The Texas Observer

The National Surface Transportation Policy and Revenue Commission recently delivered another of those tone-deaf, asinine, typical-of-a-commission recommendations that have no respect for what is politically tenable in the real world.

Created by the GOP Congress in 2005, the NSTPRC concluded that the federal government should raise the gas tax by 40 cents over five years (and then tie it to inflation), and it suggested states like Texas should ramp up their own state gas taxes even higher, in order to invest in transportation infrastructure.

Mary E. Peters, Bush’s Secretary of Transportation and a member of the commission, wrote about the recommendation in an op-ed piece in the Wall Street Journal a week ago. The headline read, ‘Gas Taxes Are High Enough.’

I must admit to a weakness for anti-gas-tax invective (from any source). I believe the tax on fuel, while it masks a host of policy disasters and environmental nightmares, has an overwhelmingly disproportionate effect on working men and women. It’s a tax that takes its toll chiefly on the backs of the poor and middle class. It’s very much like a toll fee. For those that have plenty of dollars, it is of little concern. For those that do not, the tax can take away the last resource of an economic unit living paycheck to paycheck. People still have to drive to work, despite all the commuter rail initiatives in Texas. The used and abused model of urban and suburban sprawl in Texas has tied us to our vehicles and to the daily use of several gallons of gasoline — even if you or somebody you know bikes to work.

So, I was sympathetic, sort of, when Peters wrote how she and two other commissioners “declined to support the report’s central recommendations.” A huge gas tax increase would definitely raise some revenue, and it might even discourage some people from driving, but it would be political suicide for any politician or political party that tried it. Peters and the rest of the commission knew damn good and well that no such 40 cent increase in the tax would ever become policy.

What the commission’s recommendation did, instead, was provide an opening for conservatives like Gov. Rick Perry to look like moderates and express outrage at the idea of higher taxes — in particular, higher gas taxes — which affect everyone regardless of ability to pay. Of course, Rick’s solution is toll roads.

Should there be an increase in the gas tax? It’s important to remember that the tax on fuel serves several purposes. It gives both consumers and producers a voice in public policy — a say, that is, in just how much gasoline consumption is reasonable. The tax also serves as a tool which governments can use to discourage consumption (and driving) — and encourage better mileage standards — not to mention raise revenue.

The fact is, the oil industry is and has been subsidized by American budget policy as well as foreign policy — government has been dumping cash into this industry since Franklin Roosevelt and his foreign counterparts realized they had to have gasoline to keep their armies moving. It’s the most subsidized industry in America.

According to a report by the Union of Concerned Scientists the subsidies are diverse and generous:

Direct subsidies include government-funded energy research and development. Indirect subsidies include the Strategic Petroleum Reserve, military expenditures related to the Persian Gulf, and police and fire protection related to highway use. Although “user fees” in the form of gas taxes, registration fees, and tolls pay for a portion of the infrastructure services, large government outlays remain that must be covered by general revenues.

The environmental costs are obvious in many ways, but they are not calculated into the price of fuel.

The scientists say: Pollution costs are borne by society in the form of increased health care costs and loss of wages due to illness and premature death (i.e., morbidity and mortality costs), reduced agricultural output, loss of visibility, and damage to buildings.

To my surprise and chagrin, however, Peters’ piece leads you in complaining about the gas tax and by the time she lets you go, you’re likely paying a toll to drive on the same highways your gas taxes already paid for. And she’s proud that the administration is pushing tolls as the only other option.

…a clear alternative has emerged… some form of electronic tolling that will both reduce congestion and generate needed revenue for transportation projects. Thanks to new open-road technology, these pricing programs can be put in place without forcing a single driver to slow down to pay a toll or have their transponder “read”… With the kind of encouragement we’re recommending, many more states could soon be able to pay for new transportation projects…

Peters would have us believe that we must choose between $4 a gallon gas and a maze of toll roads that tax us every quarter mile, just to get the same level of infrastructure that the federal and state government have maintained for 50 years as a public trust.

And her argument does not even address the gross dependence of the oil, gas, and auto industries on government subsidies and the debasing of our air, water, and quality of life.

There’s got to be a better way.

Ever wanted to read the governor’s email? Now’s your chance.

Milwaukee open records activist John Washburn has posted the first received batch of Gov. Rick Perry’s staff emails — minus the correspondence which the governor’s people are appealing to the state attorney general’s office.

