Corralling board and commission e-mails

New System for Board and Commission Members Targeted for First Quarter 2012

Maybe you’re a neighborhood resident trying to figure out what developers are telling board and commission members outside open meetings via e-mail. Or perhaps you’re a developer trying to figure out what the neighborhood representatives are saying about your project in e-mails to board and commission members. If so, you would like to think you can get those e-mails by filing an open records request.

Maybe you can, maybe not.

While many of the boards and commissions are only advisory and perform due diligence to assist the City Council’s decision-making, 15 of them are “sovereign” bodies that can take an official government action, such as issuing a permit or granting a variance, even if that action can be appealed

Some sovereign boards have the power to issue subpoenas and compel testimony. Decisions made by many of the sovereign bodies can be appealed to the City Council, while decisions made by some sovereign boards and commissions may only be appealed through the courts, according to City Code Chapter 2-1.

At present, the city’s web pages for boards and commissions lists each appointed member’s personal e-mail address. The city is therefore actively encouraging communication about city business through a system that may not be fully responsive to open records requests filed under the Texas Public Information Act.

The City Council directed the City Clerk to make recommendations about how to correct this situation as part of an April 7 resolution. City Clerk Shirley Gentry responded in a May 16 e-mail with three options and recommended one of them. The council has not acted on that information.

Gentry and the city’s Communications and Technology Management staff have continued to refine the earlier recommendations. On Tuesday, Gentry and Teri Pennington, deputy chief information officer for Communications and Technology Management, briefed the city council’s Audit and Finance Committee members in a meeting at City Hall.

Committee Chair Mayor Pro Tem Sheryl Cole and Council Members Laura Morrison, Bill Spelman and Kathie Tovo were present and participated in the briefing.

If approved by the City Council when final recommendations are made, when implemented in the first quarter of 2012 as projected, the proposed system would assign city e-mail addresses to the 350 citizen volunteers who are appointed by the city council to serve on the city’s 55 boards and commissions.

The new system is designed to ensure that the city could find and provide e-mail messages that are responsive to open records requests, as required by the Texas Public Information Act.

The new system also envisions using technological methods that would prevent board and commission members from inadvertently violating the Texas Open Meetings Act by engaging in a discussion of city business among a quorum of members.

The planned system would enable anyone wishing to communicate with board or commission members about city business to send e-mails via the Internet to all members of a board or commission or to individual members. It would work the same way that e-mails may be sent to the entire City Council or to individual members via the city’s website at http://www.ci.austin.tx.us/site/city_hall_portal.htm.

Board and commission members would be licensed to use Microsoft’s Outlook Web App to access these messages via the Internet by logging in and using their personal communications devices, Pennington said. To see an illustration showing how this system would function, click here.

Gentry said the system would allow replies to be sent only to the sender and would prevent replying in such a manner that other board or commission members are brought into the dialogue.

All e-mails sent or received using this system would be captured on city servers. “If there was a public information request, we could just pull the e-mails out like we normally do,” Pennington told the committee.

Required to stop using personal accounts

Council Member Morrison noted that members of the city’s boards and commissions are active in the community and have over the years developed interactions with their personal e-mail accounts as board and commission members. “So the fact of the matter is that in reality we will have to acknowledge that they will be receiving city messages on their personal accounts.

“So I want to recognize that we acknowledge that those things can happen with our staff and city council members, but we’ve got guidelines in place that say if that should happen, you promptly forward that to your city e-mail account,” Morrison said. “I think we should get that integrated into our approach formally and ask folks to sign up to agree to that.”

Gentry replied, “You’re kind of hitting on our next steps. This isn’t going to happen overnight.” Gentry said that training for board and commission members would have to be incorporated into the City Code. Chapter 2-1-23 currently provides training requirements that must be complied with as a condition of serving. “…If you want to serve in the council board structure, these are things you have to agree to and if you refuse to comply with them you could impact your own eligibility,” Gentry told the committee.

Gentry said she would also suggest preparing an online training program and require board and commission members to complete it. The program would remind board and commission members that in their official duties they speak on behalf of the city. The program would specify the appropriate use of e-mails about city business.

Pennington told the committee that the upfront cost of licensing and mailbox space for the 350 board and commission members would cost about $36,000. She estimated it would require about $4,300 for staff time to set up the proposed system and about $2,000 in staff time to support the system long-term. That’s a tiny fraction of what the city already spends to provide e-mail service for thousands of employees.

The City Council passed a resolution April 7 to enact a policy that would bring its own electronic communications into compliance with the Texas Public Information Act. The adopted resolution applies the policy only to the mayor, city council members and the city employees directly appointed by the city council: the city manager, city clerk, city auditor, chief judge of the municipal court, and municipal court clerk.

The same resolution directed City Manager Marc Ott to develop a similar policy for the city’s 12,000 employees, and directed City Clerk Gentry to develop a policy for use of personal communication devices for conducting city business by members of city boards and commissions with sovereign authority—not all boards and commissions.

“You may recall that your original resolution focused on sovereign boards,” Gentry told committee members. “We’re sort of hoping that if it’s a reasonable cost we would make (this system available) for all board members.

“We would have to launch the software and test it,” Gentry said. “We didn’t anticipate that this would be ready until at least the first quarter of 2012 for us to accomplish all that. But we would be coming back to the full council with suggestions for what standards we should set.”

City Manager Ott issued a policy for city employees on August 4 in Administrative Bulletin 08-06. That policy is deeply flawed according to numerous experts in the state’s open government laws, as reported by The Austin Bulldog August 10 and September 13.

Flaws in the policy include not stating that the correspondence should be forwarded promptly and leaving it to the discretion of each employee to decide whether the correspondence needs to be forwarded for retention. The policy lacks any means of preventing unlawful deletion of public records or auditing compliance.

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 reporting by making a tax-deductible contribution.

Related articles

This is the 19th in a series of articles focusing on the City of Austin’s problems in complying with the Texas Public Information Act. Related articles are listed here:

Employee E-Communication Policy Drafts Show Each Revision Weakened Rules, September 13, 2011

City Manager Establishes Policy for Employees’ Electronic Communications, August 10, 2011

City of Austin Dragging Its Feet on Implementing Lawful E-mail Practices, July 13, 2011

E-mails Exchanged by Council Members Expose Private Deliberations and Political Maneuvering, July 6, 2011

Taxpayers Footing Big Bills to Correct City of Austin’s Open Government Issues, June 24, 2011

Treasure Trove of Public Documents Made Available in Searchable Format, May 12, 2011

County Attorney’s Office “Cannot Determine” City of Austin Committed Alleged Violations, April 22, 2011

Council Staff Training Lapsed From 2007 Until Lawsuit Filed, April 20, 2011

Austin City Council Adopts Policy to Improve Compliance with Texas Public Information Act, April 15, 2011

City of Austin and Council Members File Answer to The Austin Bulldog’s Lawsuit, April 11, 2011

City of Austin’s Records Retention Undermined by Lack of Controls Over Deletion of E-mails, April 6, 2011

Council Member Laura Morrison Releases E-mails on City Business from Gmail Account, March 30, 2011