Could it be that local tax dollars are helping fund a lawsuit whose aim is to throw out portions of the law that opens most government proceedings to taxpayers?

A West Texas city attorney and other municipal interests are gearing for a major district court challenge to the Texas Open Meetings Act, which requires that nearly all meetings of elected officials be open to the public and announced in advance.

The City of Pflugerville is the latest known co-plaintiff among an undetermined number of cities and local officials joining a yet-to-be-heard lawsuit claiming that portions of the Texas Open Meetings Act are unconstitutional. Under assault in particular are the portions that keep elected officials from discussing any business outside of a properly announced meeting.

The Pflugerville City Council voted Oct. 14 to join the suit, which takes up from where a similar, recently dismissed lawsuit regarding the City of Alpine left off. The Alpine case made headlines across the nation, and no doubt the upcoming case will, too — though how far it goes is anyone’s guess.

No outside quorum  … or else

Pflugerville City Attorney Floyd Akers told LSR that council members have the same First Amendment speech rights as any city resident, and that the existing interpretation of the Texas Open Meetings Act goes too far in threatening local government officials with jail time and fines for any intentional or unintentional incursion.

“No bouncing ideas outside of posted meetings harms the whole democratic process,” Akers said, claiming the Open Meetings Act makes it difficult for the council to finalize a meeting agenda, among other activities.

A violation of the Texas Open Meetings Act is punishable by six months in jail or a $500 fine – penalties that three Pflugerville council members may soon have to defend themselves from being assessed following a complaint by resident David Taylor.

Taylor, who supported Place 5 candidate Erica Delaney Grignon in the May election, said Place 5 incumbent Victor Gonzales discussed city-related topics at a private meeting in Hutto with a quorum of council members present among an invitation-only audience of about 30 people. Taylor’s complaint is still under investigation by the Travis County D.A.

The lawsuit which Pflugerville is joining follows on the heels of one dismissed in September — Rangra vs. Brown,   which was recently heard by the U.S. Court of Appeals for the Fifth Circuit concerning the Alpine City Council.

The Alpine suit arose from a 2004 e-mail sent by a council member to three other members about a water improvement project in the initial planning phase and the question of whether the item should be placed on a meeting agenda. All it took was one “reply all” message for quorum to be met — and for Brewster County D.A. Frank Brown to conduct an investigation into whether city business was being discussed. Brown’s investigation led to grand jury indictments of council members Katie Elms-Lawrence and Avinash Rangra. Brown later dismissed the cases when another council member took back his testimony that he had received the reply-all message.

Rangra, and fellow Alpine City Council member Anna Monclova, sued in the U.S. District Court for the Western District of Texas, Pecos Division, in 2006 to challenge the indictment and provisions of the Open Meetings Act, which was appealed to the Fifth Circuit Court this year. The U.S. District Court, meeting in Midland, ruled the Open Meetings Act met the appropriate constitutional standards. Texas Atty. Gen.  Greg Abbott praised the ruling, calling open meetings “one of democracy’s greatest treasures.”

Abbott successfully defended the state before the Fifth Circuit Court appeal this year. The Alpine City Council members were no longer elected officials at the time of the suit’s filing – a technicality that led to the case’s being dismissed.

Solicitor General James Ho, lead counsel for the state in the case, called the decision “a victory” for open meetings.

Initially, a  three-judge panel of the Fifth Circuit had applied a more restrictive legal standard than did the District Court, and cast suspicion that parts of the act may be unconstitutional.

But both parties requested a hearing of the Fifth Circuit en banc (meaning all 17 Fifth Circuit judges). Abbott wanted the 2006 U.S. District Court panel’s decision to be overturned; the plaintiff wanted a ruling on the constitutionality of the Open Meetings Act. The case was dismissed — a 16-1 decision on Sept. 10.

What this means

With this question in the air, Rod Ponton, Alpine’s city attorney, along with Houston attorney Dick DeGuerin, are pushing for a new ruling with the support at least 15 cities andor individual co-plaintiffs. The names of co-plaintiffs are not yet public, but several new ones have agreed to join this week, Ponton said.

The lawsuit will be filed in about a month, again in the U.S. District Court for the Western District of Texas, Pecos Division, Ponton said.

“Once it is filed, the Attorney General and us, through Judge Rob Junell, will set a trial schedule,” Ponton said. “The Texas Municipal League Board of Directors voted to support — not join — the lawsuit, through amicus briefs, and encouraging individual member cities and/or council members, to join as co-plaintiffs.

Other statewide organizations, such as the Texas Association of School Boards and the Texas Association of Groundwater Districts may file amicus briefs, he said.

Ponton said the intent is not to throw out the entire Open Meetings Act. “We believe there should be no secret decisions,” he said.  “We do believe a law should not prevent an elected official from communicating with his fellow elected officials, and the public who elected him. He should be able to talk all the time, not just at a noticed meeting.”

Ponton specified Section 551.144 of the Texas Government Code, which prohibits meeting as a quorum outside of a posted meeting, as his primary target. He said this portion of the code makes what constitutes a meeting too broad.

“This is because the definition of meeting includes giving or receiving communications, such as e-mail, not just face to face meetings,” he said. “This is why Pflugerville got in trouble— a quorum was present at a political event, one of them spoke, thus all received the communication, and a crime was committed by all.”

Taylor said in his complaint on file with the Travis County DA that Councilman Gonzales spoke about light rail and other city-related topics at the Star Ranch Golf Course in Hutto on April 15. The intent of the meeting, he said, was to campaign for re-election.

 In attendance, Taylor said, were three other council members and Mayor Jeff Coleman (under Pflugerville city charter four members count as a quorum). Furthermore, Taylor said, the council members in attendance tend to vote as a bloc..

“It’s my opinion,” Taylor told LSR, “that an elected official’s ‘free speech’ is limited by law with respect to the office held. In short, to the extent that any communications which pertain to, or may influence, decisions and policy that could affect the public, such communications must be done in a manner that allows the general public opportunity for input and scrutiny or is available for public review.”

Pflugerville’s situation may still be at the whim of the Travis County DA, but Ponton said there are other examples where officials have run awry of the Open Meetings Act, including situations under which members of the San Marcos City Council and the Montgomery County Hospital District made for quorum outside posted meetings in recent years and drew fire.

Ponton said he is concerned about the “chilling effect” the current wording of the law has on the free speech rights of individual elected officials.

“The most troubling aspect of the law is that city attorneys have to tell their officials to ‘just shut up’ ... do not talk to each other at all, except at a meeting, or face the possibility of breaking the law,” Ponton said.

Where this could be going

The real question is whether Texas will have an enforceable open meetings act in the near future should Ponton and DeGuerin win their challenge.

The issue in Alpine was that you had Council members e-mailing a quorum of the elected body and using email to discuss the next agenda. Judge Junell held that was an open meetings violation and one could enforce that.

But the policy implications of allowing City Council members or other local officials to discuss what should appear on an upcoming agenda could have far-reaching, unintended effects. Public meetings could become ceremonies where officials simply nod their heads to items already agreed to.

It would be interesting to see how much money is spent on prosecuting this in district court — and how much of that came from the taxpayers’ pockets. Until then, we can expect the entire concept of open meetings in Texas to be debated, as it has been turned on its head, said Lucy A. Dalglish, executive director of the Reporters Committee for Freedom of the Press.

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