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Open and Shut

Council members hope they've closed the door on their Open Meetings legal troubles. Trouble is, that won't be the end.

By Mike Kanin, Fri., Oct. 26, 2012

Open and Shut
Illustration by The 'Chronicle' Art Staff

Sometime before the Sept. 27 Austin City Council meeting, someone put a lockbox over the thermostat in council chambers. It was inevitable. For months, Mayor Lee Lef­fing­well had been engaged in a guerrilla war to keep the place at what felt like nearly absolute zero. His leading adversaries were reportedly Council Members Kathie Tovo and Laura Morrison, who would nudge the temperature upward whenever they got a chance. Apparently, some climate-defending staff member got the word – the lockbox secured a resolution that sets official room temperature for council at what is said to be a comfortable (under the circumstances) 71 degrees.

Construction authorization for Water Treatment Plant 4 this is not. Nor is it the long-awaited – and much debated – Austin Energy rate increase. Nor any of a host of charter amendments headed for this year's general election ballot that could remake Austin city government. Nor an economic development agreement with Apple, a headline-grabbing bond package, nor some massive public infrastructure agreement.

What it is, is how things are. Indeed, the members of the Austin City Council have managed – despite remarkable constraints – to get something done over the past two years. They just haven't been able to really talk with each other.

This – as everyone who follows local politics will remember – is thanks to a strict interpretation of state open government rules brought on after a coffee chat between local real estate investor and activist Brian Rodgers and Council Member Chris Riley in late 2010 allegedly produced more than just the conversation about running for public office that Rodgers requested. When Riley, in the course of describing a typical week's work, let slip that members would have round-robin discussions of issues pending before the body in advance of council meetings – a fact presumably self-evident, since most member-generated items are sponsored by two or three members – Rodgers filed a formal complaint with County Attorney David Escamilla, alleging that such meetings might create so-called "walking quorums."

Escamilla promptly began an investigation into possible violations of the Texas Open Meetings Act. The effort was stoked by the efforts of journalist Ken Martin, who (tipped by Rodgers) broke the story on his Austin Bulldog website, and who – along with former county judge and attorney Bill Aleshire, also the Bulldog's lawyer – contends that serious, systemic violations of the Texas Open Meetings Act had been perpetrated by a collection of City Council members over a period of at least 14 years. Late last week, news broke of a settlement that saves Escamilla from having to prosecute, as much as it saves council members a trip to the clink (see "Escamilla's Deal").

A Deafening Silence

For two years, under the shadow of the ongoing investigation (interviews, documentation, email and notebook reviews, etc.), in an effort to prove that City Council members are doing their level best – and perhaps beyond – to comply with open government rules, council has instituted a series of new protocols, including regular Tuesday work sessions and the carefully public discussion of just about everything that it takes to run a city. One could argue that the investment in staff time required to keep city officials hanging out in the back of City Hall as they wait for their items to be addressed at Tuesday and Thursday public meetings is simply a never-changing side-effect of their jobs. What it also costs in terms of time-wasting and inadequately considered decisions is simply impossible to estimate.

Bill Aleshire
Bill Aleshire
Photo by Jana Birchum

But any regular City Hall observer, even of those same meetings, can see how enforced silence has driven wedges between council offices and council members. At its worst, the new City Hall paradigm has also brought with it confusion about agenda items, and at least one less-than-fully informed vote on a potential city-altering piece of legislation. Down the road, it could lead to a major change at the top of the city's legal department.

Even with this week's settlements, there is no end in sight for the dramatic changes that have reconfigured how city government works – or, now, some might argue, doesn't work. The Chronicle spoke with 12 current and former city staffers who are familiar with the workings of Austin government. Four agreed to speak on the record after being promised anonymity. For one of them, the difference in life before and life after Brian Rodgers can be measured simply in information – or rather, the lack thereof: "Council members would have to meet [publicly] all day, every day, to have the kind of detailed information and understanding that they used to achieve." Concluded another: The Open Meetings case has done nothing more than "scare good people who are trying to serve their city."

Don't Ask, Don't Tell

Early August was a brutal ride for council. They were working to set what would become an enormous list of ballot and bond questions for the coming November election. The Aug. 2 council meeting was the first regular opportunity for members to conduct formal votes together after their annual summer hiatus. It presented a long agenda of action items, including a major change to the way that the city orders watering restrictions during a drought, a pro forma approval of the petition to place single-member City Council districts on the ballot, a neighbor-opposed move to grant Home Slice Pizza an outdoor music venue permit, and what turned into a lengthy public hearing on the proposed short-term rental ordinance. In a recently standard pattern, the meeting ran late, until just shy of 12:30am Friday morning.

