Public Official

Daugherty Wins SOS Round One

 Daugherty Wins SOS Round One

Judge Yelonosky rules mostly in favor of county
commissioner but leaves room for further action

by Ken Martin
© The Austin Bulldog 2015
Posted Monday July 27, 2015 4:20pm

Stephen YelonoskyIn the public information lawsuit the Save Our Springs Alliance initiated against Travis County Precinct 3 Commissioner Gerald Daugherty, which was argued in court July 13, District Judge Stephen Yelonosky denied most of what the plaintiff sought.

But the judge left the door open as to whether the SOS Alliance could persuade the court to order Commissioner Daugherty or Travis County, or both, to change recently enacted policies regarding retention of and access to public records.

“There remains a question of the court's jurisdiction, as a pure question of law, over a Declaratory Judgment Action seeking to enforce the Public Information Act. The parties have not adequately briefed this, so the court must defer a ruling on the plea to the jurisdiction in this regard until they have,” the ruling states.

Although the lawsuit is technically about whether Daugherty has properly complied with the Texas Public Information Act by providing all records requested by the SOS Alliance May 31, 2013, the larger issue is whether SOS can find ammunition in those records for slowing or halting plans to build State Highway 45 Southwest over the sensitive Barton Springs portion of the Edwards Aquifer.

SOS may seek to settle out of court

SOS v Daugherty Pending Decision

 SOS v Daugherty Pending Decision

Travis County seeks dismissal of lawsuit against
county commissioner, SOS wants more records

by Ken Martin
© The Austin Bulldog 2015
Posted Tuesday July 21, 2015 12:58pm
Updated Tuesday, July 21, 2015 5:03pm (to include a link to the SOS Alliance’s original petition)

In an ongoing battle over whether State Highway 45 Southwest will be built over the environmentally sensitive Barton Springs portion of the Edward Aquifer, the Save Our Springs Alliance is waging a two-pronged attack, through both a civil lawsuit and a criminal complaint, on Travis County Precinct 3 Commissioner Gerald Daugherty, the leading proponent of the project.

Both actions claim that Daugherty violated the Texas Public Information Act, which provides both civil and criminal penalties for violations.

Stephen YelonoskyThe criminal case is being held in abeyance until the lawsuit is resolved. To that end, a nearly three-hour hearing was held July 13 before Judge Stephen Yelenosky of the 345th Judicial District Court.

Tony Nelson and Gerald DaughertyAssistant County Attorney Tony Nelson, who represents Daugherty, contends the lawsuit should be dismissed.

Nelson filed a Plea to Jurisdiction April 8, 2015, meant to refute claims made by SOS in the lawsuit and request dismissal because Daugherty and Travis County have exhausted all means of finding and providing the records that SOS requested in its public information request.

The SOS request was for any e-mails, memoranda, and attachments sent or received by Daugherty or his executive assistants that referenced the proposed SH45 SW that were sent or received between January 1, 2013, and the date of the request, May 10, 2013. The request covered the beginning months of Daugherty’s current term in office.

Issues before the court

Commissioner Daugherty’s Criminal Case Delayed

Criminal complaint concerns an alleged violation of the Texas Public Information Act for not turning ove correspondence related to the proposed controversial State Highway 45 Southwest.

Chris Riley Nailed for Back Taxes

Chris Riley Nailed for Back Taxes

Council member had a homestead exemption
on his entire house, including two rental units

Investigative Report by Ken Martin
© The Austin Bulldog
Posted Wednesday, August 20, 2014 4:03pm
Updated Thursday, August 21, 2014 10:25am to add additional document links

Chris RileyIn January 2002, Council Member Chris Riley bought a house at 1310 San Antonio Street in downtown Austin. For 11 years he enjoyed a homestead for the entire property—despite the fact that two upstairs units have been rented for most if not all those years.

An anonymous complaint filed with the Travis Central Appraisal District June 20 resulted in removal of the homestead exemption for the 46 percent of the property that is rented. Riley retains the right to claim 54 percent of the property for his homestead.

