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How Specific Does TOMA Notice Need to be (City of Austin v Lake Austin Collective, Inc)

13 December 2019 at 1:20:49 PM

Saw in the A-A Statesman that the 14th Court of Appeals upheld a ruling that Austin City Council violated the Texas Open Meetings Act by "failing to give the public enough information ahead of a vote in 2016 to cut out environmental regulations. "Leaders didn't mention environmental regulation waivers before voting to approve them"- Bill Aleshire. 

“On April 3, 2017, my clients offered to not file suit if the council would just repost the agenda item correctly and reconsider it,” Aleshire told the American-Statesman in an email. “The city ignored that offer, and we waited until June 5th to file the lawsuit, which the city vigorously opposed, and when they lost at the trial court, the city appealed.”

I wonder about this sometimes, just how specific does an agenda item need to be to inform the public? So I went and looked up the case on the 14th Court of Appeals website.  Here's the opinion, going to quote part of it.  bolding is mine. 

What “notice” of the “subject” of a meeting is the public entitled to under the Act? The Act itself does not elaborate. See Tex. Gov’t Code Ann. § 551.041. The Texas Supreme Court frames the issue from the perspective of the “reader” who is a “member[] of the interested public.” City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991) (“If a ‘reader’ is given notice, the requirement of the Act is satisfied and its purpose served.”). The required specificity of the notice varies with the topic of the meeting, as the notice must be more specific if the public has a special interest in the topic under discussion. See Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 959 (Tex. 1986). While “general notice in certain cases is substantial compliance even though the notice is not as specific as it could be,” the supreme court admonishes that “less than full disclosure is not substantial compliance.” Id. at 959–60 (citing Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975) and Texas Tpk. Auth. v. City of Fort Worth, 554 S.W.2d 675 (Tex. 1977)).

In evaluating “substantial compliance” with the notice requirements of the Act, courts compare the content of the notice with the action taken at the meeting. Rettberg v. Texas Dep’t of Health, 873 S.W.2d 408, 412 (Tex. App.—Austin 1994, no writ). Conducting such a comparison in this case immediately reveals that the City’s notice is fatally flawed. Agenda Item 6 discloses an ordinance with two purposes: (1) amending Ordinance No. 960613-J, and (2) authorizing execution of the first amendment to a settlement agreement relating to the development of the property. By its own caption, however, the November 10th Ordinance accomplished a third purpose: it waived certain sections of Austin City Code 25-2 (concerning Hill Country Roadway Requirements) and sections of the Lake Austin Watershed Regulations (enumerated in Ordinance No. 840301-F). Before the  meeting, the “reader” would have lacked any notion that waiver of provisions of the City Code or the Watershed Regulations were to be addressed, as the notice in Agenda Item 6 omits entirely any information concerning the third prong of the ordinance. Accordingly, Agenda Item 6 falls short of the “full disclosure” required for “substantial compliance” with the Act, as a reader would not have any inkling as to key topics to be addressed at the meeting concerning the ordinance. See Cox, 706 S.W.2d at 960 (requiring “full disclosure” of the topics at issue); see also Hays Cty. Water Planning P’ship v. Hays Cty., Tex., 41 S.W.3d 174, 180 (Tex. App.— Austin 2001, pet. denied) (holding the Act was violated when there was “nothing in the posting that would give a resident of Hays County any inkling of the substance of [a] proposed presentation”). 

The City argues that Save Our Springs Alliance, Inc. v. City of Dripping Springs compels a different result. 304 S.W.3d 871 (Tex. App.—Austin 2010, pet. denied). While Save Our Springs also involved property development, the focus of that case was entirely different. In Save Our Springs, the Third Court held that it was unnecessary to list “all the consequences that would follow” from the development agreements at issue in order to comply with the notice requirements of the Act. Id. at 889. The case before us, however, does not concern the “consequences” that would flow from the agreement to be addressed at the meeting. Rather, the issue here is that the City’s notice omitted crucial information about the topics of the meeting itself, as explicitly reflected in the caption of the ordinance resulting from the meeting. The notice thereby deprived the reader of adequate notice under the Act. See Cox, 706 S.W.2d at 959–60. 


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