Editorial: Investigation can determine whether mobility authority broke open meetings law

By Editorial Board
Austin American-Statesman
Originally published Feb. 6, 2016

The Central Texas Regional Mobility Authority again has come under fire regarding concerns about whether it is doing the public’s business in secret.

At this point, there are few options in getting answers from CTRMA officials, whose statements to Travis County commissioners last week triggered questions about whether they are violating the Texas Open Meetings Act. The CTRMA is an independent governing agency with no direct accountability to the public. For those reasons, as well as the agency’s history of shielding information from the public, we support Travis County Commissioner Brigid Shea’s call for an investigation by the county attorney’s office.

At the very least, the air needs to be cleared.

While there is no smoking gun, there certainly is enough information to justify an inquiry by Travis County Attorney David Escamilla. CTRMA officials deny they’ve violated provisions of the open meetings law. Point taken. An investigation would either clear the board of the allegation or hold it accountable for violating state law, which prohibits a quorum of any voting body’s members from deliberating outside of public view except in special circumstances.

The CTRMA and its governing board wield tremendous power in decisions regarding some of the region’s most important roadways, including the 183A toll road in Travis and Williamson counties and the U.S. 290 toll road, or Manor Expressway. It also is building the North MoPac expansion project, which would add a toll lane to each side of the 11.2-mile stretch of the highway. The public has a right to view the deliberations that go into transportation and road decisions rather than just the end results. Yet, that might be what is happening.

The first step in launching an investigation, Escamilla told us, is for Shea or another individual to make a formal complaint to his office. Following that, he said he would “take that complaint, review it and determine what if any action is called for.”

For her part, Shea told us she is working with Austin attorney Fred Lewis and others to put together a complaint. Good. Much of it will be based on informationthat surfaced recently, including statements by CTRMA board member Charles Heimsath and CTRMA executive director Mike Heiligenstein. It also should include findings by the Public Citizen Texas Office about the curiously high number of unanimous votes cast by board members.

In analyzing CTRMA records, Public Citizen found that in the last five years, from 2011 to 2015, not a single dissenting vote was cast out of a total of 525 decisions taken by the board. As we said, curious.

Then there are the statements by Heimsath, which came last week when Shea and other county commissioners interviewed him as part of the reappointment process, as the Statesman’s Sean Collins Walsh reported. When asked by Travis County Judge Sarah Eckhardt to explain why the seven-member toll board votes unanimously so often, 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.”

Later, Heimsath released a statement, saying, “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.

“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,” he wrote.

Last month, Heiligenstein made similar statements to the Austin Monitor also while clarifying why the board votes unanimously so often: “There’s a lot of good discussion before, during and after board meetings and in committee meetings. The important thing is that the board challenge the staff processes, and it does that.”

Heiligenstein told the Statesman that Shea is wrong to suggest the CTRMA board is violating the Texas Open Meetings Act and that he welcomes an investigation. “That makes my day,” he said of Shea’s request for an investigation.

It is essential that the facts be sorted out by an independent source, given the board’s past actions to shield its business from the public.

The CTRMA has waged legal battles to keep secret information regarding the proposed MoPac South toll lanes, claiming the reports and studies are drafts, and as such, exempt from public disclosure. After being sued by the Save Our Springs Alliance, the agency last year released the disputed traffic and revenue report.

It took a second lawsuit by the Save Our Springs Allliance to obtain from CTRMA more information related to the proposed South MoPac express toll lanes. The Texas Public Information Act requires such information to be “promptly” produced when requested. Refusing to do so without a lawsuit fuels a perception that the agency has something to hide.

Since all of CTRMA’s board members are appointed — three by Travis County Commissioners, three by Williamson County Commissioners and one, the chairperson, by the governor — they are detached by several layers from direct accountability to the public. With few exceptions, even the elected officials who appoint them have shown an unwillingness to pressure them to do the public’s business in the open.

An investigation by the county attorney would go a long way in sending what is a long overdue message to the CTRMA board.