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Council establishes rules for personal cell phones and email accounts

Friday, April 8, 2011 by Josh Rosenblatt

Moving forward with their plan to ensure more transparency in city government, the City Council took their first real step toward clarifying one of the more complicated areas of open records law yesterday: how to treat communications dealing with city business sent and received by city staff and officials on private electronic devices.


The issue has been a source of confusion for every Texas city government that has tried to tackle it, City Attorney Karen Kennard told Council. None of the other cities queried by staff – including Houston, San Antonio, and Fort Worth – have come up with policies regarding the use of private devices, personal email accounts, and social networking sites.


The issue has also been in the public eye after several members of the news media, under the state Public Information Act, requested copies of emails sent by Council members on official business. The process highlighted questions about just what emails sent from just what devices were official business and thus might be considered public information.


But at Thursday’s meeting, Council members approved a resolution concerning the use of cell phones and other private communication devices they hope will bring more clarity to city operations and ensure greater public access to government. 


The resolution, a heavily amended variation on a draft version presented by staff, states first and foremost that only city email accounts should be used to conduct city business but provides direction if circumstances require an official or employee to conduct city business on a non-city account.


In such a case, the resolution reads, “the official or employee shall promptly forward the associated electronic communications to a city account.” Once that happens, the communication will be subject to the Texas Public Information Act.


One of the most difficult considerations facing Council has been determining who would fall under the jurisdiction of any laws related to the use of private devices for city business. Should it be just Council members themselves? Or should Council aides, the city manager, and/or others be subject to the law as well?


The resolution passed yesterday will apply not only to the mayor and Council but also to all city employees directly appointed by the Council, including the city manager, the city clerk, the city auditor, the chief judge of the municipal court, and the municipal court clerk.


As for all other city workers, Mayor Lee Leffingwell wondered about the legality of Council adopting a policy that would apply to employees not directly appointed by, and therefore not under the jurisdiction of, Council.


Kennard told Leffingwell he was right to be concerned. “City Council, under the (city) charter, does not have the authority to apply personnel policies to city employees,” she said. “That authority is given exclusively to the city manager. So, in looking at the policy, we would have to have some language that recognizes that the charter gives that exclusive authority to the city manager.”  So, since Council aides are technically city employees hired by the city manager, they were not included in the policy.  


New language added to the resolution by Council at yesterday’s meeting directs the city manager to develop a policy regarding the conduct of city business on personal communication devices by all other city employees and to report his progress back to Council within 30 days.


The same directive is given to the city clerk concerning members of city boards and commissions with sovereign authority. Those bodies – such as the Planning Commission, the Zoning and Platting Commission, and the Board of Adjustment – can make final decisions about certain issues relating to land use and structures.


The resolution also directs both the city manager and the city clerk to work with the Communications and Technology Management Department to estimate the implementation costs of the policies developed as a result of the resolution.


Council approved the resolution unanimously, 7-0.

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