Sugar Land City Councilman Russell Jones says he has joined a recently filed lawsuit questioning the constitutionality of the Texas Open Meetings Act because “it has become a far greater restriction upon elected officials trying to do the job for which they are elected than citizens realize.”
“The laudable goal of the open meetings act is the suppression of corruption, or appearance of corruption,” said Jones. “However, through the interpretations of the Attorney General and decisions of Texas courts, the open meetings act regulates political speech that is protected by the 1st Amendment and is not narrowly tailored to achieve its goal of preventing corruption.”
Jones cites an instance where he says council members in another city were prosecuted for exchanging e-mails with each other over the question of whether or not to put an item on the city’s meeting agenda. He also cites several other rulings by the Attorney General concerning verbal presentations to council members without posting notice of a meeting, phone calls between council members and discussion at meetings of items not on the posted agenda.
“Criminalizing the types of conduct described above prevents elected officials from communicating with those who know the issues the best and from whom they can learn the most; i.e. other elected officials,” said Jones. “It prevents elected officials from serving their constituencies effectively.”
The lawsuit was filed in Austin this week, and says the Texas Open Meetings Act violates city official’s right to free speech. The Open Meetings Act prohibits a quorum of elected officials from discussing official matters outside of a posted public meeting. The lawsuit argues that Internet communication such as e-mail or social networking sites should be allowed.
The lawsuit includes the cities of Alpine, Big Lake, Rockport and Pflugerville as co-plaintiffs along with elected officials in Sugar Land, Wichita Falls, Arlington, Boerne, Hurst, Joshua, Leon Valley, Heath, Whitesboro and Rockport.
The complaint reads, in part, “Plaintiffs bring this lawsuit to confirm that the First Amendment is alive and well in Texas. We seek nothing more than to enforce freedom of speech for public officials the citizens of Texas have elected to speak for them. The current “Texas Open Meetings Act”, as interpreted by a series of poorly reasoned opinions of a series of Texas Attorneys General and appellate courts, prevents elected officials from doing what they are elected to do- speak in public or private on issues facing the public. We disagree with that result of “TOMA”, and believe, as stated by a unanimous panel of the United States Court of Appeals for the Fifth Circuit, that “The First Amendment’s protection of elected officials’ speech is full, robust, and analogous to that afforded citizens in general.” Therefore we bring this action to unshackle Texas elected officials so they can perform their duties as representatives of the citizens who elected them to speak.”
“We all want open meetings,” said Jones. “My object in participating in the lawsuit is to eliminate the criminal penalties which prohibit non-corrupt, legitimate communication among elected officials.”
The lawsuit says TOMA is “overbroad and vague” and gives the Texas Attorney General along with district attorneys throughout Texas “excess discretion” in limiting the plaintiff’s free speech.
“In fact, any governmental office holder elected or appointed and working in the State of Texas is currently affected by this law, (with the notable exception of the Texas legislature, who exempted themselves), and due to its overbreadth and vagueness, is currently having his or her free speech rights unduly restricted,” reads the complaint.
Jones is the only Sugar Land official participating in the lawsuit, but others have indicated they see problems with the law as it is written now.
“I am concerned about the ‘open meetings law’ that was enacted by our State Legislators who do not have to follow the same rules -if it is good enough for local elected officials it certainly should apply to state officials,” said District 1 Councilman Don Smithers, who is not involved in the suit.
At Large Councilman Thomas Abraham said he is not a part of the lawsuit, but is “not in support of the open meeting act wording.”
jaghund ,and I wonder why?
Looks like they hired the big guns to help force these open meetings back into the smoke filled back-rooms in Dick DeGuerin. It take big money to hire this shill.
Read this http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DN-openmeetings_16tex.ART.State.Edition1.4c007b2.html
I found a wealth on several constitutional sites opposing the efforts of the lobby groups to defeat open government rules. Apparently they have been trying to do this for years.
Excellent letter from Bill Hobby.
TML wants criminal penalties such as jail time stripped from the law, which has protected the public for more than four decades. They believe the current language is too punitive and argue “less restrictive penalties would not only continue to preserve the integrity of the Texas Open Meetings Act but would also recognize the fundamental right of city officials to free speech.”
In other words, if public officials break the law in the future by conducting business in secret — such as exercising their rights to free speech behind closed doors — then a slap on the wrist should be punishment enough.
And an editorial regarding same from another conservative Waco paper
The TML, which is a mainstay when the Texas Legislature is in session, says it has not decided whether it intends to pursue weakening this law legislatively.
If they do, we strongly believe that seeking legislative relief is a foolish exercise that would normally be laughable if it weren’t such a waste of taxpayer resources.
Taking taxpayer money to help fund an effort to weaken governmental accountability to these very taxpayers is not only a cruel irony, it is a slap in the face.
If the TML continues to pursue this insulting course, we would strongly urge all local municipalities to deliberate in public about the wisdom of this organization and to reconsider using our taxpayer money to pay their membership dues to this organization
Let’s hope these lobbyist aren’t successful!
