Sunday, March 29, 2009

Reversal of something or other

Interesting comment on a recent Picayune article:
Posted by stinc on 03/23/09 at 8:26AM

Tracie Washington KNOWS the rules. She was the attorney for Capital Metro in Austin Texas, their version of RTA. She was fired for calling the local prosecuting attorney an SOB in front of reporters in 1997 after he threatened to subpoena records she refused to hand over. If you check the archives of the Austin American Statesman and the Austin Business Journal you will find story after story of Tracie's obstructionist activities regarding open records. She refused to release records regarding a freight rail contractor and had to be sued to turn over records about a $400,000 parking lot that Metro had built for Praise Tabernacle church, saying it would be a park and ride but then quickly cancelling any plans to actually run service to the lot.

She KNOWS the rules. White KNOWS the rules. Nagin KNOWS the rules. They just don't like 'em and they are gaming us.

I couldn't find any working links on Google, but a search of the Austin American Statesman's archives reveals that the commenter was basically correct. Veronica White's good friend (and attorney?), Tracie Washington got into trouble, and was ultimately dismissed, as Cap Metro's chief counsel for obstructionist tactics involving the release of public records. I couldn't find any evidence that Washington was involved in the decision to pay a local church $500,000 to build a transfer station and park-and-ride servicing a line that was scheduled to be discontinued, but she did her best to obstruct efforts to investigate the deal. She was dismissed after publicly calling an attorney investigating the deal a "son of a bitch." That was the final straw, not the sole cause. FWIW, I looked but couldn't find any record of a Statesman op-ed piece about a stereotype of white, male aggressiveness.

As I said, no working links. However, I can provide excerpts from Austin American Statesman articles with date and headlines. Too nice a day to sit inside doing that. Partially edited the first, with plans to post two or three paragraphs from seven or eight articles, but realized it would take all day. What follows is one partially edited article, one complete article, and two editorials.

Mar. 5, 1997:
Statesman sues to get records of Cap Metro; Newspaper seeks files on

The Austin American-Statesman on Tuesday sued Capital Metro, claiming the transit authority has broken state law by refusing requests for records detailing how the agency spends taxpayer money.

State District Judge Joseph Hart ordered Cap Metro to appear in court April 3 to explain why the records should not be made public.

The requested records range from the compensation package for General Manager Justin Augustine III to a computerized list of the checks that Capital Metro writes. Also requested was a computer database of employee payroll information, which is routinely given to the newspaper by other public agencies including the City of Austin and the State of Texas.

Some of the requests have been pending since September. State law requires any public agency to release information within a reasonable period after such requests, or to ask for an opinion from the Texas attorney general within 10 days.

The suit alleges that the transit authority did neither.
Augustine said he thought the agency had provided the information.

I think we've got a big misunderstanding over here,'' he said.

Since last Sept. 17, the newspaper has filed seven requests for information from the agency. The agency provided some information, but failed to provide a vast amount of what was requested, according to the lawsuit

The lawsuit came after other efforts by the newspaper to resolve the issue.

The most recent occurred Feb. 21, when another of the newspaper's lawyers, Jim Hemphill, sent a letter to Augustine and the Capital Metro board, listing the information that had not been released and asking again that it be released.

On Feb. 28, Capital Metro General Counsel Tracie Washington sent a letter to Hemphill saying that Irie Turner, the agency's contracts manager, who used to be in charge of public information requests, already had provided the information.

The lawsuit states that the information has not been provided. I apologize if you have not gotten the information,'' Washington said Tuesday, when told the American-Statesman had not been given the database and other documents. I don't know what's happened in the past. ... I have been responding.''

Some records provided

The American-Statesman is interested in details of the compensation offered to Augustine last summer when he was hired to head the agency. At the time, the information was not publicly divulged.

On Tuesday, after the lawsuit was filed, Washington said that the transit authority does not offer compensation packages as described by the newspaper in its request. Details of Augustine's salary and benefits, she said, are included in a contract. If the newspaper had worded its request to ask for a contract instead of the compensation package, Washington said the information would have been provided.

