Former council member said that as mayor Watson established regularly scheduled private meetings among council members
“If the law is upheld only by government officials, then all law is at an end.”
— Herbert Hoover, message to Congress, 1929
As Austin’s mayor starting in 1997 Kirk Watson established a procedure that lasted throughout his four-plus years as mayor and continued for another decade after he left office in 2001—until January 25, 2011.
That’s when The Austin Bulldog published an investigative report detailing how the Austin City Council was violating the Texas Open Meetings Act.
The fallout was immediate. That same day Travis County Attorney David Escamilla announced he would conduct a criminal investigation. Mayor Lee Leffingwell and each council member hired criminal attorneys to defend themselves individually.
The system that Watson implemented, according to Council Member Bill Spelman (more about that later), and that continued for 14 years as an institutionalized practice, was illegal. It involved the mayor and each council member holding regularly scheduled private meetings before each public council meeting.
Such meetings denied the public a view into council deliberations which by law are required to be conducted in public meetings. Otherwise, politicians could decide everything behind closed doors, making council meetings little more than perfunctory and ceremonial, rather than occasions for real public debate and deliberations. Which is exactly what had been happening, hence the title of our investigative report, “Open meetings, closed minds.”
The Bulldog’s request for Watson’s comments for this story were emailed to Campaign Manager Max Lars on November 16th, November 21st, and November 29th. The November 21st request was also directed to David Butts, a consultant to the campaign. These requests provided explicit detail about what this story would cover, including Watson’s role in establishing an illegal procedure. The campaign has provided no response.
Daryl Slusher was elected to the council in 1996 and served during Watson’s entire time as mayor and beyond. He does not recollect that Watson started the practice that violated the law, meaning setting up a daisy-chain of private meetings among council members that constituted a walking quorum.
“That didn’t start with Watson. Maybe Spelman thought that. I knew we were not supposed to do a walking quorum,” he said. “That innovation came later. I know Watson wasn’t doing the same thing. He didn’t start that.”
“There was already a tradition of council members meeting with each other and the Law Department knew about it,” Slusher said.
Spelman told the Bulldog when interviewed January 24, 2011, that the city’s Law Department knew about the one-on-one meetings then, too. In fact, he said he had received a memo the same day he was interviewed from Acting City Attorney Karen Kennard. He said the memo stated the private one-on-one meetings were okay.
Mayor Lee Leffingwell and Council Member Chris Riley both made public statements claiming the memo existed and authorized the private meetings.
That memo was never made public. Citing attorney-client privilege, the city refused to provide a copy of it in response to the Bulldog’s public information request.
Whatever the memo may have said it did not deflect the county attorney’s investigation or its damning conclusions.
Good intentions violated the law
All the council members interviewed before the Bulldog’s January 25, 2011, investigative report (links to the interview stories and recordings are listed at the bottom of this story) said they saw benefits from the private meetings they were holding. None sensed there was anything wrong with debating public business in private.
Council Members Sheryl Cole and Chris Riley were attorneys with considerable experience in open government laws. Riley had worked in the Texas Attorney General’s office for a year, Cole had spent six years at the Texas Municipal League. Yet neither they nor the other council members had ever questioned the legality of these meetings.
The Bulldog’s examination of the official calendars published online at the time by four council members actually documented the crimes. The calendars listed the three other members sufficiently often to prove their illicit participation as well. One of my follow-up stories tallied more than 800 private meetings these four had attended in 2010 alone.
In legal terms, this daisy chain of private meetings among the mayor and council members offers a textbook example of a conspiracy to avoid compliance with the Texas Open Meetings Act.
Attorney General Opinion No. GA-0326 of May 18, 2005, specifically addressed these kinds of meetings. “[W]e construe Section 551.143 to apply to members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of that body. In essence, it means a ‘daisy chain of members the sum of whom constitute a quorum’ that meets for secret deliberations… “[w]hen a majority of a public decision-making body is considering a pending issue, there can be no ‘informal’ discussion.
“There is either formal consideration of a matter in compliance with the Open Meetings Act or an illegal meeting.”
Misdemeanor offenses but consequential
Engaging in a conspiracy to evade compliance with the Act is a misdemeanor offense but the consequences of a conviction would be severe: upon being charged, prosecuted, and convicted, the elected officials would have to had to pay a fine of not less than $100 or more than $500, serve not less than one month or more than six months in the county jail, and forfeit their public office.
Fortunately for the mayor and council members, the county attorney’s investigation concluded without pressing criminal charges. After a 21-month investigation, Travis County Attorney David Escamilla announced the results October 24, 2012.
Nobody was charged with a crime. Nobody went to jail. Nobody lost their office.
Instead, each elected official—and their individual criminal defense attorneys—signed a deferred prosecution agreement and promised to follow the law going forward. (Each signed deferred prosecution agreement was published and linked in the Bulldog‘s concluding story.)
