November 30, 2006
A Message from the
Judge
By Jack D. McNamara
A
rather peculiar convergence occurred this month. U.S. District Judge
Robert Junell rendered his opinion in the Alpine Texas Open Meetings
Act case at about the same time we had a detailed exposure of an
apparent violation.
Under “Conclusions of Law,” Judge Junell wrote concerning public
officials —
“Because
the speech at issue is uttered entirely in the speaker’s capacity as a
member of a collective decision-making
body, and thus is the kind of
communication in which he or she is required to engage as part of his
or her official
duties, it is not protected by the First Amendment from
the restriction imposed by the Texas Open Meetings Act.”
Judge Junell cites one recent 2006 U.S. Supreme Court decision, Garcetti v. Ceballos, and a 1996
5th Circuit decision, Rush-Aldridge
v. Ramirez. Further, the judge writes that there is “no
meaningful distinction among public employees, appointed public
officials, and elected public officials.”
That rather breathtaking conclusion, published November 7, casts a
baleful light upon an Alpine lunch meeting sometime in July among
Alpine Mayor Mickey Clouse, Marfa Mayor David Lanman, the respective
city managers Jesús (Chuy) Garcia and Florencio Sauceda, and the
Southwest Texas Municipal Gas Company and Alpine City Auditor Shaw
Skinner. (See “Gas company board meeting eventful,” by Robert Halpern,
Big Bend Sentinel, November 22, 2006).
Everyone at the restaurant meeting is a public official under Judge
Junell’s conclusion of law, particularly the two mayors who are members
of the gas board by virtue of their elections as well as members of
their respective city councils.
The “speech at issue” (Judge Junell’s words) was the “kind of
communication” which is part of the
lunch group’s official duties and therefore is “not protected by the
First Amendment from the restriction imposed by the Texas Open Meetings
Act (Judge Junell’s words again).”
We know what the lunch meeting was about because the Nimby News
received documents requested under the Texas Public Information Act
(TPIA) from the city of Marfa on Monday, November 20. In fact, Sentinel
editor Robert Halpern picked up a copy at city hall just before
attending and reporting the Marfa meeting of the gas board.
The documents released under the TPIA included a letter or memorandum
of July 20 from Skinner to the city managers. The memo says “At your
request” Skinner will “estimate” the gas board’s income “to assist
management in preparing their 2006 budget” and “calculate the estimated
funds available for distribution to the Cities of Alpine and Marfa …”
The minutes of the Marfa City Council of July 27 show the council
approved the Skinner engagement letter. In Alpine the matter was never
brought before the council.
Nor was the Skinner memo made known to the gas company board before
November 20 when Halpern took copies to the meeting.
Four months of heated debate followed that luncheon meeting in July
while the two cities’ senior officials maneuvered to get their hands on
gas company money. The gas company’s board, all unpaid volunteer
citizens, strenuously resisted the cities’ raid on a public treasury.
The board wanted to spend the available gas money on repairs and a cut
in rates.
On November 20 the gas company board learned that the state regulators,
the Texas Railroad Commission, had inspected the company’s lines and
ordered that the repairs be done within a year.
When the gas company board came to Item Number 13 on their agenda
November 20 it was our TPIA letter. Gas company manager Melvin Davis
looked at the two mayors and said, “That was the meeting you all had. I
wasn’t invited.”
So is all well? The gas company has the authority and the money to
repair about 300 leaks long neglected in the three cities of Alpine,
Marfa and Ft. Davis. Shaw Skinner abrogated the “engagement” letter
some time after it was written and along with both mayors had no
comments at the gas company meeting of November 20. A great deal of
controversy has shrouded the fact that the gas company board saw
something wrong and fixed it. (We refer to both gas leaks and bad
politics.) The Marfa and Alpine City Councils may have realized their
responsibilities and liabilities for leaking gas.
But was the restaurant meeting a violation of the Texas Open Meetings
Act?
In the old days before 1999 we would see that though it might be a
violation, there was no decision. Few of us would contest the mayors’
efforts to surreptitiously plot against some money from the gas
company. The assets of the gas company belong to the cities of Alpine
and Marfa, after all. Had the money found its way to the cities’
budgets under the circumstances now clear, any aggrieved citizen could
express his objections by suing in state district court and try to
abrogate the disbursement to the cities because it was public business
done in secret.
In
1999, however, the Texas Legislature “reformed” the TOMA. The
definition of a meeting and a “deliberation” were changed. The purpose
of the change was ballyhooed in the press as “closing a loophole” in
the TOMA to prevent an offensive procedure known as the “staff
briefing.” In Houston, particularly, there was a practice of less than
a quorum of city council members meeting with city staff with no
notice. No decisions were recorded but these secret meetings were
followed by the council members then going to the public meeting and
voting for what appeared to be the staff’s position.
No decision was made at the restaurant meeting because whatever the
mayors wanted was eventually, over four months’ wrangling, beaten to a
pulp in the political process.
But all “public employees, appointed public officials, and elected
public officials” are well advised to look at Judge Junell’s opinion
(we have a link to the decision on http://www.nimbynews.com/).
The judge has spoken and we are reminded of former Justice William
Rehnquist’s dissent in the benchmark case Richmond Newspapers vs.
Virginia (1980) —
“In the Gilbert and
Sullivan
operetta “Iolanthe,” the Lord Chancellor recites:
“The law is the true
embodiment of everything that’s excellent,
It has no kind of fault or
flaw,
And I, my Lords, embody the Law.” •
(Also published by the Big Bend
Sentinel of Marfa, Texas November 30,
2006.)
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