Mayor and five current council members sign agreements waiving the statute of limitations and requiring major reforms
Travis County Attorney David Escamilla today issued a seven-page press release to announce the results of an investigation that began 21 months ago into the question of whether then-members of the Austin City Council violated the Texas Open Meetings Act.
“This investigation was always about compliance with the Texas Open Meetings Act (TOMA) and other legal standards requiring transparency at City Hall, which are crucial to ensuring a government that is accountable and responsive to its citizens,” Escamilla’s statement says.
The investigation found no evidence of corruption, but voluminous proof of communications among the mayor and council members by every means possible, the sum of which violate the criminal provisions of the Act.
The agreements signed by each elected official affirm long lists of detailed, specific communications among the council members that constitute probable cause. These include specific dates on which a quorum of the council communicated face-to-face, in phone calls, and via e-mail and text messages.
Council Member Kathie Tovo was not on the council during the period covered by the county attorney’s investigation and was not required to sign an agreement.
Those subjected to the investigation were glad to be able to move on.
Council Member Morrison said in a prepared statement, “I’m pleased that this matter has been resolved. The modifications we have made to the council process are working well, for example the regular work sessions have become an important tool for public council discussions. I look forward to continuing proactive advocacy of transparency in all levels of our city government.”
Former Council Member Randi Shade’s Public Statement said, “I never knowingly conspired to circumvent the Texas Open Meetings Act, and over this past summer I entered into an agreement for deferred prosecution in an effort to put the investigation behind me.”
The other council members were not able to immediately respond this afternoon with comments. Council Member Bill Spelman was out of town.
Signed acknowledgement of the law, affirmations
These elected officials each signed an acknowledgement of the validity of open government laws and affirmations of the specific violations found by the investigation, which cover a wide range of issues about which the council members engaged in inappropriate communications.
The following examples were pulled out of the various compliance agreements, each involving what appeared to be a quorum of the council communicating about a given cited issue. It should be noted, however, that not every council member was involved in each of these examples. (For a fuller understanding, read the compliance agreements linked near the bottom of this story.)
This is a sample list of topics discussed inappropriately:
• Systematically meeting one-on-one or two-on-one to discuss items on the scheduled city council meeting agendas, an established institutional practice that was already in place when each of these officials took office. The record of these meetings was not kept secret but was published in the online calendars of several council members.
• Debating how much money certain council members would agree to vote for in a settlement offer to the family of Nathaniel Sanders II, who was shot and killed by a police officer.
• Coordinating positions before making any public statement on the Keypoint Government Solutions report about the Sanders shooting. Mayor Leffingwell personally communicated with everyone on the council except Riley, who was out of town at the time.
• Disseminating and discussing information about the construction of Water Treatment Plant 4 and how to prevent a postponement of the vote for it. Almost all of these discussions occurred in e-mails exchanged on non-city accounts and via telephone conversations.
• Discussing how existing Neighborhood Plans would fit into the Imagine Austin Comprehensive Plan.
• Discussing how much money had been spent on General Obligation Housing Bonds for low-income residents and how to prioritize the remaining funds available.
• Coordinating details about a bond sale and its impact on property taxes.
• Discussing an upcoming performance evaluation of City Manager Marc Ott “that can get us to 7 (votes).”
• Communicating about the hiring of a new general manager for Austin Energy and the city manager’s ruffled response to the former general manager’s suggestion.
• Discussing matters pertaining to the city budget.
Recognition of facts considered, consequences of violations
The agreements indicate that the elected officials complied with a Grand Jury subpoena, filed personal financial statements, and turned over all records and documents including electronic communications conducted on non-city accounts that concern city business.
The agreements signed by the elected officials state they will “testify completely and truthfully before any Grand Jury, court or jury at any proceeding, hearing or trial if called upon to do so regarding alleged violations of the Texas Open Meetings Act by past or present council members.
If the elected officials fail to comply with or violate any terms of the agreements, the county attorney may proceed with charges for violations of TOMA “and may prosecute the cases to the full extent of the law.”
