Litigation

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

Today The Austin Bulldog filed its second lawsuit against the City of Austin in state district court for failure to promptly respond to The Austin Bulldog’s request filed under the Texas Public Information Act (TPIA), Chapter 552 of the Government Code.

The first lawsuit filed March 1, 2011, addressed similar issues. The Austin Bulldog today also filed a supplement to that lawsuit to address unresolved issues still pending and add related issues (more about that later).

The new lawsuit, The Austin Bulldog v. City of Austin, pertains to The Austin Bulldog’s open records request filed July 27 for copies of bids, contracts, scoring evaluations, correspondence, and invoices involving MWH Constructors, the firm hired by the city to oversee construction of Water Treatment Plant 4. Electronic copies of the records (pdf format) were requested on a computer disk.

Thirty-five days have elapsed since this request was filed and the city has provided none of the 4,700 pages of documents it estimated were responsive to this request.

The lawsuit asks the court to issue a writ of mandamus requiring the City of Austin to “promptly” provide copies of the requested records to The Austin Bulldog pursuant to the terms of the Texas Public Information Act. (A writ of mandamus is a judicial order directing a government official to perform a duty that is not subject to the official’s discretion.) The lawsuit also seeks reasonable and necessary attorney fees and cost to plaintiff.

“After many months of being under scrutiny over transparency issues and after a couple of weak attempts to deal with these issues, the Austin City government still has a fundamental problem: Austin officials have a bad attitude about letting the public see what they are doing,” said Bill Aleshire of Riggs Aleshire and Ray PC, who represents The Austin Bulldog.

Water Treatment Plant records withheld

by Ken Martin
© The Austin Bulldog 2011

Three Austin taxpayers filed a lawsuit today to stop State Comptroller Susan Combs from paying state tax money to the promoters of Formula One racing in Austin.

The lawsuit filed in state district court may affect the Austin City Council's action scheduled for tomorrow to enact ordinances that would otherwise enable the comptroller to make the payments.

Race promoters have publicly stated that the comptroller’s payment must be made in July for the race to take place.

Combs jumped on the opportunity for the race before consulting with the City of Austin or Travis County. In fact, Combs issued a letter to Formula One World Championships Limited on May 10, 2010, to certify that, “With the understanding that the first Formula 1 United States Grand Prix will be held in Texas in 2012, full funding of the entire sanction (fee) for 2012 will be paid to Formula One World Championship Limited (FOWC) no later than July 31, 2011. In subsequent years, two through 10, of the race promotion contract, i.e., 2013 through 2021, we will be sending $25 million to FOWC by the end of July 31 of each year preceding the actual race event.”

As a result of the comptroller’s early commitment, and the extreme lateness in approaching the City of Austin to sign on as the sponsoring municipality, the city is under the gun to approve contracts and is scheduled to consider doing so at tomorrow’s council meeting. The economic study that projects tax revenue to be derived from the race was not delivered until late Monday.

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.

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