Capital Metro did send the newspaper a list of salaries for the agency's top 10 employees, but no information about other compensation. Augustine's salary was listed at $118,500.

In her letter Feb. 28 to Hemphill, Washington said a computer payroll database requested by the newspaper could not be produced because it contains confidential information, such as Social Security numbers. The agency, however, never asked the state attorney general's office for a ruling on whether the information could be withheld from the public.

Washington said Tuesday she will try to make the database available without the confidential information.

The agency also did not produce phone records, which the agency said Tuesday after the lawsuit was filed would cost more than $13,000 to produce, and a federal performance report requested by the newspaper.
Nancy Monson, executive director of the Freedom of Information Foundation of Texas, said information from public agencies is presumed to be public unless the agency proves otherwise.

If they never get back with you and never go to the attorney general, it is public information,'' she said. Then you've got a legal situation.''

Board chairman concurs

David A. Anderson, a University of Texas law professor who specializes in media law, said the information requested by the American-Statesman sounds like all public records to me.''

He said the public should care because there's a lot of public money in Capital Metro.'' The transit authority gets $88 million of its $118 million annual budget from a one-cent sales tax.
March 16, 1997
Bus agency spotty on openness; People seeking Cap Metro files

When Doug Killough asked Capital Metro in late January for all railroad -related expenditures,'' he expected to discover how the agency was spending taxpayer dollars to improve its rail line for light-rail transit.

Instead, he got nothing.

Even as Capital Metro was spending $500,000 to promote a light-rail demonstration last month, the transit agency's chief counsel, Tracie Washington, was writing Killough about the light-rail expenditures: In my opinion this is not railroad related, but transit related.''

Killough's experience is not an isolated incident, according to a survey of people who requested public records from the transit agency over the past year.

Capital Metro often releases routine information such as board minutes or provides documents to people either doing business or wanting to do business with the agency. Yet at times the agency delays the release of public information, particularly about its performance and how it spends tax dollars, or denies it has documents that it later is forced to release.

Capital Metro does this although state law entitles the public to such information in a reasonable time. If an agency considers the information confidential, it has 10 days to say it will appeal to the attorney general. If it doesn't, the information must be released to the public.

Among the cases in which there have been problems getting information from Capital Metro:

*On Jan. 20, attorney William Hubbarth sought personnel records, plus --policies dealing with employee discipline or the Americans with Disabilities Act. Hubbarth is representing two people Capital Metro fired.

On Feb. 3, the agency told Hubbarth it had no discipline or disability policies. After a month of wrangling and threatening a lawsuit, Hubbarth said he finally got the records.

*Last summer, KVUE television reporter Treva Ladd, trying said. We're spending a gazillion dollars on breakdowns, and I got nothing.''

She read from her request: Radio room logs (i.e. driver's radio calls into Capital Metro dispatch) for January 1, 1995, to August 21, 1996.'

How much more specific can you get?'' Ladd asked.

*Twelve days ago, the Austin American-Statesman sued Capital Metro after the agency refused for months to provide public records information routinely disclosed by other public agencies, including the compensation package of General Manager Justin Augustine III. Tracie Washington, Capital Metro's chief counsel, said the newspaper should have asked for Augustine's employment contract, not his compensation package. A day after the lawsuit was filed, the agency released most of the records.

All of this comes as Capital Metro, which collects $88 million in sales taxes for its $118 million budget, is trying to move forward on light rail. Meanwhile, its critics are pressing for legislation to give voters a greater say over Capital Metro's taxes, leadership and the future of light rail.

Is this flap over public records just a misunderstanding, as Augustine suggested when the newspaper filed its lawsuit, or is the agency trying to stifle criticism by not releasing records?

Capital Metro officials won't say. Interviews with Augustine and Washington were requested on Tuesday. Washington, through the agency press office, agreed to a Friday interview, then canceled that morning.

