When Local Government Possibly Violates the Texas Open Meetings Act #1 (Somervell County) Somervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas


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When Local Government Possibly Violates the Texas Open Meetings Act #1 (Somervell County)
 


1 February 2019 at 5:56:05 PM
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Somervell County Commissioners Court decided to purchase Marguerite Dempsey's property ,after she passed away, for $95,000. Reason was that her property adjoins the fire department property on Lilly Street and it would be available in case of expansion. The commissioners wanted the land but wanted Dempsey's house moved from the property. At some point, according to Brian Watts, some people locally were made aware of the house, but decided against getting the house; one reason was that moving the property involved having a properly licenced and insured contractor. I cannot find any agenda item that discusses or was voted upon having to do with putting this in the newspaper (more than one paper?)  as a legal notice. (If I'm mistaken and there was an agenda item, feel free to email me the date of the agenda and I'll mea culpa and add it here). 

On August 27, 2018, the commissioners voted to award and approve the relocation of the house to an entity called Texas FlipNMove, which has a show on HGTV. Texas FlipNMove was going to get the house for nothing in exchange for moving it. Brian said the vote needed to be two steps, first to declare the house as surplus and second, to award the house to FlipNMove. After the vote,  Larry Hulsey had a question about whether declaring the house as surplus should have been a line item on the agenda. ( Not listing a specific agenda item  is a violation of the Texas Open Meetings Act and can actually void the vote "A governmental body cannot give retroactive effect to a prior action taken in violation of the Act, but may ratify the invalid act in a meeting held in compliance with the Act.426 The ratification will be effective only from the date of the meeting at which the valid action is taken.42" -TOMA handbook 2018 p 65). The commissioners deferred to Andy Lucas, county attorney, who wrongly said it would be okay. (Andy Lucas should have stopped that vote on the basis of a TOMA violation). The whole point of agendas is to make sure the public is informed about any and all decisions elected officials are taking and this was one of them. As Hulsey discussed, this house would have been declared a surplus item and gone up for auction. I assume putting something up for auction involves legal notices to the public, and in fact, Texas FlipNMove is apparently used to that being the way they acquire houses for their show. Declaring the house as surplus was NOT ON THE AGENDA AT ALL, so could not be voted upon, and presumably would make the award to FlipNMove moot until after that vote properly taken.. 

(The letter and also the standard release form are to the right. Notice that Texas FlipNMove got the location address wrong-on both documents. which would seem to be a problem in case there had been a different house at the wrong address) 

The Dempsey house is still there and hasn't been moved (and it's February 1 2019). I heard anecdotally that Texas FlipNMove decided they didn't want to use that house on their show, don't know if that's 1 or not. It is 1 that if Somervell County Commissioners Court wants to move it, they'll have to do some sort of public notice regarding it. I don't believe that the action to declare it as surplus was a legal vote, since it wasn't on the certified agenda. The remedy for violations of the Texas Open Meetings Act (TOMA) are detailed in the law, which indicates that a civil action can be brought against the violator. Were I do this, I could not bring this complaint to the Somervell County Attorney since he was the one authorizing the violation. 

Section 551.142(a) authorizes any interested person, including a member of the news media, to bring a civil action seeking either a writ of mandamus or an injunction.404 In keeping with the purpose of the Act, standing under the Act is interpreted broadly.405 Standing conferred by the Act is broader than taxpayer standing, and a citizen does not need to prove an interest different from the general public, “because ‘the interest protected by the Open Meetings Act is the interest of the general public.’”406 The phrase “any interested person” includes a government league,407 an environmental group,408 the president of a local homeowners group,409 a city challenging the closure of a hospital by the county hospital district,410 and a town challenging annexation ordinances.411 A suspended police officer and a police officers’ association were “interested persons” who could bring a suit alleging that the city council had violated the Act in selecting a police chief.412 Texas courts have also recognized that an individual authorized to seek a writ of mandamus or an injunction under the Act may also bring a declaratory judgment action pursuant to the Uniform Declaratory Judgments Act, chapter 37 of the Texas Civil Practice and Remedies Code.413 In such a proceeding, the court is authorized to “declare rights, status, and other legal relations” of various persons, including public officers, and thus may determine the validity of a governmental body’s actions under the Act.414

Feb 23 2018   This was the Dempsey property AUDIO snip, see Somervell County website for the entire meeting audio. 

COUNTY JUDGE: SOMERVELL COUNTY JUDGE: EXECUTIVE SESSION - SALE OF REAL PROPERTY - AFTER HAVING CONVENED IN OPEN SESSION, THE COMMISSIONERS COURT WILL RETIRE INTO EXECUTIVE SESSION, PURSUANT TO THE PROVISIONS OF SECTION 551.072 OF THE TEXAS GOVERNMENT CODE IN ORDER TO DISCUSS THE PURCHASE, EXCHANGE, LEASE, OR VALUE OF REAL PROPERTY, IF DELIBERATION IN AN OPEN MEETING WOULD HAVE A DETRIMENTAL EFFECT ON THE POSITION OF THE GOVERNMENT BODY IN NEGOTIATIONS WITH A THIRD PERSON. 5. COUNTY JUDGE: SOMERVELL COUNTY JUDGE: TAKE ACTION ON EXECUTIVE SESSION

After executive session, the commissioners came back into open court and voted to buy the Dempsey property for $95,000. 

