More Musings about the Communications Committee Meeting

Here are some more thoughts about this past Monday's PSB Communications Meeting and not necessarily in order of importance or whatever:

First, more and more and more I am liking Mayor Oscar Leeser. It's not just that he defended freedom of speech which, in the context of the PSB/EPWU, was the anti-institutional thing to do, he defended it charmingly. In fact, every time that I observe him I appreciate his attempts to make sure that everyone saves face and that a consensus is reached happily more often than not. He likes people and that shows. He's obviously very, very bright but keeps the common touch. I could go on and on. Paraphrasing Roberta: My Mayor is such a good Mayor.

On the other hand, Chairman S is supercilious, condescending, dismissive of others and their opinions - well - enough said for now except to let him know that the other adults at the table are not graduate students for him to ... enough said.

The PSB needs their own attorney. Andron is the attorney for the EPWU. In fact, the EPWU really needs a huge changeover - get the Archuleta people out of there now. Hand out those gold watches.

Lisa Turner has been my hero many times at City Council. I was surprised and delighted to see her at the PSB meeting the other day. She spoke eloquently about the freedom of speech and against prior restraint of that freedom. Err in favor of transparency, she said. (It was fun to watch Chairman S turn beet red and redder.) But she made two other very important points:

When institutions forge such policies, they raise the questions: What are they hiding? What's the cover-up? Elpasonaturally has been speaking about this from the beginning. Policies such as the one that Chairman S has attempted to foist on the board is always written at a time of losing control and power. It is a means to shut up any opposing views so that policy is actually formulated behind closed doors, cotton candied, and fed to boards of people who don't think through issues well enough because they trust the institutional authorities to do their thinking for them. Ms. Turner didn't say all of this - I'm elaborating.

The other great point she brought up was one I will probably return to again and again from now on. She mentioned Attorney General Mattox's Opinion JM-1071 regarding executive sessions and freedom of speech. Read the opinion.

Here are the salient points:

"We interpret subsection 2A(h) as applying only to the records of executive sessions which governmental bodies are required to keep pursuant to section 2A of the act. It does not prohibit persons who are present at the executive session from afterwards talking about the subject matter of the session. Accordingly, we need not reach the first amendment issue."

"Members of a governmental body may not participate in a closed meeting knowing that a certified agenda is not being kept or a tape recording is not being made. Id. s 2A(g). These requirements cannot be rationally applied to speech occurring after the meeting."

"In our opinion, subsection 2A(h) bars the release of such records, and does not prevent members of the governmental body from talking about their recollections of the subject matter of the executive session."

And the summary:

"Subsection 2A(h) of article 6252-17, V.T.C.S., the Texas Open Meetings Act, applies to the certified agenda or tape recording kept as a record of an executive session. It does not prohibit members of a governmental body or other persons in attendance at an executive session from making public statements about the subject matter of that session."

Emphases mine. Victory for the freedom of speech. Take your official spokespeople and shove it in my humble opinion. One wants all the good information that the VP of Communications has to give out. Much of what the EPWU is doing is great and I value Ms. Montoya spreading the good news. But we must have balance. We forget that, when we were engaged in a debate about land to be preserved in the scenic corridor, then CEO Ed Archuleta had a PR video made that was full of disinformation about the PSB and its role as land manager. Anyone - a citizen or a board member - should fearlessly refute anything that the "officials" put out that is not true. That is a fiduciary responsiblitly. That is the moral thing to do. 

Read more about executive sessions and the pertinent rules for conducting those sessions.

Committee Wordsmiths Communications Policy

The First Amendment rights of press and speech were the themes of today's Communications Committee meeting. That theme was loudly heard from Mayor Leeser and Dr. Bonart and most particularly from the conscience of El Paso, Lisa Turner. David Crowder, a reporter for the El Paso Inc., also spoke out about the nuances of speech and press. The meeting did not go well for Chairman Shoephoerster who turned beet red and got darker and darker as Lisa Turner spoke eloquently about the first amendment. Bob Andron was remarkably silent and seemed to fumble about when asked for opinions. 

3 critical changes were made to the document: first, rather than saying members shall direct questions to PSB/EPWU officials, it was agreed to say that they are encouraged to direct inquiries to the CEO, Chairman of the Board and/or VP of Communications and Marketing. Second, Bonart's sentence that members, as representatives of the public, the utility and the ratepayers, have every right to express opinions was added. Third, another sentence (at Bonart's suggestion) makes clear that at all meetings members of the public shall be allowed to speak to any agenda item. 

Shoephoerster failed to allow a vote on one motion that had a second. Mayor Leeser thought that the policy should just be torn up. Dr. Bonart seconded. The Chairman said that they were there to wordsmith - I guess wordsmithing doesn't mean just saying nothing.

The fact is that Shoephoerster had a bad day. At the tail end of the meeting a gentleman formerly a member of the City Plan Commission spoke that only the Chairman of the Board could speak after a vote and, after a vote, everyone just shuts up and board members are different from elected officials - a matter already impeached earlier in the meeting. Of course, after he spoke, Chairman Shoephoerster said that he couldn't agree more. Also earlier the Chair said that City Council members giving public meetings was self-serving to get re-elected. One is reminded of his earlier wisdom that a vacant lot with a paved parking lot is a natural arroyo. I think it is time for us to publish "The Sayings of Chairman S". They are so rich.

I'll have more to say about this matter in the next post or two especially about the eloquent words of Ms. Turner. Keep in mind that the matter of a policy is not over. I suspect that Shoephoerster will try to rally the more reactionary members of the PSB to change the document yet again at the next PSB meeting. I would prefer that the PSB just tear up the document and let it go. At this point, it may be better to go ahead with the communications policy thus drafted today. At least it makes it clear that there is a First Amendment, board members do have a duty to the citizens of El Paso, and public interaction is desireable.

