The usual critics cried foul. Do they have a case? After the jump, let's consider.
The critics just plain don't like Bill Keffler. They accuse him of cronyism, graft, embezzlement, authoritarianism and windbaggery. But, curiously, the latest attacks on the raise he was given by the city council are based on narrow, legal grounds -- the Texas Open Meetings Act. The objections to the city council's action appear to be some combination of the following:
- The city council discussed this personnel matter in executive session.
The Texas Open Meetings Act clearly permits executive sessions for the purpose of conducting an employee evaluation. An opinion of the Texas Attorney General interprets this exception to open meetings to encompass the setting of the salary of an employee. So, this complaint is weak.
- The city council didn't recapitulate the private deliberations in open session.
I've never before heard the argument that elected officials might have a right to deliberate in executive session, but afterwards they have to tell the public who said what. This complaint just seems bizarre. Executive sessions are allowed for personnel evaluations, so, no, the public doesn't have a legal right to know what the arguments are. Some might not like it, but them's the rules.
- The public didn't have an opportunity to speak to the matter.
Apparently, in this complaint, the public hearings held on the proposed budget, which included the plan to award raises to city employees, was not enough opportunity for citizens to speak. (Many did speak at these public hearings, but I don't recall if anyone specifically talked about the city manager's salary.) And the visitors section of the very work session whose agenda included the item to conduct an evaluation of the city manager was also not enough opportunity for citizens to speak. (In fact, no one asked to speak.) Maybe the thinking is that the city council should pause before each vote and ask if anyone in the audience has anything to say before the vote commences. I'm not aware of any state law that requires that. This complaint seems commendably idealistic, but legally weak.
- The agenda wasn't specific enough.
The agenda said the council might take action as a consequence of its evaluation of the city manager, but it didn't specifically call out the possibility of a raise. Legally, just how specific does the posted subject of a meeting have to be? The Texas Open Meetings Act, not surprisingly, is vague. Courts have ruled that the agenda has to be sufficiently specific to alert the public that some action would be considered with respect to the subject named. In our case, in which notice that an evaluation of the city manager would be discussed, it seems reasonable to suppose that a raise might be one possible outcome of a performance evaluation. This complaint, if tested in court, might yield further clarification from the courts on how specific agenda items need to be, but I doubt our critics would prevail. This complaint also seems legally weak.