Educating the public a worthwhile goal but being an open government would be better
While the Texas Sunshine Coalition works to improve access to public information during the 2019 session of the Texas Legislature that began January 8, the City of Austin is laying plans to host its fourth Open Government Symposium April 3, 2019, at the Austin Central Library.
The first Open Government Symposium was held in April 2013, just six months after Travis County Attorney David Escamilla concluded a 21-month investigation of the mayor and council members, after which these elected officials narrowly avoided jail time.
When that investigation was concluded, Escamilla said in a press release (linked at the bottom of this story): “In addition to the systematic one-on-one meetings that were the subject of the original complaint, we found that council members regularly deliberated outside of the public’s purview by use of almost every modern communication medium that exists. As a result of our investigation, we found probable cause to believe that multiple violations of the Texas Open Meetings Act had occurred.”
That investigation resulted from the investigative report published by The Austin Bulldog in January 25, 2011, and a formal complaint filed by civic activist Brian Rodgers. The report exposed violations involving an institutionalized practice of having one-on-one and two-on-one meetings among the mayor and council members before every council meeting, constituting a walking quorum. In legal terms, those meetings constituted a conspiracy to evade compliance with the Act.
If charged and convicted these elected officials would have had to serve one to six months in jail. Instead, they signed deferred prosecution agreements that waived the statute of limitations on the evidence collected so any new violation could be punished in addition to being charged with the old offenses.
Numerous City reforms were implemented as a result of the Bulldog’s coverage, including adopting new policies to improve the City’s retention of emails, including messages sent or received on private devices. The deferred prosecution agreements required many additional reforms.
The City Council members who were subjected to that investigation are no longer in place. Kathie Tovo defeated one of them in 2011. Mayor Lee Leffingwell and the others later departed the council through attrition.
Symposium part information, part public relations
Conducting these Open Government Symposiums makes useful information publicly available. But the effort might also be viewed partly as a public relations exercise. The City’s actions don’t always exhibit the spirit of transparency that hosting these events might project.
Attorney Bill Aleshire has twice sued the City over open meetings violations since the 10-1 City Council took office in January 2015. The lawsuits resulted from taking action on significant agenda items worded in such a way the public lacked fair notice of what the council would be considering.
Pilot Knob fees—In 2016, the City was sued and lost over its inadequate posting of an agenda item in which the City Council approved fee waivers of $50 million to $80 million for the Easton Park development in southeast Austin. As a result of the litigation the judge voided the Council’s vote. (Rodgers v. City of Austin, Cause No. D-1-GN-16-000615.)
Lake Austin Collective—In 2017, the City was once again sued and lost over its inadequate posting of the agenda item. This time, the City Council approved waivers of the Lake Austin Watershed Ordinance and the Hill Country Roadway Ordinance for Champion Tract rezoning. Once again the judge voided the Council’s vote. (Lake Austin Collective Inc. v. City of Austin, Cause No. D-1-GN-17-002447.)
(Disclosure: Aleshire represented The Austin Bulldog in two public information lawsuits in 2011.)
City manager hiring— The way in which the City Council handled the process of hiring a new city manager was anything but open and transparent.
In recruiting candidates and before ultimately selecting Spencer Cronk for the job, the City tried to conceal the identities of the applicants.
The City Council voted unanimously in March 2017 to withhold names of even finalist candidates. In October 2017 the City denied public information requests for finalists’ names filed by the Austin American-Statesman and others.
The newspaper sued the City for those names October 31, 2017. (Cox Texas Newspapers v. City of Austin, Cause No. D-1-GN-17-006050.)
That lawsuit was soon amended to allege the Council also violated the Texas Open Meetings Act by leaving the Hilton Austin Airport, where they had intended to conduct the interviews, and instead did the interviews at Austin-Bergstrom International Airport behind security checkpoints where there was no public access, the newspaper reported.
When candidate interviews were scheduled in November 2017, and while the lawsuit was pending, Statesman reporters Elizabeth Findell and Philip Jankowski staked out the council meeting location only to find the City’s headhunter consultants doing all they could to thwart reporters.
“To dodge reporters consultants suggested the finalists to be Austin’s next city manager don wigs, pretend to be tourists or possibly even wear Halloween masks after American-Statesman reporters managed to identify several candidates during the city’s top-secret search for its next leader,” the paper reported December 7, 2017.
City not pushing open government legislation
While the upcoming symposium will provide an opportunity for people interested in open government to come and learn, the City is not participating in the Texas Sunshine Coalition’s work to enact legislative solutions to that would make it easier to get public information.
“We are aware of the Sunshine Coalition and its proposed legislation,” Assistant City Attorney Neal Falgoust wrote in an email to address The Austin Bulldog’s questions. “The City has attended conferences where the bills have been discussed, but we have not been invited to participate as a stakeholder in the Coalition.”
