Commissioners commit blatant open meetings violation

The City of Austin’s Human Rights Commission ended its June 26^th meeting with an astonishing violation of the Texas Open Meetings Act.

Commissioner Kolby Duhon, whose term on the Human Rights Commission began March 1, 2023, put forth a recommendation for the commission’s consideration that was not listed on either the posted or revised meeting agendas. The recommendation calls on “the Austin City Council to immediately hold a vote on the future of the joint policing agreement, and do what they know in their hearts is right for the citizens of Austin.”

Duhon posted a copy of the recommendation on his Twitter account with the statement, “On the first day in which DPS is to return to Austin, I’m proud to highlight my first resolution as a Human Rights Commissioner. I call on all of Council to heed the unanimous voices of voting members present, find their courage, and do what they know is right. #DPSOutOfAustin.”

Duhon’s Recommendation 20230626-002 “City of Austin Joint Policing Policy” cites, in part, “WHEREAS initial statistics provided by the County Attorney’s office show that in the first month of the agreement, nearly 90 percent of those arrested by DPS on misdemeanor charges were Black or Latino.”

Those statistics were later discredited because the vast majority of people arrested were wanted for outstanding warrants, according to news reports.

But the merits of the recommendation are not at question here. What’s wrong is the commission discussed and voted to approve a recommendation that was not posted on the meeting agenda.

In fact, Duhon openly acknowledged that fact by saying as he introduced his recommendation, “…we are going to take the vagueness of (Agenda Item) 6 … because we missed that for the joint policing agreement.”

Item 6, which was added to the revised agenda, states, “Discuss, give an update, and possible (sic) take action on how IRC will engage in Austin”. It says nothing about a recommendation or the joint policing agreement.

In addition, in the posted audio recording of this portion of the meeting several commissioners can be heard saying that they had not seen the recommendation in advance. Some of the commissioners were participating remotely and were not able to see the copies Duhon distributed at the meeting until the recommendation was emailed to them by the commission staff during the discussion and vote, all of which took about four minutes.

Neither Commissioner Duhon nor Commission Chair Idona Griffith have responded to The Austin Bulldog’s voice messages asking for a call back to answer questions.

Council Member Kelly inquired about the problem

Council Member Mackenzie Kelly said this matter came to her attention because of a press release issued by Save Austin Now. She emailed two commission staff members July 5^th to note the recommendation was not listed on the agenda.

“I am interested in obtaining information regarding the public posting of this recommendation before the vote took place, as well as the voting record of each commissioner. I am particularly curious to understand how this recommendation was discussed without being included as an agenda item,” Kelly wrote.

Tamela Saldaña of the Civil Rights Office responded to say they had reached out to the City Clerks Office and Law Department.

Assistant City Attorney Victoria Hayslett also replied to Kelly, stating, “the posting language did not provide sufficient notice under TOMA (Texas Open Meetings Act) and the vote should not have occurred. The Department will advise the Chair that the action taken on the improperly posted item is not valid and will not be provided to Council until it is properly posted with sufficient notice and time for the entire commission to review the documents.

“We have also discussed providing additional TOMA training at a future meeting and are looking for additional resources for the commissioners,” Hayslett wrote. The commission’s next meeting is scheduled for July 24^th.

Kelly told the Bulldog, “This is an example of the need for more oversight of boards and commissions. The Commissioners were clearly violating TOMA. I’m glad city legal will rectify it.”

If more oversight is forthcoming, a document recently completed by the City Auditor will be of use. The Auditor’s Office in April issued a 25-page special report, “Boards and Commissions Special Request.” It was prepared at the request of Council Members Jose “Chito” Vela and Natasha Harper-Madison, and provides a broad overview of the 55 boards and commissions established and governed by Austin City Code Chapter 2-1.

The report addresses vacancies, attendance issues, frequency of meetings and cancellations, recommendations made to the City Council and whether they fell within the scope of body’s scope of responsibility, and other areas in which members have communicated with the City Council.

Are commissioners sufficiently trained?

It should be noted that the Human Rights Commission is not staffed with an assistant city attorney like many other boards and commissions, so there’s no legal guardian sitting in at meetings who might have prevented such a blatant violation.

Further, it’s not immediately clear, without submission of a public information request, whether these commissioners have completed the required online training in the Texas Open Meetings Act.

The City Clerk’s office provides online training that board and commission members are required to take, including a module on the Texas Open Meetings Act.

They also have access to an online workbook that includes a six-page instruction on the Texas Open Meetings Act, which states, in part, “The Act requires that posted notices include the date, the hour and the place of the meeting. A description of each subject to be discussed must also be included in the notice. This means that the notice must be enough to alert the public, in general terms, the subjects that will be considered… In summary, always include the date, the hour, the place, and a sufficient description of items to be considered so that the public is clear what the meeting will discuss.”

“If an unposted subject is brought up by the public or a member of the board there are four options:

an official may respond with a statement of specific factual information,
an official may direct the person making the inquiry to visit staff about the issue,
the governing body may choose to place the item on a future agenda, or
the governing body may offer to post the matter as an emergency item if it meets the criteria for an emergency posting.”

A City spokesperson emailed this comment: “The Law Department provides legal advice to all 70-plus City boards and commissions. Board and commission members seek legal advice as issues arise, and attorneys will attend meetings as needed. The Law Department also works with the Clerk’s office to provide training to board and commission members regarding the legal requirements of the Open Meetings Act and the Public Information Act.”

Political implications

Matt Mackowiak, cofounder of Save Austin Now and a political consultant who led multiple petition drives and campaigns for the organization, said in a telephone interview, “It’s no surprise that the same left-wing activists appointed to the Human Rights Commission who are advancing what is what is effectively a defund the police policy cannot follow state law.

“Human rights should also include victims of crime and want to live in a safe neighborhood,” he added. “We should be thanking DPS for stepping into the crisis.”

“I do think the conversation around the arrests was overhyped but what is not reasonable is people who would act to undermine public safety when our city is in crisis.”

The seven members of the Human Rights Commission who voted to approve the recommendation would no doubt disagree with Mackowiak. Commission Chair Idona Griffith said, just before adjourning on June 26, “This has been an awesome meeting.”

Trust indicators: Ken Martin has been investigating local government agencies and officials in the Austin area since 1981. He founded The Austin Bulldog in 2009. You can reach him at [email protected].