Litigation

 Depositions Expose Public Information Flaws

An assistant city manager who doesn’t like to write,
a public information manager who is inexperienced

by Ken Martin
© The Austin Bulldog 2015
Posted Monday November 9, 2015 3:44pm

“The City of Austin is committed to an open and transparent government. I believe this is an integral part of maintaining a vital and robust democracy.” — City Manager Marc Ott

Ott published this oft-repeated pledge in an April 8, 2015, memo titled “City of Austin Open Data Initiative 2.0.”

Yet, the City has failed to consistently live up to that commitment. By actual performance the City has demonstrated that it receives and routes public information requests to departments or offices thought to have the applicable records but fails to follow up and ensure compliance with the Texas Public Information Act (TPIA) Government Code Chapter 552.

A prime example of the City’s spotty performance was evidenced in the outcome of the lawsuit Brian Rodgers v. City of Austin. As reported November 2, 2015, by The Austin Bulldog, the City agreed to pay Rodgers $5,000 to settle the case and thereby avoid a motion for sanctions or a full-blown trial over its gross mishandling of his public information requests and its inept response to the lawsuit.

Rodgers, who spent about twice the amount he’s getting back in settling the lawsuit, considers the expense to be a good investment in his education as a civic activist. As the plaintiff he sat in on the two depositions taken in this case and observed firsthand how the public officials answered.

“I finally get to understand how the process works—I no longer have to wonder,” Rodgers told The Austin Bulldog. “It's a lack of power by public information manager, a lack of cooperation by city staff, and no one responsible to comply with the law. So it’s set up to gum up the work of activists. Justice delayed is justice denied.

“If they intentionally wanted to thwart people from getting to the root of things before the City Council decides, this will do it,” Rodgers said. “It's easily gamed.”

Although Ott’s commitment to open government, cited above, was made within the context of expanding an existing initiative to publish more of the valuable data the City collects on the City’s website—and in the process possibly reduce the number of public information requests—the City cannot achieve openness, transparency, and accountability if the public’s right to know, which is enshrined in the TPIA, is thwarted.

Two sworn depositions taken by Rodgers’ attorney, Bill Aleshire of Aleshire Law PC, as part of the discovery process in the lawsuit provide significant insights about the shortcomings in the City’s public information system.

(Disclosure: Aleshire has represented The Austin Bulldog in three lawsuits, two of which were TPIA actions against the City of Austin (see links to related stories below.)

Deposition of assistant city manager

 Top Gun to Defend City Charter

City of Austin has hired attorney Renea Hicks to
defeat Council Member Zimmerman’s challenge

by Ken Martin
© The Austin Bulldog 2015
Posted Thursday August 27, 2015 2:35pm

Interim City Attorney Anne Morgan has hired veteran attorney Max Renea Hicks, a sole practitioner based in Austin, to defend the city in the federal lawsuit brought by District 6 Council Member Don Zimmerman. Via a letter dated August 13, 2015, the City has agreed to pay him $350 an hour and a total amount not to exceed $55,000.

As previously reported by The Austin Bulldog (see links to stories, below) Zimmerman’s lawsuit seeks to overturn numerous provisions of Article III, Section 8 of the Austin City Charter to allow him to immediately start raising money for his reelection bid in 2016 and accept money from anywhere in the country. The Charter allows money to be solicited or accepted only within 180 days of the election and limits the amounts that may be accepted from sources outside the City of Austin.

The lawsuit also challenges limits on individual campaign contributions, currently $350, and would if successful allow incumbents to raise money year-round and build unlimited campaign war chests—in essence, giving the mayor and council members the same kind of incumbent protection enjoyed by state and federal lawmakers.

Hiring Hicks is somewhat ironic because in 1997 he defended the City of Austin in a federal suit brought by the group that won voter approval for the very restrictions that Zimmerman is challenging.

Activists happy Hicks will defend charter

 Zimmerman Lawsuit Not First Challenge

City has a mixed record of defending attacks on
City Charter’s restrictions for campaign finance

© The Austin Bulldog 2015
by Ken Martin
Posted Friday August 14, 2015 2:11pm

In 1998 with more than $672 million in bond propositions at stake in an upcoming election, The Greater Austin Chamber of Commerce and Texas Society of Association Executives wanted to leave nothing to chance. They sued the City and won, overturning City Charter restrictions on the $100 limit for contributions to support or oppose ballot measures.

