A policy to ensure the City of Austin’s 12,000 employees comply with state law for retention of public records went from being a fully compliant initial proposal to an implemented policy that falls woefully short of compliance, say experts in the state's open government laws.

The Austin Bulldog reported August 10 on the new policy established by Austin City Manager Marc Ott to guide city employees in how to handle electronic communications about city business. The policy states if circumstances require communicating about city business on a personal communication device or account, that correspondence should be forwarded to a city account.

Flaws in the policy include not stating that the correspondence should be forwarded promptly and leaving it to the discretion of each employee to decide whether the correspondence needs to be forwarded for retention. The policy lacks any means of preventing unlawful deletion of public records or auditing compliance.

Through an open records request The Austin Bulldog obtained two draft versions of the Administrative Bulletin that was ultimately issued August 4 by the city manager. The drafts, dated June 1 and June 15, when compared to each other and the bulletin issued, show how the proposed policy was gutted.

Four experts in the state’s open government laws who are volunteer hotline attorneys with the Freedom of Information Foundation of Texas reviewed the two drafts and the Administrative Bulletin provided by The Austin Bulldog.

“This is a drastic watering down of a policy that was originally intended to comply with the law and provide transparency in government,” said Joel White of the Austin law firm Joel R. White and Associates. He is a past president of the Freedom of Information Foundation of Texas and has represented a wide range of media clients for more than two decades.

Thomas Gregor of the Houston law firm of Ogden, Gibson, Broocks, Longoria and Hall LLP, said in an e-mail, “As originally drafted, the policy better adheres to the tenets and the spirit of open government. Unfortunately, the policy that was ultimately issued was diminished to the point that, while paying lip service to open government, does not ensure or verify the retention of any public information that is generated on a personal device.

“The end result is that there remains a significant gap in the City’s compliance with the open government laws,” Gregor said.

Joe Larsen, special counsel to the Houston-based international law firm of Sedgwick, Detert, Moran and Arnold LLP, said in an e-mail, “I think the policy has been significantly weakened by giving department directors complete latitude to determine how the policy is communicated and not requiring documentation that each employee has received and has access to the information in the bulletin. This will have two likely results:

“First, instead of a formal meeting where the importance of the policy is explained and underscored, any manner of delivery is envisioned. Without a formal setting, the importance of the policy will not be conveyed.

“Second, without a roster or verification, there will be no incentive to insure that the policy is timely communicated and no way of verifying if it has. An employee is very likely to state that he/she was unaware of the policy.

“It is this very issue—claims of lack of knowledge of proper policy—that led to the implementation of required training for public information officers of governmental bodies on the Public Information Act. These officers must have a certificate indicating that they took the required training.

“By requiring employees to forward their administrative value communications to a City account, the City has effectively made each employee the public information officer for his/her personal communication device accounts, and the communication of this policy should also be in a formal setting and it should be documented.”

Today The Austin Bulldog filed its second lawsuit against the City of Austin in state district court for failure to promptly respond to The Austin Bulldog’s request filed under the Texas Public Information Act (TPIA), Chapter 552 of the Government Code.

The first lawsuit filed March 1, 2011, addressed similar issues. The Austin Bulldog today also filed a supplement to that lawsuit to address unresolved issues still pending and add related issues (more about that later).

The new lawsuit, The Austin Bulldog v. City of Austin, pertains to The Austin Bulldog’s open records request filed July 27 for copies of bids, contracts, scoring evaluations, correspondence, and invoices involving MWH Constructors, the firm hired by the city to oversee construction of Water Treatment Plant 4. Electronic copies of the records (pdf format) were requested on a computer disk.

Thirty-five days have elapsed since this request was filed and the city has provided none of the 4,700 pages of documents it estimated were responsive to this request.

The lawsuit asks the court to issue a writ of mandamus requiring the City of Austin to “promptly” provide copies of the requested records to The Austin Bulldog pursuant to the terms of the Texas Public Information Act. (A writ of mandamus is a judicial order directing a government official to perform a duty that is not subject to the official’s discretion.) The lawsuit also seeks reasonable and necessary attorney fees and cost to plaintiff.

“After many months of being under scrutiny over transparency issues and after a couple of weak attempts to deal with these issues, the Austin City government still has a fundamental problem: Austin officials have a bad attitude about letting the public see what they are doing,” said Bill Aleshire of Riggs Aleshire and Ray PC, who represents The Austin Bulldog.

Water Treatment Plant records withheld

A petition drive to trigger a City Charter election for council districts will soon be launched by a growing coalition of individuals and organizations that want to promote their own grass-roots plan instead of backing whatever the City Council may put on the ballot.

Austinites for Geographic Representation voted unanimously Monday night to support a plan that would allow election of 10 council members from geographic districts. Only the mayor would continue to be elected at-large if the plan this group advocates gains voter approval.

Meanwhile the city council has initiated a process to formulate its own plan for some form of geographic representation in council elections.

The City Council passed a resolution August 4 that established a 2012 Charter Revision Committee of 15 members to be appointed by August 25. The mayor will appoint three members and each council member will appoint two members.

