Texas Municipal Officials Fight 'Open Meeting Act,' Get Shot Down By Fifth Circuit Court

from the the-only-thing-transparent-here-is-their-self-interested-motives dept

Fri, Sep 28th 2012 12:11am — Tim Cushing

There's been a whole lot of talk about openness in government, but so far, very little action. Many vague statements and unkept promises have raised the public's expectation of actually being involved, but when push comes to shove, legislators seem much more comfortable doing things the old, closed-door way.

The public has been pushing back against this lack of transparency. The Texas Open Meetings Act requires that most government meetings be open to the general public. There are a few exceptions, but generally speaking, all qualifying meetings must be be announced at least 72 hours in advance and any final actions, decisions or votes must be made in these open meetings. If the Act is violated, the official(s) are subject to fines up to $500 or up to six months in prison.

In response, Texas municipal officials did what most officials do when faced with mandatory transparency: they tried to get the law thrown out as a violation of their First Amendment rights.

Fifteen city council members from across Texas, including Mel Leblanc from Arlington and Henry Wilson from Hurst, sued the state in Midland Federal Court, arguing the law requiring public government meetings criminalizes political speech based on content, is unconstitutionally vague and overbroad.

Specifically, the officials claimed that the law is "content-based" as it applies only to "public policy over which the governmental body has supervision or control." They also expressed their concern that the Act was too vague and had the potential to "criminalize all private speech among a quorum of a governing body that is about public policy," helpfully stating that "most" of this sort of private policy-related speech "does not lead to corruption." Not only was the Act too vague in these officials' opinion, but it was simultaneously "too complex," requiring an "educational course to comply with it." (This last part is true -- an Open Meetings Training section exists in the Act -- but it hardly makes the law overly complex.)

The 5th Circuit Court shot every argument down, reminding officials that the goal of the Act is to bring about more openness and transparency, rather than to be used a blunt-force weapon for constituents to punitively punish government officials.

Referring to the argument that the law is "content-based," the court declared:

"Here, government is not made less transparent because of the message of private speech about public policy: Transparency is furthered by allowing the public to have access to government decision-making," the opinion states. "This is true whether those decisions are made by cogent empirical arguments or coin-flips. The private speech itself makes the government less transparent regardless of its message. The statute is therefore content-neutral."

The arguments that the act is unconstitutionally overbroad and vague were dismissed as well:

"The plaintiffs' argument fails, because it ignores the other purposes of TOMA, such as increasing transparency, fostering trust in government, and ensuring that all members of a governing body may take part in the discussion of public business," the opinion states. "With respect to these other goals, TOMA is not overbroad."

"Neither of the issues plaintiffs point to implicates the underlying purpose of the vagueness doctrine: preventing government from chilling substantial amounts of speech and facilitating discriminatory and arbitrary enforcement," the opinion states. "The concern underlying the vagueness doctrine is that citizens will not be able to predict which actions fall within the statute, leading to arbitrary and discriminatory enforcement."

The Circuit Court found that increasing transparency and trust in government legitimized the inclusion of criminal penalties in the Act, as the overall point of the law was to foster governmental openness rather than curtail any official's First Amendment rights.

It's a great first step and one that will probably be cited if other states follow suit. (Illinois has its own Open Meetings Act.) Of course, this particular battle is far from over. The municipal officials are planning an appeal to the US Supreme Court, which seems like a ton of effort and expense to go through simply to lock the public out of discussions on policies that affect them.

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Filed Under: free speech, open meetings, texas, transparency

26 Comments

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MaJoR (profile), 28 Sep 2012 @ 12:57am

But if the meetings are open to the public, they won't be able to smoke cigars and mock their constituents during meetings! That is clearly a violation of their rights.
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Josef Anvil (profile), 28 Sep 2012 @ 1:44am

AMAZING
The act is too vague and over broad and could criminalize speech. The act is too complex.