The emails were sent or received by Perry’s office (according to Washburn’s request): “on or after 12:00 am (midnight) Friday, November 2, 2007 and received before 12:00 am (midnight) Tuesday, November 6, 2007.”

The emails are in .pdf format and as I understand it, there are some 1,900 of them. We are calling on readers to dive in. If you find something find that you want to share with your fellow citizens post it as a comment to this blog post.

Washburn paid $568 for these babies, so they are certainly valuable in that sense. What’s more, Washburn’s requests have single-handedly stopped (for a while, anyway) the governor’s policy of shredding the emails every seven days — which is of value to all Texans and to the open records policy of our great state.

So click through. Let us know what’s in there. We will also be reading through them and trying to determine what’s news and what’s not. But we need your help.

Happy hunting!

The Lake Travis Independent School District and a local couple are waging an all-out, take-no-prisoners, opens records war. The theaters of this war have ranged from district court to the Third Court of Appeals to the Texas Legislature, and the impact of this fight could further change Texas’ open records law, and possibly not for the better.

As the Lake Travis Cavaliers were enjoying a championship season in 2007, their school board and Superintendent Dr. Rocky Kirk were appealing a decision by a Travis County district court to dismiss the district’s lawsuit against David and Melissa Lovelace.

The Lovelaces have requested thousands of documents from the district in accordance with Texas open records law, starting with documents related to their child, and continuing with documents relating to the entire district (like the entire pay schedule for all teachers and administrators — just an inkling of the data sought and published and maintained on the Lovelaces’ blog, ltisd.info).

There’s more data on this site, lots and lots and lots more data.

LTISD says the 3,000-plus requests filed by the Lovelaces in the last few years amount to an “attack” on the school system. LTISD says it has spent $700,000 fighting requests from the Lovelaces.

Dr. Kirk’s statement, published on the LTISD web site just after the decision, gives the school district’s perspective:

Specifically, the Court stated, “The District pled facts [sic] sufficient to show that the Lovelaces’ conduct unreasonably interfered with the public right of District taxpayers to a public education for their children and that the excessive drains on District staff times and resources had affected all or a considerable part of the District community.”

Lovelace says it’s the other way around. He says it’s his own government that launched an attack on his family.

“Wait a minute,” Lovelace told me. “I got sued by my own government — without doing anything wrong — and I don’t have any redress.”

The decision from Texas’ Third Court of Appeals came down Nov. 29. The court’s decision ruled the district’s lawsuit out of bounds — while LTISD continued to assert that the Lovelaces’ open records requests were an attempt to “attack, harass, and besiege” the district — an attack worthy of governmental intervention, according to the school district — in fact, worthy of intervention from Texas judges on behalf of LTISD and against David and Melissa Lovelace, who have a child in the Lake Travis school system.

Former Travis County Judge Bill Aleshire, is representing Lovelace along with Jennifer Riggs and Jason Ray.

Aleshire said this week that LTISD’s lawsuit should never have been filed.

“There is no such cause of action,” says Aleshire. “What this all amounted to was an attack by the government on parents who were just trying to get information,” he said. “Just because somebody wants a lot of information doesn’t mean they’re wrong.”

Aleshire says he understands that some may view the Lovelaces’ requests as asking for “just deliberately voluminous information… David got accused of that, and it’s absolutely false.” He says the Lovelaces took it upon themselves to demand information from an inefficient bureaucracy.

“They resist handling open records requests in a reasonable and efficient manner, attack any taxpayer (like the Lovelaces) who stands up to them, and innovate new ways to make it harder for the constituents to see what’s going on,” Aleshire said.

“I go way back,” Aleshire told me. “And I’m outraged by what the school district has done.”

The Lovelaces have spent $20-30,000 fighting LTISD. The district’s people point to the fact that the Third Court refused to force the district to pay the Lovelaces’ attorney’s fees and court costs as partial evidence of the court’s sympathy.

LTISD Communications Director Mario Alvarado says the district has complied and is complying with Texas’ public information law.

“We get many requests, and we try to comply,” Alvarado told me. “We’ve done all that we can do.” He said the Lovelaces’ requests have included everything but the district’s kitchen sink, including “financial information, personnel items, construction information, bond information…”

I asked David Lovelace why he didn’t just move — you know, Central Texas is a big place, and if it was a matter of getting the best education for your child, why not just move? He answered calmly, with a hint of outrage.

