Lawsuit Alleges Open Meetings Violation
Yet another instance of agenda posting
not sufficiently detailed for public notice
by Ken Martin
© The Austin Bulldog 2017
Posted Tuesday June 6, 2017 3:00pm
Potential Plaintiff to City of Austin: Like to settle instead of getting sued?
City to Plaintiff: No thank you.
The plaintiff in the latest lawsuit against the City of Austin made a settlement offer before filing the litigation and gave the City 45 days to accept one of two options: (1) Cancel the City Council’s approval given November 10, 2016, and repost with proper notice of the proposed waivers of sections of two city ordinances. Or (2) Accept an Agreed Judgment.
By not responding to the offer, the City will have to face off in court.
The lawsuit, Lake Austin Collective Inc. v. City of Austin (Cause No. D-1-GN-17-002447) was filed in Travis County District Court yesterday by Austin attorney Bill Aleshire of Aleshire Law PC.
City Attorney Anne Morgan did not respond to a request for comment about the lawsuit and instead funneled a written statement through a City spokesperson: “The City of Austin appreciates having had the opportunity to review the issue before the plaintiffs filed the lawsuit, but we disagree with Mr. Aleshire’s interpretation of the Texas Open Meetings Act.
“We believe the City gave appropriate public notice about the subject matter to be discussed. In fact, the record shows that this issue had a robust public engagement process,” the statement said.
“The City Attorney said the same thing about the Pilot Knob open meetings lawsuit and lost. The ‘robust’ discussion of environmental waiver the City claims occurred did not start with or ever involve the boards and commissions before the Council let the Champion developer slip those waivers (of the Lake Austin Watershed Ordinance and Hill Country Roadway Ordinances) in on third reading. Part of the robust engagement process was just trying to find out what kind of backroom deal the developer and the Council majority was cooking up.”
New Open Meeting Violation Alleged
City of Austin again accused of
insufficient notice of agenda item
>by Ken Martin
© The Austin Bulldog 2017
Posted Monday April 3, 2017 4:35pm
>Did the City of Austin violate the Texas Open Meetings Act—again?
>That’s what a lawsuit in the making alleges. A draft of the petition and an offer to settle the matter without actually filing the legal action has been conveyed to the City by Austin by attorney Bill Aleshire of Aleshire Law PC, who represents the plaintiffs.
>The draft lawsuit,Lake Austin Collective Inc. and Marisa B. Lipscher v. The City of Austin, claims that the posted Agenda Item 6 for the Austin City Council meeting of November 10, 2016, failed to adequately describe what would be voted on, that the posting omitted notice that the vote would entail waiving sections of two city ordinances.
>City Attorney Anne Morgan in a phone interview toldThe Austin Bulldog,“I did get the draft lawsuit and I wrote to tell Bill Aleshire I appreciate him sending it before filing. I haven’t had a chance to talk to my client, the City Council. We take it seriously. We will look at it and move forward as appropriate.”
>The offer to settle gives the City 45 days to accept one of two options:(1) cancel its approval given November 10 and repost with proper notice of the proposed waivers. Or(2) Accept an Agreed Judgment.
>Lake Austin Collective Inc. is a Texas nonprofit filed with the Secretary of State March 17, 2017. Lipscher is the registered agent. Board members are Linda Bailey, Susan Kimbrough, and Carol Lee. All are property owners affected by the rezoning of the nearby Champion Tract.
>Aleshire said that the zoning application for the Champion Tract was not presented to the Planning Commission. Instead it was taken up by the council directly. The application initially asked for the entire tract to be rezoned.
>But in the face of a valid petition signed by 25 percent of opposing property owners, approval of the measure would have required an affirmative vote by a supermajority (three-fourths of the council members). To avoid that daunting opposition, two days before the third and final reading, the developer redrew the area to be rezoned with 205-foot setbacks from the tract’s boundaries, Aleshire said. That negated the petition and the rezoning was approved on a vote of 7-4.
>But the agenda item did not state that approval would also entail granting variances to the Lake Austin Watershed Ordinance and Hill Country Roadway Ordinance.
>(Disclosure: Bill Aleshire representedThe Austin Bulldog in two lawsuits filed in 2011 against the City of Austin for its violations of the Texas Public Information Act. He currently represents theBulldog to intervene in County Attorney David Escamilla v. Attorney General Ken Paxton, in which the county attorney seeks to close the courtroom and permanently seal all records considered in the hearing.)
Persistent pattern of violations
Fifteen months after City Council ordered changes, board
and commission members to be assigned city e-mail accounts
by Ken Martin
© The Austin Bulldog 2012
Posted Thursday, August 23, 2012 7:50pm
It took the City of Austin 15 months to establish a formal procedure but, finally, the 368 members of the city’s 51 boards and commissions are going to be brought into the city’s e-mail system.
