Investigative Report

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

Brian Rodgers has been a thorn in the side of Austin city government since at least 1997, when he was one of the citizens who launched a successful campaign to eliminate the influence of big money donations in mayoral and city council elections.

He has agitated for changes on a wide range of issues, including repealing tax subsidies for high-end retail development, achieving equity in property taxes, and arguing his case before the city council against the city’s plan to pay all costs of extending water and wastewater service for the F1 racetrack.

In all of these battles with the powers that be he has done his homework, and spent significant sums to produce studies that provide facts for the city council to consider in carrying out its fiduciary duty and protect the interests of taxpayers.

The only victory he’s been associated with in all these years was the 1997 campaign to limit campaign contributions. He’s been a one-hit wonder who lost on every new issue that came along. At the ballot box he narrowly lost in his campaign to Stop Domain Subsidies. At the podium, pleading with the city not to approve $13.5 million to pay all costs for the F1 track’s water and wastewater service, the council voted 7-0, with little discussion, to do so.

Having mostly lost by trying to influence city policies from the outside he decided to consider running for city council this year, as reported by The Austin Bulldog January 12. In exploring the idea of running, Rodgers sought to gain insights from current council members.

He e-mailed Council Member Chris Riley for a get-together. Rodgers says he spent three hours with Riley on December 28, ensconced in the back room of Austin Java at 12th and Lamar. What’s it like to serve on the council, he asked. What are Riley’s days like? How does he communicate with the mayor and council members?

The answer to that last question floored him.

Rodgers says Riley told him that council members and the mayor meet in regularly scheduled private meetings with each other to talk about city business. These meetings routinely occur in days immediately leading up to posted public meetings of the city council.

“We know how we are going to vote by Thursday (council meeting day) except for (Council Member Bill) Spelman, who’s a wild card,” Rodgers says Riley told him.

“When Riley told me that the council already knows how they’ll vote on Thursdays, I sat there angrily thinking about how community activists pour their time and energy into making our city a better place to live—unaware that the council’s votes are set before they even walk into the council chambers.

“I’ve spoken many, many times before the city council, spending countless hours on research each time, preparing my presentation, getting dressed up to come burn eight hours at City Hall waiting to speak my allotted three minutes. And now I find out it was all a giant waste of time because the council had already decided?

“Why don’t they just post the answers on the entrance to City Hall each Thursday morning and save us all the trouble? It’s not just me, but icons like Mary Arnold and scores of well-intentioned people denied their rights every week by a council too busy or too contemptuous to be bothered by what we have to say.”

 

For a while it looked like Williamson County Judge Dan Gattis and Round Rock attorney Mike Davis were out of the line of fire and would not be prosecuted for county payments to Davis for representing Judge Don Higginbotham of Williamson County Court at Law No. 3 against claims of sexual harassment.

Williamson County District Attorney John Bradley said his office had conducted an investigation and found no criminal conduct in Davis inappropriately billing the county to represent Higginbotham.

Nor did Bradley find reason to prosecute Judge Gattis for possibly encouraging Davis to represent Higginbotham at county expense without getting authorization of the others on the commissioners court.

But Williamson County Attorney Jana Duty isn’t dropping the matter. She is seeking an independent investigation into whether the law was broken when Gattis allegedly arranged for attorney Mike Davis to defend Higginbotham.`

Duty has raised the ante by lining up an investigation by getting a commitment for a special prosecutor who would pursue criminal charges if the independent investigation provides evidence that the law has been broken. 

“Bradley and Gattis may think I’m dropping it,” Duty told The Austin Bulldog. “They should know better. I’m not sweeping this under the carpet.”

Posted Tuesday November 9, 2010 4:36pm

Georgetown Council Member Pat Berryman has at last provided a report of the expenses she claims to have incurred, and for which she was retroactively issued a payment of $13,600 by the City of Georgetown.

The 20-page report comes 10 months after Berryman was paid, a result of The Austin Bulldog’s open records request and subsequent complaints filed with several law enforcement agencies.

“The attached expense report is accurate to my recollection and has been verified by the research I have done with city staff, and my own records,” Berryman states in an October 15 cover letter.

“It was a difficult task because so much time has elapsed from this time period. I think it should be noted that the Georgetown City Council was not required by the city resolution to provide documentation of any kind. Therefore, it was not anticipated this would occur.

“None of the other council members have been or are being required to provide this in depth information regarding the reimbursement for expenses. I must say that it is unfair to be singled out in this manner.”

Berryman only state employee on council

The Austin Bulldog targeted Berryman because she was the only state employee serving on the council during the period covered by her $13,600 payment, July 2008 through December 2009. As a state employee, she was prohibited by Section 40(b) of the Texas Constitution from drawing a salary for service as an elected official. Berryman should prove her expenses are legitimate and not a means to circumvent the salary prohibition, according to opinions issued by the Texas Attorney General.

Editor’s Introduction:  As we did with our investigative research for Hays County candidates published October 19, The Austin Bulldog is again stepping off the beaten path of how to cover an election. We point you to some of the stories written by other publications, but we also provide detailed information that journalists seldom take the time to dig up and assemble.

Rather than selectively quote from our background research, our approach is to use an extensive, organized plan to find, copy, and publish source documents that you can explore to form your own conclusions about people seeking elective office.

We’ve dug into the public records and published what was found, to include voter registration and voter history; personal financial statements, campaign finance reports, business records, property records, service on boards, key staff, spouses, web pages, and links to news stories. For some candidates we also found track records for previous bids for public office, State Bar profiles for attorneys, and real estate broker and mortgage broker licenses.

What becomes glaringly obvious in reviewing all the documents assembled by The Austin Bulldog is that the three incumbent Democrats on the Travis County Commissioners Court will apparently have little to fear when the polls close on November 2.

Travis County Judge Sam Biscoe, who has held this position since 1999, is being challenged by Republican Mike McNamara, who has raised a single $100 contribution and spent a total of $1,308 on his campaign. Most of that, $1,250, was to pay his filing fee. Libertarian Mark Tippetts, also running for county judge, has raised nothing and spent nothing.

Precinct 2 Commissioner Sarah Eckhardt, who won her post in 2006, is opposed by Libertarian Matthew Finkel, who has neither raised nor spent any money on his campaign. Also running against Eckhardt is Republican David A. Buttross II, who vowed to raise no more than $500.

Precinct 4 Commissioner Margaret Gomez has held this office since 1995. She staved off a strong challenge from former Austin City Council Member Raul Alvarez to win this year’s Democratic Primary. Since then, she has missed months of meetings due to open heart surgery and hasn’t attended a full meeting since April, according to a report in the Austin American-Statesman. In the general election, she faces only Libertarian David Dreesen, who hasn’t raised or spent any money.

Most rich folks who vie for public office spend sizeable chunks of their own money doing so. Farouk Shami, a Palestine-born Houston businessman, pledged to spend $10 million of his own money in the 2010 Democratic Primary. Tony Sanchez, the West Texas businessman, paid out-of-pocket a reported $60 million for his doomed 2002 Democratic gubernatorial bid, in which he got 40 percent of the vote in losing to Rick Perry.

Buttross is wealthy, too. How wealthy is questionable, but one of his websites claims he owns a $50 million real estate portfolio, with $20 million in real estate notes and $30 million in real estate consisting of office buildings, apartment complexes, residential properties, grocery stories, warehouses, hospitals, hotels, and churches.

Our research connected him and his family to 19 separate businesses and 33 properties, most in Travis County, but also in Bastrop, Bexar and Williamson counties, with a total market valuation of $17.4 million, according to appraisal district records.

His home in West Austin, according to the Travis Central Appraisal District, is valued at nearly $1.9 million.

Yet Buttross does not risk his personal funds to further his political ambitions, or even bother to raise much.