City Hall Hustle: Fault Lines

Accountability is a rare thing. In the person of retiring City Attorney David Smith, we have someone responsible for the unmitigated disaster of the KeyPoint investigation into the police killing of Nathaniel Sanders II, the city's untenable suppression of the report, and its embarrassing about-face in publicly releasing it.

But if accountability is an endangered species, the voluntary form is extinct. For even though Smith, in a memo to City Manager Marc Ott announcing his retirement, wrote he took "full responsibility for any mistakes we have made," Ott had left him basically no other option. At a quickly assembled press conference last week, Ott, speaking for an absent Smith (out on accrued vacation time until his June 19 retirement), said "there's no question that he recognized that I had some concerns, and I think that that weighed heavily in his decision." Those concerns, of course, regarded Smith's intransigent and ultimately unfounded opinion that the incendiary KeyPoint findings could not be released legally, creating fissures of protest that erupted into an avalanche of outrage and allegations of a cover-up when the report was leaked to the Chronicle and the Austin American-Statesman. (The delayed decision to release the report –revealing the abject intellectual bankruptcy of Smith's prior stance –prompted cracks around the newsroom that, by the city attorney's previous advice, a wave of mass arrests was due at City Hall any minute.)

While Ott's drop-kick of Smith is a welcome –and long overdue –move, it wasn't a selfless one. As we report this week (see "KeyPoint Questions Linger After City Admits Goof"), Smith's retirement came after Mayor Lee Lef­fing­well asked Ott to prepare "a detailed written accounting of city staff's decision-making process" with special attention not only on city legal's actions, but the city manager's as well. Whether Smith's sacrificial stance may have temporarily stanched the bleeding, judging by the city's newfound zest for transparency – and the biased scribblings of Lt. Paul Golonski, who disagrees with the KeyPoint findings – they shouldn't take down the triage station just yet.

Checkered Past

Smith's departure has prompted platitudes from officials and less guarded assessments outside city hall. Leffingwell said, "I respect his service to our community, and I wish him all the best." Meanwhile, the Texas Civil Rights Project, which had been suing the city to release the KeyPoint report, issued a statement calling Smith's retirement "a step forward. He has long substituted his own personal political judgment for sound legal advice to the city's leaders so that they can make appropriate decisions. We have been warning city council about this for a good while."

Indeed, Smith's record of murky advice dates back years. His involvement in the shady ouster of Bill Moriarty from the Aus­tin Water Utility –undertaken, Moriarty alleged, at the behest of contractors hungry for the multimillion dollar projects he oversaw at AWU's Clean Water Program – by authoring a since-discredited memo billowing out smoke but no fire set an early high-water mark. Since then, Smith and city legal have helped neuter council opposition to expanding the BFI landfill in the northeast; provided questionable advice in the North­cross Wal-Mart saga; daydreamt the concept that "programmatic powers" to develop city programs lie exclusively with the city manager, not elected officials; attempted to stonewall the Chronicle's investigation of corruption in the city's Fleet Services division; and issued a bevy of other creative legal interpretations.

In light of city legal's dubious track record –exacerbated at turns by its reporting structure of answering to the city manager, not council –now is the time to reconsider the way the office works.

The Cleanup Begins

Change has been contemplated before. As the reign of City Manager Toby Futrell began to unravel in 2007 amid allegations of overreach, the opportunity seemed particularly ripe. That summer, Statesman Editor Rich Oppel penned an editorial advocating four changes to the city charter to strengthen the mayor's office over the city manager's: give the mayor control of the council agenda, hire a budget analyst that reports only to council, grant greater independence to the city auditor, and name an attorney who reports directly to council, not the city manager. (It can now be told that the four recommendations went straight into Oppel's ear and onto the pages of the Statesman through one high-level City Hall operative who was mortified to see his recommendations, delivered on background, spelled out point by point.) Leffing­well and Mike Martinez made the case themselves a week later in their own Statesman editorial, saying the "modest reforms" they were proposing –the same four –were not a "rebuild" of City Hall but "a little remodeling."

Their fellow council members didn't exactly pick up a trowel and pitch in. When an item that would've allowed voters to decide whether council should appoint the city attorney in the 2008 city charter election came before council in late 2007, it failed on a split 4-3 vote, Leffingwell and Martinez joined only by Place 3 Council Member Jennifer Kim. Leffingwell said the measure, which would have appointed the attorney to a five-year term and required a council supermajority vote to end the term early, insulated the attorney from political whims and strengthened the council-manager form of government through targeted changes instead of scrapping the system altogether. But Sheryl Cole objected, saying: "I just believe that the city attorney should continue to report to the city manager. I am very concerned about our continued piecemeal disruption of the city manager form of government." (Postscript: While the city attorney measure didn't go to voters, the auditor measure did, passing handily. But only after the election did city legal inform council and City Auditor Steve Morgan that the measure to insulate his office from political interference meant he would have to resign his position and be reappointed anew, an insult that led to Morgan's resignation.)

As the KeyPoint imbroglio has borne out, having the city attorney report to the manager instead of council has done very little to depoliticize the office. All it did was grant the council plausible deniability –not a trait to seek in elected officials. With council already considering a post-census charter election to consider single-member districts, a realignment of the city attorney's office should also be put to the voters –so that the people we vote for –not the city staff –can begin to bear the brunt of "full responsibility."

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Michael King's "Point Austin" will return to this space June 11. For more City Council news, visit the Daily Hustle at austinchronicle.com/tdh.