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Analysis: Some of the secrets of Texas government aren’t supposed to be secrets

The desire to keep government open and transparent, so that the rest of us can look in there and see what’s going on, is often in tension with the preference for secrecy common to people in high places — or low ones.

That second urge is natural: Lots of people want to peek in the neighbor’s house, but most don’t like it when their neighbors peek.

The first urge is important. You ought to be able to see what elected and appointed officials see when they’re making decisions: who they’re talking to and about what, what they’re reading, what their aides are telling them, which lobbyists and contractors and other favor-seekers are lurking.

The two urges regularly confound legislators, whether they like the idea of open government (most do) or they’d like to meet privately once in a while to hash things out without public eyes (most of them).

Both ideas were in evidence on Friday, at the Texas Legislative Conference in New Braunfels. A panel featuring Sens. Paul Bettencourt, R-Houston, and Kirk Watson, D-Austin, (I moderated) turned to open government matters; Watson is sponsoring several bills, with Bettencourt as a supporter. Some of that legislation is up for debate within the next few days, and the two emphasized the importance of open government. It’s not the first time around for the Austin Democrat, who’s been backing open government legislation for years and who finds himself trying to win fights this year that he has fought in previous sessions.

And Bettencourt, a conservative member of the majority party in Texas, is right there with him. In fact, Watson’s problems passing some of his legislation has happened on the other end of the Capitol building, where bills approved in the Senate have gone to die. Bettencourt was incredulous that anyone would want anything but open and transparent government.

A few minutes later, Lt. Gov. Dan Patrick — who has also been a strong voice for open government — made the other point. He wasn’t arguing against transparency, open records or open meetings. But he was telling the same group about how well the state’s top leaders have been getting along, about how — in spite of their differences — they’ve been able to present a united front through the first half of the current legislative session. “We can disagree behind closed doors, but we’re not going to do it where the media can rip us up,” he said.

Somewhere in there is the proper balance between transparency and discretion, between free-for-alls and statecraft, between protecting and thwarting the public interest.

And to top it all, a few hours later, Robert Mueller III, the U.S. special counsel, turned his investigative report over to Attorney General William Barr. What do you think of open government now?

Consider the case of “walking quorums.” If enough members of a public panel, commission, committee, or legislative body get together to make official decisions — if, in other words, they have assembled a quorum — they have to call their meeting in advance and tell the rest of us what they’re doing. That gives us time to go watch and listen if we want to. One way around that kind of scrutiny is for the members of a public body to talk to each other in small groups — smaller than a quorum, so they don’t have to operate in the open — before their open, public meeting. They can be all smiles, get their pre-arranged business done, and go happily on their way.

Walking quorums were illegal until a recent ruling by the Texas Court of Criminal Appeals, which said the law against them was “unconstitutionally vague.” Watson said he didn’t disagree with the logic of the ruling, but he clearly didn’t like the final result; on Monday morning, he’ll be asking other senators to support legislation that would make walking quorums a crime — like they were until a few weeks ago.

Watson will be in another committee on Tuesday, presenting legislation prompted by court rulings on what is and is not secret when the government privatizes some of its business in contracts with private firms, or when quasi-government agencies get involved in economic development negotiations. Those are known generally as the Boeing and the Greater Houston Partnership decisions.

Those are among several open government bills up for consideration this week. State Rep. Giovanni Capriglione, R-Southlake, is carrying companion bills in the House; they got hearings last week.

Think of these as efforts to kick open the doors, so Texans can see what’s being done in their names and with their treasure. Lots of what’s back there is boring. But lots of it is expensive or important or both.

And it’s not their stuff — it’s yours.

Author: ROSS RAMSEY – The Texas Tribune

The 86th Legislature runs from Jan. 8 to May 27. From the state budget to health care to education policy — and the politics behind it all — we focus on what Texans need to know about the biennial legislative session.


Analysis: Oh, You Thought Your State Government Worked For You?

A lot can happen when you’re distracted by presidential politics. The past week offered a few relatively local reminders of why politics matters.

Texas state government can shut down your access to public informationsimply by hiring private businesses to do government work that would otherwise be subject to public scrutiny.

What’s supposed to be the virtuous circle of civics — you elect lawmakers, they get to work, you re-evaluate them on that work and then vote again — has been corrupted. It competes with the commercial circle of civics, where elections are paid for by business interests that are rewarded with state contracts that, incidentally, are protected from public scrutiny because of laws passed by those same business-backed officeholders.

