City Hosts Open Government Symposium
Lawyers attending for education credits abound,
much of day has little to do with city practices
Part 1 of a 3-Part Series
by Ken Martin
© The Austin Bulldog 2013
Posted Monday April 22, 2013 8:40am
“Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
— Texas Public Information Act, Government Code Section 552.001(a).
Last week, the City of Austin demonstrated its renewed commitment to let citizens in on the process of governing. The City hosted a groundbreaking effort to focus public attention on the issues related to open government.
Hosting the symposium was a big step into the sunshine for a government agency that has gone through some traumatic experiences over the last couple of years.
Those experiences included a criminal investigation for violations of the Texas Open Meetings Act, which resulted in deferred prosecution agreements signed by the mayor and council members (except Kathie Tovo, who was elected after violations occurred), and a lawsuit filed by The Austin Bulldog that triggered major reforms in the city’s handling of electronic communications during the county attorney’s investigation. (More about that later.)
Lee LeffingwellMayor Lee Leffingwell read opening remarks Wednesday morning to a nearly empty City Council chamber. (Click link for video.)
“We believe that transparency fosters the public trust and it's very important to us,” Leffingwell said. The symposium offers “an opportunity to talk about the law and the process of open government and to learn from each other....”
Leffingwell said Texas Comptroller Susan Combs had recognized the City of Austin with a Leadership Circle Gold Award, the highest level of recognition, for its transparency in posting financial data online, including the budget, annual financial report, and check register.
“We also conduct public work sessions to discuss matters of council interest in an open and transparent way, and that's in addition to our regular council meetings. All council agendas post an opportunity to discuss open meetings issues from a legal perspective,” the mayor said.
Leffingwell did not mention that the City Council work sessions were initiated only after the county attorney launched an investigation—triggered by The Austin Bulldog’s report of January 25, 2011, which exposed the institutionalized system of regular, round-robin private meetings that violated the Texas Open Meetings Act.
“In a constantly evolving social media environment, it's important to continue to discuss and evaluate these issues so that we can continue to improve our openness and transparency,” Leffingwell said.
A total of six panel discussions were offered over the course of the day, some of which ran concurrently. The Austin Bulldog covered four of the six panel presentations and will publish additional accounts in Parts 2 and 3 of this series.
The panel discussions were videotaped by the city’s Channel 6. All are available on the city’s website except for a large part of Panel 6 (“Open Government: Beyond the City”), for which only 19 minutes of video are posted due to technical difficulties, according to station manager Keith Reeves.
Building an ethical culture
Sabine RomeroFor the Panel 1 discussion, “An Open Government Overview: The Interaction of Compliance and Culture,” Assistant City Attorney Sabine Romero, who organized the day’s events, introduced and sometimes posed questions for Page Motes, director of strategic programs, global ethics, and compliance office for Dell Inc.
“I've spent a great amount of my of time consulting with legal professionals (and) compliance professionals responsible for putting together programs that make sense, that resonate, that actually elicit the right behavior from employees and constituents,” Motes said.
Page Motes“What I've learned ... is that just looking at law and just looking at process is only part of the equation. I want to concentrate on the concept of culture and why it’s important.”
Culture is how things get done, Motes said. Culture is what actually happens on the ground. Do people fulfill the expectations, values, beliefs, and behaviors expected of them within an organization?
Romero asked if ethics are different in corporations and government.
Motes said no. Ethics are part of culture. “What behaviors are expected? Are we being transparent, honest, are we holding ourselves accountable?”
Rules may be viewed by people within an organization as a boundary or a baseline and people worry about stepping over the edge. People should want to set higher standards and transcend the base rules, she said.
Motes said that mid-level managers are the most disengaged in any organization and they make or break the culture of the organization. They should talk about not just what can you do but what should you do, about something higher, broader, with more lasting value. Disengagement is the number-one reason why culture falls apart.
“If you have disengagement then individuals are more likely to commit acts of wrongdoing,” she said.
In any organization, the biggest thing that can be done to build an ethical culture is to make sure everyone is heard, that they are encouraged to speak up and offer ideas. You have to have the right goals and make sure everyone understands, Motes said.
