Conroe and Shenandoah, November 21 – Corrupt local political boss Marc Davenport once said, “We need to get rid of the Texas Open Meetings Act so we can start to get business done.” Davenport’s comment is the antithesis of the law in Texas, which clearly provides in Section 551.001 of the Texas Government Code (the companion to the Open Meetings Act): “Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.”
In other words, open government and open meetings are the law in Texas. Unfortunately, the Montgomery County Commissioners Court, the City of Shenandoah, and the San Jacinto River Authority exhibit great difficulty complying with the open government requirements of Texas law, especially in their abuse of “executive sessions.” While governing authorities must deliberate in open meetings before the public, the Texas Open Meetings Act (“TOMA”) has a very limited number of areas of discussion where they may meet in “executive sessions” in private behind closed doors away from the watchful scrutiny of the public.
Of course, those governing bodies that don’t like public scrutiny, especially the County Commissioners Court and San Jacinto River Authority, seem to relish in their executive sessions and, not surprisingly, greatly abuse them.
Section 551.041 of the Texas Government Code, part of the TOMA, mandates “A governmental body shall give written notice of the date, hour, place, and subject of each meeting held by the governmental body.” The notice must be posted following a particular procedure of public posting 72 hours before the meeting. That means that Commissioners Court meetings beginning Tuesdays at 9:30 a.m. must be the subject of a public posting at the Courthouse no later than the previous Saturday morning at 9:30 a.m. The notice must include the subject of the meeting.
About 31 years ago, the Austin Independent School District landed in a bunch of hot water when they began to abuse executive sessions by failing to provide any notice of the subject of the executive sessions that they’d hold when they provided notice of the school district meetings. A newspaper chain, Cox Enterprises, Inc., filed a lawsuit against AISD and fought the issue all the way to the Supreme Court of Texas, which held on April 9, 1986, that before an executive session may occur under TOMA, advance written notice of the date, hour, place, and subject of the executive session is required. A “reader…[must be] alerted to the topic for consideration” in order for the executive session to comply with Texas law.
Nor surprisingly, the Commissioners Court, City of Shenandoah, and SJRA, which appear to want to operate in secrecy, don’t give the proper notice oftentimes. In fact, SJRA never provides proper notice for its executive sessions, which usually last much longer than the open parts of their Board of Directors meetings.
Montgomery County Commissioners Court
The agendas which County Judge Craig Doyal and his “chief of staff” jim fredricks post, have many problems. First, since the public has begun to take a special interest in many topics – County payroll, ethics, spending – the agendas should include specific explanation of the items about those topics that will be under discussion. In just the last Commissioners Court meeting, the messy November 14 affair, the Commissioners Court meeting notice listed “Consider and Approve Payroll Change Request Forms” under “Human Resources.” The proposed payroll changes were not appended to the meeting notice nor were they included with the Court’s backup materials online. Amazingly, the Commissioners Court actually approved those changes unanimously without knowing what the changes even were.
The November 14 meeting notice was insufficient under the Cox Enterprises Supreme Court opinion and under TOMA. That the Commissioners Court members would approve such a notice was just plain daffy.
An April 25, 2017, meeting notice provided notice for an executive session which only provided the following information: “DISCUSS AND DELIBERATE THE EMPLOYMENT AND DUTIES OF SELECTED PUBLIC EMPLOYEES.” Clearly, that meeting notice failed to apprise the public about the topics of the meeting, as it could easily have concerned any of approximately 2,500 employees in the County government alone.
Where the Montgomery County Commissioners Court seems to get into the most trouble, however, is in what they actually do during so-called “executive sessions.” Those executive sessions cannot, by law, involve deliberations or debate over County business matters, no matter what the topic. Three sources have confirmed that the Commissioners Court executive sessions regularly involved substantial discussion and debate among the County Judge, Doyal, and the Commissioners. While they don’t actually vote on matters, Doyal regularly announces that they’ve reached a “consensus,” a clear violation of TOMA’s open meetings requirements. That, of course, explains why the Commissioners Court rarely takes action in the open after they’ve held executive sessions, which are, by law, supposed to only be informational and not discussions of government policy.
San Jacinto River Authority
Arguably, the worst violator of the TOMA is the San Jacinto River Authority, which holds Board of Directors meetings once a month. While the Board will discuss mundane engineering issues in the open portions of their meetings, most of the duration of the meetings occur behind closed doors in executive sessions, which SJRA notices on its meeting agenda for every meeting.
The SJRA notices simply fail to comply every single time with the requirements of the TOMA to include the topics of executive sessions. Instead, SJRA lists each of the statutory exceptions to TOMA which allow for executive sessions without any identification whatsoever with respect to the topics of those sessions. That’s how SJRA’s secret government works.
Every SJRA Board of Directors meeting contains the same language in its notice:
Clearly, none of those agenda items describe the topics, although they do mention the category that allows for an executive session under TOMA. Look at the example 7a: “Consultation with attorney.” There’s nothing about the topic about which the Board of Directors will consult with the attorney. Therefore, in violation of Texas law, the SJRA Board of Directors goes into executive session to “consult with attorney” and can discuss any topic they want with the attorney.
It’s precisely the method by which SJRA seeks to circumvent the TOMA. It’s precisely the reason that SJRA’s Board of Directors spends more time in executive sessions than in open meetings where they public may watch them.
City of Shenandoah
Sadly, the City Council of Shenandoah, which is mostly a group of reformers, has lapsed into a similar practice as SJRA. During the past seven weeks, the City Council’s meeting notices have all contained the same language describing a meeting in executive session “to discuss general legal matters” with the City Attorney.
In violation of TOMA and the Supreme Court’s decision in the Cox Enterprises lawsuit, the City Council avoids public scrutiny by failing even to disclose the topic about which they are meeting with the city’s attorney.
Secrecy prevails in the County government primarily because of the work of County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and corrupt local political boss Davenport. Secrecy seems to reign in the SJRA because they’ve failed to fulfill their statutory duties for years and now face public criticism. The reformers on the Shenandoah City Council should know better.