City Council

Since The Austin Bulldog broke the story on January 25 about the Austin City Council holding regularly scheduled private meetings to discuss public business, the reactions have been polarized. Most were aghast that elected officials would do so much deliberating in private, while others thought such meetings were, in essence, a good thing, and it is naive to think otherwise—or even to question the practice.

On January 27, the Austin American-Statesman’s editorial, “Braced for the gathering storm,” concluded, “The Open Meetings law is plain; public business is to be conducted in public,” while the Statesman-owned In Fact Daily oversimplified the situation by raising the argument that “...preventing council members from speaking to one another would be detrimental to the efficiency of city government....” This is a bogus argument, because nothing in the Texas Open Meetings Act prevents elected officials from talking with one another.

Ad hoc discussions are permitted under the act. It is the systematic, regularly scheduled nature of the Austin City Council’s private meetings that may cross the line into actions that flagrantly violate the act.

The overriding factor here is that private deliberations about the city’s business is prohibited by law: Section 551.143 of the Texas Open Meetings Act states: “A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspire to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations of this chapter.”

Attorney General Greg Abbott issued Opinion No. GA-0326 on May 18, 2005, and it specifically addresses the kinds of meetings being held among the mayor and council members.

“[W]e construe Section 551.143 to apply to members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of that body. In essence, it means a ‘daisy chain of members the sum of whom constitute a quorum’ that meets for secret deliberations.”

GA-0326 further states, “As a general matter, Texas civil courts, in construing the OMA (Open Meetings Act), rely on the OMA’s core purposes, which is to guarantee access to the actual decision-making process of governmental bodies. ... As such, the civil courts construe the OMA’s provisions liberally in favor of open government. ... “[w]hen a majority of a public decision-making body is considering a pending issue, there can be no ‘informal’ discussion.

“There is either formal consideration of a matter in compliance with the Open Meetings Act or an illegal meeting.”

Thus it seems clear under the law that these regularly scheduled meetings may violate the Texas Open Meetings Act. The law is not concerned with such niceties as “efficiency” but with making sure the public’s business is conducted in public.

An offense under Section 551.143 is considered to be a conspiracy to circumvent the act, and is a misdemeanor punishable by:

(1) a fine of not less than $100 or more than $500;

(2) confinement in the county jail for not less than one month or

more than six months; or

(3) both the fine and confinement.

Analysis

In response to major media attention stemming from The Austin Bulldog’s investigative report published earlier today about possible violations of the Texas Open Meetings Act by the Austin City Council, Travis County Attorney David Escamilla issued a statement saying he had received and is reviewing a complaint “alleging that Austin City Council members, including the Mayor, have violated the Texas Open Meetings Act, specifically Section 551.143.

“The complaint alleges the Mayor and Council have coordinated a regular series of private gatherings of Council members in numbers less than a quorum to conduct private discussions; thereby avoiding the public notice and meeting requirements of the Act.”

Escamilla did not reveal the name of the complainant, but Brian Rodgers, who featured prominently in The Austin Bulldog’s investigative report, said he is the person who filed it.

Brian Rodgers has been a thorn in the side of Austin city government since at least 1997, when he was one of the citizens who launched a successful campaign to eliminate the influence of big money donations in mayoral and city council elections.

He has agitated for changes on a wide range of issues, including repealing tax subsidies for high-end retail development, achieving equity in property taxes, and arguing his case before the city council against the city’s plan to pay all costs of extending water and wastewater service for the F1 racetrack.

In all of these battles with the powers that be he has done his homework, and spent significant sums to produce studies that provide facts for the city council to consider in carrying out its fiduciary duty and protect the interests of taxpayers.

The only victory he’s been associated with in all these years was the 1997 campaign to limit campaign contributions. He’s been a one-hit wonder who lost on every new issue that came along. At the ballot box he narrowly lost in his campaign to Stop Domain Subsidies. At the podium, pleading with the city not to approve $13.5 million to pay all costs for the F1 track’s water and wastewater service, the council voted 7-0, with little discussion, to do so.

Having mostly lost by trying to influence city policies from the outside he decided to consider running for city council this year, as reported by The Austin Bulldog January 12. In exploring the idea of running, Rodgers sought to gain insights from current council members.

He e-mailed Council Member Chris Riley for a get-together. Rodgers says he spent three hours with Riley on December 28, ensconced in the back room of Austin Java at 12th and Lamar. What’s it like to serve on the council, he asked. What are Riley’s days like? How does he communicate with the mayor and council members?

The answer to that last question floored him.

Rodgers says Riley told him that council members and the mayor meet in regularly scheduled private meetings with each other to talk about city business. These meetings routinely occur in days immediately leading up to posted public meetings of the city council.

“We know how we are going to vote by Thursday (council meeting day) except for (Council Member Bill) Spelman, who’s a wild card,” Rodgers says Riley told him.

“When Riley told me that the council already knows how they’ll vote on Thursdays, I sat there angrily thinking about how community activists pour their time and energy into making our city a better place to live—unaware that the council’s votes are set before they even walk into the council chambers.

“I’ve spoken many, many times before the city council, spending countless hours on research each time, preparing my presentation, getting dressed up to come burn eight hours at City Hall waiting to speak my allotted three minutes. And now I find out it was all a giant waste of time because the council had already decided?

“Why don’t they just post the answers on the entrance to City Hall each Thursday morning and save us all the trouble? It’s not just me, but icons like Mary Arnold and scores of well-intentioned people denied their rights every week by a council too busy or too contemptuous to be bothered by what we have to say.”

Posted Wednesday January 12, 2011 2:39pm

Brian Rodgers has long been critical of the way the City of Austin manages taxpayers’ money. He has agitated for changes on a wide range of issues, including equity in property taxes, limiting campaign contributions, and repealing tax subsidies for high-end retail development.

Now he’s deciding whether he should run for a seat on the Austin City Council, where he would have a far greater ability to influence city policies and spending.

He’s especially eager to find ways to quit subsidizing growth that he contends does not pay for itself. That’s a theme that’s been running for years on the website of an organization he co-founded in December 2008, ChangeAustin. There’s even a Voter Pledge form on the website, that says, “I plan to vote for candidates in the May 2011 Austin City Council election who will fight to make Austin’s growth pay for itself and to halt the long-standing practice of special interests (large-scale developers and land speculators in particular) off-loading their costs onto current residents. Enough already.”

If he runs, Rodgers says he will oppose Council Member Randi Shade, who is seeking her second term. She hosted her campaign kickoff at Mercury Hall last night and drew an energized crowd. Her campaign website lists more than 150 supporters. Campaign finance reports are not due until January 15. Shade carried over $2,105 from previous reports.

In telephone interviews Rodgers said he’s undecided whether to seek election—mainly because he’s not sure he can run his real estate business and serve on the council at the same time.

The filing period for this election opens February 12 and closes March 14. The election is May 14.

“I’m still mulling it,” he says.

“The cost of living is killing us,” he says. “I think Randi Shade is tone-deaf to what regular citizens are facing.”