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Council adopts new rules for subpoenas

Monday, May 14, 2018 by Jo Clifton

On Thursday, City Council adopted regulations that make it clear that the Ethics Review Commission may not seek information identifying whistleblowers or other witnesses in complaints about city officials or employees. In addition, Council designated the Council Audit and Finance Committee as the body that would hear any appeal from a person requesting a subpoena or a from a person receiving a subpoena.

Mayor Steve Adler presented his proposed changes to city code concerning subpoenas on the dais Thursday morning. That proposal included a section stating that appeals should go to the entire Council. However, Council members Greg Casar and Leslie Pool were not comfortable with the idea.

“I just have some concern,” Casar said, about Council being the appropriate place for an appeal. “I know those will be rare, but it’s just creating a new thing that Council members would potentially have to be lobbied on.” Casar said that he had only found out about the proposed wording the day before and he was concerned about what Council would do if a high-level city official were subpoenaed by the commission. So, Adler tabled consideration of the item, and when it came back a few hours later the new version designated the Audit and Finance Committee to hear appeals.

The question about who should have information on informants arose last fall when the commission attempted to subpoena the name and information concerning a whistleblower who told the Office of the City Auditor that former police monitor Margo Frasier was violating city policy by using her city computer and work time to consult on non-city business. The commission recently cleared Frasier of any wrongdoing.

However, during the course of considering the complaint, Frasier’s attorney convinced the commission to issue a subpoena for the name of the whistleblower and information that person had provided to the auditor. City Auditor Corrie Stokes voiced her concern to Council, noting that many city employees would be unwilling to come forward to report wrongdoing if they thought their names would become public.

The new wording in City Code Section 2-7-46 makes it clear that city officials and employees are expected to cooperate with the commission, but that documents not subject to the Texas Public Information Act may not be subpoenaed.

In order to request a subpoena, the requesting party must swear that they have a good faith belief that the item or testimony exists and must also swear that they have attempted to obtain the items or information otherwise. Subpoenas may only be served within the Austin-Round Rock Metropolitan Statistical Area and may not be served on any current city employee, any current or former member of the Law Department staff or outside counsel retained by the city.

On Friday, Stokes told the Austin Monitor, “We’re really focused on protecting our informants and also witnesses who provide information to us and help us do our job. I think it was an unintended or unforeseen issue that witnesses and informants would be subpoenaed by the commission, so I appreciate the Council figuring out a way to deal with that.”

Photo by John Flynn.

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