This story was updated at 2:45pm October 17th to add documentation that shows the City Attorney has taken no enforcement action or spent even one staff hour devoted to enforcement of lobbyist regulations.
More than a hundred and ten people are registered with the City of Austin as lobbyists. Their job is to represent the interests of their clients and gain buy-in from Austin’s elected officials and other decision-makers.
Six Austin City Council members do not want you to know that they or their staffs have been meeting with these lobbyists. Let alone the names of clients the lobbyists represent.
That’s an inescapable conclusion based on the Bulldog’s compilation and summary overview of 2,252 pages of records that were obtained with six public information requests. The requests were filed in April, July, and September, and collectively cover the period from January 1st through September 11th.
A serious contributing factor to this dire situation is the City Attorney’s utter lack of attention to and enforcement of the City’s lobbying regulations. (More about that later.)
What’s the big deal?
Every person who lobbies a council member or council staff (or other city official for that matter) is required to supply certain information in writing.
Council offices (and city departments) are required to record information about each lobbyist’s visit, either on the City’s Visitor Sign-in Sheet or by other means that capture the equivalent information.
The purpose of this requirement is set forth in City Code Section 4-8-1 for regulation of lobbyists:
“The council declares that the operation of responsible democratic government requires that the fullest opportunity be afforded to the people to petition their government for redress of grievances and to express freely to any city officials their opinions on pending municipal questions and on current issues.
“Further to preserve and maintain the integrity of the government decision-making process in the city, it is necessary that the identity, expenditures, and activities of certain persons who engage in efforts to influence a city official of matters within their official jurisdictions, either by direct communication to the official, or by solicitation of others to engage in such efforts, be publicly and regularly disclosed.” (Emphasis added.)
Failure to comply with the City’s lobbying regulations appears to be a criminal offense for both council members and lobbyists. (More about that later.)
Council majority fails to meet requirements
Five who complied—Council Members Paige Ellis and Jose Velasquez properly recorded the required information on the City’s Visitor Sign-in Sheet forms.
Mayor Kirk Watson and Council Members Alison Alter (only lately) and Vanessa Fuentes have kept the required information on a Google form or in an Excel spreadsheet.
“Lately” for Alison Alter because she provided no records in response to public information requests filed April 23rd and July 25th. Those omissions led to a vigorous exchange of text messages with the Bulldog in which she asserted she “rarely met with lobbyists.”
The Excel spreadsheet she supplied in response to the Bulldog’s September 11th request shows that she recorded her first-ever lobbyist visit in 2023 on May 8th.
Collectively, these five council offices properly recorded a total of 286 lobbyist visits over the first eight-plus months of 2023.
Six didn’t comply—Council Members Ryan Alter, Natasha Harper-Madison, Mackenzie Kelly, Leslie Pool, Zohaib “Zo” Qadri, and Jose “Chito” Vela, totally ignored the recording requirement through September 11th.
In response to the Bulldog’s public information requests, all but Pool provided just their calendars. The calendars for individual council members totaled from as few as 40 pages to as many as 830 pages. But these calendars provide no means to identify lobbyists and their addresses, the city official they met with, their clients, or whether the lobbyists expected to receive compensation for the meetings.
Pool provided 29 pages of emails that reflect her scheduled meetings with groups of people that may have included one or more registered lobbyists. But no one is identified as a lobbyist. Other required details are also missing.
The Bulldog’s detailed analysis of these 2,252 pages of records involved looking for the names of people who communicated or met with a council member or council staff member, then searching for each name in a dataset of 251 registered or formerly registered lobbyists. The analysis identified 78 instances in which lobbyists have communicated with a council member or council staff member.
The analysis shows that each of these six council offices did, in fact, interact with lobbyists and many of those interactions were meetings that should have been recorded per City Code Section 4-8-8(E) and were not. More importantly, the analysis proves that—despite assertions to the contrary—calendars do not satisfy the requirement to record the details of lobbyist meetings. In reality, these calendars obscure lobbyist activities and prevent public access to required information.
Lobbyists have a right to, on behalf of their clients, appeal to elected officials and their staff members. They do not have the right to keep those interactions secret. And public officials have a duty to keep records of such meetings.
