More people every year requesting records from APD
One popular aspect of the Open Government Online charter amendment is the section opening up
records about police misconduct in Austin to the same extent as the Travis County Sheriff and hundreds of other Texas law enforcement agencies.
More people every year are requesting records from APD. According to data reported to justify their budget, APD responded to nearly 2,400 open records requests in 2005 - a 54% increase in just two years. Most officers never engage in serious misconduct, so this this affects only a few cases in aggregate, but the number of requests is growing and often when families or community groups seek open records from police, it's about an incident that's critically important to them and to the community.
Open Records Requests Submitted
To the Austin Police Department
| 2003 | 2004 | 2005 | 2006 (est.) |
| 1548 | 1913 | 2387 | 2,500 |
Source: APD Budget Performance Measures
Austinites sue over misleading ballot language for Open Government, Enviro charter amendments
A group of Austin voters affiliated with the Clean Austin campaign have sued the City of Austin to change the misleading language placed on the May ballot regarding the Open Government Online and Clean Water charter amendments. Jordan Hatcher, founder of this blog, is one of the plaintiffs along with former state Rep. Glen Maxey, Jeff Jack, Paul Robbins and Ann del Llano..
Read the plaintiff's petition here. Discussion of the Open Government Online amendment begins on page 8.
Austin city attorney David Smith told the American Statesman the law didn't require that the ballot language be accurate, only that a voter must be able to identify the measure. If that's actually the legal standard, it's the only way the City can win because the current ballot language is blatantly misleading. As the petition states, the city's approved ballot language "completely ignores key portions of the Amendment while portraying the Amendment as hostile to specific provisions of the Amendment. These include voter hot button issues of protection of privacy and cost-efficiency of city government."
A hearing on the lawsuit is scheduled Thursday, the Statesman reports.
Visit CleanAustin.org
Visit the new Clean Austin campaign website supporting the Open Government Online and Clean Water charter amendments on the local May ballot.
RELATED: Check out the new Clean Water Austin blog.
More on the pecking order of city charters
On Wednesday, I stated "It is ridiculous to claim, as they do, that somehow this amendment requires the City to ignore state and federal law that shields your privacy." I also said that "Any 6th grader can tell you that state government trumps city government, and that the federal government trumps the whole thing."
I would like to expand this with some relevant law, which thankfully is available online.
The
Texas Constitution has some very specific language about the role of city ordinances.
Article XI Section 5 specifically states:
No charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.
Thus, it is a matter of Texas Constitutional law not to place material private by state law online.
As to the
U.S. Constitution, I refer readers (and council members) to
Article VI, which states:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
This is what is known as the
Supremacy Clause, and it establishes federal law as the kingdaddy of them all.
So what we have is the pecking order of government.
The OGO Amendment itself recognizes this order, and your right to privacy. It states:
SECTION 2: Privacy Protected. Nothing within this amendment should be interpreted in a manner that would violate an individual’s existing constitutional or common law rights to privacy.
This is why Leffingwell, McCracken, and the other council members are just plain wrong about this idea of private emails going online.
Leffingwell: Put your money where your mouth is.
Something Leffingwell said yesterday kinda bothered me. Well okay, more than one thing bothered me, but one thing in particular bothered me as the kind of thing that politicians use as an argument but rarely follow through with their position to its logical conclusion.
Lee Leffingwell, Council Member for Place 1, spoke out against the Open Government Online amendment. One of his main criticisms all along has been aimed at the Initiative and Referendum process whereby Austin citizens get to directly participate in City government by having enough registered voters (here, 20,000) sign a petition asking for their issues to go to the ballot. He thinks this process is flawed because the amendments are not subjected to the same process as City Ordinances.
So Council Member Leffingwell, I will expect you to lead the charge on an amendment to the City of Austin Charter striking
Article IV out of our charter. And I will expect to see you down at the Texas Legislature fighting
Initiative for Texas in their efforts to bring I & R to Texas. And finally, I suppose that you will have to lead a charge to amend the
Texas Constitution, Article XI Section 5, which reads "Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters."
That is, if you really mean it about Initiative and Referendum.
Electioneering over OGO on the steps of City Hall
Instead of working on City business, Councilmembers Leffingwell, Kim, McCracken, and Dunkerley took time out to electioneer against Propositions 1 (OGO) and 2 (SOS) on the very steps of City Hall today. This was basically a repeat performance of the last City Council meeting, where the members repeated their unfounded allegations about the Open Government Online amendment amidst a scattering of support.
Leffingwell, apparently ignoring his own CIO's report on the amendment, stated that the City had already committed to allowing public access to the new AMANDA program and that these costs were not reflected in the cost estimate. He is wrong on both counts. AMANDA is the City's new system for development permitting that would require all communications and documents about developments to become electronic. In point of fact the AMANDA system did not, before this amendment came along, include public access. The City specifically is trying to charge a quarter of a million dollars to provide the public with this access. You and I would not recieve access but for the OGO amendment just being proposed.
