Glen Rose City Council having illegal meetings in email?Somervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas


 

Glen Rose City Council having illegal meetings in email?
 


22 April 2010 at 11:38:47 AM
pharper

If the City Council members are going to be talking in email with a quorum and the city attorney on the thread then it should be made public just like a public meeting which is why I did an Open Records request to retrieve these emails to show the Open Meetings Act violation. They should be saying this in meetings but instead do this behind closed doors in email where no one can see what is going on. Below is one of these initiated by Chris Bryant. Why is Chris Bryant talking about this in email instead of waiting until the public meeting or executive session? Chris Bryant is violating the Open Meetings Act by discussing public business in a non-public manner.

This has been added to the Open Government Violations page.


---

From: Chris Bryant
To: Peggy Busch
Cc: Pam Miller; Ronald Bruce; Rick Villa; Barbara Mitchell; Bob Strickland; Andy Lucas
Sent: Wednesday, April 21, 2010 4:30 PM
Subject: City Clerk
 

To all,
 
        Needless to say but I am not happy with the hiring process that took place for our new City Clerk. The last position that was filled in Admininistration was reviewed by the City Council in executive session and as I recall, I don't think there were any Council members that agreed on how it was done.
    The facts are that during a executive session, we did advise Peggy that the process and her decision for Rosies replacement did raise a lot of questions from the public. I believe that the initial hiring was based on a personal decision and did not act as a position that was  open to the best candidate. I made the recommendation that the council or members of the council should set in on the next hiring process. That thought was rejected, we then stressed that better decisions should be made.
    Well, here we are again. This time I believe that we have made a big mistake to leave the hiring of this position to one lone person
        This was a type of position that definitely should have called for more knowledge and expertise. It is my understanding that there were a lot of good applicants with fitting qualifications that may have been more suitable for the position of City Clerk. I would like some better understanding of  why this decision was made and what it was based on.
    I am requesting a copy of all applications that were turned in and a list of the people that were interviewed.
I have had several citizens express their concerns and questions and I don't know what to say. I am embarrassed by the lack of control that we have to develop a proper and legitimate hiring process.
 I would ask that the other council members be involved in this and take the time to review some of the applications so that we can determine for ourselves if this hiring process was done correctly.
 
                                            Thank you,
                                                                Chris
 Peggy,
            Please put the applications together and all that were interviewed. I will pick up or have them picked up so that I may review over the weekend.
                                                                        Thank you.


 


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Comments!  
1 - humanbeing   22 Apr 2010 @ 6:40:20 PM 

First of all, of course all officials should be educated on open meetings violations. As I recall, i think seminars are avaiiable in Austin for our officials. Secondly, it seems to me that Mr. Bryant, in this email, is questioning a process, not really conducting business, such as who to hire. I question whether this is a true violation of the act.


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2 - pharper   22 Apr 2010 @ 6:41:12 PM 

I received this email through an open records request response, not accidentally through a broadcast email!!
Others may have received it through an accidental email going out but that is not how I received it.

I care that they are violating the law talking about city business with a quorum behind closed doors! Anyone who goes through the Open Government training knows this.


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3 - salon   23 Apr 2010 @ 9:38:01 AM 

Let me restate my comments so there's no confusion about the comment I originally made(gone now). I was accidentally sent that email through a broadcast message and I deleted it. pharper did not get it or see it or even hear about it through me, but because he asked the city through an open rec. I viewed the message as being akin to a *resume blast* where somebody accidentally sends his or her resume to the entire company, plus I have no dog in the hunt or complaint about who got hired or what the hiring process was (content of message) . What pharper saw in that email, however, after he received it, was entirely different, and had nothing to do with the content message of the email. And he is RIGHT.  It was the fact that under TOMA law (Texas Open Meetings Act), a meeting is defined as a quorum of elected officials. In other words, any time you have a quorum of officials together, WHETHER IN PERSON OR ON EMAIL and it isn't say, an entirely social gathering, it is against the law to be discussing city business. BECAUSE that's the definition of a meeting.

From the Texas Open Meetings Act

“Meeting” means:
(A) a deliberation between a quorum of a governmental body, or between a quorum of a
governmental body and another person, during which public business or public policy
over which the governmental body has supervision or control is discussed or
considered or during which the governmental body takes formal action; or
(B) except as otherwise provided by this subdivision, a gathering:
(i) that is conducted by the governmental body or for which the governmental
body is responsible;
(ii) at which a quorum of members of the governmental body is present;
(iii) that has been called by the governmental body; and
(iv) at which the members receive information from, give information to, ask
questions of, or receive questions from any third person, including an
employee of the governmental body, about the public business or public policy
over which the governmental body has supervision or control.
The term does not include the gathering of a quorum of a governmental body at a
social function unrelated to the public business that is conducted by the body, or the
attendance by a quorum of a governmental body at a regional, state, or national
convention or workshop, ceremonial event, or press conference, if formal action is not
taken and any discussion of public business is incidental to the social function,
convention, workshop, ceremonial event, or press conference.
The term includes a session of a governmental body.
(5) “Open” means open to the public.
(6) “Quorum” means a majority of a governmental body, unless defined differently by applicable
law or rule or the charter of the governmental body.