In 2003 mayoral candidate Marc Katz, owner of the now-defunct Katz’s Deli, figured he needed to raise $300,000 for a strong campaign and then do it again if he got into a runoff. He sued the City to challenge the City Charter’s $100 limit on how much an individual could contribute to a candidate’s campaign. He lost the lawsuit and placed a distant third to then-Council Member Will Wynn, who won without a runoff.

Now comes District 6 Council Member Don Zimmerman, who sued July 27 to challenge not only contribution limits (currently $350) but several other restrictions on campaign finance. We are far from knowing whether he will succeed in overturning City Charter restrictions twice approved by Austin voters.

The Zimmerman suit against the City of Austin seeks to overturn multiple aspects of the Austin City Charter with the explicit goal of building his campaign war chest and boosting his odds for reelection in November 2016.

The Charter restrictions attacked

 Council Member Zimmerman Sues City

Wants to overturn campaign finance restrictions
and could gain himself a direct personal benefit

by Ken Martin
© The Austin Bulldog 2015
Posted Wednesday July 29, 2015 2:02am
Updated Wednesday August 5, 2015 10:46am (Houston court’s injunction was temporary, not permanent)

Don Zimmerman had a long history of filing lawsuits even before he won election to the District 6 seat on the Austin City Council last December.

In fact, while a candidate he sued The Austin Bulldog for defamation last October, lost the case in early January, and still owes $10,000 in attorney’s fees and sanctions for filing a baseless lawsuit. More than six months later he has not paid the debt despite efforts to collect.

Now he’s filed a federal lawsuit to overturn several aspects of the rules under which he ran for and won office. In his latest lawsuit filed July 27, 2015, Zimmerman seeks to eliminate or modify restrictions on political fundraising found in Article III Section 8 of the Austin City Charter.

The lawsuit explicitly states that Zimmerman seeks to eliminate these restrictions to prepare for his campaign for reelection in November 2016.

“Political speech is the very core of the First Amendment, but Austin’s campaign finance system seeks to control debate by controlling fundraising and spending,” said attorney Jerad Najvar of the Houston-based Najvar Law Firm, in a prepared statement. He represents Zimmerman in this lawsuit. “The result is that everybody in the world is free to speak, except for City candidates themselves.”

Campaign finance experts—and even seasoned political consultants who run Austin mayoral and city council elections—say rolling back the restrictions that Austin voters overwhelmingly approved in two City Charter elections would be a disaster for democracy at the local level. (More about that later.)

Zimmerman, a self-proclaimed fiscal conservative has in effect sued his employer, the City of Austin, which will have to spend money to defend the City Charter.

What the lawsuit seeks

 City to Rodgers’ Lawsuit: Fuhgeddaboudit

City of Austin’s answer claims suit is moot
as it has provided all responsive records

by Ken Martin
© The Austin Bulldog 2015
Posted Monday July 6, 2015 4:04pm

The City of Austin is in effect thumbing its nose at the lawsuit filed by longtime civic activist Brian Rodgers concerning alleged failure to supply records he had requested about a trio of controversial projects.

The City claims the suit is moot because it’s already produced all the public records responsive to Rodgers’ public information requests.

“This is incredible,” said attorney Bill Aleshire of Aleshire Law PC, who represents Rodgers in this legal action and filed the lawsuit June 11.

The lawsuit claims the city failed to comply with the Texas Public Information Act (TPIA) in responding to several requests in which Rodgers asked for records involving:

• Correspondence between City officials and the Downtown Austin Alliance (DAA) while plans for a light rail election were being devised,

• Records about how the plan was formulated to allow some 700 acres of Walter E. Long parkland to be turned over to a for-profit developer without getting voter approval as required by the Austin City Charter.

• Records about the city’s failure to timely respond to notice from the Texas Department of Transportation and losing the opportunity to purchase surplus property on Bull Creek Road that could have been developed as a park but instead went to a private for-profit developer.

“The factual allegations in the lawsuit are still true,” Aleshire said. “We have received nothing from the city in response for the request for the City Council communication with DAA. Even after I warned them, pre-suit, that we had received nothing on that request, I’ve received no response.”

Next move will be discovery