All of the council members repeated the erroneous claim that the amendment requires all citizen email with the City to instantaneously go online. This is plain wrong as well. As has been covered
here here and
here, this argument is just wrong. It is
THE reason why the City's cost estimate is so inflated. Leffingwell and his fellow council members “neglected” to mention when talking about the amendment the high costs of tax giveaways. Costs that outweigh this amendment even when you accept the City's inflated figure.
Leffingwell, McCracken and company also would have you believe in an inverted and backwards view of how the law works: Any 6th grader can tell you that state government trumps city government, and that the federal government trumps the whole thing. It is ridiculous to claim, as they do, that somehow this amendment requires the City to ignore state and federal law that shields your privacy. Your right to privacy is specifically protected in the amendment and it does nothing to abrogate your rights to keep private information private or to magically overturn state and federal law. See
here for more about how they are wrong about the privacy implications and their interpretation.
OpenGovAustin will be responding to the rest of the hogwash when it hits the press. Stay tuned.
Some newspapers support open government
The San Jose Mercury News
has proposed it own Sunshine Law as part of the recently concluded
2006 Sunshine Week. Unlike some less-than-supportive coverage on the part of the
Statesman, the Mercury News used its own attorney to create a comprehensive ordinance opening up the City of San Jose to greater scrutiny. Much like
the Open Government Online Amendment, this proposal opens up the City to greater scrutiny from the public. Similar to our amendment the San Jose amendment was born out of the frustration of the community at surprise development deals that state open records law allowed:
The weakness of [California open records law] has been particularly obvious in San Jose lately. Several major initiatives were formulated behind closed doors: a baseball stadium proposal for a downtown neighborhood and a downright loony plan for a soccer stadium with an $80 million public price tag.
For the ballpark, land purchases began before there was any serious public discussion of the location. The community finally revolted at a recent council meeting, and the plan has slowed down.
The soccer proposal eventually was disowned by the council, but only after city staff had shopped it to the professional soccer league. Staff members don't take the initiative to wave around an $80 million offer unless they've had assurance that elected officials support it. Only the public was out of the loop.
Whenever we go to discuss the OGO with neighborhood groups, they voice similar concerns that they have been left out of the loop on development directly affecting their homes and neighborhoods.
Also similar to the OGO, the proposed San Jose ordinance would require taping of closed sessions in order to "discourage the council from conducting inappropriate closed-door discussions." Taping of executive sessions is required under Section 6A of the OGO. The San Jose paper has even gone one step further than the OGO by calling for "an independent task force or commission that includes community representatives" to oversee San Jose's compliance.
That's not a bad idea.
If only the amendments were written in iambic pentameter ...
This has made the rounds all over town via email, but it's a worthy read. A local literary icon tells why she backs both citizen intiatives amending Austin's city charter:
What I Like About the Clean Water and Open Government Charter Amendments
By Susan Bright
3/12/06
Daryl Slusher's complaint that it was silly to put the phrase "happy hour" in the city charter led me to want to read our founding document, something I've never done, though Max Nofziger once asked me to help rewrite it, which may be an indication that it's outdated. I suggested iambic pentameter or rhyming couplets which caused Max to look at me oddly, so if a committee met to revise the Charter in the 90s, I wasn't invited. Looking for it this morning, I found zip on the city website. [editor's note: You can find the charter from the City website under "Code compliance," then all the way at the bottom "City codes," then to the American Legal Publishing site and there is the charter.]
I live in Austin because of Barton Springs, so it is important to me to be on the right side of work to protect the Springs and our aquifer. The damage to everything I care about done behind closed doors and in response to corporate pressure at every level of government has never been more horrific. The Open Government amendment gives us an historic opportunity to change business as usual, here and now, at city hall by making transparency the law. The Clean Water Amendment will make it the law that the City work relentlessly to save Barton Springs and our aquifer.
Several features of the Clean Water Amendment are brilliant. The City will have to direct development away from the Edwards Aquifer recharge and contributing zones, stop undermining the SOS Ordinance, and stand up to Grandfathering claims. And it gives us tools with which to fight Grandfathering by writing it into law that any bankruptcy on the land (remember Gary Bradley) negates the grandfather claim and the "new" project has to comply with current regulations. (Cool!) It further says no incentives, cash or otherwise can be awarded to a corporation or any of it's subsidiaries or spin-offs (remember how Freeport McMoRan morphed into Stratus) to develop property in Austin. It means we can't pay polluters. And they can't change their name, move someplace else, and get paid either.
