Brewster, you lost, not us
Brewster McCracken made a sound bite/statement that was nothing more than misinformation aimed at persuading the other council members to follow his lead on quashing Proposition 1 at Monday’s special session to fix the City's
illegal ballot language. This incorrect statement has been caught up by several media outlets around town, and so some context and accuracy needs to be brought up in order to stop this misstatement from spreading.
The Chronicle
described the events thusly:
Describing the e-mail clause, he [McCracken] virtually blew raspberries at the audience. "That was litigated and you all lost. ... [T]his language has been upheld as being accurate," he said, generating chamber-rattling boos and catcalls of "Liar!" and "Shame!"
This is referring to his, and other council members', insistence that emails will go online. This mistaken interpretation
remained in the new ballot language under section (b):
(b) to require that private citizens' emails to public officials be placed on the City website in "real time," including emails or electronic communications between private citizens and public officials in all City departments, and limit the ability of citizens to keep private the details of these communications, unless legal exceptions apply;
The truth about this interpretation and the fact that the amendment does not require emails to go online has been blogged extensively on Open Government Austin, and is available
here,
here, and
here. But I digress; this post is about the court ruling and its interpretation.
McCracken adds error upon error and somehow thinks that the Court ruled that emails must go online. Nothing could be further from the truth—that is why he generated such a harsh reaction that day. He repeatedly referred the audience and the rest of Council to page 10 of the hearing transcript (not the written ruling), where the court discusses the “any” and “all” issue. He took out this quote:
“all private emails to any public official in all city departments, and the last, to all city departments, may very well be correct.”
But the whole paragraph actually reads:
The only instance [using “any” and “all”] I had in mind was with respect to the [first] ballot measure, was all private emails to any public official in all city departments, and the last, to all city departments, may very well be correct. I don’t know that there are any city departments that would be excluded but certainly private citizens emails to any public official because there are exceptions that apply.
The exceptions the judge is referring to in the last sentence are all of the privacy laws that protect private information from being disclosed, online or off. We won on that one – though the ballot language still does not accurately reflect these protections in the amendment.
But Brewster is off on a different tangent. Brewster wants to turn “may very well be correct” into a pronouncement that the amendment requires all email to go online. I don’t know about you, but my dictionary refers to the word “may” as a “contingency or liability; possibility or probability.”
The judge simply did not express an opinion as to whether emails were required to go online.
What was important to his ruling was that the Council had grossly overstepped their bounds by portraying the amendment as somehow overriding all of the privacy protections that the law grants us, and that the amendment preserves. This is a simple matter of the pecking order of city government, which is explained
here. We won on that issue. The court just didn't rule on the interpretation of the amendment.
So no, Brewster, we didn’t lose.
Council fails scorecard... so far
What with the
court ruling that
they committed illegal electioneering, and their poor attempts to fix it in a special session on Monday (except for
Danny Thomas!), I know that the City Council has been busy.
No one has filled out
the Open Government Scorecard.
Last week,
I sent out the Open Government Scorecard by fax, email, and regular mail to all members of City Council to see how they respond. The Scorecard is an easy, step-by-step, walk through each specific reform asked for by the Open Government Online Amendment. It was designed to put aside some of the Council’s arguments that they support open government but that they do not support this amendment and to get each one to commit to reforming our city government.
The lone official response that I have received so far is from Lee Leffingwell, and he declined to fill out the Scorecard.
Mr. Leffingwell almost immediately sent back a response by email. He actually refused to answer the Open Government Scorecard because
he wants to keep his open government ordinances secret. I am not kidding. This was said without one single shred of irony.
Here is the exact language he used, when asked if he would answer which open government reforms laid out in the Open Government Online Amendment he supports:
I AM STILL IN THE DISCUSSION STAGE WITH REGARD TO WRITING THE ORDINANCE, AND SO CAN'T COMMENT ON ANY ASPECT OF YOUR SCORECARD AT THIS TIME.
You can read it for yourself
here.
Apparently, it is important to keep discussions on open government a secret. Sounds more than a little funny to me. Secrecy must be a requirement of the job.
He wouldn’t commit to a timeframe for his plan to introduce his set of reforms either, leaving the voters with serious doubts as to whether he is just offering this possibility as yet another way
to (ab)use his power as an elected official to try to dissuade the voters. When specifically asked about whether he would commit to opening up the City’s AMANDA system, which he seemed to say
at the press conference, he declined to answer directly. He instead used a looser phrasing, saying only that this information “should” be posted online. Too bad he didn’t take the opportunity to address the more practical “how” and “when” rather than giving a bland wish to open up this process. The Open Government Online Amendment, however, does require this system to be open.
Leffingwell also seemed to acknowledge that the City's cost estimate is too high and their interpretation too broad when he stated he referred to the cost "
potentially required" by the amendment. Now if he would just take the next step and realize what the OGO actually requires to be placed online and what THAT would cost, we would be approaching a rational debate on the topic. If he would fill it out, the Open Government Scorecard might help clarify things for him.
I went to check the mail this morning to see if anyone else had bothered to respond, but no Scorecards were waiting in the box. I called each Council member’s office to ask if they were planning on responding, but either got voicemail or a staffer saying that they will check on it. I am still holding out some hope that one of them will take a small amount of time to answer the simple questions I asked. But since I said April 3rd for a deadline, this is your update.