Irie Turner, the agency's purchasing director, was in charge of requests for public records last year when the American-Statesman and KVUE did not get their records. Washington, who joined Capital Metro last fall as chief counsel, took over the assigment this year.

Since then, dialogue between the public and the agency has become shrill at times. Correspondence between Washington, Killough, Hubbarth, among others, refers to accusations, threats and irate phone calls.

Killough threatened to file a complaint with the attorney general. Hubbarth, after threatening to sue and file a complaint of official misconduct against Washington, got his records, including information from personnel files. Both said Washington was rude and confrontational on the phone.

She told me, We're doing things here differently now. I'm the big dog and you're going to have to deal with me,'' Hubbarth said.

Not everyone has had a problem getting public records from Capital Metro. The agency provided the names of 18 people and companiesto comment; and four couldnot be contacted.

David Wittie, a member of a local group of people with disabilities, said he had no problem getting minutes and a tape of a board meeting. Bertha Means, the owner of Austin Cab, said she was pleased with the response to her request for information on a program under which her company does business with Capital Metro.

Adstaff, a temporary services company, was given copies of Capital Metro's current contracts with temp agencies.

The state attorney general's office and the IRS reported no problem getting records. Neither did Bob Butler, a partner in a brick company,who said Capital Metro gave him copies of a rail freight contract. Butler was considering shipping freight on the agency's rail line but never did.

Fighting over records

Killough has followed Capital Metro since he and his partners lost a bidto operate a freight company along the rail line that Capital Metro manages and is likely to be the spine of any light-rail project.

Last fall, Killough and his partners requested a progress report by the winning bidder, Longhorn Railway. Killough said he wondered if taxpayer money was paying for improvements in the track that he believes Longhorn is responsible for.

As required by law, Capital Metro asked Longhorn Railway if the report included confidential company information.

At Longhorn's behest, Capital Metro asked the attorney general to keep the report confidential. The state lawyer dismissed Capital Metro's arguments that federal law prevented disclosure or that transit officials might be ensnarled in a lawsuit between Longhorn and one of Killough's partners. The attorney general ordered the report released with the names of Longhorn's customers blacked out.

Killough is objecting that Capital Metro blacked out too much information, including the names of investors instead of just customers.

As part of that dispute, Washington refused to disclose any railroadrelated expenditures.'' She contended the agency had not spent any of a $2.7 million budget item for railroads.

She also wrote that she could not interpret what could be considered railroad-related. Then she concluded that the money the agency is spending investigating the purchase of light-rail cars is not railroad-related, but transit-related.''

In her letter, Washington said she suggested further areas of inquiry and implied that Capital Metro did not have some of the information Killough was seeking.

He replied that agency officials said in news reports that the light-rail demonstration in February cost $500,000. There must be an accounting of these rail-related expenditures or Capital Metro could not have made such a claim,'' he wrote.

Killough is still seeking the information.

Despite his confict with Washington, Killough blames Augustine for a change in the agency's attitude toward public records. Until (former General Manager) Michael Bolton left, we had no problem. Once Justin Augustine took over, a veil came down.''

A lawyer's battle

Hubbarth said dealing with Capital Metro became worse after Washington took over open-records requests. She was belligerent,'' he said. Her attitude was If you don't like it, sue me,''' Hubbarth said.Hubbarth said.

Capital Metro didn't appeal Hubbarth's request to the attorney general's office, thus forfeiting its right to argue that the information should not be released.

It will be obvious to even you that more than 10 days has elapsed since my request was received,'' Hubbarth wrote Feb. 6. Therefore ... all the information that I have requested has now become public information, which I demand be provided ... immediately.''

Washington responded to Hubbarth's nasty and misinformed response,'' COMPLAINING that he continued to insist Capital Metro has retained from disclosure information we do not have and (personnel) information to which you are not entitled.''

She expressed frustration that Hubbarth refused Capital Metro's suggestions for resubmitting his request a different way. You perceive our actions to be obstructionist, where all we have attempted to do is assist you.''

