August
17, 2006
The Wayward Press
By Jack D. McNamara
The outraged
broadsides of Texas newspaper editorialists continued to trickle into
The Nimby News editorial offices during the last week.
From the Galveston County Daily News we have “Only law breakers don’t
understand” on August 6. From the San Antonio Express News, “Open
Meetings Act: Don’t Mess With It,” on August 7. And the Fort Worth Star
Telegram weighed in on August 8 with “Not Clear Enough?”
The Star Telegram’s editorial helpfully quoted directly from the TOMA
statute with definitions of “Closed meeting: … ”deliberation”…
“meeting” … “quorum” … etc. as if to say all Texans should be able to
read the law and that is that.
What a relief. If only we had the Star Telegram’s editor to instruct us
at two hearings in Pecos we would have been there only a few minutes
instead of all day.
But these were long confusing days`. Perhaps that is why the SAX
editorialist incompletely described the single piece of evidence in the
case — two emails, that is — as concerning “the hiring of a water
engineer.” The principal part of the misdemeanor email was the proposal
by Councilperson Katie Elms-Lawrence to hold a special meeting. She
asked Avinash Rangra to recommend that to the mayor, who then called
the meeting.
How do you convene municipal
meetings in San Antonio? Does a lightning bolt arrive with the agenda?
Or do the developers notify the councilpersons when they require the
councilpersons for some function? Or does someone who is going to be in
the meeting prepare the agenda?
And then the San Antonio Express says the indictments were dropped.
Indeed they were dismissed but the District Attorney failed to notify
the defendants.
When the defendants learned of the dismissal both demanded a trial to
clear their names but the judges refused. So the defendants then moved
to expunge the ridiculous indictments. Which the judges did. Both
judges found “no probable cause” for the indictments according to
testimony in El Paso.
And then the DA appealed the expunctions to the Texas 8th Circuit Court
of Appeals in El Paso. As the testimony so clearly recorded at the May
hearing in El Paso, the DA might want to re-indict the defendants
before the two-year statute of limitations expired, said DA Frank
Brown’s representative Steve Houston.
The Galveston Daily News editorial is signed by Michael A. Smith, who
erroneously places the hearing in U.S. District Court in El Paso.
Mr. Smith is eloquent in his disdain for the plaintiffs’
claims about the TOMA — “The same condescending Daddy-knows-best
rationalizations that good old boys and oligarchs always have made.” He
grieves that Main Street Americans should be those most inclined to act
democratically; but instead you see “distrust to disdain to outright
hostility.”
Right on, Editor Smith! You have some of those in Galveston, too?
All of the editorials betray a lofty disdain for the local yokels who
serve on school district boards, city councils, hospital districts and
the other local governments. This bias might be why the editorialists
so obviously distort the law and the facts of this lawsuit for their
big city readers. Newspapers are instantly prepared to do battle in
defense of their First Amendment rights, but have little concern for
the rights of unpaid locally elected citizens.
Apparently it is more convenient for big city editors to associate
themselves with the upper end of the political hierarchy.
Several press associations now actually lobby the Legislature for their
interests. Sometimes these interests are the principles inherent in the
liberties of the First Amendment. But at other times this lobbying is
for the business interests of the various media who are, demonstrably,
profit-making entities.
We certainly hope none of our fellow scribblers are ever prosecuted.
But even remote and rural Texas readers know when the press is
buttering up elected officials. The fact is that readers are deserting
newspapers and going to the web logs for just that reason.
The Nimby News doesn’t lobby any one. We bite all hands, especially
those that feed us. We oppose what happened here. That law must be
changed, whether it is done in a federal court, in the next session of
the Texas Lege, or by a new Texas Attorney General Opinion.
We compliment the insight of the Ft Worth Star Telegram.
About half way down their editorial the writer says, “Arguably, (DA)
Brown’s pursuit of the Alpine City Council members might have been
overzealous: Public officials must ‘knowingly’ conspire to circumvent
the law through ‘secret deliberations’ to violate the law.”
“Arguably?” Indeed that is precisely what we have been arguing about
for more than a year and that is why the argument is now in federal
court.
Only the Ft Worth Star Telegram came within a country mile of the
problem raised by this litigation. … “Courts and the attorney general
have interpreted the law to bar walking quorums, serial meetings, daisy
chains or other evasive ploys by which officials might meet without
being in the same location simultaneously.”
Judge Robert Junell indicated this aspect of the law is central to the
case.
Even if it is possible to gag honest local officials with threats of
prosecution for any political communication outside a scheduled public
meeting, does the state of Texas seriously intend to prosecute
journalists, lobbyists, and average citizens for the simple
transmission of an idea from an elected official to another over an
undefined period of time?
By missing this point, Texas editorialists failed to discuss the core
issue of this litigation. This is about the right of Texans to
communicate with their elected representatives outside a meeting. If
the AG and DA Brown succeed a fundamental principle of representative
government will be abrogated — the right of a citizen to petition his
representatives for a redress of grievances.
More than a year ago I was astonished to hear a friend, a school board
representative, say that at a Texas School Board training session they
were told by a lawyer that if a board member received an email,
forwarded it to another board member, who forwarded to another member,
etc. then he and the persons in the chain had violated the TOMA at the
point that the email reached the quorum number of recipients. Nothing
more is needed.
Unbelievable, said I.
But it happened here. The transmission of an email about
scheduling a meeting among Alpine city council persons which took no
action was construed as a crime by the 83d District Attorney. In court
filings since the lawsuit was filed, the Texas Attorney General has
joined Mr. Brown is asserting that this action, merely a communication
about having a meeting, is a crime.
Shame on the Big Foot press (less the Ft Worth Star-Telegram). You
missed the story. •
(Also
published by the Big Bend Sentinel of Marfa, Texas August 17, 2006.)
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