U.S, District Judge Robert Pitman of the Western District of Texas yesterday declared unconstitutional the restriction found in the Austin City Code that restricts when a candidate can start raising funds for a mayoral or City Council race.
Pitman previous served as a magistrate judge for the same court and also is a former U.S. attorney for the Western District.
Anne Morgan
City Attorney Anne Morgan told the Bulldog, “We are disappointed in the ruling but will be talking to the council about it at the next meeting in September.” (No agenda has been posted for a regular council meeting in September.)
“It’s a pretty straightforward issue in this case,” Morgan said. “Campaign finance is about corruption or the appearance of corruption. Fortunately we didn’t have any,” Morgan said.
Asked if candidates can begin fundraising now for the mayoral or council elections of November 2024, instead of waiting until November 5th, the date that would have sounded the starting bell, Morgan said, “I need to study the issue more.
“Candidates may want to talk to their lawyers to get answers.”
Litigation filed by Jennifer Virden
Jennifer Virden
The decision came in response to a lawsuit filed against the City of Austin in March 2021 by Jennifer Virden. (Case No. 1:21-cv-00271-RP)
Virden, who ran unsuccessfully for the District 10 council seat in 2020 and for mayor in 2022, sued to remove the City Charter restriction that bars a candidate from soliciting or accepting campaign contributions more than a year before the general election.
Virden did not respond to a voice message requesting comment for this story.
Don Zimmerman
City Code Section 2-2-7(B) and (G) overturned in Virden’s lawsuit originally prohibited fundraising from starting more than six months before an election. But as a result of a lawsuit filed by then-Council Member Don Zimmerman, who was elected in 2014 to represent District 6, the fundraising window was pried open to allow fundraising beginning a full year before the election.
Both Virden and Zimmerman are Republicans who are strongly opposed to these kinds of restrictions, which are intended to limit fundraising periods with the goal of reducing corruption or the appearance of corruption.
Concerns about such corruption is, in large part, based on the fact that incumbent mayors and council members, if free to raise money while in office and voting on matters of public business, could conceivably be swayed by contributions.
Non-incumbent candidates, on the other hand, view restrictions on fundraising periods as an incumbent-protection devices. Such restrictions prevent challengers from starting early to build a strong campaign to run against incumbents, who appear regularly on the City’s ATXN video network, attract constant media attention, and thus enjoy high name recognition.
As the Bulldogreported, Zimmerman filed suit in July 2015. That lawsuit (Case No. 1:15-cv-00628) sought not only to overturn the six-month restriction, which the litigation accomplished, but also to throw out limits on individual contributions, limits on total contributions a candidate could accept from sources other than natural persons eligible to vote, and the requirement for candidates to distribute the balance of contributions in excess of remaining expenses within 90 days after an election. The latter three objectives were defeated.
“These laws stifle core political activity and prevent candidates from raising the funds required to run effective campaigns, yet they fail to advance the only legitimate governmental interest in this area—the prevention of quid quo pro corruption or its appearance,” Zimmerman’s lawsuit argued.
Lawsuits and legislation unraveling Austin rules
Bill Aleshire
“The opinion had to weigh on one hand the First Amendment rights to free speech in the form of campaign contributions vs. concerns about the integrity of decisions made by public officials influenced by money,” said attorney Bill Aleshire. (Disclosure: Aleshire represents theBulldogin all public information requests and on our behalf has twice successfully sued the City of Austin for public information.)
“I think the decision is the beginning of cracks in the City of Austin’s approach to campaign finance and disclosures,” he said.
“While this decision was based on the unconstitutionality of restrictions on when candidates can collect campaign money, I do expect that if the ‘Death Star’ bill is finally upheld it may well result in ending restrictions on amounts that can be contributed. It would also obliterate the requirement that officeholders and candidates have to disclose major sources of income in their Statements of Financial Information required by City Code.
House Bill 2127, aka the “Death Star” bill, which becomes effective September 1st, states “…the governing body of a municipality may adopt, enforce, or maintain an ordinance or rule only if the ordinance or rule is consistent with the laws of this state.”
Same attorneys, same court, same result
Gerard Najvar
Both Virden and Zimmerman were represented by attorney Jerad Najvar of the Houston-based Navjar Law Firm as lead counsel.
Navjar did not immediately not return a voice message left this afternoon requesting comment.
Renea Hicks
The City of Austin was presented in both cases by outside counsel, Austin-based attorney Max “Renea” Hicks.
Hicks has not returned a voice message left this morning to request comment.
The City Council has authorized Hicks up to $181,750 for his representation in this case. Payments to Hicks through July 31st totaled $148,496, with one invoice still pending, according to information obtained through a public information request.
Trust indicators: Ken Martin has been investigating local government agencies and officials in the Austin area since 1981. He founded The Austin Bulldog in 2009 and began publishing on the website in April 2010. You can reach him at [email protected].
Chief Appraiser Marya Crigler has submitted her notice of intent to retire effective in early 2024. She will be ending a career spanning 33 years with Travis Central Appraisal District that began right after graduating from the University of Texas. She currently earns $270,000 a year. Consultants and a committee of TCAD’s board have started working to find Crigler’s successor.
Crigler’s departure isn’t the only big change that will impact the agency’s management next year.
