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.

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

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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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