Compliance With Texas Public Information Act
Policy Does Not Cover All City Employees
by Ken Martin
© The Austin Bulldog 2011
The Austin City Council voted 7-0 on April 7 to institute an e-mail policy that establishes city accounts as the primary means of communicating about city business. If circumstances require communicating about city business on a non-city account, that communication is to be promptly forwarded to a city account.
When complied with, local government records created or received on personal communications devices or personal accounts will be collected, assembled, and maintained to be available upon request under the Texas Public Information Act. Release of these communications, like any other public record, will be subject to the exceptions provided for in the Act.
The policy would also bring the city’s deficient procedures of the past into compliance with laws that have been on the books for decades, including the Local Government Records Act and the city’s own Local Government Records Control Schedules (see report of April 6, 2011).
This policy would also satisfy some of the concerns laid out in The Austin Bulldog v. Mayor Lee Leffingwell et al lawsuit filed March 1, as well as The Austin Bulldog’s civil complaint filed March 23 with County Attorney David Escamilla.
As originally written, the Draft Resolution would have applied the policy to all city officials and employees.
The Adopted Resolution, however, applies the policy only to the mayor, city council members and the city employees directly appointed by the city council: the city manager, city clerk, city auditor, chief judge of the municipal court, and municipal court clerk. The policy applies to all communications occurring immediately after the adoption of the resolution.
The council backed off the original draft resolution after a discussion that lasted nearly an hour and a half involving the council members, City Attorney Karen Kennard, and attorney James E. “Jim” Cousar of Thompson & Knight LLP.
Mayor Lee Leffingwell asked Kennard if the council could legally apply this policy to employees over which the council has no direct supervisory authority.
Kennard answered: “The City Council under the (City) Charter does not have the authority to apply personnel policies to city employees. That authority is given exclusively to the city manager. And so in looking at the policy we would have to have some language that recognizes that the charter gives that exclusive authority to the city manager and not the council.”
The mayor said the city manager also could set a policy that applied to the employees in council offices—implying that council members cannot order employees in their council offices to comply with the new policy.
“That’s correct,” Kennard said. “Including the council aides, under our charter, those employees are subject to the exclusive direction of the city manager.”
That statement is at odds with the way that council offices actually function. In practice, council members hire the people who work in their offices, said former City Council Member Beverly Griffith, who served on the council from 1996 to 2002. Council staff members work under the day-to-day supervision of the council members and their performance ratings are completed by the council members, Griffith said. Council aides interviewed said these procedures are still in effect.
Toward the end of the discussion Council Member Bill Spelman revised the draft resolution to conform to Kennard’s legal advice.
The adopted resolution directs City Manager Marc Ott to “develop a policy regarding the conduct of city business on personal communication devices by all other city employees and report progress to the council within 30 days.”
A resolution is an expression of the City Council’s position, not an ordinance. The adopted resolution provides no means of enforcement and no penalty for violating the policy it establishes.
City council can’t establish policies?
Members Private E-mails, Text Messages
Volunteers Needed to Review Correspondence
and Provide Feedback About Any Irregularities
by Ken Martin
© The Austin Bulldog 2009
In response to open records requests, The Austin Bulldog has obtained hundreds of pages of e-mails and some text messages in which members of the Austin City Council communicated among themselves using personal devices or personal accounts.
Your help is needed in poring over these e-mails to create a better public understanding of these communications. It’s a work party and you’re invited. Read the messages and e-mail your findings to The Austin Bulldog at [email protected].
If you decide to jump in and help, here are some questions to keep in mind:
Why private?—Help figure out why the city’s business being discussed in these messages was not conducted using city accounts. Does it appear to be a matter of convenience or does it indicate a desire to evade public scrutiny?
Walking quorum?—A walking quorum exists when four or more council members discuss the same topic of public business among themselves. That could occur when one string of e-mails circulates on that topic among four or more members of the council. A walking quorum could exist when disconnected strings of e-mails in effect establish a quorum discussing the same topic. E-mails among fewer than a quorum may make reference to discussions with other council members that when taken together indicate establishment of a walking quorum.
City e-mail addresses?—Do any of these e-mails involve one or more city e-mail addresses? Point those out so we can research them further.
Controversial topic?—Are the council members discussing something controversial and if so, what seems to be the reason for using private e-mail accounts?
Ask for confidentiality?—Do any of these messages explicitly ask for or imply that the discussion should be kept secret?
To access 115 pages of Mayor Lee Leffingwell’s private e-mails released April 8 click here.
To access 14 pages of Mayor Pro Tem Mike Martinez’ private e-mails released April 8 click here.
