City Manager

A policy to ensure the City of Austin’s 12,000 employees comply with state law for retention of public records went from being a fully compliant initial proposal to an implemented policy that falls woefully short of compliance, say experts in the state's open government laws.

The Austin Bulldog reported August 10 on the new policy established by Austin City Manager Marc Ott to guide city employees in how to handle electronic communications about city business. The policy states if circumstances require communicating about city business on a personal communication device or account, that correspondence should be forwarded to a city account.

Flaws in the policy include not stating that the correspondence should be forwarded promptly and leaving it to the discretion of each employee to decide whether the correspondence needs to be forwarded for retention. The policy lacks any means of preventing unlawful deletion of public records or auditing compliance.

Through an open records request The Austin Bulldog obtained two draft versions of the Administrative Bulletin that was ultimately issued August 4 by the city manager. The drafts, dated June 1 and June 15, when compared to each other and the bulletin issued, show how the proposed policy was gutted.

Four experts in the state’s open government laws who are volunteer hotline attorneys with the Freedom of Information Foundation of Texas reviewed the two drafts and the Administrative Bulletin provided by The Austin Bulldog.

“This is a drastic watering down of a policy that was originally intended to comply with the law and provide transparency in government,” said Joel White of the Austin law firm Joel R. White and Associates. He is a past president of the Freedom of Information Foundation of Texas and has represented a wide range of media clients for more than two decades.

Thomas Gregor of the Houston law firm of Ogden, Gibson, Broocks, Longoria and Hall LLP, said in an e-mail, “As originally drafted, the policy better adheres to the tenets and the spirit of open government. Unfortunately, the policy that was ultimately issued was diminished to the point that, while paying lip service to open government, does not ensure or verify the retention of any public information that is generated on a personal device.

“The end result is that there remains a significant gap in the City’s compliance with the open government laws,” Gregor said.

Joe Larsen, special counsel to the Houston-based international law firm of Sedgwick, Detert, Moran and Arnold LLP, said in an e-mail, “I think the policy has been significantly weakened by giving department directors complete latitude to determine how the policy is communicated and not requiring documentation that each employee has received and has access to the information in the bulletin. This will have two likely results:

“First, instead of a formal meeting where the importance of the policy is explained and underscored, any manner of delivery is envisioned. Without a formal setting, the importance of the policy will not be conveyed.

“Second, without a roster or verification, there will be no incentive to insure that the policy is timely communicated and no way of verifying if it has. An employee is very likely to state that he/she was unaware of the policy.

“It is this very issue—claims of lack of knowledge of proper policy—that led to the implementation of required training for public information officers of governmental bodies on the Public Information Act. These officers must have a certificate indicating that they took the required training.

“By requiring employees to forward their administrative value communications to a City account, the City has effectively made each employee the public information officer for his/her personal communication device accounts, and the communication of this policy should also be in a formal setting and it should be documented.”

City Manager Marc Ott approved a policy August 4 that establishes city accounts as the primary means for the city’s 12,000 employees to electronically communicate about city business. The policy was transmitted to employees through an Administrative Bulletin drafted by the Human Resources Department.

The City Council ordered the city manager to devise a policy for employees’ electronic communications in a resolution unanimously adopted April 7. (See The Austin Bulldog’s April 15 report.) The resolution also directed the City Clerk to devise a policy for board and commission members’ electronic communications. (More about that later.)

If circumstances require communicating about city business on a personal communication device or account, that correspondence should be forwarded to a city account, the policy states.

However, the policy grants employees permission not to forward communications if they personally determine that “there is no administrative value in retaining the communication.” This determination is supposed to be made by employees after consulting the “applicable records retention schedule.”

The “Administrative Value retention period” is defined in the Bulletin as “generally associated with routine or administrative business documents. The retention period is tied to the usefulness of the records for the conduct of current or future administrative business.”

The employee communication policy applies to, but is not limited to, e-mail messages, text messages, images, and attachments.

Joe Larsen, a volunteer hotline attorney with the Freedom of Information Foundation of Texas and last year’s recipient of the foundation’s prestigious James Madison Award, is an expert in the state’s open government laws. Larsen praised the city manager’s policy and pointed out some improvements that could be made.

“I’ve never seen any other city in Texas with a policy that would require a city employee to forward electronic communication from a personal account,” said Larsen, special counsel to the Houston-based international law firm of Sedgwick, Detert, Moran and Arnold LLP. “I would have to go on the record in saying I think it’s a good-faith effort to address a complicated problem.”

Is the City of Austin unique in adopting such a policy? The Austin Bulldog sought a comment from Bennett Sandlin, executive director of the Texas Municipal League. The TML website states the organization has more than 1,100 member municipalities, including 34 with a population of 100,000 or more.

Sandlin replied via e-mail, stating, “I’m not going to comment on a specific member city issue.”

Sandlin has, however, previously commented for publication concerning the issue at hand. An e-mail attributed to Sandlin was quoted in a January 12 Texas Watchdog article. Sandlin’s e-mail acknowledged that “...public business e-mails on private accounts are indeed public information.”

Larsen and three other attorneys who are experts in the state’s open government laws say the city manager’s policy for employee communication is flawed and raises serious issues about whether the policy will bring the City of Austin into compliance with the Texas Public Information Act.

Flaws in Ott’s policy

In the wake of the Austin City Council’s first work session in recent memory, held February 9, City Manager Marc Ott told the city council he was concerned about the new policy of conducting Wednesday work sessions in advance of the regular Thursday council meetings, where decisions are made and votes are cast.

“It potentially has an adverse impact on productivity because we have so many people ... dedicated to two meetings,” KUT radio reported February 9.

The work sessions were reinstituted after Travis County Attorney David Escamilla announced on January 25 that he was conducting an inquiry in response to a complaint about possible violations of the Texas Open Meetings Act.

The mayor and council members have been reluctant to publicly state that the work sessions were instituted because of Escamilla’s inquiry—in spite of the fact the private meetings among the mayor and council members were immediately cancelled and the first work session was held the day before the next city council meeting.

But Council Member Bill Spelman conceded as much in a February 9 interview with KUT radio: “That may have been the original genesis behind it (initiating work sessions) but I think anything which allows us to talk freely with one another is a good idea and leads to better decision-making on all of our parts,” he said.

Mayor Lee Leffingwell described the work sessions like this: “It’s kind of like a pre-council meeting,” according to a February 10 report by KXAN-TV.

On February 10, the Austin American-Statesman reported that City Manager Ott asked during the work session whether the city’s department heads would have to spend every other Wednesday on call to answer council questions. Or should the council use the sessions to simply talk with one another—in lieu of the now-cancelled individual meetings.

After that meeting, Ott said he would bring his team together “and dissect what it is going to take for us to prepare ourselves for both a work session, study session, pre-Council meeting—whatever it ends up being called—as well as the regular Council meeting,” In Fact Daily reported February 10.

The council’s second work session is scheduled to begin at 1:30pm tomorrow, February 16, in the Boards and Commissions Room at City Hall, 301 W. Second St. The agenda includes an item for discussion and possible action on work session procedures. No action will be taken and there will be no citizen participation during the work session. Citizens will be permitted to address agenda items at the regularly scheduled City Council meeting on Thursday, February 17, 2011.

Larry Schooler, the city’s community engagement consultant, said in an interview with KUT radio on February 9 that the city council had asked for a review of “best practices” in other cities and had gotten a memo from the city manager that outlines a number of different ways that other city councils elsewhere in the country discuss their agendas prior to a public vote and public comment. “This is going to have to be a work in progress,” Schooler said.

Possible meeting options