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Local Texas legislators said they not only believe Bryan's city manager should have access to BTU's salary information and line-item budget, but the public should as well, despite a law that allows for the secrecy.
Sen. Steve Ogden and State Rep. Fred Brown, both Republicans, said Monday that the Legislature needs to review the 11-year-old exemption that permits competitive matters being closed to the public, and possibly consider repealing the legislation.
"I don't know why a public utility, basically owned by the taxpayers, should have the right to keep their business dealings private," said Ogden, who represents District 5 and chairs the state's Senate finance committee.
"As a general policy, a public entity should not have the right to keep their business dealings secret. We'll look at this next session," the Bryan resident said, adding that he first will talk to BTU officials, along with the City Council and city officials to see if there are some "relevant issues that would make it seem more appropriate. Right now, I don't see it."
Lawyers with the Texas Freedom of Information Foundation agree, saying the law needs to be updated considering it was created with the understanding that utility companies, both private and government-owned, were going to opt in or stay out of deregulation, meaning the City Council could vote to sell utilities elsewhere and allow customers to choose where they purchase their power. More than a decade later, none of the 70-plus publicly-owned utilities in Texas, including BTU, have voted to opt in, while officials said there are no plans to do so anytime in the near future.
BTU's top official, Dan Wilkerson, has been at odds with Bryan City Manager David Watkins since earlier this year when Watkins asked for a detailed copy of the budget, as well as a list of salaries and bonuses. He eventually obtained some documents after a fight, but said it was far from the line-item budget that he needs to review while he's putting together the city's 2010-11 budget. The city is facing a budget shortfall of about $500,000 and may consider furloughs or layoffs.
The utility, which is looking at possibly raising rates to between 5 and 20 percent this fall, is owned by the city and has the most expensive budget, while it also brings in the most money through ratepayers and from other towns that buy power from BTU.
Wilkerson has repeatedly said releasing the financial information to the public could hurt BTU in the future if it opts in, because competitors would have access to that information.
Job on the line?
The issue has become polarized in recent months, prompting some City Council members to ask their own lawyer to explain more about what authority BTU and Bryan have over each other. A special meeting called last week and another for noon Tuesday at city hall also include discussion about Watkins' employment contract.
No officials will confirm why the topic was placed on the same agenda in which BTU matters are being discussed for the second week in a row, nor would they comment about new wording added Friday that mentions the discipline or dismissal of the city manager. Watkins is in his fourth year with the city and has received excellent reviews for the past three, according to documents obtained by The Eagle.
If he was fired, the city would have to pay Watkins upfront $165,000 -- his annual salary, according to his contract, which also stipulates that he has to be given 10 days notice if he's going to be terminated. He said on Friday he had received no such notification and wasn't certain why that issue was on the agenda.
He declined comment when asked about the statements made by Brown and Ogden during interviews with The Eagle on Monday afternoon.
'Public relations nightmare'
Brown said transparency is key for any government agency.
"The fact that it's a municipally-owned utility says it all -- it's owned by the city," Brown said, adding that Bryan Texas Utilities does a good job in serving the public's needs. "That's not the point here, though. The point is this is a public relations nightmare and makes the public think you're trying to hide something.
"You can say all day long that it's a competitive issue and the public shouldn't see the numbers," he said, adding that the salaries and incentive or bonus information for a chief of police position -- or most other top government jobs -- could be considered competitive, as well. "This doesn't and shouldn't make a difference on how our utility rates compare to other municipally-owned utilities. This is the public's trust. It's their money."
Like Ogden, Brown said he "absolutely" favors reviewing the legislation in light of the fact that none of the city-owned utilities have entered the competitive market.
"It needs to be public record like everything else related to public dollars," said Brown, who served on the College Station City Council from 1984-1993. The Legislature convenes in January.
Legal experts agree with that sentiment, and said recently that Watkins has the right to request any information he needs to put together the annual budget.
"[BTU officials] are as wrong as they can be," said Joseph Larsen, a Houston-based lawyer and a board member for the Freedom of Information Foundation of Texas. "They are wrong, wrong, wrong."
Larsen argued that, as a municipally-owned utility, BTU is legally obligated to hand over any documents requested by the city manager.
"The city has an inherent power to have that information," he said. "It's their information."
When told of Larsen's comments Friday afternoon, Dan Wilkerson said Watkins has the documents.
"He has received everything we have," he said. "Unless he may be asking for something that I'm not aware of."
Watkins said last week that that was not the case. He has been given a summarized budget, he said, but needs to see more details, just like information provided in every other city department budget.
"What I have not received and have been asking for is projections for next year's budgets," Watkins said. "I need to see trending in salaries for the last two or three years -- he's never given anything to me about the incentive program."
Requests for similar documents have been made by The Eagle, but have been denied based on the state law and a 1999 city ordinance passed by the Bryan City Council after the Texas Legislature allowed for deregulation of utilities. That policy also was created to protect BTU's competitive information from the public if and when they decided to opt-in.
BTU officials, including most of its council-appointed board that oversees the utility, insist that the ordinance is necessary since opting in still might happen down the road.
Debating the law
Larsen said that, under the Texas Public Information Act, the details requested by The Eagle are legally excepted from the public.
Although, he said, he didn't necessarily agree with the way the law was written, especially when it came to granting local governments the right to decide what information is considered competitive.
"That's really one of the terrible provisions of the Texas Freedom of Information Act," he said. "It's terribly vague on what they let city councils define as competitive information, but that's the law."
The Attorney General's Office agrees with that stance, citing the law.
That still doesn't excuse BTU officials from handing requested information over to the Watkins, he said.
Bill Aleshire, also on the Freedom of Information board, said the city ordinance could be challenged if the council can show that the city is in poor financial shape.
"There's an old adage that sunshine is the best disinfectant in government," he said. "If they know the public can't watch them, the government is more inclined to abuse. In general, it's almost predictable that salaries would be higher if the public can't see how much is made."
Aleshire, who has worked on multiple utility cases, said providing power is more of a private enterprise than a government function, so this area is a "little grayer" than if you had a more typical government function.
"Taxpayers in Bryan and San Antonio and Austin are the stockholders and it seems like the stockholders ought to be able to get this information ultimately," he said.
Several council members said they'd be willing to review the ordinance, but said they haven't had any official discussions about it.
* Eagle staffers Maggie Kiely, Matthew Watkins and Kelly Brown contributed to this report.
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