Lawyers attending for education credits abound, much of day has little to do with city practices
Part 1 of a 3-Part Series
“Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
— Texas Public Information Act, Government Code Section 552.001(a).
Last week, the City of Austin demonstrated its renewed commitment to let citizens in on the process of governing. The City hosted a groundbreaking effort to focus public attention on the issues related to open government.
Hosting the symposium was a big step into the sunshine for a government agency that has gone through some traumatic experiences over the last couple of years.
Those experiences included a criminal investigation for violations of the Texas Open Meetings Act, which resulted in deferred prosecution agreements signed by the mayor and council members (except Kathie Tovo, who was elected after violations occurred), and a lawsuit filed by The Austin Bulldog that triggered major reforms in the city’s handling of electronic communications during the county attorney’s investigation. (More about that later.)
Mayor Lee Leffingwell read opening remarks Wednesday morning to a nearly empty City Council chamber. (Click link for video.)
“We believe that transparency fosters the public trust and it’s very important to us,” Leffingwell said. The symposium offers “an opportunity to talk about the law and the process of open government and to learn from each other….”
Leffingwell said Texas Comptroller Susan Combs had recognized the City of Austin with a Leadership Circle Gold Award, the highest level of recognition, for its transparency in posting financial data online, including the budget, annual financial report, and check register.
“We also conduct public work sessions to discuss matters of council interest in an open and transparent way, and that’s in addition to our regular council meetings. All council agendas post an opportunity to discuss open meetings issues from a legal perspective,” the mayor said.
Leffingwell did not mention that the City Council work sessions were initiated only after the county attorney launched an investigation—triggered by The Austin Bulldog’s report of January 25, 2011, which exposed the institutionalized system of regular, round-robin private meetings that violated the Texas Open Meetings Act.
“In a constantly evolving social media environment, it’s important to continue to discuss and evaluate these issues so that we can continue to improve our openness and transparency,” Leffingwell said.
A total of six panel discussions were offered over the course of the day, some of which ran concurrently. The Austin Bulldog covered four of the six panel presentations and will publish additional accounts in Parts 2 and 3 of this series.
The panel discussions were videotaped by the city’s Channel 6. All are available on the city’s website except for a large part of Panel 6 (“Open Government: Beyond the City”), for which only 19 minutes of video are posted due to technical difficulties, according to station manager Keith Reeves.
Building an ethical culture
For the Panel 1 discussion, “An Open Government Overview: The Interaction of Compliance and Culture,” Assistant City Attorney Sabine Romero, who organized the day’s events, introduced and sometimes posed questions for Page Motes, director of strategic programs, global ethics, and compliance office for Dell Inc.
“I’ve spent a great amount of my of time consulting with legal professionals (and) compliance professionals responsible for putting together programs that make sense, that resonate, that actually elicit the right behavior from employees and constituents,” Motes said.
“What I’ve learned … is that just looking at law and just looking at process is only part of the equation. I want to concentrate on the concept of culture and why it’s important.”
Culture is how things get done, Motes said. Culture is what actually happens on the ground. Do people fulfill the expectations, values, beliefs, and behaviors expected of them within an organization?
Romero asked if ethics are different in corporations and government.
Motes said no. Ethics are part of culture. “What behaviors are expected? Are we being transparent, honest, are we holding ourselves accountable?”
Rules may be viewed by people within an organization as a boundary or a baseline and people worry about stepping over the edge. People should want to set higher standards and transcend the base rules, she said.
Motes said that mid-level managers are the most disengaged in any organization and they make or break the culture of the organization. They should talk about not just what can you do but what should you do, about something higher, broader, with more lasting value. Disengagement is the number-one reason why culture falls apart.
“If you have disengagement then individuals are more likely to commit acts of wrongdoing,” she said.
In any organization, the biggest thing that can be done to build an ethical culture is to make sure everyone is heard, that they are encouraged to speak up and offer ideas. You have to have the right goals and make sure everyone understands, Motes said.
The key things to watch out for are rationalizations, the ability of a team member to intellectually justify an intentional act of business misconduct; opportunity, the ease with which a team member can commit misconduct; and pressure, the motive or incentive for a team member to commit misconduct.
