Austin Energy says Austin City Council members have taken secret votes for years on matters involving the publicly owned utility, and that those votes don’t appear in any public record.

The disclosure only came after KUT News reviewed more than 1,000 City Council meetings and challenged the utility’s claim that such votes “ARE indicated in council minutes.”

Last month, the council took what appears to be its first documented secret vote on Austin Energy, approving the purchase of gas-powered electric generators estimated to cost more than $1 billion.

The vote occurred in a closed session under a narrow carve-out to the Texas Open Meetings Act that allows elected officials who oversee power companies to vote in secret on “competitive matters.” The final vote tally was never released.

A record of the meeting on the city’s website simply says the measure was “conducted and approved.”

Council members and city staff have refused to disclose the vote breakdown, effectively shielding elected officials from any political backlash and firing up critics.

When KUT News asked whether the vote was unprecedented, Austin Energy insisted it was not.

The utility’s spokesperson, Matthew Mitchell, said council members have taken similar closed-door votes for years and they were “not infrequent.”

Erik Johnson, a spokesperson for the city, suggested that KUT should “review the voting record manually” to seek previous examples of executive session votes.

In an effort to show that secret votes are part of regular business, Austin Energy provided a list of 16 meetings from 2019 to 2025 during which it said “discussions or votes” occurred behind closed doors.

Such closed-door votes “ARE indicated in council minutes,” Mitchell said.

But a KUT News review of every City Council meeting dating back to 1999 found no public record of such votes.

When KUT presented those findings to Austin Energy, the utility changed its explanation, saying the absence of records proves nothing because even the existence of a secret vote may be confidential.

“The fact that minutes do not reflect that a vote was taken, does not mean that a vote was not taken,” Mitchell said in an email.

With no public record of any vote and council members committed to secrecy, it’s difficult to know how many votes may have taken place since the 1999 law allowing for them took effect.

“It’s an invisible government,” Joe Larsen, an Houston lawyer who serves on the board of the Freedom of Information Foundation of Texas, said of the secret vote. “It’s a black box. You don’t know what anybody’s doing. You don’t know who to hold accountable.”

While a single exception to the Texas Open Meetings Act does allow for closed-door votes, Larsen believes the City Council may be operating in violation of the City Charter and Code of Ordinances by voting in secret and not providing a record.

Keep votes secret with this one simple trick

Elected officials in Texas are supposed to conduct public business in public view. The Texas Open Meetings Act mandates that meetings be open to the public with the topics of discussion posted days in advance.

Through the years, state lawmakers have chipped away at those transparency requirements, adding more than 20 exceptions that allow certain deliberations to take place in closed-door hearings known as “executive sessions.” The exceptions cover sensitive topics like hiring and firing decisions, real estate negotiations or private advice from lawyers.

While those exceptions allow for secret deliberations by governing bodies, only one allows for secret voting. That’s what the City Council invoked to make a final decision behind closed doors on the power plant deal.

The carve-out, Section 551.086, was created by state lawmakers in 1999 as part of the deregulation of the state electricity market.

The exception was intended to even the playing field for city-owned utilities and electric cooperatives who suddenly found themselves competing in Texas’ deregulated energy market against private companies that had no obligation to share their business dealings with the public.

In a wood-paneled conference room overlooking Lady Bird Lake, a week before the power plant vote, Austin Mayor Kirk Watson argued that confidentiality was crucial. Disclosing even basic information about the deal — from the price of the gas generators to who was selling them — would put Austin Energy at a competitive disadvantage, he said.

Sharing the information would be “like playing poker, and I have to show you all of my cards while playing the game,” Watson said. “We’re an electric company that operates in a very competitive market, and if we’re not careful, we will do damage to our customers.”

When a KUT News reporter observed that the lack of transparency was “frustrating” for journalists, the mayor shot back with a smile: “If that journalist is buying power from Austin Energy, I’m doing that journalist a favor.”

At the time of the interview it was unclear that the secrecy surrounding the deal would be extended to include how City Council members voted on it.

Public power plant votes in the past 

While the closed-door power plant purchase outraged critics, Austin Energy has framed it as an exercise in transparency.