Senate Bill 2 mandates election of three members of its nine-member board of directors in the general election of May 2024.
For the first time since appraisal districts were created by legislation passed in 1979, the citizens of Travis County will be able to directly elect some of the voting members who oversee the appraisal district. The five voting members appointed by taxing entities will constitute a majority.
TCAD’s 10-member board currently consists of nine members appointed by the taxing entities the agency serves. By law the ninth member is the Travis County tax assessor-collector, who serves as a permanent ex-officio non-voting member, and that will continue under SB 2.
Paul Bettencourt
The election mandate is just one tiny aspect of the far-reaching legislation authored by Paul Bettencourt (R-Houston) and signed into law July 22nd by Governor Greg Abbott.
The bill calls for major changes aimed at providing property tax relief through the school finance system, property tax exemptions, limitations on appraisals and taxes, and much more. The fiscal note for the bill states it will cost $12.7 billion for the biennium ending August 31, 2025.
TCAD was scheduled to hold a webinar today addressing the senate bill’s impact for the benefit of the taxing entities the agency serves. The Bulldog’s request to watch and cover the webinar was rebuffed because it is “not open to the public.”
Deborah Cartwright
TCAD Board Member Deborah Cartwright, who was appointed by the Austin Independent School District, said, “This webinar is important for all of us to participate in, to be aware of how operate next year.” She said the change in the board’s composition “is pretty significant. We know it impacts all jurisdictions.”
Election timing
To be eligible to run for one of those three elected positions, a person must be a resident of the district for at least two years immediately preceding the date the person takes office, which is July 1, 2024.
Applications for a place on the ballot must be filed with the Travis County judge, accompanied by a filing fee of $400 or a petition containing 500 signatures in lieu of the filing fee.
“The secretary of state shall adopt rules as necessary to implement this election,” SB 2 states.
Cynthia Martinez
The five non-elected board members will be appointed by the incorporated cities and town, school districts, and junior college districts. “Voting will be determined by the percent of (TCAD’s) budget each entity contributes,” Communications Director Cynthia Martinez, said in an email to answer the Bulldog‘s question. “I can’t tell you for sure how that will impact our smaller entities contrasted with our larger entities. Those specifics will become clearer as the Board determines the process over the next few months.”
The five members of the board to be appointed by the governing bodies of the incorporated cities and towns, school districts, and junior college districts will serve staggered four-year terms beginning January 1 of every other even-numbered year.
The three elected members of the board will serve staggered terms beginning January 1 of every other odd-numbered year.
Chief Appraiser Crigler told the Board of Directors at the August 24th meeting that TCAD has increased its 2024 budget by the $1.7 million estimated cost of conducting the May 2024 election and possible runoff. That bumped the 2024 budget to $29,884,516, an increase of $4,200,065 over the 2023 budget. The new budget includes funding for 158 employees, up from 153 in 2023.
If the elections ultimately cost less than estimated, then TCAD plans to reduce the taxing entities’ fourth-quarter payments in 2024, Crigler said.
Appraisal district budgets are supported solely by payments from local taxing units served by the district. After approval by the TCAD board, the 2024 budget takes effect January 1stautomatically unless disapproved by the governing bodies of the county, school districts, cities and towns it serves.
Alternate certification made by estimate
TCAD has now missed the statutory deadline for certifying the appraisal rolls in five of the last 10 years: 2014, 2015, 2019, 2020, and 2023.
TCAD’s Communications Director Martinez responded to say, “We did not miss the statutory deadline. The Chief Appraiser certified using an estimate, which is allowed by law.”
A chart published in the Bulldog’s story of December 12, 2013, provided a detailed analysis of certification performance from 2010 through 2021.
Tax rolls are certified based on the settled values of a threshold percentage of the total value of all properties that TCAD appraises. The rolls can be certified if 90 percent of values have been settled by July 20th, or if 95 percent of values have been settled by August 30th.
“We think we will hit 95 percent by August 30th,” Crigler told the board. “We dealt with most commercial properties and agents upfront and individual property owners on the back end. We’ve scheduled hearings through the month of September. We’ll take a week off for Labor Day and should completely finish by the end of September or the first week in October.”
The certified roll is critical for the taxing entities. The governing boards of those entities use the certified value to calculate tax rates when approving budgets for the next fiscal year. When the appraisal rolls cannot be certified on time, as happened again this year, TCAD provides an estimate that can be used for calculating the tax rates.
Some of the factors that may have contributed to the missed deadline are:
Record number of protests—A record-high 166,757 valuation protests were filed in 2023—a 20 percent increase over the 141,360 protests filed in 2022.
ARB strength reduced—As the Bulldog reported December 22nd, TCAD budgeted for 74 members to be appointed to the ARB in 2023. That’s just 37 percent of the 200 budgeted for the 2022 protest season. So the number of people available to conduct formal hearings with property owners and agents has been greatly reduced.
ARB attendance sub-par—Although 73 people have been appointed to serve on the ARB, in actual practice the ARB is operating with 49 full-time equivalents, Travis ARB Chair Craig Phifer told the board. “We’re coping, we’re using single-member panels when people agree to it (instead of the usual three-member panels that conduct hearings) and a lot do.
