Austin Library Department has no evidence of problems with signature gathering until CodeNEXT crackdown
Investigative Report by Ken Martin
The City of Austin cannot document a single problem with petitioners gathering signatures around public libraries going all the way back to 2006.
That is, not until IndyAustin’s CodeNEXT petition drive was accelerating earlier this year.
What had never before been a problem suddenly became a problem.
It all started with a phone call on Thursday February 15, 2018. It was just a heads up call to notify the library administration that petitioners would be at some library locations on Saturday February 17.
The courtesy call was reported to higher ups and then orders rolled down to branch managers to prevent soliciting customers on library property.
That Saturday a petitioner at the Spicewood Springs Branch refused to stand where library personnel told him to stand, because it was not a place he could ask people to sign petitions. Police were called and the petitioner was issued a criminal trespass notice.
That same day petitioners at the Hampton, Howson, Manchaca, and Twin Oaks branch libraries also were asked to leave. Some did, some didn’t but no others were slapped with criminal trespass notices.
On election day March 6 petitioners were asked to leave the Howson and North Village branch libraries, both of which were polling places.
On March 7 a petitioner at the Central Library was issued a criminal trespass notice.
On March 8 Austin attorney Bill Aleshire of Aleshire Law PC, representing his client IndyAustin, issued a cease-and-desist letter to the City over the Library Department’s actions. (Copy linked at bottom of this story.)
Aleshire’s letter cited Article IV of the Austin City Charter regarding Initiative, Referendum and Recall. Section 1, The Power of Initiative, states: “The people of the city reserve the power to direct legislation by initiative….”
“We contend that based on the people’s reservation in the Charter of their right to initiative petitioning, the Council and the City Manager lack authority, by ordinance or administrative rule, to interfere with petitioning anywhere unless the petitioning interferes in government operation or causes a threat of public safety.
“In other words, unlike other forms of free speech the Council may be able to restrict to reasonable ‘free-speech zones,’ petitioning for an initiative is an exception—a power reserved by the people of Austin—that City Council and staff have no authority under the Charter to interfere with.”
(Disclosure: Aleshire has represented The Austin Bulldog in two public information lawsuits against the City, both of which succeeded in obtaining information being improperly withheld.)
City Attorney Anne Morgan responded to Aleshire March 9 and said the two criminal trespass notices were being rescinded and the Library Commission would take action to revise the Library Use Rules.
Now, going on nearly four months later, the process of revising the library rules is still underway. The matter is on the agenda for tonight’s Library Commission meeting. The meeting is scheduled to start 6pm at the Spicewood Springs Road Branch at 8637 Spicewood Springs Road.
The Commission is scheduled to hear a report from its working group on library rules for petitioning. The working group is headed by Commissioner Catherine Hanna, an attorney with Hanna & Plaut LLP, and includes Commissioners Valerie Bogucka and Aimee Finney.
Library Commission Chair Chad Williams said in a phone interview that he’s not sure the working group will have a recommendation ready at this meeting. Hanna did not respond to phone messages seeking comment for this story.
Williams said city staff has tried to identify an area at every branch location where petitioning would be allowed but the layout of various branches would not permit areas to be enforced equally from branch to branch.
“Library staff would have to find designated locations at each branch to put petitioners close to people coming and going,” Williams said. He said rules are needed so petitioners can’t harass people and will leave people alone if they don’t want to sign. “That’s the direction we’re going in.”
Meanwhile, people leaving the Central Library the morning of June 21 encountered two young women standing immediately outside the north entrance. They were asking passersby to sign yet another petition, this one calling for an Austin Efficiency Audit. For details about that petition see The Austin Bulldog report of May 25. 2018.
The City’s current position
The Austin Bulldog asked for a comment from Morgan and instead a City of Austin spokesperson responded in an email as follows:
“The City’s rules on the use of City property were adopted in September of 2015, in response to court opinions that arose from the Occupy Austin movement and similar movements around the country. Individual City departments have also been able to adopt rules that address specific issues in their facilities. The Library rules were put in place in early 2017. They provide that the outside grounds of libraries are not designated for 1st Amendment activity.
“It appears that no criminal trespass notices or citations were issued to petitioners until February of 2018. That could be because no one attempted to petition. If other petitioners have attempted to gather signatures on library grounds after February 1, 2017, when the Library Use Rules went into effect, we are not aware of it. Or it could be because if an individual was petitioning, and subsequently asked to leave by a library staff member, the individual did leave, so no citation was issued. Or, it could be because no library staff noticed or dealt with the issue. We can’t be certain.
“What we do know is that in 2018, shortly after Library staff asked CodeNEXT petitioners to follow library policy, which stated that libraries are not public forums, this issue was elevated to the new city manager and the city took the opportunity to revisit the rules. The Library is in the midst of a rewrite of the rules and the Library Commission is working on them now.”
The problem is that these library rules, which were designed to deal with distuptive protesters, are being applied to people who are merely asking people to sign petitions.
Petitioner backers not satisfied
IndyAustin petition organizer Linda Curtis, who has spearheaded numerous signature gathering efforts over the past two decades, in a phone interview said, “I’m speechless and embarrassed for the library management because our public libraries are critical to the education of our citizens, including their political actions and rights. I hope they find a way to get their act together on the right to petition and freedom of speech.”
Curtis noted the right to petition is not a new thing, it’s in the City Charter, in which reserve the power of direct legislation by initiative, and protected by the Texas Constitution. Article 8 Section 8 which guarantees the right of free speech.
Attorney Bill Bunch, executive director of the Save Our Springs Alliance, personally gathered signatures for the CodeNEXT petition. He was asked to leave the Twin Oaks Branch on February 17 but stood his ground.
