Thursday, March 31, 2011

How Can Anyone Be Against Open Meetings?

"In October of 2004, a member of the city council in Alpine, Texas, sent an e-mail to other councilmembers asking if they wanted to place a particular item on a future council agenda. The following day, one of the other councilmembers responded to recipients of the first e-mail, stating that she agreed that the item should be discussed. The local district attorney decided that this e-mail exchange violated the Texas Open Meetings Act (TOMA) because the e-mails ultimately involved a quorum of the city council. As a result, two of the councilmembers were criminally indicted by a grand jury."
-- Texas Municipal League

I can understand why some good people may come to the conclusion that public service just isn't worth the aggravation. The idea behind the Texas Open Meetings Act (TOMA) is good, but it doesn't achieve its purpose. It doesn't drive government deliberations out into the open. It simply squelches them. Not by statute, but by practical effect. Good intentions, unintended consequences.

I know, I know, it sounds like I'm against motherhood and apple pie, against the flag, against good governance and for smoke-filled rooms, but ... after the jump, the case against the Texas Open Meetings Act. Not open meetings, mind you. The law.


The TOMA requires three days notice, a posted agenda and a public venue for members of, say, a city council to jointly discuss issues affecting their community. The law applies not just to group meetings. If council member A talks to member B, who later talks to member C, who later talks to member D, you have what the law considers a "walking quorum" which is illegal. To protect themselves from criminal indictments, cautious council members simply don't talk to each other at all. How is that in the public interest?

Can you imagine any business getting anything done by operating this way? Successful businesses *want* employees talking to each other, sharing ideas, lessons-learned, suggestions. Imagine a business telling employees that if you have a solution to a pressing problem, to keep it to yourself until next week's staff meeting, and if the idea occurs to you on a weekend, say, less than 72 hours before the Monday staff meeting, then keep it to yourself until the staff meeting a full week after that, and in all cases don't talk to your fellow employees about your good idea at all outside of the weekly staff meetings.

Obviously, no organization can be effective operating like this. It's maybe why many city councils so often appear to be ineffective, even clueless at times. Because city government itself is sometimes effective, something else must be filling the vacuum created by the TOMA. If the elected council members are sidelined and even silenced by the TOMA most of the week, to whom does the power shift? To the unelected city staff, city attorney and lobbyists who meet and consult and collaborate with whomever, whenever, wherever needed to negotiate the ordinances and regulations that will be put before the city council for their approval. The council members may be able to ask questions and make suggestions during the public meetings, but by then, the bulk of the work has been done. How is the public interest served by this? It isn't.

Even if you are cautious, a citizen's complaint might still bring grief into the life of a council member. Members of the Austin City Council have been hiring lawyers after prosecutors began investigating a complaint that council members have been holding walking quorums. Want to serve your community? Prepare to hire a personal lawyer.

Unfortunately, matters are likely to get worse before they get better. Rep. Todd Hunter (R-Corpus Christi) has introduced bill HB2977 that would bar texting, e-mailing, instant messaging or Internet posting during a public meeting. So, if you are a private citizen in the habit of live tweeting your comments about an ongoing public meeting, know that your council representative might soon be barred by law from listening to you. How is the public interest served by putting our elected representatives in a cone of silence? It isn't.

Several members of city councils across Texas have been challenging the TOMA restrictions on their speech on Constitutional grounds. A federal judge has already ruled against such challenges. That's unlikely to change on appeal and I'm not sure it should. Instead, the Texas Open Meetings Act ought to be rewritten (repeat, rewritten, not scrapped), not because it's unconstitutional, but because it doesn't serve its intended public interest.

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