Where the fuck are these politicians whenever there is a discussion about copyright or patents?
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That Anonymous Coward (profile), 28 Sep 2012 @ 1:50am

The citizens should just start recall campaigns.
These elected officials have decided to waste dwindling resources on making sure they don't have those pesky voters looking over their shoulders.
They are obviously unfit for the position when they claim their right to meet and speak in secret about things that effect the voters trumps the law.
They knew the rules when they ran for the job, they don't like the terms they should save everyone lots of money and just resign rather than continue.
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Anonymous Coward, 28 Sep 2012 @ 2:08am

like all governments today, they want to make decisions that affect others but dont want the others to be able to question, let alone do anything about the decisions. it's the first step, taken locally, that leads to the big national step. all in all, it starts dictatorship
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Mitt, 28 Sep 2012 @ 2:11am

47%
This is the 47% that Romney was talking about. They live off the government tit and feel entitled to what the tax payers provide.
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That One Guy (profile), 28 Sep 2012 @ 5:37am

The questions that should be asked:
Why exactly are they throwing such a fit over a law that appears to do nothing but make their statements and actions, which are supposed to be serving the people in their state, public? If they are sure they are doing nothing wrong, or objectionable, why the fuss?

I mean, the only reason I can think of that they'd want to keep all that secret is so that they don't have to be accountable for their actions, and are able to tell the public one thing, while doing something completely different, but surely that can't be it...
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Spointman (profile), 28 Sep 2012 @ 5:42am

Re:
Does Texas even have recall provisions?
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abc gum, 28 Sep 2012 @ 5:44am

If the actions of elected representatives were made public then the unwashed masses might get all uppity when they find out what's really going on and then (omg!) they might start trying to tell their representatives how to do their jobs and stuff like that.

The horror!
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ChronoFish (profile), 28 Sep 2012 @ 6:06am

Open Meetings has some success
I was the primary developer for the Open Meetings system in Rhode Island. We had a lot of grumblings and "I didn't knows" when it first came out, but by and large we had a lot of compliance. We developed an RSS system of notices (mandatory) and minutes (*encouraged*) and reached out to the local town websites to encourage them to incorporate the feeds into their own sites.

The one (predictable) group that was legally exempt from the Open Meetings law...of course...was the state legislature. But at least all other governmental and quasi-governmental agencies had to abide.

-CF
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art guerrilla (profile), 28 Sep 2012 @ 6:29am

Re:
recalls are good in theory, not so much in practice...
hell, The They (tm) buy regular elections, what is to stop them from buying recalls ? ? ?
(see, Wisconsin recall)
nope, its getting to the point where the system is so locked down, there is NO ALTERNATIVE but massive disruption to the system itself...
unless/until we overthrow the entrenched money-based system in politics, our 'votes' don't mean shit...

art guerrilla
aka ann archy
eof
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Commish, 28 Sep 2012 @ 7:30am

The devil is in the details
Texas's open meetings law requires much more than just having decisions made in open meetings. A big concern for towns is 'walking quorums', any time that a would-be quorum of a council, committee, etc. is in the same room or at the same event. I served on a citizen committee in my local town and the town's legal department told us that if any 4 of us were going to the annual town fair we needed to notify them so that they could put out notice of the chance of an 'impromptu' meeting if we all happened to talk to each other at the fair. Citizens volunteering on the streets committee are told not to talk to their neighbors about stop signs or traffic issues in their neighborhood that might come up in meetings because that could be ex parte communication and the volunteer could be guilty of violating state law by by hearing information outside of a publicly noticed meeting.

This is what the cities were fighting, the vagueness of the law. That a citizen committee cannot talk to their neighbors undermines the entire purpose of a citizen committee. Unfortunately the way the Texas open meetings act is written and interpreted, a developer or other party could sue and tie up any board or commission decision for years.
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bob, 28 Sep 2012 @ 7:52am

Re: The questions that should be asked:
that's a dangerous argument of 'if they're doing nothing wrong', as it can be applied to the fourth amendment, etc.
can the police search you without cause? if you'r edoing nothing wrong, what's the problem?
the argument here is that as a public servant, there needs to be transparency regarding your job to your employer, the public. just like my boss can question me about what I'm doing, when, and why, and demand to sit in on meetings, so the public should be allowed the same information regarding those who work for us.
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Anonymous Coward, 28 Sep 2012 @ 7:54am