The action is needed to bring the city into compliance with the Texas Public Information Act by enabling the city to collect, assemble, and maintain e-mails about city business that board and commission members send or receive. This will allow the city to search the city’s server to find information responsive to public information requests and produce those records for inspection.
For many years the city’s website for each board and commission listed each member’s personal e-mail address.
“This is easily the most well thought-out policy addressing this issue, both from the private device/account and city server side, that I have seen,” said Joseph Larsen, special counsel to Sedgwick LLP. Larsen is an expert on open government laws and a volunteer attorney for the Freedom of Information Foundation of Texas. “... overall I think this could serve as a template for policies for other City officers and employees and for other governmental bodies.”
This is the third and final phase of improving the city’s handling of electronic communications in response to our lawsuit, The Austin Bulldog v. Mayor Lee Leffingwell et al filed March 1, 2012, and the county attorney’s ongoing investigation of the City Council’s violations of the Texas Open Meetings Act that The Austin Bulldog exposed January 25, 2011.
So Far and No End in Sight
The Austin City Council so far has authorized spending $399,000 to hire outside attorneys to provide advice to bring the city into compliance with the Texas Open Meetings Act and to defend a lawsuit filed by The Austin Bulldog under the Texas Public Information Act.
More than half that amount has been spent already, most of it to deal with the ongoing investigation of possible criminal violations of the Texas Open Meetings Act by Travis County District Attorney David Escamilla.
Section 551.143 of the Texas Open Meetings Act states that a member or group of members of a governmental body commits an offense if the member or group of members knowingly conspire to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter. An offense, if proven, is punishable by a fine of $100 to $500 and confinement in the county jail for one to six months, or both the fine and confinement.
The Austin City Council’s possible violations of Section 551.143 were exposed by The Austin Bulldog’s investigative report published January 25. That same day The Austin Bulldog reported that Escamilla was investigating these matters. That investigation is still ongoing.
The city’s response to these reports was swift. On January 28, the city council hired three law firms and huddled with their lawyers for two and a half hours in a closed-door executive session.
The practice of scheduled private meetings was immediately stopped. The Austin City Council held its first public work session February 9.
The investigative report exposed the longstanding practice of the mayor and council members holding a flurry of routinely scheduled private meetings that for many years had been taking place a day or two before every council meeting. These private meetings denied public access to significant deliberations about city business that are required to be conducted in the sunshine of open meetings.
The Austin Bulldog reported February 7 that the City of Austin committed $159,000 to engage three law firms to provide legal advice related to Texas Open Meetings Act: James E. “Jim” Cousar of Thompson & Knight LLP, C. Robert “Bob” Heath of Bickerstaff Heath Delgado Acosta LLP, and Randy T. Leavitt of the Law Office of Randy T. Leavitt.
Since then, City Attorney Karen Kennard has issued amendments that allowed other lawyers and support personnel within the three law firms to assist, and increased the total authorized expenditures to $289,000 solely to address Texas Open Meetings Act issues.
On the Record About Private Meetings
Fifth in a Series of Recorded
Question and Answer Interviews
by The Austin Bulldog
© The Austin Bulldog 2010
This is a serious matter and the city is taking it seriously. In lieu of the private meetings that for years have been held among the mayor and council members to discuss items on the Thursday council meeting agendas, the council is now holding work sessions to discuss the agenda in posted open meetings.
If the mayor and council members should be found to have in fact violated the Act, they may be subject to criminal prosecution under Section 551.143 of the Government Code, a misdemeanor punishable by a fine of not less than $100 or more than $500; confinement in the county jail for not less than one month or more than six months; or both the fine and confinement.
The Austin Bulldog is publishing selected text excerpts from each of the exclusive interviews conducted with the council members before breaking the story. The complete copyrighted MP3 audio file for each interview is linked at the bottom of each article for easy access. You may listen to these recordings to gain a better understanding of the published excepts within the context of the complete interview.
Council Member Bill Spelman was interviewed in his office at City Hall on Monday, January 24, 2011. The recording runs 38 minutes 52 seconds.
The Austin Bulldog: I don't want to take too much of your time so let's jump right in. As I said in my e-mail requesting an interview I'm developing story about working relationships among the mayor and the council members and understanding how these folks work together to develop public policies. One thing that stands out of my mind is the four of you are pretty transparent on how you spend your time on council duties because you publish your calendars online.
Bill Spelman: Right.
The Austin Bulldog: Do you have any ideas about why (Mayor) Lee (Leffingwell), (Mayor Pro Tem) Mike (Martinez) and (Council Member) Sheryl (Cole) don't publish their calendars?