Travis County Attorney

Austin City Council members may avoid prosecution for allegedly violating the Texas Open Meetings Act by entering into an agreement with the Travis County Attorney’s Office.

Mayor Lee Leffingwell and a lawyer representing Council Member Mike Martinez entered into an agreement requiring council members to follow open meetings laws and take online classes educating them about the law, according to The Austin American-Statesman. In the article, attorney Joe Turner, who represents Martinez, said members who sign the agreement will not face charges or fines.

Under Section 551 of the Texas Government Code, failing to follow the Texas Open Meetings Act is a misdemeanor punishable by a fine of up to $500 and up to six months in jail.

In 2011 Travis County Attorney David Escamilla began an investigation after local activist Brian Rodgers issued a complaint to Escamilla’s office accusing council members of violating the Open Meetings Act by sharing information with one another about items the council would discuss in future meetings.

Under the act, governing bodies must notify the public of the time, location and content of meetings. The act requires a quorum, or majority of members, be present to conduct business during public meetings. The governing body may convene a closed session to discuss property transactions, contract negotiations, the deployment or implementation of security measures, gifts and donations, personnel matters and litigation.

Governmental bodies may only take final action on a matter discussed in a closed session during an open meeting.

Before Thursday’s city council meeting, Leffingwell said he would not offer further comment on the case and beyond his statement in the Austin American-Statesman.

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

Former Council Member Randi Shade, who held office at the time of the accusations, said in a statement Wednesday that she accepted the deal over the summer.

“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,” Shade said.

Shade lost re-election to current Council Member Kathie Tovo in 2011. In the statement, Shade said council members met with one another outside public meetings long before her term began in 2008.

The Daily Texan reported in 2011 that Rodgers accused Leffingwell of meeting with two council members at a time in his office for an hour before each city council meeting. Meeting with only two members would prevent the presence of a quorum and a violation of the act.

Wanda Cash, associate director of the School of Journalism, said she found it interesting that the agreement includes online courses on the act. Officials who are members of a governmental body subject to the act are required to complete Open Meetings Act training 90 days after assuming the responsibilities of their office, according to Section 551 of the Texas Government Code.

“Apparently they weren’t paying attention the first time,” Cash said.

City spokesperson Roxanne Evans said the city has spent $343,602.73 hiring law firms to advise city officials on the investigation and on open meeting topics since the investigation began.

Escamilla declined comment Thursday, because the investigation is still ongoing.

Printed on Friday, October 19, 2012 as: Council investigated amid alleged violation

18 UT students will go to court this Friday. Arrested in April for participating in anti-sweatshop protests, they face trespassing charges from the Travis County Attorney’s Office.

Police arrested members of the Make UT Sweatshop-Free Coalition on April 18, after the protesters refused to end their sit-in at UT President William Powers Jr.’s office at 5 p.m., the time the building closed. Although the university complied with the protesters’ demand in July by agreeing to join the Worker Rights Consortium — a labor rights monitoring group that places stricter controls on working conditions than did UT’s previous affiliate — the charges against the students have not been dropped.

UT claims it has no control over whether the charges are dropped. Because UT did not file the charges, administrators cannot order them dismissed, but Corby Holby, assistant trial director for the Travis County Attorney, told The Daily Texan, “Normally, on a criminal trespass case, say, the property owner where the person was trespassing, they would definitely have input.” Granted, the protestors took on the risk of criminal prosecution for trespassing when they occupied Powers’ office. But the university administration by its inaction in defense of the protesters now takes its own risk: the risk of setting a tone on campus that discourages non-violent protest and even exercise of free speech rights. Even if the administrators hadn’t ultimately agreed that the protesters had a point worth compromising on, they should nonetheless should now make clear to the UT community that on campus people have the right to express themselves if they don’t harm others in doing so.

The Travis County Attorney’s Office has offered the students two plea deals, neither includes jail time or expensive fines, but the protesters plan to contest the charges. “I think that it would be more meaningful and lasting for us to try to fight the charges,” government junior and Coalition spokeswoman Lucy Griswold said. “It will help preserve the right to protest on campus.”

According to Griswold, English professor Snehal Shingavi has been circulating a petition to get the charges dropped. He and other professors and community supporters are scheduled to present the petition to President Powers today in the hope that he will call for dismissal of the trespassing charges.

The university administration maintains that the charges are beyond its control and its inaction on the protesters’ behalf does not reflect a negative attitude about free speech rights. “The students in question were arrested and charged with trespassing, not for expressing their opinions,” said UT spokeswoman Tara Doolittle.

However, the university administration sends at best a mixed message by not coming to the protesters’ defense. “The decision to join the Worker Rights Consortium...resulted from some very productive conversations with students,” Doolittle said. Yet one cannot help but wonder if the president’s office would have granted the students those meetings without the media attention garnered by their sit-in.

To the protesters, UT’s ultimate decision to join th Worker Rights Consortium represents a validation of the Coalition’s grievances and adequate reason to call for the charges’ dismissal. “President Powers has lauded the students he met with for their maturity and preparedness,” Griswold said, “and yet he is still maintaining the criminalization of those same students.”

Travis County Attorney David Escamilla will lead an inquiry into whether Austin Mayor Lee Leffingwell and city council members violated the Texas Open Meetings Act by discussing how they plan to vote before general council meetings.

“The complaint alleges that the Mayor and Council have coordinated a regular series of private gatherings of Council members in numbers less than a quorum to conduct private discussions, thereby avoiding the public notice and meeting requirements of the Act,” Escamilla said in a statement.

According to the Act, every meeting conducted by a government body must be open to the public unless it is meant to discuss a personnel matter, land acquisition or legal counsel.

Brian Rodgers, local activist and open government proponent, levied the accusations after he said he withdrew his name from consideration to run for Austin City Council because of frustration at the council’s activities.

Rodgers said he believes Leffingwell meets in his office with two council members at a time, one hour before each general meeting. Rodgers said the mayor met with only two members at a time to avoid establishing a quorum, which would have violated the Act.

The Austin Bulldog, an investigative blog, released on Tuesday a conversation between Rodgers and Council Member Chris Riley. Rodgers said Riley told him most council members finalize their votes before going to the Thursday meetings.

“No one in the council denies that they do this, and they will have to stop meeting in private,” Rodgers said. “When Riley told me that the council already knows how they’ll vote on Thursdays, I sat there angrily thinking about how community activists pour their time and energy into making our city a better place to live — unaware that the council’s votes are set before they even walk into the council chambers.”

Riley denied the accusations.

“In my experience, there is absolutely no intent on the part of any member of the Austin City Council to circumvent the Open Meetings Act,” Riley said in a statement.

Leffingwell released a statement assuring the City Council’s willingness to cooperate with any legal proceedings.

“We’ve been advised by the City Attorney that meetings between individual Council members do not violate the Open Meetings Act, but we will cooperate fully with the County Attorney’s review,” the statement said.