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| 12/6/2009 11:17:00 AM | Email this article • Print this article | |
| | EXAMINER EDITORIAL | | Keep it open
When the city councils of Alpine and Pflugerville sued the state of Texas seeking to remove criminal penalties from the state's Open Meetings Act, they claimed the law was somehow a violation of their First Amendment rights to freedom of speech. They chafed under the restriction that says elected officials cannot discuss official business except at officially posted meetings that are open to the public. In other words, they must conduct the public's business in full view of the public - and are subject to criminal penalties including fines and even jail time if they don't do so.
This manifestly sensible proposition was passed in the wake of a major political scandal surrounding the Sharpstown Bank in Houston in the early 1970s that ended when voters chased an incumbent governor, lieutenant governor and House speaker from office. In the next session of the legislature, a group of reform-minded lawmakers from both parties that included a young firebrand from Port Arthur named Carl Parker took action. They became known as the Dirty Thirty, and the laws they passed injected a previously unknown degree of transparency into state government. The Texas Open Meetings Act had been passed in 1967, but it was strengthened in 1973 and remains to this day a formidable obstacle for those elected officials who would conduct public business behind closed doors.
As if the Alpine and Pflugerville city council lawsuits were not bad enough, the Texas Municipal League decided to join in this attempt to gut the act by removing the criminal penalties. TML is essentially a lobbying group for elected city officials, some of whom clearly dislike the requirement to perform their official actions in public view. That support by TML might have gone unnoticed until the next legislative session in 2011 if former Lt. Gov. Bill Hobby hadn't heard about it. In a strongly worded op-ed piece, Hobby called the TML position "troubling," said it "defied logic," and ended with a call for action:
"I hope you will join me in supporting the idea that the Open Meetings Act should be left intact and open government, without any strings attached, should continue to be the law in Texas. I also urge you to contact your city leaders and encourage them not to join in this effort that could weaken the Texas open meetings laws."
You probably won't have to direct those calls to the city halls of Beaumont, Port Arthur and Orange. Beaumont Mayor Becky Ames, Port Arthur Mayor Deloris "Bobbie" Prince and Orange City Manager Shawn Oubre all expressed support for the Open Meetings Act as it currently stands and said they do not support the action taken by TML.
That's good news, but this current controversy reminds us that vigilance is required to preserve the reforms that have been enacted to remedy the excesses of the past.
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Behind closed doors
Municipal organization wants to defang Texas Open Meetings Act
Jerry Jordan
News Editor
Afraid their potential violations of the Texas Open Meetings Act (TOMA) will land them in jail for conducting public business in the secrecy of backrooms, through e-mail and over the telephone, the membership of the Texas Municipal League voted last month to approach the Texas Legislature about rescinding criminal penalties associated with violations of the Act.
According to TML Executive Director Frank Sturzl, it is the position of the group, which advocates the needs and interests of it members, that the TOMA violates an elected official's First Amendment right to free speech - a contention that is being vehemently refuted by those who enforce the Act, including the Texas Attorney General's Office. Additionally, the proposal has ruffled the feathers of former Texas Lieutenant Governor Bill Hobby, who lashed out at the TML for what he called a "ridiculous" plan, alluding that the TML must have something to hide.
Defined under Section 551 of the Texas Government Code, the Texas Open Meetings Act requires the business of a political subdivision to properly post, openly discuss and take action in a public setting. There must be minutes or a recording of the meeting, a quorum of the members of the governmental body must be present and there are very few exceptions for which discussion is allowed to be conducted outside of public scrutiny.
The penalty for violating the act is either a Class C or Class B misdemeanor, the latter carrying a jail term between one month and six months behind bars, a fine not to exceed $500, or both.
"It's a pretty simple thing - don't violate the law," Hobby told The Examiner. "They are claiming that a city councilperson's right of free speech is being violated. Well, that is so silly on the face of it that I don't know how to respond. I have never heard of anyone saying that a city councilman or a mayor couldn't say what they wanted to; they just can't conduct business behind closed doors. The whole thing is so ridiculous. I am surprised they have put themselves in such a ridiculous position. If the municipal league has something to hide, then I suppose that is why they are behind this."
The Texas Municipal League, as defined by its own constitution, is made up of cities from around the state of Texas. Its mission is to advocate for them, representing their interests to "render services which individual cities have neither time, money nor strength to do alone." The first tenant of its service statement is to "represent municipal interests before legislative and administrative bodies."
