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Council rules unlikely to change despite opinion

Tuesday, March 12, 2019 by Jo Clifton

Despite a ruling by the Texas Court of Criminal Appeals dismantling a provision of the Texas Open Meetings Act that prevents local government officials from meeting in small groups in what is known as a “walking quorum,” it seems unlikely that Austin City Council will change its behavior.

The ruling came as a result of the indictment of Montgomery County Judge Craig Doyal. In 2015, Doyal met with another member of the county commissioners court and a political consultant concerning the structuring of a county road bond. Doyal, his fellow commissioner and the consultant were all indicted for violating the open meetings act.

When the case went to trial, the judge dismissed the charges, finding that the law was unconstitutionally vague. The state appealed and an appellate court reinstated the charges. However, the Court of Criminal Appeals agreed with the trial court that the law was too vague and had many possible interpretations.

In the meantime, Doyal was defeated in his bid for re-election. He told the Houston Chronicle that his opponent implied he was a criminal because he had violated the prohibition against the walking quorum.

Under current Austin City Council policy, members can meet with a sub-quorum of members to discuss agenda items, but they are not allowed to meet with or discuss an issue with more than four other members, according to Council Member Leslie Pool.

Pool said that Council had not yet received a memo on the issue from the Law Department nor discussed it among themselves. However, she said she expects Council members to “continue what we’ve been doing.”

Mayor Steve Adler agreed with that assessment. “I don’t think anything will change at the City Council. I think that making sure that city business is conducted in a really open and transparent way is something that happens not just because of the law, but because of the values of the leadership of the city,” he said Monday.

Presiding Judge Sharon Keller wrote for the majority, “We do not doubt the legislature’s power to prevent government officials from using clever tactics to circumvent the purpose and effect of the Texas Open Meetings Act. But the statute before us wholly lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our own judicial views. This we decline to do.”

Both Pool and Council Member Jimmy Flannigan said the possible situations Judge Keller discussed in her opinion were situations Council has faced.

Flannigan told the Austin Monitor, “It is a fascinating ruling and the judge does a really good job laying out all of the convoluted scenarios we have all contemplated. If we do A, B and C is that a violation? If we do D, E and F, is that a violation? If I already know that one of my colleagues is going to vote no because of all the crazy public statements they’ve made and five of us meet knowing they’re a no, is that a violation because I know how six votes will go? The judge lays out all of these really interesting scenarios in the ruling and says the law is too vague to know if these scenarios are illegal. So it really spoke to me as an elected official.”

Flannigan, Pool and Adler all indicated that they would support Austin Sen. Kirk Watson’s bill, Senate Bill 1640, and House State Affairs Chairman Dade Phelan’s House Bill 3402, which defines what elected officials may and may not do in communicating with other members of their governmental body in less than a quorum.

The legislation, which Watson and Phelan introduced last week, defines violation of the act as requiring that the public official “knew at the time the member engaged in a series of communications that the series involved or would involve a quorum and would constitute a deliberation in violation of this chapter,” if the deliberation had been done with every member at one time instead of in a series of meetings.

In 2012, County Attorney David Escamilla accused the Council serving at that time of violating the Open Meetings Act by holding the sort of daisy-chained meetings the court found not well described in the law. Former Mayor Lee Leffingwell said Monday he and his Council never intended to violate any laws. He said that he was grateful to the Montgomery County official who took the matter all the way to the Court of Criminal Appeals.

Leffingwell noted that mayors and Council members before him met in similar meetings with less than a quorum and did not believe that they were violating the law either. He said he appreciates Watson’s attempt to make the law more clear.

Photo by John Flynn.

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