Payments for private lawyers for mayor, council members in criminal investigation
Investigative Report by Ken Martin
On the eve of the City of Austin’s Open Government Symposiumslated for April 17, The Austin Bulldog’s investigation found that the City of Austin quietly paid $157,636 for attorneys to defend six elected city officials (not including Council Member Kathie Tovo) and former Council Member Randi Shade during County Attorney David Escamilla’s 21-month criminal investigation of the City Council’s violations of the Texas Open Meetings Act.
These expenses—plus $444,000 the Austin American-Statesman reported June 17, 2012, that the city had authorized to spend with three law firms for advice on matters related to complying with the Texas Open Meetings Act—means taxpayers have shelled out more than $600,000 since The Austin Bulldog broke the story of these violations January 25, 2011.
Proof of the payments for the elected officials’ individual legal representation was obtained by The Austin Bulldog through a request filed under the Texas Public Information Act.
The city furnished 39 pages of invoices and related records. These records show that payments were made directly to five law firms. In addition, payments were made to Council Member Bill Spelman and former Council Member Shade to reimburse each of them for payments they personally made to two other law firms.
The payments for legal fees ranged from as little as $7,525 paid to reimburse Council Member Spelman for representation by attorney Wayne Meissner to as much as $47,810, the amount paid directly to attorney Brian Roark, who represented Mayor Lee Leffingwell.
For a complete list of expenses click on the exhibit Lawyers Paid to Defend Austin Elected Officials in Criminal Texas Open Meetings Act Investigation. (Links to actual payment records that support this exhibit are provided at the bottom of this report.)
All seven checks for these expenses were cut between December 21 and December 28, 2012.
A review of the City Council agendas for the last three months of 2012 failed to locate any item in which the City Council considered or approved an authorization to approve the payment of these legal fees in an open meeting.
The City Manager and the City Attorney are authorized to approve expenditures in amounts of up to $56,000, according to information supplied by the city’s Public Information Office. None of the payments for these attorneys fees exceeded that amount.
Payment documentation varies widely
Even a cursory examination of the documentation that supports these payments shows there is a wide variation in the level of detail provided to justify these expenses.
The invoices presented by the various law firms range in detail from extensive—in the case of attorney Charles Grigson, who was paid $21,175 to represent Council Member Laura Morrison, and attorney Joel Bennett, who was paid $27,205 to represent Mayor Pro Tem Sheryl Cole—to terse in the case of Joseph Turner, who was paid $24,557 to represent Council Member Mike Martinez.
The documentation for payments made directly to former Council Member Shade ($20,239) and Council Member Spelman ($7,525), to reimburse them for out-of-pocket expenses they made to their respective attorneys, is scant at best.
Some of the invoices furnished by the various law firms clearly indicate that a great deal of time and expense in representing the mayor and council members involved conferring with attorneys representing the other elected officials.
Some of these meetings or communications are described explicitly, as in the invoices submitted by Charles Grigson, while others are only alluded to, as in attorney Brian Roark’s invoices for the $47,810 he was paid to represent Mayor Lee Leffingwell. Roark’s invoice described such events as “meeting with defense lawyer.”
Are these payments legal?
Putting aside the issue of whether the documentation to substantiate the city’s payments is adequate, the basic premise of paying attorneys to represent elected officials in a criminal investigation of open meetings violations appears to be legal. These payments are discretionary—but not mandatory.
Attorney General Opinion No. JC-0294 issued October 17, 2000, addressed whether a city council may pay attorney’s fees incurred to defend its members in prosecution for Open Meetings Act violations.
The opinion states, “Although it is not required to do so, a city council may reimburse a city council member for the legal expenses of defending against an unjustified prosecution for Open Meetings Act violations. It may not decide to pay for such legal expenses until it knows the outcome of the criminal prosecution. The city council may not pay the expenses of a city council member who is found guilty of such violations.”
The county attorney’s investigation identified numerous specific instances of probable cause to show that the mayor and each council member did, in fact, violate the Texas Open Meetings Act by participating in quorum discussions to discuss the city’s business outside a properly posted open meeting.
However, these elected officials were not prosecuted.
Instead of charging the mayor and council members with the criminal offense of violating Section 551.143 of the Texas Open Meetings Act and prosecuting them based on the evidence collected, each elected official, and their respective attorneys, signed deferred prosecution agreements and waived the statute of limitations on the evidence for a period of two years. Any violations during that two years would allow the county attorney to prosecute not only the new offenses but those for which evidence was assembled during the investigation.
These deferred prosecution agreements allowed the elected officials not only to avoid a possible conviction that could have resulted in up to six months in jail, a $500 fine, or both, but also cleared the way for payment of the $157,000 in legal fees to defend these officials.
Attorney Bill Aleshire of the Austin law firm Riggs Aleshire & Ray PC said it was “shocking that taxpayers had to pay for (the mayor and council members’) personal misbehavior” and called these payments tantamount to a “theft of public funds.”
“I do not understand, on allegations of individual criminal violations of the Texas Open Meetings Act, how taxpayers can be responsible for paying their legal bills. I just don’t get it.”
But bringing any action to retrieve these funds is problematic, he said.
A Texas Supreme Court case (No. 99-0231), The Bland Independent School District et al, petitioners v. Douglas Blue and Carolyn Blue, respondents, “Unless standing is conferred by statute, taxpayers must show as a rule that they have suffered a particularized injury distinct from that suffered by the general public in order to have standing to challenge a government action or assert a public right.”
After-the-fact standing to recover these funds “belongs only to the government or an elected official to recover stolen funds,” Aleshire said.
“These officials got themselves into this mess by participating in the activities chronicled in the deferred prosecution agreements with the county attorney,” Aleshire said. “They admitted those facts. Those were egregious attempts to thwart open government decision-making. They breached the public trust and then they breached the public treasury.”
(Disclosure: Aleshire was The Austin Bulldog’s attorney of record in two lawsuits against the City of Austin filed under the Texas Public Information Act.)
Attorney payments a future political issue
While paying more than $157,000 for defending the elected officials appears to be legal, any of these officials who decide to run in the November 2014 election for mayor or council may find this below-the-radar use of taxpayers’ money to be a hot political issue.
Especially when considering the fact that—as The Austin Bulldog has revealed through publication of the mayor and council members’ Personal Financial Statements covering several calendar years—all of these council members are financially well off. None could make a hardship case for shifting to taxpayers the expenses for legal representation to prevent prosecution for their illegal behavior.
Tom “Smitty” Smith, director of Public Citizen Texas, noted that the City Council’s practice of holding round-robin meetings before virtually every council meeting—so that a quorum of the council discussed items of city business outside of properly posted public meetings—was a long-established practice, it was nevertheless a violation of the law.
“A violation of the law is a violation of the law and those responsible—the mayor and council members—ought to pay their legal fees, either directly or from their campaign funds, to defend these charges,” Smith said. “Although the practice was common, the law is clear. You can’t have a walking quorum, and that’s what they did.”
For detailed records of payments made to represent the mayor and council members click on the following links:
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Related Bulldog coverage: This is the 38th story covering the City of Austin’s problems and progress in dealing with open government issues.