FOES V. TRWD

Why would an operation charged with the relatively simple task of ensuring its constituents have enough water to use be so bent on secrecy or in making its own rules?

The processing time for the simplest request routinely exceeds the statutory limit, and the district’s liberal use of the public records law to seek clarification in a request, no matter how simply worded, has allowed the district to put days, weeks, and months between the request and the fulfillment of that request, often stalling long enough to create an effective denial.

The state Supreme Court has cautioned that the clarification provision of the state’s public records law may not be used in bad faith, said Joe Larsen, a Houston lawyer and a board member of the Freedom of Information Foundation of Texas.

“They may not use it as a delay tactic,” Larsen said. “The court saw the possibility that governmental bodies may use it this way.”

There are no penalties for abusing the provision, and “it’s remarkably easy for a government body to abuse,” Larsen said.

A sufficiently lengthy delay, Larsen added, “is the equivalent of a denial, as is requesting an AG ruling when they could just as easily release the information. Part of a pattern of delay is a government body waiting until the last day for a clarification.”

Board member Stevens noted that many of the requests the district has received would entail actually creating a new record, something that is not required by the state’s open records law.

“You have to be specific in what you ask for,” Stevens said. “And if [the requestor] is not, we come back to them.”

Ross Fischer, a former board member at the Texas Ethics Commission who has been helping TRWD with its open records work, said the delays are most often the result of “calendaring” or assigning a deadline to a request.

“I don’t know that there is anything premeditated to that,” said Fischer, who was retained by the district in November 2013 to help with the district’s growing open records requests.

Fischer said he was brought on to first deal with the requests coming from Kelleher and two state lawmakers.

“I’ve worked with Nancy King in compiling responsive documents and analyzing them for anything that would be confidential,” Fischer said.

None of the requests referred to the AG’s office and pursuant communication in 2014 was done by Fischer.

That work has continued to be handled by Gray.

At the meeting when Fischer’s appointment was announced, Oliver said the district had over the years received an average of 45 requests a year, but in 2013, that number had jumped to 125 and was going to cost the district $223,000.

Oliver was close: The district has seen an increase in requests, from 39 in 2012 to 135 in 2013 and 118 last year.

But among Fischer’s first projects was an informal audit of the campaign finance reports of board candidates. The assessment focused on the reporting of Kelleher.

Still, the district really needed someone who could exercise some responsibility for the district when it came to some good will with its public.

It’s a simple instance of how the district manages to make a simple query about its business into a drawn-out affair, leading already-suspicious outsiders to believe something unsavory is going on.

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Monty Bennett has been a benevolent political donor since 2010, when he gave $25,000 to Rick Perry, a Republican campaign fund, and the campaign of State Rep. Matt Rinaldi, a Republican lawyer who has represented Bennett in various legal cases and is also a private stockholder in Bennett’s Ashford Hospitality group.

Bennett’s largesse has grown as his legal endeavors have increased. In 2012, he doled out $42,000, including two $10,000 contributions to Stefani Carter, who served as a state representative from 2010 to 2014 and was paid more than $25,000 on a retainer for Ashford Hospitality, according to her 2013 financial disclosure.

In 2013, Bennett spent $232,000, including more funding to Carter and Republican state house candidates Lance Gooden and Rinaldi.

Last year, he handed out $326,794 in donations and in-kind contributions.

“Monty Bennett is an extreme libertarian, and he is spending a lot of money on these races,” says Lon Burnam, a former state representative who has backed the efforts by Kelleher –– and, by proxy, Bennett –– to get documents from the district. “They don’t like that someone from Dallas funded [Kelleher’s] election. And I know that Monty has personal motives here.”

Burnam lost the seat he had held since 1996 in March 2014. In April 2014, he sent a letter to the TRWD.

“I hope that the reports I have heard about TRWD withholding public records are inaccurate, because they would seem to indicate a serious breach of both state law and public trust,” Burnam wrote.

In May 2014, he received a $5,000 campaign donation from Bennett.

Bennett has also donated nearly $250,000 to TRWD board candidates who are aligned with him.

Kelleher gives Bennett almost full credit for her brief political career.

“Monty Bennett put me in a position I never could have dreamed of,” she said. “While I was apprehensive that people would have considered me a puppet, I was so pleased that he took a role of mentoring me and helping me learn how to speak my mind.”

Kelleher acknowledges that her first open records request came with the help of Bennett.

While she carried Bennett’s legal water, she said she was also reaping some rewards.  “People don’t know what I am getting out of all this,” she said, “which is an epic win for me, as I’m in a position to battle the bad guys. I feel sorry because most people, without money, they can’t get in and make a difference. “

Like Kelleher, former State Rep. Gooden was willing to carry Bennett’s water, and he did so with the heft of a statehouse office –– he won his district unopposed in 2010.

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