In addition to that meeting and an Aug. 7 work session to set the city's portion of the 2012 ballot, members were also scheduled to consider budget issues in an Aug. 15 work session – sandwiched between a regularly scheduled work session on Aug. 14, and another council meeting on Aug. 16. There were also two work sessions – one on the budget and one of the normal Tuesday variety – set for the days before the Aug. 2 meeting, and finally, the meeting where they actually set the bonds on Aug. 18. About the same time, deliberations were additionally complicated by the unexpected absence of Bill Spelman, suddenly absent for treatment of a pancreatic tumor.

Nearly lost in the maelstrom was an item passed unanimously on Aug. 2 that placed a charter amendment on the November ballot that would put the majority of city employees under civil service rules. If approved by the voters, the measure would establish a civil service board that would oversee, among other issues, disciplinary appeals for the city's civilian workforce. It passed after only brief discussion.

Since the proposal arrived in the middle of a hectic period, it would be understandable if council members were not able to focus all of their attention on the issue. That is one reason council aides used to have regular meetings; they could share information about what each office was doing in order to get a better handle on what was coming – and the potential implications – and pass that knowledge on to their bosses. Those meetings seemed a key catalyst of good City Hall working relationships, not to mention better decisions. They also facilitated exploratory conversations – the sort of talk that would better inform offices about what, exactly, an item like the civil service amendment might mean for their employees.

But the city's attorneys have ruled such meetings out-of-bounds, because they might indirectly constitute "deliberations" under the terms of the Open Meetings Act – and it appears such an interpretation will remain in force going forward.

Brian Rodgers
Brian Rodgers

On Sept. 21, I contributed to an online In Fact Daily story that reported a general lack of understanding about the civil service ordinance that council members had passed. Several council offices declined comment – effectively avoiding having to discuss what they had voted for. Mayor Leffingwell told In Fact Daily that he had some "concerns about the process. ... 'I wish I knew more about it, but I don't,' he said, when he was asked to explain the part of the ordinance referring to hiring and promotions." The In Fact Daily report continued, "Lef­fing­well has made no secret of his support for the civil service law."

That's one item among the 100 or more on the average agenda, and an informed look at the past two years in council agendas raises questions about how much else might have been missed. Though council members and their aides can talk with staff about agenda items, key city employees no longer drop in for detailed regular discussions about staff items on the agenda. This reportedly had already been a fading practice under the supervision of City Manager Marc Ott, who prefers to channel staff information through his office. Escamilla's investigation put a stop to most of these informal discussions entirely – and barring council insistence, it seems unlikely they will resume following the settlement.

Council members can still ask staff about items brought by their colleagues – such as the civil service item – but there is no guarantee that city staff will know any more about a proposal by one of their colleagues than they do. Yet no single member, nor office, can hope to be familiar with all of the dozens of proposals under consideration at any given time – members used to be able to rely on their colleagues to specialize in matters less familiar to everyone else. But getting more information about an item from a fellow council member becomes increasingly difficult under Open Meetings restrictions. A strict adherence to those rules – as is now enforced by city legal – prevents any elected official from talking with a quorum's worth of their colleagues (even in sequence) away from the dais.

For Austin City Council members the magic number is three – one short of a quorum. And that applies cumulatively. If Laura Morrison wants to talk with Bill Spelman about an item on the agenda, she'd better be damn well sure that she's not already spoken with more than one of her colleagues, and that Spel­man is similarly in the clear. Of course, for that addition by subtraction to work, they would have probably had to have talked with their fellow electeds already. The result? Council operations, post-Rodgers, were described by one anonymous source as "flying blind."

In a statement issued last week, former Council Member Randi Shade, who came to her own settlement with Escamilla last summer, defended her original intentions. "My communication with Council colleagues, City staff, and citizens was to stimulate critical thinking and gain the broadest perspective possible on a subject matter, not to conspire to circumvent the Texas Open Meetings Act or hide anything from the public," she wrote.

