Should Pflugerville Withdraw from the TOMA Lawsuit?

According to the Texas Almanac, there are 1208 incorporated cities in Texas.

Pflugerville and just four other Texas cities have joined in the TOMA (Texas Open Meetings Act) lawsuit.

Is there really widespread support in Texas for the lawsuit?

Is it now high time for the Pflugerville City Council to consider withdrawing Pflugerville from the lawsuit?

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TOMA Lawsuit to Be Discussed by Pflugerville City Council

Item 10A. “Discuss Open Meetings law suit: City of Alpine, City of Big Lake, City of Pflugerville, City of Rockport, City of Wichita Falls, et al v. Greg Abbott, Texas Attorney General, and the State of Texas.” has been placed on the agenda for the January 12, 2010, regular meeting of the Pflugerville City Council.

The packet for the meeting has the 19-page text of the TOMA (Texas Open Meetings Act) lawsuit that was filed in December 2009. The text by itself is available here.

By contrast, some arguments defending TOMA are available in a brief dated August 28, 2009, and entered in No. 06-51587, In the United States Court of Appeals for the Fifth Circuit, Avinash Rangra and Anna Monclova v. Frank Brown and Greg Abbott. For example, Part IIE is entitled: “The Text of TOMA Is Typical of Open Meetings Laws Across the Nation and Is Not Overbroad nor Vague.”

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Where Was the Citizen Input?

In the time since the TOMA (Texas Open Meetings Act) lawsuit was filed in December, explanations given in support of the vote by the City Council to include Pflugerville in the lawsuit have continued to appear in the local news. What has not been explained is why no discussion about the TOMA matter took place in open session in the City Council before the vote to join the TOMA lawsuit was taken in the October 13, 2009, meeting. 

Any discussion that occurred must have taken place in the closed executive session just before the open session for the vote.

In the minutes of the open session (for agenda item 10E) it is stated:

”Mayor Coleman indicated that he needed a resolution on the litigation item that they had discussed. (Resolution supporting and joining the City of Alpine, Texas in litigation to determine whether a local government official’s free speech made pursuant to official duties enjoys the same constitutional protections that the 1^st amendment to the United States Constitution grants to other speech.)

Mr. Cooper made a motion to join the litigation with the City of Alpine v. Frank D. Brown, 83^rd Judicial and that they join that as a City Council and City Council persons to support that legal action. Mr. Gonzales seconded the motion. All voted in favor. The motion carried.”

Here is the video.

Here is the resolution.

It is troubling that no effort was made, apparently, to obtain any input from the people in Pflugerville before taking the action to join in the TOMA lawsuit. Although citizens are free to speak on agenda items in a City Council Meeting, it would have been not at all clear from the agenda that such an important action (to join in the lawsuit described in the resolution) would have been considered in the meeting. It is not surprising, therefore, that nobody came forward to speak about agenda item 10E.

It is also not at all clear why joining in the TOMA lawsuit would be is the best interest of the City of Pflugerville in particular. Hundreds of Texas cities are not participating.

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“Texas Attorney General Abbott says government meeting agendas need to be specific.” by Jon Nielsen, Dallas Morning News, October 19, 2008. (Posted in Texas Budget Source website)

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Also, for reference (551.071 was mentioned in item 10E of the agenda):

SUBCHAPTER D. EXCEPTIONS TO REQUIREMENT THAT MEETINGS BE OPEN

Sec. 551.071.  CONSULTATION WITH ATTORNEY; CLOSED MEETING.  A governmental body may not conduct a private consultation with its attorney except:

  (1)  when the governmental body seeks the advice of its attorney about:

    (A)  pending or contemplated litigation; or

    (B)  a settlement offer; or

  (2)  on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter.

Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.

http://www.statutes.legis.state.tx.us/SOTWDocs/GV/htm/GV.551.htm

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According to what is presented in the Open Government page in the Attorney General of Texas website, the Open Meetings Act would appear to be different and distinct from the Public Information Act.

The third paragraph of the October 13, 2009, Resolution No. 1228-09-10-13-1E of the City of Pflugerville should presumably include “Texas Open Meetings Act” in place of “Texas Public Information Act.” 

