April 6, 2006
Dangerous
Communications
By Jack D. McNamara
“Harmless though they seemed, the emails were fraught with
import and peril …” is how a San Antonio Express (online) reporter
describes the October 2004 communication which resulted in the
indictment of two Alpine city councilpersons under the Texas Open
Meetings Act (TOMA).
The story, “Alpine Open Meetings case drawing attention statewide,” by
John MacCormack, was posted Sunday April 2 at noon. By noon the next
day the story was the second “most emailed” of all the newspaper’s
electronic stories.
I wonder if that makes the San Antonio Express liable for a
prosecutor’s subpoena? Will everyone who received the story be brought
before a grand jury for possible indictment? Will every newspaper that
reprints the story be called as a witness at trial? Will every Texan
who inadvertently stumbles across the story during his online browsing
jerk his hand from the keyboard as if singed by the discovery of fire?
Will cyberspace be declared a politics-free zone for succeeding
generations?
MacCormack’s news story does not of course take such imaginative
flights of fancy as this column does. But every reader should be
forewarned — the Texas Legislature meets April 17 in a special session.
It is the Texas Legislature which created the absurd sections of the
law which will be tried in Pecos before U.S. District Judge Robert
Junell
on July 25.
And your humble columnist will be there to report the trial BY E-MAIL.
The indictments against Alpine city councilpersons Avinash Rangra and
Katie Elms-Lawrence were dismissed by two state district judges on 83d
District Attorney Frank Brown’s motion. Those indicted objected to the
dismissal because they wanted a trial on the issue. After the
indictment was dismissed the perps Rangra and Elms moved to have the
indictments “expunged,” a motion which was accepted by both state
district judges, Peter Peca of El Paso and Ken DeHart of Alpine.
District Attorney Frank Brown, however, then appealed the expunctions
to the Texas Eighth Court of Appeals in El Paso. There, we presume, the
cases rest. We say “presume” because the court in Alpine (Judge DeHart
again) interprets state law as requiring that the court record of the
expunction means just that — it is not a matter for the public to
peruse. Therefore we conscientious journalists cannot see the
documents. (Judge DeHart is our former family attorney and a good
lawyer so our disagreement is anything but personal.)
“If what I did is a crime, then every public official is a criminal,
said Elms, who opted not to seek reelection (to the Alpine City
Council) last year,” writes the San Antonio Express.
No, Mrs. Elms did not run for the office of
Representative, Ward 3 last year in May 2005, when the seat was up.
Instead, Mrs. Elms’ former husband, Burnis Lawrence, ran unopposed.
And now Mrs. Elms is running for Mayor of Alpine. She is running
against her old friend, incumbent Mayor Mickey Clouse, who is the last
incumbent of the March 2003 six-person Alpine City Council which voted
$1.35 million in bonds for a water line to a new Border Patrol Station
(and surrounding private businesses) a mile outside the western city
limits.
The March 2003 council voted the $1.35 million to provide a water
pressure of 65 pounds per square inch (psi) to those at the Border
Patrol Station while lifelong residents were denied adequate water
pressure for bathing. The fact that the city had been cited by the
Texas Commission on Environmental Quality (TCEQ) was documented in the
city’s files but was not made public until we discovered it in a July
2003 Texas Public Information Act Request (TPIA).
Our review of the basic documents (agendas, minutes and newspaper
articles) shows that the bond in 2003 made a mockery of the TOMA. There
are several more examples of such secret insider deals which we have
written about and documented. It is the stuff of local politics and
wherever we go in this small town this is the subject of conversation.
This is in fact a public debate about water and all the assembled
lawyers in Texas cannot kill that debate — or the emails.
Which is not to presume that 83d District Attorney Frank Brown has any
opinion whatsoever about Alpine water. We have never heard any such
expression from him.
Such discussions in a democratic society either precede or
accompany public policy. Once the policy is decided, municipal
governments collect the taxes and utility fees which pay for the sewer
pipes and water wells. In 1993, after considerable public debate, we
decided to change the way we do that in Alpine.
In 1993 the voters of the city of Alpine adopted a Home Rule Charter.
That charter divided the city into five wards which elect
representatives for two-year terms.
The organizing principle in the charter was to empower the
representatives of the people who actually live in the five sections of
Alpine. In the past three elections (2003, 2004, 2005) the voters have
consistently elected persons who will consider their neighborhood
concerns. Previous councils, elected at-large, were perceived as “good
old boy” fixers who had other interests foremost. And specifically,
city leaders saw a declining participation in city elections by
Hispanic voters. The ward representative system was adopted for the
explicit purpose of taking government to the people and thereby
encouraging their participation, especially the Hispanics. The wards
were drawn to establish at least two Hispanic majority wards on the
Alpine south side.
The “good old boys” were not evil. But they did operate among a limited
set of political players. The Home Rule Charter attempts to balance the
scales by bringing the elected city council representatives closer to
those they represent.
And that is what is going on here. Voter turnout is respectable in the
city if not spectacular since the charter. In the past several years
since the awful 2003 west side water and sewer bond, voter turnout is
very good. It is superior certainly to the pathetic 5% in this year’s
partisan primary elections for state and county officers.
We know the arguments which can be put forward for growth and civic
investment on the prairie outside the city limits. But those arguments
are not made in public meetings nor in the newspapers.
Follow the money if you really want to find a violation of the TOMA.
More democracy is always messier than rule by an elite. Though it may
be “fraught with import and peril” (in MacCormack’s words), that is the
way we have chosen. •
(Also
published by the Big Bend Sentinel of Marfa, Texas March 6, 2006.)
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