Later, by email, Phifer told the Bulldog, “The limited number of board members really hasn’t played a role in this (late certification). The TARB has been meeting the needs so far to do our part, and our efficiency has improved over the past three years. We have several panel chairs that have heard over 100 hearings in a day. Although that is not routine it has happened on several occasions with several different panel chairs.
“The ability to schedule enough hearings was the largest (factor). So not having enough members to serve daily was a consideration while scheduling.”
Hearing no-shows—“We have an 85 percent no-show rate,” Phifer told the board members.
Crigler added, “We always get a lot of no-shows. They want to get the evidence and don’t intend to show up, but then they don’t cancel (their hearing appointments).” The evidence is confidential and an owner or agent can get it only if they protest. “They can withdraw their protest online or ask to reschedule online.”
Via email, Phifer added, “TCAD is working the front door (when people come in for their hearings) reminding property owners of their informal settlement offer and asking one last time if they would like to accept the offer to settle informally. And the same is happening prior to the virtual hearing as well. This contributes to the no-show rate as well.”
2024 reappraisal plan amended
Leana Mann
Deputy Chief Appraiser Leana Mann briefed the board concerning the plan to reappraise the value of properties within Travis County in the coming year.
The plan anticipates having 485,290 property accounts, of which 444,625 are real estate and the rest are business personal property. That projection equates to adding 7,667 accounts for an increase of 1.58 percent.
The plan states that the law only requires reappraisal of all property within its boundaries every three years. But TCAD but will undertake a targeted reappraisal approach to better achieve the goal of appraising all property at fair market value as of January 1st. Complete details are available in the agenda and meeting materials PDF (pages 105-114).
Crigler said, “In light of the decline in residential market trending down, we recommend doing a full reappraisal in 2024. We want to be sure values are reflective of the downturn in the market.”
The plan was approved by the board’s unanimous vote.
New personnel policy with longevity pay
The board approved a new personnel policy that includes a dress code permitting employees to wear jeans with their agency-provided wash-and-wear knit shirts that have the TCAD logo.
The policy updates per-diem rates, rules for remote work via telecommunications, breastfeeding, and standardizing timeframes for employee evaluations, which will be done more frequently than the year-end reviews previously conducted.
Crigler said the policy adds longevity pay like other appraisal districts offer. Employees will be paid annually on the anniversary date of their employment, the equivalent of an additional $5 per month after three years of service. That equates to a bonus of $180 on the third anniversary and an additional $60 per year for every year thereafter.
James Valadez
Board Chair James Valadez, appointed to the board by Travis County, said he liked the longevity pay proposal “because we’re struggling to retain employees.”
Board member Cartwright stipulated that the chief appraiser, who works under an annual contract, will not be eligible for longevity pay.
Crigler said managers also will get the longevity pay “to recognize and retain them, because they’re important.”
This story was updated at 4:21pm August 31, 2023, to correct the nature of Criger’s letter of intention to retire (not resign), that TCAD’s board consists of 10 members (not nine as originally stated), and that the chief appraiser certified using an estimate as allowed by law.
Trust indicators: Ken Martin has been covering local government and politics in the Austin area since 1981 and investigating and reporting on Travis Central Appraisal District since 2011. Email [email protected].
After two hours of testimony and deliberation, the City’s Ethics Review Commission voted 6-2 last Wednesday evening to sanction Council Member Jose Velasquez for multiple ethical violations involving failure to list sources of income and a board membership in his sworn financial filings.
The vote on Velasquez came as part of a preliminary hearing in response to a sworn complaintfiled by Daniel Llanes, chair of the Govalle/Johnston Neighborhood Plan Contact Team.
Council Members Natasha Harper-Madison and Paige Ellis have previously been sanctioned by the commission, but for different reasons (more about that later).
Austin City Code requires candidates and council members to file sworn Statements of Financial Information (SFI) with the City Clerk during election campaigns and while in office. These statements cover a person’s sources of income, membership in boards, debts, and numerous other details about their activities during the previous calendar year.
SFIs are filed electronically. Immediately above the signature line the form states, “Under penalty of perjury, I swear or affirm that the preceding Financial Statement of Information is in all things true and correct and fully shows all information pursuant to City Code Section 2-7-72 for the reporting period indicated.”
Velasquez’s sworn statements failed to disclose that more than 10 percent of his gross income in 2021 and 2022 came from the East Austin Conservancy and, further, that he was on that organization’s board of directors in 2021.
The ethics complaint was filed July 14th.
Five days later Velasquez filed corrected SFIs covering his activities in 2021 and 2022. These disclosed his board membership with the East Austin Conservancy, and his income from that organization in the amount of $50,000 to $75,000. In addition, his corrected SFI also included previously undisclosed income from the Austin Independent School District, also in the amount of $50,000 to $75,000.
The hearing
Ross Fischer
Velasquez was not present at the preliminary hearing. He was represented by attorney Ross Fischer, who on August 11th submitted his client’s written response to the complaint.
Fisher’s lettersought to invoke provisions of recently passed House Bill 2127, aka the “Death Star” Bill). That law, which becomes effective September 1st, states “…the governing body of a municipality may adopt, enforce, or maintain an ordinance or rule only if the ordinance or rule is consistent with the laws of this state.”
