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Litigation

Virden lawsuit overturns city campaign restriction

U.S, District Judge Robert Pitman of the Western District of Texas yesterday declared unconstitutional the restriction found in the Austin City Code that restricts...

Appeals court decision draws widespread condemnation

An appellate decision over a TCAD lawsuit has astounded commercial property owners and attorneys who represent them. If the Texas Supreme Court allows it...

Central Health settles Wallace lawsuit

Fired executive signs settlement agreement for $99,316 It’s not the $1 million-plus he sought but Larimen Thaddeus “Larry” Wallace has signed a Settlement Agreement with...

Private E-mails About City Business

Posted Tuesday, March 29, 2011 8:57pm
Private E-mails About City Business May Be
Pulled Into City of Austin Records Retention

City Council Votes to Consider Policy
Draft at Council Meeting of April 7

by Ken Martin
© The Austin Bulldog 2011

The Austin City Council voted 6-0 this morning, with Council Member Bill Spelman absent, to direct city staff to draft a new policy that would require designated city officials to ensure that e-mails pertaining to city business that are created or received on personal devices would be copied to the city’s e-mail servers so these messages would be available to a requestor under the Texas Public Information Act, Chapter 552 of the Government Code.

Jim CousarThe draft policy is to be placed on the April 7 City Council meeting agenda for discussion and possible adoption. Which city officials would be included in such a policy will be discussed at that meeting, but attorney James C. “Jim” Cousar of Thompson & Knight LLP, told the council that requiring all city employees to do so would be “difficult, expensive, and unworkable.”

Cousar suggested that guidance should be provided to anyone made subject to such a policy about what constitutes an e-mail that must be retained by the city vs. a personal e-mail that does not. He also noted that e-mails from personal devices that are forwarded to city e-mail servers would be subject to the exceptions set forth in the Texas Public Information Act that bar release of certain sensitive documents in response to an open records request.

A important question that was not addressed in today’s work session is what penalty, if any, would apply to violators of whatever new policy is adopted.

Lawsuit issues not addressed

Council Member Laura Morrison Releases E-mails

Posted Wednesday March 30, 2011 4:56pm
Council Member Laura Morrison Releases
E-mails on City Business from Gmail Account

Morrison Second Council Member to Turn Over More
E-mails Responsive to The Austin Bulldog’s Requests

by Ken Martin
© The Austin Bulldog 2011

Laura MorrisonLate this afternoon the City of Austin’s Public information Office issued a statement by Council Member Laura Morrison along with six e-mails totaling 11 pages.

Morrison is the second council member to break ranks and voluntarily release e-mails requested by The Austin Bulldog under the Texas Public Information Act that were not retained within the city’s communication system.Council Member Bill Spelman yesterday released three e-mails from his University of Texas e-mail account about city business.

She is the first to release e-mails that she created or received from her personal e-mail account.

Morrison’s press release states, “In the interest of transparency, in the few cases when I may have conducted city business with e-mail on my personal account, my policy is to forward the e-mail to my city account. This practice is consistent with the draft policy that was discussed at the March 29 Council Work Session, which I will continue.

Bulldog Files Civil Complaint Against City

Posted Wednesday March 23, 2011 4:54pm
The Austin Bulldog Files Civil Complaint
Against City of Austin and Council Members

Travis County Attorney David Escamilla
Has Legal Authority to Force Compliance


by Ken Martin
© The Austin Bulldog 2011

David EscamillaThe Austin Bulldog today filed a formal complaint with Travis County Attorney David Escamilla against the City of Austin and Austin City Council members pursuant to Section 552.3215 of the Texas Public Information Act (TPIA), Chapter 552 of the Government Code.

This complaint, which is civil in nature, not criminal, requests that Escamilla use his authority to determine if the City of Austin and its officials have violated the TPIA as alleged in the complaint.

If Escamilla finds that violations have occurred, the complaint asks that he seek a court order requiring the city, council members and staff to comply with the Act. He has the authority to bring a lawsuit in the name of the State of Texas for declaratory judgment and injunctive relief that is in addition to any other civil, administrative, or criminal action.

