Commissioner says toll road agency appears to be violating Open Meetings Act

By Sean Collins Walsh
Austin American-Statesman
Originally published Feb. 2, 2016

Travis County Commissioner Brigid Shea on Tuesday called for an investigation into whether the Austin area’s toll road agency is habitually violating the Open Meetings Act.

Shea, a vocal critic of the Central Texas Regional Mobility Authority, said that Charles Heimsath, an agency board member, made statements last week that indicated the authority regularly violates the Open Meetings Act, which prohibits a quorum of any voting body’s members from deliberating outside of public view except in special circumstances.

Over Shea’s objections, the Commissioners Court voted 3-2 Tuesday to reappoint Heimsath to the toll agency’s board. County Judge Sarah Eckhardt also voted no. Shea had argued that the seven-member board — which is made up of six white men and one African-American woman and which is dominated by people in or connected to the real estate industry — needed a new perspective. Heimsath is a consultant for real estate developers.

“I’m ashamed that this body reappointed (Heimsath) when there is such a clear need for diversity of opinion,” she said. “Our current nominee admitted in open court that they essentially talk amongst themselves, and that’s against the Open Meetings Act.”

The statements by Heimsath that raised Shea’s eyebrows came last week when the county commissioners were interviewing him as part of the reappointment process. Asked by Eckhardt to explain why the seven-member toll board votes unanimously so often — one outside group, Public Citizen, said the board hasn’t had a single dissent in 525 votes over the past five years — Heimsath said the agency’s agenda items are first discussed behind closed doors.

“Generally you don’t bring something to a vote if it hasn’t been vetted ahead of time, and there’s a lot of discussion that goes on before something … comes to a vote of the board,” Heimsath said. “We have executive sessions where we deal with difficult issues, and what’s presented in the public doesn’t necessarily reflect all the discussion that’s gone on behind the scenes, and, frankly, it probably shouldn’t in some cases.”

Shea said Tuesday she has reached out to County Attorney David Escamilla’s office and asked him to investigate the board. Escamilla, however, said he isn’t considering her inquiry a formal criminal complaint because it wasn’t in writing. He and Shea agreed Tuesday to make an appointment for her to give a sworn statement that will constitute her complaint.

Austin attorney Fred Lewis, an ethics law expert who has advised state agencies on the Open Meetings Act, said he believes Heimsath’s statements are grounds for an investigation into the agency.

“Whenever you see an entity has no dissent, it suggests very strongly that they have essentially decided everything beforehand,” Lewis said. “That’s a very bad red flag. I mean, no dissents? Five hundred twenty-five votes? Five years? Billions of dollars? Really?”

Heimsath said in a statement Tuesday that he didn’t mean to imply the board illegally deliberates behind closed doors.

“I in no way was implying that the Board had some kind of side bar discussions of issues relating to items of deliberation that would be coming before the Board,” he wrote. “Other than seeking out information from staff and perhaps folks in the community, any discussions I was referring to took place either in open session of the Board, or as provided by state law, in executive session.”

Mike Heiligenstein, the toll agency’s executive director, said that Shea was wrong to suggest the board violates the Open Meetings Act and that he welcomes an investigation.

“I challenge her to do that,” he said of Shea’s lodging a criminal complaint. “That makes my day.”

Heiligenstein said one reason there are so many unanimous votes is that the board, which has three appointees each from Travis and Williamson counties and one from the governor, is nonpartisan. Another reason, he said, is the agency doesn’t make policy choices; it merely executes directives from the Capital Area Metropolitan Planning Organization, the region’s transportation planning agency.

One way that government bodies sometimes get in trouble for Open Meetings Act violations is through what’s known as a “walking quorum,” in which one staff or board member meets separately with a majority of the members and tallies votes before a meeting. Heiligenstein said that, in his 13 years at the agency, he has never asked a board member how they plan to vote on an agenda item, and no board member has ever asked him how another board member will vote.