In other words, Fischer contended, because City Code mandates disclosures not required by state law when filing Personal Financial Statements, any action taken by the Ethics Review Commission concerning SFI omissions after September 1st would be unenforceable.
That argument turned out to be moot, as the matter was decided nine days before the legislation takes effect.
Fischer admitted his client’s errors. That gave commissioners the option to either schedule a final hearing later (and possibly face entanglement with the new legislation) or to immediately consider sanctions. They chose the latter.
Before discussing and deciding the appropriate sanction, they gave Fischer and attorney Bill Aleshire, who represented complainant Llanes, three minutes each to argue their positions. (Disclosure: Aleshire represents the Bulldog in all public information requests and on our behalf has twice successfully sued the City of Austin for public information.)
Bill Aleshire
Aleshire told the commissioners that a Letter of Notification was not sufficient punishment for three violations, two of which involved unreported income. A Letter of Admonition seems appropriate. “My client just wants to see the council member held accountable for a violation. Treat him like you would any employee.”
Fischer argued for a Letter of Notification. “Transparency was not harmed or undermined. His relationship with East Austin Conservancy was known for years.” He said Velasquez later sought legal advice and disclosed that relationship (in connection with the zoning case). “I believe he should receive a Letter of Notification.”
In the ensuing discussion, it came out that the complainant, a longtime East Austin activist who had engaged in discussions with the council member over a zoning case—contrary to Fischer’s assertion—was not aware of Velasquez’s position on the East Austin Conservancy or that he was paid by that organization.
The motion and vote
Mary Kahle
After considerably more discussion, Commissioner Mary Kahle, who was appointed by Council Member Alison Alter, moved to issue a Letter of Admonition. “I think transparency is incredibly important, she said. “It troubles me this occurred over two years and involves multiple violations,” adding that it seems unlikely that Velasquez would inadvertently not list his board membership on the East Austin Conservancy.
Commissioner Michael Lovins, an appointee of Council Member Mackenzie Kelly, said, “I support the motion. We have three separate violations. Not disclosing membership on the board is weird. I’m troubled that someone who wants to have this power can’t understand (what’s required).”
Commissioner Sidney Williams, appointed by Council Member Harper-Madison, said, “The bigger issue is the level of diligence we expect all candidates should apply. I agree that transparency is important and this candidate did not live up to that level of transparency.”
The vote to issue a Letter of Admonition was supported by Commissioners Luis Soberon, appointed by Council Member Jose “Chito” Vela; Kahle; Amy Casto, appointed by Council Member Ryan Alter; Haksoon Andrea Low, appointed by Council Member Zohaib “Zo” Qadri; Lovins; and Williams.
Voting no were Commissioners Ed Espinoza, appointed by Mayor Kirk Watson; and William Ross Pumphrey, appointed by Council Member Paige Elllis.
Velasquez’s appointee to the commission, Alysa Nunez, recused herself from discussion and voting on this matter.
Perception of Espinoza’s conflict
Paige Ellis and Ed Espinoza
Espinoza was appointed to be a member of the Ethics Review Commission effective July 20, 2023. The fact that he is married to Council Member Ellis raised concerns about the appointment and his ability to impartially consider the complaint against his wife’s fellow Council Member Velasquez. Those concerns went unheeded.
The Bulldog emailed a question to him a week earlier to ask if he planned to participate in the Velasquez hearing. A day after the hearing Espinoza responded by email, stating:
“Thank you for your email. I could not respond sooner as I was advised not to discuss matters currently before the commission. Now that the matter is settled, I offer the following statement. This is the only statement I will offer.
“The question of recusal assumes that CM Velasquez expects favorability, whereas I assume that he—and anyone coming before the commission—expects fairness, and that’s exactly what I intend to offer.
“I believe it was appropriate to move forward with sanctions, which is why I seconded the motion to take action, though I also believe that corrective action taken by CM Velasquez was worth consideration.
“My position is that a letter of notification would be appropriate given that this was a preliminary hearing in which the respondent was not required to attend, and that a fair consideration of a letter of admonition should be reserved for an actual hearing, where the respondent would be present to defend himself, and with additional evidence to review.
“The matter is now settled.”
Aleshire’s take on Espinoza
At the Bulldog’s request Aleshire emailed a response to Espinoza’s statement:
“Mr. Espinoza seems blind to (and did not address in his comment to you) the conflict of interest upon which we requested his recusal. Because he is married to a Council Member (Ellis) who must get along with her colleague Velasquez, Espinoza’s participation in the hearing raises issue of whether he was addressing the issue objectively without outside considerations.
“His vote to reduce the sanction against Velasquez can be viewed as doing what was best for his wife’s relationship with Velasquez. The situation left the appearance that his vote was influenced by his marriage to the Council Member. It was a dilemma for Mr. Espinoza that would have been avoided only by his recusal. Since that was his first meeting of the ERC, perhaps, over time, he will grow into higher standards for what constitutes a conflict of interest or the appearance of a conflict of interest.
“As far as his vote to support finding that the violation occurred, he did so only after Velasquez’s attorney formally admitted that the violation occurred, after initially trying to defend it.”
Other council members sanctioned
Velasquez is the third current member of the Austin City Council to have been sanctioned by the Ethics Review Commission.
