Statesman Editorials just can't get it right
Whoever is writing these editorials on open government just can't get it right.
In today's Statesman,
in the Asides section, the writer mentions Thursday's decision by District Judge Stephen Yelenosky that the City of Austin's ballot language misrepresented the amendment. In describing the Open Government Online amendment, the writer states that it would:
"force city officials to reveal all conversations, e-mails and phone calls online instantly."
The judge specifically ruled this interpretation misleading.Pay attention editorial writers. I know that what you write are
opinions, but these must be based on
facts. Judge Yelenosky specifically ruled that "the use of 'any' and 'all' where exceptions apply" is misleading. It was illegal for the City to frame this amendment as requiring
all information to be online when only
public information can go up. This means that the amendment protects your privacy rights because only public information is being considered. This is a simple matter of
the pecking order of government. This amendment absolutely in no way, shape, or form requires information private by law to go online. Your medical records, library records, other private matters are protected by state and federal law. This is a
fact.
It is also a fact that the amendment only has a relatively short list of information that is required to be placed online. Anything else, such as email,
is up for Council to decide. This amendment does not require email to and from City officials to go online. If it goes up, it will be because your Council members want it to, not because of the amendment.
This is a fact as well.It is also misleading to say that it requires calendars and phone logs "instantly". The phrase used is
real time. Much has been made of this phrase, and
we have discussed it here. The end result is, that Council defines it by ordinance. It is not
instant and it only applies to calendars, phone logs, and certain development information. It is a goal and a standard for the Council to use, so that they do not delay reporting their activities or developer information untill such time as it is meaningless. Every other item is to be placed online is on a basis that
Council is free to decide. This is a
fact too.
Everyone welcomes free and open debate about the amendment. That is what we are supposed to have in a democracy. Part of that free and open debate is an ethical opinion page that will use
facts to form their opinions and a Council that won't use their position as a
bully pulpit.
Wynn misrepresents timeframe
Mayor Will Wynn, speaking to
In Fact Daily, tried to blame the City's illegal wording of the ballot language for the two amendments on short notice:
"It is a big challenge to take an ordinance [ed. note, this is actually an amendment] that one hadn't seen before. We had to (analyze it) in a few days. How do you condense four or five pages into four or five sentences? We want to get it right."
"A few days"? The amendments became public documents before December 1st 2005 (over 3 and 1/2 months ago) when petition signatures started. The City's own cost estimate is dated for January 27, 2006 -- clearly they were reading and analyzing the amendment long before March 9th when they finally set the language. The SOS Amendment was even on the agenda
the week before council set the language on March 9th.
Apparently, misrepresenting things to the public is just a habit for the Mayor.
"The city government one"
Judge Yelenosky half-jokingly said yesterday that the City could just name the two propositions "the one about the springs" and the "the one about open government" in order to meet the legal standard of identifying the issue for the voters.
He might be joking, but I agree.
On Monday, I hope that we can just have very simple language for the voters so that they can identify the two propositions. What is wrong with "the open government one" or -- if even the use of the word "open" is too biased for Council -- "the city government one"? The voters only need to know which one, so why not keep it as simple as possible?
The Chronicle thinks that our suggested language paints too prosaic of a picture, and that the city's (now illegal) version only paints death and destruction.
I think that our language was pretty reasonable, but even if, why not we just clear the playing field alltogether and just have a very short, very simple phrase stating which amendment is which.
The actual names of the amendments, Open Government Online and SOS, seem to be the simplest way to do it.
If you think so too,
please follow this link to email the entire council and tell them just that.
McCracken says inaccurate ballot language won't change much
In
this morning's Austin American Statesman, we find that City Councilmember Brewster McCracken, rightly dubbed "Brewster the Bully" by environmentalist Robert Singleton, declaring he would press the city council minimally comply with
Judge Yelenosky's order.
McCracken said he expects that the new language will look almost identical to the earlier language with some minor tweaking to address the judge's specific concerns, such as removing the cost estimate and some of the examples. He anticipates that other contentious issues, such as the statement that e-mails to any public official will be placed online in real time, will remain in the final wording.
