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Open meetings saga winding down without prosecutions

Thursday, October 18, 2012 by Jo Clifton

Six current members of the Austin City Council and one former member have signed or are in the process of signing agreements with County Attorney David Escamilla that will end Escamilla’s pursuit of allegations related to possible violations of the Texas Open Meetings Act.


Although there are different recitations in each of the seven agreements relating to incidents or practices that Escamilla and his staff might pursue, each has at its heart a promise from Escamilla not to file charges so long as he believes the Council members are currently complying with the Open Meetings Act and the Public Information Act.


The episode has been costly in terms of treasure and, for at least former Council Member Randi Shade, politics. The Austin American-Statesman reported that as of June, Austin has spent $344,000 on private legal advice. According to information shared with In Fact Daily, personal legal costs for individual Council members could exceed $10,000 each and possibly go much higher. Since no charges were filed, each Council member can now ask the city to reimburse him or her for those expenses.


Shade lost her Place 3 seat to Kathie Tovo in the wake of the scandal. Tovo has not been involved in the investigation.


Each Council member and Shade has agreed or is in the process of agreeing to waive the two-year statute of limitations for prosecution for 25 months. If Escamilla finds that any of them have broken the Open Meetings law going forward, he can use evidence of alleged wrongdoing from as early as April 2010—evidence the Council members provided to him under subpoena.


Escamilla has agreed that if Council continues on its current path and adheres to the Texas Open Meetings Act there are no further plans to prosecute the Council members – Shade, Bill Spelman, Mike Martinez, Sheryl Cole, Lee Leffingwell, Laura Morrison, and Chris Riley.


The issue has been simmering for nearly two years. It was first raised by local activist Brian Rodgers after a “friendly” meeting he had with Riley in December 2010. Rodgers, who was interested in running for a Council seat, asked Riley for his insight into how the body worked.


Riley told Rodgers, in part, that he and his colleagues would hold one-on-one and two-on-one meetings with each other about the agenda. Rodgers then filed an open meetings complaint with Escamilla’s office.


This was subsequently confirmed after the Austin Bulldog‘s Ken Martin requested reams of emails from Council members. Under the Open Meetings law, Texas elected officials cannot have any discussions about government business in numbers that would equal a quorum. For the Austin City Council, a quorum is four.  But it looked like Council members were participating in what has been called a “rolling quorum,” which is when official business is discussed through a series of calls or private meetings outside officially called Council meetings.


Shade provided In Fact Daily with a statement via email. “I never knowingly conspired to circumvent the Texas Open Meetings Act, and over this past summer I entered into an agreement for deferred prosecution in an effort to put the investigation behind me,” she wrote.


The former Council member’s statement is a lengthy one. In it, she reminds the public that the “practice of Council members meeting with one and other on a regular basis was routine for many years” before she began her stint on Council. Shade notes that she became the first Council member to post her calendar on the city’s website.


Shade also touches on a point that has echoed throughout City Hall as Escamilla’s investigation continued. “My          communication with  Council colleagues, City staff, and citizens was to stimulate critical thinking and gain the broadest perspective possible on a subject matter, not to conspire to circumvent the Texas Open Meetings Act or hide anything from the public.”


Although members of City Councils have routinely discussed agenda items among themselves for at least the last 40 years without being accused of violating open meetings laws, the allegations from Rodgers caused the county attorney to look more carefully at those private meetings than anyone has previously.

One of the big problems was that the Leffingwell team set up regular meetings on a schedule, first one-on-one with each Council member and then—for efficiency’s sake—two-on-one with the Mayor. Some Council members kept notes of those meetings and Escamilla subpoenaed those notes as well as calendars and emails that reflected what he perceived as a pattern of meeting in groups of less than four in order to avoid the appearance of violating the quorum law.


And every Council member attended at least a few of those meetings, just as their predecessors have done for decades. That is long over. These days, one council member may talk to another on a specific topic, but there are no regular meetings between three members. And there does not appear to be anything like a regular rolling quorum.


As a result, the Council holds work sessions, which were instituted after the group learned they should not meet in private about agenda items. Animosity and misunderstanding is much more on display now than before.


Leffingwell released the following statement: “I’m happy that this process has finally concluded and determined that there were no violations. As always, we will continue to uphold the highest standards of transparency at City Hall.”


Spelman spoke with In Fact Daily late Wednesday night. “Of course, I’m happy that none of us will be charged. It’s good to have that behind us.


“The better news is that this may help us change the subject. In addition to cooperating with Mr. Escamilla’s well-meaning inquiries, the Council and the city staff have had to spend thousands of hours over the last year and a half defending against ‘gotcha’ journalism and conspiracy theories. With the end of the county attorney’s investigation, perhaps we can all turn our full attention to governing a great city, and solving problems like traffic, housing and jobs.”


Cole told In Fact Daily, “I’m pleased to be working amicably to resolve these issues without any violations of law.”


Martinez said, “I have always been committed to open government and transparency. When concerns were raised about the way that City Council was doing business, we took proactive steps to change our policies and procedures, along with guidance of the county attorney, to ensure that we were conducting business in a transparent fashion.


“The compliance agreement is an extension of that continued process.  In reaffirming my commitment to open government and transparency, I thank the county attorney for assisting us with improving our processes at the City of Austin.”


Morrison and Riley failed to respond to In Fact Daily in time for publication. However, Riley sent us this statement early this morning: “I’m glad to have this matter resolved. Our city government should always be open and accessible, and these agreements reflect our shared commitment to making sure it stays that way.”

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