12 Apr 2018 no audio for this.

 COUNTY JUDGE: COUNTY AUDITOR: DISCUSS/APPROVE FINAL PAYMENT FOR 204 LILLY AVENUE.

August 27, 2018 

COUNTY JUDGE: COUNTY AUDITOR: DISCUSS/TAKE ACTION ON AWARDING/APPROVING THE RELOCATION OF THE HOUSE LOCATED AT 204 LILY STREET, GLEN ROSE. Attachments:  LETTER (PDF)  AGREEMENT (PDF)

AUDIO clip of just this part. You can find the entire audio on the Somervell County Commissioners site. 

Item #5. (Chambers) Discuss take action on awarding/approving the relocation of the house located at 204 Lilly Street, Glen Rose. That's the one we purchased up by the fire department. Texas Flipnmove has sent a contract. Once we agree to enter into the contract, I'm thinking October, they'll probably do the filming of the show, then they'll move it. I guess in 4 to 6 weeks after that. 

(Brian) and we'll work with Kelly to make sure that we get some plugs for the town community, golf course, expo, in the show. We did make the house available for 30 days to strictly Somervell County residents. Several exhibited interest but nobody came forward with our requirements of having a professional insured, bonded mover to take the property. Then we opened it up to outside Somervell County residents and that's when these folks stepped up. 

(Chambers) The contract will actually be with HGTV which is the whole (unintelligible) 

(Brian) We'll need to do in two steps. First, we need to declare the house surplus and then award it to these folks. 

(Chambers) So do I have a motion to declare the house surplus? 

(Kenneth) So moved. 

(Chambers) I have a motion by Kenneth, I have a second by John, any further questions or discussion. All in favor of said motion. That's 5 for, 0 against. I'll give you a minute, Michelle, I'll slow down. 

(Hulsey). Let me ask a question here. We don't have a line item for that. 

(Brian) Well, it's not, there's no financial transaction for that. They're not paying us anything, we're not out anything. 

(Hulsey) Well, I understand that. I'm just asking question. 

(Chambers) Awarding and approving the relocation of ..

(Hulsey) Well I know 

(Brian) Line item on the agenda is what you're ...

(Hulsey) Yes, how can we sign a county surplus when it's not on the agenda. 

(Chambers) Well, I thought that was part of the awarding and approving the relocation of the house but if it's not well then

(Brian) Attorney? 

(Lucas) 

(Brian) Well, when we go out for auction, I mean we usually produce a list, we declare surplus and then we immediately put then out for..

(Hulsey) Every time it's surplus first. 

(Lucas) I think we can do it this way) 

(Chambers) All right, and we did vote on the surplus, right?  So, now we need an action if we decide to move forward, a motion to enter into this contract with Texas FlipNMove with HGTV. 

(Brian) We did run this contract by the attorney. 

(Lucas). Yes, it's fine. 

(Kenneth)I make a motion that we enter into the contract with Texas FlipNMove

(Chambers) I have a motion by Kenneth 

(John) Second

(Chambers) I have a second by John. Any further questions or discussion? All in favor of said motion, that's 5 for, 0 against. 

To recap. Larry Hulsey was right. The house should have been declared as surplus and voted on first, AND AS A LINE ITEM ON THE AGENDA, before voting on the contract from FlipNMove. In a proper world, the surplus item would have been included on a list that would have been publicized, in order to allow all to see and decide if wanted, regardless of any price attached to it, and then put up for auction. It's interesting to note that Texas FlipNMove typically gets their properties through auction, ie, houses only and not the underlying land. But this house had never been declared as surplus, thus never went to auction. 

As a comparison, note this from the  March 28, 2018 Somervell County Commissioners Court regarding weapons from the Sheriff's Department. This action is a line item on the agenda. Notice that these are declared as surplus.

On March 28 2018 COUNTY JUDGE: COUNTY AUDITOR: DISCUSS/TAKE ACTION ON DECLARING WEAPONS SURPLUS FOR TRADE IN/BUY BACK FOR SHERIFF'S DEPARTMENT. 

I recall some years back going to a commissioners meeting in which the commissioners discussed, and approved, using an outside company to list surplus items for sale. I don't know if that type of thing still continues. I have seen where GRISD lists surplus items via a legal notice in the newspaper. 

At any rate, one hopes that local government will seriously consider upholding the Texas Open Meetings Act, by created informative public agendas and speak up if they are in violation.

 


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