“If Council Members do not let the public see which lobbyists visit them on behalf of which clients, then they are complicit with the lobby ordinance violation,” said attorney Bill Aleshire. “These Council Members also damage trust. Voters should be be able to have that information to know they are not being secretly influenced by special-interest lobbyists
”It sends a horrible signal that the majority of the City Council members are not honoring the lobbying ordinance. That’s an astoundingly low standard for earning the public’s trust.”
(Disclosure: Aleshire represents the Bulldog in all public information requests and on our behalf has twice successfully sued the City of Austin for public information.)
What do the offenders say?
Council Member Ryan Alter—Via text message, the Bulldog asked Alter why his file of 581 pages of calendar entries (the most recent batch supplied in response to the Bulldog’s September 11th request) is the equivalent of sign-in sheets for keeping track of lobbyist activity in his office?
He responded: “We keep track of our meetings digitally through our email system, which is allowed under the Code. Please let me know if you have any additional questions.”
The Bulldog responded with this: “City Code Section 4-8-8(C) & (E) requires written disclosure of lobbyist visits to include: ‘A person who communicates in person with a City official for compensation on behalf of another person during a scheduled meeting on a municipal question shall disclose in writing to the city department, or office: (1) the name and address of the person; (2) the name of the City official with whom they are meeting; (3) the name of the client or person on whose behalf the appearance or contact is made; and (4) a statement regarding whether the person has received or expects to receive compensation for the appearance or contact.’ Please tell me how calendar entries capture that information.”
To which Alter—a graduate of Harvard Law School—replied: “We believe our system captures this necessary information. As the code states, a formal sign-in sheet is not required.”
The Bulldog sent another message pointing out that the council member’s calendar lists (for example) only the last names of two prominent lobbyists, (Michael) Whellan and (Richard) Suttle. “How is the public supposed to look at your calendar and know these are lobbyists?”
Alter did not reply.
Council Member Kelly—Kelly’s calendar totals 397 pages (the batch supplied in response to the September 11th request). As with other council calendars, these documents provide none of the required information about lobbyist activities in her office. In fact, 291 of those 397 pages contained redactions—and 146 entire pages were redacted.
The Bulldog initiated a lengthy dialogue via text message with Council Member Kelly, which proved more constructive. She initially said that she had been told “keeping track on my calendar was the equivalent of a sign-in sheet.”
She pointed to video of a September 27th meeting of the Audit and Finance Committee, of which she is a member. Agenda Item 2 called for discussion and possible action on amendments to City Code Chapter 4-8 and (Section) 4-8-8.
City Auditor Corrie Stokes was at the meeting to present the item on behalf of the Ethics Review Commission’s recommendation. Kelly asked Stokes how lobby activity should be recorded in a council office. Page 12 of the 50-page transcript of that discussion left the unfortunate impression that council member calendars were acceptable as a record of lobbyist visits.
They are not.
In the Bulldog’s follow-up telephone interview with Stokes, she noted that she had not seen the detailed records obtained by the Bulldog.
Calendar entries naming a person who may be a lobbyist, but is not identified as such, buried in scores or even hundreds of pages of calendars, and lacking information as to clients and other essential details, is not sufficient, Stokes acknowledged.
Stokes said, “The audit’s we’ve done focused on whether lobbyists were complying with the registration requirement…We’ve been focused on the lobbyists and not on the council offices.”
In other words, city auditors have not reviewed council member records to see if they are recording lobbyist activity as required.
The Bulldog also sent similar text messages to the other four council members who did not supply records of lobbyist visits, but got no responses. Harper-Madison is on mental health leave. Pool and Vela did not reply. Qadri referred me to an aide, who after asking for a deadline, did not reply.
Criminal violations appear to be involved
Attorney Fred Lewis wrote the ordinance enacted September 22, 2016, and incorporated into City Code as Chapter 4-8, Regulation of Lobbyists. He said that he and Jack Gullahorn, a retired state lobbyist and ethics expert, collaborated on that project. Gullahorn previously headed the Professional Advocacy Association of Texas, which on its website claims to be “the gold standard for compliance with the law and professionalism.”
