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City Spent $157,636 to Defend Council Violations

Payments for private lawyers for mayor,
council members in criminal investigation

Investigative Report by Ken Martin
© The Austin Bulldog 2013
Posted Monday April 8, 2013 3:33pm

On the eve of the City of Austin’s Open Government Symposium slated for April 17, The Austin Bulldog’s investigation found that the City of Austin quietly paid $157,636 for attorneys to defend six elected city officials (not including Council Member Kathie Tovo) and former Council Member Randi Shade during County Attorney David Escamilla’s 21-month criminal investigation of the City Council’s violations of the Texas Open Meetings Act.

These expenses—plus $444,000 the Austin American-Statesman reported June 17, 2012, that the city had authorized to spend with three law firms for advice on matters related to complying with the Texas Open Meetings Act—means taxpayers have shelled out more than $600,000 since The Austin Bulldog broke the story of these violations January 25, 2011.

Proof of the payments for the elected officials’ individual legal representation was obtained by The Austin Bulldog through a request filed under the Texas Public Information Act.

The city furnished 39 pages of invoices and related records. These records show that payments were made directly to five law firms. In addition, payments were made to Council Member Bill Spelman and former Council Member Shade to reimburse each of them for payments they personally made to two other law firms.

The payments for legal fees ranged from as little as $7,525 paid to reimburse Council Member Spelman for representation by attorney Wayne Meissner to as much as $47,810, the amount paid directly to attorney Brian Roark, who represented Mayor Lee Leffingwell.

For a complete list of expenses click on the exhibit Lawyers Paid to Defend Austin Elected Officials in Criminal Texas Open Meetings Act Investigation. (Links to actual payment records that support this exhibit are provided at the bottom of this report.)

All seven checks for these expenses were cut between December 21 and December 28, 2012.

A review of the City Council agendas for the last three months of 2012 failed to locate any item in which the City Council considered or approved an authorization to approve the payment of these legal fees in an open meeting.

The City Manager and the City Attorney are authorized to approve expenditures in amounts of up to $56,000, according to information supplied by the city’s Public Information Office. None of the payments for these attorneys fees exceeded that amount.

Payment documentation varies widely

Even a cursory examination of the documentation that supports these payments shows there is a wide variation in the level of detail provided to justify these expenses.

The invoices presented by the various law firms range in detail from extensive—in the case of attorney Charles Grigson, who was paid $21,175 to represent Council Member Laura Morrison, and attorney Joel Bennett, who was paid $27,205 to represent Mayor Pro Tem Sheryl Cole—to terse in the case of Joseph Turner, who was paid $24,557 to represent Council Member Mike Martinez.

The documentation for payments made directly to former Council Member Shade ($20,239) and Council Member Spelman ($7,525), to reimburse them for out-of-pocket expenses they made to their respective attorneys, is scant at best.

Some of the invoices furnished by the various law firms clearly indicate that a great deal of time and expense in representing the mayor and council members involved conferring with attorneys representing the other elected officials.

Some of these meetings or communications are described explicitly, as in the invoices submitted by Charles Grigson, while others are only alluded to, as in attorney Brian Roark’s invoices for the $47,810 he was paid to represent Mayor Lee Leffingwell. Roark’s invoice described such events as “meeting with defense lawyer.”

Are these payments legal?

Putting aside the issue of whether the documentation to substantiate the city’s payments is adequate, the basic premise of paying attorneys to represent elected officials in a criminal investigation of open meetings violations appears to be legal. These payments are discretionary—but not mandatory.

Attorney General Opinion No. JC-0294 issued October 17, 2000, addressed whether a city council may pay attorney’s fees incurred to defend its members in prosecution for Open Meetings Act violations.

The opinion states, “Although it is not required to do so, a city council may reimburse a city council member for the legal expenses of defending against an unjustified prosecution for Open Meetings Act violations. It may not decide to pay for such legal expenses until it knows the outcome of the criminal prosecution. The city council may not pay the expenses of a city council member who is found guilty of such violations.”

The county attorney’s investigation identified numerous specific instances of probable cause to show that the mayor and each council member did, in fact, violate the Texas Open Meetings Act by participating in quorum discussions to discuss the city’s business outside a properly posted open meeting.

However, these elected officials were not prosecuted.

