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May
3, 2007
Do
You Have Your TOMA Certificate?
Our Cup Runneth Over
with TOMA
By
Jack D. McNamara
We have been worrying about our local elected officials.
Certain
indicators demonstrate that some have not completed their required
Texas Open Meetings Act (TOMA) training. The statutory requirement was
passed during the last legislative session and Texas Attorney General
Abbott has since reminded us of his authority to require education in
the TOMA. We are worried because, as we have said before, no human
resident on this earth can possibly understand the law as illuminated
recently by Texas legal authorities.
The one thing we thought we did understand was a statement by U.S.
District Judge Robert Junell in his decision rejecting the lawsuit by
Avinash Rangra and Anna Monclova which claimed the TOMA
unconstitutional infringement of the First Amendment.
“For purposes of determining what constitutes protected speech under
the First Amendment, there is no meaningful distinction among public
employees, appointed public officials, and elected officials,” said
Judge Junell.
At last, a bright line, we thought. The law may be absurd, but at least
it treats us all equally.
But then we started chasing down some nasty rumors of several years
standing. The Texas Legislature doesn’t comply with the TOMA and they
are certainly elected Texas public officials, the rumor went.
After
some effort we established the rumor is true. The Legislature conforms
to some of the easy stuff like posting notices of meetings, but they
certainly don’t subject themselves to the criminal liabilities, the
strict liability imposed on the Alpine City Council in early 2005. Nor
does the Texas Attorney General, nor the Travis County District
Attorney Ronnie Earle, nor the Travis County Attorney ever prosecute
the state legislators for backroom conferences.
(See our Archives: February 1, “Texas Legislature’s Immunity from TOMA”
and February 8, “Texas Legislators and the TOMA.”)
When Yolanda Davis, a Democrat who represents northwest Dallas, tried
to get the TOMA incorporated into the House Rules this year, she was
shot down 91-37 by her fellow representatives.
The Texas Legislature believes themselves exempted from the TOMA by the
Texas Constitution.
So how would the Texas AG teach this seeming contradiction? We asked AG
spokesman Tom Kelly.
Referring to a U.S. Supreme Court case cited by Judge Junell, Mr. Kelly
told us in early February that “a public employee’s speech that is
required as a part of his official job duties is not protected by the
First Amendment … Judge Junell said that holding applies to elected
officials as well.”
Mr. Kelly referred us to the AG’s Handbook. We checked the 2004 and
2006 editions.
We found a long list of special provisions for special government and
quasi-government entities. Of course there are special rules for
legislative committees. But there are also special rules for:
Property Owners Associations, the Texas Workers Compensation
Commission, governing boards of institutions of higher education,
districts of more than four counties and districts of fewer than four
counties, the Board of Trustees of the Texas Growth Fund, agencies
financed by federal funds, the Texas Department of Insurance, the Board
of Pardons and Paroles, the Credit Union Commission, the Finance
Commission of Texas, the State Banking Board, boards which set hospital
pricing, “certain” public power utilities, and “Deliberation Regarding
Economic Development Negotiations” by any governmental body.
These special deals are complemented, of course, by provisions for
closed meetings by any government to include consultation with
attorneys, real estate deals, gifts offered, personnel, security, and
the discipline of children.
Indeed, with Mr. Kelly’s assistance, I am convinced that the only
governments subject to the criminal sanctions of the current open
meetings law are municipalities, particularly those municipalities who
have already conducted more than 40 hours of open meetings and are
trying to schedule a meeting in order to decide
something. The Texas Open Meetings Act covers everyone except when
someone in authority exempts himself. We get it now.
The
Lege?
The Legislature has been busy. There remains only about a month to
adjournment and few bills have been completed. All the pent up proposed
legislation builds up like water behind a dam and in the final hours of
the Lege a flood of legislation (good and bad), will be suddenly
released on the land.
No, they have not been considering whether or not they might subject
themselves to the laws they seek to enforce on us, especially the TOMA.
For example, a great hue and cry has been heard for years that a
representative’s or a senator’s vote should be recorded. Such a
proposition might pass this year. In the meantime we discovered that
Representative Mike Krusee of Williamson County recently managed to
vote on about 30 items even though he was in London at the time.
One representative proposes the Texas Constitution be amended to
provide for “open meetings of each House of the Legislature, and its
committees and sub-committees (HJR 106). The bill was referred to
committee on March 21 and there it remains stalled, despairing of
passage.
But our legislators are not entirely frivolous. Senator Jeff Wentworth,
A San Antonio Republican, has proposed a bill (SB 1306) to amend the
definition of quorum. It is refreshingly simple and adds further
exemptions from the criminal sanctions by inserting two types of
meetings a quorum of a governmental body might attend.
Senator Wentworth wants to add “ceremonial event” and “press
conference” to a permitted gathering not subject to the TOMA.
We believe it will pass. It has been vigorously moving through the
Senate toward unanimous approval. Legislative committees may adjourn to
bars and restaurants to toast themselves ceremonially without fear of
prosecution.
TOMA Training in El
Paso
Finally, we simply must share the news from the El Paso Times online of
April 4.
Seems the El Paso City Council was meeting in several weekly open
meetings televised by the access channel. As meetings were proceeding
last November, the question of a tax incentive package came up. It was
discussed in the meeting, on the teevee.
But while the discussion proceeded in the meeting room, an additional
discussion was going on via e-mail. The El Paso Times obtained “about
500 pages of emails, attachments … that council members sent and
received” during four meetings, according to a story by veteran
reporter David Crowder.
The El Paso Times consulted with three Texas Freedom of Information
Foundation (FOIFT) attorneys and apparently got several different
answers … “… illegal,” “all right” and the assertion that the
technology of laptop computers, cell phones and BlackBerries left the
TOMA “in the dust.” (Your humble author is a long-time member of the
FOIFT but I was not consulted.)
For those of us who try to follow this law it is a delightful story.
The fact of it adds another straw to the back of the camel supporting
this silly law.
To the Fifth Circuit
Court of Appeals
There can be no better time to inform our readers that Dick DeGuerin
and Rod Ponton’s appeal of Judge Junell’s decision to uphold the
constitutionality of the TOMA has just been filed with the Fifth
Circuit Court of Appeals in New Orleans. The appeal, like the
litigation at the trial court, does not ask the courts to rule the
entire TOMA unconstitutional. The provisions for posting meetings,
recording the actions of governmental bodies, ensuring public access to
meetings, etc. are excellent and work practically. It is only the awful
criminal sanctions which are (as the Texas House of Representatives
agreed in 2003 and 2005) absurd. •
(Also
published by the Big Bend Sentinel of Marfa, Texas May 3, 2007.)
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