Natasha Harper-Madison
Natasha Harper-Madison was issued a Letter of AdmonitionDecember 18, 2019, under City Code Section 2-48(C)(2) for violations of:
City Code Section 2-2-7(A), which deals with the designated period for election fundraising,
City Code Section 2-2-7(F), which deals with soliciting or accepting contributions following an election, and
Article III, Section 8 of the City Charter, which deals with the responsibility of candidates to prevent campaign contribution violations.
The complaint alleged that she violated these provisions by accepting campaign contributions outside the designated campaign period for the 2018 election. The minutes state that Commission determined, and Harper-Madison agreed, that the violations occurred.
The Commission recognized that the violations may have been unintentional and directed her to be mindful going forward. The Commission recommended that she file corrected campaign finance reports for 2019.
Paige Ellis
Paige Ellis was issued a Letter of Notificationeffective December 14, 2022, for violation of:
Article III, Section 8 of the City Charter, dealing with limits on campaign contributions and expenditures, by accepting contributions over the contribution limit
Ellis agreed during a preliminary hearing that contributions over the allowable limit were accepted and not refunded during the same reporting period. The Commission advised that in the future refunds should be made in the same reporting period in which contributions that exceed the limit are received.
The Commission found no reasonable grounds to believe that a second alleged violation had occurred pertaining to Austin City Code Section 2-2-21, which deals with additional information required on all campaign finance reports filed with the City, by failing to include the occupation and/or employer for certain contributors.
It should be noted that when Ellis appeared before the Ethics Review Commission concerning this complaint December 14, 2022, the minutes of that meeting state that she and her “manager” Edward Espinoza appeared in person.
The Bulldog’s research located a marriage certificate in the Travis County Clerk’s online system showing that Ellis and Espinoza were married July 10, 2022, five months before their appearance in the preliminary hearing.
Commission chair pleased with accomplishments
Luis Soberon, who chairs the Ethics Review Commission, researched minutes going back through 2018 and located several other complaints against the City’s elected officials.
Jimmy Flannigan
In the same December 2019 meeting in which sanctions for Council Member Harper-Madison were approved (see above), the commission voted to confirm the chair’s initial determination that the commission lacked jurisdiction to consider a complaint against Council Member Jimmy Flannigan under City Code Section 2-1-24, concerning conflict of interest and recusal.
However, the complainant, Mackenzie Kelly, got her revenge a year later by defeating Flannigan in the December 15, 2020, runoff to win the District 6 council seat.
Delia Garza
In November 2020 the commission held a preliminary hearing on a complaint against Council Member Delia Garza filed by a city auditor for alleged violations of ethics and financial disclosure under Chapter 2-7, as well as standards of conduct. under Section 2-7-62. Two commissioners recused themselves from participating in the hearing and a motion to find reasonable grounds exist to find a violation and proceed to a final hearing fell one vote short of the six required.
Harper-Madison was on the commission’s agenda again in May 2021 for a preliminary hearing on a complaint alleging a violation of Section 2-7-62(B) involving ethics and financial disclosure. A motion to proceed to a final hearing fell short and the complaint was dismissed.
Steve Adler
Mayor Steve Adler drew a complaint over allegations of violating Chapter 2-7 for ethics and financial disclosure and Section 2-7-75 sworn financial disclosure statements. After concluding a preliminary hearing in March 2022, the commission voted to dismiss the complaint “because there were not reasonable grounds to believe a violation within the commission’s jurisdiction had occurred.”
Luis Soberon
“In my experience, members of the Ethics Review Commission with whom I’ve served do an exceptional job in considering the facts and law underlying each complaint without regard to who the parties might be,” Soberon said.
This story was updated at 12:58pm September 5, 2023, to link the Letter of Admonition issued to Council Member Jose Velasquez and the Order on the Preliminary Hearing held regarding the complaint against him.
Trust indicators: Ken Martin has been investigating local government agencies and officials in the Austin area since 1981. He founded The Austin Bulldog in 2009 and began publishing on the website in April 2010. You can reach him at [email protected].
The City Council’s Audit and Finance Committee spent less than 20 minutes this morning listening to and discussing a presentation by the City’s Audit Manager Patrick Johnson.
Council Committee members hearing the briefing were Chair Alison Alter, Vice Chair Leslie Pool, Mackenzie Kelly, and Ryan Alter. Vanessa Fuentes was absent.
Johnson presented a brisk overview of an 18-page draft auditof City’s responses to public information requests (PIRs), which concludes there’s a need “to adopt a more proactive and consistent approach to providing public information.”
The audit objective was to determine if the City follows open records laws and provides information in a timely and efficient manner.
Deborah Thomas
Deputy City Attorney Deborah Thomas said the staff is in agreement with recommendations and is forming a team to address the issues raised in the audit.
Basics of the City’s process
The Texas Public Information Act, aka Government Code Chapter 552, establishes the public’s right to obtain information about its government agencies, but also requires that some information be protected from release.
Members of the public can request public information from the City of Austin via email to [email protected], hand delivery, or through a website that uses GovQA software and accommodates requests to either the Austin Police Department or all other City departments (Cityside).