Sweeping changes monumental in total scope
In addition to deferring prosecution of the offending elected officials the agreements require wide-ranging changes in city government. These include:
• Completion of education courses by council members and their staff members concerning TOMA and records retention
• Enforceable promises to comply with TOMA, the Texas Public Information Act, state and city records retention laws and regulations.
• Enforceable promises to comply with the City of Austin Resolution For Use of Personal Communication Devices, (City Council Resolution 20120407-014) requiring all future city business to be conducted on city accounts and requiring the prompt forwarding to city accounts of electronic communications regarding city business received on non-city accounts.
Some changes already implemented
Escamilla’s statement notes that the investigation prompted changes related to communications between council offices, including:
• Implementing public work sessions.
• Limiting successive one-on-one meetings with colleagues to discuss city business. Council members may continue to meet as-needed with precautions to avoid a quorum.
• Eliminating council aide agenda review meetings.
• Implementing new rules regarding electronic communications from personal devices.
• Expanding TOMA training for city staff.
• Streamlining city responses to Public Information Act requests.
• Creating a senior team to review compliance with council members’ legal and ethical obligations. The team has been created and made recommendations to enhance compliance and oversight and streamline the process for public information requests. And the city created a single point of contact in each council member’s office on open government issues.
“Many of the above changes, while improvements to past practices, only required voluntary compliance. By entering into these compliance agreements, we have put teeth into several of these reform measures for two years,” Escamilla’s statement said.
“If members of the Austin City Council do not abide by the terms of the compliance agreements, not only will my office file on any new violations, we will file criminal charges based on the alleged violations that were the subject of this investigation,” Escamilla’s statement said.
Convictions of these possible violations under Section 551.143 Conspiracy to Circumvent; Offense; Penalty would include punishments ranging from a fine of $100 to $500, confinement of 30 to 180 days, or both the fine and confinement.
Voluminous body of evidence reviewed
The Travis County Attorney’s Office obtained and reviewed council members’ individual notes, calendars, correspondence, personal cell phone records, office and personal e-mail accounts, and instant-messaging logs
A total of more than 16,000 documents consisting of well over 30,000 pages were reviewed.
“In addition to the systematic one-on-one meetings that were 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,” Escamilla said.
“As a result of our investigation, we found probable cause to believe that multiple violations of the Texas Open Meetings Act had occurred.”
Criminal prosecutions rare, mitigating factors involved
Escamilla’s statement went on to say that actual prosecutions for violations of the Act are “rare and difficult to prove” and similar past investigations were resolved with deferred prosecution agreements.
“In making this decision we identified several mitigating factors, including the fact that the practice of systematized and scheduled one-on-one meetings between council members pre-existed their taking office.
“In addition, council members were not well-served by city administration. We could not identify anyone at the city with meaningful responsibility for ensuring compliance with the Texas Open Meetings Act.”
The investigation revealed additional transparency weaknesses existed at City Hall beyond the Texas Open Meetings Act, Escamilla’s statement said, including “the Texas Public Information Act, personal financial disclosure requirements, and records retention.”
Escamilla said that the agreements and new initiatives adopted by the city include provisions for greater attention and compliance with all these requirements by the council members involved.
One upside for the those who signed the deferred prosecution agreements is that Escamilla’s press release points out that the investigation found no evidence of attempts at personal gain.
“I feel a responsibility to state unequivocally that this was never an investigation into corrupt practices,” Escamilla’s statement said. “There was never any hint that any of the City Council members were involved in self-dealing, nor was there any evidence that any council member was engaging in these deliberations in order to benefit a friend or political supporter.
“I commend the members of the City Council for recognizing the problems in their past practices of conducting city business outside the purview of the public and working to rectify the situation.
“By virtue of encompassing the State Capital, Travis County is home to more governmental meetings subject to TOMA than any other county in the state,” Escamilla’s statement concluded. “It is important that a clear signal be sent that TOMA compliance is expected and mandatory. The Texas Open Meetings Act is not window dressing for governmental transparency, it’s the law.”
