City of Austin again accused of insufficient notice of agenda item
Did the City of Austin violate the Texas Open Meetings Act—again?
That’s what a lawsuit in the making alleges. A draft of the petition and an offer to settle the matter without actually filing the legal action has been conveyed to the City by Austin by attorney Bill Aleshire of Aleshire Law PC, who represents the plaintiffs.
The draft lawsuit,Lake Austin Collective Inc. and Marisa B. Lipscher v. The City of Austin, claims that the posted Agenda Item 6 for the Austin City Council meeting of November 10, 2016, failed to adequately describe what would be voted on, that the posting omitted notice that the vote would entail waiving sections of two city ordinances.
City Attorney Anne Morgan in a phone interview toldThe Austin Bulldog,“I did get the draft lawsuit and I wrote to tell Bill Aleshire I appreciate him sending it before filing. I haven’t had a chance to talk to my client, the City Council. We take it seriously. We will look at it and move forward as appropriate.”
The offer to settle gives the City 45 days to accept one of two options:(1) cancel its approval given November 10 and repost with proper notice of the proposed waivers. Or(2) Accept an Agreed Judgment.
Lake Austin Collective Inc. is a Texas nonprofit filed with the Secretary of State March 17, 2017. Lipscher is the registered agent. Board members are Linda Bailey, Susan Kimbrough, and Carol Lee. All are property owners affected by the rezoning of the nearby Champion Tract.
Aleshire said that the zoning application for the Champion Tract was not presented to the Planning Commission. Instead it was taken up by the council directly. The application initially asked for the entire tract to be rezoned.
But in the face of a valid petition signed by 25 percent of opposing property owners, approval of the measure would have required an affirmative vote by a supermajority (three-fourths of the council members). To avoid that daunting opposition, two days before the third and final reading, the developer redrew the area to be rezoned with 205-foot setbacks from the tract’s boundaries, Aleshire said. That negated the petition and the rezoning was approved on a vote of 7-4.
But the agenda item did not state that approval would also entail granting variances to the Lake Austin Watershed Ordinance and Hill Country Roadway Ordinance.
(Disclosure: Bill Aleshire representedThe Austin Bulldog in two lawsuits filed in 2011 against the City of Austin for its violations of the Texas Public Information Act. He currently represents theBulldog to intervene in County Attorney David Escamilla v. Attorney General Ken Paxton, in which the county attorney seeks to close the courtroom and permanently seal all records considered in the hearing.)
Persistent pattern of violations
The November 10, 2016, vote in question came less than two weeks after a judgment against the City was signed October 28, 2016, over an identical matter—insufficiently describing an agenda item.
In that case,Rodgers v. City of Austin (Cause No. D-1-GN-16-000615), the Council’s prior vote on the Pilot Knob development was voided by District Judge Stephen Yelenosky because the agenda item failed to alert the public that approval would grant $50 million to $80 million in fee waivers for the Easton Park development in southeast Austin. The judge’s decision was reported by theAustin American-Statesman October 16, 2016.
Ironically the vote on the Champion Tract rezoning that gives rise to the Lake Austin Collective potential litigation was on the same agenda in which the Council reconsidered its prior vote on the Pilot Knob development.
In other words, while fixing the problem created by failure to properly inform the public of what the council vote would accomplish in the Pilot Knob case, the Council allegedly made the same mistake in handling the Champion Tract rezoning, according to the Lake Austin Collective draft lawsuit.
Previously violated criminal statute too
Both the Pilot Knob and the Champion Tract cases are civil cases that don’t rise to criminal conduct, but the Austin City Council has previously violated the criminal provisions of the Texas Open Meetings Act.
The Austin Bulldog on January 25, 2011, published an investigative report regarding the City Council’s institutionalized practice of violating the Act by holding round-robin, one-on-one and two-on-one meetings before every council meeting. Every council member scheduled and regularly met with every other member to discuss the agendas in private, closed door meetings. Brian Rodgers also filed a criminal complaint over those violations.
County Attorney David Escamilla immediately launched an investigation of the violations and on October 2012 publicly announced that the mayor and council members had signed deferred prosecution agreements to avoid being charged, prosecuted, and if convicted fined and being sentenced to one to six months in jail.
Regarding the Lake Austin Collective case, Escamilla toldThe Austin Bulldog, “Insufficient posting is not a criminal offense.” But it is a serious matter nonetheless.
Escamilla recalled the 1986 litigation brought by the Austin American-Statesman’s parent company, Cox Enterprises v. Board of Trustees of Austin ISD. In that case, the Board of Trustees acted on a seemingly innocuous “personnel” matter that actually involved hiring a new superintendent for the district.
“The Board did not provide full and adequate notice, particularly where the subject slated for discussion was one of special interest to the public. Selection of a new school superintendent is not in the same category as ordinary personnel matters and a label like ‘personnel’ fails as a description of that subject,” states a decision handed down by the Texas Supreme Court [706S.W.2d 956 (1986)].
That decision, Escamilla said, “Came to signify an important rule. As the community interest in an agenda item is greater, so is the responsibility to be more specific in the agenda posting.”
Draft Petition Lake Austin Collective Inc. et al v. City of Austin (43 pages with exhibits)
Settlement Offer Letter April 3, 2017 (2 pages)
Lake Austin Collective Inc. Certificate of Formation March 17, 2017
Related Bulldog coverage:
Deferred Prosecution Ends Open Meetings Investigation October 24, 2012, with links to 35 previous stories about the City of Austin’s problems and progress in dealing with open government issues. This story also includes links to access the seven deferred prosecution agreements.