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City of Austin

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City E-mail Policies Still Not Implemented

Posted Wednesday, July 13, 2011 4:30pm
City of Austin Dragging Its Feet on
Implementing Lawful E-mail Practices

City Employees, Board and Commission
Members Still Not Covered by City Policies

by Ken Martin
© The Austin Bulldog 2011

Nobody knows how many e-mails that constitute public records are escaping collection and retention for public disclosure while the City of Austin delays implementing policies ordered by the city council in its April 7 resolution. (See The Austin Bulldog’s April 15 report.)

It’s possible that thousands of e-mails that are public records may have been exchanged without copies being retained as required by the Texas Public Information Act and the Local Government Records Act.

Today, more than three months after the council voted unanimously to pass the resolution, no policies have been enacted to require retention of e-mails about city business that the city’s 12,000 employees and 365 board and commission members send or receive on their personal e-mail accounts.

As a result, government in the shadows continues unabated.

Bill AleshireAttorney Bill Aleshire of the Austin law firm Riggs Aleshire and Ray PC, who is The Austin Bulldog’s attorney in its lawsuit concerning the city’s violations of the Texas Public Information Act, said of this lack of progress, “The first mistake the council made was being suckered by the city attorney into believing the council cannot make policy that applies to all city employees.

“The second mistake was not recognizing that any record made or received in the transaction of city business should have been included in the city’s record and be subject to disclosure under the Texas Public Information Act,” he said.

The lack of e-mail policies to address communication about city business on personal devices has persisted for many years—even for the mayor and council members. The council resolution established a new policy for the mayor and council members, and the handful of employees that the council directly hires: the city manager, city clerk, city auditor, chief judge of the municipal court, and municipal court clerk.

The city council resolution also tasked City Manager Marc Ott with developing a policy that applies to city employees, and City Clerk Shirley Gentry with developing a policy for members of sovereign boards and commissions. The council asked for progress reports within 30 days.

In response to three separate open records request for copies of the city manager and city clerk’s progress reports, and an interview, The Austin Bulldog obtained the following information:

City manager’s report

2009 Austin City Council E-mails

Posted Wednesday, July 6, 2011 7:03pm
Updated July 6, 2011 10pm
Updated July 7, 2011 at 11:05am to correct for Chris Riley
Updated 12 noon July 7, 2011 to correct for Randi Shade

E-mails Exchanged By Council Members Expose
Private Deliberations and Political Maneuvering

More than 2,400 Pages of 2009 E-mails
Published Here in a Searchable Format

Investigative Report by Ken Martin
© The Austin Bulldog 2011

Randi ShadeKathie TovoThe schisms within the Austin City Council that surfaced during the runoff election between incumbent Council Member Randi Shade and challenger Kathie Tovo were a revelation, as the other incumbents split evenly in lining up to support Shade or Tovo.

Such passionate and public election advocacy among sitting council members is rare, if not unprecedented. The election outcome created deep political wounds in need of healing, not only for personal relations among council members but also for making good public policy when the council’s summer hiatus is over in three weeks.

The thousands of e-mails written in 2010 and January 2011 obtained through open records requests and The Austin Bulldog’s lawsuit, published May 12, foreshadowed some of the differences that surfaced in this runoff election. But the e-mails exchanged by council members in 2009, published here, show the roots of dissent among council members goes back much further.

The latest batch of more than 2,400 e-mails obtained through an open records request raise new issues—not only for what these e-mails reveal, but also because of what was withheld.

Some of these records show council members communicated among themselves about city business in numbers equaling or exceeding a quorum, a possible violation of the Texas Open Meetings Act.

Some of the council members also deliberated through their private e-mail accounts about a $250 million city project that was under consideration.

As for what was withheld, two (not four, as first reported) council members failed to provide copies of e-mails about city business conducted on their personal e-mail accounts during calendar year 2009: Sheryl Cole and Mike Martinez. (Deleted Chris Riley and Randi Shade.)

To withhold private e-mails about city business flies in the face of at least four open records opinions issued by the Texas Attorney General, which state that e-mails about government business that were created or received on personal accounts are public records (OR2003-0951, OR2003-1890, OR2005-01126, OR2005-06753) and thus are subject to release under the Texas Public Information Act.

As reported March 2, The Austin Bulldog filed a lawsuit against the mayor, council members, and City of Austin because of the failure to release copies of personal e-mails about city business exchanged by the city council during calendar year 2010 and January 2011. As a result, the mayor and council members eventually relented and released at least some of those e-mails.

For e-mails sent or received in 2009, Mayor Lee Leffingwell and Council Members Laura Morrison, Chris Riley, and Randi Shade released personal e-mails about city business and Council Member Bill Spelman released city business e-mails from his University of Texas account. As in the earlier releases forced by the lawsuit, the city characterized these actions as being voluntary. (Update July 7, 2011: Click here to see the cover letter provided by the City of Austin that accompanied the 2009 e-mails released by the city.)

The bottom line is the other city council members continue to take the position that they need not turn over e-mails about city business conducted on personal accounts. This position is inconsistent with the e-mail policy the city council adopted in an April 7 resolution that applies going forward. (See The Austin Bulldog report of April 15.)

