City Hall Hustle: Absence of Evidence Is Not Evidence of Absence

Though Mayor Lee Leffingwell is a big South by South­west booster, we doubt he caught any Interactive panels this year.

"They have a lot of bytes in 'em, those advertisement-type things," the mayor said of spam e-mails he and City Council members had been receiving lately. "That seems to be on a real increase."

The council's e-mail habits arose again in this week's Tuesday work session, during a briefing on "municipal policies and practices as they relate to open government issues." That capped the week's latest developments in the ongoing open meetings fracas: the release of overlooked additional e-mails from Leffingwell, the continued absence of messages from Council Member Bill Spelman, and ongoing grandstanding from assorted media outlets, the Austin Bull­dog and Your News Now (formerly Channel 8) chief among them. And as the weeks pass in Travis County Attorney David Esca­mil­la's investigation into whether council's nonquorum gatherings constituted a violation of the Open Meetings Act – and talk continues that he might punt a decision by taking the matter to a grand jury – the Hustle's increasingly jaded take on the situation has him wondering, just what is the end game?

There was no headline-grabbing sniping in the latest cache of messages released by Leffingwell, but in the pathetic state of affairs this "controversy" comprises, the absence of proof is itself proof. A particularly through-the-looking-glass interpretation of one message came courtesy of YNN, which highlighted an e-mail from the mayor to a city commission member that noted, "I'm not copying all others on this because I think this e-mail, if there are responses among Council Member[s] to a quorum of members, violates the Open Meetings Act." On the surface, that acknowledgement simply looks like Leffingwell was 1) following the law and 2) being polite to those left off the list. But to the 24-hour local news station, it "shows Mayor Lee Lef­fing­well was aware of how his messages could violate the Open Meetings Act." By that standard, I had better never report that murder is a crime, since – according to YNN – on its face that's evidence of criminal intent. (Arrrgh! Too late!)

Not to be outdone, the Bulldog posted over the weekend an announcement of the newsletter's willingness to drop its lawsuit against the city, should the city agree to offered terms: having council members go through their personal e-mails, texts, and instant message conversations to turn over anything that might be city-related. The city (and six of seven members) declined, and the offer to settle was withdrawn. This latest salvo from the Bulldog's Ken Martin came a few days after Martin had finally gotten around to challenging Spelman over his lack of e-mail disclosures, and the revelation that city-related messages possibly sent on professor Spelman's UT e-mail account wouldn't be released by the university without an attorney general opinion.

Considering the howls of protest that went up when Mayor Pro Tem Mike Martinez's initial e-mail cache was deemed insufficient, it's interesting that the sparse release of e-mails from Spelman's office has finally become an issue – because he voted the "right" way on high-profile issues like the Nathaniel Sanders II settlement, Water Treatment Plant No. 4, and other topics the Brian Rodgerses, Debbie Russells, and Linda Curtises of the city deem appropriate. (The Better Austin Today "report card" on the council lists exactly two votes of the hundreds taken over nearly three years.) That's the myopic group of obstructionists to which Martin's reporting is increasingly, exclusively speaking. (Literally: See, for example, the Bulldog's March 7 report on Curtis' plans to kill single-member districts an eighth time, by designing and balloting an expanded version certain to lose at the ballot box.)

All of which, again, has me wondering, just what is the end game? Not for the Bulldog, for which the pursuit has seemingly become an end in and of itself, but for the original complainant, Brian Rodgers of ChangeAustin. At first, ChangeAustin tried tying the issue to its call for SMDs, but it's frankly hard to see that connection – are more council members less likely to want to talk to one another? Another theory suggests that the campaign's hoped-for result is to reveal a WTP4 e-mail or two – so persistent opponents can make the legal argument the plant was approved secretly, and those votes should therefore be nullified. That would go a long way toward explaining the witch-hunt fervor surrounding the e-mails; the absence of a smoking WTP4 or Sanders message must mean those are hidden somewhere else – in a personal e-mail, in a text, or in an instant message! (Comically, the extended narrative begins to look increasingly like the nationwide hunt for Barack Obama's birth certificate.) Finally, it's council campaign season – whatever the substance, a stick with which to beat incumbents will not be laid away before May 14.

Meanwhile, there's real work to be done. At council's Tuesday meeting, Martinez recounted how council members' attempts to work with constituents – while under legal pressure to avoid direct discussions – have resulted in unintentional duplication of efforts. "Then we find out the other office is working on it," said Martinez. "We have to be able to communicate in that regard to get the best policy outcome. I find it very difficult for us to get the best policy outcomes without communicating."

Leffingwell urged rapid action on some of the proposals presented at the Tuesday briefing – such as improved e-mail archiving, refresher courses on open meetings issues, and more. But if he thinks that will placate the crowd marching on this crusade, good luck.

For this week's agenda, see "Council's To-Do List."