Archive for January 2010

Fewer Cities Now Joined in TOMA Lawsuit

January 21, 2010

City officials in Big Lake have been reported to have withdrawn the city from the TOMA (Texas Open Meetings Act) lawsuit. 

See 

Texas town backs out of open meetings suit” (AP article) The Houston Chronicle, January 21, 2010.

Perhaps it is about time for the Pflugerville City Council to withdraw Pflugerville from the TOMA lawsuit, also.

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TOMA Lawsuit Defended in Pflugerville City Council Meeting

January 13, 2010

Item 10A in the regular meeting yesterday of the Pflugerville City Council was about the TOMA (Texas Open Meetings Act) lawsuit filed in December. A video of the Item 10A proceedings is available here from the City of Pflugerville website. (Video is no longer available.)

In the video, much of what was presented in defense of the participation of Pflugerville in the TOMA lawsuit seemed to be an elaboration upon arguments given in this lawsuit that were offered in opposition to preserving TOMA in its present form. It may be noted that the complaint in the current lawsuit is the same (according to page 16) as that in an earlier lawsuit. It is not surprising then that a brief, dated August 28 and prepared by the State of Texas for the earlier lawsuit, appears to address effectively many of the concerns and arguments brought up in the current lawsuit and in the video.  

As one tries to evaluate the arguments presented in the video, one may question why such a small number of the more than 1000 Texas cities are joining in the TOMA lawsuit if pursuing this litigation is justified and very important.

Added Note: Another relevant brief, dated September 3, 2009, was submitted for the earlier TOMA lawsuit from The Reporters Committee for Freedom of the Press and 23 News Media Organizations.

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Support for TOMA from West University Place

January 12, 2010

According to the West University Examiner, the West University Place City Council voted yesterday for a resolution supporting TOMA (Texas Open Meetings Act). The wording of the resolution was

“We support the fundamental proposition contained in TOMA that elected officials should not participate in closed meetings to discuss and resolve public issues. We believe that TOMA is necessary to assure the citizens of Texas that the decisions of their elected officials are made in a public meeting, properly noticed and open to the public.” 

There has been much criticism in the media directed toward the TOMA lawsuit. Very few Texas cities have joined in the lawsuit. It is possible that more city councils in Texas will follow the example set in West University Place and actually pass resolutions in support of TOMA.

West U stands for open government.” by George Boehme, GeorgeBoehme.com, January 12, 2010. 

Council moves to support Open Meetings Act” by Steve Mark, West University Examiner, January 12, 2010. 

Open Meetings Act Fight May Affect You” by Greg Googan, My Fox Houston, January 11, 2010.

We need more transparency in government, not less” by George Boehme, GeorgeBoehme.com, January 9, 2010.

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Should Pflugerville Withdraw from the TOMA Lawsuit?

January 11, 2010

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

January 10, 2010

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?

January 8, 2010

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 1st 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, 83rd 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

January 5, 2010

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 MessageTyler 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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