Escamilla declined to comment about the complaint.

Filing the complaint initiated a statutory process, detailed in Section 552.3215(g) of the TPIA, that by law requires Escamilla before the 31st day after the complaint is filed (in this case before April 23) to determine whether the violation alleged in the complaint was committed and whether an action will be brought against the governmental body, and to notify the complainant in writing of his determination.

Complaint separate from lawsuit

Expired: Bulldog’s Offer to Settle City Lawsuit

Posted Friday, March 18, 2011 6:14pm
Expired: The Austin Bulldog’s Offer to Settle Its
Lawsuit with City, Mayor and Council Members

Does This Mean These Elected Officials
Want to Continue to Violate State Laws?

by Ken Martin
© The Austin Bulldog 2011

As reported March 2, The Austin Bulldog filed a lawsuit against the mayor, each city council member, and the City of Austin over the city’s decision to withhold certain government records—including records involving public business that were created or received on the mayor or council members’ cell phones or personal computers or the city’s Spark chat system.

The lawsuit claims that council members have violated records management laws by not turning these records over to the city so that the city can comply with the Texas Public Information Act.

Bill AleshireJim CousarOn March 4, The Austin Bulldog’s attorney, Bill Aleshire of Riggs Aleshire & Ray PC, submitted a settlement offer to the attorney handling the lawsuit for the city, James E. “Jim” Cousar of Thompson & Knight LLP.

The Austin Bulldog seeks to help the City of Austin become the shining beacon of open government in Texas,” the settlement offer states. “An important first step in that process is for Austin officials to stop communicating about city business in ways that avoid application of the Texas Public Information Act to such correspondence.”

The settlement offer expired at 5pm today. No defendant accepted the proposed terms. Fifteen minutes before the offer expired, Cousar spoke with Aleshire on the telephone.

“He (Cousar) told me that six of the seven members of the council and the City of Austin respectfully decline the offer to settle,” Aleshire said. “I told him we would respectfully proceed with the lawsuit.”

Settlement offer conditions

Bulldog Files Lawsuit to Compel Compliance

Posted Wednesday, March 2, 2011 5:20pm
The Austin Bulldog Files Lawsuit to
Compel Compliance with the Law

Mayor and City Council Members Not in Compliance
with Statutes for Public Information, Records Retention

by Ken Martin
© The Austin Bulldog 2010

The Austin Bulldog electronically filed a lawsuit in state district court last night to sue the mayor and each council member in their individual capacity, and the City of Austin, for failure to promptly and fully respond to The Austin Bulldog’s requests filed under the Texas Public Information Act (TPIA), Chapter 552 of the Government Code.

The city’s decision to withhold certain government records—including records involving public business that were created or received on the mayor and council members’ cell phones or personal computers—lays bare a major problem preventing citizens from obtaining complete information about the affairs of government: To withhold records created or received on officeholders personal computers and cell phones is to effectively gut the Texas Public Information Act. To allow this to stand would amount to an open invitation for city officials and employees to conduct business in the shadows.

Withholding these public records from disclosure as requested by The Austin Bulldog on January 19, 2011, and January 27, 2011—and doing so without seeking an Attorney General’s opinion—only adds to the city’s previously reported problems in governmental transparency, evidenced by The Austin Bulldog’s story published January 25, which exposed the ongoing violations of the Texas Open Meetings Act, Chapter 551 of the Government Code.

Further, The Austin Bulldog’s lawsuit asserts there is evidence that one or more Austin officials deliberately use their private e-mail accounts to try to keep substantive communications about city business from being available through the city’s computer servers.

In one case, a council member asked a constituent to switch over to the council member’s personal e-mail address to continue discussing the controversial topic of tax subsidies for The Domain shopping center. This e-mail discussion obviously concerns important public business, as those subsidies amounted to anywhere from $25 million to more than $60 million, depending on whose figures you believe.

Records retention paramount