There have been a couple of lawsuits, in Texas, over the past year or so, that dealt specifically with conducting meetings, with a quorum present, over email. The most recent one is City of Alpine vs Wilson. Basically, as I understand it, the issue of whether government official's free speech rights are being violated by not being able to discuss business in email. There's also an issue in there about whether the criminal penalties for violation of the OMA are too much. Here's from RCFP.

The Texas public officials are arguing that the state's open meetings law, which prevents a quorum of government officials from deliberating behind closed doors and attaches a penalty of up to six months in jail and a $500 fine for doing so, violates their free speech rights even though prosecutions under the law are rare.

The lawsuit mirrors a recent federal case that became moot after the Alpine city council members seeking to overturn the law no longer held office. Attorneys for the previous plaintiffs have taken on the new case free of charge.

In February 2010, the Texas Attorney General argued that cities in that lawsuit cannot have their freedom of speech rights violated.

As “creatures of the state” cities “may not assert constitutional claims against the state," Abbott argued in a motion to dismiss the municipalities from the lawsuit.

So that you can see the argument that is being made by reporters from the RCFP. As you read through this, consider: If government officials talk about and discuss business in email, doesn't even have to be conclusive, and then you show up to a meeting and hear NO DISCUSSION because people have already discussed it in email, is that truly open government?

p 10 "It is urged citizens have the right to unfettered discussion of governmental affairs in private while retaining anonymity. Appellant's claim reveals a basic misconception regarding the nature of a public official's position. The First Amendment does indeed protect private discussions of governmental affairs among citizens. EVERYTHING CHANGES, HOWEVER, WHEN A PERSON IS ELECTED TO PUBLIC OFFICE. Elected officials are supposed to represent their constituents. In order for those constituents to determine whether this is in fact the case they need to know how their representative has acted on matters of public concern. Democracy is threatened when public decisions are made in private. Elected officials have no constitutional right to conduct governmental affairs behind closed doors. Their duty is to inform the electorate, not hide from it. (KOMA)

p 15 - The Appellants, as elected officials, surely are aware when they have formed a quorum of the body on which they serve- and thus that all discussion and actions in those settings are within their *official capacity*. No one asserts, as they apparently believe, that "talking about public issues with other members of the council... is a crime".. It is only a quorum of the council talking about public issues outside of an open meeting that has the potential to be a crime- a line no doubt aimed at preventing laws from being made and enforced in secret.

Indeed, these open government laws are designed to provide citizens a method of communicating with their government, whether it is through participation in open meetings, comments on proposed regulations or an informed decision to not take part in government action based on details available to them.

p 18. ... the Texas statute does not regulate an individual's speech in a public forum or regulate the type of content that cable channels must air. In fact, the statute does not regulate speech at all. It regulates only the action taken by government officials. As the District Court recognized, "The Act simply requires speech to be open and public.... the TOMA does not impede the freedom of speech; the Act simply requires speech to be made openly and in the presence of the interested public, as opposed to "behind closed doors".

 p 22 It is perhaps easiest to think of open meetings laws as mechanisms that enable citizens to petition the government in an orderly and coherent fashion- a basic right granted by the First Amendment. At its essence, the right allows a citizen to come before a public body to listen, observe or speak. Today, that right is embodied in a framework of open meetings laws that require a government body to give notice of meetings, to post agendas and to discuss only what is on the agenda. ... With that scheduling information, citizens can speak out in the alloted time frame and exercise the full spectrum of rights the First Amendment gives them.

pharper is right. Despite the lawsuit by some entities that want to be able to conduct meetings over email (because that's what you're doing when you have a quorum and you're discussing city business, regardless of whether it is potentially executive session material or not), elected officials.... can... not... do... this.


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4 - Lisa Fay   23 Apr 2010 @ 12:15:58 PM 

This is conducting business or deliberation - so it is subject to TOMA. This would likely have been covered in executive session since it relates to personnel matters. Now this information is out in the open and it shouldn't have been because it would have been protected in executive session.



5 - Chris Bryant   26 Apr 2010 @ 4:37:44 PM 

To all,

             I have spoke with Paul over the phone and I understand his concern. I would want and encourage people to be involved with City business. Pauls concern is that I was in violation of the open meetings act and that I should have attended classes and seminars so that I would be more educated in this area. The good news is, I have attended these classes and am well aware of the Open meetings laws. I have a certificate of attendance form 2009.

After these accusations, I consulted with TML and city attorney. For those who are concerned of any violation, I can assure you that there has been none made. Paul stated that there was talking via email but there was not. I was only addressing a concern that I had received from a concerned citizen. However, there is such a thing as polling which would consist of me trying to persuad the other Council to see matters my way. This email had no attempt to do that. Another issue of concern would be if I had asked the other Council members to write or comment back. I did not ask the council members to this nor did they act on their own to write back.

It is legal however to address a concern and address other Council members of any matters that would be of concern. This can be done as long as it is not done in the matter of polling, persuation or reply.