You can blame the Texas Supreme Court, if you’d like, for the ruling that exposed what some call a “monstrous loophole” in the state’s public information laws. Or you can blame the lawmakers who wrote those laws.

Either way, as The Texas Tribune’s Jim Malewitz reported, you can’t find out what it cost McAllen taxpayers to hire Enrique Iglesias to sing in a parade, or how many ride-hailing permits Uber got from the city of Houston.

That’s before you even get to the really big contracts that replace entire departments of state government — in child support, health and human services programs, state prisons and data services.

It might be your money, but the state doesn’t think it’s any of your business.

Your right to choose the people who represent you in government is severely limited.

It’s subverted by self-interested legislators overseen by a lumbering judiciary that preserves the status quo by slow-playing its decisions.

It’s an old gripe about redistricting and other election laws, but that doesn’t mean it’s a misplaced one. Lawmakers choose the voters who will elect them by drawing districts that will keep them or their party — or both — in power.

They’re constrained — barely — by laws that are supposed to prevent some kinds of discrimination. But the courts are painfully slow to remedy unfair political maps, and the process starts all over again when new maps are drawn every decade. It’s hard to replace incumbents voters don’t like, which makes it difficult, for instance, to regulate that “commercial circle” described above.

The litigation over photo voter ID and redistricting that began in 2011 in Texas is still underway. The courts are forcing the state to remove some of its restrictions on voting, but the redistricting judges haven’t done anything — changed maps, made a ruling, raised a question — since their last hearing.

That was two years ago.

The political maps matter. Only a handful of federal and state legislative seats are competitive, and only certain kinds of candidates are truly eligible contestants even in those districts. Those lines are set by the mapmakers, and the courts are supposed to make sure they’re fair — or at least legal — in a timely enough fashion to make a difference.

All of that business and civics stuff might be a little boring. How about life and death?

The safety of Texans with mental illness is sometimes held second to the reputations of the agencies charged with protecting them. ThosetxtribQTirs agencies react to trouble — if at all — by hiding their misdeeds in personnel files and bureaucratic nonsense. A case in point, reported by the Tribune’s Edgar Walters: Keith Clayton, a 55-year-old committed to a state-run psychiatric hospital in Wichita Falls, was killed by attendants there who were trying to restrain him. It took five months for the medical examiner to determine that “an accident” had caused his death. The family, two years later, has never received an explanation.

It recalls something former Gov. Rick Perry said at a public policy conference last month about the power of government.

“Sometimes we forget that the IRS isn’t the only government agency capable of abusing its authority,” he told the American Legislative Exchange Council. “Anyone wielding the power of the state faces the temptation to abuse it.”

Perry was talking about criminal prosecutors run amok. That is hardly the only part of government that either doesn’t do the job it’s supposed to do — like that psych hospital in West Texas — or is doing a job voters had no idea was underway, like the public business outsourced to private firms with limited accountability to voters.

The attention-grabbing wizardry of Donald Trump and Hillary Clinton notwithstanding, there are plenty of examples of what’s really at stake when we choose the people who represent us. Voting isn’t just about personalities, and government isn’t just about partisan politics.

Editor’s note: If you’d like an email notice whenever we publish Ross Ramsey’s column, click here.

Author:   – The Texas Tribune

Texas High Court Carves “Monstrous Loophole” for Government Secrets

Thanks to the Texas Supreme Court, McAllen taxpayers cannot find out how much their city paid Enrique Iglesias to belt out his Latin pop lyrics at a holiday parade.

And Houston cannot release, among other information, how many driver permits it has issued to ride-hailing giant Uber.

A Kaufman County school district’s food service deal? Much of that is now secret, as are details of a Texas Department of Insurance contract for interpretation services.

Those are a few instances among many over the past year in which Texas Attorney General Ken Paxton’s office told local governments not to release information to the public because it is now shielded by a state Supreme Court ruling protecting the secrets of private companies doing business with government agencies.

Such records were considered public before the court’s ruling last year, and open government experts call the decision a broadly written accommodation of business interests that is ripe for abuse.

Now, Texas lawmakers are considering ways to patch up what one calls a “monstrous loophole” in public records law.