“In this particular case [on May 21], despite the law not requiring it, the City Council disclosed during the open council meeting that the item was approved,” utility spokesperson Mitchell wrote to KUT. “Austin Energy provided the highest possible level of transparency it could within the uniquely competitive environment in which it operates.”

The records tell a different story.

While City Council minutes don’t indicate when votes happen in executive session, the council has voted publicly many times on controversial energy projects.

“We would always prefer to have that [kind of] vote taken in public for transparency purposes,” said former Austin Mayor Lee Leffingwell, who served on City Council from 2005 to 2015. “There has to be a good business reason in the general interest of the public to do otherwise.”

In 2001 and 2008, massive outlays of money were made for the Sand Hill and Nacogdoches power projects, all with council members’ votes recorded publicly so that the public knew exactly where their elected officials stood.

In May of 2015, City Council approved $14 million, including money for a new gas turbine, for the Sand Hill Energy Center in Del Valle. The public records show that two council members, Ora Houston and Leslie Pool, opposed.

In May of 2019, the council unanimously approved spending $470 million for the purchase of the Nacogdoches Generating Facility, a biomass power plant in East Texas.

Mackenzie Kelly, who served on City Council from 2021 to 2025, told KUT News that she did not recall votes ever taking place in executive session during her tenure.

“In those executive sessions, as council members, we would deliberate and discuss issues that were sensitive topics,” said Kelly, who served as the vice chair of the council’s Austin Energy Utility Oversight Committee. “At the end of those discussions, we would always come out to the public and make a vote publicly.”

Council members won’t say how they voted

To try to figure out who supported the May 21 power plant measure, KUT News contacted the offices of the mayor and every Austin City Council member who was present for the vote.

Council Members Natasha Harper-Madison and Vanessa Fuentes were not present for the vote and were not contacted.

KUT received replies from all council members who were present. But none would disclose how they voted. Their responses all suggested that they couldn’t reveal how they voted because the vote was done in executive session.

Some defended the practice as a way of protecting the interests of Austin Energy ratepayers.

“Once you start chipping away, saying, ‘Well, this little piece is not confidential, well, then maybe that other little piece isn’t confidential,’” Council Member Ryan Alter said. “The safe approach, so we can protect our customers, is just say the entirety of this particular item is done in executive session and has to stay private.”

Other council members said they’d been told by city lawyers that they can’t tell anyone how they voted.

“After seeking guidance from the legal team, we were advised that we cannot provide that information,” wrote Kara Eisenstat with Council Member Zo Qadri’s office.

A staffer at Council Member Marc Duchen’s office said she didn’t even know how her boss had voted.

That silence may be part of longstanding City Council practice. Of three current and former council members interviewed for this story, two — Leffingwell and Alter — said they remembered voting in executive session. One — Kelly — did not.

“The general rule is: It would be against policy, not against the law, for a council member to talk about anything they talked about in the executive session,” Leffingwell said.

Attorneys who specialize in open government argue that there’s no convincing legal rationale for keeping the way council members voted secret under the “competitive matters” exception.

“They do have the freedom to discuss what happened,” said David Escamilla, who trained elected officials on open meetings rules during the 18 years he served as the Travis County attorney.

The Open Meetings Act’s only disclosure crime is narrow, he said. It prohibits the release of “a certified agenda or recording of a meeting that was lawfully closed to the public.”

Escamilla allowed that sharing certain confidential information from a meeting could open a council member up to civil litigation. But he has never seen it happen and doesn’t believe a council member sharing how they voted could put them at risk.

Still, he said the law can be a convenient excuse for a politician who doesn’t want to go public with their voting record.

“My experience is that, in many cases … an elected official who might not have wanted to speak about those things would fall back on just recounting that ‘my attorney says not to say anything,’” Escamilla said.

He’s not the only one to suggest that council members may be using the secrecy rules to avoid angering constituents by coming clean on how they voted.

“It is a conspiracy of silence,” said attorney Joe Larsen. “By trying to avoid criticism in this way, they’re actually inviting criticism.”