As for my last comment concerning this issue, there has been two things Paul has mentioned about open meetings Via my email. One is that what I had written about, I had already placed on the agenda. It was placed on the agenda a week before my email and it was listed in open meeting and not in the executive session. The second was that I was accused of open meetings violation by sending this email to the Council and Administration only but... this email was sent publicly and was not meant for Council eyes only like Pauls remarks insinuate.

This is not a letter of retalliation but is a letter to explain a one sided view. I will not argue or elaberate on this matter any further. I under stand people will always have concerns and I respect that. Concern is the whole reason that I have ran for city council. I wish there were  more people who got more involved with their City or County business. My only wish would be that some people reallize that  we the City Council are not here to be a dominant force but  we are here for the love and concern for our City.

Mistakes will happen and we will correct and move on but this time that was not the issue.

                                                                                     Thank you,

                                                                                                           Chris Bryant   



6 - pharper   26 Apr 2010 @ 5:35:55 PM 

If you are a city council member and speak about city business to a quorum of city council members where a public meeting notice was not held, you are violating the Open Meetings Act and are having an "illegal meeting". This is what the training on the Attorney Generals site says. I will go ahead and quote the training from here so everyone can see:


"NANCY: A meeting subject to the Open Meetings Act doesn’t just apply to traditional meeting settings... it can also occur through a nonspoken exchange, such as written materials or email. ***FOOTAGE OF EMAIL EXCHANGE*** The Office of the Attorney General has determined, for example, that circulating an invoice among members of a commissioners court until a quorum agrees to approve a payment by signing the invoice, instead of considering that invoice at a public meeting, violates the Act. Written approval of the invoice was no different from the deliberation of any other county business that would normally be required to take place during an open meeting.

Because circulating written comments can constitute a meeting subject to the Act, the members of a governmental body should be very cautious about email or text-message interactions among themselves on a subject matter that is related to the public body’s business. If you receive an email that you feel is questionable you SHOULD NOT REPLY to that email and you should immediately contact your legal counsel."


I see Chris Bryant talking about city business in email in violation of the rules...even if he was talking about what a constituent said it should STILL be done in a public forum where a meeting notice and agenda have been legally posted else it is an illegal meeting as the OAG training specifically points out. TML lawyers will not represent Cities or City Council members and their opinions are not binding, these are the same folks who told Pam Miller she could state every possible reason for going into executive session instead of the ACTUAL reason.


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7 - pharper   26 Apr 2010 @ 6:30:11 PM 

Another quote from the training:

"ANNOUNCER: Our next example shows three city council members and the mayor discussing the city’s public business in a social setting away from city hall and the council chambers. The three members constitute a majority of the five-member city council, so a quorum is present. The quorum is discussing the city’s public business and at least one member is participating in the deliberations. Even though the governmental body probably didn’t call this meeting, it’s still a meeting under the Act because all of the other elements of a meeting are present. Unfortunately, these members are having an illegal meeting. "


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8 - salon   10 Jul 2010 @ 12:14:07 PM 

The Texas AG ruled here that having a meeting doesn't require discussion or deliberation or *talking*. The context of this ruling is about vague agendas, but the principle applies.

Our conclusion here is not altered by the fact that the governing body does not, as you assert, "engage in any discussion" or "take any action regarding these items." Request Letter, supra note 2, at 6. Under the Act's definition of "meeting" a governmental body is subject to the Act, and its notice requirements, even when its members merely receive information about public business or public policy over which the body has supervision and control and do not engage in deliberations. See Tex. Gov't Code Ann. § 551.001(4)(B) (Vernon Supp. 2008); Martin v. Victoria Indep. Sch. Dist., No. 13-01-096-CV, 2002 WL 34215930, at *3 (Tex. App.--Corpus Christi Aug. 8, 2002, no pet.) (not designated for publication) ("[A] governmental body is subject to the Act even if the members merely receive information and do not engage in deliberations among themselves or with a third party including an employee of the governmental body[.]").

The TML has a point of view that is different than the Attorney General-they have, in fact, entered into a lawsuit that seeks to allow public officials to discuss items, in a quorum, outside of public meetings. Yup, TML wants secret government. They're wrong.


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9 - salon   26 Mar 2011 @ 5:53:11 PM 

The US Western District decision on this clearly shows that sending an email to a quorum of elected officials violates the TOMA (Texas Open Meetings Act).  from page 35 of the ruling (OAG website)

Thus, TOMA is violated when a "quorum or more of a body .. attempts to avoid (TOMA's) purposes by deliberately meeting in numbers physically less than a quorum in closed sessions to discuss public business and then ratifying its actions in a physical meeting of the quorum in a subsequent sham public meeting". .. TOMA is not violated when a member of a governmental body uses the tepehone to discuss an agenda for future meetings with another member, as long as a quorum is not present and the telephone conversation si not used to circumvent the Act... they do not violate TOMA when they communicate with their fellow city council members or constituents ex parte or one-on-one by phone or e-mail about public business outside of a quorum. ..

This clearly shows that sending an email to a quorum of elected officials that discusses an upcoming meeting violates TOMA. As we have said, the whole point of having open meetings is so that the public can listen to discussion and deliberation and not have it done beforehand through an email. TML LOST.


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