Council reforming e-mail policies

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Karen Kennard
Karen Kennard

Austin City Council Adopts Policy to Improve Compliance With Texas Public Information Act

Policy Does Not Cover All City Employees or All City Board and Commission Members

The Austin City Council voted 7-0 on April 7 to institute an e-mail policy that establishes city accounts as the primary means of communicating about city business. If circumstances require communicating about city business on a non-city account, that communication is to be promptly forwarded to a city account.

When complied with, local government records created or received on personal communications devices or personal accounts will be collected, assembled, and maintained to be available upon request under the Texas Public Information Act. Release of these communications, like any other public record, will be subject to the exceptions provided for in the Act.

The policy would also bring the city’s deficient procedures of the past into compliance with laws that have been on the books for decades, including the Local Government Records Act and the city’s own Local Government Records Control Schedules (see report of April 6, 2011).

This policy would also satisfy some of the concerns laid out in The Austin Bulldog v. Mayor Lee Leffingwell et al lawsuit filed March 1, as well as The Austin Bulldog’s civil complaint filed March 23 with County Attorney David Escamilla.

As originally written, the Draft Resolution would have applied the policy to all city officials and employees.

The Adopted Resolution, however, 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 policy applies to all communications occurring immediately after the adoption of the resolution.

Karen Kennard
Karen Kennard

The council backed off the original draft resolution after a discussion that lasted nearly an hour and a half involving the council members, City Attorney Karen Kennard, and attorney James E. “Jim” Cousar of Thompson & Knight LLP.

Lee Leffingwell
Lee Leffingwell

Mayor Lee Leffingwell asked Kennard if the council could legally apply this policy to employees over which the council has no direct supervisory authority.

Kennard answered: “The City Council under the (City) Charter does not have the authority to apply personnel policies to city employees. That authority is given exclusively to the city manager. And so in looking at the policy we would have to have some language that recognizes that the charter gives that exclusive authority to the city manager and not the council.”

The mayor said the city manager also could set a policy that applied to the employees in council offices—implying that council members cannot order employees in their council offices to comply with the new policy.

“That’s correct,” Kennard said. “Including the council aides, under our charter, those employees are subject to the exclusive direction of the city manager.”

That statement is at odds with the way that council offices actually function. In practice, council members hire the people who work in their offices, said former City Council Member Beverly Griffith, who served on the council from 1996 to 2002. Council staff members work under the day-to-day supervision of the council members and their performance ratings are completed by the council members, Griffith said. Council aides interviewed said these procedures are still in effect.

Toward the end of the discussion Council Member Bill Spelman revised the draft resolution to conform to Kennard’s legal advice.

The adopted resolution directs City Manager Marc Ott to “develop a policy regarding the conduct of city business on personal communication devices by all other city employees and report progress to the council within 30 days.”

A resolution is an expression of the City Council’s position, not an ordinance. The adopted resolution provides no means of enforcement and no penalty for violating the policy it establishes.

City council can’t establish policies?

City Attorney Kennard’s statement that the City Charter prohibits the City Council from establishing a policy applicable to all city employees is inconsistent with Article I Section 2 of the Charter, which states:

“…all powers of the city shall be vested in and exercised by an elective council, hereinafter referred to as ‘the council,’ which shall enact legislation, adopt budgets, determine policies, and appoint the city manager who shall execute the laws and administer the government of the city” (emphasis added).

Article II, Section 7 of the Charter addresses “Interference in Personnel Matters.” It states, “…the council and its members shall deal with the administrative service of the city solely through the city manager and shall not give orders to any of the manager’s subordinates either publicly or privately” (emphasis added).

Setting aside the question of whether a “policy” is tantamount to an “order,” in reality the city council has previously established policies that apply to all city employees:

• The city’s policies for “Ethics and Financial Disclosure” are set forth in Chapter 2-7 of the City Code. Chapter 2-7-2 of the Code specifically includes city employees and city officials. Further, it addresses “individuals appointed by the mayor and city council to all city commissions, committees, boards, task forces, or other city bodies unless specifically exempted from this chapter by the city council.” (The City Code itself is a compilation of ordinances, each of which were adopted by the City Council.)

