Well I Said Come On Over Baby, Whole Lot of Meetin’ Goin’ On
Council Member Chris Riley Tops the Chart with 256 Private Meetings
Since The Austin Bulldog broke the story on January 25 about the Austin City Council holding regularly scheduled private meetings to discuss public business, the reactions have been polarized. Most were aghast that elected officials would do so much deliberating in private, while others thought such meetings were, in essence, a good thing, and it is naive to think otherwise—or even to question the practice.
On January 27, the Austin American-Statesman’s editorial, “Braced for the gathering storm,” concluded, “The Open Meetings law is plain; public business is to be conducted in public,” while the Statesman-owned In Fact Daily oversimplified the situation by raising the argument that “…preventing council members from speaking to one another would be detrimental to the efficiency of city government….” This is a bogus argument, because nothing in the Texas Open Meetings Act prevents elected officials from talking with one another.
Ad hoc discussions are permitted under the act. It is the systematic, regularly scheduled nature of the Austin City Council’s private meetings that may cross the line into actions that flagrantly violate the act.
The overriding factor here is that private deliberations about the city’s business is prohibited by law: Section 551.143 of the Texas Open Meetings Act states: “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 of this chapter.”
Attorney General Greg Abbott issued Opinion No. GA-0326 on May 18, 2005, and it specifically addresses the kinds of meetings being held among the mayor and council members.
“[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.”
GA-0326 further states, “As a general matter, Texas civil courts, in construing the OMA (Open Meetings Act), rely on the OMA’s core purposes, which is to guarantee access to the actual decision-making process of governmental bodies. … As such, the civil courts construe the OMA’s provisions liberally in favor of open government. … “[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.”
Thus it seems clear under the law that these regularly scheduled meetings may violate the Texas Open Meetings Act. The law is not concerned with such niceties as “efficiency” but with making sure the public’s business is conducted in public.
An offense under Section 551.143 is considered to be a conspiracy to circumvent the act, and is a misdemeanor punishable by:
(1) a fine of not less than $100 or more than $500;
(2) confinement in the county jail for not less than one month or
more than six months; or
(3) both the fine and confinement.
Analysis
Four council members publish their calendars on the city’s website. The Austin Bulldog downloaded those calendars and analyzed the number of meetings these council members held with the mayor, with each other, with the city manager, and with the mayor’s chief of staff. City Manager Marc Ott was included in the analysis because he regularly meets with each of the council members in private and thus may serve as an information hub. The mayor’s chief of staff, Mark Nathan, was included because he may serve as a surrogate for the mayor in these meetings.
These meetings were highlighted, consolidated, and uploaded to The Austin Bulldog’s website. You can see the consolidated calendars for each of the four council members by clicking these links: Laura Morrison, Chris Riley, Randi Shade, Bill Spelman.
The analysis consisted of counting the number of individual private meetings by each of the four council members for calendar year 2010, and dividing the total number of private meetings by the number of city council meetings held in 2010 (26 meetings) to arrive at the average number of private meetings that each council member held per council meeting.
Council Member Spelman did not publish a calendar for December 2010, so his total number of meetings were held January through November and the number of council meetings in December (two) were subtracted.
The average number of meetings per council meeting seems a useful statistic because nearly all of the private meetings are held during the week of and immediately preceding the Thursday council meetings.
The accompanying chart ranks the four council members by total number of private meetings. Obviously the more total private meetings a council member had, the higher the average number per council meeting.
Caveats
• Mayor Lee Leffingwell, Mayor Pro Tem Mike Martinez, and Council Member Sheryl Cole do not publish their calendars on the city’s website, so this analysis does not address how many private meetings they personally participated in, although the published calendars of the other four council members document that they do so.
• The number of meetings for each council member are based on their own self reporting of regularly scheduled meetings. Some of the council members have said in interviews with The Austin Bulldog that additional ad hoc meetings are held as the need arises.
• This analysis does not address the number of hours each council member spent in these meetings. That said, since most meetings were scheduled to last a half hour, a rough estimate of the total hours spent in these meetings can be derived by dividing the number of meetings by two. Thus, Council Member Riley’s calendar indicates that he scheduled at least 128 hours for private meetings in 2010, Morrison 97 hours, Shade 95 hours, and Spelman 81 hours (in 11 months). Again, this does not reflect any additional time spent in ad hoc meetings.
• This analysis does not address the private meetings held by council members in previous calendar years. Morrison and Shade were elected in 2008. Riley and Spelman were elected in 2009. Mayor Leffingwell was elected as a council member in 2005 and has served continuously since then. All of these officials said in interviews with The Austin Bulldog that they have been participating in these regularly scheduled private meetings since they first took office. Council Member Spelman, who served a previous term 1997-2000, said this system of meetings was implemented by Mayor Kirk Watson during his first term that began in 1997.
Practical conclusions
Why take risk?—The Texas Open Meetings Act and the opinions issued by the Texas attorney general are clear enough. The law should be followed. Where the law is concerned, there is no room for personal opinion or putting forth arguments based on one’s philosophy. The city council either follows the law or it violates the law.
Work sessions possible—The estimate of hours spent in these private meetings indicate that council work sessions held in properly posted open meetings would take no more time than the council members are spending in private meetings. The idea that council would spend more time in holding work sessions is invalid on its face. What the council members would have to do is to post an agenda and stick to it, instead of being able to deliberate about anything and everything they would like in private meetings.
Disclosures: Randi Shade has contributed $50 to The Austin Bulldog. Bill Spelman has contributed $100.
This investigative 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. The Austin Bulldog has many investigative projects waiting to be funded. You can help bring these investigations to life by making a tax-deductible contribution.
