Austin Council members ending cellphone stipend amid open records inquiry

How stipends would play into open records decisions is not clear, experts say.

AMERICAN-STATESMAN STAFF Published: 8:42 p.m. Monday, April 4, 2011

Like many other Austin officials, City Council members for years have received monthly cellphone stipends for doing city business on their personal phones.

But after prosecutors started looking into whether the group has violated state open government laws, their $75-a-month reimbursement raised a question: Would the reimbursements cause call records, text messages and other data to become public?

Now all but one have dropped the stipend.

Several council members said they only became aware recently that they were receiving the stipends as part of their salaries, and they cited various reasons for telling city officials they no longer want the money.

Some would not discuss how heavily open records discussions played in their decisions.

"It appears to me that what they are likely doing is safeguarding against any argument that stipends might transform otherwise nonpublic messages or texts into public messages or texts," said Austin attorney Jim Hemphill of Graves Dougherty Hearon & Moody, who specializes in state open records laws and has represented the American-Statesman.

Hemphill and other legal experts said opinions vary about whether records concerning government business conducted on a cellphone or other personal communication device must be made public. They also said it is unclear how stipends factor into such debates.

"My belief is that use of a private device as a matter of policy, whether we are talking about toll records, text messages or emails, shouldn't be required to be made public through a public information request," said Randy Leavitt, an attorney who is advising the city on open government matters. "Admittedly, this is an evolving area of the law and one that is currently under legislative review."

He said that in the case of Austin City Council members, discussions about the stipends may be "totally irrelevant since none of the council members knew they were receiving the stipend and none of them signed up for the program."

Travis County Attorney David Escamilla in January began looking into whether council members violated state law by privately reaching consensus that should emerge in public.

Escamilla and media outlets, including the American-Statesman, have since sought under the Texas Public Information Act emails between council members, which led to the February release of hundreds of pages of documents. Some of the emails contained unflattering opinions of city officials and others.

Council members did not immediately release emails about city business from their personal email accounts, although some have since done so.

The open records requests triggered debate in City Hall about whether such information must be made public, and those talks also included conversations about the cellphone stipends.

State attorneys general have said in written opinions that government business conducted on personal email accounts should be released.

A potentially definitive case on the matter involving former Dallas Mayor Laura Miller has yet to be decided. In that instance, The Dallas Morning News sought electronic messages from 2005 from Miller's BlackBerry.

A state district judge ruled in favor of the newspaper on summary judgment, but the city took the case to the 5th Court of Appeals in Dallas. That court said it lacked enough information about whether the city had access to the messages, among other concerns, and sent the case back to the trial court.

Austin city officials said stipends are an option for many employees and that the amount ranges depending on their position.

Among council members, Bill Spelman was the lone official receiving the stipend as of Monday. An aide said Spelman was aware he was getting the payment and is considering whether he will keep it.

An attorney representing Mayor Lee Leffingwell did not return calls Monday about the issue, nor did Council Member Sheryl Cole.

It remained unclear how council members learned they were getting the stipends, which are added to their salaries. They are allowed to refrain from talking publicly about discussions with lawyers in executive session.

"When questions first came up about the use of our cellphones, it was a few weeks back, and it was connected with all of this," Council Member Chris Riley said. "I didn't realize I was getting (a stipend). I thought I had declined that, and it was only when this came up that I discovered that I was, and I immediately gave direction to stop that."

Council Member Mike Martinez said, "This is my personal phone, and I want to keep it as such. If there are rules I need to comply with, I need to know what the rules are, and they are very unclear."

Council Member Laura Morrison said she told the city to withhold the reimbursement "just to get real clear in terms of it being my personal responsibility." She declined to answer questions relating to open records and the phone.

Council Member Randi Shade said she asked the city to cut the stipend because "I don't need it. When I was elected, I had a phone, and I didn't need the city to provide me with one."