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Explainer: Open Meetings and the new Council

Monday, February 16, 2015 by Michael Kanin

On their way to postponing an item that would have allowed Mayor Steve Adler to fund office staff positions via dollars raised by a 501(c)3 organization, Austin City Council members Thursday expressed a handful of concerns. As Kara Nuzback reported Friday, power imbalance and questions over whether the Texas Open Meetings Act would apply to what’s being labeled as a mayoral cabinet were the big ones.

The Texas Open Meetings Act (TOMA) questions in particular point to a much wider issue, one that was never really going to go away with the departure of the last Council.

Discussions of Open Meetings law and how it works are, of course, nothing new for the city’s legal department. Monitor readers will no doubt remember that, in 2011, then-Council members found themselves entangled in a complaint by civic activist Brian Rodgers that led County Attorney David Escamilla to conclude that what had been standard Council practice for years could in fact be a violation of TOMA.

On the heels of the Escamilla investigation, the last Council saw its conversation more or less cut off by what some saw as an overbearing interpretation of the rules. Still, for a few years, frustrated Council members and their staffs did their business, sometimes blindly (see above links).

The dais is now empty of Council members who had deferred prosecution agreements hanging over them. But what might be a chance to start fresh isn’t quite that. Indeed, despite what might have been easy campaign pickings over incumbents’ struggles with TOMA, the perception that TOMA rules, as interpreted locally, were overly harsh were only reiterated by their challengers.

During a runoff mayoral debate co-hosted by KUT, KLRU and the Monitor, then-candidate Adler noted that he felt the open meetings rules imposed on the former Council were “too restrictive.” Adler later added that, if elected, and if unable to come to an agreement with Escamilla over appropriate TOMA enforcement, he’d challenge the county attorney in court.

The concept of transparency in government, as this reporter wrote in 2012 in the Austin Chronicle, “is a founding principle of U.S. governance.”

Every state in the U.S. has some version of an Open Meetings law. But not every state has the sordid history of official corruption – “traditional and periodic,” says our state’s Historical Association – that belongs to Texas. Indeed, after the Sharps­town stock fraud scandal of the early 1970s, the Texas Legislature moved in 1973 to overhaul its Open Meetings legislation, called the Texas Open Meetings Act, which had been passed originally just six years earlier. (Note: The legislature regularly exempts itself from many of its most onerous restrictions.)

Ever since, the law has withstood legislative tinkerings and legal challenges to become what may be the most blunt-force instrument available (in conjunction with what has become the Public Information Act, also passed in the wake of Sharpstown) to the population of a state where distrust of government forms a hefty portion of one’s cultural inheritance.

In January, Escamilla made an appearance as part of Council’s ongoing crash course in city governance. Initial reports from the Statesman appeared to suggest that Escamilla would open with a looser interpretation of the rules. Initially, as Michael King wrote in the Chronicle, “several Council members came away from Escamilla’s disquisition with … [the idea that] they could privately talk policy independently with all 10 other members, as long as they didn’t transmit one member’s position to another.”

King also noted that this position changed, however, or was at least corrected (in the Statesman and perhaps on the second floor of City Hall) to result in “the common perception [that] … one Council member can talk to as many as four other members (a quorum is six), and those others can each talk to a different four, with the same proviso against passing along intelligence.”

And that’s where we appear to be, at least for now. There had been questions earlier in the week about whether the (c)3-funded positions would be subject to TOMA. To that, Adler was very clear Thursday: “All of these people [in positions funded by the (c)3] would be subject to the Open Meetings Act,” he said.

Still, questions over the interpretation of the law — particularly about whose interpretation should be used and for how long it will reign –remain. Indeed, as part of Council’s weekly formal question and answer document, city staff were not as certain. “Foundation Staff will not have City of Austin emails, nor will they be subject to the Texas Open Meetings or Public Information Acts since they are employees of a non- profit, outside of the City and their services are not being gifted,” reads the document.

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