Each department has one or more employees designated as single points of contact (SPOCs) who receive requests, then collect, redact, and release relevant information to the public through the GovQA portal.
Requestors are sent an email notice when information is available, and must log in with an email and password (or create an account if they’re first-time users) to download it.
Overview of findings
The audit identified a need for more consistent training of the employees who process requests and better tools for redacting information that by law is prohibited from release.
The audit states the City is not proactive in posting fulfilled PIRs, frequently requested information, or information related to incidents of public intererst. Doing so would enhance the public’s access to information and reduce the need to file PIRs.
The audit reviewed public information websites for 10 other cities and found that 60 percent of those posted PIR-related information online. The City of Austin is not using a “trending topics” page for that purpose that’s part of the GovQA software system.
The City maintains an Open Data Portal but a survey of previous requestors showed that only 40 percent were satisfied with the amount of information posted. Requestors noted that information was often not what they were looking for or was outdated.
Online information about the PIR process is available only in English, despite the fact that 31 percent of residents speak a language other than English at home, and more than 11 percent speak English less than very well.
PIRs must be filed in writing but how a request is written can greatly affect the City’s response. The audit states the City can provide better transparency by engaging with requestors and helping them write better PIRs.
Between 2018 and 2022, the APD received 82,134 PIRs, while all other city departments (called “Cityside”) received 39,278 PIRs. The audit states, “Based on current staff, the Cityside allocates about 20 times more staff to process about half the requests as compared to APD.”
Searches for PIRs asking for electronic records depend on key words, which tools are used to find results, and who does the search. The City does not have consistent guidance on this.
When it comes to redacting information, 66 percent of SPOCs reported the need for additional training to identify the exceptions that require withholding information from release. APD staff members do not have the specialized tools needed to redact information from audio and video files.
Audit recommendations and implementation plans
The audit provided four recommendations and management agreed to each one.
Centralize management of all City public information requests to improve consistency of the city’s approach. By October 2023, a Joint Leadership Team will provide a single set of operational protocols, guidance, and training.
Devote adequate resources including staff and tools to fulfill public information requests promptly in accordance with applicable laws. A new text redaction tool has been acquired and tested, and will be provided in September. A review of all processes will be completed in January 2024.
Address internal processes by creating a standard operating procedure (SOP), train staff in using the SOP, monitor department performance, develop a plan to eliminate the APD backlog, and post the SOP publicly. These actions are to be completed between October 2023 and June 2024.
Manage public information to improve the user experience with the City’s public information request website, provide tips on how to write a request, and include a tool to translate information about the process into multiple languages. Explore the use of chatbot and links to data sets. Identify and post frequently requested information on trending topics. This is to be implemented by June 2024.
This article was updated 9:15am August 24, 2023, to correct the statute citation for the Texas Public Information Act and Deborah Thomas’s title: she is the deputy city attorney.
Trust indicators: Ken Martin has filed more than a thousand public information requests since founding the Bulldog in 2009—most of them with the City of Austin. He was represented by attorney Bill Aleshire in successfully suing the City of Austin twice in 2011 to obtain public information being improperly withheld. One of those lawsuits went to the Third Court of Appeals and resulted in a decision that personal email addresses that public officials use for public business cannot be withheld (redacted) when releasing those messages in response to a public information request (Case No. 03-13-00604-CV).
This article was updated again July 21, 2023, at 9:57am to add that the chair of the City’s Ethics Review Commission has determined the commission has jurisdiction to hear Daniel Llanes’s complaint against Jose Velasquez.
This article was updated again July 17, 2023, to add a detail about the Planning Commission’s vote to change zoning on the Borden Tract.
This article was updated at 10:21am July 15, 2023, to insert Council Member Velasquez’s response an hour after the story was published.
District 3 Council Member Jose Velasquez’s Statements of Financial Interests filed with the City Clerk reporting his activities in calendar years 2021 and 2022 did not list his connection to, and income from, the East Austin Conservancy.
That unreported connection surfaced when on June 1st Velasquez filed an Affidavit to abstain from voting and further participation in the City Council’s consideration of changing the zoning and future use for land known as the Borden Tract. Facts revealed in the Affidavit indicated that recusal was appropriate but revealed to those who examined the situation that he had omitted essential details from other sworn reports filed with the city clerk.
Daniel Llanes
Daniel Llanes on Friday filed a sworn complaint against Council Member Velasquez. Llanes is a longtime East Austin activist who currently chairs the Govalle/Johnston Terrace Neighborhood Plan Contact Team.
Count 1—Velasquez failed to list the East Austin Conservancy on his sworn Statement of Financial Interest as a source of more than 10 percent of his gross income in 2022.
His sworn Affidavit filed June 1, 2023, with the City Clerk to recuse himself from consideration of the Borden Tract request states, “Funds received from the business entity East Austin Conservancy exceed 10 percent of my gross income for the previous year.”
Count 2— Velasquez failed to list his sources of income on his sworn Statement of Financial Interest for 2021.
Counts 3 and 4—Velasquez was a director on the board of East Austin Conservancy from March 3, 2017, until at least March 28, 2022, according to records on file with the Texas Secretary of State. But he failed to list that board position on his sworn Statements of Financial Interest for 2021 and 2022.