Email the council and tell them you want them to answer the scorecard.
Congratulations Danny Thomas
Congratulations to Danny Thomas for being the only member of the Austin City Council willing to say the obvious: The ballot language approved by the council for the two citizen-initiated charter amendments did not meet the "fairness" standard
laid out last Thursday by Judge Stephen Yelenosky in his judicial order. (See the
Statesman's coverage.) Here's the new language:
Proposition 1: Shall the City Charter be amended: (a) to provide online access to public information, which for the most part is already available, by creating an online electronic data system for most city communications and documents at taxpayer expense; (b) to require that private citizens' emails to public officials be placed on the city website in "real time," including emails or electronic communications between private citizens and public officials in all city departments, and limit the ability of citizens to keep private the details of these communications, unless legal exceptions apply; (c) to require that the heads of all city departments, all city manager's staff and all City Council members and their staff post online in real time information about meetings and phone calls with private citizens; and (d) to prohibit the city from exercising state law protection for information that could expose the city and taxpayers to greater financial and legal liability and risk?
What do you think of it? I think it's still misleading, though better than before.
Judge Yelenosky criticized the City's original language for containing only negative examples and no postive ones. He said the problem could be solved by eliminating all examples, or by including positive ones. But the council merely edited the existing language, and added no counterbalancing positive statements about the amendments. As several speakers pointed out, that's not complying with the order in good faith.
Council also included language making
mistaken claims about email that the judge said "is misleading." All of section (B) in the ballot language is just flat out false. Nothing in the amendment requires emails to go online except where the council determines it's "possible," "practical," not violative of privacy rights, and not exempted by other state or federal laws. The judge said those caveats should be included if putting emails online was discussed, but the council kept much of the old language in there.
Even the first section (A) is technically false - the amendment does not require creation of a system to put all city documents online. It requires certain, specified documents to go online in a specified timeframe, and tells the City in the future to put more records online when the council decides it's "possible," "practical" and doesn't violate anyone's privacy rights. What they're claiming here is much broader than what the amendment really does.
They did take out the City's bogus cost estimate after the judge pointed out in his order the city conceded no tax increase would be necessary. Section (C) is mostly accurate but skewed and incomplete. Section (D) is pure argument, not descriptive of the amendment at all.
Brewster McCracken continued his disingenuous, defiant stance, claiming openly from the dais that the judge approved portions of the ballot language as acceptable when in fact the judge expressly called those sections "misleading"! At least Councilmembers Thomas and Kim had the grace to be more contrite. The rest seemed angry, defiant, not in a mood to more than minimally comply with the order. As CleanAustin.org spokesperson Ann del Llano pointed out, this was the first time in Texas history a court has had to overturn ballot language and order a city council to make it more fair. Never in the history of this state has that happened before.
Bottom line, City Council still wants to play games. They like to make up impractical schemes where putting records online would create problems, then pretend the amendment "requires" them to implement whatever they just made up, no matter how stupid, ignoring what the amendment really says. That may be an effective campaign tactic, but the judge said they shouldn't do it on the ballot.
Even so, this is the language voters will see May 13. Mail ballots must go out soon and it's too late for the language to change again. Even if the judge rules the language is still unfair, the only remedy would be to overturn the election if we lose. So let's don't lose.
Will the City respect a judge's order? We'll know soon
New ballot language should be approved this morning for the Open Government Online charter amendment after a district judge told the Austin City Council their attempt to mislead the public was improper.
Read the
judge's order for yourself (pdf). That's what I'm doing while I'm waiting in City Council chambers for them to get out of executive session.
Judge Stephen Yelenosky last Thursday told the City they must identify the chief feature of the amendment, which is public information - the current ballot langague only lists misleading, negative information without even stating the purpose of the amendment.
Yelenosky also said that the City must not to claim public email must go online, "because significant exceptions apply," and told them they could not claim the amendment would require a tax increase, since the City admitted to the judge that it would not.
The City Council should view this second opportunity to draft ballot language as a chance to redeem themselves - they tried to pull a fast one last time and they got caught. Now if they do the right thing, all would be forgiven. If they continue to try to thwart voters' right to a fair election, though, Austin voters will remember it, I bet, for a long time.
The councilmembers are all filing back in now, so I'll end this and post more when we know more.
Plaintiffs' proposed ballot language
I figured that all of the Open Government Austin readers out there would like to know the proposed language sent to Council for
today's court-ordered rewrite at 10AM at the City Council (Ceasar Chavez and Lavaca):
“Proposition 1-- Shall the City of Austin Charter be amended to place certain public documents on the Internet, to place additional information on the Internet to the greatest extent practical and protective of privacy, to ensure that public records are archived, to open certain new information when requested under the Public Information Act including police misconduct records, and to conduct public meetings to negotiate economic development agreements and the police meet and confer contract?”
Glen Maxey, former state representative and plaintiff in the suit, said that "The city has a chance to make democracy work." We will find out what the council does starting at 10. I'll be blogging it as soon as possible on the City's free WiFi in the Council Chamber.