“Why should I move?” he said. “I’m not the one with the problem… I couldn’t have just given up.”

I asked Dr. Kirk to talk about the case, but he said he had nothing to add to the district’s public position. LTISD says they have accepted the Third Court’s direction to find legislative relief, and all parties expect to see Kirk and the district’s lawyers and lobbyists arguing on LTISD’s behalf to further constrict the state’s open records rules.

Lovelace points out that 35 percent of the traffic on his site comes from IP addresses associated with LTISD schools. Yep. That’s right. Who’s reading these public documents? Lake Travis teachers, students, and parents — all hungry for data they can’t get from the school district.

When Lieutenant Governor David Dewhurst released his list of appointees to the Sunset Advisory Commission last week, there was something of a surprise and — at least to the public, something of a mystery.

The sunset commission makes recommendations for reauthorizing legislation for Texas agencies usually every 12 years. Up for sunset in 2009 are the Texas Department of Transportation, the Texas Youth Commission and its ombudsman, Texas Parks and Wildlife, as well as the Texas Departments of Public Safety, Insurance, and Agriculture (along with a host of others).

The surprise was that Dewhurst decided to further stack this critical body in favor of the GOP — despite the fact that the two senators rotating off the commission are Democrats. Dewhurst replaced Sens. John Whitmire (D-Houston) and Elliott Shapleigh (D-El Paso) with Sens. Glenn Hegar (R-Katy) and Juan ‘Chuy’ Hinojosa (D-Mission). That makes Hinojosa the only Democrat on the senate side. He and Rep. Ruth McClendon (D-San Antonio) are the only Democrats on the 12-member commission, period.

Sen. Kirk Watson (D-Austin) brought up Dewhurst’s partisan move during his speech to Travis County Democrats Friday night as the party held its biennial campaign kickoff dinner.

“He had to work to avoid appointing a Democrat,” Watson said. He told me this week that he thought it was “wrong” to lose the opportunity to keep “a sense of balance” on the commission. “We need to make sure that all points of view are being addressed,” he said.

The mystery was just who in the heck Dewhurst’s public appointee was (granted, he’s a Republican), but he was announced only as “Mr. Michael Stevens (Public Appointee), Houston, Texas, Chairman, Michael Stevens Interests, Inc.” For those who don’t concern themselves with who gives hundreds of thousands of dollars to the top dogs in the Texas GOP, Stevens’ name appears oddly ‘public’ — seemingly civilian.

However, Stevens, a Houston apartment mogul, is one of the Republicans’ top-five money men. He has lots of experience on state boards and commissions, as well as a history of opposition to rail, and an inner-city ‘revitalization’ agenda in Houston.

“He’s a very smart guy,” says Rep. Garnet Coleman (D-Houston). Coleman said the sunset commission appointment process has always been political.

Stevens also serves or has served on the Greater Houston Partnership, the Harris County-Houston Sports Authority, the Houston Housing Finance Corporation, the Governor’s Business Council, the Baylor College of Medicine, and the governor’s task force on appraisal reform. That’s in addition to his work in the 90’s for Texans for True Mobility, the group that tried and failed to sideline commuter rail in Houston, as well as his work for former Houston mayor and former TxDOT chair Bob Lanier on the inner city. Roll Call reported that former U.S. House Speaker Tom DeLay turned to Stevens for counsel when he was worrying about being indicted by Ronnie Earle. Stevens is certainly a player on the grand Texas GOP stage.

It will be interesting to see what kinds of recommendations such a Republican squad will have for agencies like TxDOT and the TYC (and the Texas Racing Commission and Commission on Jail Standards). It’s fair to assume that even the basketcase agencies won’t see the sun set on their operations, but, as Watson noted, this should be an opportunity for reform.

After all the stir about Travis County District Attorney Ronnie Earle’s decision not to run again for re-election this year, it’s easy to forget that his office still has a few hot irons in the fire. One of those is the pending case against former House Majority Leader Tom DeLay — which is tied together with cases against his former associates John Colyandro and Jim Ellis.

The race for Travis County DA features four prosecutors who all work within Earle’s office: Rosemary Lehmberg, Gary Cobb, Mindy Montford, and Rick Reed. Earle this week endorsed Lehmberg for the job — a boost to her campaign for sure. (There is no Republican in the race.) Still, with less than two months until Texas’ March 4 primary and none of the candidates possessing any real name id, there’s no telling who will win.