I will repeat that to allow these politicians to further gut transparency laws, already on the books and have with-stood the court tests to this point, would be a grave mistake and force the deals into the backrooms. So yes cons1 I completely disagree with you on this!
I would hope that anyone considering a run for office would not let these laws deter them. If so, I would hope they don’t run.
I’m flabbergasted at you guys, in that your attempt to spew off into somethings you know legally nothing about! In one of my meetings my boys & I attended, clearly proves Councilman Jones is a fair man! I must pick my boys up for early release .. Please know I am quite displeased with you tone, and will dispute your irrationalities later.
It’s easy, just catch them in their lie and hammer them with it, over and over. It’s not personal, its business. But if you are going to hassle the good ones that aren’t lying and are good stuards of the public interests, they are going to opt for staying a private citizen.
and social settings should be exempt from qualifying as a quorum.
Believe me, the dishonest ones just ignore the rules and you know it.
Very confusing issue, but you have to be able to communicate with other elected officials and can’t always be “in session”, especially when some of these positions don’t pay full-time compensation. As much as I don’t like the TML, penalties should be reduced for 1st offence and social settings should be exempt from qualifying as a quorum. Correspondance should be made available for review except for proprietary data and intellectual property.
I am sure others will disagree but tightening the open meetings rules to a “gotcha” environment is counter productive.
I know what it is like to work against the incumbents, I am doing it now, but it can be done with simple communication to the electorate. Once you point out that a director is working against the residents, point it out and communicate it.
what is wrong with eliminating the criminal penalties which prohibit non-corrupt, legitimate communication among elected officials?
i don’t mean to butt in on this, but how would the public know if they are engaging in “non-corrupt, legitimate communications” if they over-turned these laws and no longer had the ability to request these records?
Thank you TML rep for your interpretation of these laws. So just post the agenda and argue it out in public, not in e-mail, phone calls or backrooms. What you politicians are doing doesn’t pass the smell test. I question it because of who is paying for the challenge and which lobby group is pushing the end to criminal penalties for violations of the acts.
Another good example is the case of the mayor in Montgomery county right now who has been indicted for his backroom dealings that would have never been exposed if citizens weren’t watching and requested information under these acts. In this case the mayor, as many do, had business investments with the company he was pushing projects for. Haven’t we heard all this many times before right here in our community.
No keep the records open and the meetings very public.
Montgomery County mayor indicted accused of conflict of interest
by Michelle Homer
Posted on December 16, 2009 at 3:32 PM
MONTGOMERY COUNTY — The mayor of a small Montgomery County town was indicted Tuesday for violation of conflict of interest laws.
City of Oak Ridge North Mayor Fred O’Connor is accused of failing to disclose his financial link to a private company, Biofuels Power Corporation, that does business with the city. He also failed to abstain from city council discussions regarding business with the company, according to the indictment.
“Hopefully this indictment serves as the first step in obtaining some closure for the City of Oak Ridge North so that they can move on from this difficult chapter in the city’s history and forward with the city’s business,” said First Assistant District Attorney Phil Grant.
This violation is a Class A misdemeanor punishable by up to a year in the county jail and up to a $4000 fine.
Here are a few examples of what is wrong with the Texas Open Meetings Act:
A meeting includes “a gathering . . . at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control . . . .”
Under current law, a violation occurs if any person attends an open meeting and asks a question or makes a statement about matters under the control of the elected officials if that item is not on the agenda.
The Attorney General has ruled that the circulation of a letter among City Council members could constitute a violation of the open meetings act.
The Attorney General has ruled that councilmembers merely listening, but not responding, to a verbal presentation can be a violation if the meeting is not posted.
The Attorney General has ruled that a City Council violates the act whether or not they engage in any deliberation of any matter if they are gathered without posting the meeting.
The Attorney General has ruled that telephone calls among members of the City Council violates the open meeting act, even if no decision is reached in such calls.
City Council members in one city were prosecuted for exchanging e-mails with each other over the question of whether or not to put an item on the city’s meeting agenda.
The laudable goal of the open meetings act is the suppression of corruption, or appearance of corruption. However, through the interpretations of the Attorney General and decisions of Texas courts, the open meetings act regulates political speech that is protected by the 1St Amendment and is not narrowly tailored to achieve its goal of preventing corruption.
Criminalizing the types of conduct described above prevents elected officials from communicating with those who know the issues the best and from whom they can learn the most; i.e. other elected officials. It prevents elected officials from serving their constituencies effectively.
We all want open meetings, but what is wrong with eliminating the criminal penalties which prohibit non-corrupt, legitimate communication among elected officials?