• The city’s “Personnel Policies” are governed by Section 3, Article IX of the City Charter, which states “The administration of the classified service of the city shall be governed by written rules and regulations to be known as ‘Personnel Policies.’ The director of personnel shall prepare such policies and recommend their adoption to the city manager. Upon approval by the city manager, the personnel policies shall be presented to the council for adoption.” This seems to contradict Kennard’s assertion that the council “does not have the authority to apply personnel policies to city employees.”

Open records and the law

The Texas Public Information Act, Government Code Chapter 552.002, defines “public information” as “information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business by a governmental body; or for a government body and the governmental body owns the information or has a right of access to it.”

It is the content of a communication that determines whether it is public information, not the form it takes or on whose device it was created or received. Communication about city business is by definition public information.

To allow government officials and employees to withhold records about government business created or received on personal communication devices would be to effectively gut the Texas Public Information Act. It would be an open invitation for city officials and employees to conduct business in the shadows—which is what some council members have been doing, evidenced by the nearly 300 pages of e-mails and text messages about city business that were released from some council members’ private accounts last week in response to The Austin Bulldog’s lawsuit and civil complaint.

Yet the city’s legal advisors have been telling the City Council in open meetings that the courts have not settled the question of whether communications about government business conducted on personal communication devices are public information. Attorney Jim Cousar did so again at the April 7 council meeting.

Even the adopted resolution states, “Whereas, although the law regarding personal electronic devices is unsettled in Texas, the Austin City Council desires to bring clarity to city operations by establishing a policy that ensures the public’s access to government.”

It should be noted that Texas courts have not definitively decided that such communications are not public information, either.

The Texas Attorney General, however, has consistently ruled that private e-mail correspondence in connection with the transaction of public business is “public information” subject to the Act. For example:

OR2003-0951: “You state that the submitted records are personal e-mails created by individual board members on their personal computers. You also state that the district has no right of access to a board member’s personal e-mails. … We have reviewed the information at issue and conclude that the e-mails are not ‘personal communications’ but rather ‘public information’ subject to the Act.”

OR2003-1890: “…to the extent that personal cellular, personal office, and home telephone records, as well as the e-mail correspondence from personal e-mail accounts, of the mayor and commissioners relate to the transaction of official city business, we conclude that such information is subject to disclosure under the Act.”

OR2005-01126: “Information in a public officeholder’s e-mail account may be subject to the Act where the officeholder uses the personal e-mail account to conduct public business” (citing OR2003-0951 and OR2003-1890).

OR2005-06753: “You claim that correspondence maintained by the mayor on his private business or personal e-mail accounts is not public information. … [I]nformation is generally ‘public information’ within the scope of the Act when it relates to the official business of a governmental body. We find that the submitted documents and e-mails are addressed to members of the public or city officials and discuss official city business concerning the requested specified issues. … Accordingly, we conclude that the submitted information is subject to disclosure under the Act.”

Boards and commissions included

The adopted resolution directs City Clerk Shirley 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—and report back in 30 days.

Without realizing it the City Council may have asked Gentry to reinvent the wheel, so to speak.

Board and commission members are not issued city e-mail accounts. The city web page for Board and Commission Information provides a means to scroll through the list of boards and commissions. Select any of these and click on “Membership Information” to pull up a page with a list of members and their contact e-mail addresses. In all cases, these are personal e-mail accounts.

Nevertheless, the city has for many years had a policy in place and has routinely informed board and commission members that their private e-mails about city business are public information subject to disclosure under the Act.

Leslie Pool was appointed to the several city commissions by then Council Member Beverly Griffith. Pool says she served on the Arts Commission, the Telecommunications Commission, and the Water and Wastewater Commission. She was still serving on the latter commission when Griffith left office in June 2002. “We were told anything we wrote was subject to disclosure under the Texas Public Information Act,” Pool said.

“When I was on the Water and Wastewater Commission, we had an open records request filed and I had to go into my personal e-mails and release anything related to commission correspondence, because the city attorney advised us we had to do so,” she said.

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.