In the Land of the Blind

The concept of openness is a founding principle of U.S. government. Every state in the U.S. has some version of an Open Meetings law. But not every state has the sordid history of official corruption – "traditional and periodic," says our state's Historical Association – that belongs to Texas. Indeed, after the Sharps­town stock fraud scandal of the early 1970s, the Legislature moved in 1973 to overhaul its Open Meetings legislation, called the Texas Open Meetings Act, which had been passed originally just six years earlier. (Note: The Legislature regulary exempts itself from many of its most onerous restrictions.)

Ever since, the law has withstood legislative tinkerings and legal challenges to become what may be the most blunt-force instrument available (in conjunction with what has become the Public Information Act, also passed in the wake of Sharpstown) to the population of a state where distrust of government forms a hefty portion of one's cultural inheritance. The most recent victory for the law came in late September, when the New Orleans-based U.S. 5th Cir­cuit Court of Appeals upheld TOMA in a suit brought by a handful of politicians from several Texas cities – including Alpine and Arlington – who argued that the state's meetings rules infringed on local electeds' freedom of speech. Alpine Daily Planet reported that the court ruled that TOMA "promotes the disclosure of speech and does not restrict it."

Chris Riley's discussion with Brian Rodgers in 2010 started the ball rolling
Chris Riley's discussion with Brian Rodgers in 2010 started the ball rolling
Photo by John Anderson

This is the conundrum. In promoting the disclosure of speech, as the court put it, TOMA is careful to limit how elected officials talk to each other. "The advice that attorneys routinely offer local elected officials also shows that TOMA restricts speech," wrote Texas Municipal League attorney Scott Houston in a brief filed as part of the Alpine case. Though the New Orleans court didn't buy that argument, it's easy to see how it plays out at City Hall. Indeed, every one of the city employees consulted for this story offered some version of events that echoed Houston's brief.

Beyond your standard face-to-face conversation, these limitations have been extended in recent years to include electronic communications: emails, and also Face­book and Twitter. At least as far as interpretation is concerned, city legal staff have cautioned council members against engaging in certain common social media practices, even though the Legislature has yet to redefine TOMA in the context of the Internet.

That brings up another issue. The City Attorney's office has, by all accounts, been exceedingly cautious in its interpretation of TOMA. Though that might be the strictest – and, therefore, safest – approach, some wonder why it hasn't been more aggressive in defending what was, until the Rodgers complaint, the status quo. To keep Escamilla happy, one source said, "they've been staying straight in line" – at least, when they can find that line. Multiple sources confirmed that city legal opinions are a matter of ... evolving policy. Indeed, shifts in instructions about how council members and their respective staffs can interact reportedly come often. Sources say that the effect is one of overall confusion. Said one: "Most of the time, I don't know if what I'm doing these days is legal. I just have to hope that common sense rules the day."

For their part, when asked about the Alpine case, the city's legal department was careful. "We are aware of the outcome in this case, but it does not alter our daily practices," city legal said in an email response delivered by city spokesperson Samantha Park. "Our City Council follows the letter and spirit of the Texas Open Meetings Act."

The response reflects the traditionally defensive position taken by city legal staff. (Some of this caution, no doubt, stems from the administrative fact that City Attorney Karen Kennard and all of her assistants answer to City Manager Marc Ott, creating an awkward situation that extends well beyond the Open Meetings struggle. Council members – who each had to hire their own defense attorneys during the Open Meet­ings spectacle – are dissatisfied enough with this arrangement overall, as to ask local voters for the permission to directly hire and, more pertinently, fire their own City Attorney.) The caution is nevertheless understandable. TOMA violations come with criminal penalties – up to six months in jail and a potential $500 fine – not to mention the probable end to one's political career. And the City Attorney's office is, after all, charged with acting in the best interests of Austin's residents – interests that include the relative transparency of governmental operations. Besides, Open Meet­ings by definition (and practice) demand caution and careful adherence to procedure.

Nevertheless, Escamilla was critical of the procedures followed in this area by the city administration. "Over the course of this investigation," the settlements read, "it has become a concern that the organizational structure, internal culture, and professional development of the city of Austin's management, including the city manager's office and city legal department, was not conducive to facilitating proper understanding and adequate training to ensure compliance with the Texas Open Meetings Act."

Bulldog Bites

Still, questions remain about whether there's a conflict between the letter and the spirit of the law. Though Riley's chat may have reflected what might sound like potential TOMA violations, the very thorough media investigation that followed produced only the sort of stuff that is superficially embarrassing – shit-talking on the dais, a few politically improper thoughts. It was enough to force a public apology or two, but nothing out of the reams of documents acquired by the Austin Bulldog through public information requests bore the mark of secret conspiracy – that is, final decisions made about items before votes were cast on the dais. Multiple sources maintain that no vote counting was ever indulged in by any council members before a council meeting. For Ken Martin, that isn't the point. "The law requires that you post public meetings and that you not discuss public [matters] in private," he says.