All of the candidates have either taken leaves of absences from the DA’s office or are using vacation time to campaign for Earle’s job — arguably the most powerful position in Texas politics, since, as seen in DeLay’s case, the Travis DA has the power to indict Texas politicians, and the fact of an indictment is often all that’s needed to knock someone off their perch.

Reed is one of three prosecutors that have been handling all of the pre-trial issues in the case, and it’s been all pre-trial so far.

The case is on the docket for March 7, but that may be just for show, since the trial judge is suggesting an appeal by Colyandro and Ellis will need to be disposed of before the case can move forward. According to Judge Pat Priest’s homepage, Colyandro and Ellis filed their appeal based on rulings by Judge Bob Perkins, who was replaced by Judge Priest after they objected to donations made by Perkins to Democrats. The appeal is pending in the Third Court of Appeals:

Certain indictments, you may remember, were thrown out by Judge Priest, including conspiracy to violate the election code. That decision was appealed all the way to Texas’ Court of Criminal Appeals, where prosecutors lost, but there were some strongly worded dissents. Based upon these, a motion for rehearing was filed by Earle’s office and denied by the top criminal court.

The indictments that are still alive and well include money laundering and conspiracy to commit money laundering. For the background about where all these charges come from, it’s always worthwhile to consult the Observer’s repository on the DeLay/Abramoff ‘Money Machine’ scandal here.

Once the Third Court rules on the merits of the appeal by Colyandro and Ellis, sources within the DA’s office suggest that decision will be appealed — by whatever party loses. That issue would then be resolved by the Court of Criminal Appeals. Then the drama moves back to Priest’s courtroom, assuming DeLay’s attorney Dick DeGuerin is not in the middle of a case elsewhere.

Once action resumes in Austin, at least two motions need to be resolved, including an allegation by the defendants of prosecutorial misconduct on Earle’s part — focusing on a documentary called The Big Buy, made by Texas filmmakers Mark Birnbaum and Jim Schermbeck. The documentary allegedly features Earle giving the filmmakers lots of access while the case against DeLay and company was being put together. The defendants argue Earle was wrong to participate. The other motion is a request by the defendants for a change of venue — arguing that an Austin jury may well have preconceived notions about DeLay, Colyandro, and Ellis. Surely after these several years, even Austinites, who were roundly disenfranchised by DeLay’s efforts during redistricting, may have allowed their tempers to cool enough to give these fellows a fair trial, but, hey, there’s a reason I’m not a lawyer.

Presumably, after all these things have come to pass, then, finally, the case against DeLay will begin to move. The question is, will that happen this year? It’s hard to say, but probably not, which means, really, that Earle will watch this one from the comfort of his retirement. It seems justice isn’t all that swift after all.

The Carnival of Open Records has recognized John Washburn, ‘that guy from Milwaukee’ as the ‘Sunshine Troublemaker of the Week’ after he received confirmation postmarked Jan. 8 that staffers are compiling the emails he paid for from Gov. Rick Perry’s office and will send them within 10 business days. That revises my earlier projected receipt/publish date — expect them to be available around Jan. 22 (my naive estimate earlier was Jan. 13).

If only Perry had not been regularly deleting his emails, he might not have such a tenacious open records notable on his trail right now. It should be a lesson to officeholders and bureaucracies everywhere. Look around. This government email thing is all the rage.

Look at Houston’s embattled district attorney (who has already taken his name off the ballot). The saga of Charles A Rosenthal Jr. is one long government email hemmorhage — complete with campaigning from a government perch, making horrible jokes, forwarding absolute crap, and hurling slurs. Ralph Blumenthal reports:

On Aug. 14, Mr. Rosenthal forwarded to friends a message attacking the record of Senator Hillary Rodham Clinton of New York, and calling her “a disaster for all Americans.” His name appeared on messages comparing her to Karl Marx…

The emails also contain racist, sexist, and profane elements. The list of exactly what is contained in Rosenthal’s email just isn’t publishable. It’s crap. And it’s amazing that it coursed through a major government agency’s email system without anyone calling somebody. To me, anyway, it boggles the mind.

On top of these, Rosenthal apparently deleted 2,500 government emails. Just, poof! They’re gone. I wonder why.

The White House is having its own government email party, too.

