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Council tentatively OKs new private email rules

Wednesday, March 30, 2011 by Josh Rosenblatt

City Council made its first move toward creating new policy related to open government issues yesterday. By a 6-0 vote, Council directed city staff to come up with a rough draft of a resolution that would establish how Council members and other members of city government should handle emails and other communiqués sent over personal devices that deal with city business. Council Member Bill Spelman attended part of an earlier executive session but had to leave to teach a class before the vote.


The vote was the first legislative step taken by Council to address the concerns raised by Travis County Attorney David Escamilla’s inquiry into possible violations of the Texas Open Meetings Act. That inquiry, along with press requests for Council communications, has resulted in the city releasing hundreds of emails sent by Council members, some of them controversial and embarrassing.


On Tuesday morning, attorney Jim Cousar told Council that the purpose of his briefing was to “lay out prospective policy options” that Council could codify in the form of a resolution establishing how best to handle emails concerning city business received or sent on personal devices, such as computers and cell phones.


State law on the issue is not clear. “The attorney general’s view has been, if a public employee gets an email on his personal device dealing with public business, that should just be treated like public information, fully subject to the Public Information Act,” Cousar said. But, he continued, courts in the state have not always agreed with that assessment.


Cousar said staff had considered two approaches. The first – establishing a rule whereby city officials and city employees would simply not be allowed to use personal devices for public business unless absolutely necessary – would bring clarity to the issue but wouldn’t account for emergencies or situations where Council members might not have access to their city devices.


“Just saying it’s a general rule – do your city business on a city device – doesn’t solve the problem, but it’s a good starting point,” Cousar said.


Staff’s second recommendation involved instituting a policy whereby Council members would voluntarily forward emails dealing with city business from their personal devices to a city server, “where it then becomes subject to the Public Information Act,” Cousar said.


In order to make such a policy tenable, Cousar continued, Council would have to determine which city officials would be subject to it. “At the most extreme, a policy like this would (have) everybody in the city do that,” he said. “As a practical matter, you’re then making it difficult, expensive, and unworkable … a lot of (the staff) wouldn’t have anywhere to forward it to, and it just bogs down.”


Cousar suggested that Council focus on who is making policy in the city when determining who should be subject to such a law. “It’s in the public interest if (policy-makers) become subject to the Public Information Act,” he said.


Council members agreed with Cousar’s recommendation and approved a motion directing city staff to construct a rough draft of such a proposal for consideration at next week’s Council meeting. In the meantime, Mayor Lee Leffingwell said, “(w)e have a lot of options with regard to who this prospective policy would apply to. And I think that’s something we all need to think about, take into consideration, gather our thoughts, and be ready to have a fulsome discussion on that subject.”


A few hours later, Spelman’s office released three emails from his University of Texas account, an act consistent with the draft policy that had been discussed by Council that morning, an accompanying press release stated.


“While the policy is still under development,” the release reads, “Spelman said that he intended to forward all future city-related messages sent to his personal email account to his City of Austin email account.”


Spelman stressed that he released the emails – which include discussions about pre-kindergarten educational programs and a Formula 1 economic study – voluntarily and in the spirit of the new proposed resolution. “Our community demands and deserves an open and accountable government,” he said, “ and while this is a voluntary step, I believe it is the right thing to do.”


Also Tuesday, Council Members were busy hiring or considering hiring private attorneys to represent them individually in case Escamilla decides to take the Open Meetings question before a Travis County grand jury. Mayor Lee Leffingwell has hired Brian Roark and Council Member Bill Spelman has hired Wayne Meissner. Council Member Randi Shade and Mayor Pro Tem Mike Martinez were also talking with attorneys. Council Member Chris Riley, who is a lawyer himself, said he had not yet hired an attorney. Council Members Sheryl Cole and Laura Morrison, meanwhile, did not return calls.


According to a city spokesperson, the city has received more than 700 Public Information Requests since the beginning of the year.

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