Litigation

Zimmerman Sues Bulldog, Claims Defamation

District 6 candidate Don Zimmerman claims
‘The Austin Bulldog’ report made false statements

by Ken Martin
© The Austin Bulldog 2014
Posted Wednesday October 15, 2014 10:59pm
Updated Thursday October 16, 2014 3pm (additions are underlined)

District 6 candidate Donald Shelly “Don” Zimmerman has filed a defamation lawsuit against The Austin Bulldog, according to Courthouse News Service.

The Austin Bulldog has not been served and has not seen a copy of the lawsuit, styled Don Zimmerman v. Austin Investigative Reporting Project dba The Austin Bulldog; Ken Martin Cause No. D-1-GN-14-004290. The Austin Investigative Reporting Project is a 501(c)(3) nonprofit for investigative reporting in the public interest.

The Austin Bulldog obtained a copy of the lawsuit, which was filed electronically, this afternoon. A copy is linked below.

“Don Zimmerman’s attack on The Austin Bulldog for publishing truthful information from recent court records is an attack on journalism and the public’s right to know what happens in our courts,” said attorney Bill Aleshire of Riggs Aleshire & Ray PC. “The Austin Bulldog will vigorously defend its reporting and defend the right of journalists to report about court proceedings.”

The attorney representing The Austin Bulldog in this litigation is Peter Kennedy of Graves Dougherty Hearon & Moody.

Bulldog Open Records Lawsuit Continues

 Key issue is whether it is permissible to
redact officials’ private e-mail addresses

by Ken Martin
© The Austin Bulldog 2013
Posted Friday June 7, 2013 11:25am

How could you find out if Austin City Council members participated in an illegal quorum discussion about city business using their private e-mail accounts—a violation of the Texas Open Meetings Act?

The short answer is: you can’t.

Under the Texas Public Information Act (TPIA) you may request copies of e-mails exchanged by public officials about public business and you would be entitled to get them—including e-mails sent or received on private accounts (although in the past, the private-accounts issue has been a matter of legal contention).

But the e-mails you get from the public officials’ private e-mail accounts would not include their private e-mail addresses. Those addresses would be blacked out, redacted—to the point you would not be able to determine who sent or received a given e-mail, or whether a quorum of the governing board had illegally participated.

That was what The Austin Bulldog encountered in 2011, in response to a public information request for the e-mails about government business exchanged by the mayor and council members.

The Austin Bulldog eventually obtained copies of e-mails about government business exchanged by these elected officials using their private e-mail accounts—but only after filing a lawsuit to get them.

Litigation Challenges Open Government Laws

Attorneys criticize criminal penalties and public
access to elected officials’ private e-mail accounts

Part 3 of a 3-Part Series

by Ken Martin
© 2013 The Austin Bulldog
Posted Wednesday, April 24, 2013 2:00am

The audience was indeed sparse but two lawyers were nonetheless passionate in addressing what they perceived to be improper actions by the Texas Attorney General in how his office enforces the Texas Public Information Act and how prosecutors enforce the Texas Open Meetings Act. Both attorneys have fought what so far have been losing battles in court over these issues.

A third attorney on the panel titled “Open Government: Litigation Developments” (click the link to watch the video) provided an analysis of the inconsistencies in decisions rendered by Texas courts with respect to how the Texas Public Information Act applies to the ability of requestors to obtain records involving public-private partnerships.

After being introduced by Assistant City Attorney Jacqueline Cullom at the City of Austin’s Open Government Symposium held April 17 at City Hall, these attorneys individually provided their interpretations of how the Act plays out in actual practice.

Criminal penalties unnecessary, McKamie argues

Attorney Mick McKamie of the San Antonio-based firm McKamie Krueger LLP (with offices in Austin, Dallas, and Laredo) led off the discussion. He was co-lead counsel in the plaintiff’s appeal in Asgeirsson el at v. Abbott (No. 11-50441) that was recently denied a hearing by the U.S. Supreme Court.

That case involved 15 elected officials who contend the Texas Open Meetings Act’s criminal penalties established in Government Code Section 551.144 (for knowingly participating in a closed meeting that is not permitted) violate the officials’ First Amendment rights. The possible punishment includes a fine of $100 to $500, confinement in the county jail for not less than one month or more than six months, or both the fine and confinement.

Dafoe Offers to Settle for $40,000

 Settlement invitation for Mayor Leffingwell would avoid
lawsuit, depositions, and trial for Election Code violations

by Ken Martin
© The Austin Bulldog 2013
Posted Thursday March 21, 2013 1:26pm

Clay Dafoe—who along with former Council Member Brigid Shea ran unsuccessfully against Mayor Lee Leffingwell in his 2012 reelection bid—has invited the mayor to settle without litigation Dafoe’s claim for damages by paying him $40,000.

This in lieu of the potential for more than $65,000 in statutory damages that could be awarded if Dafoe were to prevail in a lawsuit over Leffingwell’s failure to timely file accurate campaign finance reports as required by the state Election Code.

Mayor Leffingwell did not respond to an e-mailed request for comment about the settlement offer or to a voice message left with his chief of staff, Andy Mormon.

Election Code Section 254.231 makes a candidate who fails to report campaign contributions or campaign expenditures that are required to be reported liable for damages to opposing candidates in twice the amount that was unreported and reasonable attorney’s fees incurred in the suit. (If judgment should be rendered in the defendant’s favor the defendant is entitled to reasonable attorney’s fees.)

The Austin Bulldog’s investigative report, published March 5, showed that Leffingwell’s 2012 mayoral campaign did not account for $32,716.54 in funds. In addition, his 2009 campaign left more than $40,000 unaccounted for. (See Lee Leffingwell 2009 and 2012 Campaign Finance Reports Analysis .)

Dafoe Hires Law Firm Over Mayor’s Misreporting

Clay Dafoe, third-place finisher in
2012 mayoral election, first to act

by Ken Martin
© The Austin Bulldog 2013
Posted Thursday, March 14, 2013 9:12pm
Corrected Thursday, March 14, 2013 at 9:45pm

Clay Dafoe has followed through on his previously stated intent to take legal action against Austin Mayor Lee Leffingwell.

This afternoon, Austin attorney Bill Aleshire of Riggs Aleshire and Ray PC told The Austin Bulldog, “Our law firm has been retained by Clay Dafoe to hold Lee Leffingwell accountable for violating the state campaign finance laws in the mayoral campaign of 2012.”

In a phone interview this evening Aleshire added, “We will let the facts take us where they go and we will not take any action that’s not in good faith.”

“That’s all we have to say at this point,” Aleshire said, “but there will be more later.”

(Disclosure: Aleshire is The Austin Bulldog’s attorney in a Texas Public Information Act lawsuit that is still pending.)

Attempts to reach Mayor Leffingwell this evening for a comment were unsuccessful. A listed home number has been disconnected. A phone call to his chief of staff, Andy Mormon, was not answered. A text message sent to Mormon’s cell phone requesting a comment from the mayor was not promptly answered.

Two phone messages left for Dafoe were not returned. Aleshire later informed The Austin Bulldog that, “Mr. Dafoe will not be commenting directly.”

Grounds for lawsuit