In Texas, I’m worried about open government

When Lucille Drain resigned in November from the Newark City Council, she was 96 years old and the oldest serving public official in Texas. But her age wasn’t what did her in.

After 26 years on the council, she wrote in her resignation letter: “The main reason for resigning early before term ceases, I care not to work with new council members through computers with all the questions and answers cut and dried before meetings.”

As first reported in the Wise County Messenger, she said she believed that city business was being discussed by council members and the mayor via e-mails, instead of in a public forum.

“I don’t think a city can be run by computers,” she stated.

This is a Dave Lieber column on Texas open government for WatchdogNation.com.

Bless her for telling it like it is. In many towns and school districts, e-mail communication, texting, phone calls and face-to-face talk about the people’s business is conducted by public officials away from publicly announced meetings where the work of government is supposed to take place. But violations are difficult to prove.

One of the few ways to enforce the Texas Open Meetings Act is the fear among officials that if they violate the law, they could get caught. The penalty is a $500 fine and up to six months in jail.

As I first reported in the Dave Lieber column in the Jan. 8, 2010 Watchdog column in the Fort Worth Star-Telegram, now there’s an attempt under way by some public officials to remove criminal penalties from the law. These officials, acting in what appears to be a highly coordinated effort, are saying that the open-meetings law is too strict.

Although 1989 was the last time a public official in Texas went to jail for this offense, some public officials claim that the law is a violation of their right of free speech. They say they want it changed because they should be allowed to talk to whomever they want to without the threat of jail hanging over their heads.

Under the law, a majority of members, or quorum, of a public board is prohibited from discussing government business outside an official meeting. According to the most widely accepted interpretation of the law, the public is not prevented from talking to government officials, but in some circumstances, officials are not allowed to fully respond in a public meeting unless the topic has been listed on a pre-published meeting agenda.

Also, the “free speech advocates” say they are afraid that e-mails can be used against them

Any movement to decriminalize the open-meetings law and roll back open government in Texas during this era of greater accountability might sound absurd on its face. Approximately 20 states tie some form of strict penalty to their open-meetings laws, open-government experts says.

However, one of Texas’ best lawyers, Dick DeGuerin of Houston, is co-counsel in a federal lawsuit filed last month in Pecos that challenges the open-meetings law on free speech grounds. Here is the lawsuit challenging Texas’ open records law.

The lawsuit states, “Citizens are afraid to talk to the officials who represent them, and those same officials are afraid to talk to the citizens, for fear of being indicted and prosecuted.”

Among those public officials listed as plaintiffs in the case: Arlington City Councilman Mel LeBlanc, who told my newspaper, the Fort Worth Star-Telegram, last month, “It’s an insult to individuals that spend a good portion of our lives in community service that if we misinterpret the Open Meetings Act in its vagueness that we can go to jail or be fined.”

At its annual conference, held in October in Fort Worth, the Texas Municipal League, which lobbies lawmakers on behalf of cities, passed a resolution submitted by the city of Sugar Land calling for decriminalization.

The resolution supports legislation next year “to amend the Open Meetings Act by replacing the criminal enforcement provisions with less restrictive penalties that balance the First Amendment right of governmental officials.” The replacement penalty most talked-about would overturn any decision made by a body if the open meetings act has been violated. This already exists as a noncriminal penalty under the current law.

Further momentum for the cause came when the 5th U.S. Circuit Court of Appeals ruled last year in a lawsuit filed by Alpine City Council members that public officials are protected by free speech even when they conduct “their official duties.”

Read the 5th Circuit’s opinion that pertains to Texas open government here.open government

That gives hope to those who want to remove the threat of a fine or jail time.

Frank Sturzl, executive director of the Texas Municipal League, says he believes that opinion shows that in the future, a federal court could rule that Texas’ law is too tough on public officials. Read his column “Texas Newspaper Lash Out At City Officials” on tml.org here.

Alpine City Attorney Rod Ponton, DeGeurin’s co-counsel in the lawsuit, told me: “We are fully in favor of open government and no ’secret deals.’ However, we favor individual First Amendment rights over government laws that censor elected officials.

“There is a balance that allows free communications and open government. Texas goes too far. Elected officials lose their free speech rights when they take office, and that violates the First Amendment.”

Sharply countering that, Texas Attorney General Greg Abbott’s office released a statement: “In this case, elected officials, municipalities and critics of open government are turning the First Amendment on its head. The First Amendment is furthered, not frustrated, by open meeting laws. And for that reason open meetings laws have been upheld under the First Amendment by every court . . . that has ever considered the issue.”

Blunt talk also comes from open-government advocate Keith Elkins, executive director of the Freedom of Information Foundation of Texas. He says, “Anybody that is having trouble following the law as it applies to open meetings of government officials should reconsider running for public office rather than trying to change the law.”

Meanwhile, momentum builds. The Wichita Falls City Council voted three weeks ago to join Alpine, Big Lake, Pflugerville and Rockport as co-plaintiffs in the current federal lawsuit.

Watchdog Nation will keep an eye on this one.

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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 bookwon two national book awards in 2009 for social change. Twitter @DaveLieber

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Comments

  1. Louie McKay says

    As vice-president, I was called to a meeting of Hickory Creek S.U.D. of Celeste, TX at the president's home. Three of the directors were not notified or invited. The four directors who attended, including me, discussed business and decided on the date, time, and place for a special called meeting. I looked at Texas Open Meetings Act summaries when I got home and found that our meeting fit the exact description of a "walking" quorum. I have documented the details, turned them over to our county attorney, and resigned from the board. It's been 3 months since the incident, and nothing has been done. The board continues to operate as if nothing has happened. I believe the open meetings act has no teeth in Hunt County.