More on the Proposed PSB Gag Rule

To refresh your memory read the draft of the proposed PSB gag rule communications policy found embedded in an earlier post.

Remember that the gag rule communications policy is the result of the failure to approve a water project for UTEP that was to be largely subsidized by rate payers. Keep in mind that the project was in essence a gift from the utility to UTEP - a violation of rules governing a utility. As a result of that failure Engineering Dean and Chairman of the PSB, Richard Schoephoerster wanted board approval of a "communications" policy drawn up by previous Chair, Ed Escudero, but never ratified by the PSB. The attempt to ramrod the UTEP project through the board had been preempted by another board member, Dr. Rick Bonart, who alerted the press. The gag order is meant to keep board members from preventing "official", "in-house", "good old boys" from getting their way.

At the November meeting of the PSB, both EPWU Attorney Bob Andron and Chairman Schoephoerster claimed that there is a distinction between elected officials and appointed officials. They were attempting to rebut the argument that, since any City Council representative can speak to the press at any time, their appointments can do the same. Unfortunately, the interpretation of law says quite the opposite.

First, the IRS makes no distinction between elected and appointed officials. In their document on classification of elected and appointed officials they give this list of examples:

"Examples of public officers are: the President and the Vice President; a governor or mayor; the secretary of state; a member of a legislative body, such as a state legislature, county commission, city counsel, school board, utility or hospital district; a judge, a justice of the peace, a county or city attorney, a marshal, a sheriff, a constable and a registrar of deeds; tax collectors and assessors; and members of advisory boards and committees."

The emphases are mine but you get the point.

Now read about municipal judges in Texas here. It reveals: "Most municipal judges are appointed by the governing body of the municipality (e.g., a city council), although a few are elected." In El Paso County we elect our municipal judges; but we are the exception not the rule. Whether appointed or elected, municipal judges have the same duties and responsibilities and are held to the same standards.

It is ridiculous to believe that PSB members, because they are appointed, should have a different relationship and interface with the public and the media. The real issue here is a little thing called the First Amendment of the Constitution of the United States which guarantees freedom of speech and press. 

There is still one final reason why we must make sure that our PSB members are not gagged by the Shoephoerster-Andron Gag Rule (which I will henceforth call it). The PSB has a unique relationship with the citizens and City of El Paso. They are not just in charge of water and stormwater utilities. We have empowered them with the management of our land. Our Land - not anyone else's land and they are fiduciaries of it. In and of itself, this managerial responsibility of our land means that they are directly responsible not just to City Council but to you and to me, citizens of the City of El Paso. We should expect our land managers to have every right to speak out to the press and to us and not to be hampered by a gag rule.

Dr. Bonart has written a more positive policy - a real communications policy. Read it. It needs some tweaking but it is will lead to transparent governance and land management and not to good-old-boy style of internal control such as the one that has long been in place at the PSB/EPWU. One that operates behind closed doors in total disregard of the public and operates in a paternalistic, oligarchic style.

The Communications Committee will meet this Monday, December 2, 2013, at 1:30 p.m. at the El Paso Water Utilities Public Service Board Meeting Room, 1154 Hawkins Boulevard, El Paso, Texas to deliberate on the proposed Shoephoerster-Andron Gag Rule or to serve the public and recommend one more like Bonart's. This is a public meeting. Please attend if you can.

Catching Up: PSB Communications Policy

Read the history of the gag rule

I last wrote about the PSB's gag rule communications policy here. David Crowder reported about the contentious November meeting of the PSB in an El Paso Inc. story. I was at that meeting and spoke out against the gag rule communications policy reminding board members that it sprang from the failure of Dr. Shoephoerster to get approval of a water project at UTEP - a project that would have been funded by ratepayers. Shoephoerster called my allegation "untruthful" but the facts speak for themselves. I also took Bob Andron, EPWU attorney, to task for taking the communications policy into the closed doors of executive session in the beginning. (Shouldn't the PSB have their own attorney?)

Mayor Leeser again saved the day and the matter was kicked into a committee. 

The Chair has called a meeting of the Public Service Board Gag Rule Communications Committee to be held on Monday, December 2, 2013, at 1:30 p.m. at the El Paso Water Utilities Public Service Board Meeting Room, 1154 Hawkins Boulevard, El Paso, Texas. This is a public meeting. I might just wear a gag when I attend.

Times and Inc. Take PSB to Task

If you didn't see David Crowder's article in this weekend's Inc., you need to read it. PSB gag rule has everyone talking sums up the situation with the gag rule - the PSB Communications policy. There is no doubt that the policy was invoked by the current PSB Chair Richard Shoephoerster, abetted by Robert Andron, the legal counsel for PSB/EPWU, to get back at PSB member Bonart for bringing to light the deficiencies in the UTEP Centennial Water Plan.

Balliew: "I am not an advocate of the policy"

"I was not advocating for the policy and am not an advocate of the policy." - John Balliew, CEO of the EPWU.

Give Me a Break!

EPWU/PSB is not a private company and it is more than just a utility. We El Pasoans have asked them to manage land and stormwater as well as water and sewage. We understand that there are tough political decisions to be made about water scarcity and conservation, urban sprawl and groundwater. In other words, they are not just responsible to us for delivering a product that is safe and clean, but helping us with far greater issues of conservation and sustainability - issues that are political. Debate, doubt, discussion and dissent must be out in the open and must include the public. This is not a bad thing but a healthy thing. It is, of course, detrimental to those who like to use power without accountability.