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TOMA, TML, and a Letter

Some interesting articles are appearing in the media about a letter reportedly written by an official of the Texas Municipal League. Links to three articles are listed below:

“Open Meetings Act: Jail time for not conducting public’s business in the open has been an effective deterrent.” The Lufkin Daily News, January 5, 2010.

“Tyler Paper Tells TML Off.” submitted by M. Q. Sullivan, Empower Texans, December 20, 2009.

“TML Letter Missing Law’s Salient Message” Tyler Morning Telegraph, December 18, 2009.

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Also see

“Texas Newspapers Lash Out at City Officials” by Frank Sturzl.

This can be found in the Texas Municipal League Legislative Update, December 10, 2009, Number 26.

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Rockport and TOMA

Rockport is one of five Texas cities including Pflugerville that are joined in a lawsuit about the Texas Open Meetings Act.

An editorial about TOMA entitled “City’s joining Alpine lawsuit a bad decision” by Mike Probst appeared in The Rockport Pilot on November 11, 2009.

Also see

“Rockport council against criminal provisions in law” by Mike Probst, The Rockport Pilot, November 6, 2009.

Was Pflugerville’s joining Alpine lawsuit a bad decision?

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Not Just about Pflugerville:

Was filing a lawsuit about TOMA outrageous?

See

“Public Officials Sue for Right to Be Secret” posted by Robert J. Ambriogi, Law.com Legal Blog Watch, December 16, 2009.

And

“Keep ‘open meetings’ open” by Bill Jones, a letter to the editor in The Dallas Morning News, December 25, 2009.

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Two Articles about TOMA

An article entitled “City joins lawsuit over Open Meetings dispute” by James Rincon appeared this week’s Pflugerville Pflag. It also appeared online with the headline “Pflugerville one of four cities named in lawsuit” in the new Pflugerville Pflag website. An editorial dated December 2, 2009, with the title “Texas elected officials shouldn’t fear accountability” in the Star-Telegram is mentioned in the article and is available online here.

On December 3, 2009, the Pflugerville Pflag published an opinion article by Bill Hobby that later appeared in the Alpine Avalanche under the headline “1^st Amendment cannot be a shield for elected officials.” In the Alpine Avalanche, the article was preceded by an editor’s note with an observation about the roles of Bill Hobby and Don Adams in the strengthening of the Open Meetings Act in 1973.

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Public Opinion about TOMA

Many newspaper articles and editorials have been published about the TOMA (Texas Open Meetings Act) lawsuit, but little is known about what the citizenry of Texas believes.

A poll about TOMA was conducted by CBS7 Your Eye on West Texas .

The question posed was

“Do you believe that the state’s open meetings law violates public officials right of free speech?”

Results: Yes, 30%; No, 70%

Also see

“Open Meetings Act Lawsuit 12/15/09” The Reporters Committee by Miranda Fleschert, in CBS7 Webpage, December 14, 2009.

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Should a Town Hall Meeting Have Been Held?

The reforms that the Texas Legislature enacted into law after the Sharpstown Bank scandal (1971-1972) included a strengthened Open Meetings Act.

Now a lawsuit has been filed on December 14 that if successful would weaken the Texas Open Meetings Act. This lawsuit was joined by Pflugerville. Before taking this important step that might begin to undo legislation designed to help prevent corruption in government, would it not have been prudent for the City Council to procure input from the citizens of Pflugerville through means such as a town hall meeting?

Before a vote was taken on whether to join the TOMA lawsuit, what was actually done by the Pflugerville City Council was to discuss the matter in a closed executive session.

A Wikipedia article and the accompanying references cited have information about the Sharpstown Bank scandal.

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Lawsuit: Absurd, Ridiculous, and Insulting?

See

“Don’t weaken Open Meetings Act” in The Beaumont Enterprise, December 15, 2009.

Also see

“Lawsuit addresses Open Meetings Act.” by Dan Wallach, The Beaumont Enterprise, December 8, 2009.

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Where Is the Outrage?

An online editorial dated November 26, 2009, in the Port Aransas South Jetty Newspaper conveys the thought that the citizens of Pflugerville should be “up in arms” about the decision of the city council to join the lawsuit about the Texas Open Meetings Act. Also, one can conclude from the editorial that the TOMA lawsuit issue should be remembered at election time.

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