Litigation
Virden lawsuit overturns city campaign restriction
Appeals court decision draws widespread condemnation
Central Health settles Wallace lawsuit
The Austin Bulldog sues City of Austin, again
Updated 10:55am September 2, 2011, to link Plaintiff's First Supplemental Petition
Against City of Austin for Withholding Records
City Not Responsive to Open Records Request
Concerning Water Treatment Plant Construction
by Ken Martin
© The Austin Bulldog 2011
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
State Comptroller Sued over Formula One
From Paying Tax Funds to Formula One Promoters
Lawsuit Questions Whether Formula One
Qualifies for Subsidies Under State Law
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.
Lawsuit seeks to halt payments
Council reforming e-mail policies
Compliance With Texas Public Information Act
Policy Does Not Cover All City Employees
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.
City council can’t establish policies?
City, council members answer lawsuit
Answer to The Austin Bulldog’s Lawsuit
Answer Challenges Standing and Claims
Requests for Open Records Fulfilled, Mostly
by Ken Martin
© The Austin Bulldog 2011
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
City Council Records Retention Problems
by Lack of Controls Over Deletion of E-mails
Missing Records Likely More
Important Than Gossipy Tidbits
Investigative Report by Ken Martin
© The Austin Bulldog 2011
The Austin American-Statesman and some television reports had a field day serving up e-mail exchanges among the mayor and council members that reveal the proclivity of some officeholders to hold side discussions among themselves during council meetings in which they demeaned certain citizens and showed a lack of confidence in high-level employees, including the city manager, an assistant city manager and the fire chief.
This rush to dish the dirt out of the e-mails that have been released—in response to open records requests filed under the Texas Public Information Act, first by The Austin Bulldog and later the Statesman and other media—has been entertaining, in a sense, and has triggered profuse apologies from the offending officeholders. A heaping helping of humble pie has been served up and choked down.
What has not been reported is how these elected officials, and their staff members, may be failing to properly manage e-mails and other correspondence to make sure that local government records are collected, assembled, and maintained in accordance with the Local Government Records Act.
At present, the city permits every city official and employee to conduct public business by creating or receiving local government records via e-mail and to keep them secret by using personal e-mail accounts.
The city also permits every official and employee who uses a computer to choose—without review by anyone else—when to delete local government records in the form of e-mails created or received on the city’s computers. Once e-mails are deleted, the right of access to them through the Texas Public Information Act, Government Code Chapter 552, is soon permanently lost.
The city’s failure to comply with the Texas Public information Act and the Local Government Records Act was the basis for the lawsuit, The Austin Bulldog v. Mayor Lee Leffingwell, et al, as reported March 2. The city has until April 11 to file its initial reply to the pleadings.These shortcomings are also the basis for The Austin Bulldog's complaint filed with County Attorney David Escamilla,as reported March 23.
The city’s response to The Austin Bulldog’s open records requests for deleted e-mails indicate that some e-mails that should have been retained are being deleted.
Records retention basics