The ordinance they wrote was modeled on existing state statutes for tracking lobbyists who appear for representation before state agencies under Government Code Chapter 2004.
Council Member Pool sponsored the ordinance and it passed, “but it has not worked out well,” Lewis said. “It is, in my opinion, one of the best written municipal lobby laws in the United States. It focuses on important things and the triggers are very clear.”
He told the Bulldog that the six council members who have not kept the required records have committed criminal offenses as set forth in City Code Section 4-8-14 by “failure to perform a required act.”
In this case, the “required acts not performed” were the failures to keep records of visits made by lobbyists paid to represent clients on matters of a “municipal question.”
City Code Section 4-8-2(10) defines a “municipal question” as “the proposal of, consideration of, approval of, or negotiations concerning municipal legislation, an administrative action, or another matter that is, or may be in the future be, subject to an action or decision by a City official.”
City Code Section 4-8-8(E) states, “Each City department or office shall provide a reasonably practicable method for recording the information required by subsection (C). That information includes the date, the name and address of the lobbyist, who the lobbyist is meeting with, who the lobbyist is representing, and whether the lobbyist is being compensated for this meeting.
“They didn’t do that,” Lewis said of the six council offices. “The intent was was to make the law very clear, with penalties. The requirement to have a sign-in sheet was part and parcel of the ordinance to let the public know what lobbyists are doing and on whose behalf.”
Lawyer Aleshire is just as adamant that the lobbyists who failed to provide to council offices the written information required by City Code Section 4-8-8(C) have likewise committed criminal misdemeanors. In fact, “one for each day in which they visited a Council or other City office without providing the information in writing as required.”
Legal terminology explained
City Code Section 4-8-14 addresses criminal penalties and requires that offenses be committed “intentionally or knowingly.”
To unpack those legal terms, attorney Lewis points to the Texas Supreme Court decision in Osterberg v. Peca (Case No. 97-1027) in which then-Justice (now Governor) Greg Abbott delivered the court’s opinion.
The case is relevant to the City of Austin’s criminal penalties for lobbyist violations because it defines “knowingly” as an action or omission having been done—not whether the violator knew the act or omission was a violation.
“It doesn’t mean you knew the law, but you knew you didn’t fill out the form,” attorney Lewis said. “You are aware of the fact that you didn’t fill out the form. Every single time you don’t do it you violate the law.”
Such offenses are Class C misdemeanors punishable by a fine not to exceed $500. Each failure is a separate offense.
“It has been seven years since the ordinance was enacted,” Lewis said. “Council members have blown off this requirement for years because they don’t want to disclose this information. Therefore a penality is warranted.”
How could offenses be prosecuted?
One way the enforcement process could begin is for someone to file a sworn complaint with the City Clerk. The complaint form is published online, as are the instructions. The complaint would go the City’s Ethics Review Commission for consideration.
After determining the complaint involves matters within its jurisdiction the Ethics Review Commission would hold a required hearing. But, unlike most the matters that are considered by the Ethics Review Commission, per City Code Section 2-7-50(B), complaints involving Chapter 4-8 for regulation of lobbyists, “the commission shall hold only a preliminary hearing, and shall not hold a final hearing.”
Per City Code Section 2-7-50(C), “The commission shall refer an allegation for which the commission finds a reasonable basis to believe that there may be a violation to the city attorney for prosecution.”
But these provisions do not “limit the prosecutorial discretion of the city attorney,” per City Code Section 2-7-50(D). As stated in this article, “Prosecutorial discretion is when a prosecutor has the power to decide whether or not to charge a person for a crime, and which criminal charges to file.”
City attorney has not enforced lobbying regulations
Ultimately, the City Attorney is responsible for enforcing the criminal penalties found in City Code. But when it comes to enforcing the City’s lobbying regulations, this is an area in which the City Attorney has failed utterly.
That’s quite clear based on the fact that the City Attorney has not been submitting the written public reports to the Audit and Finance Committee, as required by City Code Section 4-8-12. These reports are extensive. They are required to be made at least quarterly.