I think for those still discussing this, it may help to have background on some of the principals involved:
http://abclocal.go.com/ktrk/story?section=news/local&id=7115716
http://www.myfortbend.net/news/local/community/1275-sl-council-member-russell-jones-in-middle-of-mc-neighborhood-controversy
http://meadowcreekneighborhoodnews.blogspot.com/2009/11/homeowners-respond.html
It is evident we need more open government efforts on the books at all levels, not fewer. Once again if public officials don’t like it that is really too bad. They need to be kept under the microscope at all times. There are too many deals going on not to. For those that have trouble believing they should not just “trust” their politicians then go sit through a few years worth of local commission meetings, board sessions or council sessions. After a few dozen you begin to see the patterns and who matters at these meetings and, IMO, it isn’t the public. We’re viewed as deep pockets. The lawyers and lobbyist, along with their vendor clients, attend every session and work regularly on the elected officials. Some of the elected officials are actually urged to run and supported by some of these same interest. It really is government by and for the vendor, not the taxpayer or voter.
Stay tuned for much, much more!
PS Those of you who think the Texas Municipal League is a taxpayer advocate may want to view the past track record on this lobbying organization. They often take unpopular positions that are not in taxpayers best interest. This IMO is another one of them.
If you look at the organization and politicians doing this, it seems clear to me that this won’t benefit the public.
Cons1, Why do you think the schoold district can flaunt the curent law? This isn’t about new elected officials. This is being pushed by a lobby group to gut transparency, not enforce it. They’ve worked for years to further undermine open government efforts. They need more teeth in this thing, not less and they need the legislature brought under it too.
We already have a great many ‘crafty risktakers’. If they want to discuss issues with other elected officials make them do it in the open at the meetings. All they have to do is put it on the agenda. This is being set-up to effect just the opposite. Honest elected officials, as few as there are, have no problems speaking to their public under the current acts.
They are making it too hard for the regular guy to hold office. You will get ineffective representation, or crafty risktakers that will only serve for personal gain, dispite the openness of the process.
Maybe it should be a hefty fine for the first offense, but a criminal offense for the second time. I agree with holding them accountable. Transparency in government is absolutely essential.
But I think making it a criminal offense for the first timers is a bit too intimidating. I can see a freshman politician making an honest mistake. But if they get caught doing it again, throw the book at them!
Removing sanctions for violations of the Texas Opens Meeting Act and Texas Public Information Act would be a huge mistake and do more to set back transparency than any other single measure.
” i live in alpine and i have been involved as a litigant in a half dozen open government lawsuits. this situation is really about ” nimby
Nimby, how much has the lobby group compensated you for your testimony?
i live in alpine and i have been involved as a litigant in a half dozen open government lawsuits. nimby
Nimby, how much have you been compensated for by the lobbyist for your testimony?
I’m with you patriot. These guys are just playing games trying to dump the criminal penalties so they can bring the illegal meetings out into the open. Anyone that believes these hand picked reps are ours is a fool.
If you go look at the TML website you will see almost the exact wording used by the league that was used by the council member in this release.
I agree with Jones on this issue. Open meetings, Yes, criminal penalties for communicating to anyone, No. You have to be able to conduct business and communicate to do a good job. And you have to be able to live.
what santhony says is relevant but misses the point.if the ag and prosecutors can intimidate and harrass your sugarland representative what good is he? how does he REPRESENT YOU? i live in alpine and i have been involved as a litigant in a half dozen open government lawsuits. this situation is really about representative democracy. we don’t need restrictions on our political speech, we need the opportunity to speak.we speak and we argue and then the decision is made in an open meeting. if someone is screwing with the deal we expose that and if necessary prosecute. what was happening in alpine is still happening (it is about water) and we are still exposing it. democracy works.
Taxpayers pay Russell Jones to lobby against taxpayer’s interests.
Wow! That must be why taxpayers absolutely must have access to open records and meetings, otherwise special interests would own the government.
Nuff said!!
This is very disconcerting. You mean to tell us that these laws do not cover higher elected officials in the legislature?
Pay very close attention to what Jones is saying in this piece and how he is saying it. Then google this man and his involvement in Missouri City neighborhoods and see why he is pushing, along with the Texas Municipal League (a lobby arm of the city governments who has taken on unpopular issues like opposing property tax rate caps and appraisal caps) and now this action to return local politics to the smoke filled backrooms. The TML gets taxpayer dollars from our cities to lobby for the entities interest and not the taxpayers, small business or voters interest.
“I am concerned about the ‘open meetings law’ that was enacted by our State Legislators who do not have to follow the same rules…” SL councilman
Yes the legislature should not be exempt from these rules either. What Mr. Jones isn’t telling you is that all city, school boards and other taxing entities have to do to avoid compliance with the law is deny they have the information or that they have met. We see this currently in the repeated attempts by numerous citizens to gain known documents from FBISD and the failure, even after an order by the Texas AG to comply.
If these officials do not like open and transparent government then they should not run for office. In my opinion we need more teeth in TOMA/TPIA and not less. We have enough special deals going on with our elected officials that do not ever see the light of day. We witnessed one in the back of the FBISD offices during the GSTC $30 million dollar special spending project that went on right before the public board meeting. A county commissioner, 2 SL city council members, 1 mayor and several current and past board members all in the superintendents office without public posting of agendas or subsequent minutes.
Folks, don’t think for a moment this is about you or I. This is about meeting with vendors when they want and making deals with the special interest.