Deferred prosecution agreements
Escamilla also released the deferred prosecution agreements, also called compliance agreements, signed by Mayor Lee Leffingwell, Mayor Pro Tem Sheryl Cole, and Council Members Mike Martinez, Laura Morrison, Chris Riley, and Bill Spelman, and former Council Member Randi Shade. (Council Member Kathie Tovo, who defeated Shade in 2011, was not on the council at the time and was not investigated.)
In signing the agreements, these officials waived the statute of limitations for prosecution for 25 months (except that former City Council Member Shade’s agreement is for one year). The waivers started on the date each official signed their agreement and are based upon the evidence collected in the investigation. Shade signed her agreement July 31. The others signed agreements between October 15 and October 22.
The evidence includes council members’ official calendars and e-mails exchanged on both government and private accounts. The evidence also includes materials gathered with subpoenas or search warrants, including e-mails, text messages, and telephone records.
The six elected officials subject to the agreements and still in office promised to follow the law going forward.
Criminal provisions of the Act upheld
This criminal provision of the Act has been challenged in recent years in two federal lawsuits that alleged the prohibition on discussing public business outside properly posted public meetings was an undue infringement on the public officials’ First Amendment rights. The federal courts rejected that argument.
Texas Attorney General Greg Abbott filed a brief in the first of the two lawsuits that argued the Texas Open Meetings Act promotes the fundamental principle of democratic government by requiring that members of governmental boards and commissions conduct the taxpayers’ business in a manner that is open and accessible to the public.
The state’s legal brief explained that the plaintiffs’ constitutional attack on open government turns the First Amendment on its head.
“The First Amendment protects citizens against government oppression—not government against citizen oversight. Open government laws are based on the same premise: that public officials work for the people.”
What triggered the investigation?
The investigation was set off as a result of a criminal complaint filed by civic activist Brian Rodgers and violations made public January 25, 2011, by The Austin Bulldog’s investigative report, “Open Meetings, Closed Minds.”
The report documented the City Council’s longstanding practice of holding round-robin meetings to discuss city business shortly before every council meeting.
Every council member was meeting with the mayor and every other council member, constituting a walking quorum. The practice was well documented in the council members’ official calendars and published with that investigative report. The practice was strongly criticized by a number of open government experts cited in the report.
Later on January 25, 2011, Escamilla announced he had received a complaint alleging the mayor and council members have coordinated a regular series of private gatherings of council members in numbers less than a quorum to conduct private discussions, thereby avoiding the public notice and meetings requirement of the Act, specifically Section 551.143 Conspiracy to Circumvent; Offense; Penalty.
Spin contradicted by agreements
The deferred prosecution agreements signed by these individual elected officials and their personal attorneys include explicit signed acknowledgement of what the laws require, specific signed affirmations that enumerated instances of communications among council members was true and accurate, recognition of facts considered by the County Attorney’s Office, specific signed acknowledgement of the consequences of non-compliance or violation of the terms and conditions of the agreements, and signed waivers of the statute of limitations.
The signed agreements offer a sharp contrast to—and totally contradict—the self-serving statements quoted in news reports last week by Mayor Leffingwell, Mayor Pro Tem Cole, and Council Member Martinez’ attorney—all of which tried to downplay the seriousness of the wrongdoing.
Leffingwell’s statement, quoted in the Austin American-Statesman October 18, said, “I’m happy that this process has finally concluded and determined that there were no violations” (emphasis added).
Attorney Joe Turner, who represents Martinez, said council members deny in the document that they broke any laws, the Statesman reported October 18.
Mayor Pro Tem Sheryl Cole was quoted the October 18 In Fact Daily, saying, “I’m pleased to be working amicably to resolve these issues without any violations of law.”
Open government experts react
Austin attorney Bill Aleshire of Riggs Aleshire & Ray PC, who volunteers with the Freedom of Information Foundation of Texas to advise journalists on open government issues, assisted Rodgers in filing the criminal complaint with County Attorney Escamilla.
“I’ve seen Mayor Leffingwell’s dismissive comments recently defending the most structured system for secret deliberation by a governmental body ever exposed. He should be ashamed, not only of the whitewash attempt he made recently of the Council’s near-miss at criminal prosecution, but, most importantly, he and his Council should be ashamed at what they did.