And prior to each legislative session, the TML puts forth a legislative agenda to lobby state representatives and senators to pass laws favoring their membership.
But Sturzl, TML's executive director, told The Examiner that despite the majority vote of its 1,100-plus members, there are no guarantees that changes to the TOMA will be included in TML's next legislative package.
"That is a long time away," Sturzl said. "We can't say what will be included or won't be included at this time. Our membership voted on this because a violation of the Act could send them to jail for up to six months. Is that fair? The membership wants to see a reduction in the penalty part of the act. There is also a question as to whether the Texas Open Meetings Act is even constitutional. And part of it is that local government officials don't understand and don't know what they can or can't do or say. It would be different if it were only a fine, but this can put them in jail."
Former Texas Sen. Don Adams, who is now a lobbyist for media interests, said, "We are talking about a Class B misdemeanor, which is one step up from a traffic offense. What they really want is to relax the law to the point where there is no real prohibition against decision making whenever and wherever they want."
The Texas Attorney General's office, which has championed for expansion of open government, said any claims that the TOMA is unconstitutional are unfounded.
"Under Texas law, taxpayers have a right to know what their elected representatives are doing on their behalf," said Jerry Strickland, communications director, Office of the Attorney General, State of Texas. "If a quorum of public officials wants to discuss public business, the law requires that they do so in public. 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 meeting laws have been upheld under the First Amendment by every court in the country that has ever considered the issue."
Additionally, the idea that government officials don't know or understand the law is actually in direct conflict with the law itself. According to Section 551.005 of the Texas Open Meetings Act, the act "... requires each elected or appointed official who is a member of a governmental body subject to the Open Meetings Act to complete a course of training about his or her responsibilities under the Act."
The training must be completed by the 90th day in office, and the requirement has been in place since Jan. 1, 2006.
Tom Rugg, Jefferson County First Assistant District Attorney of the Civil Division, who enforces the Act locally, was highly critical of the move to weaken TOMA. And while the majority of the TML's membership may have endorsed or supported weakening the penalties of the Act, city officials from Beaumont, Port Arthur and Orange all said they had not signed on to the proposal.
"This is not something that I would be supportive of," said Beaumont Mayor Becky Ames. "I haven't signed on to anything and this hasn't come before the council for discussion. We always pride ourselves on making sure that we conduct business openly and in accordance with the open meetings act because the public has a right to know what goes on in government.
"I don't have a problem with the open meetings act. You are talking about people getting behind closed doors and making deals and I definitely have a problem with that. I think the Open Meetings Act serves its purpose and I have not been asked to sign anything regarding this and I wouldn't. If there is no punishment then that means it doesn't need to be there, and I am not in favor of that."
Port Arthur Mayor Delores "Bobbie" Prince said she had only heard mumblings of the plan by the TML but it has not been something that has come before the council or even something she has been asked to address.
In Orange, City Manager Shawn Oubre also said he had no problems with the current wording and penalties in the law.
"I haven't really seen the whole deal. I think it traces back to a lawsuit and I can see the point of view from the city's side in that it makes it very difficult to conduct city business. We are as transparent as possible and we will continue to be, and technology makes us even more transparent because of the availability of the Internet to get information out there. I see this more as a question from the city's point of view to ensure that we know what the ground rules are.
"If you start lobbying another councilmember on the phone, then that is a violation and I don't think that is a prevalent problem here in this region."
The harshest criticism of the TML's proposal came from Rugg, who called it "absurd" and "laughable."
"I suppose the objection is not that a criminal sentence of up to six months is too onerous but the objection is that there is any criminal consequence at all to a TOMA violation," Rugg said. "I haven't really followed the details of the TML proposal but am familiar that they have made assertions that the TOMA violates the First Amendment. It really doesn't matter to me if there is or is not a criminal sanction to a violation of TOMA - that call belongs to the legislature; however, the assertion that officials of government possess a First Amendment right to secretly deliberate public business is absurd. The circular reasoning is absolutely laughable. Let's see ... the First Amendment grants to public officials the right of free expression unhindered by themselves. It's sort of like the old adage 'Trust me; I'm from the government.' And these people wonder why there is public distrust. It would be funny if it weren't so sad."
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