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County attorney releases deferred adjudication documents

Thursday, October 25, 2012 by Michael Kanin

Travis County Attorney David Escamilla Wednesday released the text of agreements his office struck with seven current and former Austin City Council members concerning their alleged violations of the Texas Open Meetings Act.


In exchange for signatures on the document, Escamilla’s office offered Council members deferred prosecution, an arrangement that leaves the county attorney with the option of bringing the seven cases to trial if the county determines that further violations of the Texas Open Meetings Act have occurred during the next two years. 


The case has served as an operational turning point for Austin city government, which began to make changes as soon as Escamilla indicated that his office would investigate a citizen’s complaint about Council members inappropriately meeting in private. Current Council members Bill Spelman, Laura Morrison, Mike Martinez, and Chris Riley, as well as Mayor Pro Tem Sheryl Cole and Mayor Lee Leffingwell have all signed agreements with Escamilla. Former Council Member Randi Shade, who lost her seat in 2011 in the wake of the open meetings issue, completed a deal with Escamilla last summer.


In signing the documents, the current and ex-members of Council agreed to a brief statement about their culpability in the case: “Had this case been presented in a court of law, I would have submitted as my defense, and I still so maintain, that it was never my intention to circumvent the Texas Open Meetings act.” This statement is as indicative of the situation as any single statement made in the past few days.


For Escamilla, a conviction may have been difficult. For Council members, a trial would have been a disaster.


In a statement released along with the other documents, Escamilla said, “I feel a responsibility to state, unequivocally, that this was never an investigation into corrupt practices. There was never even a hint that any of the City Council Members were involved in self-dealing, nor was there any evidence that any Council Member was engaging in these deliberations in order to benefit a friend or political supporter.”


Though each set of documents contains information specific to each Council member, they are based on a general template: A detailed list of open meetings act violations followed by a set of factors considered by Escamilla and his staff. Also included is a startling rebuke of city management and Austin’s in-house legal department.


“Over the course of this investigation, it has become a concern that the organizational structure, internal culture, and professional development of the City of Austin’s management, including the City Manager’s Office and City Legal Department, was not conducive to facilitating proper understanding and adequate training to ensure compliance with the Texas Open Meetings Act by members of the Austin City Council,” it reads.


TOMA prevents elected officials from discussing any matter in a group that constitutes a quorum. That limitation can be applied either directly or cumulatively. There are also legal prohibitions against any purposeful attempt to circumvent the act’s application.


The practice of unofficial communication between Council members dates back decades. The process was eventually formalized to include regular one-on-one discussions about agenda items. Under Leffingwell, Council members began meeting in two-on-one sessions for the sake of efficient communication. 


Though one-on-one meetings are, by TOMA definition, legal, the quorum portion of TOMA makes the logistics of those discussions difficult. The two-on-one meetings would make discussion virtually impossible. While four constitutes a quorum of the seven-member Council, the series of unofficial meetings appeared as if Council members were participating in what has been called a “rolling quorum.”


Many key issues of the past few years feature prominently in the recitations. Water Treatment Plant #4 made an appearance with ties to a conversation conducted over private email between Shade, Martinez and Leffingwell about the need to pressure Riley and Cole in an attempt to “prevent the postponement” of a vote on the facility in November, 2010.


Multiple issues associated with the police shooting of Nathaniel Sanders also surfaced. Shade wrote Leffingwell, Martinez and Riley about how the city should respond to a lawsuit brought by Sanders’ family. Leffingwell also admits to talking to every Council member aside from Chris Riley about the release of the Keypoint Government Solutions report that followed that organization’s investigation of the Sanders shooting. City Manager Marc Ott’s delayed release of the report brought a wealth of backlash from the media and concerned residents.


According to a statement issued by the county attorney along with the signed documents, deferred prosecution is a typical method of disposal for Open Meetings cases. “As TOMA experts have reported, actual prosecutions of TOMA are rare and difficult to prove,” reads the statement.


However, though it is legal for a prosecutor to release deferred prosecution agreements, they usually do not. Escamilla told In Fact Daily that this case was different. He said that he decided to release the documents “so everyone can have a better understanding of what the law requires and the level of compliance at City Hall.”


As part of the deal, Council members agreed to reform their deliberation practices and, indeed, many of the changes were in place before the agreement was recently announced. These changes include: regularly scheduled work sessions, the forwarding of private emails to public accounts and ending regular one-on-one agenda meetings.


Escamilla’s announcement caps a nearly two-year process. He notes that the extended nature of his effort was thanks to several factors. “It was a comprehensive investigation involving seven different primary suspects and all of their individual communications,” he said.


According to Escamilla, the County Attorney’s office also had difficulty securing the documents they needed to move through the investigation. This came thanks to lapses in the city’s public information process, which has also since been revamped.


The resolution of the case brings this all to a close – at least for now. Last Wednesday, Council members and Shade spoke with In Fact Daily about the then-pending agreement. As we reported then, they all appeared ready to move on (see In Fact Daily, Oct. 17, 2012).


To see these agreements: Mayor Lee Leffingwell, Mayor Pro Tem Sheryl Cole, Council Member Mike Martinez, Council Member Laura Morrison, Council Member Bill Spelman, Council Member Chris Riley, former Council Member Randi Shade.

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