Monday, February 25, 2013

City Council Wishes to Restrict What Is Public Information

City Council Wishes to Restrict What Is Public Information
Ordinance Would Exempt Communications Written to the Paso Del Norte Group from Disclosure


The Townsend Allala Open Records Requests

In 2012, Stephanie Townsand Allala submitted a huge open records request that shed sunshine on many of shenanigans occurring at City Hall. Along with the hundreds of documents requested was also proof that the city representatives had not taken the required Open Government training offered by the Texas Attorney General's office. None of them had taken it!

What started as an innocent open records request, it shed light on wrongdoings from the City's dealings with Dame La Mano, the City Manager politicking, shenanigans with the Three Legged Monkey and much more.

Getting Around the Open Records and Meetings Act

What also appeared were many instances of city representatives, especially Steve Ortega, Cortney Niland, Dr. Noe and Susie Byrd using their personal email addresses to conduct city business. Byrd later denied that she ever used her personal email for city business, but this was refuted by many emails in which she discussed city business via her personal email. All this reminds me of the Rocky & Bullwinkle Show in which Boris Badenov tries to bribe the eastern European official who responds, “How dare you come into my office and offer me a bribe...let go into the alley.” Here the official government email is the “office” and the representatives personal email -- is the “ally.”

Currently being investigated is the occurrence of walking quorums which the city representatives appear to have been involved.

City Tries to Get the Texas Attorney General to Side With Them

Learning that business was being conducted via these representatives personal emails, Allala requested any emails in which government business is discussed using the representatives personal emails. The city refused and requested a Texas Attorney General's opinion. In December, the Texas AG ruled the city needed to turn over those emails, effectively ruling against the City of El Paso. The City of El Paso then hired a law firm to sue the Texas AG and this case currently before the court.

Suzie Byrd: We can use our personal emails to get around open records requirements

The main issues here is whether city representatives will be able to circumvent the Texas Open Records Act and the Texas Public Information Act by using their personal emails to conduct government business. You see their government emails are well known to be open records. So it may have lit a light bulb in the heads of Suzie Byrd and Steve Ortega to get around this by using their personal email addresses respectively.

The Current Ploy

Now the City of El Paso seeks to redefine what is public information. In an ordinance to be submitted Tuesday, the council seeks to define “communication that constitute the transaction of official business of the City of El Paso....” Read the ordinance for yourself.

In the first clause of their ordinance, they cite “home rule” as if El Paso, being under “home rule,” is exempt from the TOMA and TPIA.

Next they dissect the definition of “public information” within the TPIA Section 552.002 stressing as they have done in court that if the City does not have access to the information, it is not “public information.”

Further down the ordinances states that “the transaction of official business” which is used in the TPIA and the Texas Local Government Records Act “is not defined by Texas law...” The ordinance states that the Texas definition is “ambiguous, can cause confusion as to the duties of the City representatives and alternative definitions may result in the illegal intrusion into individual privacy rights of all city employees, volunteers, and/or officials; that such conflict can interfere with and impede city business by raising question regarding the authenticity and the authority of City representatives' communicators; thereby, shaking the faith in official city communications...”

The Guise of Privacy

Well, God only knows that some of these City Representatives don't need our help in “shaking the faith.” But what is interesting about this clause is the City is acting as if it is protecting the City employees, when the real rational behind this ordinance is to protect one employee – City Manager Joyce Wilson -- and the City Representatives. Then the ordinance plays on the protection of privacy rights. However, the Texas AG as well as the courts have spoken to this point stating you cannot use privacy as a shield to hide your unlawful conduct.

Further down on #2 c., the ordinance defines “transaction of official business.” This is where it gets interesting.

It is basically says that “transaction of official business” are “only those communications” conducted while the person is “performing part of” the person's duties to the City of El Paso and another party.

So in effect, this would make it difficult to prove that Joyce Wilson was “performing part of” her duties to the city and another party. We already know she performs duties for other parties, but in effect, she can “transact” “official business,” but if it is not while she is “performing part of: her duties to the city, it would not be “transaction of official business.” Ooo, get those mojitos chillen.

Next, in #2 c.i.1., it states that “political communications by an employee...or elected/appointed office holder,” are not transactions of official business." 

For instance, Wilson has been found politicking for Beto O'Roarke, Steve Ortega, and for the Downtown baseball stadium, all which is outside her duties as City Manager and prohibited by city employees. This would basically make her politicking legal.

As for the City Representatives, the vague and open wording of “political communications” make it that this can cover just about anything.

Protecting the Paso Del Norte Group

If you ever saw an unnamed group written into an ordinance, this is it.

Other items that would not be “transactions of official business” would be “communications by an employee, volunteer, or elected/appointed official, had on behalf of another organization or entity while or in connection with transacting business on that organization's behalf, whether the business is a for-profit, non-profit, or other government or quasi-government entity...” A few names come to mind:

  • El Paso Chamber of Commerce (nonprofit)
  • El Paso Coalition for the Homeless
  • Paso del Norte Group (nonprofit)
  • Redco
  • Downtown Development Corporation
  • REIT
  • Project Arriba (non profit)
  • Salvation Army

We then get to the gold of the ordinance:

Personal communication made in the individual's personal capacity that are not communications made in the official capacity held by the person engaged in communication.

This basically put all communication made via city representative's personal email accounts under the vague “not communication made in the official capacity held by the person engaged in communication.”

Leak Prevention, Whistleblower Retaliation, and 1st Amendment Intimidation

In 3), 4) and 5) we basically requires any employee who comes access local government records needs to “deliver such record to the City within a reasonable time....” 

Would this be even if the records point to wrong doing?

Second, in 4), it takes an aim at private citizens in “possession of a Local Government Record...where that possession is not authorized by law, is...ordered and shall immediately return and/or surrender any...record.”

I see some First Amendment issues brewing here.

What if reporters come across records in which the city did not not give authorization to be released?

What if you have evidence of wrongdoing and want to post them on the Internet?

5) basically says the City can go into District Court “for a determination as to whether the purported Local Government Record is the property of the City.”

In 6) and 7), these involved the Public Information Officer and I'm still wondering why. More on this later.

8) basically makes that if the city does not have access to it and it is in the possession of a private person, it is not “information accessible to the City” until you go to court and make it so.

This paints a disturbing picture of darkness over our city government. With all the criticism toward the El Paso Independent School Districts lack of sunshine, some fingers deserved to be pointed the other way. One would expect the City to make is easier to get public information, but instead, it tries to pass this ordinance to make it much more difficult. Furthermore, such blatent efforts to protect communication regarding the likes of the Paso del Norte Group are disturbing.