“Every single private organization can essentially shut down any information they gave a government entity in perpetuity,” said state Rep. Giovanni Capriglione, R-Southlake, who is working with open records advocates on a legislative fix.

In the June 2015 ruling, the justices ordered Paxton to block the release of certain information in a lease between Boeing and the Port Authority of San Antonio because the aerospace manufacturer said making the details public could tip off its competitors.

The ruling expanded the secrecy of government contracts in two key ways, experts say: by broadening an exemption in public records law used to protect the government’s competitive interests and by affirming that businesses could invoke it, too.

In recent years, the state would withhold otherwise-public records only if their release significantly hindered government’s ability to get a good deal in the marketplace.

Even that application was wider than what the Legislature intended when it created the exemption decades ago, said Joe Larsen, an open government attorney who also serves on the Freedom of Information Foundation of Texas. Originally, lawmakers sought to prevent a bidder for government work from nabbing a competitor’s bids on a contract. And once that contract was finalized, it was considered public, Larsen said.

Not anymore, particularly after the Boeing v. Paxton decision. It lowered the threshold for what can be secret, while affirming that private entities — when government informs them about someone’s request for their information — could invoke the protection when doing government business in Texas.

The test for disclosure “is whether knowing another bidder’s overhead costs would be an advantage, not whether it would be a decisive advantage,” Justice John Devine wrote in his majority opinion.

Trend toward secrecy

Private and public entities have since seized on ruling, using it to persuade Paxton’s office to rule in their favor in a host of records disputes. That’s leaving taxpayers in dark about some government spending — like how much McAllen paid Iglesias for an hourlong concert that featured hit such as “Bailando” and “El Perdon,” according to local news reports.

The city has withheld the records since local news media requested them, arguing that the government has “specific marketplace interests” in the information and releasing it would “place the city at a competitive disadvantage” when negotiating future contracts, according to a March 7 ruling from Paxton’s office. The letter sided with the city and referenced the Boeing decision.

City officials told the Tribune that they had no additional comment.

Paxton’s ruling in the McAllen case echoed many others he has issued over the past year. Some specifically mention that the requested information was considered public before the Boeing decision.

This trend worries advocates of government transparency.

“If there’s a place where corruption can fester, it’s here,” Larsen said. “It’s the interface between those who are seeking to work for the government and the government. That’s where the money is.”

Now, some Texas lawmakers say they’re ready to address the issue next legislative session.

Capriglione said his bill, still in draft form, would essentially return Texas to life before the Boeing ruling, which he said undermined efforts last session to increase transparency in state contracting.

“We want to go back to where the governmental entity essentially gets the power of that exemption.”

He may get bipartisan help. State Rep. Terry Canales, D-Edinburg, is also drafting legislation — spurred by the tussle over the Iglesias contract — that would address the Boeing ruling and specifically list entertainment contracts with the government as public documents.

Steering the bill though the Legislature could prove tricky because the issue is so far-reaching, said Curtis Smith, his chief of staff.

“Often we want to limit the effect of our bills,” he said. “But this touches everything. Everyone will have an opinion on it.”

Some exceptions to the trend

Paxton hasn’t sided with everyone who has invoked Boeing to evade transparency.

Last April, Assistant Attorney General Nicholas Ybarra wrote that Chesapeake Energy failed to show it would face “substantial harm to its competitive position” if the Fort Worth Independent School District released details of its $1 million settlement with the natural gas driller — a resolution of a royalty payment dispute.

More recently, Paxton sided with The Texas Tribune when chemical manufacturer BASF sought to keep secret information related to a $2.4 million Texas Enterprise Fund grant announced in 2015.

Last month, the company sued, asking a Travis County district court to prevent Gov. Greg Abbott‘s office from releasing what it called “sensitive, proprietary, information regarding BASF’s means, methods, and costs.”

Larsen said he was surprised that Paxton had sided with the Tribune, considering the persuasiveness of the Boeing argument.

Bill Cobb, a former deputy in the attorney general’s office, said BASF may have failed on a technicality, since it did not submit a sworn statement detailing how the release would damage the company (Such statements aren’t required, but Cobb said his former employer likes to have them).

Or, perhaps, the decision was just one expected inconsistency from an office that has already churned out more than 1,700 letter rulings this year. It was unlikely that BASF, which cited Boeing, lost on the merits alone, Cobb said.

Author:  – The Texas Tribune

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