Instead of charging the mayor and council members with the criminal offense of violating Section 551.143 of the Texas Open Meetings Act and prosecuting them based on the evidence collected, each elected official, and their respective attorneys, signed deferred prosecution agreements and waived the statute of limitations on the evidence for a period of two years. Any violations during that two years would allow the county attorney to prosecute not only the new offenses but those for which evidence was assembled during the investigation.

These deferred prosecution agreements allowed the elected officials not only to avoid a possible conviction that could have resulted in up to six months in jail, a $500 fine, or both, but also cleared the way for payment of the $157,000 in legal fees to defend these officials.

Bill AleshireBill AleshireAttorney Bill Aleshire of the Austin law firm Riggs Aleshire & Ray PC said it was “shocking that taxpayers had to pay for (the mayor and council members’) personal misbehavior” and called these payments tantamount to a "theft of public funds.”

“I do not understand, on allegations of individual criminal violations of the Texas Open Meetings Act, how taxpayers can be responsible for paying their legal bills. I just don’t get it.”

But bringing any action to retrieve these funds is problematic, he said.

A Texas Supreme Court case (No. 99-0231), The Bland Independent School District et al, petitioners v. Douglas Blue and Carolyn Blue, respondents, “Unless standing is conferred by statute, taxpayers must show as a rule that they have suffered a particularized injury distinct from that suffered by the general public in order to have standing to challenge a government action or assert a public right.”

After-the-fact standing to recover these funds “belongs only to the government or an elected official to recover stolen funds,” Aleshire said.

“These officials got themselves into this mess by participating in the activities chronicled in the deferred prosecution agreements with the county attorney,” Aleshire said. “They admitted those facts. Those were egregious attempts to thwart open government decision-making. They breached the public trust and then they breached the public treasury.”

(Disclosure: Aleshire was The Austin Bulldog’s attorney of record in two lawsuits against the City of Austin filed under the Texas Public Information Act.)

Attorney payments a future political issue

While paying more than $157,000 for defending the elected officials appears to be legal, any of these officials who decide to run in the November 2014 election for mayor or council may find this below-the-radar use of taxpayers’ money to be a hot political issue.

Especially when considering the fact that—as The Austin Bulldog has revealed through publication of the mayor and council members’ Personal Financial Statements covering several calendar years—all of these council members are financially well off. None could make a hardship case for shifting to taxpayers the expenses for legal representation to prevent prosecution for their illegal behavior.

Tom SmithTom SmithTom “Smitty” Smith, director of Public Citizen Texas, noted that the City Council’s practice of holding round-robin meetings before virtually every council meeting—so that a quorum of the council discussed items of city business outside of properly posted public meetings—was a long-established practice, it was nevertheless a violation of the law.

“A violation of the law is a violation of the law and those responsible—the mayor and council members—ought to pay their legal fees, either directly or from their campaign funds, to defend these charges,” Smith said. “Although the practice was common, the law is clear. You can’t have a walking quorum, and that’s what they did.”

The records

For detailed records of payments made to represent the mayor and council members click on the following links:

Payment to attorney Brian Roark to represent Mayor Lee Leffingwell (8 pages)

Payment to attorney Joel Bennett to represent Mayor Pro Tem Sheryl Cole (8 pages)

Payment to attorney Joseph Turner to represent Council member Mike Martinez (6 pages)

Payment to attorney Charles Grigson to represent Council Member Laura Morrison (9 pages)

Payment to attorney David Sheppard to represent Council Member Chris Riley (3 pages)

Payment to Former Council Member Randi Shade for representation by attorney Martha Dickie (3 pages)

Payment to Council Member Bill Spelman for representation by attorney Wayne Meissner (2 pages)

This report was made possible by contributions to  The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help to sustain  The Austin Bulldog’s coverage by making a tax-deductible contribution.

Related Bulldog coverage: This is the 38th story covering the City of Austin’s problems and progress in dealing with open government issues.

