City of Austin

The Austin Bulldog has obtained copies of Engagement Letters signed by Acting City Attorney Karen Kennard to hire three outside attorneys to provide legal advice and counsel relating to Texas Open Meetings Act issues. This in response to Travis County Attorney David Escamilla’s inquiry into whether the Austin City Council may have violated the Texas Open Meetings Act by holding private meetings concerning public business. (See The Austin Bulldog’s report of January 25.)

Some or all of these attorneys attended the closed-door executive session of the Austin City Council on January 28 that lasted two and a half hours. The posted purpose of that meeting was for private consultation with legal counsel to discuss legal issues relating to the Open Meetings Act.

The Engagement Letters, obtained under the Texas Public Information Act and dated January 28, state that each attorney will be paid for legal services in a total amount not to exceed $53,000. That budget cap may not be exceeded without the city’s approval.

As reported by The Austin Bulldog January 25, County Attorney David Escamilla is reviewing a complaint about allegations that the Austin City Council may have violated the Texas Open Meetings Act.

This is a serious matter and the city is taking it seriously. Mayor Lee Leffingwell has canceled the private meetings he has for years been holding with council members and has said that council work sessions will be held in open meetings.

If the mayor and council members should be found to have in fact violated the Act, they may be subject to criminal prosecution under Section 551.143 of the Government Code, a misdemeanor punishable by a fine of not less than $100 or more than $500; confinement in the county jail for not less than one month or more than six months; or both the fine and confinement.

The Austin Bulldog is publishing selected text excerpts from each of the exclusive interviews conducted with the council members before breaking the story. The complete copyrighted MP3 audio file for each interview is linked at the bottom of each article for easy access. You may listen to these recordings to gain a better understanding of the published excepts within the context of the complete interview.

Council Member Chris Riley was interviewed in his home on Monday, January 24, 2011. The recording runs 40 minutes 13 seconds. (The interview was interrupted more than once by a man doing work for Riley.)

The Austin Bulldog:

As I said in the e-mail requesting the interview, I’m developing a story about the working relationships between the mayor and council members and the city manager in connection with how the city council works together to develop public policies. One thing that stands out in my mind is that four of the council members, including yourself, are pretty transparent in how you spend your time on council duties, by posting your calendars on the city website. Have you any idea why the other council members…you know, the mayor and (Mayor Pro Tem) Mike (Martinez) and (Council Member) Sheryl (Cole) don’t publish their calendars?

Chris Riley:

I haven’t talked with them about it so I just don’t know. I don’t think it was really a common practice previously.

The Austin Bulldog:

Well, it seems like the four of you all that were elected in ’08 and ’09 are the ones that are keeping the calendars. Sheryl (Cole) and Mike (Martinez) were (first) elected in ’06.

This is a serious matter and the city is taking it seriously. The Austin American-Statesman editorial published today announced Mayor Lee Leffingwell is reinstituting council work sessions to be held in posted open meetings and he is canceling the private meetings he has for years been holding with other council members.

If the mayor and council members should be found to have in fact violated the act, they may be subject to criminal prosecution under Section 551.143 of the Government Code, a misdemeanor punishable by a fine of not less than $100 or more than $500; confinement in the county jail for not less than one month or more than six months; or both the fine and confinement.

The Austin Bulldog is publishing selected text excerpts from each of the exclusive interviews with the council members that were conducted before breaking the story on January 25. The interviews are being published in the order in which they were conducted.

The complete copyrighted MP3 audio file for each interview will be linked at the bottom of each article for easy access. You may listen to these recordings to gain a better understanding of the published excepts within the context of the complete interview.

Council Member Sheryl Cole was interviewed outdoors at Starbuck’s Coffee in the Mueller Commercial District on January 21, 2011. The recording runs 33 minutes 20 seconds. (The background noise in the recording is from passing traffic.)

The Austin Bulldog:
As I said in the e-mail that I requested the interview, I’m developing a story about how the city council develops policies. One thing that stands out in my mind is the council members are pretty transparent on how they spend their time on council duties. Four of the council members put their calendars online. Some don’t. I was wondering, why don’t you put your calendar online?

