Image: Criminal defendants Craig Doyal (County Judge) and Charlie Riley (Precinct 2 County Commissioner) have attempted to argue that they’re so afraid of Section 143 of the Texas Open Meetings Act that they won’t even socialize together or communicate for fear of criminal prosecution. Here’s Charlie’s February 18, 2016, fundraiser where a quorum of the Montgomery County Commissioners Court appeared together to support Charlie’s work as a County Commissioner. Commissioner Jim Clark (far left), Riley (center with light blue shirt), and Doyal (far right in blue blazer).
Conroe, April 3 – While criminal defendants Craig Doyal, Montgomery County’s Judge, and Charlie Riley, Precinct 2 County Commissioner, have chosen to attack the constitutionality of Texas Open Meetings Act (“TOMA”) Section 143 claiming that it’s unconstitutionally vague and violates their right to free political speech, the statute is not the problem. The desire for secrecy and to avoid public scrutiny is the problem with Craig Doyal and Charlie Riley.
“…the statute is not the problem. The desire for secrecy and to avoid public scrutiny is the problem with Craig Doyal and Charlie Riley.”
The indictment should speak for itself:
“THE GRAND JURY, for the County of Montgomery, State of Texas, duly selected, empaneled, sworn, charged, and organized as such by the 221st Judicial District Court for said County, upon their oaths present in and to said Court that Craig Doyal [and Charlie Riley] on or about August 11, 2015 and continuing through August 24, 2015, and before the presentment of this indictment, in the County and State aforesaid, did then and there as a member of a governmental body, to-wit: the Montgomery County Commissioner’s Court, knowingly conspire circumvent Title 5, Subtitle A Chapter 551 of the Texas Government Code (herein after referred to as the Texas Open Meetings Act) by meeting in a number less than a quorum for the purpose of secret deliberations in violation of the Texas Open Meetings Act, to-wit: by engaging in verbal exchange concerning an issue within the jurisdiction of the Montgomery County Commissioners Court, namely, the contents of the potential structure of a November 2015 Montgomery County Road Bond, Against the Peace and Dignity of the State.”
The Grand Jury indicted Doyal, Riley, political consultant Marc Davenport, and Precinct 4 County Commissioner Jim Clark for meeting in numbers of less than a Commissioners Court quorum (3 out of 5) for the purpose of secret deliberations in violation of TOMA to structure the resolution to set a November 2015 road bond referendum. Clark has since turned “state’s evidence” so he is no longer a defendant subject to the prosecution.
What is TOMA Section 143?
TOMA Section 143, the provision under which Doyal, Riley, and Davenport face criminal indictment provides:
“A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter [TOMA] by meeting in numbers less than a quorum for the purpose of secret deliberations.”
In other words, a quorum of the Commissioners Court is three members among Doyal, Riley, Clark, Precinct 3 Commissioner James Noack, and Precinct 1 Commissioner Mike Meador. If three actually meet and discuss an issue within the jurisdiction of the Commissioners Court or any public business, then they’ve conducted a “closed meeting” in violation of Section 144 of TOMA under certain conditions. But if two members of the Commissioners Court meet to circumvent TOMA’s open meetings requirement, secretly have a verbal exchange about public business, for the purpose of conspiring to circumvent TOMA by meeting in groups of less than a quorum, they’ve committed a crime under Section 143.
If Craig and Charlie decide they want popcorn served in all County offices to County employees, they’re okay to discuss that with each other. But if Craig and Charlie have that same verbal exchange with the knowledge that they’re doing so in order to have “secret deliberations” (a VERY IMPORTANT TERM!), then they’re in trouble with the law. “Deliberations” is an important term here. It means “a verbal exchange during a meeting between a quorum of a governmental body…concerning…any public business.”
How do Craig and Charlie break that law? They meet and decide about the popcorn policy and do so knowing that they’re going to get a third Commissioners Court member into their decision outside of an open meeting of the Commissioners Court.
Basically, the criminal allegations against Doyal and Riley are pretty simple, because they not only had verbal exchanges about the provisions of a road bond referendum resolution but also they memorialized those discussions in a written Memorandum of Understanding with some third parties. The next step that got them in trouble occurred when their political consultant Davenport, on retainer to both Doyal and Riley at the time, went to Precinct 4 County Commissioner Jim Clark to get his road projects and to communicate with him about the road bond referendum. Those actions, and the likely testimonial explanation of Clark in the upcoming TOMA Trial, are likely the reason that Doyal and Riley are in nuclear hot water.
While Davenport was an important actor in this mess, the simple truth is that he’s never been a member of a governmental body. The criminal charges against him are ridiculous on the face of TOMA Section 143. The Special Prosecutors would strengthen their case by dismissing him.
The constitutionality challenge – vagueness, fear, and free speech
Doyal, Riley, and Davenport claim that TOMA Section 143 is unconstitutionally vague, because they can’t understand it. They presented three attorneys and a few elected officials this past week who acted as their spokespeople in that regard. The attorneys, especially Austin attorney Jennifer Riggs, told Visiting District Judge Randy Clapp that they regularly advise their clients not to meet at all with other governmental body members in order to avoid criminal prosecutions. The elected officials, including Oak Ridge North Mayor Jim Kuykendall, testified that they’re so afraid of TOMA Section 143 that they never communicate with each other outside of open meetings. Riggs and Kuykendall both expressed their opposition to the “chilling effect” TOMA has upon free expression of ideas among governmental body members.
Fear of a statute is a policy argument against enactment of the statute. Kuykendall, Riggs, Doyal, and Riley should present their argument to the Texas Legislature, not to a District Judge whose duty is to enforce the law, not write it.