The agreements signed by each elected official affirmed long lists of detailed, specific communications among the council members, each of which constituted probable cause. These included specific dates on which a quorum of the council communicated face-to-face, in phone calls, via e-mail, and through text messages.
Here are a few examples drawn from scores of offending communications:
- 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 in May 2009 was shot and killed by a police officer.
- Discussing an upcoming performance evaluation of City Manager Marc Ott “that can get us to 7 (votes).”
If the elected officials failed to comply with or violate any terms of the agreements, the county attorney warned he could proceed with charges for violations of the Texas Open Meetings Act “and may prosecute the cases to the full extent of the law.”
The statute of limitations on misdemeanor offenses is two years. Kirk Watson was long gone from the mayor’s job and was a state senator when Escamilla’s investigation ended. So none of this blew back on him at the time.
But now that he’s running to be mayor again his role in establishing a system of meetings that violate the law deserves another look.
How is Watson’s role known?
Shortly before breaking the story of the open meetings violations, I conducted recorded interviews with the mayor and each council member. Links to stories about those interviews (which contain links to the recordings) are listed below.
I asked each council member what they did in those private meetings and how the meetings came about. They said when they when they first took office the meetings were already on their calendars. They were just routine practice that no one had questioned—until the story broke.
One of the council members at the time was Bill Spelman. He was serving a second term on the City Council that started in May 2009 after a nine-year gap. His first term began in in May 1997, same as Kirk Watson’s first term.
Here’s a part of that interview from my report of February 20, 2011:
The Austin Bulldog: It seems like all of you are making a big effort to take the time to go to those meetings. Can you tell me what do you all discuss in the meetings?
Bill Spelman: Well let me back up a little bit. This is an innovation from ’97 when Kirk Watson was first elected mayor.
The Austin Bulldog: That’s one of the things I was going to ask you about …
Bill Spelman: Sure. In ’97, one of the things that Watson campaigned on is that he thought that the council members need to talk to each other and get a better idea for what they thought about things, and not all of a sudden showing up on the (council meeting) dais and not having a clue as to what anybody else thinks. He just thought we’d make better decisions if we had a chance to chew on issues in private and just get a sense for what’s really at issue. We’d just know more about stuff. We’d be more thoughtful when we actually made a vote. I remember him talking about that on the campaign trail and one of the first things that happened is it became a standard operating procedure for all of us to talk to all other members of the council about what we needed to talk about, every week or every two weeks in advance of a meeting. I have a standing date now with every member of the council every week. Sometimes we decide we don’t need to have a meeting especially…
The Austin Bulldog: You’re trying to do that every week here?
Bill Spelman: Pretty much. Yeah. It’s on the calendar every week. It sometimes gets pulled off the calendar, maybe in advance of it being posted, if there’s…
The Austin Bulldog: Okay. So, it’s (former Mayor) Kirk’s (Kirk Watson’s) fault that you have to have all these (meetings)?
Bill Spelman: Well Kirk’s idea, and I thought it was a good idea, especially when I started because I didn’t know the six people I was working with very well. I knew all of them a little, but being a candidate with somebody is not the same as having an ongoing working relationship.
Regular private meetings were routine
The council members interviewed all agreed that the practice of holding regular private meetings was already established when they took office.
Mike Martinez—“The only thing I’ve known is that there is a standard process of weekly one-on-ones with each council member and the city manager. This is the template. This is the standard template for every council office is you have at least one meeting a week with each council member and the manager.
“Now, outside of that template, depending on the issues you’re working on, it can be multiple meetings with any combination of members of the council and/or the city manager, and/or the city manager’s staff, but usually, as a standard format, those are the standing meetings we have once a week.”
Randi Shade—“My point was that (the meetings have) been the custom as long as I’ve been here… So, pretty much when I got here everybody’s calendars were built in…So, my point was just that it seems to have been the custom for quite some time.”
Watson’s bill provided legal alternative
The county attorney’s investigation was concluded in October 2012.
In the next session of the Texas Legislature in 2013, Watson, who was elected to the Senate in 2006—five years after resigning the mayor’s job—introduced Senate Bill 1297. The bill would allow elected officials to do publicly in writing what was illegal to do in private. The legislation authorized governmental bodies to create electronic message boards through which the officials could communicate in writing and which were open to the public to see what was being discussed.
The author’s statement of intent starts with an introduction that implicitly denounces the kinds of private meetings Watson initiated as mayor as being illegal.
“To ensure public business is conducted in an open and transparent manner, the Texas Open Meetings Act prohibits a state or local governmental body’s board or commission from communicating with its fellow board members unless it is in an open meeting. As a result, boards cannot communicate electronically or otherwise outside of publicly posted meetings about official business or policy matters.