The reports are to contain: (1) the number of referrals by the city clerk, city auditor, and other City departments; (2) the number of citizen complaints; (3) the number of investigations opened by the city attorney, whether on account of a referral or on the city attorney’s own initiative; (4) the number of cases settled; (5) the number of subpoenas for documents issued; (6) the number of witnesses subpoenaed; (7) the number of cases tried; (8) the number of cases in which a fine was imposed; (9) the number of cases in which a fine was not imposed or the person was adjudged not liable; (10) the amount of fines assessed and collected; and (11) the number of city attorney staff hours devoted for the period for the enforcement of this chapter.”
The Bulldog filed a public information request October 6th for copies of these reports covering the three most recent quarters. Assistant City Attorney Neal Falgoust, who a few months ago was made the new division chief for ethics and open government in the City’s Law Department, called October 14th to say these reports had not been made.
“We’ve had a lot of turnover in the division in the past year and these reports slipped through the cracks,” Falgoust said. “We are going back and getting caught up and will give you a report for this year to date.
“We haven’t submitted these reports to Audit and Finance Committee but we’re getting caught up,” he said.
After this story was published, the Bulldog downloaded the Law Department’s written summary of “Enforcement: Regulation of Lobbyists” that is responsive to the Bulldog‘s request.
The summary shows: zero referrals; zero citizen complaints and complaints addressed by the Ethics Review Commission; zero investigations opened by the City Attorney; and zero staff hours devoted to enforcement by Law Department staff. All of which documents and supports the conclusion that the City Attorney has failed to enforce lobbyist regulations.
The Bulldog made a follow-up call this morning to ask Falgoust just how far back the failure to make these reports goes. “I honestly don’t know,” he said. “We can go back and look.
“Our focus right now is getting the problem fixed going forward. When we find problems we like to fix them. I can get back to you later today,” Falgoust said.
Lewis said. “The City Attorney needs to stop playing politics and enforce the law.”
“The result of all this is nobody takes the lobbying laws seriously because they know they will not be enforced. That’s on the City Council and the City Manager. They allow it because they want it.
“If the city attorney is not going to prosecute offenders and take the law seriously,” Lewis said, “why don’t we just announce that we don’t care about lobbyist transparency and admit the hypocrisy?”
City Attorney Anne Morgan has not yet responded to a voice message left for her late this morning asking for comment on this story.
Council trashed a stronger enforcement mechanism
Soon after gaining passage of the lobbyist regulations that he and Jack Gullahorn wrote, Lewis learned the City’s was not enforcing them. That motivated him to work on fixing the problem. Starting more than five years ago, as an appointed member of the 2018 Charter Review Commission, he drafted, and the Commission recommended to the City Council, that the City put a proposition on the ballot to allow voters to decide whether to establish an Independent Ethics Commission.
Its purpose would be “to impartially and effectively administer and enforce all city laws relating to campaign finance, campaign disclosure, conflicts of interest, financial statement disclosure, lobbyist regulations, revolving door, disqualification of members of city boards, certain conflict of interest and ethics laws, and other responsibilities assigned the Commission.”
Among the commission’s many powers and duties laid out in the 11-page recommendation, this independent body would “enforce all Commission-administered laws by receiving and initiating complaints; authorizing and conducting investigations; holding hearings; making findings on violations of any Commission-administered laws; levying appropriate civil sanctions, fees and administrative fines; issuing and enforcing administrative orders to compel reports and other required filings; and all other necessary authority to enforce Commission-administered ordinances.”
If voters approved its establishment, the commission would have been empowered to “investigate and report criminal violations and to make referrals to Municipal Court and other appropriate jurisdictions. It could “administer oaths and affirmations; examine witnesses; and compel attendance of persons and production of documents, papers, books, accounts, letters, and records by subpoena.” (Emphasis added.)
That’s real power. That power would have provided strong enforcement. As it turned out, however, it was power the City Council did not want an independent body to possess. Or even to allow Austin voters to decide if they wanted to establish the commission.
The recommendation to establish an Independent Ethics Commission was one of nine the commission submitted to the City Council May 7, 2018. As the Bulldog reported in “Charter revisions flushed down the drain,” the council picked the two least substantive charter changes to put on the November 6, 2018, ballot.
