By Elizabeth Findell
Austin American-Statesman
Originally published Oct. 27, 2017
Austin can’t allow the public to know who might become its next city manager because it’s in competition with Watauga, Sachse and other small Texas cities for the best candidates, an assistant city attorney argues in a letter to the Texas attorney general.
Austin begins interviews Tuesday in its nationwide search to replace former City Manager Marc Ott, who resigned more than a year ago. In March, City Council members voted unanimously to try to keep candidates for the job — even finalists — secret until they make a final decision. The council hired executive search firm Russell Reynolds to recruit candidates and keep documents that would otherwise be public out of the public eye.
But under Texas law, a city cannot hide the candidates for public positions by hiring a consultant to collect the applications on its behalf. The American-Statesman and other entities formally requested documents naming the applicants under the Texas Public Information Act.
Austin Assistant City Attorney Neal Falgoust responded to those requests Friday with a letter to the Texas attorney general’s office arguing those names are exempt from public disclosure because their release might let competitors — that is, other Texas cities — hire them instead.
“The city is competing in a limited marketplace to attract qualified individuals,” Falgoust wrote. “As of the date of this letter, the Texas Municipal League indicated there are 16 city administrator/city manager positions open in the State of Texas.”
According to job postings on the municipal league’s website, the largest city in Texas seeking a city manager, besides Austin, is Sachse, northwest of Dallas, population 25,039. Also hiring are Watauga, just east of Fort Worth, population 24,629; Alice, west of Corpus Christi, population 19,285; Humble, north of Houston, population 15,561; and Glenn Heights, south of Dallas, population 12,336.
Other Texas cities with city manager jobs listed all have fewer than 8,000 people. Watauga paid its last city manager $148,616, according to data from the Texas City Management Association. Austin’s population is 947,890, and interim City Manager Elaine Hart earns $306,233, plus deferred compensation and an executive allowance.
Falgoust further argued in his letter that the International City/County Management Association indicated eight municipal or county management openings in regions with populations larger than 500,000. However, the association showed Sunnyvale, Calif., population 152,771, as the largest city currently seeking a city manager on its job listings.
“The City is competing with these entities and other private companies to recruit individuals who demonstrate high-level executive management experience,” Falgoust wrote, adding that releasing the information would “allow the City’s competitors … to approach the same individuals.”
He also argued the information could shed light on Russell Reynolds’ recruiting practices, putting the firm at a competitive disadvantage.
Austin’s argument rests on Boeing v. Paxton, a 2015 Texas Supreme Court ruling that ordered Texas Attorney General Ken Paxton to block the release of some lease provisions in a contract between Boeing and the San Antonio Port Authority, based on an argument that the details could hurt the aerospace giant competitively.
Since then, Texas public entities have used that argument to withhold how much taxpayer money they pay for entertainment, how their contracts to feed schoolchildren are structured and how many driver permits they issue.
“This is appalling,” Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, said Friday of Austin’s stance.
Shannon said she was not aware of a city that had tried to use the Boeing decision as an argument to keep candidates for hire confidential, but called it alarmingly out of step with the spirit of the state’s public information law.
“Every time I see a new contortion under the Boeing ruling of a government trying to keep a public record secret, I’m concerned — and everyone in Texas should be,” Shannon said. “The public needs to be in on (hiring) decisions and needs to witness it and speak up if something’s wrong.”
She added that the size of other cities seeking city managers makes it clear there’s no real competition and “that makes the argument suspicious.”
Mayor Steve Adler declined to comment Friday evening, saying he hadn’t yet read the city attorney’s arguments. He previously argued that secrecy would allow the city to recruit a broader pool of applicants and that a citizen task force would be involved in crafting the job description.