“I congratulate the County Attorney for exposing and condemning the sleazy, sinister, and corrupt way the Leffingwell Council handled the public’s business. May it never happen again, and may it be a warning to others who would try to be so slippery when it comes to open government.
“Thank goodness Brian Rodgers had the courage to complain to the County Attorney and The Austin Bulldog insisted that this whole mess reach the light of day.” (Disclosure: Bill Aleshire represents The Austin Bulldog in a Texas Public Information Act lawsuit against the mayor, council members (except Tovo), and city. That lawsuit is pending.)
One of the most respected attorneys in Texas on the subject of the Open Meetings Act is Joseph Larsen, special counsel in the Houston office of the international law firm Sedgwick LLP. The nonprofit Freedom of Information Foundation of Texas in 2010 awarded Larsen its prestigious James Madison Award, named for the fourth president of the United States and author of the Bill of Rights.
Larsen said, “The county attorney has shown courage and diligence in pursuing this matter. The acknowledgments by these public officials that open government is a legal requirement of their office and the strong incentive to future compliance with the Texas Open Meetings Act that these agreements bring are major victories for the public in whose name these officials act.”
Complainant satisfied with the outcome
“I had faith in the County Attorney Escamilla’s investigation from the start,” Brian Rodgers said. He demonstrated to me how seriously he took the matter. I thought this issue would be investigated properly and he didn’t leave any stone unturned,” Rodgers said. “I knew he would get to the heart of the matter.”
The deferred prosecution agreements essentially leave it to the press and public to monitor the conduct of City Council members and let the county attorney know when a violation of the Open Meetings Act is suspected.
With that in mind, Rodgers said, “As water can always find its way through and around obstacles, we have to be vigilant about new ways of circumventing the intent of the Open Meetings Act. I don’t know what other things we can do but to watch our government and make sure it operates transparently.
“Why did it take a decade to see the most glaring examples of a walking quorum? Nobody picked that up. Now it is going to be required of us to look for more nuanced examples of violations that are not as obvious as regularly scheduled round-robin meetings
“I’ll have to believe the City Council will now be operating with the best intentions, behaving correctly and in compliance. We have to move forward with that assumption.
“That’s what we are getting with Escamilla’s investigation. We have regained the high ground on transparency and open meetings.”
Spin started early
From the beginning Mayor Leffingwell understandably tried to put a good face on a bad situation. He sought to position the City Council as being willing to cooperate fully with the county attorney’s investigation while admitting no wrongdoing.
In fact, Leffingwell claimed the city attorney had informed the council that their regularly scheduled round-robin meetings were legally permitted.
The day after The Austin Bulldog’s investigative report broke on January 25, 2011, the Statesman’s front-page follow-up story reported that “Austin Mayor Lee Leffingwell and several council members said Tuesday that city lawyers have repeatedly told them in writing the practice is legal.”
“We’ve been advised by the city attorney that meetings between individual council members do not violate the open meetings act, but we will cooperate fully with the County Attorney’s review,” Leffingwell said in a statement.
In addition, In Fact Daily—a publication this journalist founded in 1995 and which is now owned by the Statesman—on January 26 ran a story titled, “Open meetings allegations could cause damage to city governance.”
In Fact Daily quoted Council Member Riley’s statement: “We have recently been advised by the Austin City Attorney that the practice of conducting individual meetings between council members does not constitute a violation of the Open Meetings Act.”
These statements by Leffingwell and Riley were called into question when the city refused—in response to The Austin Bulldog’s public information request—to turn over any records that would substantiate those claims.
The legal advice provided by an attorney to an elected official is protected from disclosure by attorney-client privilege. But the privilege can be waived. The City Council did not do that. To refuse to publicly release the city attorney’s written guidance claimed by Leffingwell and Riley casts doubt on the truthfulness of their statements.
Open meetings reforms started soon, too
Spin aside, the City Council immediately sought expert legal advice.