Yesterday Riley responded to an inquiry from The Austin Bulldog and provided a copy of an e-mail he sent to the Travis Central Appraisal District (TCAD) June 19, 2014, the day he found out about the complaint.

“I was made aware of this issue via a constituent letter received by my office on June 19, 2014,” Riley stated in his response to our inquiry. “I immediately called TCAD about it, and based on their instructions I sent the following e-mail that night.” (A copy of Riley’s e-mail received by the appraisal district is linked at the bottom of this story.)

The Travis County Tax Office billed Riley for $7,294.87 for back taxes for the tax years 2009 through 2013. Riley paid that amount August 15, said Susan Zavala, tax supervisor for property tax collections in the Travis County Tax Office.

Although Riley paid back taxes for the years 2009 through 2013, he was not billed for $1,208.21 that he would otherwise have owed for the tax years 2003 through 2008, because the law permits removal or reduction of a homestead exemption for only five years.

Litigation Challenges Open Government Laws

Litigation Challenges Open Government Laws

Attorneys criticize criminal penalties and public
access to elected officials’ private e-mail accounts

Part 3 of a 3-Part Series

by Ken Martin
© 2013 The Austin Bulldog
Posted Wednesday, April 24, 2013 2:00am

The audience was indeed sparse but two lawyers were nonetheless passionate in addressing what they perceived to be improper actions by the Texas Attorney General in how his office enforces the Texas Public Information Act and how prosecutors enforce the Texas Open Meetings Act. Both attorneys have fought what so far have been losing battles in court over these issues.

A third attorney on the panel titled “Open Government: Litigation Developments” (click the link to watch the video) provided an analysis of the inconsistencies in decisions rendered by Texas courts with respect to how the Texas Public Information Act applies to the ability of requestors to obtain records involving public-private partnerships.

Jacqueline CullomAfter being introduced by Assistant City Attorney Jacqueline Cullom at the City of Austin’s Open Government Symposium held April 17 at City Hall, these attorneys individually provided their interpretations of how the Act plays out in actual practice.

Criminal penalties unnecessary, McKamie argues

Mick McKamieAttorney Mick McKamie of the San Antonio-based firm McKamie Krueger LLP (with offices in Austin, Dallas, and Laredo) led off the discussion. He was co-lead counsel in the plaintiff’s appeal in Asgeirsson el at v. Abbott (No. 11-50441) that was recently denied a hearing by the U.S. Supreme Court.

That case involved 15 elected officials who contend the Texas Open Meetings Act’s criminal penalties established in Government Code Section 551.144 (for knowingly participating in a closed meeting that is not permitted) violate the officials’ First Amendment rights. The possible punishment includes a fine of $100 to $500, confinement in the county jail for not less than one month or more than six months, or both the fine and confinement.

Spelman’s City E-mails on UT Account Will Not Be Provided

Posted Friday, March 18, 2011 11:21am
Council Member Spelman’s City E-mails
on UT Account Will Not Be Provided

University of Texas Will Seek Opinion
From Texas Attorney General to Withhold

by Ken Martin
© The Austin Bulldog 2010

Bill SpelmanProfessor William “Bill” Spelman of the LBJ School of the University of Texas at Austin, today told The Austin Bulldog that he “occasionally” uses his university e-mail account for sending and receiving messages that involve his duties as an Austin City Council member.

The Austin Bulldog filed an open records request with UT Austin yesterday to obtain copies of Spelman’s e-mails from his university account that involve his work as a city council member.

Those records will not be made available. The university will instead seek an opinion from the Texas Attorney General, said open records coordinator Annela Lopez, who works in the office of Kevin Hegarty, vice president and chief financial officer of UT, who is the university’s custodian of records. Based on previous requests for e-mails created or received by faculty members that do not involve their duties as university employees, it’s unlikely that the attorney general will order Spelman’s e-mails involving city business to be released.

“We need to let this play out through the attorney general,” Lopez said.

