I have for awhile been concerned about items that have apparently been discussed in executive session rather than in open session in certain government meetings. I've wondered at what meeting some things were discussed because I pretty regularly attend, for example, City of Glen Rose Town Council meetings and have not either seen the items on the agenda nor heard any discussion about them. One instance in particular that I wondered about was the signage that a local non-city group decided to create, with the idea that later they would ask the city for money I had been told, when i asked directly, that this arrangement with that group was talked about in executive session under the *economic development* exemption. You may wonder why I care about something that,on the scale of world issues, is relatively minor. It is because I expect, as a taxpayer and citizen, to be able to know about conversations and decisions that are being made by elected officials- I expect that if I go to a government meeting, I will walk out informed and not, as happens way too often, happen to hear about discussions that don't rise to the serious level of executive session exemptions. I also feel very strongly that I should not have to go to a private non-city meeting to find out about things the city might be involved in or which are represented as items the city is involved in.
So I filed an open meetings complaint. Now, mind you, when i did so, I did it only thinking that I was to file with the county or district attorney. When I did, the county attorney told me to go file a sheriff's report. I was surprised, because, number one, that's not what the law tells me to do. I also think that makes it look like I went to the law to have them enforce this, as a punitive or criminal measure, and that also is not the case. Because I was unsure if this was the right procedure, I asked the Texas Attorney General's office about this and that office told me that I should go directly to the DA's office. However, at this point, I was waiting to see what the county attorney decided to do (or not). I had called him up asking for a status and he said that he was going to write me a letter. I further asked him if he had asked the AG about the particulars of the economic development exemption and he said he did not because a decision from the AG's office might take 6 months to get. Have to say here that I don't care what length of time it might take the AG's office to issue an opinion, because I want to KNOW if I am right or wrong. I could be wrong, but if someone doesn't make sure what an exemption actually is by going to the horse's mouth, how can the requestor be sure?
Here is the answer I got back from the county attorney's office. PDF
I very much like Ron Hankins but I do not agree with his opinion. Here's why
Mr Huckaby says, as he did me in a phone conversation, that this was mentioned in executive session, not in open session. Even if was only one mention, and whether or not the specific group that was planning it was mentioned (which we cannot know for sure because executive session recordings are only available via a court order), it was still a discussion item that I believe was not appropriate for executive session. Why do I think that? Because, in open session the citizenry would have known about signage, would have had a chance, to approach the principals about it, to perhaps be involved with or in competition with signage, etc. As it was, the first instance of hearing about this was through a newspaper article in which the person planning some signage said, although not having funding, that their group was doing it as a collaborative project with the city, amongst other entities. I can't say this any more pointedly- anything that gets discussed by the city should be known by the citizenry and I do not believe that signage rises to the level of an executive session.
Mr Hankins found no case law on the subject nor any AG opinions. He did not ask the Attorney General's office about this. He said, p 2
Although I can find no case law on the subject nor Attorney General opinions, it would appear that this rule addresses closed meetings that might be held for discussion on a subject that is not allowed as a specific exception to the open meetings general rule. I do not believe it was intended to cover *incidental comments* which might be made in a closed or executive session, which otherwise would be allowed under one of the exceptions.
Where does one draw the line on *incidental comments?*. To me, an incidental comment might be "I saw your dog today, he was running down the road". Are executive sessions so loosely held that any comments at all can be made under a larger umbrella, even though the content of an action or discussion being taken is properly made so that the public can hear?
The executive session to which you refer (economic development ) certainly is one of the exceptions allowed.
Except that the definition of the economid development exception seems to me to be narrowly defined. From the Open Meetings Handbook -This again, is the section about Economic Development
14. Section 551.087. Deliberation Regarding Economic Development Negotiations
This provision reads as follows:
This chapter does not require a governmental body to conduct an open meeting: (1) to discuss or deliberate regarding commercial or financial information that the governmental body has received from a business prospect that the governmental body seeks to have locate, stay, or expand in or near the territory of the governmental body and with which the governmental body is conducting economic development negotiations; or (2) to deliberate the offer of a financial or other incentive to a business prospect
described by Subdivision (1).
Seems to me that you could make a case to talk about just about anything involving economic development in a closed session if it's not a narrow definition. Need to put an ad in the paper about a street fair coming to town? Talk about it in executive session since it involves economic development. Need to consider whether to bulldoze down some houses and build new ones? Surely THAT would affect economic development. No. When I called the AG's office about this, the spokesman said that he didn't believe signage fell into that category but he would have to know the specifics. BUT MR HANKINS DID NOT TAKE THIS TO THE AG'S OFFICE TO ASK ABOUT THE CONSTRAINTS OF THE ECONOMIC DEVELOPMENT EXCEPTION. I could be wrong and I'm certainly willing to admit if I am wrong, but heck, shouldn't any comments be based on researching and MAKING SURE?
Even if an incidental comment is made about something that is not directly related to the discussion of economic development (especially since no action has been taken in relation to that comment since that time) that does not, in my opinion, render the executive session *unlawful*. I believe that this falls under the *no harm, no foul* rule.
It's not my understanding that,when an executive session is called, that an action has to be taken. However, the government entities DO have to say "We're voting on this" or "No action was taken" about the SPECIFIC thing that was on the agenda that they needed to further discuss in closed session, per the executive session rules. So what difference does it make if there was no action taken? It still should NOT have been talked about in executive session. In fact, I think the mayor should have said "Look, we can't talk about this here, let's close the session and go back and speak about this before the public, so that they can know, too.". It didn't happen.
Mr Hankins says that
the affected parties are now well aware that they must avoid discussion of any subject which does not fall within one of the exceptions to the Open Meetings Act, and also which must have been properly posted in accordance with Texas law.
But the problem is, how can they know this, when the kernel issue of not having *incidental comments* and the definition of what a proper economic development exception are still not thrashed out? Forget economic development for a minute-can executive sessions be used loosely to talk about anything and everything and it's okay if an *incidental comment* comes up that the public is not aware of, whether action was taken or not?
Since the AG's office told me that I should go to the DA's office (and let me say again that I am NOT wanting to pursue this as a criminal case, but rather to fix the problem) and that in his opinion, only tentatively given since the facts would need to be exposed, signage does not rise to the level of an economic development exception, I continue to pursue this.
Update: December 15 2010-Found this on the Texas Attorney General website, in the Economic Development Handbook 2008. (p 233 on printed page)
The Open Meetings Act and the Public Information Act permit certain economic developmentrelated
issues to be discussed in an executive session and provide a limited time period during
which certain records regarding economic development prospects would be considered
confidential.1132 The Open Meetings Act allows a governmental body to conduct a closed session
to deliberate commercial or financial information that the governmental body has received from
a business prospect.1133 In order to hold a closed session under this exception, the business
prospect must be one that the governmental body is seeking to have locate, stay or expand in or
near the governmental body’s territory. In addition, the business prospect must be one with
which the governmental body is conducting economic development negotiations. If a business
prospect meets both of these requirements, then the governmental body will also be authorized to conduct a closed session to deliberate the offer of an incentive to the business prospect. No cases or attorney general opinions have construed this provision.
This is clearly talking about a limited time in which an incentive TO a business PROSPECT is being considered (like maybe a tax abatement or real estate, etc). It doesn't apply to just any old business tangentially related to or called economic development. Economic development is not some kind of catchphrase umbrella for government to go into closed meetings that the public cannot hear.