Sheryl Cole:
Well, I have three boys and a husband and a mom. I still take a lot of responsibility for them from soccer to doctor appointments. It just has not been possible for me to keep a separate calendar of those activities.

The Austin Bulldog:
It seems like from looking at the other council members’ calendars that they post online that you all are spending a lot of time coordinating, meeting each other to work on city business. It seems like you’re making a big effort to plan, coordinate, and things like that. What I’m interested in, what sort of things do you all talk about in those one-on-one meetings with council members and with the mayor?

The Austin Bulldog’s investigation of the Austin City Council’s possible violations of the Texas Open Meetings Act included exclusive private interviews with each of the city council members. (Due to oversight in operating the equipment, however, the interview with Council Member Laura Morrison was not recorded.)

As reported by The Austin Bulldog January 25, County Attorney David Escamilla has received a complaint about these allegations and his office is reviewing it. This is a serious matter. If the mayor and council members should be found to have in fact violated the act, they may be subject to criminal prosecution under Section 551.143 of the Government Code, a misdemeanor punishable by a fine of not less than $100 or more than $500; confinement in the county jail for not less than one month or more than six months; or both the fine and confinement.

Given the serious nature of the complaint, The Austin Bulldog will publish selected text excerpts from each of the recorded interviews. The complete unedited, copyrighted MP3 audio file for each interview will be linked at the bottom of each article for easy access. You may listen to these recordings to gain a better understanding of the published excepts within the context of the complete interview.

Mayor Pro Tem Mike Martinez was interviewed in his City Hall office on January 20, 2011. The recording runs 39 minutes 22 seconds.

Before starting the recorder, The Austin Bulldog noted that some council members post their calendars online on the city website and some do not.

The Austin Bulldog:

For example you don’t.

Mike Martinez:

It’s all public information. I guess the biggest reason why is we’ve never been asked to do it and I never really thought about putting it online. I figured it was all public information.

The Austin Bulldog:

What sort of things do you all talk about in these meetings?

Since The Austin Bulldog broke the story on January 25 about the Austin City Council holding regularly scheduled private meetings to discuss public business, the reactions have been polarized. Most were aghast that elected officials would do so much deliberating in private, while others thought such meetings were, in essence, a good thing, and it is naive to think otherwise—or even to question the practice.

On January 27, the Austin American-Statesman’s editorial, “Braced for the gathering storm,” concluded, “The Open Meetings law is plain; public business is to be conducted in public,” while the Statesman-owned In Fact Daily oversimplified the situation by raising the argument that “...preventing council members from speaking to one another would be detrimental to the efficiency of city government....” This is a bogus argument, because nothing in the Texas Open Meetings Act prevents elected officials from talking with one another.

Ad hoc discussions are permitted under the act. It is the systematic, regularly scheduled nature of the Austin City Council’s private meetings that may cross the line into actions that flagrantly violate the act.

The overriding factor here is that private deliberations about the city’s business is prohibited by law: Section 551.143 of the Texas Open Meetings Act states: “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 of this chapter.”

Attorney General Greg Abbott issued Opinion No. GA-0326 on May 18, 2005, and it specifically addresses the kinds of meetings being held among the mayor and council members.

“[W]e construe Section 551.143 to apply to members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of that body. In essence, it means a ‘daisy chain of members the sum of whom constitute a quorum’ that meets for secret deliberations.”

GA-0326 further states, “As a general matter, Texas civil courts, in construing the OMA (Open Meetings Act), rely on the OMA’s core purposes, which is to guarantee access to the actual decision-making process of governmental bodies. ... As such, the civil courts construe the OMA’s provisions liberally in favor of open government. ... “[w]hen a majority of a public decision-making body is considering a pending issue, there can be no ‘informal’ discussion.

“There is either formal consideration of a matter in compliance with the Open Meetings Act or an illegal meeting.”

Thus it seems clear under the law that these regularly scheduled meetings may violate the Texas Open Meetings Act. The law is not concerned with such niceties as “efficiency” but with making sure the public’s business is conducted in public.

An offense under Section 551.143 is considered to be a conspiracy to circumvent the act, and is a misdemeanor punishable by:

(1) a fine of not less than $100 or more than $500;

(2) confinement in the county jail for not less than one month or

more than six months; or

(3) both the fine and confinement.

Analysis