A Texas appraisal district breaks open meetings law

For a year, the board of directors of the Tarrant Appraisal District has unknowingly violated the Texas open-meetings law that requires government bodies to post their agendas publicly 72 hours before a meeting.

The idea, one of the most basic in participatory democracy, is to alert the public to topics that might be of interest so people can attend.

In a random check with the Tarrant County clerk’s office to see who follows the 72-hour rule, The Watchdog found that the district had routinely missed the deadline.

Under state law, if the agenda is not properly posted 72 hours before a meeting, any votes taken during the meeting could be considered illegal. A concerned party could challenge the action in a lawsuit and nullify a vote.

“I am shocked,” district Executive Director and Chief Appraiser Jeffery Law said. “To hear you say we are the No. 1 violator — that absolutely blows me away.”

As readers of the Fort Worth Star-Telegram Dave Lieber Watchdog column first learned, Law said his office staff mails the agenda a week before each meeting to the clerk’s office. Apparently, the mail is slow in arriving. Month after month.

The law requires postings to be on a bulletin board in a place convenient to the public three days before a meeting. Weekends count as regular days. When an agenda arrives at the clerk’s office, it is immediately stamped with the date and time. Then it is posted on a bulletin board and on the county website.

The Watchdog compared called meeting times for the district with the time stamp from the clerk’s office. The deadlines for the June 17 and June 30 meetings were missed by one day and two days, respectively.

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Other missed deadlines for district meetings in the past year: April 22 (one hour), Feb. 15 (two days), Feb. 4 (four hours), Jan. 21 (one day), Dec. 3 (one day), Oct. 15 (90 minutes), Sept. 17 (one day) and July 9, 2010 (one day).

Theoretically, a taxpayer in dispute with the district could file a lawsuit challenging any actions taken at those meetings.

The clerk’s office can’t compel governments to follow the law. The Texas attorney general’s office says enforcement is left to local district attorneys. The Tarrant County district attorney’s office says unintentionally missed deadlines are not considered criminal offenses. Actions taken at these meetings are best challenged by interested parties in lawsuits.

Boards that do a good job of meeting the requirements include the Tarrant County Commissioners Court, Trinity River Authority, Tarrant Regional Water District and Tarrant County Hospital District, which has been known to cancel meetings if an agenda is posted a few minutes late.

Houston lawyer Joe Larsen, a board member at the Freedom of Information Foundation of Texas, said, “When you abridge the amount of notice you give, you are basically abridging the right of participation.”

“Until the people of Texas, the citizens of Tarrant County and any other county begin to take notice and make this an issue, the district attorneys are going to continue to ignore it because they get pressure from their co-officeholders not to enforce it and they don’t get much pressure from the public to enforce it. So to them, it’s an easy call.”

Law said: “I want to thank you for bringing this matter to our attention. It was never our intention to act in any kind of manner that would mislead the public or hide our meetings from public view.”

From now on, the district will post notices on its own website — www.TAD.org — in addition to the clerk’s office.

 “I am taking corrective action immediately beginning today to make sure that all of our meetings are held in strict compliance of the law,” Law said. “This is going to be fixed.”

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Texas Opens Meetings Law challenge could go to U.S. Supreme Court

Here’s the latest information on public officialdom’s assault on the Texas Open Meetings law.

A federal judge in West Texas ruled in April 2010 that the Texas Open Meetings Act can stand as it is. Public officials who break the law by holding secret discussions can be fined and go to jail. That hasn’t happened once since the law was passed more than 40 years ago. But that hasn’t stopped some officials from challenging the law.

The fight is not over. A lawyer challenging the law on the grounds that it violates public officials’ free-speech rights says his side will appeal. The case could end up in the U.S. Supreme Court, he says.


Read the complete transcript of the Texas Opens Meeting Act trial here.


The issue comes down to this: If a quorum of public officials talks to one another or to others about government business outside of an announced public meeting, are the officials violating the law?

Some elected officials say the answer is not clear. Different lawyers give them different answers. That causes confusion, they say.

“No one can answer that question as to what we can and cannot do,” says Arlington Councilman Mel LeBlanc, who testified against portions of the law at the trial.

The law “limits our ability to discuss matters legally with our constituents as well as other council members for fear of being prosecuted and imprisoned,” says Hurst Councilman Henry Wilson, who also testified at the trial.

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Keith Elkins, executive director of the Freedom of Information Foundation of Texas, says the court challenge is based on untruths. Public officials violate the law only if enough members to make up a quorum gather and talk about public business out of the public’s eye.

“If you have four or six council members sitting at a diner having breakfast and talking about sports or Justin Bieber, that’s not a violation of the Open Meetings Act,” Elkins said. “If they’re talking about city business, it is.”

And nothing in the law prevents a public official from talking with a constituent or answering a constituent’s question, he said.

He adds, “Public officials are held to a higher standard. If they are uncomfortable, perhaps they shouldn’t run for office.”

Rod Ponton, the city attorney for Alpine and one of the lawyers challenging the law, told me, “We think the district judge was flat wrong. … Every public official in Texas that deals with [the Texas Open Meetings Act] on a daily basis knows that his First Amendment rights are being infringed upon.”

He continued, “They talk about how they can’t talk with each other except at a meeting. They can’t communicate with each other the way the members of the Legislature do. That’s a chilling of political speech. You can talk about the weather. You can talk about sports. But you can’t talk about public matters. … There’s no reason they shouldn’t be able to have informal discussions among themselves all the time.”

If they did that, though, the public may not know how government decisions are made, critics say.

Under Texas law, notice of a public meeting must be posted 72 hours before it begins. The posting includes the agenda. Only what is posted can be discussed at the meeting.

The law allows for closed meetings when officials discuss certain matters such as real estate purchases, lawsuits or some personnel issues.

Here’s an example given by Hurst Councilman Wilson at the November trial that he says shows how his free-speech rights are being violated:

The city was looking at changing its gas-drilling ordinance to toughen water and air quality standards. Because the council couldn’t discuss the issue privately, Wilson testified, the questions instead were asked of Chesapeake Energy officials in a public forum.

“We generated a very severe adversarial relationship with the drilling company that we were really looking at doing business with because the city had sold a lot of their mineral rights or given permission to the companies,” Wilson testified.

He added, “It presented a problem in our relationship with Chesapeake. … We ended up having to air all our concerns and be on the opposite side of the issues in the public with them.”

In his ruling, released last week, U.S. Judge Robert Junell writes, “Open meetings enable public discussion and discourage government secrecy and fraud.”

Public officials “are merely asked to limit their group discussions about these ideas to forums in which the public may participate.”

He continued, “Governmental bodies have no First Amendment right to conduct public business behind closed doors. TOMA ensures that governmental bodies perform their duty, which is informing Texas citizens about public affairs.”

The same judge ruled similarly in 2006. Two years ago, his ruling was reversed by the 5th U.S. Circuit Court of Appeals. The case will now be appealed with that same Louisiana-based court.

If Junell is reversed again, the U.S. Supreme Court could eventually hear the case. At that point, the Texas case could have implications for open government across the land.

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Public officials’ use of social media sparks debate

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?

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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

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