[this article is a little too fawning to put on the front page of the website, but the topic might merit discussion ....]


"DeGuerin: Meetings law muzzles pols"

By RICK CASEY
Houston Chronicle
April 6, 2006

ATTORNEY Dick DeGuerin is a busy guy.

He's trying to keep plastic surgeon/admitted drunken driver Dr. Mark Gilliland out of prison.

He's trying to do the same for lame duck Congressman Tom DeLay.

And for multimillionaire/neighbor-butcher Robert Durst.

Meanwhile, he's been traveling to West Texas to try to get the Texas Open Meetings Act declared unconstitutional.

He says politicians need protection from the First Amendment as well as the Fifth Amendment.

It is, he and Alpine City Attorney Rod Ponton contend, a violation of politicians' free speech to forbid them to talk about governmental business when a) a quorum is present, and b) they are not in official session.

Began with an e-mail

The case, now in federal court in Pecos, grows out of what may be the first indictment for violation of the Open Records Act by e-mail.

It started in October 2004 when Alpine Councilwoman Katie Elms sent an e-mail to three other council members. It was an informal message, knocking the mayor, praising an engineering firm seeking a contract and asking the others to respond.

Councilman Avinash Rangra replied the next day to all three, and agreed on the need for a decision on an engineer, though he reportedly preferred someone else.

By city charter, a quorum is reached by any four members of the council, which includes five members and the mayor.

District Attorney Frank Brown said he was contacted by one of the elected officials not included in the e-mail. After talking with the attorney general's office, he decided a crime had been committed under the Open Meetings Act and presented it to a grand jury.

Whiskey's for drinking ...

"Twelve fair citizens heard the evidence and deliberated on it for three days," he said. "That's more than any other case since I've been district attorney."

He became DA five years ago. A conviction could result in 180 days in jail.

Ponton, who was not city attorney when he hired on to the case, said the prosecution was politically motivated.

"The people who were indicted voted to block a large water improvement project that would benefit developers up to the north of town," he said. "Instead of a $10 million boondoggle to help the developers, they wanted a $5 million project to help poor people on the south side of town, where the water pressure was low."

He said given the powers that were lined up behind the DA, he recruited his friend DeGuerin, who has a house in nearby Marfa and comes out as often as he can.

There's a saying in arid West Texas that whiskey's for drinking, water's for fighting. But DA Brown says Ponton's analysis is all wet.

"Oh my God! Ponton said that?" he responded when I explained the theory. "Oh, what a moron!"

Brown may be a bit sensitive about the case. He had to ask the district judge to drop the charges after one of the silent recipients signed an affidavit saying he didn't remember seeing one of the e-mails. Brown said he testified differently in front of the grand jury.

"Ponton represented the two non-offending parties in front of the grand jury, then switched clients after the indictments," he said. "He got his former client to sign the affidavit."

Ponton said Brown knew he had a bad case and used the affidavit as an excuse. He said the member remembered the other e-mail.

In a rare move, DeGuerin and Ponton opposed the dismissal. They wanted to fight out the constitutional issues in state court.

When the judge decided against them, they got him to sign findings that the indictment had been without probable cause and to expunge the indictment from the council members' records.

Brown is appealing the expungement.

Meanwhile, DeGuerin and Ponton have sued Brown and Attorney General Greg Abbott in federal court, asking U.S. District Judge Robert Junell in Pecos to declare the law unconstitutional.

Three weeks ago, Junell overruled a motion to dismiss the suit and set a bench trial for July.

Both sides express confidence.

Ponton says the act started out fine, but amendments and attorney general opinions over the years have made it so broad someone could get indicted if they talk politics at a Rotary Club if a quorum was in the audience. Any politically-motivated DA can press charges.

Brown says the other side just wants to "turn the clock back 50 years so decisions can be made in smoke-filled rooms."


This article is: http://www.chron.com/disp/story.mpl/metropolitan/casey/3777631.html

While I believe this case is little more than a good ol' fashioned West Texas mudfight (a mythical concept, since mud requires water and there's none of that in West Texas right now), it raises a debatable issue. Do the members of governmental bodies forfeit any of their fundamental First Amendment rights when they sit in their high-backed chairs with their nameplates in front of them?

Arguably there are two schools of thought.

On the one hand, there is the notion that government officials are people, just like any other member of the public. And we all know that the U.S. Supreme Court has consistently reaffirmed the notion that a public employee or official doesn't necessarily waive his or her First Amendment rights by walking through the front door of the office. This line of reasoning would posit that constructive development of public discussion requires some level of private brainstorming among the concerned parties in order to cultivate the issues for ultimate disposition. This private discussion, and the choice of whom to have it with, are matters within the core of the First Amendment's rights to expression and association, the argument might go. Thus, the government shouldn't be free to regulate those choices.

On the other hand, certain professions are readily recognized by the Supreme Court as bearing responsibilities that properly limit some First Amendment protections. Lawyers come to mind immediately. Though attorneys are encouraged, indeed perhaps ethically required, to thoroughly and sometimes forcefully advocate their clients' interests, the speech they use to do so is plainly and properly regulated by rules of courtroom procedure and decorum. Likewise, public employees are protected from retaliation for discussing matters of public interest. Yet, they are not protected from airing the office's dirty laundry solely to get a leg up in an employment dispute. Like so many other legal concepts, it devolves into a balancing of interests. The relevant interests here are those of the official who wishes to discuss a matter outside the spotlight versus the interest of the public in knowing how decisions of public import are made. To the extent the Legislature has struck that balance and placed any limitation on a public official's speech rights, it has done so by essentially creating a content-neutral time, place and manner restriction that is reasonable in light of the public's compelling interest in open government.

