You thought Facebook and Twitter were ways to tell the world what you had for breakfast? Or that cellphone texting means you can ask your spouse what’s for dinner?
Well, what about school board and City Council members who use those social media and communication tools to subvert the concept of open government?
The council member who text-messages another member during a meeting and asks, “How am I supposed to vote?”
The school board members who use Facebook’s private chat to decide which contractor should get hired for a multimillion-dollar job.
According to state law, officials are not supposed to deliberate or discuss public matters at any unannounced meeting held in private. And the public has a right to inspect or copy many government records, which can include e-mail and other electronic postings.
The Texas attorney general’s office is strict about that.
But the new communication tools have become “second nature” to everyone, including public officials in Texas, said William McKamie, a San Antonio lawyer who serves as city attorney for several municipalities. People feel more uninhibited about communicating when using them, he said.
That can lead to trouble.
It did lead to two debates Friday in Fort Worth at the annual meeting of the State Bar of Texas.
McKamie suggested that state lawmakers clarify rules about social media for public officials, and he bristled at the idea that elected officials should be so limited in discussing public business.
Sitting beside him on an open-government panel, Wanda Garner Cash, a University of Texas journalism professor, had a different view. The Texas Public Information Act, she said, should apply to all forms of communication. That includes, as an example, smartphones regardless of who owns or is paying for them, she said.
“I disagree with that,” McKamie said.
Cash cut him off: “Public communication is public communication.” Even if an official uses a personal cellphone to discuss public business, it’s still subject to the state law, she said.
But McKamie said public officials “don’t give up their First Amendment rights when they get elected to an office.”
“It has nothing to do with First Amendment rights,” Cash countered. “It has to do with conducting business — whether it’s done on your home phone or your office phone.”
The debate is no longer just theoretical.
Several Texas cities and public officials (including Arlington City Councilman Mel LeBlanc) have sued to remove the criminal penalties in the state’s Public Information Act. A trial is scheduled for fall in a Pecos federal courtroom.
As Rod Ponton, Alpine city attorney and a lead lawyer on the case with Houston attorney Dick DeGuerin, explained it at a second panel discussion Friday: “The First Amendment was written more than 200 years ago and, of course, we didn’t have Twitter. We didn’t have e-mail. We didn’t have electricity. But the idea was that political speech should be protected.”
Ponton said the state law has had a chilling effect on elected and appointed officials’ communication because they are afraid that they could go to jail for up to six months if caught breaking the law.
State Rep. Carol Kent, D-Dallas, also on the panel, said that during her five years as a Richardson school board member, the threat of a criminal conviction “certainly yanks your chain a little bit, and it gets your attention.”
“When you come into office and you take the oath, you know you’re going to face a higher level of scrutiny for the conversations that you have.
“You have to behave differently. You’re going to have to be more careful about the things you do, the things you say.”
Ponton called that unfair. “Public officials shouldn’t lose their rights to speak,” he said.
Hardly, according to panelist Keith Elkins, executive director of the Freedom of Information Foundation of Texas. He said his group could find only one example in 40 years where a Texas elected official was convicted and served jail time in such a case.
“I don’t think there is a real rush to the courthouse where overzealous prosecutors are trying to put elected officials in jail. … We hear pretty much hear the opposite.”
People contact a district attorney for help when they believe that their elected officials violated the open-meetings law with private deliberations, but prosecutors don’t want to take the case, he said.
What’s more, “if you only had one violation, something must be working.”
But Ponton said the use of social media may lead to more prosecutions. “Because if tweets go around, or e-mail or Facebook, the discussion of public matters is not posted,” he said. “Now you have an electronic trail which proves there has been political discussion among a quorum, and they could be indicted.”
Kent agreed that it was “chilling in a sense” but said that it was also “being ethically responsive to the notion that the public has a right to know what a school board is thinking about or discussing.”
While McKamie called for state lawmakers to rewrite rules, Cash said little needs to change. Whether you’re conducting public business “in an official meeting or on the hood of a pickup truck,” she said, it’s still the people’s business.
What do you think?
# # #
Want to learn more and see the documents involved? Click on this WatchdogNation.com link to read an earlier post.
# # #
Dave Lieber, The Watchdog columnist for The Fort Worth Star-Telegram, is the founder of Watchdog Nation. The new 2010 edition of his book, Dave Lieber’s Watchdog Nation: Bite Back When Businesses and Scammers Do You Wrong, is out. Revised and expanded, the book won two national book awards in 2009 for social change. Twitter @DaveLieber
