Toothless Texas Open Meetings Act... and the Texas LegislatureSomervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas

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Toothless Texas Open Meetings Act... and the Texas Legislature

1 June 2010 at 10:49:56 AM

Dilemma-what if a local government entity is not scrupulous about following open government laws, but the enforcing entities give them a pass? What recourse is there for the citizen who has a legitimate complaint about open meeting violations?

I attended a Texas Senate State Affairs meeting in Austin on May 11, 2010. I had gone down to Austin specifically because I wanted to hear as well as speak about electronic meeting issues. Specifically, the Senate agenda was:

Charge 13: Study the Public Information Act and the Open Meetings Act to
ensure that government continues to operate in a way that is open and
transparent. The study should consider how advances in technology and the
emergence of various forms of social media (e.g. Facebook, MySpace,
Twitter) have affected communications by and within governmental bodies.

There were a number of people who testified at the meeting (witness list here)

State Affairs
May 11, 2010 - 09:00 AM
Interim Charge 13
Cash, Doug   (Texas Daily Newspaper Association / Texas Press Association),  New Braunfels, TX
Elkins, Keith   (Freedom of Information Foundation of Texas),  Austin, TX
Frels, Jonathan K.   (Office of the Attorney General),  Austin, TX
Harper, Debbie  (also providing written testimony)  (Self),  Glen Rose, TX
Houston, Scott   (Texas Municipal League),  Austin, TX
Longoria, Ruben  (also providing written testimony)  (Texas Association of School Boards),  Austin, TX
Mallette, Cindy  (also providing written testimony)  (Americans for Prosperity - Texas),  Austin, TX
Power, David  (also providing written testimony)  (Public Citizen),  Austin, TX
Schneider, Michael   (Texas Association of Broadcasters),  Austin, TX
Valkavich, Helen  (also providing written testimony)  (City of San Antonio),  San Antonio, TX
Vogel, Peter  (also providing written testimony)  (SMU Dedman School of Law),  Dallas, TX

, which can be seen and heard in its entirety here. (That hearing began about midway through about 2:03). One would expect that the Senators would be very concerned about upholding the law from the standpoint of the citizens who attend government meetings, but what surprised me was how many Senators were concerned about whether they themselves were violating the law with Twitter or Facebook, whether people could see their campaign emails or phone logs, and how to make sure THEY didn't violate the law. That's all well and good, but I was told after the hearing was over that the Texas Open Meetings Act doesn't apply to Texas legislators.

Two of the people who testified, for the TML and TASB seemed to be incorrect in their assumptions. At least, I'd like to see what they said challenged. The TML guy said that an open meetings violation on email would require a deliberation.

Texas Open Meetings Act is very specific about how complaints must be addressed. A citizen who believes that it is being violated can take it to  either the county attorney or the district attorney, who will then look into it. IF the county attorney or district attorney believes that a law has been violated, he or she can file charges, as proven violations of the Act involve fines or jail time. I also believe that there is prosecutorial discretion, in that he or she might find that a law has been broken, but opt to do a hand slap or suggest that those involved get training. Presumably, the county attorneys or district attorneys are famliar with the OMA and have been through training from the state; ir not or perhaps whether that's true, still seems to me that if there is a question at all and any degree of unfamilarity, that the attorneys would then contact the Attorney General's office for an opinion. That's actually the next step in the OMA process. Can a citizen go directly to the AG's office? No. In fact, neither really can any other member of the media, not to mention a citizen. The OMA simply doesn't have a process step that includes asking the AG for an answer.

Suppose that the local attorney doesn't ask the AG,  and the citizen gets back an answer that he or she doesn't agree with. There is not, under the OMA, any kind of recourse to check the law except by filing a civil lawsuit in district court. Suppose, for example, that you believe that an issue isn't correct and you'd like to check it with the AG's office-you CAN with the Public Information/Open Records Act, but not with OMA. For those of us who aren't interested in taking officials to court for what may be honest mistakes, but still want repeated OMA violations to stop, we have empty hands.

After the Senate hearing, I told Senator Duncan that I would like to see some legislation that would allow some sort of appeal or recourse procedure to the AG level in cases where procedure had been followed but the resolution was stalled at the county attorney or district attorney level. In the case of the Public Information Act, if one doesn't agree with an AG finding that has come back, one can issue a complaint directly to the AG. Not so with OMA. In fact, one of the people who testified said that, of all the OMA complaints that had been filed, NONE had been prosecuted and in the case of one, in San Antonio, the violators didn't even serve out their full time.

Senator Duncan agreed with me that it's very possible and in fact, common, for there to be a bottleneck when it comes to prosecuting violations. Again, if a prosecutor decides not to do anything about a violation, there's no recourse for the citizen except to sue.

Another facet of this is to compare how the Public Information Act compares with the Open Meetings Act. In the case of the former, if someone asks for a record and the entity that has it doesn't want to give it out for whatever reason, they *must* take it to the AG for an opinion. I would like to see the same thing happen with open meetings. IF the county attorney or district attorney believe that no laws have been broken, before they can simply dismiss the complaint, they must go to the AG for an opinion. That would at least take out part of my concern, which is that an attorney with little or no experience with an open meeting might not check to see if his or her opinion is correct.

When I told Senator Duncan about this, and that I was concerned that the only recourse is a civil lawsuit, he said "Take it to the media, that's what you can do". I do agree that publicizing these types of things is a good action, and we, being one member of the media, can certainly broadcast what we think. But I believe more is required, and that would be a legal remedy through a change in the law.

Agree? Disagree/

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1 - PeggyVenable   28 Jun 2010 @ 4:59:55 PM 

You are so right.  You did an excellent job explaining the issue and possible revisions to the Texas Open Meetings Act (TOMA).

You also pointed out the Texas Municipal League's position has  been very visible.  The TML passed a resolution supporting decriminalization of the Act, which essentially takes the teeth out of TOMA. 

When citizens have no recourse other than another local government official, let's face it.  Some citizen complaints will be totally ignored.  We need to revise the TOMA to provide for citizens to ask for rulings.  An open, transparent government is in every citizen's best interest. 

The Ft Worth Star-Telegram won an important decision this weekend when the judge ruled that the City of Grapevine did not have the authority to go into closed session to hire taxpayer-funded lobbyist (former legislator and anti-taxpayer protection lobbyist Fred Hill), even if they did claim it was a personnel matter.  Hats off to the FWS-T for challenging Grapevine City Council on their deliberations. 

We now need to fix TOMA to give it MORE teeth and end the practice of allowing taxing entities to use our tax dollars to lobby.  We elect officials at the local, state and federal levels to represent us - they should do so in open meetings and should not hire lobbyists to intercede on their behalf to advocate policies unpopular to taxpayers. 

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