In reality, there is a third. Members of governing boards do not at all forfeit their right to express their views on issues of important public policy because of the Open Meetings Act. They are free to speak their mind to the media and anyone else who wants to listen, however bombastically or circumspectly they choose to do so in their individual capacity. They may just as freely speak their mind in open session, or refrain from doing so because of the glare of camera lights. But that is their decision to make based on their own circumstances, not one in which the government has acted to squelch expression. The government (here, the Legislature) has simply opted to require that the public be given an informed opportunity to witness the discussion if deliberation and action are a potential result. As the Texas Supreme Court noted in Tarrant County v. Ashmore, public office is not a right, it's an imposed duty for the benefit of the public. The Open Meetings Act doesn't reach private conversations about who supports whom politically or what church a particular official attends. It requires that those charged with making decisions that will affect the public do so in a manner that the public can observe. In effect, it doesn't impede a public forum; it mandates one. Sure, the Open Meetings Act can be a hassle. No one knows that better than those of us who have to advise governmental bodies. But it's one that a council or commission member rightfully signs on to accept as part of the job.

I agree that the Leg has authority to limit time/place expression of speech by public officials, at least as to matters that require a quorum for decision. But...

The advent of electronic communication and the informality of e-mail, though, has shown some of the weaknesses in the current law. The description of a meetings violation, when it deals with this situations, is a bit murky.

In particular, the type of violation these people are alleged to have committed, could have included anyone who received or responded to the e-mail, even though it might not have been solicited. In addition, the presence of a crime depends ever so carefully on the content of the e-mail or the reply.

I also have to question whether criminalizing all this is the best response. I certainly could understand a civil fine, an injunction and even undoing whatever vote might have arisen from the discussion. But, why do we insist on criminalizing so many otherwise civil disputes?

Criminal laws should focus on crimes, not civil disputes or mistakes. In addition, navigating the public official world is complex enough without having to worry about a criminal prosecution. (At the risk of jumping into another briar patch, I would extend this thought to campaign financing.)

I also think persons in charge of enforcing open meetings (and open records) laws would be much more willing to pursue enforcement aggressively if it didn't result in a criminal prosecution that required a grand jury indictment and a unanimous jury verdict.

What do you think?

I suppose aggressive charging decisions could result in the problem John describes, but I'm not so sure that a proper application of the act supports that result. The OMA provides an offense if a governmental body, member or group of members of that body "knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter." Tex. Gov't Code sec. 551.143(a). I would be most hesitant to file an information against a commissioner who simply opened an e-mail from a fellow commissioner, but did not respond or otherwise engage in any conduct that could be objectively viewed as "secret deliberations." Similarly, a cautionary response, such as, "I think this is something we need to discuss in open session," would be entirely proper and non-chargeable.

The crux of John's response discloses the valid, public-policy-related core of the debate. Should a violation of the procedures to ensure that the decisionmaking process underlying the establishment of state and local government policy be open and visible to the general public be dealt with criminally? I'm not sure I have a pat answer to that question. These cases are always politically charged and often will flow from acts that, in the private sector, are routine means of doing business. But the litmus test, to me, is whether it is sufficiently important to us as Texans that "government in the sunshine" be more than just a matter of civil avoidance of the ultimate decision. Put another way, do we need criminal sanctions to deter back-alley deals as an MO for doing the public's business? In this context, it could be argued that e-mails are simply a variant (albeit a more tangible one) of the phone call or clandestine visit to accomplish the same end.

With that said, I also see merit in my sager colleague's thoughts. There are civil enforcement remedies available to alleviate the taint of decisions made in an improper manner. Moreover, knowing violation of the OMA probably would support a removal action, inasmuch as it is a law that relates to the performance of official duties. Of course, filing a removal suit carries with it many of the same political headaches as a high-profile criminal case (here, only to obtain a misdemeanor conviction in a best-case scenario).

Returning to the original issue of this thread, though, I adhere to my position that the OMA does not impermissibly infringe on a governmental body member's First Amendment rights. The act simply doesn't prohibit speaking one's mind or even speaking with other body members (by e-mail or otherwise) about a particular issue. What it does do, ideally, is instill a measure of caution borne of apprehension about the mechanics of making decisions on public policy issues. Regulating the process by which public policy decisions are made is inherent in the American model of government. If a decision has to be made in a "smoke-filled" back room, there's at least a substantial possibility that something may be wrong with the chosen alternative. Here endeth the sermon.

What do some of you others in this think-tank have to say about this?

I do not believe that providing information to fellow commissioners about an issue constitutes "deliberation" for purposes of prosecution. A member of a governmental body needs information in advance to think things through. As long as it does not develpop into a discussion about the merits of a proposal and how the court should vote, it should not be prohibited by law.

The email dilemma is just one more predictable fall-out of being a technological species. Here, technology developed while the law stood still. No big shocker that the two don't dove-tail. If email had existed when the meetings law was drafted, we would not be trying to fit this high-tech fact situation into yesterday's relatively lower-tech law. One way or the other, the issue would have been spelled out in the statute. Which, by the way, it needs to be....

Our science/technology often is one step ahead of our law and ethics. We CAN send email (technology) Should we? (law/ethics) The email issue is just a milder version of the script we often see, with many of the more sticky technology/law mifits being in medicine and bioscience: we CAN clone humans (technology); should we (law/ethics)?