During the last two days I have been exploring Veronica Escobar’s stance in her refusal to release text messages and other communications she exchanged between other elected officials about El Paso Police Chief Greg Allen. Escobar has now taken the stance that she, alone, is the only qualified individual to determine what communications are personal and what are public records. As I closed yesterday, I asked you to focus on the last paragraph of the County’s response to my open records request where they tacitly agree that the City may not agree with the County’s position and thus I should ask them for the records.
Lucky for me, I had already done so and the records the City provided in their response to me gave me an idea of what is in Escobar’s communications, that she refuses to release. On July 27, 2016, I shared with you how Veronica Escobar was disappointed in Claudia Ordaz not supporting her on the Greg Allen repudiation attempt. (link) As you can clearly see in that example, Veronica Escobar sent a text message that she argues is not public information, yet, Claudia Ordaz released that text message as a public information record.
How many more such texts exist that Veronica Escobar alleges are not public records and yet the other half thinks it is? Either the text message is a public record or it is not.
I tried searching for other examples to see how other jurisdictions have dealt with this same set of circumstances. I did not find any. I then decided to consult the Texas Attorney General’s Public Information Handbook, version 2016. It did not address the instance of two elected officials exchanging private communications that may be construed as public records. However, the following three things in the handbook address part of the issue:
1. Personal notes made by public employees were not “information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance on in connection with the transaction of official business.” This example referenced “Open Records Decision No. 77 (1975)”
2. Public information in the possession of a private individual, whether stored on a government device or on a personal device only is still subject to open records requests. This is addressed in section 552.002(a-2) that reads: “any electronic communication crated, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business.”
3. Public information is defined as “any matter over which a governmental body has any authority, administrative duties, or advisory duties,” then the information is subject to the Texas Public Information Act.
I then decided to look at the two rules, or laws that govern Veronica Escobar as the County Judge. Public information laws are governed by federal law and by state law as well as local ordinances. In the case of Veronica Escobar, as the county judge, she is governed by the Texas Public Information Act as well as the County’s Code of Ethics. The state law has clearer requirements and penalties for ignoring the state’ open records laws. As many of you know, there is intent when it comes to laws and then there is the standards set by precedent, or previous court rulings.
The El Paso County Ethics Commission’ Code of Ethics, which became effective on September 1, 2011, was last amended last April. The Code of Ethics does not address public information directly but it does make mention of “political activity”. Since, Veronica Escobar stated that her communications in regards to El Paso Police Chief Greg Allen’s comments were “political activities” I looked to see how the county’s ethics rules defines political activities.
Section eleven of the ethics code states that county elected officials must not use county resources for political activities. It does not define what political activities are. The rest of the code mainly focuses on county contracts and how public officials shall deal with them.
The public information law for the State of Texas (Title 5) codifies that the government must adhere “to the principal that government is the servant and not the master of the people.” The law specifically states that “it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.”
At this point I have three issues that I believe need to be addressed:
1. Are private communications between elected officials not subject to open records requests if they do not pertain to public business? If so, what will stop public officials from colluding privately?
2. Did Veronica Escobar act in her official capacity when she sent out her letter to the mayor and city representatives? Remember that Veronica Escobar is alleging that her activities were political in nature. I wanted to see how political activity is defined and therefore I looked at the federal government for help in defining what it means. According to the Hatch Act, political activity means an active support or opposition of a candidate or political party. The obvious exception to the Hatch Act is casting a vote in an election.
3. Did the signatures of other county elected officials make the letter a public record? If so, are the deliberations to create the letter not a public record?
These are important questions that clearly deserve an answer.
However, it all comes down to trust. Do you trust Veronica Escobar to be honest enough to tell you what communications in her private accounts/devices are public information records subject to disclosure under the Texas Public Information Act?
That is what she is demanding of you by refusing to release the communications she had with others, including elected officials, in formulating the letter demanding that city council repudiate Greg Allen for his comments.
Those of you who believe that public records are an important element of the Democracy should be alarmed that Veronica Escobar has embarked on a scheme to keep you from knowing how she arrives at public policy decisions because, she herself, is the only one that determines what is political activity and what is a public record. Last time I looked at the US naturalization test it reminded me that the United States is governed under the theory that government has checks and balances in place to keep the power in the hands of the people. Where are the checks and balances by having Veronica Escobar make the sole determination as to what constitutes a public record and what does not?