On January 28, 2011, just three days after our story broke and the county attorney’s inquiry was announced, the Austin City Council met for two and a half hours in a closed-door executive session with three attorneys hired by the city to discuss legal issues related to the Open Meetings Act. The engagement letters used to hire these attorneys committed to pay them up to $53,000 each.
The Statesman reported October 18 that the city’s legal bills had ballooned to $344,000 by June 2012.
The council members immediately stopped holding the one-on-one and two-on-one, round-robin meetings. On Wednesday, February 9, 2011, the City Council held the first work session in years to publicly discuss, without voting, the matters posted for the Thursday council meeting.
A Statesman editorial of February 3, 2011, stated that Leffingwell said the idea of reviving work sessions, abandoned in the ’90s, was his—a reaction to the county attorney’s inquiry.
“I don’t like the perception that (the council) is breaking the law. This situation is serious enough that I have cancelled all my one-on-one meetings (with other council members) and with staff.”
The early work sessions got off to a rocky start, as council members accustomed to voicing opinions and settling disagreements in private meetings had to do what the Open Meetings Act requires by debating in public.
Television coverage, the Statesman, and other media all focused on the awkwardness of these early work sessions. They were labeled a “work in progress” as the council looked for ways to improve procedures going forward.
City Manager Marc Ott fretted about tying up city staff, telling KUT-FM 90.5, “It potentially has an adverse impact on productivity because we have so many people now dedicated to two meetings.”
Which misses the point that open government is not necessarily conducive to absolute efficiency, but it is absolutely required for compliance with the Texas Open Meetings Act.
What of the future?
In signing the agreements, these officials waived the statute of limitations for prosecution for 25 months based upon the evidence collected in the investigation.
The collective body of evidence reflects a pattern of far more communications among council members than just the round-robin meetings. It includes their official calendars, which document their face-to-face meetings, and e-mails exchanged on both government and private accounts. The evidence also includes materials gathered with subpoenas or search warrants, including e-mails, text messages, and telephone records.
The agreements signed by these elected officials include their promises to follow the law going forward.
Except for Tovo, who was not on the council when the violations occurred, the council members are in essence on probation without having to report to a probation officer. The county attorney’s office will monitor their conduct and will accept complaints from citizens who believe the council members may have violated these deferred prosecution agreements.
Under the deferred prosecution agreements and with due cause for new violations within the two year period, the county attorney’s office would be able to charge the offending council members using the original evidence, combine it with any new evidence, and take the case to trial.
It should be noted that the practice of holding regularly scheduled round-robin meetings among the mayor and council was a practice that goes back to when Kirk Watson was elected mayor in 1997. That’s something Council Member Spelman revealed in an exclusive interview shortly before our investigative report was published.
Although two council members—Sheryl Cole and Chris Riley—are attorneys with previous experience in the Texas Open Meetings Act, neither they nor other council members ever questioned the practice of round-robin meetings that had become institutionalized long before they took office. The council members caught up in the investigation were on the tail end of a very long train of events.
These facts were revealed in the series of exclusive interviews recorded by The Austin Bulldog before breaking the investigative report January 25, 2011. Between February 2 and February 20, 2011, five of the interviews were published, complete with edited transcripts and unedited recordings.
Our follow-up stories exposed the fact that council members’ own calendars showed they had participated in literally hundreds of these meetings in 2010 alone. Council Member Chris Riley led the pack in having had 256 meetings with the mayor and other council members that year.
Bulldog investigation included e-mails
Although The Austin Bulldog’s initial investigative report focused on the impropriety of a longstanding practice among the mayor and council members to hold round-robin meetings to debate the council agendas before it held open council meetings, our investigation went far deeper.
Our public information requests initially asked for all e-mails exchanged among the mayor and council members from January 1, 2010, through January 27, 2011.
Since it was obvious based on our initial investigation that council members were routinely violating the Open Meetings Act in face-to-face meetings that involved a walking quorum, our request for e-mails was aimed at learning whether the mayor and council members may have violated the Open Meetings Act through e-mail discussions among the council members.
