Yesterday, we covered the Richardson City Council's draft process for filling a vacancy on the city council ("Council Recap: Filling Vacancies"). I wrote, "I fear that if they come down on the side of taking their own deliberations behind closed doors, they run the risk of violating the Texas Open Meetings Act (TOMA)." That's so serious that I feel I ought to pull that risk out and give it a blog post of its own, because I believe the council may very well be getting ready to...BREAK THE LAW.
Before I explain why, let me emphasize that IANAL ("I Am Not A Lawyer"). So what legal advice am I relying on? I freely admit that for much of what I'm including in this blog post, my research comes from ChatGPT, Esq. Before you laugh, let me explain. I had a long conversation with him/her/it (I'll say "him" because that's the way I think of it). I asked for citations from Texas law. I asked for examples from other cities. I asked for Attorney General opinions. I asked for Texas Municipal League guidance. I read the relevant citations. I am confident that what I'm quoting here is not him hallucinating.
First the good news. Texas Government Code Section 551.074 authorizes governmental bodies to hold a closed (executive) session to deliberate on personnel matters, including the appointment of a public officer or employee. ChatGPT says, "In the last 10 years, dozens of Texas cities—including places like Commerce, Grandview, Rockwall, and many larger cities—have filled council vacancies by appointment. The practice is routine and legally standard under Texas law." So, we're home free, right? Not so fast.
Now the bad news. Texas Government Code Section 551.074 grants an exception for deliberating the appointment of a public officer (singular). Deliberation about multiple individuals collectively is not clearly authorized by §551.074. But cities do use executive session for board/commission appointments, especially quasi-judicial bodies like Planning & Zoning. How do they justify themselves? Simply put, the law is not black and white. Cities are willing to run the risk of a lawsuit. Cities' executive session agendas use carefully worded language. They say something like "discuss an appointment"; they don't say "compare candidates", "score applicants", or "choose a preferred candidate." Interestingly, those same cities typically avoid using executive sessions at all for appointing members of the city council itself, which suggests they recognize a different level of legal risk category for that. This is nuanced. There's no single sentence in state law that explicitly covers this situation, and no Attorney General opinion either. The City of Richardson is raising its own level of risk using executive sessions to fill a vacancy on city council.
In short, appointments are legal. Interviewing candidates individually in executive session is legal. But deliberating the merits of candidates in executive session could very well be ruled illegal if it ended up in a court of law. Why risk it? Do you feel lucky?
Why not use a safely defensible approach instead?
Let's extract the key parts of my conversation with ChatGPT explaining this further. First, my question to ChatGPT:
The City of Richardson just proposed a process to appoint a person to fill a vacancy on city council. It contains these three steps (and more). Which of these steps would violate TOMA if they were done in executive session?
- Deliberation/Announce Finalists (Council Meeting) 1 week
- Finalists Interviews (Council Meeting) 1 week
- Deliberation/Announcement Appointee (Council Meeting)
The bottom-line answer from ChatGPT is shown here.
ChatGPT also summarized the practical risks of the council's proposed approach and offered a defensible approach instead.
Where does the City Council itself stand on the legality of their approach? Surprisingly, that never came up in open session. Maybe they have already received legal advice from the City Attorney that their procedure is A-OK, or maybe they didn't feel the need to even ask. Notice that the draft procedure fails to mention executive sessions. Is it significant that the most legally risky part of the plan (executive sessions) is the part not written down?
Here's a sample of what the council talked about instead of the legal requirements, and my quick takes:
Council member Curtis Dorian: "As I've said before, on many occasions, when you're interviewing someone or even a progress review, I find that that's very personal, and I think it's something that should be considered in executive session."
That's sounds reasonable and unoffensive to personal feelings. The only problem is that going beyond an interview might not be legal. The law doesn't care about a person's feelings.
Council member Dan Barrios: "I disagree with Councilman Dorian in the sense that I think, when you run an election, it's a very public process. And I think therefore we need to make this as transparent, open and in front of an audience and cameras as possible."
This is a principled stand in favor of the public interest. It also happens to (probably) be the law (the Texas Open Meetings Act).
The City Council will do what they want to do regardless. I'm used to not being listened to (since 2006, but who's counting?). But maybe there's a litigious person out there who wants to be on council and applies for a vacant seat. If not selected, they could have legal grounds to challenge the result. That bad outcome for the city is easily preventable. Just do things in the open like ChatGPT told you to do in the first place.
To see more of my conversation with ChatGPT (not all, but a key question and ChatGPT's detailed answer), you can find it in this document.
Quotes have been lightly edited for clarity and brevity.
"Some urge secrecy
Others call for open air.
Law draws hard line."
—h/t ChatGPT
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