The *Other*- Violation of Texas Open Meetings Act O Day -Somervell County Hospital Authority BoardSomervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas


The *Other*- Violation of Texas Open Meetings Act O Day -Somervell County Hospital Authority Board

4 April 2011 at 10:26:44 AM

Got a copy of the Somervell County Hospital Authority Board's meeting notice for one coming up tomorrow, and, heh, there's an item on it called "Other". Apparently the foiks running the board doesn't realize that they are supposed to be specific in what is going to be talked about on the agenda, so that, a-hem, people in the community can decide if what they're discussing may affect them. Now, I would say that the vague "Other" might dang well affect EVERYBODY but who the heck knows for sure?

Here's what I asked in an email of Ann Best on 4/4/2011.

Hi, Ann

What is the *other* agenda item?




Anyway, here's the reference from the Texas Attorney General site showing that they are violating the TOMA.

We next consider instances in which the subject matter of a meeting has been determined to be inadequately described in a notice. In a 1986 case, the Texas Supreme Court considered a meeting notice that included general terms such as "personnel," "litigation," and "real estate matters." Cox Enters., Inc., 706 S.W.2d at 957. After explaining that notice under the Act "should specifically disclose the subjects to be considered at the upcoming meeting" the court held that those general terms "did not provide full and adequate notice, particularly where the subject slated for discussion was one of special interest to the public." Id. at 959.

In a 2000 opinion, this office concluded that the generic notice "employee briefing sessions" was inadequate under the Act. See Tex. Att'y Gen. Op. No. JC-0169 (2000) at 6. The opinion reasoned that because a governmental body exercises control over its staff, it presumably can ascertain in advance what subjects will be addressed such that those subjects should be included in the meeting notice. Id. And in a 2001 case, this same reasoning was applied by the Austin Court of Appeals to "comments by members of the governmental body itself." Hays County Water Planning P'ship v. Hays County, 41 S.W.3d 174, 180 (Tex. App.--Austin 2001, pet. denied) (citing Tex. Att'y Gen. Op. No. JC-0169 (2000)).

In Hays County Water Planning Partnership, the Austin Court considered the following posting: "Presentation by Commissioner Russ Molenaar." Id. at 178. The court held that "'[p]resentation' is a vague description. There is nothing in the posting that would give a resident of Hays County any inkling of the substance of Molenaar's proposed presentation." Id. at 180. Use of the term fails "to inform a reader as a member of the interested public . . . of the topics to be addressed by Molenaar." Id.

Based on these cases and the standard to be used in construing the Act's provisions, we conclude the notice set out supra is inadequate as a matter of law. See supra p. 2; City of Port Isabel v. Pinnell, 207 S.W.3d 394, 406 (Tex. App.--Corpus Christi 2006, no pet.) (explaining that "[i]f the contents of a notice are undisputed, its adequacy is a question of law"); City of Farmers Branch, 235 S.W.3d at 467 (providing that the Act should be liberally construed in favor of open government). The general and generic nature of the notice does not sufficiently notify a reader, as a member of the interested public, of the subjects of the update and reports to be discussed at any particular meeting. And like the notices at issue in Hays County Water Planning P'ship and Attorney General Opinion JC-0169, the subjects to be addressed can presumably be ascertained by the governmental body in advance. Hays County Water Planning P'ship, 41 S.W.3d at 180; Tex. Att'y Gen. Op. No. JC-0169 (2000) at 6; but see, Tex. Att'y Gen. Op. No. JC-0169 (2000) at 4 (discussing "public comment" as sufficient notice where, unlike with staff, the governmental body cannot predict the subject matter of citizen comments and questions).

Here's more from the last time we talked about this type of thing. I

Violations complaints  of the TOMA go to the county or district attorney. That would be, here, Ron Hankins

P.S. NOtice that they have changed the place they usually ALWAYS meet to the *Inn on the River*-in the afternoon at 4. Because having a consistent place for meetings so that the public knows where to go isn't apparently as important as being more comfortable than in the conference room at the hospital that taxpayers are footing the bill for.

UPDATE: From the Som Co Hosp Auth Board's Open Rec person Ann Best, reply on 4/11, 2011. 

The “other” agenda item has been used in the past for announcements and news articles that are educational in nature. We will no longer be using this as an agenda item.

In regards to the meeting on April 5th, 2011, no information was presented or discussed under the “Other” section of the agenda. 

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1 - pharper   4 Apr 2011 @ 7:05:49 PM 

I emailed Ron Hankins, County Attorne,y and Mike Ford, County Judge, to let them know the Hospital Authority is in violation of the Open Meetings Act.

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2 - green apple   4 Apr 2011 @ 8:11:02 PM 

Heard that GRMC Nursing Home received a "bad" state survey.

3 - pharper   5 Apr 2011 @ 5:57:43 PM 

According to County Attorney Ron Hankins email reply today:

I have been informed that this item was intended
to be used to make announcements, etc., and that it was for "non-action"
items. I was also informed that this style of agenda item would no longer
be used, but that, perhaps, another item such as "announcements - non-action
item" would be used. It is not a violation of the open meetings act, per
se, to have an item of "other" on an agenda. It would be a violation if
there were an attempt to take action on something discussed under that
heading, for the simple reason that the agenda item would not give
"sufficient notice" to the general public of any action contemplated to be
taken. It would also (in my opinion) be somewhat questionable for an
entity to engage in significant discussion of an item brought up under this
type of heading.


Latest Blog Post by pharper -Somervell County Food Bank now PAYING their Directors instead of buying more food!
4 - jojoakaoscar   18 Apr 2011 @ 11:41:58 AM 

Well,  well,  in November 2010 the nursing home had 9 Federal and 12 State violations including one for:

"The facility did not give proper treatment to residents with feeding tubes to prevent problems (such as aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, nasal-pharyngeal ulcers) and help restore eating skills, if possible."

Remember Luke Humphrey?  The fourth time he got 'aspiration pneumonia' the doctors and nurses just watched him suffer for  five long and tedious days before he finally died in August of 2009 without telling his mother he was sick, and never even notified her of his death until AFTER they buried him.

When a patient dies in that nursing home  how many times do they notify the medical examiner?  How many times do they kill off patients and make it look like natural causes instead of what it really is: Neglect and Abuse. 

Luke was my nephew and we are still fighting to make sure that what happened to Luke never happens to another incapacitated person.   We will be in Washington D.C. during National Elder Abuse week to testify before Congress again. 

Oh, I know what else I wanted to say:   Notice in the DADS evaluation   the only time that nursing home has been in "compliance"  is between January 1, 2007 and May 25th, 2007.  That was during all of our court hearings that year.     Just so you know,  one judge was recused, one attorney was disbarred, and the ad litem,  J. Scott Killough had to give up all interest in his $104,000.00  that he tried to get out of Luke's mom and aunts and he has never been appointed to represent another  incapacitated individual since Luke.     We made three case laws  through  our Appeals and Petitions to the Supreme Court.   In 2010 Glen Rose Nursing home LLC also became part of the Somervell County Hospital Authority .


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