Velasquez’s conflict stems from the fact that the East Austin Conservancy has partnered with the developer Endeavor Real Estate Group, which requested council approval for modification of the neighborhood plan and rezoning for the Borden Tract. The Austin Monitorreported June 13th, “Ten percent of the project’s units will be affordable and Endeavor will donate money to the conservancy for each market-rate unit.”
The East Austin Conservancy, which promotes housing affordability and economic diversity, was cofounded by former City Council Member Raul Alvarez, executive director of the Community Advancement Network, and Theresa Alvarez, CEO of the East Austin Economic Development Corporation.
All supporting documents were included in the 32-page complaint.
The legal secretary for the Ethics Review Commission July 21st notified Llanes’s attorney, Bill Aleshire, that the commission’s chair has determined that the commission has jurisdiction over the complaint against Velasquez. Meaning that the complaint will be scheduled for a preliminary hearing on a future date. Commission rules state, “The hearing shall be held within 20 working days of receipt of the complaint.” The complaint was filed July 14th, and the 20th working day would be August 11th.
Jose Velasquez
Council Member Velasquez did not respond to provide comments about the complaint based on Bulldog emails sent to his office and personal account, and voice messages left with his office and on his personal cell phone. He also did not respond to a text message Friday evening. Then an hour after this story was published he texted to say, “I was tied up with family yesterday. I will not be commenting at this time. But I thank you for the opportunity and for reaching out. Have a blessed Saturday.”
Austin City Code Section 2-7-99 states that an offense under this section “is punishable as a Class C misdemeanor” while Section 1-1-99 states such offense is “punishable by a fine not to exceed $500.”
Borden Tract details
The Borden Tract consists of 21.38 acres immediately east of the intersection of U.S. Highway 183 and East Cesar Chavez Street.
The property is owned by New Dairy Texas LLC and is used as a Borden Dairy facility, according to a 38-page staff report, which states, “Mixed Use land is appropriate for this location.”
Richard Suttle
Development of the tract was proposed by Endeavor Real Estate Group, represented by lawyer-lobbyist Richard Suttle of Armbrust Brown. He submitted an application for a neighborhood amendment a year ago.
A Visitor Sign-in Sheet maintained by the council member’s office, which the Bulldog obtained with a public information request, shows that Suttle and two others representing Endeavor visited with Velasquez April 27th. That was five weeks before Velasquez filed for recusal. Records show that Suttle communicated with Velasquez via text April 27th and April 28th, asking to “talk about Borden;” May 1st asking “If…you have a moment can we talk about Borden;” May 30th “1st reading on Borden? Visit?” to which Velasquez responded, “Yessir. I’ll give you a holler later this morning;” and June 8th, the last stating, “Conservancy signed.”
The Borden Tract proposal calls 1,400 condominium and apartment units, a 220-room hotel, 411,500 square feet of offices, 66,000 square feet of restaurant space, and 40,000 square feet of retail. The plan shows 95 percent impervious cover and a 120-foot-tall building along the adjacent roadway. Development would be scaled back toward the 43-acre Colorado River Park Wildlife Sanctuary that abuts the southern border of the tract. The sanctuary is situated between the Borden Tract and the Colorado River. Roy Guerrero Metropolitan Park sits immediately across the river from the sanctuary.
“The applicant proposes a mixed-use development to include commercial, retail, hotel and multifamily uses. The proposed residential use will provide additional housing choices for the City and the planning area,” the staff report states.
A traffic study is to be performed when the developer files a site plan, the report states, and water quality will be protected by compliance with the watershed ordinance. An environmental study would come later.
The neighborhood represented by complainant Llanes initially had asked the development be limited to 50 percent impervious cover, a building height of 60 feet, with a 50-to-100 foot buffer from the sanctuary. Llanes amended that in March 2023, saying in an email the contact team wanted building height limited to 75 feet and no more than 65 percent impervious cover.
Online records maintained by Travis Central Appraisal District shows the tract is owned by New Dairy Texas LLC consists of four parcels totaling 21.383 acres with an aggregate market value of $28,605,482.
The proposal would change the tract’s future land use designation from industry to mixed use. The Planning Commission approved staff’s recommendation for the change by vote of 13-0 March 28th. Although an additional vote to change zoning on the tract passed 10-3, Commissioners Awais Azar, Grayson Cox, and Jennifer Mushtaler voted against it.
Council acts without Velasquez
Susana Almanza
The development was strongly opposed, including in public comments made at the council meetings of June 1st and June 8th. Susana Almanza, director of PODER (People Organized in Defense of Earth and her Resources) and a two-time council candidate, spoke there and also wrote an earlier letter opposing the action, calling it “racial capitalism” that would exploit and oppress the poor and people of color.
Christopher Brown, cofounder of the Colorado River Conservancy and a nearby homeowner, opposed the development too. The staff report included his statement that approval would “…permit a Domain-like project along one of the city’s best preserved natural areas—the Colorado River below the Longhorn Dam.”
But not everyone was opposed to the development. The staff report includes letters from several nearby property owners in support of the project, including John Scott, owner of Central Machine Works; Richard B. Hull; and Vijay Mehra of Viamar Properties LLC.