“The City doesn’t have any evidence that petitioning has been a problem,” he said in a phone interview. “It seems they should err on the side of citizens participating in the democratic process. It seems like they’re looking for a problem that doesn’t exist.”
Aleshire said in a phone interview, “My letter to Anne Morgan when this first started, I told her I thought it was content-based enforcement because the messages cited CodeNEXT and IndyAustin. Now you see they hadn’t enforced it before and that gives additional weight to interference with the CodeNEXT petition.
“This was unreasonable behavior on their part,” he said. “I’m glad I haven’t had to go to court over this. On the other hand, if they don’t resolve it we will go to court.”
No record of problems before CodeNEXT petition
What happened to cause this crackdown? Was it a longstanding practice to interfere with petitioners gathering signatures?
To find out, on May 9, 2018, The Austin Bulldog submitted a public information request for records of complaints filed with the City of Austin or any of its departments since January 1, 1997, regarding the conduct of petitioners exercising their rights.
The City responded May 22, 2018, to say its records of complaints, which the Library Department calls “Incident Reports,” date back only to 2006.
Further, the response stated that 25,488 incident reports had been filed in 2006 or later, including 660 so far in 2018.
Those numbers were absurd, given that the request asked only for complaints related to petitioning at libraries. According to The Austin Bulldog’s research of the City Clerk’s Election History website, only four measures got on the ballot due to a grassroots petition drive in 2006 or later. Those elections were held May 13, 2006; November 4, 2008; November 6, 2012; and May 7, 2016.
Given that pushback, Assistant Library Director Dana McBee told The Austin Bulldog that she personally went back and searched incident reports that had been generated within six months of those four election dates and found “no responsive information.”
McBee eventually provided 71 pages of records. Of those, only 17 pages contained anything about incident reports involving petitioners—a total of eight incident reports, all of which involved IndyAustin’s CodeNEXT petitioners this year.
Despite the absence of incident reports involving signature gathering in past years, McBee, in an interview after The Austin Bulldog had reviewed the records, was adamant in stating that the library policies had not changed and had always been enforced.
Chain of events documented in emails
Emails obtained from the Library Department show that Laura Carmona Polio, library department executive assistant, notified Sharon Herfurth on Thursday February 15, 2018, that Curtis had called to give notice that Indy Austin plans to be outside a few branch libraries on Saturday with CodeNEXT petitions.
“Linda stated that volunteers have been instructed on the rules where and what they are able and not able to do and she is available by phone if issues come up, so feel free to share her number with branch managers.”
Just after noon the next day, February 16, Herfurth, division manager in the Library Department’s Office of Programs and Partnerships, emailed library staff stating, “Several of you have been contacted by an organization called IndyAustin about being present on Saturday at your locations to collect signatures on a petition to force an election on CodeNEXT. She provided a link to an IndyAustin webpage.
Herfurth’s instructions stated IndyAustin is welcome to be stationed beyond library property boundaries, just not inside the library or in the library parking lot.
Herfurth’s email pointed to portions of the library rules that state the library is not a public forum and define “library” to mean any building or facility of the Austin Public Library, including the entrance ways and adjacent lawns, landscaping, and parking areas.
“A customer may not unreasonably disrupt the normal use of library services or property” or “distribute literature or otherwise solicit customers on library property,” her email stated.
No incidents before, so why now?
Because Herfurth’s email specifically mentioned CodeNEXT it is not unreasonable to question whether the decision to crack down on petitioners was content-based.
• The City has spent more than $8 million on the consultants working on CodeNEXT.
• The City Attorney on November 17, 2017, hired the Bickerstaff Heath law firm for legal advice as to whether the CodeNEXT petition should be put on the ballot. (The City Attorney’s letter hiring the firm is linked below.) That was just two months after The Austin Bulldog broke the story on September 12, 2017, that a petition drive had been launched.
• The Bickerstaff Heath law firm recommended that the CodeNEXT petition should not be put on the ballot. (The law firm’s recommendation is linked below.) That legal advice was provided February 12, 2018, about six weeks before the petitions were filed with the City Clerk March 29, 2018.
• A City Council majority voted not to put the measure on the ballot even though the city clerk had found the petition to be sufficient. This in spite of Article IV Section 4 of the City Charter, which gives the Council just two choices when it receives an initiative petition certified by the City Clerk to be sufficient: It can pass the ordinance or order an election on the next allowable election date to let voters decide whether to enact it.
• The mayor and five council member positions will be on the ballot November 6, when the CodeNEXT petition would otherwise also be on the ballot. The mayor and four of the five incumbent council members (all but Ora Houston) are seeking reelection.
Legal challenge seeks to get petition measure on the ballot
Although the City Council voted not to put the CodeNEXT measure on the November 6, 2018, ballot, a lawsuit has challenged that decision. Attorneys Fred Lewis and Bill Bunch filed a Petition for Writ of Mandamus June 1, 2018, in Nelson Linder et al v. The City of Austin et al.
The writ asked for an expedited hearing and seeks an order to put the measure on the November 6 ballot. The matter is now scheduled to be heard by Travis County District Judge Orlinda Naranjo July 2.
In this litigation, the City is represented by the law firm Scott, Douglas and McConnico.
City Attorney letter hiring Bickerstaff Heath for legal advice on CodeNEXT petition validity, November 17, 2017 (12 pages)
Library Commission Recommendation 20180521-5b: Rules for Petitioning/Signature Gathering at Library Branches, May 21, 2018
Library Use Draft Rules, April 23, 2018 (6 pages)
Library Use Draft Rules, May 21, 2018 (12 pages)
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