requests to the Law Department and established within it a Public Information Request (PIR) Team whose salaries now total more than $300,000 a year.

The City committed more than $360,000 to contract for a PIR software system and provided training on the new software to more than a hundred PIR Team and departmental employees who process requests.

Despite these efforts the city has not maintained complete and consistent compliance with the TPIA and the statutory requirements and deadlines it imposes.

To appreciate the City’s current system for responding to PIRs it is necessary to first understand in more detail the major changes that have been made and the forces that necessitated these efforts.

One thing is certain: these changes were not made as a result of some entrepreneurial spirit rising up spontaneously within the City bureaucracy. They were not prompted by an elected leadership that suddenly chose to seek the Holy Grail of transparency and open government.

These changes were made to amend for criminal conduct that could have landed the entire governing body in jail. In fact the City spent more than $600,000 on outside attorneys to fend off prosecution for criminal violations that led to these reforms and provide advice about how to achieve better compliance. These reforms were initiated while being investigated to convince prosecutors that the City was serious about doing better.

Turning over a new leaf

 Kennard Resigns City Lobbying Job

Former city attorney quitting rather than continue
in a position as the City of Austin’s chief lobbyist

by Ken Martin
© The Austin Bulldog 2015
Posted Tuesday June 30, 2015 4:16pm
Updated Tuesday June 30, 2015 5:10pm (to add Council Member Tovo’s comments)
Updated Tuesday June 30, 2015 5:27pm (to add link to the city manager’s memo)

Austin City Manager today announced that former Austin City Attorney Karen Kennard is resigning rather than stay in the job of Intergovernmental Affairs Officer permanently.

“I believe that she would have continued to deliver outstanding service in this function,” Ott stated in a memo to the mayor and city council members. “She has committed to staying with us for a few months to ensure that we can transition these important duties.”

Kennard, city attorney since March 2011, was assigned in December to head the city’s lobbying team on an interim basis during the 2015 session of the Texas Legislature, filling a critical gap left by the retirement of the city’s longtime lobbyists John Hrncir and Rod Ellis.

Kennard did not immediately return a message left on her home telephone for a comment.

Ott praised Kennard for her work during the session. “Austin faces critical issues in every session and this one was no exception,” Ott wrote. “I believe that Karen’s expertise and experience ... helped Austin defend against bills that would have limited, or in some cases eliminated, your local control. She was instrumental in our support of the Council adopted agenda. As I knew she would, Karen excelled in a difficult environment.”

Kennard’s stormy tenure

The city attorney reports directly to the city manager and yet is the chief legal counsel to the City Council, a role that requires a delicate dance in avoiding the displeasure of either.

Attorney Bill Aleshire of Aleshire Law PC, a former Travis County judge, has been a continuing critic of the way the city responds to public information requests since that function was transferred from the Public Information Office to the Law Department in the wake of the Travis County Attorney’s investigation of the city’s disturbing open government violations, exposed by The Austin Bulldog’s investigative report published January 25, 2011. (See “Open Meetings, Closed Minds.”)

Kennard was city attorney at that time and Mayor Lee Leffingwell claimed in news reports that the regularly scheduled round-robin meetings being held in circumvention of the Texas Open Meetings Act had been authorized by the city attorney. (See “Mayor Claims Lawyers Okayed Private Meetings But City Won’t Release Proof.”)

Aleshire recently filed a lawsuit against the City of Austin on behalf of client Brian Rodgers because of the city’s failure to respond to his several requests filed under the Texas Public Information Act (TPIA). (See “City Sued Over Public Records.”)

“With Kennard’s resignation, I expect the quality of legal advice to the City to be improved,” Aleshire said. “For example, I strongly suspect that had Ms. Kennard done a better job as city attorney, (1) the prior Council would not have gotten in trouble for Open Meetings violations, (2) the City’s public information system—housed in Kennard’s law department—would have performed better and avoided lawsuits, (3) financial disclosure laws would have been enforced instead of ignored, and (4) the City Parks staff and purchasing office would not be ignoring the Charter prohibition against giving up parkland to private profiteers without voter approval. 

“I also recall Ms. Kennard giving outrageously wrong legal advice to the City Council telling them, that under the City Charter, the Council could not adopt a policy requiring City employees to put all e-mails about city business on the city’s computer so they were subject to disclosure under the TPIA.”

Kennard’s lobbying praised, interim successor continues

Although the City Council could wait until August to set the ballot for the City Charter revisions to be put before voters in November, action is already moving forward.

Seven items were on the April 26 council meeting agenda that dealt with recommendations offered by the 2012 Charter Revision Committee. Four were passed, two were postponed, and one was withdrawn in the face of strong opposition and advice from outside counsel.

The Roman orator and philosopher Cicero once wrote, “The good of the people is the greatest law,” and that seems to be a guiding principle in how the Georgetown City Council deals with the fate of its chief legal counsel, City Attorney Mark Sokolow.

None of the four council members interviewed would speak on the record about how they intend to vote in tonight’s council meeting, and no one but the council members can decide whether Sokolow keeps or loses a job that pays $130,000 a year.

Mayor George Garver cannot vote except to break a tie and says his focus for action this week has been to establish an orderly and discreet process for considering whether Sokolow goes or stays, and under what conditions.

Nevertheless there is a possibility that Sokolow will be terminated just over 10 months after he started work last October 19 with the responsibility to establish a new in-house legal staff.

The municipal legal career of Mark Sokolow has seen its ups and downs:

Up: In 1991, Sokolow was hired by the City of League City, Texas.

Down: In February 1996 he was fired as city attorney of League City; he returned the favor by suing the city.

Up: Despite getting canned by League City, he was hired the very next month as city attorney for the City of Port Arthur; a council member in Port Arthur when Sokolow was hired said the council wasn’t aware of what had happened in League City.

Down: Sokolow's lawsuit against League City was so flimsy it was dismissed without getting a trial.

Up: When Sokolow resigned last October to take the job of Georgetown’s city attorney, the Port Arthur city council handed him a hefty bonus.

Up: Sokolow was hired by the City of Georgetown and started work last October 19 for $125,000 a year.

Down: He is working for the City of Georgetown under a contract that was never legally executed.

Down: The Austin Bulldog reported on May 4 how Sokolow facilitated the illegal payment of $13,600 for Georgetown Council Member Pat Berryman last December.

Down: He screwed up a deal to buy property for city facilities, hacked off the school district and embarrassed the city he represents.

Up: After six months on the job the city council evaluated his performance and gave him a $5,000 raise.

Down: He has alienated numerous colleagues. Examples abound, as detailed below.

Down: City staff is rooting for his ouster, though they fear being fired if they speak up.

The defense rests: Sokolow declined to be interviewed for this story.