The key things to watch out for are rationalizations, the ability of a team member to intellectually justify an intentional act of business misconduct; opportunity, the ease with which a team member can commit misconduct; and pressure, the motive or incentive for a team member to commit misconduct.
“You have to have all three covered and focus on the right types of behavior,” Motes said.
She said simple actions can be taken to build an ethical culture and cost nothing: authentically discuss expectations, create an open environment for input, tell stories about real issues and real impact, and get people to think and open up.
“Celebrate ethical outcomes—especially when a decision was hard,” Motes advised.
A healthy ethical culture creates a more cohesive ecosystem in which people work better, more effectively, and are more engaged and stick around.
Romero said, “Open government provides transparency, encourages public participation, and fosters public trust.”
The cornerstone, she said, is the Texas Open Meetings Act (TOMA), Chapter 551 of the Government Code, which requires 72 hours notice of meetings.
TOMA requires that any discussion of official business by a quorum or more must be conducted in public. Exchanges of e-mail and social media can constitute a discussion of public business, she said.
Romero noted the Texas Public Information Act (TPIA), Chapter 552 of the Government Code, requires government agencies to provide records upon request.
The city complies with the TPIA, she said, through directives that dictate how electronic communication is to be collected, assembled and maintained, and technical support is provided to assist in searching for records requested from the mayor and council offices.
A curious choice of presenters
Many of those who attended the symposium were not open government advocates or those entrusted with the job of making government more responsive and transparent, but attorneys who came to earn credit for continuing legal education.
In fact almost everyone who attended the Panel 4 presentation titled “A Corporate Perspective: Building an Effective Compliance Program” raised their hands when asked if they were attorneys.
Linda SchatzThe sole presenter for that slot was Linda Schatz, legal compliance and ethics program manager for Transocean Offshore Deepwater Drilling.
Schatz presentation was prosaic but thorough, and several attendees were fiddling with their phones throughout the presentation. One woman was sound asleep on the front row.
While the presentation itself was only tangentially related to open government, the larger question was why a representative of this particular company was picked to be a presenter.
Transocean recently paid $1.4 billion in criminal and civil fines for creating the largest oil spill in U.S. history and causing the death of 11 workers on the Deepwater Horizon drilling rig in the Gulf of Mexico, according to a press release issued by the U.S. Attorney General January 3, 2013.
Asked why a representative of Transocean was chosen to be part of the symposium, Romero told The Austin Bulldog, “Linda Schatz is an incredible professional who has achieved remarkable program success with outreach with an entity that doesn't just have departments, but countries. I thought that was an incredible value she brought to the symposium. ... That was the reason we invited her and we were happy to have her.”
Asked the same question, City Attorney Karen Kennard, whose law department took over the responsibility for ethics and compliance in January 2012, said she was not familiar with the penalty levied on Transocean.
Karen Kennard“We are involved in lots of groups that are involved in ethics and compliance and we find there are learning opportunities in all situations, from the good ones and the not so good ones,” Kennard said.
“(Schatz) is part of some groups that we have been involved in with ethics and compliance and we thought it might be interesting to hear from somebody who built a program from the ground up.”
Political damage and public cost of wrongdoing
The City spent more than $600,000 on lawyers to help the city and the mayor and council members get through the county attorney’s 21-month investigation of violations of the Texas Open Meetings Act.
That investigation culminated October 24, 2012, when Travis County Attorney David Escamilla’s Press Release announced the results of his investigation. Escamilla also released copies of the deferred prosecution agreements that were signed by each of the elected officials and their personal attorneys.
Signing deferred prosecution agreements saved the mayor and council members from prosecution and, if convicted, possible jail time.
The mayor and several council members were also deeply embarrassed by—and publicly apologized for—some of the things they said in e-mails that were published as a result of public information requests filed by The Austin Bulldog and other media.
The City of Austin appears to be trying to move on, demonstrate that it has learned some hard though valuable lessons, and open government in the spirit of state laws. Hosting this Open Government Symposium was a big step in the right direction.
Coming Tuesday: Social Media’s Impact on Open Government
Coming Wednesday: Litigation Challenges Open Government Law
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 39th story covering the City of Austin’s problems and progress in dealing with open government issues.
City Spent $157,636 to Defend Council Violations: Payments for private lawyers for mayor, council members in criminal investigation, April 8, 2013
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