Re: AMAZING
It is in their own interest to avoid criminalising their own speech.
It is in the interest of their campaign pocketbooks to criminalise everyone else's.
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Roland, 28 Sep 2012 @ 8:43am

Michael Moore
Reminds me of Michael Moore's biography. He got elected to the school board in his Michigan hometown while still a student. The other board members started holding private meetings at their home without him. He called the DA and they were busted. They also lost their seats at the next election.
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Dirkmaster (profile), 28 Sep 2012 @ 8:44am

Re: The questions that should be asked:
And aren't these the same asshats who tell us that government spying is okay? Because, after all, if you aren't doing anything wrong, you have nothing to fear, and nothing to hide. Right?
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DCX2, 28 Sep 2012 @ 8:50am

Re: Re: The questions that should be asked:
...I can't believe I just clicked the insightful button on a post by bob. Congratulations, man, you might be slightly more reasonable than I thought!
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btr1701 (profile), 28 Sep 2012 @ 9:35am

Re:
> The citizens should just start recall campaigns.

Not every state/county/city allows for that.

I don't believe Texas does. You certainly can't do it for the president or members of Congress.
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btr1701 (profile), 28 Sep 2012 @ 9:41am

Re: The devil is in the details
> This is what the cities were fighting, the
> vagueness of the law. That a citizen
> committee cannot talk to their neighbors
> undermines the entire purpose of a citizen
> committee.

That seems like a fairly legitimate reason for a court to overturn that part of the statute for vagueness and the fact that it didn't makes me think the court got this one wrong, at least on this narrow issue.

Like most news stories these days, once you actually research it on your own and get past the few sound bites and dumbed-down explanations the media gives, you find the issue to be a bit more complex and less sensational than you're initially led to believe.
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Watchit (profile), 28 Sep 2012 @ 10:08am

Re: 47%
wat.
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Watchit (profile), 28 Sep 2012 @ 10:11am

Re: Re: Re: The questions that should be asked:
Mother of God... it's a sign of the Apocalypse...
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Watchit (profile), 28 Sep 2012 @ 10:18am

Re: The devil is in the details
You raise a fair point, I hope that can be resolved and a compromise be found. If there's one thing America's had trouble with recently is compromising, there's too many bills with either everything in it, the good with the bad, or nothing, rather than arbitrating a solution that's good for both sides.
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Bergman (profile), 28 Sep 2012 @ 11:06am

Re: Re: The devil is in the details
Nope, the court didn't get it wrong at all. Nothing in the law criminalizes talking to neighbors. Or even talking socially to other people on the committee. Or even discussing committee business with other committee members while at lunch.

What the law criminalizes is making official decisions in private. The law guarantees the public the right to witness government in action. The idea is that it shouldn't be possible for the committee to circumvent the open meetings law simply by discussing committee business and coming to a decision over a private lunch (no members of the public allowed), then rubber stamping the already-made decision once they get back into the public eye.
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Anonymous Coward, 28 Sep 2012 @ 11:57am

Re: 47%
You are a lolcow.
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Anonymous Coward, 28 Sep 2012 @ 12:48pm

Re: Re: The questions that should be asked:
The laws and constitutional protections are designed to protect people from the government, not the government from the people.

And(much as I never thought I'd say this) as Bob says (note to self,apparently the phrase "never going to happen" doesn't mean what I think it means), we (the people...)have a right to attend meetings and review discussions held by civil servants (as they pertain to the "discussion of public business")...
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That One Guy (profile), 28 Sep 2012 @ 3:51pm

Re: Re: The questions that should be asked:
Good point, I sit corrected.

Had the right end idea 'people who are serving, and being paid a salary by, the public should have their deliberations be public', just the wrong reasoning to get there.
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btr1701 (profile), 28 Sep 2012 @ 4:18pm

Re: Re: Re: The devil is in the details
> Nothing in the law criminalizes talking
> to neighbors. Or even talking socially to
> other people on the committee. Or even
> discussing committee business with other
> committee members while at lunch.

No, it doesn't specifically criminalize those things, but it also doesn't specifically exempt impromptu social situations where a quorum of a government body is present, either.

Hence the challenge for vagueness.
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