City Hosting Open Government Symposium: Follows county attorney’s investigation of City Council open meetings violations, March 19, 2013

Deferred Prosecution Ends Open Meetings Investigation: Mayor and five current council members sign agreements waiving the statute of limitations and requiring major reforms, October 24, 2012

Austin Board and Commissions Get E-mail Policy: Fifteen months after City Council ordered changes, board and commission members to be assigned city e-mail accounts, August 23, 2012

Open Meetings Investigation a Year Old Today: County attorney says investigation of whether City Council violated Open Meetings Act is still ongoing, January 25, 2012

City of Austin Moving, Slowly, Toward Greater Transparency in Electronic Communication: New system for board and commission members targeted for first quarter 2012, October 27, 2011

Employee E-Communication Policy Drafts Show Each Revision Weakened Rules: Policy that was near fully compliant on first draft crippled by changes, September 13, 2011

The Austin Bulldog Files Second Lawsuit Against City of Austin for Withholding Records: City not responsive to open records request concerning water treatment plant construction, September 1, 2011

City Manager Establishes Policy for Employees’ Electronic Communications: Open government legal experts say policy is seriously flawed, but it’s an important start, August 10, 2011

City of Austin Dragging Its Feet on Implementing Lawful E-mail Practices: City employees, board and commission members still not covered by city policies, July 13, 2011

E-mails Exchanged by Council Members Expose Private Deliberations and Political Maneuvering: More than 2,400 pages of e-mails published here in searchable format, July 6, 2011

Taxpayers Footing Big Bills to Correct City of Austin’s Open Government Issues: $200,000 spent on attorneys so far and no end in sight, June 24, 2011

Treasure Trove of Public Documents Made Available in Searchable Format: E-mails, text messages, meeting notes obtained through open records, lawsuit, May 12, 2011

County Attorney’s Office ‘Cannot Determine’ City of Office Committed Alleged Violations: Bulldog’s complaint was the first presented for violation of the Texas Public Information Act, April 22, 2011

Council Staff Training Lapsed from 2007 Until Lawsuit Filed: Only one current staff member had taken training, city records show, April 20, 2011

Austin City Council Adopts Policy to Improve Compliance with Texas Public Information Act: Policy does not cover all city employees or all city board and commission members, April 15, 2011

City of Austin and Council Members File Answer to The Austin Bulldog’s Lawsuit: Answer challenges standing and claims requests for open records fulfilled, mostly, April 11, 2011

Call for Public Help in Analyzing City Council Members Private E-mails, Text Messages: Volunteers needed to review correspondence and provide feedback on any irregularities, April 9, 2011

City of Austin’s Records Retention Undermined by Lack of Controls Over Deletion of E-mails: Missing records likely more important than gossipy tidbits, April 6, 2011

Council Member Laura Morrison Releases E-mail on City Business from Gmail Account: Morrison second council member to turn over more e-mails responsive to The Austin Bulldog’s requests, March 30, 2011

Private E-mails About City Business May Be Pulled Into City of Austin Records Retention: City Council votes to consider policy draft at council meeting of April 7, March 29, 2011

The Austin Bulldog Files Civil Complaint Against City of Austin and Council Members: Travis County Attorney David Escamilla has legal authority to force compliance, March 23, 2011

Expired: The Austin Bulldog’s Offer to Settle Its Lawsuit with City, Mayor and Council Members: Does this mean these elected officials want to continue to violate state laws?, March 18, 2011

Council Member Spelman’s City E-mails on UT Account Will Not Be Provided: University of Texas will seek opinion from Texas attorney general to withhold, March 18, 2011

The Austin Bulldog Files Lawsuit to Compel Compliance with the Law: Mayor and city council members not in compliance with statutes for public information, records retention, March 2, 2011

Smoking Gun E-mail Shows Council Aide Advocated Evasion of Open Meetings Act: Provided detailed guide to allow chats with council members on dais but leave no trace, March 1, 2011

Council Member Bill Spelman Goes On the Record About Private Meetings, Fifth in a series of recorded question and answer interviews, February 20, 2011

Council Work Sessions Stir Concern Over Tying Up Staff for Two Meetings: City manager presents summary of options for council consideration, February 15, 2011

Mayor Claims Lawyers Okayed Private Meetings But City Won’t Release Proof: City pledges cooperation with county attorney’s inquiry but is withholding these key documents, February 13, 2011

County Attorney Asks City of Austin for Records Related to Open Meetings Complaint: Former Mayor Wynn and Former Council Member McCracken included, February 9, 2011

Council Member Randi Shade Goes On the Record About Private Meetings: Fourth in a Series of recorded question-and-answer interviews, February 9, 2011

