Investigation finds Houston council member overstepped her authority but broke no laws

What you need to know:

• An independent investigation into Houston city personnel matters found that Council member Sandy McDonald exceeded her authority in interactions with a city employee but did not break any laws. The city should create specific guidelines for council member interactions with employees, attorney Holly Wells said.
• Officials did not reveal the identity of the employee or details of McDonald’s questioned interactions. A memo detailing the investigation was not released.
• The subject of the investigation remained confidential until McDonald was publicly named in the agenda for the Aug. 14 meeting. McDonald is pursuing legal action because the disclosure violated her privacy, she said. 

HOUSTON — Houston City Council member Sandy McDonald’s interactions with an unidentified city employee exceeded her authority as an elected official but did not break any laws, according to the findings of a new special investigation.

Anchorage-based law firm Birch Horton Bittner & Cherot conducted the independent investigation. Attorney Holly Wells verbally presented the findings during a regular Houston City Council meeting last week.

The presentation did not reveal the name of the city employee or specifics regarding McDonald’s questioned interactions, including the contents of a series of Facebook posts and statements by McDonald. 

A memo detailing the subject and findings of the investigation was not released during the Aug. 14 meeting and is protected by attorney-client privilege between Wells and the City Council, Wells said. The council asked her to prepare a redacted version that can be released without revealing the employee’s identity.

“We found that Council Member McDonald has not engaged in any unlawful activity,” Wells said during the meeting. “That’s a really important thing for everybody to know, because not only has Council member McDonald not engaged in unlawful activity, that means the City of Houston has not engaged in any harmful activity, because everything is tied together, and if a council member is violating the law expressly, then the city as a whole has.”

The interactions occurred late last year and early this year, McDonald said in an interview. 

McDonald’s statements did exceed her authority as a council member, Wells said. While the city’s top employees, including the clerk, fire chief and finance director, serve at the pleasure of the council, their direct supervision and job performance are the responsibility of the mayor, according to city code.

“We find that the verbal accusations that Council member McDonald made regarding job performance, and several of the interactions that we reviewed in recordings, were not appropriate and … exceeded the scope of authority when it comes to personnel that rests in a council member,” Wells said.

Wells said the city should create guidelines for how council members interact with staff.

“It’s easiest for us to follow the law if you know what that is and what those expectations are of us,” Wells said. “How do we help Houston make it very clear when a person is elected that their relationship with the employees is limited as a council member? And it doesn't include the ability to verbally chastise them or discipline them.”

Sensitive personnel matters, including investigations into individuals, are typically presented to the council in a private setting. McDonald requested the discussion be held in public.

The subject of the investigation and McDonald’s involvement were first revealed on a council agenda published ahead of the meeting. 

McDonald said she is pursuing legal action against the city for violating her right to privacy by saying she was the subject of the investigation without her consent.

“By doing this, my right under state and city law to declare whether this session would be public or private has been preempted,” she said during the meeting.

In February, the City Council unanimously approved a special investigation into an unidentified subject following a closed-door discussion. City documents released in March noted only that it related to “personnel matters.”

McDonald, who is not running for reelection in October, said she was not aware she was the subject of the investigation until the agenda for the meeting was released on the city’s website. Wells’ law firm contacted her as part of the investigation, but she did not respond, she said.

McDonald asked during the meeting that the presentation of the investigation’s findings be postponed until her attorney negotiates a settlement with the city.

The council voted 4-2 to continue the presentation, with McDonald and Council member Lisa Johansen voting no. Council member Jeffrey Brasel called into the meeting and was marked as present during roll call but did not respond during the vote.

McDonald, who often publicly clashes with Houston Mayor Carter Cole regarding whether the city needs to follow its own code and guidelines, said she was surprised by the meeting discussion.

“The lawyer found that I did nothing illegal, but they continued to do exactly what I knew they would,” she said. “I was pretty surprised that they had the gall to continue to rake me over the coals.”

Johansen called the investigation a “witch hunt” and thanked McDonald for her actions on the council.

“I don’t think we have anybody on the council that goes through the numbers like you do and catches things like you do,” she said during the meeting.

-- Contact Amy Bushatz at contact@matsusentinel.com

This story was updated Aug. 21 to correct the spelling of Lisa Johansen's name.