About a month after Hubbarth's original request, Washington had her assistant send notice that the information was available.

I got 15 pounds of records -- no charge,'' said Hubbarth, who got the disciplinary and disability policies that Capital Metro at first said did not exist.

March 18, 1997
Cap Metro in the mirror
Capital Metro occupies a sort of looking-glass world, where everything is reversed:

* Openness is secrecy.

* Expedition is delay.

* Politeness is hostility.

* Documents that exist do not -- until the agency is forced to release them.

It is a world where the board of directors pursues a public vote on light rail by failing to ask for legislation to be written -- until a state lawmaker prepares to file his own proposals.

It is a world of the transit authority's own devising. If it does not break out of the looking-glass world into the real world with the rest of us, the agency will continue to be an unsuccessful money pit. Cap Metro is in danger of not only failing to gain the public trust but also of having its taxing authority curtailed and its plans to be a full-service agency derailed.

The lack of openness is especially galling, considering the promises of management to improve. As detailed in Sunday's American-Statesman news story by Laylan Copelin, Cap Metro may be willing to be open, but only selectively.

And the instances cited are not ancient history, but current events, under the regime of general manager Justin Augustine III. The article cited instances of hostile, defensive reaction by Cap Metro's chief counsel, Tracie Washington, to requests for public documents.

It is inexcusable to deny the agency has documents that later prove to exist, whether the denial springs from internal confusion or deliberate -- let us say -- lack of frankness.

Why should members of the public as well as the press have to threaten lawsuit -- or actually file suit, as the American-Statesman was forced to do -- to obtain documents that are unquestionably public information?

So sue me'' is not good public policy, not good public relations, not good period.

Cap Metro board members ought to demand that management begin to be as open as it claims it wants to be. No more misunderstandings.'' No more delaying tactics. No more semantical games. No more hostility to the people whose taxes pay the bills. No more -- let us say -- lack of frankness about whether documents exist.

State law is clear: If the agency thinks requested information is confidential, it has 10 days to say it will appeal to the attorney general. If it doesn't, the information must be released.

The bodies who appoint Cap Metro board members are beginning to notice Cap Metro's bad attitude. So are state lawmakers. It's time the board and management noticed, too.

May 10, 1997
Cap Metro turning point
Capital Metro General Manager Justin Augustine III should use the resignation of agency attorney Tracie Washington as an opportunity to educate his staff about its public mission.

For too long now, Capital Metro's board and staff have bristled at every question about the operation of its bus system. Under Washington's legal advice, the board and staff have arrogantly perpetuated a hostile attitude toward any and all who dare to question their authority, methods or ability.

Copping that same attitude with County Attorney Ken Oden, who has subpoena power and is investigating Capital Metro's unfortunate $500,000 investment in an unneeded park-and-ride lot, was a big mistake. Now that Washington has hied her antagonistic, obstructionist attitude elsewhere, Augustine should take advantage of the opportunity in several ways.

First, he must impress on the staff that they work for, are paid by and answer to the public. And not everyone with a request or a question opposes mass transit. In fact, most of the bus company's staunchest critics stand fast for mass transit. But the way Cap Metro relates to the taxpayers who pay for it has been incredibly stupid.

Second, he can look at the chief counsel position Washington has vacated as the place to begin to rebuild confidence in Capital Metro. The new chief counsel should be someone who understands the value of cooperation over confrontation, openness over obstruction and the desperate need for the bus company to invest in positive public relations with the community that it serves with taxpayer money.

Capital Metro has persisted in its blind obstructionism beyond good sense. Even as Washington refused to cooperate with Oden's investigation and called him a son of a bitch'' in front of his own investigator,the state Legislature is sitting on bills that would radically change Capital Metro.

Austin taxpayers are awe-struck watching Cap Metro self-destruct, wondering just how far it can sink. Legislators, holding bills to change its funding, change its structure and put the light-rail system to a public vote, must be amazed at the bus company's penchant for immolation.