City of Austin Commits $159,000 for Advice in County Attorney’s Open Meetings Act Inquiry: Three attorneys hired for $53,000 each, February 7, 2011

Council Member Chris Riley Goes On the Record About Private Meetings: Third in a Series of recorded question-and-answer interviews, February 6, 2011

Council Member Sheryl Cole Goes On the Record About Private Meetings: Second in a Series of recorded question-and-answer interviews, February 3, 2011

Mayor Pro Tem Mike Martinez Goes On the Record About Private Meetings: First in a series of recorded question-and-answer interviews, February 2, 2011

Will I Said Come On Over Baby, Whole Lot of Meetin’ Goin’ On: Council Member Chris Riley tops the chart with 256 private meetings, January 30, 2011

County Attorney Reviewing Complaint, Brian Rodgers Will Not Run for Council, January 25, 2011

Open Meetings, Closed Minds: Private meetings to discuss public business shows Austin City Council may be violating Open Meetings Act, January 25, 2011

 

Comments   

 
0 #11 Editor 2013-04-15 19:39
Quoting Will No. 10: #1 FreeAustin 2013-04-08 16:19
“So some of the defense attorneys who made the most money (like Roark and Bennett) used to work for the County Attorney's Office and are probably friends of the office.. Others are political supporters of the County Attorney. They rang up huge bills at taxpayer expense that could only be payed by the city if there was no conviction. Then the County Attorney failed to prosecute the case even though they said they had probable cause??”

Will you're making some far reaching statements that seem to be taking things a bit beyond what we know of the facts:

Regarding attorneys who may have worked with the county attorney's office in the past, it's my understanding that a lot of attorneys get their start working for the government before going out into private practice where they can profit from their experience. It seems pretty far-fetched to suggest bribery or anything beyond the fact that the attorneys representing the city's elected officials know the ropes. If they didn't then they wouldn't have been hired to defend these officials.

County Attorney David Escamilla issued a press release when he made public the deferred prosecution agreements and it addressed why there was no prosecution. That press release is linked at the bottom of our story of October 24, 2012 at http://www.theaustinbulldog.org/index.php?option=com_content&view=article&id=234:deferred-prosecution-ends-open-meetings-investigation&catid=3:main-articles

The press release stated, in part:

“As TOMA experts have reported, actual prosecutions for violations of TOMA are rare and difficult to prove. An informal survey of past investigations revealed that many were resolved with deferred prosecution agreements. In making this decision, we identified several mitigating factors, including the fact that the practice of systematized and scheduled one-on-one meetings between council members pre-existed their taking office. Addiitonally, our investigation revealed that council members were not well-served by city administration. We could not identify anyone at the city with meaningful responsibility for ensuring compliance with the Texas Open Meetings Act.”
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0 #12 James Ritter 2013-04-15 21:20
Sounds to me like there just one big [rich] happy family.
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+1 #13 Debbie Russell 2013-04-18 20:32
The term "deferred prosecution" still has "prosecution" in it. They were prosecuted and only avoided court/convictio n -and paying their own bills- by agreeing to amend further illegal wrongdoings.

This WILL be a factor in the mayoral race, Councilmembers Cole, Morrison and Martinez.

The city employs 79 people in its legal dept., 54 of which are attorneys (additionally, COA has several attorneys employed at Austin Energy).
http://www.texastribune.org/library/data/government-employee-salaries/austin/departments/law/1689/?page=1

Cities don't typically employ criminal defense attorneys. It'd be difficult to justify keeping some on salary, because it would mean the city is engaged in enough illegal conduct to warrant it. Not a good signal to send. However, they do employ attorneys who specialize in defending the city in civil lawsuits. I'll leave it to attorneys to opine on whether that is sufficient qualification to defend criminally, but I offer that there are many private practice attorneys that handle both civil and criminal law.

Considering, though, the city has lost so many legal battles in civil court (hence our high payouts), it's no wonder councilmembers didn't want to rely on the "skills" of attorneys in-house.

A good watchdog publication like The Austin Bulldog ;-) might want to spearhead a TX survey of municipality legal payouts to see how Austin fares compared to other TX cities. I don't see that something has been done like this - but found one for NY: http://www.albany.edu/polis/Municipal%20Lawsuits%20Survey%20Report.pdf
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