City of Austin
Profile: Doug Greco for mayor
Court halts $354 million development subsidy
Austin City Manager: Dallas discard vs Austin retread
Bulldog’s Complaint Dismissed
City of Austin Committed Alleged Violations
Bulldog’s Complaint Was the First Presented
for Violation of Texas Pubic Information Act
by Ken Martin
© The Austin Bulldog 2011
The Travis County attorney’s office today issued a response to The Austin Bulldog’s complaint that alleged the City of Austin had violated the Texas Public Information Act by withholding public information.
The letter signed by James W. Collins, executive assistant Travis County attorney, states that the county attorney’s office “cannot determine that the violations alleged in your complaint were committed by the City of Austin.”
The letter states that this was a first complaint received by the Travis County Attorney’s office that was filed under Section 552.3215 of the Texas Public Information Act.
Attorney Bill Aleshire of Riggs Aleshire and Ray LP, who represented The Austin Bulldog in this matter, said, “This decision does not say the county attorney’s office exonerated the city, just that the county attorney’s office could not determine that the violations occurred as worded in the complaint.
Records Management Training Lacking
From 2007 Until Lawsuit Filed
Only One Current Staff Member Had
Taken Training, City Records Show
Investigative Report by Ken Martin
© The Austin Bulldog 2011
The bad news is that the staff of the mayor and council members had not taken any training in managing local government records in many years.There are no state or local laws that make such training mandatory.
The good news is these employees started taking this training soon after The Austin Bulldog filed a lawsuit against the mayor, council members, and City of Austin over failures to comply with the Texas Public Information Act, Government Code Chapter 552.
The Austin Bulldog’s April 6 report detailed deficiencies in how council members and their staff have failed to collect, assemble, and maintain local government records as required by the Local Government Records Act and the city’s Local Government Records Control Schedules. The city also permitted every city official and employee to conduct public business by creating or receiving local government records via e-mail and to keep them secret by using personal e-mail accounts.
These recordkeeping deficiencies make it virtually impossible for city officials to respond in a complete and timely manner to requests filed by citizens and journalists under the Texas Public Information Act.
As reported by The Austin Bulldog April 15, the City Council has adopted a new policy to require council members and the officials they appoint to use city e-mail addresses as the primary means of communicating via e-mail. When personal e-mail accounts are used for city business the policy requires prompt forwarding to a city account.
The council directed the city manager and city clerk to develop similar policies for other city employees and members of sovereign boards and commissions.
Dearth of records management training
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?
Formula 1 Deal Done with Austin?
City, council members answer lawsuit
Answer to The Austin Bulldog’s Lawsuit
Answer Challenges Standing and Claims
Requests for Open Records Fulfilled, Mostly
by Ken Martin
© The Austin Bulldog 2011
Separate answers were filed this morning for the City of Austin, Mayor Lee Leffingwell and each council member in response to The Austin Bulldog v. Mayor Lee Leffingwell et al.
The Austin Bulldog filed the lawsuit in state district court March 1 to sue the mayor and each council member in their official capacity, and the City of Austin, for failure to promptly and fully respond to The Austin Bulldog’s requests filed January 19 and January 27, 2011, under the Texas Public Information Act. (See March 2 report.)
Despite numerous searches, and multiple separate releases of e-mails and text messages by the mayor and council members, nearly four months have elapsed since the initial requests and the city has still not released all the records that existed on city servers—and concedes that fact in its answer to the lawsuit.
What legal action The Austin Bulldog takes in response to the defendants’ answers to the lawsuit will be determined after evaluating what the city means when it says it will “very shortly” furnish additional records responsive to The Austin Bulldog’s open records requests.
Pattern of hiding communications