The City of Austin previously declined to provide copies of e-mails the mayor and council members sent or received about city business on their personal computers or cell phones. UT’s policy adds to the problem of obtaining records under the Texas Public Information Act that are created or received on other than City of Austin accounts.

What we have here is not a “failure to communicate,” as the Captain tells Luke and other road-gang prisoners in the 1967 movie Cool Hand Luke, but a failure by the City of Austin to ensure that communication created or received by city officials—which by definition are “local government records”—are stored and maintained in accordance with the Local Government Records Act so those records will be available upon request under the Texas Public Information Act, Chapter 552 of the Texas Government Code. That's the law that gives everyone—not just journalists—the right to find out about the workings of government.


Georgetown Citizens Want an Investigation

Posted Sunday July 18, 2010 7:54pm
Updated Tuesday July 20, 2010 4:08pm
Georgetown City Council Gets an
Earful from Concerned Citizens

by Ken Martin

Last Tuesday night’s meeting of the Georgetown City Council had its tense moments, as several motions died aborning, without even winning the second needed to open a discussion.

Patty EasonCouncil Member Patty Eason’s Agenda Item Q drew about a dozen citizens to the meeting:

“Discussion regarding public concerns relating to press reports about improprieties in the conduct of certain city business over which the Council exercises authority and for which Council is responsible.”

Early in the meeting, under action from the council’s executive session discussions, Eason offered a motion to direct city staff to hire independent counsel to research City Attorney Mark Sokolow’s employment agreement to determine its validity, who wrote the agreement, and the timeline and sequence of events leading up to its execution.

Eason’s motion would have further tasked the independent counsel to investigate the hiring of Assistant City Attorney Bridget Chapman.

Council Member’s Pay Violates Texas Constitution

Posted Tuesday May 4, 2010 2:39pm
Updated Wednesday May 5, 2010 10:56am
Georgetown Council Member’s
Pay Violates Texas Constitution
Investigative Report by Ken Martin

Pat BerrymanPat Berryman, who is serving in her second term as a member of the Georgetown City Council, was paid a lump sum of $13,600 by the City of Georgetown in an apparent violation of the Texas Constitution.

The payment was requested by Berryman as reimbursement of expenses from July 2008 through December 2009.

The payment is reflected in a copy of Council Member Berryman’s city payroll record obtained from the City of Georgetown using the Texas Public Information Act.

During the entire period for which Berryman claimed reimbursement, she was a state employee working for State Senator Steve Ogden (R-Bryan), according to state payroll records obtained from the Secretary of the Texas Senate through an open records request.

Section 40(b) of the Texas Constitution prohibits a state employee who is a member of a governing body from drawing a salary. A state employee serving as a council member may be reimbursed for actual expenses but must prove that the expenses equal or exceed the amount reimbursed.

Council Member Berryman has not met that requirement.

How it happened

Mark-SokolowIn a December 15, 2009, e-mail to Georgetown City Attorney Mark Sokolow, Berryman requested reimbursement of expenses from July 2008 through December 2009.

The $13,600 she was paid represents 17 months at $800 a month.

Berryman’s e-mail to Sokolow lists 16 items, or types of expenses. The e-mail provides no indication of the amount of expenses incurred for any or all of these items. Berryman provided no receipts for the stated expenses.

Reimbursement previously refused

According to the minutes of the Georgetown City Council Meeting of April 8, 2008, under Agenda Item T, the council voted 7-0 to approve a change to the compensation schedule for the mayor and council members.

The new schedule was based on recommendations of a compensation committee appointed by the council to study the matter.

The compensation schedule authorized:

• “Base compensation” of $450 a month for the mayor and $300 a month for each of the seven council members.

• An “optional stipend” of $800 a month for the mayor and council members.

The minutes of that council meeting do not fully explain the compensation, but the minutes specify—as the compensation committee recommended—that the mayor and council members “would not be required to explain their reason for accepting the stipend.”


To facilitate these payments, the city devised a form that provided boxes to be checked, to either accept or decline each form of compensation

A warning was printed on the form: