With a Possible Update to the Texas Open Meetings Act, Former Council Members Recall Local Scandal
How a TOMA misunderstanding changed Austin politics
Sometime soon this session, the Legislature will send to Gov. Greg Abbott an update to the Texas Open Meetings Act (TOMA) to reinstate provisions, struck down by the state's highest criminal court, governing "walking quorums" – serial private meetings of public officials that allow them to make decisions that should by law be done in public. Lawmakers will be proud of themselves for having done so, for "government transparency" is a sacred shibboleth among reporters and politicians alike – even (or especially) among those who routinely meet privately, make political and policy agreements privately, and reflexively count votes privately. "Hypocrisy," as La Rochefoucauld mused centuries ago, "is the tribute vice pays to virtue."
This would be of mere academic interest to Austinites, except that it was specifically this provision – one that the Texas Court of Criminal Appeals in February dubbed unconstitutional – that entangled seven City Council members in apparent violations back in 2010-12. None of those members remain on Council or directly involved in city government (only one currently holds elected office), but the scandal left its mark on City Hall – adding fuel to already fiery policy debates and influencing subsequent elections and the cascade of changes that, over this decade, has brought us to the 10-1 system of today. The need for a TOMA do-over at the Capitol offers an occasion to reflect on how, or if, the whole affair has led us to govern ourselves better.
The Court Is Not Amused
On Feb. 27, the Court of Criminal Appeals ruled that the law in question – Sec. 551.143 of the TOMA statute – is "unconstitutionally vague," in a case where Montgomery County commissioners had met privately with a lobbyist concerning a bond campaign. Writing for the 7-2 majority, Presiding Judge Sharon Keller described several scenarios in which an official might engage in communications that would inadvertently violate the law, concluding the provision "lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our own judicial views. This we decline to do." ("High Court Turns Back Open Meetings Act," March 8.)
Sen. Kirk Watson, D-Austin, and Rep. Dade Phelan, R-Orange, responded just before this session's filing deadline with identical bills (Senate Bill 1640 and House Bill 3402) to update TOMA. Said the senator, "We want to remove any ambiguity, and also make it easier to understand for the public officials subject to it." The new language is definitely simpler; TOMA would now forbid "knowingly" communicating with another official outside a public meeting on a public matter, while understanding that the communication would eventually lead to a forbidden quorum. SB 1640 passed the Senate unanimously last week.
Austin attorney Randall "Buck" Wood, who helped draft the original law in 1973, was consulted on the language carried by Watson and Phelan. "I don't agree with the original [CCA] decision – they never should have held that it was unconstitutional," Wood said, holding that an "as applied" challenge specific to the Montgomery County case would have been sufficient. "But this fixes the vagueness issue." (He also said that whether an official has "knowingly" engaged in forbidden conduct would be a courtroom "proof question.")
The question of foreknowledge or intent also loomed large in the Austin City Council's walking-quorum scandal. Following a complaint from activist Brian Rodgers, Travis County Attorney David Escamilla opened an investigation of Council for TOMA violations in 2010. Nearly two years and one election cycle later, the seven members of that 2010 Council signed deferred prosecution agreements*[see Note below] with Escamilla, who alleged they had created illegal walking quorums by regularly meeting with each other (and communicating via text or email) to discuss Council business when not on the dais. Despite their "honest disagreement" over Escamilla's interpretation of TOMA, the Council members in these agreements pledged to avoid such practices in the future, on pain of prosecution. ("Open and Shut," Oct. 26, 2012.)
The "1-on-1" and "2-on-1" sessions – none involving four or more members, and thus not a quorum of Council – were typically used to prepare for Thursday public meetings, a practice they had inherited from prior years and Councils. To this day, former Mayor Lee Leffingwell, Mayors Pro Tem Sheryl Cole and Mike Martinez, and CMs Laura Morrison, Chris Riley, Randi Shade, and Bill Spelman all insist they never discussed votes, nor even staked out specific policy positions – but under the law, these "deliberations" needed to be carried out in public.
"No Deliberate Attempt"
Cole is now in the Legislature, and Morrison unsuccessfully challenged Mayor Steve Adler in last November's election; the rest have remained in private life. Recalling the episode in conversations with the Chronicle, all expressed mixed judgments about Escamilla's investigation and the CCA's ruling. All said it caused considerable personal stress (and legal expense) at the time, during an investigation that was very public and lasted nearly two years.
"There's no chance of forgetting it," said Leffingwell, who added that he welcomed the court's ruling in order to clarify what he described as a "gray area" in the law. "This notion of the 'rolling quorum' was always hard to define." Like his former colleagues, Leffingwell emphasized that there was never any intention to violate the law. "We were doing what Councils before us had done" – including those presided over by then-Mayor Kirk Watson (1997-2001) – and CMs routinely listed their regular "round-robin" meetings in their public calendars.
Leffingwell described the court ruling as "kind of common sense," but said "working out the actual language" of any amendment is a task best left to the Legislature's experts. Whatever the final version, he said, "It needs to clearly allow members of legislative bodies to communicate, but not to conspire or to take secret votes." Leffingwell also believes that in practice, the limits on background conversations undermined effective governance. "It was detrimental to the legislative process – once the investigation began, we were floundering around there. The only safe course of action was not to talk to anybody."
Among the CMs involved in the investigation, Morrison most strongly defended strict rules limiting private deliberations. "I know there were difficulties in terms of interpretation," she said, "and it's terrific that it's going to be clarified. ... I heartily support all deliberations being held in public." Her 2018 mayoral campaign raised the issue against Adler, charging that he relied too often on backstage negotiations on matters like the McKalla Place soccer stadium and attempts to regulate Uber and Lyft.
Morrison acknowledged that TOMA requirements can make governing "clumsy and inefficient," but said that's "a trade-off to ensure that we have integrity in our policymaking, and in how the public is allowed to be involved. ... Otherwise, there are way too many situations that can become versions of 'why are we even here' [for the public meetings], because it's a charade."
Escamilla's investigation began after Brian Rodgers (who was considering a run for Council) had a lengthy conversation with Riley about Council service, including the rhythms of a typical Council week, in which Riley described the 1-on-1 and 2-on-1s. Rodgers subsequently complained to the county attorney. Riley recalls that he was "taken aback by the sequence of events" and the rush to investigate what City Hall presumed was legal conduct. "I wouldn't say that I felt victimized," he said, "but we were already being very open about what we were doing, and there was no deliberate attempt to evade the law or hide anything."
In retrospect, Riley doesn't bear any "moral outrage" about what happened, "but it was certainly unfortunate that we had to go through that [investigative] process," as well as the impression delivered in some public quarters that they had intentionally broken the law. "The tone of denunciation – that we had been caught red-handed trying to get away with something nefarious – that was never the case." Like Leffingwell, he noted that neither legislators nor judges apply these TOMA rules to themselves. As the former mayor remarked wryly, "Legislators regularly count votes privately before their [public] votes."
The two disagree on whether the results in the Austin case were beneficial. Riley said the move to public work sessions and the online Council message board, both made in response to the scandal, have been productive additions to city government. "If we'd had that," he said, "it would have been a way to communicate with everybody." Leffingwell remains skeptical. "The new processes didn't make enough difference," he said. "It damaged the process going forward. There was always the possibility of a rolling quorum. ... It became a gray area for the rest of the time that I served, and we could not have free and open discussion with anybody."
A Weaponized Controversy
Bill Spelman, who served two separate stints on the Council (1997-2000, 2009-2015) alongside his professorship at UT's LBJ School of Public Affairs, recalls the episode with some self-deprecation. Riley had reportedly told Rodgers that the round-robin meetings did reveal some likely positions of his colleagues, but "nobody ever knows what Spelman is going to do." Spelman laughed at that memory, but continued, "Escamilla was justified in investigating, but there weren't any 'backroom deals.' We were just engaging in due diligence as legislators."
Spelman said the lengthy investigation did take its toll on the members ("We all lose our minds in those circumstances"), and they took it very seriously, while also taking extreme precautions to change procedures to comply with renewed TOMA restrictions. He said he has a lifelong habit of taking notes on everything, and handed over to Escamilla's team "probably 20 pounds of little notebooks." He's not sure what they made of his handwriting, but his settlement agreement (like others) acknowledges fairly casual use of email and telephone contacts among the members.
Among the policy matters discussed during 2009-2011 were such contentious issues as whether to move forward on building Water Treatment Plant No. 4 (now the Handcox Water Treatment Plant) and how to settle claims arising from the fatal 2009 police shooting of Nathaniel Sanders; members' email and phone discussions of those questions are cited in the settlement agreements. Spelman says he and his colleagues obviously should have been more careful, but that the "scandal" had as much to do with objections to the substance of such decisions as with the process underlying them. "It is true that we generally knew where we all stood on given issues," he said, "but we all reserved the right to change our minds. ... There's a long tradition of attacking on procedure, and that was clearly weaponized in that we all had our WTP4 positions in the background." Nevertheless, he added, "hashing all of these things out in public doesn't dissipate opposition, but does alleviate it."
Spelman and Randi Shade took opposing positions on building WTP4, but she strongly agrees that the TOMA controversy was "weaponized" to put additional pressure on members. (She recalls that Rodgers adamantly opposed WTP4.) She noted that members had directly "inherited" their 1-on-1 meeting schedules from their predecessors and argues that "Austin has never lacked for public processes." Plant opponents, she said, "wanted to find any way they could to undo" the initial decision to move forward, and one weapon became the complaint to Escamilla. As for email, she noted that smartphones were relatively new and people were only beginning to realize that informal exchanges among officials needed to be monitored and memorialized.
"The days of Council aides passing notes to their bosses," she said, "had quickly and haphazardly been replaced in the years I was on the dais with 'reply all' and 'send every Council Member a message now' buttons, text messaging, instant messaging, and several other new tools of technology used during and leading up to Council meetings." Knowing all this, Shade said, "I never felt that the public meetings were a charade. I never felt inhibited in asking questions, nor did anyone else. Those public meetings were definitely deliberative."
"They Should Have Known Better"
Sheryl Cole and Mike Martinez each expressed doubt that Escamilla's investigation was even necessary. "We were doing what previous Councils had done," Cole said, "and it would have taken one meeting [with Escamilla] to inform us that we needed to change our procedures. I was of the view if that had been Will [Wynn] or Kirk [Watson] in [the mayor's] office, Escamilla would have simply called him and said, 'Don't do that anymore.'" She recalled the stress and the expense "of hiring personal lawyers on $50,000 salaries," and said the investigation had "an extreme chilling effect" on Council processes.
"It did not have to be a problem," Cole said. "There was not one of us who wouldn't have done anything [Escamilla] asked to change procedures. ... It definitely could have been handled better."
Martinez said, "Transparency is always important ... and there was no conspiracy to hide deliberations from the public." He said the consequent changes to Council procedures were probably a good thing, although being unable to hold personal conversations "altered our working dynamic. But we had gotten caught up in a political discussion," Martinez said, "and those people pointing the finger at us were opposed to the potential decisions they thought we were going to make."
As to the CCA ruling or any amendments to the law, Martinez said, "My instinctual response is that having verbal communications should be allowed. Just because I was elected, I'm still also an American citizen with free speech rights." Asked his judgment of Escamilla's approach to the controversy, he said tersely, "For the record: I have no comment, public or private, about David Escamilla."
Escamilla continues to insist that he proceeded properly and was simply doing his job when he began the City Council investigation. "We determined that [the Council members] were meeting – every one of them – in 'round-robin' sessions that consecutively established a quorum." Although the CMs argued that they thought they were conducting themselves within the law, Escamilla responded with the aphorism, "Ignorance of the law is no excuse."
Escamilla also pointed out that the investigation considered not just TOMA's walking quorum provision (Sec. 143) but Sec. 144, which concerns other private communications and remains in force. "At least four of them were communicating by email with all the others," he said, "and that's also a violation." He said CMs cited advice from city attorneys, but the attorneys responded, "We didn't know they were doing that." He anticipates that the legislative fix will return certainty to the law, and walking or rolling quorums will remain illegal.
Escamilla echoed Buck Wood in wondering why the CCA didn't overturn the law "as applied" in the Montgomery County case, rather than declare it unconstitutional. For his part, Wood says that in pursuing the Council violations, Escamilla had proceeded exactly as necessary. Speaking of the Council procedures, Wood said, "I don't excuse any of it. They were determining the outcomes in numbers less than a quorum, [but] that became a quorum, and they should have known better. ... They should have raised questions about those procedures, but they didn't."
Shade was arguably the most directly affected by the investigation, which began in earnest in early 2011 as she (and Riley and Morrison) began their re-election campaigns. The high-profile issue was WTP4, on which Shade had been the deciding vote, which provided a ready-made issue to her main opponent, then-Planning Commissioner Kathie Tovo, who cited both the plant and some of Shade's more inflammatory emails (revealed by the investigation) in her decision to run.
Shade says now that her vote for WTP4 was vindicated by its crucial role in maintaining treatment capacity during the 2018 floods. "It turned out to be a dumb vote [for me] politically," she recalls, "but a smart vote for the public's well-being." Whatever the merits of the TOMA investigation – and she believes it was both clumsily timed and poorly handled by Escamilla – Shade also believes that subsequently "it was used as a political weapon to get me out of office." By the time Tovo defeated Shade in June 2011, construction had already begun on the plant, and Tovo (saying she would "support the public's investment") joined the Council majority to allow it to proceed.
As for the broader issue of transparency, Shade reiterated, "It's important to have public debate, and to encourage disagreement before the public. The votes themselves take place in the public forum. I took that really seriously. We all did."
"No System Is Perfect"
Today's Council is quick to confirm that nothing has changed in the wake of the CCA ruling; they are more accustomed to and comfortable with the new procedures – work sessions, message board, and subquorum limits – than were their predecessors. They have to consult each other regularly – to recruit the necessary four co-sponsors to place an item on the agenda, for example – but are wary of inadvertent violations of quorum rules. They describe a now consistent practice, reinforced by city attorneys, of "subquorum" memberships (no more than five members in all, often only four) that discuss policies under consideration by Council, and that may shift in their composition depending on the issue.
Mayor Steve Adler concedes that deliberating entirely in public "does not make for the most efficient government," in that it can produce misunderstandings and undoubtedly takes more time. "But there's a difference between private business and government," he said. "We have to place a higher value on transparency and public engagement."
In retrospect, Tovo repeated that the Council's private, "disrespectful" emails helped confirm her decision to run in 2011. But she recognizes that the entire episode was "extremely stressful" for those involved. "I felt badly for good people," she recalls. "It's a hard job, and people want to do the right thing, and serve the public – but those [communication] practices needed to change. ... It was a very difficult moment for the whole community." Tovo is the only current member to have served during the transition to current practices. "We were still figuring out how best to use the work sessions," she says, "and we spent a lot of time in executive sessions developing the best procedures. Same thing with the emails – we had to be very careful to maintain city communications in public ways, and to keep that separate from personal business."
CM Jimmy Flannigan, first elected in 2016, says having a larger number of colleagues makes it easier to avoid running afoul of the law. "Most of the time," he said, "I can't imagine having the time to talk to more than four other members." But he also said that in reading the CCA's opinion, he was struck by how many of Keller's ambiguous walking quorum scenarios echoed questions he and others had for city attorneys when they were being briefed on the law.
In sum, Flannigan said, "We're doing so many things all the time that it's very easy to know the limits of your subquorum. It changes according to the subject and depends on the complexity of the issue. And more often than not, I'm in a subquorum of members with whom I generally agree; and it can be challenging, otherwise. That's why the public needs to see this debate in the open, to see this deliberation."
Mayor Pro Tem Delia Garza said she was fortunate to inherit Laura Williamson, who served under Martinez, as a staff aide. "She knew exactly how we needed to proceed and made it clear that otherwise, we could be liable for criminal prosecutions." Under the current system, her staff tracks the subquorum lists and situations, with even its own language – "Are you subquorumed out on this issue?" – with the message board as a fallback for communicating with all members and the public. "It's a little bit of an inconvenience," says Garza, "but I haven't felt caged by the rules. It's the right thing, it's the right law. The public should see the sausage-making, so to speak."
Adler said much the same, although he hopes the TOMA amendment will "true up" the walking quorum provision so everyone understands what's required. As things stand on Council now, he says, "When I walk out to the dais, I have no certain idea what a majority of the members will do." But that's "not a problem. ... It's more important to have a government that's trusted."
"No system is perfect," Adler says, "and under these rules, it's certainly harder to come to a consensus. It does make the operations of government messier and longer, and sometimes it looks less organized and less efficient. All those things are true. But it's the accepted cost or trade-off to maintain the public's trust in their government."
*Note: After publication, Lee Leffingwell has since pointed out that while it was common to describe the agreements signed by Council Members as "deferred prosecution" agreements, in fact they are headed "Compliance Agreements." Council members agreed to end the practices considered questionable by the County Attorney, "the result of an honest disagreement" over the TOMA law, and the facts. The agreement did not "constitute an admission of guilt," and Leffingwell added that the nature of the agreements meant the CMs were reimbursed by the city for their legal expenses. However, any violation of the agreements (within their two-year terms) could have led to subsequent prosecution.