To access nine pages of Cole’s private e-mail and Facebook message released March 31, click here.
To access 11 pages of Council Member Laura Morrison’s private e-mails released March 30 click here.
To access 33 pages of Morrison’s private text messages released April 8 click here.
To access 104 pages of Council Member Randi Shade’s private e-mails released April 8 click here.
Council Member Bill Spelman has not released any e-mails involving a private e-mail account. He released three e-mails involving his University of Texas account on March 29. To access those 10 pages, click here.
by Lack of Controls Over Deletion of E-mails
Missing Records Likely More
Important Than Gossipy Tidbits
Investigative Report by Ken Martin
© The Austin Bulldog 2011
The Austin American-Statesman and some television reports had a field day serving up e-mail exchanges among the mayor and council members that reveal the proclivity of some officeholders to hold side discussions among themselves during council meetings in which they demeaned certain citizens and showed a lack of confidence in high-level employees, including the city manager, an assistant city manager and the fire chief.
This rush to dish the dirt out of the e-mails that have been released—in response to open records requests filed under the Texas Public Information Act, first by The Austin Bulldog and later the Statesman and other media—has been entertaining, in a sense, and has triggered profuse apologies from the offending officeholders. A heaping helping of humble pie has been served up and choked down.
What has not been reported is how these elected officials, and their staff members, may be failing to properly manage e-mails and other correspondence to make sure that local government records are collected, assembled, and maintained in accordance with the Local Government Records Act.
At present, the city permits every city official and employee to conduct public business by creating or receiving local government records via e-mail and to keep them secret by using personal e-mail accounts.
The city also permits every official and employee who uses a computer to choose—without review by anyone else—when to delete local government records in the form of e-mails created or received on the city’s computers. Once e-mails are deleted, the right of access to them through the Texas Public Information Act, Government Code Chapter 552, is soon permanently lost.
The city’s failure to comply with the Texas Public information Act and the Local Government Records Act was the basis for the lawsuit, The Austin Bulldog v. Mayor Lee Leffingwell, et al, as reported March 2. The city has until April 11 to file its initial reply to the pleadings.These shortcomings are also the basis for The Austin Bulldog's complaint filed with County Attorney David Escamilla,as reported March 23.
The city’s response to The Austin Bulldog’s open records requests for deleted e-mails indicate that some e-mails that should have been retained are being deleted.
Records retention basics
Pulled Into City of Austin Records Retention
City Council Votes to Consider Policy
Draft at Council Meeting of April 7
by Ken Martin
© The Austin Bulldog 2011
The Austin City Council voted 6-0 this morning, with Council Member Bill Spelman absent, to direct city staff to draft a new policy that would require designated city officials to ensure that e-mails pertaining to city business that are created or received on personal devices would be copied to the city’s e-mail servers so these messages would be available to a requestor under the Texas Public Information Act, Chapter 552 of the Government Code.
The draft policy is to be placed on the April 7 City Council meeting agenda for discussion and possible adoption. Which city officials would be included in such a policy will be discussed at that meeting, but attorney James C. “Jim” Cousar of Thompson & Knight LLP, told the council that requiring all city employees to do so would be “difficult, expensive, and unworkable.”
Cousar suggested that guidance should be provided to anyone made subject to such a policy about what constitutes an e-mail that must be retained by the city vs. a personal e-mail that does not. He also noted that e-mails from personal devices that are forwarded to city e-mail servers would be subject to the exceptions set forth in the Texas Public Information Act that bar release of certain sensitive documents in response to an open records request.
A important question that was not addressed in today’s work session is what penalty, if any, would apply to violators of whatever new policy is adopted.
Lawsuit issues not addressed
E-mails on City Business from Gmail Account
Morrison Second Council Member to Turn Over More
E-mails Responsive to The Austin Bulldog’s Requests
by Ken Martin
© The Austin Bulldog 2011
Late this afternoon the City of Austin’s Public information Office issued a statement by Council Member Laura Morrison along with six e-mails totaling 11 pages.
Morrison is the second council member to break ranks and voluntarily release e-mails requested by The Austin Bulldog under the Texas Public Information Act that were not retained within the city’s communication system.Council Member Bill Spelman yesterday released three e-mails from his University of Texas e-mail account about city business.
She is the first to release e-mails that she created or received from her personal e-mail account.
Morrison’s press release states, “In the interest of transparency, in the few cases when I may have conducted city business with e-mail on my personal account, my policy is to forward the e-mail to my city account. This practice is consistent with the draft policy that was discussed at the March 29 Council Work Session, which I will continue.