Monday, November 28, 2011

Towards Ever More Transparent Government

Last week, I summarized the legal arguments against the process used by the Richardson City Council to award City Manager Bill Kefler a 2% raise. I found the arguments either weak or outright bizarre. I asked readers to correct my understanding of the arguments or supply a stronger argument, if they were able. One reader, Nathan Morgan, took me up. What followed was a long comment thread (33 comments now). In my opinion, he offered nothing new, only restating arguments I had included (and rejected) in my original summary of the legal arguments against the city.

So, it's time for me to move on. After the jump, the advice I offered on just how to do that. And to start the ball rolling, a suggestion.

Here was my concluding comment to Nathan in the long exchange:
I think a better strategy would be to admit that legally the city is in the clear here, but in the interest of more and more transparency in government, the city ought to do more than just what's required by law. It ought to be trying to be more and more transparent all the time. But that's not the argument you've been making. You've been hanging your entire case on a legally weak claim that the city is violating the City Charter or the TOMA or maybe some other state law. Which it is not. That's a losing argument for you. And it distracts from a goal -- ever more transparent government -- that many people just might sympathize with.
Source: The Wheel.
So, just what can we do next in the quest for ever more transparent
government? In the council's adopted Statement of Goals are these two
goals in the Governance section:
1. Provide City government meeting agendas with adequate description for citizens to be aware of the topical items to be discussed during the meeting.
2. Provide information to the public in a timely manner.

Two of the criticisms of how the council handled the city manager's raise pertain to these two goals. The first criticism is that the agenda item ("Personnel: Evaluation of City Manager") failed to provide "adequate description." The second criticism is that by moving a raise and voting on it in the same meeting, the raise was presented to the public as a fait accompli, not "in a timely manner" that would have allowed informed public input.

The city met the legal minimum required of it by the Texas Open Meetings Act, the City Charter, and its own goals. But should we be content with minimal compliance? I hope the answer is no. We should always be looking for ways to improve transparency.

And so, finally, here is a suggestion that would support those two goals above, improving transparency above and beyond current practice. Just like there's a movement underway in Washington to require that all bills be posted online for 72 hours before being considered on the House floor, the Richardson City Council could voluntarily adopt a similar rule. The state already requires agendas be posted 72 hours in advance. Why not new ordinances, zoning changes, all motions of substance, such as the raise for the city manager, too?

The council could operate much as it does now, except when a vote is taken, the vote should not be to pass a new ordinance, but to put that new ordinance on next week's consent agenda. Then, assuming no public input is received to change the council's mind in the meantime, the ordinance could be quickly acted on in next week's meeting. There would no reduction in the council's powers. There would be only an inconsequential seven day delay in the passage of ordinances. Most importantly, there would be a significantly increased opportunity for citizen input to council actions. The increased transparency should be a welcome outcome for all.


Nathan Morgan said...

Mark, It would appear that, in spite of your connecting this issue with a 1975 AG opinion regarding the privilege of discussing the compensation of a school district employee in closed session, you might have actually understood my point. There is no good reason for the Richardson City Council to behave in the clandestine manner they do when it comes to processing business in public meetings.

Although your personal conclusion is that their methods are perfectly (or perhaps weakly perfect) legal, the law does not compel public business to be handled in such a secretive manner.

Here, you bring up another interesting practice that obscures issues from the reasonable opportunity for public input, the Consent Agenda.

I don't know if you pay attention to this process, but, if you did, you would notice that there are many items that appear on the consent agenda that are, as you put it, "fait accompli". In English, "already done".

The question rises as to how items get on the Consent Agenda without public disclosure immediately before the vote. How do Council members sufficiently know the details of Consent Agenda items in order to cast a vote?

Were they lobbied by City Staff in a sort of TOMA-prohibited roving quorum operation? (Don't forget members of the city staff attend and participate in closed meetings from start to finish.)

Should, by virtue of conjugal intimacy, the City Manager be considered a member of the governing body regarding prohibition of roving quorum?

Just what is the purpose of the monthly one-on-one, public credit card charged, luncheons hosted by the City Manager with each member of the Council?

Were they secretly briefed on these matters prior to the cursory description disclosed to the public minutes before the vote? Does the law permit members of the inner circle to deliberate on matters of public business outside an official meeting?

The TOMA seems relatively clear in its spirit that public business is to be conducted in an open forum, not in the shadowy, smoky corner of the local steak house.

As I said before, I think, deep down, the people recognize the immorality of public servants exploiting the grey areas of the law to suit their private agenda.

Although opinions are all over the map on this issue, the bottom line is that everybody talks about transparency, but those responsible for making it so employ convenient ways to make it opaque.

Most matters of local government do not involve National Security or proprietary information of a private industry entity.

The citizens of Richardson should have an opportunity to hear the pitch from those considered for positions on Boards and Commissions, and other Council appointments.

Continued next post...

Nathan Morgan said...