Participants in a press conference held May 31st to protest plans for the Borden Tract included the Govalle/Johnston Terrace Neighborhood Contact Team, PODER, Sierra Club, Save Our Springs Alliance, and Austin Neighborhoods Alliance. At that rally, Llanes said the development “will instantly overwhelm the bottleneck transportation access infrastructure, from 500 trips to more than 21,000 trips per day…, the Austin Monitor reported.
Despite opposition—and without the participation of the council member in whose district the project is located—the City Council voted 7-0 June 1st to approve on first reading a motion to approve the change in zoning and future land use. Velasquez was recused. Mayor Kirk Watson and Council Members Alison Alter and Natasha Harper-Madison were off the dais,.
On second reading June 8th the council voted 7-2 to approve the change in zoning and future land use on second reading with Velasquez recused. Council Members Alison Alter and Vanessa Fuentes voted no after voicing concerns about the neighborhood’s council member being out of the action. Council Member Leslie Pool was off the dais.
Fuentes said, “It is my hope that the applicant works with the neighbors on the concerns that they have raised…There is no vote in solidarity with the neighborhood.”
Alter said, “Typically I strive to be attentive to the voice of my colleagues on land use and decisions in their district. I may not always defer, but I largely trust each of us to be stewards for the constituents we were elected to represent. Ten-one (geographic representation) was established precisely to provide for community voice and representation, particularly for those who felt their voices hadn’t been heard under our old system.”
The council will consider the matter for third reading and final approval at its July 20thmeeting.
Why file a complaint?
Llanes told the Bulldog, “The Borden case was the litmus test for Velasquez regarding supporting and protecting District 3 Neighborhoods against gentrification, displacement and exploitation—and he failed.
“We filed the complaint because we saw Velasquez’s recusal as a backdoor deal to give him political cover to keep him from supporting the neighborhoods, and his recusal further enabled the systemic racism through zoning that East Austin has endured. His recusal illustrated the undue political, unethical and financial control developers have over City Hall.”
Bill Aleshire
The complaint was filed on Llanes’s behalf by attorney Bill Aleshire. (Disclosure: Aleshire represents The Austin Bulldog in matters concerning open records requests.)
“The bottom line is that Jose Velasquez has not disclosed source(s) of income and board membership in his financial disclosure forms for 2021 or 2022,” Aleshire said. “What is clear is that Velasquez failed his first test to represent the people of District 3 and the test for transparency in identifying where he got money while he was running for the office.”
Velasquez was elected to the District 3 seat in a December 13, 2022, runoff against Daniela Silva.
Action up toEthics Review Commission
The Borden Tract decision will soon be decided—without the involvement of the council member who represents the district it’s in. But that same council member will come under close scrutiny from the commission that must deal with the complaint against him.
The City Clerk has five working days to provide copies of the complaint to the city attorney, commission chair and the respondent.
Within five working days of receiving the complaint the commission chair must make a determination if the matter is within the commission’s jurisdiction. If it is not, then the chair will notify the parties in writing.
If the complaint is within the commission’s jurisdiction the chair must set a preliminary hearing to occur within 60 days, although it may be postponed on request of the complainant or respondent.
The purpose of the preliminary hearing is for the commission to determine whether there are reasonable grounds to believe that a violation occurred within its jurisdiction. Both complainant and respondent have the right to attend and be represented by counsel. At the conclusion of the preliminary hearing the commission decides if a final hearing is warranted.
Commission bylaws require the affirmative vote of six members to hold a final hearing. As the Bulldog reported June 12th the Ethics Review Commission held a preliminary hearing on two sworn complaints with just six members present out of the eight appointed, and the motions to hold final hearings failed on votes of 4-2 and 5-1 in favor.
Council Member Paige Ellis appointed William Pumfrey June 8th so the commission now has nine appointed members and two vacancies. Mayor Watson and Council Member Velasquez have been in office since early January but have yet not made appointments to the commission. There is an item on the July 20th council agenda to appoint members of city boards and commissions but nothing about specific appointments.
A final hearing must be held within 60 days of the preliminary hearing approval unless postponed for good cause. Both parties must attend the final hearing, although the commission may proceed if the respondent fails to attend. Parties must testify under oath.
If the commission determines that a violation of a provision subject to criminal penalty has occurred, a copy of its findings would be sent to the complainant, the respondent, and the city attorney. The commission may recommend prosecution or list actions needed for voluntary compliance.
Trust indicators: Ken Martin has been investigating local government agencies and officials in the Austin area since 1981. He founded The Austin Bulldog in 2009. You can reach him at [email protected].
Trust indicators: Ken Martin has been investigating local government agencies and officials in the Austin area since 1981. He founded The Austin Bulldog in 2009 and began publishing on the website in April 2010. You can reach him at [email protected].
ARB attendance sub-par—Although 73 people have been appointed to serve on the ARB, in actual practice the ARB is operating with 49 full-time equivalents, Travis ARB Chair Craig Phifer told the board. “We’re coping, we’re using single-member panels when people agree to it (instead of the usual three-member panels that conduct hearings) and a lot do.
Between 2018 and 2022, the APD received 82,134 PIRs, while all other city departments (called “Cityside”) received 39,278 PIRs. The audit states, “Based on current staff, the Cityside allocates about 20 times more staff to process about half the requests as compared to APD.”