Augustine and the Cap Metro board must accept this latest debacle as a turning point. Cap Metro will never recover if it persists in indulging the bunker mentality that has brought it to such low regard.

Summary: Irie L. Turner, Jr., a former contracts and procurement manager for the Capital Metropolitan Transportation Authority (CMTA) of Austin, TX, was ordered by a U.S. District Court judge in Austin, to pay a $10,000 fine for his role in a conspiracy to defraud CMTA. Turner pleaded guilty in January to conspiring with James Vickers, Jr., in a scheme where Vickers paid Turner to win a $13,000 contract. As part of the scheme, Vickers, a former Lexis-Nexis director of product development and marketing, and senior vice-president of Purconn Unlimited, arranged to pay Turner more than $20,000 through fraudulent invoices to Lexis-Nexis. Turner illegally awarded “low-bidder” Purconn procurement contracts on a project to produce a vendor application form and a policy and procedure manual. The manual provided to CMTA was a plagiarized copy of the Dallas Area Rapid Transit Authority Procurement Regulations. Turner was also sentenced to 1 month in prison and placed on supervised release for 36 months. FTA is undertaking debarment proceedings against Purconn. In September 2001, Vickers was sentenced to 1 month in jail and restoration of $32,000. The investigation was conducted jointly by OIG and the FBI.
I also was reading around the archives of the the archives of the Austin American Statesman and Austin Business Journal. You beat me to the punch on posting.

The only other things that I'll add is Tracie Washington allegedly called one of the attorneys suing Cap Metro a son of a bitch in front of a huge number of media people (TV, paper, radio, etc.). That was the final straw that got her fired.

Also, the parking lot that drew all the attention was owned by the Praise Tabernacle Church. Tracie Washington allegedly had some sort of connection to the minister. Wasn't really made clear in the articles I read, but they alluded to a connection.

Good job.
nicely done. it's relevancy is high, especially considering none of this has been reported by the tp or wwl. nice scoop over the local mainstream press. score for local blogosphere.
Maybe Washington's experience defending a government agency from public records requests gives her some special insight on all of this. Anyone who knows lawyers, knows that they are required to do things they may not like, or want to do, or things they disagree with if the client wants them to. . . In the law profession, the rules of professional responsibility really mean the customer (client) is always right, except when they want to do something that might be a criminal violation of the law. . .

In this case, do you shoot the messenger before reading the (email) messages? Let's wait for the content of the messages . . . if there was nothing to hide, do you think the council would be spending tens of thousands on the high priced Herman law firm to block the release of these email messages, created on taxpayer owned computers and blackberries, sent across a taxpayer owned server, on government time? Which makes them public records except for atty-client communications about PENDING lawsuits and certain personal information (SS numbers, medical and school records). . .pretty much everything else is a public record the courts have held, so they are fair game.
The council in this case is defending both a principle and a variety of specifics.

On principle, they contend that an attorney (and specifically, their attorney) should have the opportunity to review requested records to redact information not subject to public records requests, namely matters under investigation and litigation.

Which brings me to the specifics: the council has stated that there are emails pertaining to ongoing investigations, and in at least one case it's the administration (NOAH) itself being looked at. So should the administration get a look at those? Should they be the entity responsible for determining what's to be redacted? Quite clearly, no.

But even if the answer were yes, this request didn't go to the city attorney. And even if Miss Washington didn't orchestrate the circumvention of city policy (or practice, as Mr. Nagin calls it), as a member of the bar she was fully aware that she was in possession of privileged material, and was duty bound to return it, and certainly prohibited from distributing it.

These facts stand on their own, regardless of the content of the emails.
I rather like this from the op-ed:

"Capital Metro occupies a sort of looking-glass world, where everything is reversed:

* Openness is secrecy.

* Expedition is delay.

* Politeness is hostility.

* Documents that exist do not -- until the agency is forced to release them."

That could officially be adopted for the Nagin/White/Washington document mill.
LJI, Tracie Washington's organization publishes a blog that lists Jacques Morial as a cnotributor...interesting. What's the connection there?
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