Section 143 is not vague at all. If Craig and Charlie meet they’re okay. But if Craig and Charlie meet for the purpose of circumventing the quorum requirement of TOMA, by having secret meetings in smaller-than-quorum groups in order to get a majority of the Commissioners Court in line for a vote before an open meeting, then they’re in trouble.
By the end of the week, argument by Doyal, Riley, and Davenport about TOMA Section 143 being an unconstitutional restriction on their right of free political speech seemed to lose all credibility. It has long been the law that “time, place, and manner restrictions” upon political speech are okay, as long as they serve a reasonable purpose and are limited in such a manner to achieve their means. Just as Doyal has every right to limit citizen comments during Commissioners Court meetings to 3 minutes each, so may the Texas Legislature tell Doyal and Riley, “You can’t express your political speech to each other for the purpose of gaining a majority of the Commissioners Court to support your idea, unless you do so in an open meeting.”
Judge Clapp heard a lot of testimony about how elected officials’ fear of TOMA Section 143 has prevented them from communicating with each other about public business. There’s a problem with that expression of fear; it’s completely untrue (at least here in beautiful Montgomery County.)
Arrogance and defiance – not true that they won’t meet in public or in small groups
The basic problem with Craig Doyal, as County Judge, and Charlie Riley, as a County Commissioner, is that they want to operate in secret. Doyal has turned a once open County government into a dark cave of secrecy. Department Directors get their walking papers for providing the public information. County employees are intimidated from speaking with the public. The County Budget process, one of the most important functions of the Commissioners Court, has turned into a closed and secret process. Doyal’s fundamental County governing principle is “lockjaw.”
At the same time, Doyal and Riley have shown no fear whatsoever from meeting outside of open Commissioners Court meetings, as TOMA requires. They meet regularly and sometimes in settings that are open even for the camera lens to catch.
Here are four examples.
On February 18, 2016, a quorum of the Montgomery County Commissioners Court attended Charlie Riley’s fundraiser and hung out together. Standing in the same room does not constitute a “verbal exchange” especially because Magnolia High School’s cafeteria room is large. They did a lot more than just stand in the same room, however. TOMA had no chilling effect on this activity.
On March 30, 2016, Commissioner Jim Clark was the “keynote” speaker at the North Houston Association’s meeting in The Woodlands. Clark invited his pals Doyal and Riley to attend the meeting. Clark, of course, sat at the head table. Doyal and Riley sat with their buddy Dave Hamilton at another table and discussed the progress of the $100 million 3.6 mile Tx-249 “Decimation of Hope Highway” with Hamilton during the luncheon. Later, of course, Doyal and Riley participated in several Commissioners Court meetings in which they pretended to receive updates on the construction project. Let’s be clear: no one is accusing Doyal and Riley of committing any sort of crime. That’s really the point. Doyal and Riley did not hesitate to meet with one of the richest and most powerful County vendors and discuss County business with him, precisely because they were not seeking to circumvent TOMA’s quorum requirements at the time! They knew and understood the law then, although they’ve somehow developed amnesia and don’t understand it in front of Judge Clapp.
On January 7, 2017, the same night the Red Hot Chili Peppers appeared at the Toyota Center in downtown Houston, Clark invited his pals Doyal and Riley to attend the East Montgomery County Fair Association’s celebration of Sundance Head, a great singer who hails from East Montgomery County. Doyal and Riley attended the wonderful event with their wives and sat at the same table together as guests of Clark and his wife.
Even recently, Doyal regularly meets with Precinct 1 County Commissioner Mike Meador secretly to discuss County budget matters. They’ve tried to institutionalize those meetings by establishing a “budget review committee” with County auditor/politician Phyllis Martin. When Doyal sought to discipline County Human Resources Director Dodi Shaw after she requested a meeting to discuss the issues she had raised in her February 13, 2017, letter to him about Doyal’s “Hit List” and nepotism problems, Shaw requested that Precinct 3 Commissioner James Noack attend a Friday, February 24, 2017, meeting with them. Doyal refused to permit Noack to attend the meeting, because, Doyal informed Shaw, Doyal had already asked Precinct 1 Commissioner Mike Meador, Doyal’s political ally, to attend the meeting instead!
Clearly, neither Doyal or Meador suffer from any sort of “chilling effect” when it comes to TOMA’s criminal provisions.
How they could have avoided this problem
No one should necessarily wish criminal conviction, jail time, or fines on anyone else (unless they’re found guilty), not even Doyal or Riley. The critical question is: what could Doyal or Riley or Clark possibly have done to avoid the criminal problems they’ve faced?
The answer is actually quite simple and it’s one that 182 nice folks have provided to Doyal and Riley in clear written instructions. The 182 nice folks are also known as 150 Texas House of Representatives members, 31 Texas Senators, and 1 Texas Attorney General, all of whom have made the provisions of TOMA pretty clear.
GENTLEMEN, YOU NEED TO CONDUCT PUBLIC BUSINESS IN OPEN MEETINGS, AS PAINFUL AS THE SCRUTINY MAY BE FOR YOU! How?
- You should have met with the Texas Patriots PAC representatives in open meetings, properly noticed, in the Commissioners Court.
- You should have discussed your road wish lists in open meetings, properly noticed, in the Commissioners Court.
- After you came to a general agreement with the Texas Patriots PAC leadership openly, then you should have turned to Commissioner Clark and asked him what projects he wanted on his list in open meetings, properly noticed, in the Commissioners Court.
- You didn’t need Davenport’s participation, so you’d have saved several thousand dollars in fees you paid him, because Davenport is not a member of the Commissioners Court and would be unnecessary in open meetings, properly noticed, in the Commissioners Court.
Oh, and one more little comment: your complete failure ever to deliberate over the millions of dollars of decisions you make in the so-called “Consent Agenda” every two weeks may very well constitute another violation of TOMA Section 143. Please stop!