Council Member Pool, whose resolution was enacted to establish that Charter Review Commission, said, “We still have time to consider other items on the list. But at this time the council lacks the bandwidth to assess the many and important items the Charter Review Commission brought to us.”
Why do elected officials ignore city code?
“In an effort to slow the spread of the new coronavirus, most City of Austin employees began working from home” after the Covid emergency was declared by Mayor Steve Adler March 6, 2020, said City spokesperson Shelley Parks via email.
When working remotely, theoretically at least, there were no in-person meetings with lobbyists. Thus, no recording of interactions with lobbyists would have been required by City Code.
Now they the council members are back working in City Hall and meeting with lobbyists, but not all are recording these visits.
There’s a big loophole in current lobbyist-recording requirements. At present lobbyist visits need only be recorded if the visits are in-person. That hole will be plugged if the City Council approves the proposed amendment to City Code Section 4-8-8 at its scheduled October 19th meeting (agenda item 44).
This amendment was proposed by the Ethics Review Commission. It was approved unanimously by the council’s five-member Audit and Finance Committee September 27th. The amendment would require lobbyist activity to be recorded when a person “communicates directly” (rather than in-person) with city officials,
The amendment would also modify City Code Section 4-8-10 to change how often the City Auditor reviews lobbyist activities. In addition, it would change the auditor’s focus away from reviewing compliance by those who have voluntarily registered. Instead the job would be to identify people who lobby but have not registered as required. The findings would be reported to the City Clerk, City Attorney, and the Ethics Review Commission.
Scheduled meeting loophole
Another glaring omission in the current City Code—that is not addressed in the proposed amendment up for consideration October 19th—is the “scheduled meeting” exception.
That was inserted when the September 2022 ordinance was passed in response to a last-minute amendment by then Council Member (now Congressman) Greg Casar. He inserted language that requires a lobbyist’s visit to be recorded only if the visit was “during a scheduled meeting.”
Attorney Lewis said, “The language about ‘scheduled meetings’ was not in the proposed ordinance; it’s about not having to record it if you didn’t schedule a visit and just walked in. You can walk in that door and get greeted with a hug.
“Casar did that knowingly,” Lewis said. “He didn’t want our (the ordinance drafters’) input. He did it for some lobbyist…It’s an obnoxious loophole written by Greg Casar and consented to by our council.”
That’s a loophole of potentially gigantic proportions, although there is no way to determine whether it is actually being exploited.
Should follow Ora Houston’s example
When it comes to following the City Code requirement to make a record of interactions with lobbyists, City Council Member Ora Houston set the supreme example.
She was elected in 2014 and took office in January 2015. Houston and nine others were the first council members elected from geographic districts. She represented District 1 and was the only African American on the council. She served her four-year term and chose not to seek reelection.
City Auditor Stokes recalled, “Council Member Houston carried her lobbyist sign-in form with her to church. If someone wanted to talk to her about city business she would pull out that form and make them sign it. She was meeting the intent of the regulation by making sure everything was written down.”
Houston confirmed that to the Bulldog: “Sundays are my day of rest, so do not talk to me about city business on Sundays,” she would tell her church congregation.
“Every once in a while, not often, somebody would show up in church, and would ask to speak to me. I said, ‘No, this is my sabbath and I don’t talk about city business on the sabbath. But if we do talk, you have to sign the sign-in sheet.’ They would say, ‘This is not in city hall.’ I said, ‘Wherever I am you have to sign.’ It was real clear to the people in the congregation.”
Let this be warning to others
Every City office and every city employee who meets in person with a registered lobbyist is required to use the sign-in sheet (or equivalent record) to record the visit. If they don’t, then they are also committing a misdemeanor, just like the lobbyist who goes to the meeting and doesn’t supply the required information in writing.
There literally could be hundreds of criminal defendants if the City Attorney begins enforcing Chapter 4-8 of the City Code.
Who funds this work? This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit for investigative reporting in the public interest. You can help support this independent coverage by making a tax-deductible contribution.
2018 Charter Revision Commission proposal to create an Independent Ethics Commission, May 7, 2018 (11 pages)
Related Bulldog coverage:
Charter revisions flushed down the drain, June 28, 2018