Open Government Fixes Costing Big Bucks

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David Escamilla
David Escamilla

Taxpayers Footing Big Bills to Correct City of Austin’s Open Government Issues

$200,000 Spent on Attorneys So Far and No End in Sight

The Austin City Council so far has authorized spending $399,000 to hire outside attorneys to provide advice to bring the city into compliance with the Texas Open Meetings Act and to defend a lawsuit filed by The Austin Bulldog under the Texas Public Information Act.

More than half that amount has been spent already, most of it to deal with the ongoing investigation of possible criminal violations of the Texas Open Meetings Act by Travis County District Attorney David Escamilla.

Section 551.143 of the Texas Open Meetings Act states that a member or group of members of a governmental body commits an offense if the member or group of members knowingly conspire to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter. An offense, if proven, is punishable by a fine of $100 to $500 and confinement in the county jail for one to six months, or both the fine and confinement.

David Escamilla
David Escamilla

The Austin City Council’s possible violations of Section 551.143 were exposed by The Austin Bulldog’s investigative report published January 25. That same day The Austin Bulldog reported that Escamilla was investigating these matters. That investigation is still ongoing.

The city’s response to these reports was swift. On January 28, the city council hired three law firms and huddled with their lawyers for two and a half hours in a closed-door executive session.

The practice of scheduled private meetings was immediately stopped. The Austin City Council held its first public work session February 9.

The investigative report exposed the longstanding practice of the mayor and council members holding a flurry of routinely scheduled private meetings that for many years had been taking place a day or two before every council meeting. These private meetings denied public access to significant deliberations about city business that are required to be conducted in the sunshine of open meetings.

The Austin Bulldog reported February 7 that the City of Austin committed $159,000 to engage three law firms to provide legal advice related to Texas Open Meetings Act: James E. “Jim” Cousar of Thompson & Knight LLP, C. Robert “Bob” Heath of Bickerstaff Heath Delgado Acosta LLP, and Randy T. Leavitt of the Law Office of Randy T. Leavitt.

Since then, City Attorney Karen Kennard has issued amendments that allowed other lawyers and support personnel within the three law firms to assist, and increased the total authorized expenditures to $289,000 solely to address Texas Open Meetings Act issues.

Lawsuit expenses

Kennard also engaged Cousar for $110,000 to represent the city in The Austin Bulldog v. Mayor Lee Leffingwell et al, a lawsuit filed to force compliance with the Texas Public Information Act and the Local Government Records Act. (See The Austin Bulldog report of March 2.)

As reported March 18, the city declined to accept The Austin Bulldog’s settlement offer, in return for which The Austin Bulldog would waive all attorneys fees and costs of the lawsuit.

The lawsuit stemmed from the city’s decision to withhold certain government records—including records involving public business that were created or received on the mayor and council members’ cell phones or personal computers—and laid bare a major problem preventing citizens from obtaining complete information about the affairs of government: To withhold records created or received on officeholders personal computers and cell phones is to effectively gut the Texas Public Information Act. To allow this to stand would amount to an open invitation for city officials and employees to conduct business in the shadows.

The city eventually released most of the requested records but continues to characterize the releases as voluntary. In effect, the city refuses to acknowledge that records involving public business that were created or received on the mayor and council members’ cell phones or personal computers are, in fact, public records, as stated in at least four opinions issued by the Texas Attorney General:

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.”

On April 7 the city council passed a resolution 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.

However, the policy 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.

The city manager and city clerk are developing policies to apply to other city employees and members of some boards and commissions.

Hiring letters and invoices

Through open records requests, The Austin Bulldog has obtained copies of the engagement letters and invoices covering these law firms’ billings that total $204,130.

Thompson & Knight’s invoices total $79,083

• $49,211 for Texas Open Meetings Act issues through May 20.

• $29,873 for The Austin Bulldog lawsuit through March 31.

Bickerstaff Heath’s invoices total $37,753 through April 28.

Leavitt’s invoices total $87,286 through May 31.

For ease of access and review, The Austin Bulldog has consolidated each law firm’s engagement letters, amendments, and invoices in a single Portable Document Format (pdf) text-recognition file that can be searched. The various records within each file are arranged in chronological order by filing date. (It should be noted that there is a consistent typographical error in all April 28 amendments to engagement letters; each states the amendments apply to engagement letters dated February 28; in reality the original engagement letters were issued January 28.)

To review records for Thompson & Knight for the Texas Open Meetings Act, click here.

To review records for Thompson & Knight for The Austin Bulldog v. Mayor Lee Leffingwell et al, click here.

To review records for Bickerstaff Heath, click here.

To review records for Leavitt’s law office, click here.

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.