“The City closely monitors the Texas Legislature for action on bills that affect City operations, including open government and transparency,” he wrote. “These bills may take many forms beyond amendments to the Open Meetings Act and Public Information Act.”
He noted the Austin City Council has adopted its State Legislative Agenda (linked below) for the 2019 legislative session. But nothing in its 11 pages addresses the open government concerns being tackled by the Texas Sunshine Coalition.
“We reached out to get someone from the Coalition to participate in the symposium,” Falgoust said. “If they were to reach out to us we would offer our thoughts on any bills they propose.”
Symposium calls for ideas
Although the City welcomes suggestions for the Open Government Symposium and provided an online form to collect them, Falgoust, who’s leading planning for the event, said, “We’re already organizing some panel discussions. I think we have the topics nailed down but we welcome ideas because we will be having more symposia.”
He said the suggestions collected through the online form will come directly to him and “can go in the hopper for next year.”
“Topics should be nailed down soon and we will open be open to reserving seats in early February,” he said.
Falgoust said, “We’re looking at the mandatory training required by Texas Public Information Act, so any local government official can come and get it.” Although that training is already available to elected and appointed officials via hour-long online videos for both the Public Information Act and Open Meetings Act, Falgoust said, “there’s a benefit to having (the training) in person” so people can ask questions for the Attorney General’s staff.
County Attorney Escamilla has taken a keen interest in the City’s compliance with open government requirements since concluding his open meetings investigation. He questions whether it’s appropriate to schedule a session for training on the Texas Public Information Act and Texas Open Meetings Act that’s mandatory for elected and appointed officials. “Is this audience really the people who have to abide by these statutes? Will the City Council be there or other elected officials? Otherwise it will just be staff and the public.”
Escamilla said of the Open Government Symposium, “I’m glad they do the symposium. I wish it great success. It’s not like they are obligated to have a symposium, but if they do it, it should be done well.”
“As with all things, it’s probably good to reevaluate from time to time,” said Escamilla, who last year was the courses director for the State Bar of Texas Advanced Criminal Law Seminar attended by upwards of 500 judges, prosecutors and defense attorneys. “We had a big steering committee that started work in January for a July conference.”
Similarly, Escamilla recommends that planning for the City’s Open Government Symposiums should use best practices by having a committee of knowledgeable people involved in planning.
To which attorney Aleshire added, “The City holds transparency forums without inviting critics of the City’s transparency record to participate.”
Variety of offerings reduced
In the City’s symposiums conducted in 2013 and 2015 at City Hall, simultaneous sessions were offered to provide attendees with learning options.
The 2018 Symposium was the first to be held at the new Central Library, where a reduced scope of four segments were presented.
This year’s symposium, like the one held in 2018, also will run on a single track, which Falgoust said is intentional.
“Having everyone in the same room lends itself to a better conversation,” he said, adding that the Central Library location “doesn’t lend itself to multiple sessions.”
Nor does the Central Library lend itself to easy exiting from the below-ground garage. At the close of the 2018 Open Government Symposium held in the library, a single car driver who was unable to operate the payment-checkout machine held up dozens of cars for an extended time. The blockage was cleared only after a city employee came to the rescue and operated the machine.
Falgoust agreed parking at the library was a problem. “Yeah, that garage got a lot of feedback,” he said.
There is a fee for parking at the library garage. But Falgoust said that attendees can park in the City Hall garage at 301 E. 2nd Street, then walk three blocks to the library at 710 W. Cesar Chavez, and get their parking ticket validated at the Symposium.
Asked if there were plans for taking action on ideas that may come out of the Symposium, Falgoust indicated there are none.
“The plan for the symposium is to engage the community on topics related to transparency and open government. We find meaning in the open exchange of ideas.”
Travis County Attorney David Esamilla’s Press Release, October 24, 2012 (7 pages)
Related Bulldog coverage:
Texas Sunshine Coalition seeks greater transparency: Sixteen organizations join efforts to overcome unfavorable court decisions that block access to vital information that should be public, January 7, 2019
Litigation Challenges Open Government Laws: Attorneys criticize criminal penalties and public access to elected officials’ private email accounts, April 24, 2013 (Part 3 of a 3-Part Series)
Social Media’s Impact on Open Government: Few government organizations have dealt with how Facebook, Twitter use affects compliance, April 23, 2013 (Part 2 of a 3-Part Series)
City Hosts Open Government Symposium: Lawyers attending for education credits abound, much of day has little to do with city practices, April 22, 2013 (Part 1 of a 3 Part Series)
Ken Martin has been covering local government and politics in the Austin area since 1981. See more on Ken on the About page.
Email [email protected].
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