Personal politics trump public policy

Open Government Fixes Costing Big Bucks

Posted Friday, June 24, 2011 2:30pm
Taxpayers Footing Big Bills to Correct
City of Austin’s Open Government Issues

$200,000 Spent on Attorneys
So Far and No End in Sight

by Ken Martin
© The Austin Bulldog

The Austin City Council so far has authorized spending $399,000 to hire outside attorneys to provide advice to bring the city into compliance with the Texas Open Meetings Act and to defend a lawsuit filed by The Austin Bulldog under the Texas Public Information Act.

More than half that amount has been spent already, most of it to deal with the ongoing investigation of possible criminal violations of the Texas Open Meetings Act by Travis County District Attorney David Escamilla.

Section 551.143 of the Texas Open Meetings Act states that 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 in violation of this chapter. An offense, if proven, is punishable by a fine of $100 to $500 and confinement in the county jail for one to six months, or both the fine and confinement.

David EscamillaThe Austin City Council’s possible violations of Section 551.143 were exposed by The Austin Bulldog’s investigative report published January 25. That same day The Austin Bulldog reported that Escamilla was investigating these matters. That investigation is still ongoing.

The city’s response to these reports was swift. On January 28, the city council hired three law firms and huddled with their lawyers for two and a half hours in a closed-door executive session.

The practice of scheduled private meetings was immediately stopped. The Austin City Council held its first public work session February 9.

The investigative report exposed the longstanding practice of the mayor and council members holding a flurry of routinely scheduled private meetings that for many years had been taking place a day or two before every council meeting. These private meetings denied public access to significant deliberations about city business that are required to be conducted in the sunshine of open meetings.

The Austin Bulldog reported February 7 that the City of Austin committed $159,000 to engage three law firms to provide legal advice related to Texas Open Meetings Act: James E. “Jim” Cousar of Thompson & Knight LLP, C. Robert “Bob” Heath of Bickerstaff Heath Delgado Acosta LLP, and Randy T. Leavitt of the Law Office of Randy T. Leavitt.

Since then, City Attorney Karen Kennard has issued amendments that allowed other lawyers and support personnel within the three law firms to assist, and increased the total authorized expenditures to $289,000 solely to address Texas Open Meetings Act issues.

Lawsuit expenses

State Comptroller Sued over Formula One

Posted Wednesday, June 22, 2011 12:59pm
Taxpayers Sue to Stop State Comptroller
From Paying Tax Funds to Formula One Promoters

Lawsuit Questions Whether Formula One
Qualifies for Subsidies Under State Law

by Ken Martin
© The Austin Bulldog 2011

Three Austin taxpayers filed a lawsuit today to stop State Comptroller Susan Combs from paying state tax money to the promoters of Formula One racing in Austin.

The lawsuit filed in state district court may affect the Austin City Council's action scheduled for tomorrow to enact ordinances that would otherwise enable the comptroller to make the payments.

Race promoters have publicly stated that the comptroller’s payment must be made in July for the race to take place.

Combs jumped on the opportunity for the race before consulting with the City of Austin or Travis County. In fact, Combs issued a letter to Formula One World Championships Limited on May 10, 2010, to certify that, “With the understanding that the first Formula 1 United States Grand Prix will be held in Texas in 2012, full funding of the entire sanction (fee) for 2012 will be paid to Formula One World Championship Limited (FOWC) no later than July 31, 2011. In subsequent years, two through 10, of the race promotion contract, i.e., 2013 through 2021, we will be sending $25 million to FOWC by the end of July 31 of each year preceding the actual race event.”

As a result of the comptroller’s early commitment, and the extreme lateness in approaching the City of Austin to sign on as the sponsoring municipality, the city is under the gun to approve contracts and is scheduled to consider doing so at tomorrow’s council meeting. The economic study that projects tax revenue to be derived from the race was not delivered until late Monday.

Lawsuit seeks to halt payments

Sworn Financial Statements

Posted Thursday, June 2, 2011 12:21pm
Updated Friday, June 3, 2011, 2:30pm
Council Members Riley and Shade
May Have Violated Austin City Code

Sworn Financial Statements Give Public
Tools to Monitor Their Elected Officials


Investigative Report by Ken Martin
© The Austin Bulldog 2011

City Council Members Chris Riley and Randi Shade may have violated the Austin City Code by not reporting the financial activity of their domestic partners.

Many financial statements filed by the mayor and other council members are incomplete or erroneous, and one annual statement is missing.

Perhaps a larger problem is that neither these elected officials (with some exceptions) nor the city staff is paying sufficient attention to ensure that these important statements are accurately prepared to fully comply with state law and the City Code. The penalties that apply to the more serious violations are not being enforced. And citizens are kept in the dark because few are aware these documents exist or where to find them.

These problems were discovered during The Austin Bulldog’s broader investigation aimed at bringing greater transparency to city government by giving citizens the tools to monitor the conduct of their elected officials.

Do Austin’s mayor and council members have conflicts of interest in the decisions they make? How would you ever know?

Aside from the fact that these officials are required to withdraw from even discussing something in which they have a substantial interest, the public is entitled to be informed of their financial interests so they can observe and monitor how these officials conduct themselves.

System lacks transparency