The judge specifically said the language about emails was inaccurate, so I wonder what McCracken's thinking? I also wonder why he thinks he gets to decide this matter for the other six councilmembers, with no public input? The new language will be decided at a hearing Monday at 10 a.m.
Contact them before then to ask for accurate, descriptive, ballot language for these two amendments.
City of Austin spanked over misleading ballot language
SWEEEEEEEEET!
Score one for the good guys.
Judge Stephen Yelenosky this afternnoon declared that the Austin City Council's proposed ballot language regarding the Open Government Online and Clean Water charter amendments was misleading and ordered it changed. The judge told the City to rewrite the language by Monday afternoon.
Maybe voters and the media will now start to ask: Why did the City propose misleading ballot language? What do they have to hide? That question seemed to hang in the air this afternoon while the judge announced his ruling before an elated audience and a stunned city defense team.
Judge Yelenosky declared that the structure of the ballot language was not descriptive but was "tantamount" to an argument. He relied on a prior ruling related to ballot language authorizing the South Texas Nuclear Project nearly 30 years ago in a case where language was ruled legal because it was NOT argumentative.
Yelenosky criticized the City's language for naming examples that were not representative of the amendment and that were exclusively negative -- thank heavens somebody with some authority noticed! He also faulted the City for using the words "any" and "all" in the ballot language when the amendment included substantial caveats where records wouldn't actually go online.
The most satisfying part of the ruling, to me, related to cost: the judge pointed out that the City of Austin conceded during testimony the amendment would NOT compel a tax increase, despite ballot language approved by City Council falsely claiming the amendment would require a tax hike of $.03 on the dollar. The City's wildly overstated cost figures relied on an estimate that Yelenosky said "was not sufficiently certain." The City had claimed the Open Government amendment would cost $36 million in the near term, but the judge's ruling put the lie to that figure.
Kudos to the plaintiffs, including the founder of this blog Jordan Hatcher, and the citizens of Austin who now will get an opportunity to vote on fair ballot language that accurately represents the amendment.
Court update and the new Chronicle
We got to get started right at 9AM in Judge Yelenosky's court. The hearing is underway as I write this. Buck Wood, election attorney for the plaintiff's started with the testimony of Kathy Mitchell, of the ACLU, and Glen Maxey, former state representative.
The issues for today are whether the language amounts to prohibited electioneering and whether the court has jurisdiction to hear a dispute about the ballot language at this stage of the game.
In other news, the Austin Chronicle is out and has coverage about the amendments and
last week's press conference. I noticed one thing I would like to point out.
King's article,
Greens vs. Greens, has Ted Siff quoted as saying "part of the reason for the bond election postponement [from May to November] was the introduction of these amendments." On the opposite page, in
Beside the Point, Dunbar addresses the same issue and states that
"The latest council spin is that the "open government" amendment pushed the bonds back to November – because the cost is so high, those poor bonds would just have to be re-jiggered. Never mind the fact that the decision to delay the bonds was made before the signatures were dry on the amendment petitions."
Supporters of the Open Government Online amendment met early on with the City of Austin about the impact of the amendments and the City had already decided to delay the bonds. The bond delay is not a result of this amendment, and we believe that when the dust settles that the amendment will cost far less than what the City says and not have any impact on bond money.
Off to court
As many of you know, I, along with such community leaders as Glen Maxey, Ann del Llano, and Jeff Jack are plaintiffs in a lawsuit against the City of Austin over the ballot language. The suit alleges that the City has wrongly used its power to set the ballot language to electioneer and misrepresent the amendment.
Today, we get our time in court.
The case is on the 9AM docket call, which means we should go sometime this morning. Open Government Austin will be bringing you the latest developments as soon as we know. Luckily, you can get free WiFi in parts of the courthouse.
Petition available here.
Open Government Scorecard
I have created an
Open Government Scorecard that accurately reflects the specific reforms set out in the Open Government Online amendment.
This Scorecard was sent on Monday to all members of the City Council with a request that they send a response back by next Monday, the 3rd.
