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