In a case arising out of the investigation into who dropped the name of Valerie Plame, on Jan. 8 federal magistrate John Facciola ordered the White House to determine whether missing emails from 2003-2005 were among computer backup files. The White House was given five business days to respond. The order grew out of a lawsuit seeking the missing emails by two private groups — the National Security Archive and Citizens for Responsibility and Ethics in Washington.

In a rather revealing paragraph, the Associated Press story related another one of those astounding claims of imperial untouchableness asserted so often by the Bush White House:

Two federal laws require the White House to preserve all records, including email; but in asking that the two lawsuits be dismissed, the White House asserts that the president’s record-keeping practices under the Presidential Records Act are not subject to review by the courts.

Taken together, these three sets of inquiries certainly make the case that officeholders really should be keeping their government email, and it’s a reminder to all of us that asking for those electronic documents is key.

Thanks to that wonderful quality of the Internet that facilitates charitable donations and political contributions, Milwaukee Software Tester John Washburn raised the funds to pay most of the bill for a week’s worth of office emails from Governor Rick Perry’s staff (which he had been destroying every seven days up until they were requested).

Washburn says he raised $530 of the $611 price tag for the first batch of emails (the payment was for two of nine requests — for email sent and received from Nov. 2-5 and for headers and subject lines from emails sent and received from Nov. 20-22). Perry insists on charging $568 for staff time and overhead needed to comply with each request (a stance affirmed by Texas Attorney General Greg Abbott) — but because a response regarding the Nov. 20-22 request was sent late, the charge was less by law (or at least by Perry’s interpretation the law, according to Washburn):

Washburn writes: The reason for the difference in costs is that the Governor’s office failed to respond to the November 23, 2007 within ten business days as required by law. Under the Governor’s own interpretation of the Texas Public Information Act, this failure to respond means the Governor’s office has forfeited the option of presenting a itemization of charges which exceeds $40. I believe this is a misreading of the Texas PIA, but for this request I will stipulate the Governor’s construction of the statute is correct. It saves me $528 after all.

I spoke again with Washburn after he reported having sent the first payment. His attorney in Texas, Houston’s Joe Larsen, has also sent a tenth open records request after learning that Perry has a written policy for dealing with email requests. Washburn notes in his blog that Perry’s office has not responded to this last request:

The Office of the Governor claims it has a written policy which is used to review emails prior to their destruction by the electronic shredders. This tenth PIA request asked for a copy of this written policy. To date there has been no response at all to this tenth PIA request; not even a late one response [sic] as was the case for the November 23, 2007 requests.

The upshot of all this is that — unless Perry goes back to the attorney general or decides to take Washburn to court — we all may be reading Perry’s emails on Washburn’s site as of Jan. 13 (or thereabouts). The correspondence will have been composed before Washburn ever asked for it, so the emails may be worthwhile, though they will certainly be redacted.

As you may have read on Elise Hu’s excellent politics blog, Political Junkie, or in the hard-nosed reporting by Jay Root in the Fort Worth Star Telegram (or here for that matter), Washburn is a software testing engineer that once ran for Congress from Milwaukee as a Libertarian who has a healthy interest in ‘Liberty’ and an avid interest in open records. Washburn came up with the idea after reading Hu’s series, the Purge (which started out as a Texas email records retention scavenger hunt of sorts but has morphed into a Perry vs. Washburn soap opera).

The fact is, Perry’s policy of email deletion had to stop after somebody asked for the records. Washburn’s requests may have stopped many other offices from regular email deletion as officeholders and interested activists watch the Washburn/Perry fight unfold.

Washburn is encountering the abrasive attacks of Perry fans and sometimes-anonymous readers from Texas who slam him for “wasting taxpayers’ money” and being an ego-driven “loser.” He deserves a lot of credit for sticking to his principles on this, I think. Here are a couple of examples of what he has to put up with:

Good citizen activists are hard to come by, misguided losers are a dime a dozen and it is up to us to call them on it. Keep up the vigil against stupidity…

Please send me a copy of “How to be an Obnoxious Citizen.” I’m sure you have a copy or two along with “How to Waste the Countries Time and Taxes” with a forward on “How to Raise taxes”…

Who is donating toward Washburn’s efforts? After a look around the Internet, I found at least one blogger who is proud that he donated $100. You know, there are worse ways to spend your money. If you want to help get more of these emails into the sunshine, Washburn has a link for donations here.

In any case, stay tuned. We may yet get a glimpse of these ‘public’ records.