Several council members, local media pundits, and council candidates have been responding to the Open Government Online Amendment by saying: “I like open government, just not this amendment.” Certain council members have made amorphous promises to make some open government ordinances someday—regardless of what the voters decide in May. They have not, as of yet, committed to either a timetable or to specific open government reforms. They say that they agree with the goals of the amendment, but not its implementation.
So, let's all take a step back from the politics and look at what the amendment really is: The Open Government Online Amendment is a request for a very specific list of reforms on a very specific timetable. It is, in effect, a position statement.
Will the opponents state their position?
I hope that this Scorecard will allow for a debate based on the amendment and its goals and not on erroneous interpretations and will allow the voters to see where the objections truly lie.
Open Government ScorecardLetter to Lee LeffingwellLetter to Council
KUT covers lawsuit over misleading ballot language
Listen to KUT's coverage of the citizen lawsuit to overturn Austin city council's misleading ballot language on two citizen-proposed initiatives - the Open Government Online and Clean Water chater amendments.
Complaints against police won't be destroyed if charter amendment passes
I just attended a forum sponsored by the Gray Panthers at the AFL-CIO building in Austin where advocates for the Open Government Online charter amendment got to go head to head with two Austin city councilmembers debating the subject for the first time that I've seen. Lee Leffingwell and Betty Dunkerly were there representing city council, while ACLU Central Texas chapter president Kathy Mitchell and Colin Clark of the Save Our Springs Alliance were on the dais representing the Open Government amendment.
I wanted to respond to one misrepresentation of the amendment in particular that I have firsthand knowledge about as director of the ACLU of Texas' Police Accountability Project - the public/private status of police records. As the Texas Observer put it in it's March 24 issue, over the years I've filed "a slew of massive open records requests" with Texas law enforcement agencies, so though I'm not a lawyer, I know this subject pretty well.
Leffingwell rightly told the group that the debate over what police records should be public hinged on an optional, secret personnel file the city is allowed to keep under the state civil service codes - the file is authorized under the Local Government Code Section 143.089(g). Austin voted to opt in to the state civil service code about five decades ago, but the Legislature gave "civil service" cities the option to close police misconduct records in 1989; Austin and about 72 other police departments immediately created these secret files and began keeping all records about police misconduct in them.
Leffingwell mistakenly told the crowd that if Austin PD couldn't keep this secret file, they'd have to destroy information including "complaints" against police officers and other critical data.
That's not so. Proposition 1 is carefully crafted to make public only records that state law--including the Civil Service Code--allows cities make public or confidential at their local discretion. It's simply untrue that records about police misconduct would be destroyed if the charter amendment passes. The public would just get to see more of them.
Texas civil service law only governs records for 73 cities, and then only if municipalities CHOOSE to keep a secret file. They don't have to. More than 2,000 other law enforcement agencies including the Travis County Sheriff, the Dallas Police Department, El Paso PD operate just fine with all that information public. Changing the rule would put the City of Austin at no greater disability than those other cities--and gives citizens key information about police misconduct.
Leffingwell tried to say, confusingly, that the city would have to "negotiate" this reform with the police union and that it was too expensive to "buy" that concession from them. The police union could just decide not to enter a meet and confer contract, he said, and the law would revert back to the state civil service code.
That's also incorrect, in fact, his comments entirely missed the point: After the amendment passes, the city would have no authority to maintain that secret file under ANY circumstances when the current meet and confer agreement expires.. The union could choose not to negotiate, it's true, but that wouldn't change the city's obligation not to maintain the optional secret 089(g) file. Those records would still become public.
Bottom line: These records about police misconduct are public at the vast majority of law enforcement agencies in the state. There's nothing radical about wanting them open, they were open before 1989, and the city will face no grave detriment if and when it happens. The only people who don't benefit are scared bureaucrats who want to conceal police misconduct, and a small number of misbehaving officers.
Most officers never engage in serious misconduct, but when they do the public has a right to know what's happening at the police department in their name. Opening up those records is just one of the great things about the Open Government charter amendment, but in my opinion it's one of the most important.
