Open Government

 County Attorney Reports Lessons Learned

His investigation of Austin City Council’s open
meetings violations resulted in improvements

by Ken Martin
© The Austin Bulldog 2015
Part 2 in a Series
Posted Wednesday April 15, 2015 10:26am

The 21-month investigation of violations of the Texas Open Meetings Act by a previous Austin mayor and council members taught public officials some hard lessons, cost city taxpayers more than $600,000, and brought about important reforms.

At the April 9, 2015, Open Government Symposium hosted by the City of Austin, Travis County Attorney David Escamilla talked about that criminal investigation during his presentation of “Views From a County Attorney’s Office.” He praised the city’s improvements that resulted from it.

Escamilla, former president of the Texas District and County Attorneys Association and currently the Texas director for the National District Attorneys Association, said one of the key changes was for the city to establish and host an online City of Austin Council Message Board. The message board allows City Council members and authorized staff to post messages about, and hold online discussions of, city business that the public can also follow on the Internet.

It was “genius” to come up with this technological solution, Escamilla said, because it offers a workable solution to the complaints that elected officials, confronted with restrictions placed on deliberations by the Texas Open Meetings Act, sometimes try to make about the need to talk to each other outside of public meetings.

“The public’s right to know outweighs efficiency,” he said.

Escamilla said only two governmental agencies in the state are using an online message board, as authorized by State Senator Kirk Watson’s SB 1297 enacted in 2013 and codified as Government Code Section 551.006.

“Now they can have those discussions on the Internet and you get to watch what happened,” he said.

While the message board permits a free flowing discussion among elected officials about public business and public policy, and allows the public to monitor the dialogue, the legislation specifically prohibits the governmental body from voting or taking any action that is required to be taken in an open meeting.

The Travis County Commissioners Court recently approved establishing a similar message board, said Escamilla, who has served in the county attorney’s office for 30 years and became county attorney in 2003. When running for reelection in 2004, 2008, and 2012, he was unopposed in both the Democratic primary and general election.

Bulldog investigation uncovered violations

 Why Acting Ethically, Legally Matters

Many a high-profile scandal persisted for
years because nobody stepped forward

by Ken Martin
© The Austin Bulldog 2015
Part 1 in a Series
Posted Tuesday April 14, 2015 9:41am

A president of the United States used his office to have sex with an intern. A Penn State assistant football coach was convicted of 45 counts of child sex abuse. And a world famous comedian is a serial rapist?

What Bill Clinton, Jerry Sandusky, and Bill Cosby have in common is that nobody stepped forward or spoke up to expose these men early on when they violated women and children.

Ta-Nehisi Coates, a journalist who wrote an article about Cosby published in 2008 by The Atlantic, knew about the rape allegations and barely mentioned them in what he wrote.

The year 2008 was a time when Barack Obama was running for president and Cosby was making speeches he said were “call-outs” to black men for self-reliance and striving.

The only mention of Cosby’s misdeeds with women in Coates’ 7,000-word article was literally a parenthetical remark: “(In 2006, Cosby settled a civil lawsuit filed by a woman who claimed that he had sexually assaulted her; other women have come forward with similar allegations that have not gone to court.)”

Last year, as a growing number of women were publicly telling their stories about being Cosby’s victims, Coates looked back at his failure to fully report on the rape allegations, noting he was having his first big shot at writing for a national magazine. “But Cosby was such a big target that I thought it was only a matter of time before someone published a hard-hitting investigative piece. And besides, I had in my hand the longest, best, and most personally challenging piece I’d ever written.

“It was not enough,” he wrote in The Atlantic of November 19, 2014.

“I don't have many writing regrets. But this is one of them,” Coates wrote. “I regret not saying what I thought of the accusations, and then pursuing those thoughts. I regret it because the lack of pursuit puts me in league with people who either looked away, or did not look hard enough. I take it as a personal admonition to always go there, to never flinch, to never look away.”

A call for responsibility

 City Holding Open Government Symposium

Continuing legal education credits for lawyers and
great information for advocates of open government

by Ken Martin
© The Austin Bulldog 2015
Posted Wednesday April 8, 2015 11:15am

The City of Austin will hold its second Open Government Symposium tomorrow, Thursday, April 9 at City Hall.

The all-day event will offer seven different presentations, some of which are running concurrently to provide options for attendees. The sessions will cover ethics, litigation developments, legislative developments, open government innovations in the state and internationally, and open government issues beyond the city.

Travis County Attorney David Escamilla is on the program to speak at the Symposium and is enthusiastic about the city again holding this important event.

“By holding this symposium the City of Austin is recognizing that open government and transparency are important,” Escamilla said.

Escamilla is the official who conducted a 21-month investigation of the previous Austin City Council’s longstanding practice of violating the Texas Open Meetings Act, by holding regularly scheduled two-on-one and one-on-one private meetings, in effect establishing a “walking quorum” that constituted a conspiracy to evade the Act.

