Valley elected officials closely watching Texas Open Meetings Act lawsuit
A handful of Texas cities filed a lawsuit against the state and state Attorney General Greg Abbott contending that the Texas Open Meetings Act is unconstitutional because it limits their free speech rights.
The lawsuit filed in federal court in the West Texas city of Pecos on Dec. 14 has grabbed the attention of public officials, open government groups and First Amendment scholars across the country who are closely watching the case.
“It’s had a ripple effect in the First Amendment community,” said David Hudson, an expert at the First Amendment Center at Vanderbilt University. “It really has the potential to be a real bellwether decision.”
The open meetings act prohibits a quorum of elected officials from discussing public matters outside of a public meeting with intent to circumvent the law.
The plaintiffs contend that the penalty for violating the act— up to six months jail time and a $500 fine — has a chilling effect on the free speech rights of elected officials.
The cities of Alpine, Big Lake, Pflugerville and Rockport are co-plaintiffs in the suit. More cities are expected to join the suit like Wichita Falls, which joined the day after it was filed.
No Rio Grande Valley cities have joined the lawsuit as of yet. Mercedes Mayor Joel Quintanilla, president of the Texas Municipal League’s Region 12, said Valley city officials will likely discuss the lawsuit at their next meeting in March.
“The law is so broad and vague about what is permitted and what is not that it leaves total discretion to a prosecutor,” said Houston-based lawyer Dick DeGuerin, who is representing the plaintiffs on a pro-bono basis with Alpine City Attorney Rod Ponton.
DeGuerin and Ponton represented two Alpine City Council members in a nearly identical 2005 lawsuit against the state that was dismissed three months ago because the council members were no longer in office. The lawsuit was filed after the two council members were indicted for violating the act, though the charges were later dropped.
DeGuerin said the original purpose of the act has been “tinkered with” by the state Legislature and a series of court and attorney general opinions to the point where it no longer serves its original purpose.
In the lawsuit, the plaintiffs point to a specific 2005 attorney general opinion as evidence of the act’s vagueness.
The ruling says a violation has occurred if a gathering of officials receive information from another official through a third person. But the plaintiffs argue this could happen innocuously in several different ways like through a Facebook message or by discussing public policy in a coffee shop with citizens.
McAllen City Attorney Kevin Pagan said it is presumed there’s “an element of common sense” in the act, but added there could be a concern for elected officials if there was an overzealous prosecutor.
McAllen City Commissioner and former City Attorney Jim Darling agreed that the combination of the criminal penalty and the act’s perceived vagueness can have a chilling effect on the free speech of public officials.
“It’s a balancing act between being transparent to the public versus efficient government… I think the present state of the law doesn’t recognize the need for a balance,” Darling said.
Darling added that if the state Legislature — which exempted itself from the open meetings act — was required to follow it, nothing would ever get done in Austin.
Open government groups across the state and the country have railed against the lawsuit.
Laura Prather, president of the Freedom of Information Foundation of Texas, noted that the act has served as a “phenomenal deterrent” since it was adopted 42 years ago and strengthened in 1973 with a criminal provision.
She said that 18 other states have criminal provisions in their open meetings laws and she hasn’t heard of any “examples of where government has come to a screeching halt” because of them.
A public official faces a year of jail time in Florida and Oklahoma and several other states threaten officers with removal from office.
In the 36 years the state’s open meetings act has had a criminal provision, not a single elected official has served jail time, Prather said. There has been only one criminal prosecution where a fine was handed down.
“If the true concern is that the act is too vague, they can go to the attorney general for an opinion advising them whether certain conduct will be in violation,” she said. “They have the right to do that and they haven’t done it. It’s a scorched Earth approach.”
The plaintiff’s First Amendment argument in this case is rare, which makes the ramifications of the case for open meetings laws nationwide so big, said Hudson, the First Amendment scholar.
Jerry Strickland, a spokesman for Attorney General Greg Abbott, said in a statement that the plaintiffs “are turning the First Amendment on its head” because it is “furthered, not frustrated, by open meetings laws.”
“I think a court would be loath to strike down an open meetings law, but who knows?” Hudson said. “The argument on the other side is this version is unconstitutional, go draft another one. You’ve got to have an open meetings law.”
Hudson said it could “spell doom” for the act if the court follows the example of the 5th U.S. Circuit Court of Appeals in New Orleans that issued a ruling on the Alpine City Council case before it was dismissed.
The three-judge panel ruled that the free speech of elected officials could not be limited to the same degree as public employees, who have less free speech rights than in their capacity as private citizens. The panel said that “strict scrutiny” would have to be applied, which would make prosecution of someone who violated the act much more difficult, Hudson said.
“The notion that a politician’s right to free speech would trump a citizen’s right to know what public officials are doing with their tax dollars is nutty,” said Lucy Dulglish, executive director of The Reporters Committee for Freedom of the Press. “I’ve never heard of this. That’s why this case is so highly unusual.”
What the result of the case could mean for public officials across the nation and the interpretation of the First Amendment is also why, as Hudson puts it, “a lot of people are watching.”
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Nick Pipitone covers McAllen, PSJA, the Mid-Valley and general assignments for The Monitor. He can be reached at (956) 683-4446.