Bill Spelman
Bill Spelman
Photo by Jana Birchum

To illustrate the problem, Martin refers to a restaurant analogy he says is used by Aleshire: "We were getting the meal, but the public is entitled to go back into the kitchen to see how the meal was put together." But does that mean that when the restaurant's not open for business, the cooks aren't allowed to brainstorm recipes or suggest ingredients, and are instead confined to silence? Sounds like a menu doomed to mediocrity, or worse.

Martin cites multiple attorney general opinions and court cases that have, he notes, upheld both TOMA and the criminal penalties associated with its violation (the most recent of these would be the Alpine case). In the wake of his articles, Martin says, there has "absolutely" been change at City Hall. He points to an executive session called just after he broke the story, at which council members effectively ended one-on-one and two-on-one meetings that had been in question. And there may be more to come – Martin and Aleshire remain the key parties in a lawsuit that would force city officials to produce emails from personal email accounts. Though City Council members have voluntarily handed over some personal emails, their private legal representation maintains that they are under no obligation to do so.

Martin suggests that if a ruling on the personal email question is issued, it would have the effect of clarifying TOMA on the matter, and would open the personal email accounts of elected officials across the state. This would prove a major victory for Martin and Aleshire, and, they would argue, a major victory for public access to government deliberation. Already, breaking the story has had an added bonus for Martin and the Bulldog. "It put us on the map," he admits. "I got more tips, maybe more contributions." But he quickly pivots to what he considers the broader issue. "It was good to be able to reveal some wrongdoing on the part of government."

The Price of Silence

Public concern over potential governmental conspiracies – warranted as it may sometimes be by the shadiness of Texas politics – can overshadow a boring truth about government: To function at all, it requires constant information flow and discussion, and such discussion does not automatically constitute an Open Meetings crime. As the political lean of the United States is pulled more and more toward the right hand fringe – the portion of the spectrum that is most fraught with fears of "big government" – this reality often gets lost.

In sum, the unfocused suspicions of a conspiracy on the part of members of the Austin City Council to rig votes are probably more fantastic than the real, boring truth. Even Martin, whose Bulldog enterprise got a bump from his reporting on the matter, seems more focused on the apparent impropriety of acts, rather than the motives behind those acts. Intentions matter – and nearly two years of a county attorney investigation, as well as the available documentary record, have failed to reflect any other intention underlying council members' workplace discussions than a desire to perform the public's business as well and as thoroughly as possible.

Nevertheless, in the wake of the Great Open Government Scandal, Austin city government has undoubtedly changed. Martin would say it's for the better. City staff argue that the result of his investigation – and Escamilla's more toothy one – makes, in the words of one source, for "bad government." Whatever the case, the outcome – and the new protocols that accompany it – will not likely change with the apparent resolution of Escamilla's case. And a successful result for Martin's suit could well result in a further chilling of documented communication: If you were a public official whose every email – including those sent from your personal account – was subject to public information laws, would you ever write anything down?

"We made better decisions when we were talking to each other in private than we do now," bluntly concluded Spelman. But Spelman, who maintains that neither he nor any of his colleagues violated the Open Meetings Act, does not believe that in the aftermath of the Rodgers complaint smooth information exchange at City Hall has to come to an end. He suggests that eventually council members will figure out a way to transplant the meetings that they used to have one-on-one on to the Open Meetings procedure at City Hall. At least, he hopes that will happen.

By contrast, one source suggests that the already testy atmosphere at City Hall could turn even uglier. "We want people to participate in government; we want good people to work in government," the source said, "but we hold this standard that is almost impossible to achieve."

The source was referring to the contradiction embedded in this entire controversy: Good people aren't likely to go to work for a system that is burdened with suspicion, and is consequently dysfunctional – no matter if that was the intent of the people who designed TOMA. Martin insists, "The point of government is not to be efficient, it is to be open." That's a common argument, but it confounds ends with means – one might counter, the point of government is to promote the general welfare, and openness as well as efficiency are both necessary means to that end.

Now that the formal investigation is officially concluded, perhaps some sort of balance may yet prevail at City Hall.

In the meantime, at least the air temperature in council chambers is a bit more comfortable.

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