City of Austin
Council reforming e-mail policies
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?
