Point Austin: Hall Monitors Needed

If a council quorum is now two, maybe chaperones are in order?

Point Austin
"'If council members talking about an issue is a violation [of the Open Meetings Act], that's just silly,' said [former City Council Member Roger] Duncan, who said the practice of face-to-face meetings dates at least to his days as a council aide in 1975."

Austin American-Statesman, Jan. 30

At the risk of being accused of pedophilia by proxy or worse (see "Postmarks"), I'm going to wade once more into the bristling controversy over City Council and the Open Meetings Act. I began by citing Roger Duncan, not only because I think he states exactly the level of real public consequence here, despite all the uproar – it's just silly – but also to help squelch the conspiratorial notion that council's drift into the Dark Arts began only a decade ago, under the Evil Lord Kirk Watson. But don't blame Duncan for my opinion, which is that electing seven people to set policy for a city of more than 750,000 and then telling them they're not allowed to speak substantively to one another except in public is not just preposterous on its face and a misreading of the law; it's a recipe for bad government. That doesn't mean it won't prevail – indeed, I fully expect the eventual outcome of the dispute to be some sort of clumsy compromise that imposes a few more burdensome public rituals on what in fact has been, for the most part, effectively democratic, representative government.

There have been a few developments since last week. With the county attorney's review in progress, council has ended its small-group sessions to prepare for public meetings, and Mayor Lee Leffingwell has reinitiated the public work sessions that serve somewhat the same function, but with more formality and less opportunity for real discussion. (The first one is occurring as I write.) The city has hired outside attorneys to handle the review, understandably, since its own attorneys had long advised that the small-group meetings were within the law. And as the David Escamilla review proceeds, the Austin Bulldog has been posting the full interviews with council members that form the substance of the story – the Bulldog's Ken Martin began those after Brian Rodgers' allegation that Chris Riley had told him council votes were predetermined in advance of public meetings (which Riley has repeatedly denied, including in his Bulldog interview). The interviews are interesting reading; I highly recommend them.

The Council Presents

Meanwhile, I've gotten plenty of response to last week's column, some of it supportive, some vividly opposing. The most substantive of the latter was from former Travis County Judge Bill Aleshire: ostensibly a letter to me but since (I've been told by others) "distributed to everybody in the five-county area" (letter posted here).

It takes Aleshire half a sentence to confirm his ironic nickname of Mr. Understatement: By disagreeing with him and others, I was "spitting on" them. But he does neatly summarize the argument that any "deliberation" of any kind, by any council members, must occur in public – an interpretation that would effectively establish a quorum of two. As Aleshire sees the current practice, "All of the Council members (not just a quorum) have been participating in a deliberate 'template' (a 'standard process') to secretly deliberate with each other (all of them) on the issues until they basically work out their differences, and then they put on a show, a rehearsed Kabuki theatre, for the public."

That would be alarming – except, neither the public evidence nor the Bulldog interviews support Aleshire's caricature. He does cite the most damning passage from Mike Martinez: "I think the meetings are important and we do talk about where our differences lie. If there are some strong feelings and strong differences, the time to air those out and figure those out are in our one-on-ones and not necessarily on the dais." Yet as Martinez and other members (the Sheryl Cole and Chris Riley interviews have since been posted) repeatedly tell Martin, they don't make decisions at these meetings and members don't necessarily learn their colleagues' specific positions. There is essentially no evidence of the dreaded "walking quorums." (Or as Bill Spelman told Martin, "We surprise ourselves all the time.")

Riley seems baffled at Martin's questions, and explains: "That's not what those meetings are about. Those are about the sharing of information. They're not about securing agreements." Cole is even blunter: "You never know how somebody's going to vote until they vote. You just don't. ... If you did, that would just be a miracle." (All make exceptions for big issues – e.g., Water Treatment Plant No. 4 – that have been debated publicly for months or years and on which everybody's position is well-known.)

Most often, they say, a member exchanges information about a city issue or project with another member who knows more about something else. To demand that all that necessary, shared work proceed always in public, where everybody speaks (and is spoken to) formally, is not just cumbersome – it's counterproductive to good public policy.

We're Watching You

Aleshire complains I ignore the law forbidding members to "knowingly [conspire] to circumvent [the law] by meeting in numbers less than a quorum for the purpose of secret deliberations." Yet however this turns out, it's clear that the members were attempting to obey the law by small-group meetings and acting with the advice of city attorneys. If Aleshire's view prevails, at what point will permitted "ad hoc" conversations now become forbidden "secret deliberations" – when one member attempts to explain to another why she might want to co-sponsor a heretofore mysterious resolution? Maybe City Hall parietal rules will become like those for freshmen dorms, circa 1966: "Keep one foot on the floor, and the door open at least six inches."

Moreover, there is nothing in this Orwellian standard that would prevent a member from meeting privately for hours with a private citizen – say Rodgers, or (choose your villain) Richard Suttle or Bill Bunch – and absorbing that singular perspective. He or she just won't be permitted then to consult an actually elected colleague, to get another and likely broader view.

I'm told commissioners court proceeds under this rigid Open Meetings Act reading – if so, it helps explain why the court's public proceedings are often factionalized and incoherent, or worse. With no ongoing collaboration on projects, there's little incentive for commissioners to review matters not of their direct interest, and none for those that concern another precinct. Escamilla is a county attorney, so it hardly bodes well for the outcome of the legal review. Given the mayor's recent statement that even a perception of illegality should redirect council procedures – I suspect we're headed in the direction of more public meetings, less common ground.

And I don't see how that will benefit either the council or the city.

Follow Point Austin at www.twitter.com/PointAustin.

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City Council, Bill Aleshire, Roger Duncan, David Escamilla, Austin Bulldog, Brian Rodgers, Chris Riley, Mike Martinez

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