Thus the question of whether the City Council complied fully with the Texas Open Meetings Act and Texas Public Information Act were inseparably intertwined.
The City of Austin’s refusal to turn over e-mails among the council members exchanged on private accounts was based on the claim that the city did not collect, assemble or maintain e-mails on private accounts, or have legal access to them—a claim absurd on its face because the elected officials are custodians of their own records and they were the officials we asked for the e-mails.
Four opinions issued by the Texas Attorney General, all citied in our reporting, state that records involving public business that were created or received on a public official’s cell phone or personal computer are, in fact, public records.
The city’s refusal left The Austin Bulldog with two choices: Either give up our request for the private e-mail exchanges or file a lawsuit.
To allow the mayor and council members to exchange e-mails about city business and not disclose them would have been to allow them to evade compliance with the Texas Public Information Act.
As a result of the lawsuit the mayor and council members began to release those private account e-mails, individually, over a period of time. But the private e-mails were redacted to obscure the private e-mail addresses of the public officials. That made it impossible to identify who participated in the e-mail exchanges. If a quorum was involved in the exchanges that fact was hidden. (The county attorney was able to get copies of these private e-mails with the e-mail addresses intact, a factor that significantly aided the investigation.)
In redacting the e-mail addresses in messages released to The Austin Bulldog, the elected officials refused to concede that we had legal access to them. They claimed the status of the law is unsettled. They said they were releasing the e-mails voluntarily. By allegedly providing all the e-mails requested they sought to remove our cause of action for the lawsuit, render it moot, and avoid liability for our attorney’s fees.
Our lawsuit, however, is still pending.
The lawsuit filed March 1, 2011, perhaps aided by the city’s keen awareness of the county attorney’s ongoing investigation, triggered numerous follow-up searches of the mayor and council members’ computers by the city’s information technology experts to find hundreds of pages of additional e-mails responsive to our public information requests.
Other public information requests revealed that, of all the staff members working in the mayor and council offices only one had ever taken any of the training courses offered by the city concerning records retention. These offices kept no logs to record the destruction of records.
The Local Government Records Act states that records created by or received by public officials are government property and belong to the government agency—and not the individual who created or received them. Yet records were routinely deleted at the whim of anyone in possession of them, without regard to compliance with records retention schedules established by the Texas State Library and Archives Commission and the City itself.
These findings indicate a high probability that the full extent of the e-mails exchanged among the mayor and council members—for which The Austin Bulldog filed public information requests and a lawsuit to get—will never be known.
The Austin Bulldog later filed a public information request for e-mails exchanged among the mayor and council members in 2009.
All of the e-mails obtained through these requests and lawsuit added up to more than 7,000 pages, all of which were made searchable and posted online at www.theaustinbulldog.org.
Examination of these e-mails revealed that the mayor and council members often communicated about city business through e-mails, on both their city and private e-mail accounts, sometimes possibly involving a quorum of the council members discussing a particular item of city business. The county attorney’s investigation proved that fact conclusively.
As a result of our investigation and lawsuit the City Council reformed its own electronic communication policies, ordered the city manager to do likewise for the city’s 12,000 employees, and instructed the city clerk to do so for the members of the city’s 55 boards and commission
The city manager’s policy issued four months after the council resolution is deeply flawed, as reported by The Austin Bulldog based on the legal opinions of numerous open government experts.
Although it took 15 months to develop, the policy for board and commission members could serve as a model for government agencies throughout the state, open government experts said.
The signed agreements
To see County Attorney Escamilla’s press release (7 pages), click here.
To see the compliance (or deferred prosecution) agreements,
• For Mayor Leffingwell (11 pages) click here
• For Mayor Pro Tem Cole (12 pages) click here
• For Council Member Martinez (12 pages) click here
• For Council Member Morrison (10 pages) click here
• For Council Member Riley (11 pages) click here
• For Council Member Spelman (12 pages) click here
• For former Council Member Shade (10 pages) click here
• For Shade’s public statement about the investigation, click here
Related Bulldog coverage: This is the 36th story covering the City of Austin’s problems and progress in dealing with open government issues.