“SB 1297 expands the Act by authorizing governmental bodies to use a publicly available electronics communications board through which board members can communicate with each other, thereby facilitating electronics communications between board members while still protecting the public’s interest in open and transparent government….”
The bill passed in both houses, was signed into law by the governor June 14, 2013, and became effective September 1, 2013.
Open government advocates offer mixed reviews
Donnis Baggett, a former newspaper editor and publisher who became executive vice president of the Texas Press Association in 2012, testified in favor of Watson’s SB 1297.
Via email, Baggett told the Bulldog, “I supported the bill because: (a) before the legislation, violations of the Open Meetings Act seemed commonplace by elected officials who simply ignored the Open Meetings Act and communicated with each other between meetings anyway because there was little chance of prosecution, and (b) the legislation at least provided a much-needed window for the public to keep track of such council conversations between meetings—assuming officials got religion and limited their discussions to the online forum.
“Perhaps that was naive, but I supported the bill in good faith. I hoped it would decrease the frequency of blatantly illegal secret meetings that appear to be the norm for some elected officials.
“Can more be done? Yes. District attorneys could actually enforce the Open Meetings Act. Very few prosecutors ever do that, so officials are emboldened to ignore the public’s right to know what they’re up to.”
Wanda Cash, who was a journalism professor at the University of Texas at Austin at the time the bill was being considered, and has since retired, also testified on (not for) the legislation. In a telephone interview she told the Bulldog, “We were very disappointed in the bill at the Freedom of Information Foundation of Texas, because of posting requirements. How would the public know in real time that communication was ongoing?”
“The superficial appearance of it is wonderful,” Cash said. “It looks above board and transparent. But if you really wanted to be transparent you would have those discussions in the public meetings. It sounded like a good idea, especially after (the Austin City Council) got its hands slapped by (Travis County Attorney David) Escamilla.”
The problem is, Cash said, “How would I know, unless day and night I watched that message board. They could be coming to (a decision on) how they will vote—and that’s just what we don’t want. We want that discussion in a public meeting.”
Austin implemented the option
After Watson’s SB 1297 was enacted Austin established the City of Austin Council Message Board.
As of November 29th, the message board indicated that council members and authorized staff have published 2,760 posts on 1,261 topics. Anyone can see the topics, which are listed in reverse chronological order (latest dates first), the author’s name, the date and time posted, the number of times the post was viewed, and the number of replies.
The message board has a search function that allows the public to find topics of interest. Among the most recent posts, for example, the Austin Transit Partnership scheduled to be considered December 1st had been viewed 1106 times, an Austin Energy Rate Case Schedule had been viewed 1109 times, and a Proposal on I-35 Rebuild had been viewed 901 times.
In accordance with SB 1297, the message board can be accessed with one click from the City’s homepage via a link titled “Read the Austin City Council Forum.” But you have to scroll down a considerable distance on the page to find that link under a header of “City Transparency.”
While the City of Austin’s electronic message board may not be perfect, and access to it is definitely obscure, it sure beats having the mayor and city council members engaged in private quorum discussions about the city’s business.
Trust indicators: Ken Martin has been doing investigative reporting in the three-county Austin metro area since 1981. His aggressive reporting twice garnered first-place national awards for investigative reporting. Both of those projects resulted in successful criminal prosecutions. His 2011 investigation of the Austin City Council’s open meetings violations triggered a 21-month investigation by the Travis County attorney that resulted in the mayor and council members signing deferred prosecution agreements to avoid being charged, tried, and if convicted serving one to six months in jail and forfeiting their elective offices. See more on Ken on the About page. Email [email protected].
Author’s Statement of Intent for SB 1297, July 23, 2013 (2 pages)
Enrolled Bill Summary of SB 1297, effective September 1, 2013 (1 page)
Text of SB 1297, relating to written communications between members of a governmental body, enrolled version (3 pages)
Related Bulldog coverage:
Mayoral race and three council contests will go to runoffs, November 9, 2022
Watson grabbed 70 percent of mayoral donations, November 3, 2022
Watson circumvented law to fund new medical school, November 1, 2022
What kind of legislator was Celia Israel? October 28, 2022
What kind of mayor was Watson? October 24, 2022
Candidates offer competing visions on homelessness, October 18, 2022
2022 candidates have raised $3 million-plus, October 14, 2022
The man who would be mayor…again, October 10, 2022
Deferred prosecution ends open meetings investigation, October 25, 2012
Spelman on the record about private meetings, February 20, 2011
Shade on record about private meetings, February 9, 2011
Riley on the record about private meetings, February 6, 2011
Cole on the record about private meetings, February 3, 2011
Martinez on the record about private meetings, February 2, 2011
County attorney reviewing criminal complaint, January 25, 2011
Open Meetings, Closed Minds, January 25, 2011