The resolution directs the Committee to consider the proposed maps that were presented to the council June 9 and meet at least once to consider maps submitted by the public and at least once to discuss its recommendations to the council. The Committee is also directed to seek public input.

Mayor Lee Leffingwell has long advocated a new system in which six council members would be elected from districts, and two council members and the mayor would be elected at-large. The council resolution, however, gives the Committee leeway to recommend a map that includes any combination of at-large and geographic representation. The Committee will dissolve after submitting its recommendations due by January 31.

Any election is not likely to occur before November 2012, due to the changes mandated by Senate Bill 100 that preclude holding a city council election in May.

SB 100 authorizes the City of Austin to move its next election to November 6, 2012, and adjust the terms of office to conform to the new election date. Further, SB 100 allows the City of Austin to opt for election of all council members at the same election, superseding City Charter requirements for council elections to be conducted in May and terms to be staggered.

Citizen plan minimizes politics

The most significant changes reflected in the latest mid-year Statements of Financial Information submitted by Austin City Council members appeared in the statement submitted by Council Member Mike Martinez. He listed the names of 49 entities in which he and his wife, Lara Wendler, held, owned, acquired, or sold stock, or any other equity ownership having a value of $5,000 or more.

These holdings appear to represent an investment of at least $245,000, if each of the 49 stocks were valued at the minimum $5,000. These stocks cover a wide range of investment funds. None involve local companies. 

Martinez did not report these investments in his last annual report.

Seeking clarification, The Austin Bulldog e-mailed Martinez August 8 to ask if he owned these stocks during 2010—and failed to report them in his last annual report—or acquired them since January 1.

Martinez replied August 10: “After consulting with counsel, my wife and I have expanded the mid-year PFS (personal financial statement) to provide more information. The mid-year PFS accurately reflects our current situation.”

Martinez did not respond to a follow-up query to again ask if he had owned those investments last year and failed to report them.

Martinez currently has a new home under construction at 2314 E. 11th St., in Central East Austin near Boggy Creek Park. The 11,641-square-foot lot was purchased October 29, according to the Warranty Deed, and the building permit was issued May 31. The three-story, single-family residence being built by Olson Defendorf Custom Homes has 5,289 square feet, with 4.5 bathrooms and two garages, according to building permits downloaded from the city’s website.

Martinez’ financial statement indicates that he paid off three loans and took out three new loans. He also joined the board of directors of three organizations that benefit youth and social justice: Police Activity League, Community Shares of Texas, and Christopher Guild.

Other financial changes

City Manager Marc Ott approved a policy August 4 that establishes city accounts as the primary means for the city’s 12,000 employees to electronically communicate about city business. The policy was transmitted to employees through an Administrative Bulletin drafted by the Human Resources Department.

The City Council ordered the city manager to devise a policy for employees’ electronic communications in a resolution unanimously adopted April 7. (See The Austin Bulldog’s April 15 report.) The resolution also directed the City Clerk to devise a policy for board and commission members’ electronic communications. (More about that later.)

If circumstances require communicating about city business on a personal communication device or account, that correspondence should be forwarded to a city account, the policy states.

However, the policy grants employees permission not to forward communications if they personally determine that “there is no administrative value in retaining the communication.” This determination is supposed to be made by employees after consulting the “applicable records retention schedule.”

The “Administrative Value retention period” is defined in the Bulletin as “generally associated with routine or administrative business documents. The retention period is tied to the usefulness of the records for the conduct of current or future administrative business.”

The employee communication policy applies to, but is not limited to, e-mail messages, text messages, images, and attachments.

Joe Larsen, a volunteer hotline attorney with the Freedom of Information Foundation of Texas and last year’s recipient of the foundation’s prestigious James Madison Award, is an expert in the state’s open government laws. Larsen praised the city manager’s policy and pointed out some improvements that could be made.

“I’ve never seen any other city in Texas with a policy that would require a city employee to forward electronic communication from a personal account,” said Larsen, special counsel to the Houston-based international law firm of Sedgwick, Detert, Moran and Arnold LLP. “I would have to go on the record in saying I think it’s a good-faith effort to address a complicated problem.”

Is the City of Austin unique in adopting such a policy? The Austin Bulldog sought a comment from Bennett Sandlin, executive director of the Texas Municipal League. The TML website states the organization has more than 1,100 member municipalities, including 34 with a population of 100,000 or more.

Sandlin replied via e-mail, stating, “I’m not going to comment on a specific member city issue.”

Sandlin has, however, previously commented for publication concerning the issue at hand. An e-mail attributed to Sandlin was quoted in a January 12 Texas Watchdog article. Sandlin’s e-mail acknowledged that “...public business e-mails on private accounts are indeed public information.”

Larsen and three other attorneys who are experts in the state’s open government laws say the city manager’s policy for employee communication is flawed and raises serious issues about whether the policy will bring the City of Austin into compliance with the Texas Public Information Act.

Flaws in Ott’s policy