by Ken Martin
© The Austin Bulldog 2011

The clear leader in local government transparency at the moment is the Travis County Commissioners Court, whose members have unanimously said they would provide e-mails involving public business requested by the Austin American-Statesman and other news organizations—including those sent or received on personal e-mail accounts.

Not so with the City of Austin and Capital Metro. These agencies are using the public treasury to commit to spending as much as $250,000 for the purpose of getting advice about how to deal with violations of the Texas Open Meetings Act and resisting disclosure of records that should be available upon request under the Texas Public Information Act.

On March 1, The Austin Bulldog sued the mayor, each council member and the city over the refusal to turn over e-mails concerning city business that were generated on personal computers or cell phones, as requested under the Texas Public Information Act. That lawsuit, which also seeks a permanent injunction to require all communications involving city business be retained and made available upon request under the Texas Public Information Act, is pending. The city has until April 4 to file a response.

Capital Metro is following the city’s example by announcing last Friday it would release some of the e-mails requested by the Austin American-Statesman and other media, and not saying whether it would release board members’ e-mails about Capital Metro that were created or received on private accounts.

by Ken Martin
© The Austin Bulldog 2010

Mayor Lee Leffingwell announced in his State of the City speech on February 25 that he wants to see a plan for increasing the size and geographic representation of the city council on the ballot in a November 2012 election.

The mayor’s proposal was only a day old when a group of Austin citizens—including liberals, conservatives and minorities—gathered at Huston-Tillotson University (HTU) to discuss forming a coalition to push its own plan through a petition drive that could get on the ballot this November.

Section 9.004 of the Texas Local Government Code sets the bar: the petition must be “signed by a number of qualified voters of the municipality equal to at least five percent of the number of qualified voters of the municipality or 20,000, whichever number is the smaller.”

A “test” petition drive is scheduled for this Saturday, March 12, from 12-2pm on the south steps of the State Capitol, during an expected big rally to protest the proposed budget cuts in state funding for education.

At the HTU meeting, the group adopted the name Austinites for Geographic Representation, and hopes to recruit volunteers to gather enough signatures to force the City Council to schedule the election.

If the proposition were to get on the ballot and be approved, it would change the electoral system specified in the City Charter. Article II, Section 1 of the Charter states:  The council shall be composed of seven council members who shall ... be elected from the city at large.

The meeting at HTU was organized by Linda Curtis, co-founder of ChangeAustin.org. She has led numerous petition drives to get measures on the ballot.

The program was moderated by Professor Michael Hirsch, PhD, chair of Social and Behavioral Sciences in HTU’s College of Arts and Sciences.

Only about 15 people attended the Saturday meeting, something Curtis said was intentional, so those who attended “could have a conversation.”

Attendees included Peck Young, director of the Center for Public Policy and Political Studies at Austin Community College, and a former political consultant for some four decades; Steve Aleman, president of the Austin Neighborhoods Council, a coalition of neighborhood groups; Steve Speir, a longtime Democratic activist and board member of the Better Austin Today Political Action Committee; Stacy Suits, deputy constable for Travis County Precinct 3; Roger Borgelt, vice president of the Travis County Republican Party; Roscoe Overton, an African American citizen with longtime interest in civil rights; and two candidates for Austin City Council: Chris Nielsen, who is running for Place 3 against incumbent Randi Shade, and Josiah James Ingalls, who’s running for Place 1 against incumbent Chris Riley.

The Austin Bulldog electronically filed a lawsuit in state district court last night to sue the mayor and each council member in their individual capacity, and the City of Austin, for failure to promptly and fully respond to The Austin Bulldog’s requests filed under the Texas Public Information Act (TPIA), Chapter 552 of the Government Code.

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—lays 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.

Withholding these public records from disclosure as requested by The Austin Bulldog on January 19, 2011, and January 27, 2011—and doing so without seeking an Attorney General’s opinion—only adds to the city’s previously reported problems in governmental transparency, evidenced by The Austin Bulldog’s story published January 25, which exposed the ongoing violations of the Texas Open Meetings Act, Chapter 551 of the Government Code.

Further, The Austin Bulldog’s lawsuit asserts there is evidence that one or more Austin officials deliberately use their private e-mail accounts to try to keep substantive communications about city business from being available through the city’s computer servers.

In one case, a council member asked a constituent to switch over to the council member’s personal e-mail address to continue discussing the controversial topic of tax subsidies for The Domain shopping center. This e-mail discussion obviously concerns important public business, as those subsidies amounted to anywhere from $25 million to more than $60 million, depending on whose figures you believe.

Records retention paramount

As reported by The Austin Bulldog January 25, County Attorney David Escamilla is conducting an inquiry about a complaint that the Austin City Council may have violated the Texas Open Meetings Act.

This is a serious matter and the city is taking it seriously. In lieu of the private meetings that for years have been held among the mayor and council members to discuss items on the Thursday council meeting agendas, the council is now holding work sessions to discuss the agenda in posted open meetings.

If the mayor and council members should be found to have in fact violated the Act, they may be subject to criminal prosecution under Section 551.143 of the Government Code, a misdemeanor punishable by a fine of not less than $100 or more than $500; confinement in the county jail for not less than one month or more than six months; or both the fine and confinement.

The Austin Bulldog is publishing selected text excerpts from each of the exclusive interviews conducted with the council members before breaking the story. The complete copyrighted MP3 audio file for each interview is linked at the bottom of each article for easy access. You may listen to these recordings to gain a better understanding of the published excepts within the context of the complete interview.

Council Member Bill Spelman was interviewed in his office at City Hall on Monday, January 24, 2011. The recording runs 38 minutes 52 seconds.

The Austin Bulldog: 
I don't want to take too much of your time so let's jump right in. As I said in my e-mail requesting an interview I'm developing story about working relationships among the mayor and the council members and understanding how these folks work together to develop public policies. One thing that stands out of my mind is the four of you are pretty transparent on how you spend your time on council duties because you publish your calendars online.

Bill Spelman:
 Right.

The Austin Bulldog: 
Do you have any ideas about why (Mayor) Lee (Leffingwell), (Mayor Pro Tem) Mike (Martinez) and (Council Member) Sheryl (Cole) don't publish their calendars?