That investigation was triggered by the The Austin Bulldog’s investigative report that exposed the illegal practice.

Attorney Bill Aleshire of Aleshire Law PC, a strong advocate for increased government accountability—and The Austin Bulldog’s attorney for two lawsuits involving the City of Austin’s refusal to comply with the Texas Public Information Act—said, “I hope the ‘New Way Forward’ (advocated by Mayor Steve Adler) will have a subtitle ‘Let’s Get Real,’ and nowhere in the City’s management is there more need to get real than in the pretense City Manager Marc Ott’s administration has given to transparency in government. 

 Want More Open Government?

Key lawmaker and nonprofit advocacy group
pitch for public support on pending legislation

by Ken Martin
© The Austin Bulldog 2015
Posted Thursday March 19, 2015 3:01pm

State Representative Todd Hunter (R-Corpus Christi), who chairs the powerful House Calendars Committee, and the two co-chairs of the Freedom of Information Foundation of Texas laid out the details of proposed legislation that the press and other open government advocates hope will succeed. And some they wish are tossed into the trash heap.

Among the array of proposed legislation are bills that if enacted would:

• Empower governmental agencies to compel public officials to turn over records that constitute public information,

• Make public the records of campus police at private institutions of higher education,

• Reemphasize that journalists may legally report on whistleblower allegations of public concern,

• Raise the bar for closing juvenile courts to the public,

• Remove public notices from printed newspapers,

• Disregard public information requests from non-Texans, and

• Authorize the Texas Attorney General to prosecute violations of the Texas Open Meetings Act or Texas Public Information Act when local county and district attorneys decline to do so.

Hunter, who has served eight terms in the Texas House, four as a Democrat and four as a Republican, authored two of these proposed bills.

 Appeals Court Demands E-mail Release

Third Court of Appeals decision once again requires
e-mails on private account or devices to be released

by Ken Martin
© The Austin Bulldog 2015
Posted Tuesday March 10, 2015 1:30pm
Updated Tuesday March 10, 2015 2:43pm
Updated Tuesday March 10, 2015 3:58pm

One can only imagine what’s in the e-mails that a San Antonio mayoral candidate wants to keep secret, but Tommy Adkisson lost another round in his ongoing legal battle to keep from releasing e-mails about official Bexar County business that he conducted using private e-mail accounts or devices as a county commissioner during his recently ended term of office. This legal warfare has been going on for three years.

The Austin-based Third Court of Appeals on Friday upheld the trial court’s decision that these e-mails sent or received by then-Bexar County Commissioner Adkisson are public records and must be released to the requestor.

Attorney George Hyde of Austin-based Denton Navarro Rocha & Bernal PC has and still represents both Adkisson and Bexar County.

“I have only recently informed my clients of the decision issued Friday and await instructions at this point,” Hyde said in an e-mail Monday in reply to questions posed by The Austin Bulldog. “Based on the decision upon first read, it appears it creates more questions than it answers for local government.”

Houston-based attorney Joseph Larsen, special counsel to Sedgwick LLP, and a longtime volunteer with the Freedom of Information Foundation of Texas, has a far different analysis of the Third Court’s opinion.

“I think this is an excellent and well-reasoned opinion, and is spot-on correct,” Larsen told The Austin Bulldog.  But he added, “I think we still need a legislative solution because the opinion only applies to county officers, and does not yet have statewide reach.”

Larsen said, “It’s possible that this decision—the logic of the analysis—applies to non-county governmental bodies and governmental officers, but it does not bind them. Therefore we need to propose legislation establishing custodianship statewide and through all governmental bodies.”

This is an important case. In 2011 The Austin Bulldog sued the mayor, council members and City of Austin to get e-mails about city business these elected officials exchanged on private accounts, forcing them to release communications that were not only embarrassing but indicative of orchestrated efforts to evade the Texas Open Meetings Act by debating high-profile issues such as building a half-billion-dollar water treatment plant and a controversial lawsuit settlement involving the shooting death of a young African-American man.

The 33-page opinion of the Third Court of Appeals (linked at the bottom of this story) states the e-mails about official business are public records.

“To conclude otherwise would lead to the absurd result that the Commissioner could conduct all his official County business through his personal e-mail accounts without it being subject to the PIA (Texas Public Information Act), even if the same correspondence would be subject to the PIA if he used his County e-mail account.”

Adkisson had contended that he had a right of privacy in his e-mail communications, an argument soundly rejected by the Third Court.

“When the Commissioner voluntarily took on his elected office, including his role as the public-information officer for his office, he relinquished some of the privacy expectations of a private citizen, at least in connection with his work as a County Commissioner. As an elected County official and the public-information officer for his County office, the Commissioner would or should have known that documents created or received by him, his employees, or his office in the transaction of public business were records potentially subject to review under the PIA or for any variety of other reasons, regardless of where they are physically located.”

Public information request triggered lawsuit