“You have to have all three covered and focus on the right types of behavior,” Motes said.
She said simple actions can be taken to build an ethical culture and cost nothing: authentically discuss expectations, create an open environment for input, tell stories about real issues and real impact, and get people to think and open up.
“Celebrate ethical outcomes—especially when a decision was hard,” Motes advised.
A healthy ethical culture creates a more cohesive ecosystem in which people work better, more effectively, and are more engaged and stick around.
Romero said, “Open government provides transparency, encourages public participation, and fosters public trust.”
The cornerstone, she said, is the Texas Open Meetings Act (TOMA), Chapter 551 of the Government Code, which requires 72 hours notice of meetings.
TOMA requires that any discussion of official business by a quorum or more must be conducted in public. Exchanges of e-mail and social media can constitute a discussion of public business, she said.
Romero noted the Texas Public Information Act (TPIA), Chapter 552 of the Government Code, requires government agencies to provide records upon request.
The city complies with the TPIA, she said, through directives that dictate how electronic communication is to be collected, assembled and maintained, and technical support is provided to assist in searching for records requested from the mayor and council offices.
A curious choice of presenters
Many of those who attended the symposium were not open government advocates or those entrusted with the job of making government more responsive and transparent, but attorneys who came to earn credit for continuing legal education.
In fact almost everyone who attended the Panel 4 presentation titled “A Corporate Perspective: Building an Effective Compliance Program” raised their hands when asked if they were attorneys.
The sole presenter for that slot was Linda Schatz, legal compliance and ethics program manager for Transocean Offshore Deepwater Drilling.
Schatz presentation was prosaic but thorough, and several attendees were fiddling with their phones throughout the presentation. One woman was sound asleep on the front row.
While the presentation itself was only tangentially related to open government, the larger question was why a representative of this particular company was picked to be a presenter.
Transocean recently paid $1.4 billion in criminal and civil fines for creating the largest oil spill in U.S. history and causing the death of 11 workers on the Deepwater Horizon drilling rig in the Gulf of Mexico, according to a press release issued by the U.S. Attorney General January 3, 2013.
Asked why a representative of Transocean was chosen to be part of the symposium, Romero told The Austin Bulldog, “Linda Schatz is an incredible professional who has achieved remarkable program success with outreach with an entity that doesn’t just have departments, but countries. I thought that was an incredible value she brought to the symposium. … That was the reason we invited her and we were happy to have her.”
Asked the same question, City Attorney Karen Kennard, whose law department took over the responsibility for ethics and compliance in January 2012, said she was not familiar with the penalty levied on Transocean.
“We are involved in lots of groups that are involved in ethics and compliance and we find there are learning opportunities in all situations, from the good ones and the not so good ones,” Kennard said.
“(Schatz) is part of some groups that we have been involved in with ethics and compliance and we thought it might be interesting to hear from somebody who built a program from the ground up.”
Political damage and public cost of wrongdoing
The City spent more than $600,000 on lawyers to help the city and the mayor and council members get through the county attorney’s 21-month investigation of violations of the Texas Open Meetings Act.
That investigation culminated October 24, 2012, when Travis County Attorney David Escamilla’s Press Release announced the results of his investigation. Escamilla also released copies of the deferred prosecution agreements that were signed by each of the elected officials and their personal attorneys.
Signing deferred prosecution agreements saved the mayor and council members from prosecution and, if convicted, possible jail time.
The mayor and several council members were also deeply embarrassed by—and publicly apologized for—some of the things they said in e-mails that were published as a result of public information requests filed by The Austin Bulldog and other media.
The City of Austin appears to be trying to move on, demonstrate that it has learned some hard though valuable lessons, and open government in the spirit of state laws. Hosting this Open Government Symposium was a big step in the right direction.
Coming Tuesday: Social Media’s Impact on Open Government
Coming Wednesday: Litigation Challenges Open Government Law
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help to sustain The Austin Bulldog’s coverage by making a tax-deductible contribution.
Related Bulldog coverage: This is the 39th story covering the City of Austin’s problems and progress in dealing with open government issues.