Litigation

 Daugherty’s Civil Case to Continue

SOS Alliance also seeks a new special prosecutor and
judge to reinstate criminal complaint against Commissioner

by Ken Martin
© 2015 The Austin Bulldog
Posted Tuesday January 5, 2016 2:15pm

The Save Our Springs Alliance won a victory in the form of a December 10, 2015, ruling by District Judge Stephen Yelonosky that will allow a trial on the merits in the civil case against Travis County Precinct 3 Commissioner Gerald Daugherty.

If the case goes to trial the SOS Alliance will seek to persuade the court to order Commissioner Daugherty or Travis County, or both, to change policies enacted last spring regarding retention of and access to public records.

Bill Bunch, executive director of the SOS Alliance, told The Austin Bulldog he will seek a finding by the court that violations of the Texas Public Information Act did, in fact, occur.

Bunch said such a finding would provide a basis for changing the policies to make sure that no violations like this occur again in the future.

In the beginning the lawsuit was about whether Daugherty had properly complied with the Act by providing all records requested by the SOS Alliance May 31, 2013. In Daugherty’s deposition and a court hearing held July 13, 2015, it was clear that he had not done so, but those records are no longer available. The larger issue for the SOS Alliance was whether it could find ammunition in those records for slowing or halting plans to build State Highway 45 Southwest over the sensitive Barton Springs portion of the Edwards Aquifer.

The case for getting more records is now moot, but Bunch wants to prevent the commissioner and Travis County from ever again failing to retain public records or allowing their destruction.

Auditor Alleges City Supervisor’s Misconduct

Disciplinary action hangs fire while department
director and human resources confer and decide

by Ken Martin
Additional Research by Mark Henricks
© The Austin Bulldog 2015
Posted Tuesday December 15, 2015 3:18pm
Updated Wednesday December 16, 2015 9:50am (to correct last name of Rodney Gonzales)
Updated Wednesday December 16, 2015 1:18pm (to clarify auditor interaction with Ethics Review Commission)

The report of an investigation released by the Austin City Auditor in October 2015 found evidence that Eric Leal Gomez, an environmental compliance supervisor in the Development Services Department, allegedly misused his position, misused city resources, and inappropriately entered into a business relationship with a subordinate. The report provided details for the three findings.

Gomez addressed these findings in a 10-page e-mail addressed to department management September 23, 2015. Gomez conceded that he misused his city computer and Internet access in connection with efforts to establish a private business but stated the infraction had been cured and would not be a problem going forward. He argued the other two findings were inappropriate and requested they be retracted.

Nathan Wiebe, chief of investigations for in the City Auditor’s Office, said that Gomez’ responses have been considered but the findings will not be retracted.

“We allow the subject of an investigation to respond in writing,” Wiebe said. “If they present evidence that may potentially affect the findings we investigate and modify the report. In cases where they have presented their side of the story but the response hasn’t changed anything, then the report goes out. In this case, he requested redaction of two findings but what you see in the final report—that’s our response.”

The auditor’s investigation of Gomez was conducted in response to an anonymous complaint, Wiebe said.

While the complaint was anonymously filed with the auditor, Gomez said, “The problem was she started bragging about turning me into the auditor, resulting in this investigation.” He named a former employee that he said he had once pursued disciplinary action against the woman for allegedly falsifying timesheets.

Still, it would be up to the auditor to investigate, substantiate the allegations, and bear the burden of proof. An investigation published by the previous auditor was discredited, the City Council issued a formal apology to the accused, and a lawsuit is pending to get the documentation that supported that flawed report.

Disciplinary action pending

 Rodgers Settles TPIA Suit for $5,000

City’s bungled response to Rodgers’ public information
requests compounded by inept handling of lawsuit

by Ken Martin
© The Austin Bulldog 2015
Posted Monday November 2, 2015 1:34pm

In a relatively rare but not unheard of result in a civil lawsuit filed under the Texas Public Information Act (TPIA), the City of Austin will pay civic activist Brian Rodgers $5,000 to settle. He filed the lawsuit June 11, 2015, after the City failed to provide public records he had requested about three high-profile matters of public interest.

From his point of view the roughly $10,000 Rodgers spent on this lawsuit was a good investment, even though he will recoup only half that amount.

“Central to my effectiveness as an activist is my ability to get information from the city, facts on how decisions are made,” Rodgers told The Austin Bulldog. “Without transparency there is no way to do it. I can't interview every staff person. The lawsuit was necessary because I had reached an impasse on getting documents. They were stalling, redacting things they shouldn't have.”

Rodgers’ public information requests sought records about how plans were formulated to lease 700 acres of land at Walter E. Long Metropolitan Park in East Austin for a private, for-profit golf development; the City’s failure to procure 75 acres of surplus state land along Bull Creek Road for an inner-city park; and City officials’ communication with the Downtown Austin Alliance leading up to a light-rail election in which the organization spent $440,000 of tax funds on political advertising to back the plan.

The $5,000 payment will be made pursuant to a settlement offered by Rodgers, accepted by the city, and signed October 27 by Assistant City Manager Sue Edwards.

The settlement requires the city to pay Rodgers within 30 days, and requires Rodgers to within 10 business days of receiving payment to file a request to dismiss the lawsuit with prejudice, meaning Rodgers is forbidden from filing another lawsuit based on the same grounds.

Rodgers attorney Bill Aleshire of Aleshire Law PC said, “The City settled the case rather than face a hearing on sanctions or a full-blown trial over the way they handled Rodgers’ public information requests in the first place, and then how they handled his lawsuit.”

Disclosure: Aleshire has represented The Austin Bulldog in three lawsuits, two of which were TPIA actions against the City of Austin (see links to related stories below).

No admission of guilt

 Daugherty Wins SOS Round One

Judge Yelonosky rules mostly in favor of county
commissioner but leaves room for further action

by Ken Martin
© The Austin Bulldog 2015
Posted Monday July 27, 2015 4:20pm

In the public information lawsuit the Save Our Springs Alliance initiated against Travis County Precinct 3 Commissioner Gerald Daugherty, which was argued in court July 13, District Judge Stephen Yelonosky denied most of what the plaintiff sought.

But the judge left the door open as to whether the SOS Alliance could persuade the court to order Commissioner Daugherty or Travis County, or both, to change recently enacted policies regarding retention of and access to public records.

“There remains a question of the court's jurisdiction, as a pure question of law, over a Declaratory Judgment Action seeking to enforce the Public Information Act. The parties have not adequately briefed this, so the court must defer a ruling on the plea to the jurisdiction in this regard until they have,” the ruling states.

Although the lawsuit is technically about whether Daugherty has properly complied with the Texas Public Information Act by providing all records requested by the SOS Alliance May 31, 2013, the larger issue is whether SOS can find ammunition in those records for slowing or halting plans to build State Highway 45 Southwest over the sensitive Barton Springs portion of the Edwards Aquifer.

SOS may seek to settle out of court

 SOS v Daugherty Pending Decision

Travis County seeks dismissal of lawsuit against
county commissioner, SOS wants more records

by Ken Martin
© The Austin Bulldog 2015
Posted Tuesday July 21, 2015 12:58pm
Updated Tuesday, July 21, 2015 5:03pm (to include a link to the SOS Alliance’s original petition)

In an ongoing battle over whether State Highway 45 Southwest will be built over the environmentally sensitive Barton Springs portion of the Edward Aquifer, the Save Our Springs Alliance is waging a two-pronged attack, through both a civil lawsuit and a criminal complaint, on Travis County Precinct 3 Commissioner Gerald Daugherty, the leading proponent of the project.

Both actions claim that Daugherty violated the Texas Public Information Act, which provides both civil and criminal penalties for violations.

The criminal case is being held in abeyance until the lawsuit is resolved. To that end, a nearly three-hour hearing was held July 13 before Judge Stephen Yelenosky of the 345th Judicial District Court.

Assistant County Attorney Tony Nelson, who represents Daugherty, contends the lawsuit should be dismissed.

Nelson filed a Plea to Jurisdiction April 8, 2015, meant to refute claims made by SOS in the lawsuit and request dismissal because Daugherty and Travis County have exhausted all means of finding and providing the records that SOS requested in its public information request.

The SOS request was for any e-mails, memoranda, and attachments sent or received by Daugherty or his executive assistants that referenced the proposed SH45 SW that were sent or received between January 1, 2013, and the date of the request, May 10, 2013. The request covered the beginning months of Daugherty’s current term in office.

Issues before the court