I'm not one of those who thinks we need tax paid incentives to reward rogue corporations with changed names and new suspenders for going into the preferred development zone. I think we need tough restrictions that say, go there or be prepared for endless legal battles, fines, and huge project delays. And corporations that took subsidies in the past even though they built in violation to SOS will have to pay those subsidies back. And if there has ever been a change in the building plan for a grandfathered tract, the grandfather claim will be null and void, and the new plan will have to comply with SOS. I like this. Why do we allow some people (read "Corporations") think they're above the law?
I am amused by people who tell us some features of the Clean Water Amendment won't stand up in court. How many times have we stood before the City Council and listened to Council members and City legal employees tell us that? How many times have we been told this or that is a "done deal," was a done deal before public input. The city staff's job is to keep the City out of court, not aggressively fight for our right to clean water. This amendment will change that. Cool.
Toll roads? The city won't be allowed to spend money on toll roads that lead to or cross the aquifer or contributing zone. The same thing goes for infrastructure or utilities and support services that help development on the Barton Springs Aquifer. How anyone who claims to be an environmentalist can object to this is beyond me. Are we going to have a bit of work to do to enforce it?
It's good work. Bring it on. We had to fight long and hard for the SOS Ordinance, against many of the same arguments and corporate entities we're facing now. (See the SOS rebuttal to what they are calling a "Political Insiders PAC" to defeat the Amendments.)
There's been a lot of talk from opponents of these amendments about conflicting levels of laws - state law trumps local law, federal law trumps state and local, but no one is admitting that international contracts can and do trump all of the above. If ever there was time for a huge home rule movement, this is it. Here, now -- in our town, we have the opportunity to stand up for local rule, in the context of protecting something Austin deeply loves, Barton Springs. Dubai backed down in response to a huge popular movement against their take over of American ports. We must all be activists, all the time.
If I could get hold of the City Charter I bet I'd find old passages which by today's law are illegal, or obsolete, which have fallen away -- like the deed restrictions on old properties all over town that say no person of color can engage in the purchase or sale of this property or gain from it in any way except for work as servant or groundskeeper. That language is still on the books, but it's inoperative, thanks to a huge popular movement called the Civil Rights Movement. We must work together. It drive me nuts when environmentalists can't work together because we need everyone's talents, energy, wisdom.
The provisions in these SOS Charter Amendments which won't stand up in court will fall away until higher law changes to reflect populist convictions that government be transparent and that water resources, like our beloved Barton Springs, be preserved. The intent will remain in the charter where it can be cited to strengthen the SOS Ordinance and other environmental initiatives in the future.
But until and unless developers whose projects are in violation of SOS take the City to court, the Amendments will be law. The city can't permit in violation of its Charter. Moratorium anyone?
About transparency in local government:
The back room deals flying around these amendments have given me a wake up call re. the necessity of an Open Government Amendment.
Surprise! The City is opposed to both amendments. There was movement back channel to draft an alternative Clean Water Amendment to go on the ballot at the same time the SOS Amendments appear, to confuse voters, to gut the SOS Amendments. Maybe it won't happen, maybe it will.
Let's see: amendments signed by more than 40,000 people, drafted by SOS in collaboration with several dozen leading environmentalists and attorneys v. amendment drafted by about 5 people back channeled and slipped onto the ballot at the last minute. Which is more democratic? How do you want your City government to work?
The Council approved extremely negative ballot language to describe the Amendments thinking to define them away. The 40 plus thousand people who signed petitions to get these amendments on the ballot deserve better treatment. At public meetings and in back rooms paid developer "lobbyists" are picking apart the wording line by and they're not all disclosing who they work for. I find this incredibly depressing.
Ever wonder how we got CSC, one of the largest military contractors in the world next door to the new City Hall, down the street from the TX Capitol? Did you and I provided cash and tax incentives to lure them here? Was it a done deal? Can you lookup information about how it happened?
Until an in-depth study has been done to prove costs estimates for putting Austin Government on line, the imaginary price tags are just that.
So, in addition to the probability that one could actually find a copy of the City Charter were the Open Government Amendment to pass, what else do I like about it?
In the first place, it guarantees individual privacy at the same time it ensures open, on line government.
"Section 2: Privacy Protected. Nothing within this amendment should be interpreted in a manner that would violate an individual's existing constitutional or common law rights to privacy."
This is an amendment the city will have to settle into. Only Council members, their staff, City Manager, her/his staff, and Heads of Departments are required to post their calendars and work emails. [editor's note: Actually emails must only be archived, not automatically published online.] Everyone will be required to do their city work on the job, in the open, and not in private. What a concept.
I can't find where it says police investigations and secret security work set about by first responders will be on line for terrorists to read, or that crime tips will have to be posted in real time, presumably giving violent offenders on route to a crime of passion the opportunity to log on to the city website to see if anyone is watching them. I have to agree (respectfully) with the SOS answer to Daryl Slusher's piece that some of those claims are "bizarre." You can read the SOS rebuttal for yourself and the charter amendments here.
Susan Bright, poet and publisher
Plain View Press