The people should have the opportunity to provide input on these, and virtually all public business decisions, in advance with a sufficient length of time for the Council to deliberate over public input prior to the deciding vote.

Detractors will say this has the potential of reducing the conduct of public business to a crawl. Initially, true. But, once a mechanism for full public disclosure is established, and proper committees (See Charter 3.10) are in place, most of the public concern would naturally be resolved at the committee level prior to the Council meeting.

As it is now, all committee assignments for public business are made to city staff.

I once made a public information request for the public notice of committee meetings with reference to City Charter, Section 3.10.

The response I got was the exploitation of a grey area pertaining to the word "thereof" found as a descriptive adjective of "committee" in the Charter.

David Morgan and Pamela Schmidt claimed that there was only one "committee", the Finance Committee. And, that all the public business committee assignments made by the Council to the city staff did not meet the definition of "committee" in the Charter.

Thus, all committee-level business conducted by city staff was immune from the provisions found in the TOMA for the conduct of public business in an open forum.

Citizens are simply shut out of the committee process when it comes to public business in the City of Richardson.

Staff conducts committee meetings without public notice or input, and the majority of preliminary decisions are made outside the public purview.

These, I would submit, are the topic of those regular private conversations over lunch between the City Manager and individual Council members.

This is how City Council members are secretly well-aware of explicit details on Agenda (and Consent Agenda) items and how little, or no discussion takes place in the official public meeting when the deciding vote is taken.

Is it legal? Weakly so, perhaps. But, then there is the requirement to err on the side of openness that seems to so casually be ignored.

Mark Steger said...

Nathan, thanks for the extensive feedback. You ask a lot of questions, make a lot of assumptions and draw a lot of conclusions, too many for me to do justice to here and now. Maybe some day I'll get to some of the new issues you raise.

Nathan Morgan said...

There's nothing difficult about erring on the side of openness, is there? It may be a challenge for some who have grown accustomed to the notion that citizens should defer to the special interests of public employees in matters of public business. That's a recipe for corruption, as history has shown.

Nathan Morgan said...

Mark, It's a pity you don't address the issue of committees with reference to Section 3.10 of the City Charter.

If proper committee level processing of public business was a matter of policy, and committee reports were properly published, the public could be more efficiently afforded that Charter mandated reasonable opportunity to deliver its input. There also could be that more respectable manner of managing the public resources the City's founding fathers intended.

Don't you agree?

Mark Steger said...

Nathan, Richardson's founding fathers thought that putting notices in the newspaper was how you kept the public informed. They couldn't even have imagined the power of the Internet or cable access television. Think of just how much more accessible the city council's operations are today compared with just a few years ago. I am confident that this openness will expand and eventually reach to the boards and commissions and every corner of government. At the same time, I'm aware that it takes time (and money) to implement these new transparency initiatives. Like some others, I may want everything now, but I also realize that I can't realistically expect to get everything immediately.

Nathan Morgan said...

The evolution of posting proper public notice has little to do with the absence of posting proper notice, or the policy of withholding information until it is too late for that reasonable opportunity to deliver public input for prudent consideration of elected representatives.

I'm sure the City's founding fathers graduated from fountain pens, sheep skin parchment, sleeping on saddles and cooking on a campsfire,too. This information age is not new. What is new is a rising public awareness of just how much public information is not readily available or otherwise being concealed.

Think about this a minute more, Mark. How much of the information in question do you think is not already in some digital form? With just a little configuration (and willingness to do so), it could also be available to the public over the Internet.

This is not a matter of comparing outdated communications methods with those available at present. It is about making the highest and best use of available methods in order to maximize the public benefit and service thereto. Isn't it?

Again, we pay better than good money to a large staff of public servants who engage in activities that consume public resources unimaginable to the common citizen.

There is not a good reason the public, at large, should not be fully aware of these expenditures, and, even more so, fully briefed on matters of public business as conveniently as elected, appointed and employed representatives such that the "reasonable opportunity" to deliver public input is as meaningful as the City's founding fathers (and the public who conjugated the Charter) intended.

There is no delay provision in the mandates of the Charter. There is, however, a machine in place dragging its feet on delivering transparency and openness to public information.

Now for a prediction. Hide and watch as outrageous estimates of the cost are crafted and how Council members baulk at their obligation. Consider the opportunity cost of spending on any of the many recreational activities in lieu of this core obligation to serve the people.

I have to commend Amir Omar for humiliating the staff into our (pitifully lame) current method of broadcasting and recording two of the unknown number of meetings involving public business. And, I will also take the opportunity to point out that what the public got was another example of minimalism in something public servants could point to as an example of televising (those scant few of many) meetings.

The City of Richardson has a long way to go before it can truly brag about openness and transparency. The citizens are still in the dark and the public servants seem none to anxious to shine the light.

Sassy Texan said...

Here is a new item in that regard that occured Monday night. Executive session to discuss the Oncor Franchise Fee.