Posted: Oct 2, 2012 11:01 AM
Updated: Oct 2, 2012 11:02 AM
San Antonio Express-News. Sept. 29, 2012.
Ruling is a victory for transparency
Texas laws on public information and open meetings are only as effective as the penalties that compel officials to take notice and follow them. People in positions of power are not naturally disposed to be conscientious about public disclosure, seeing requirements to share information and conduct business in the light of day as nuisances.
The threat of criminal penalties puts teeth in the state's open government laws. In the case of the Texas Open Meetings Act, a violation is a misdemeanor offense punishable by up to six months in jail and a $500 fine.
For six years, plaintiffs representing municipalities from across the state though none from the San Antonio area have been trying to emasculate the Open Meetings Act. In two essentially identical cases, they have argued that the criminal penalties amount to an unconstitutional infringement of free speech because the law is vague and overly broad.
In fact, the law is narrowly tailored to address official actions. "The Texas Open Meetings Act does not impede the freedom of speech," U.S. District Judge Robert Junell noted in his ruling against the plaintiffs in the first iteration of the case." The act simply requires speech to be made openly, and in the presence of interested public, as opposed to 'behind closed doors.'"
The 5th Circuit Court dismissed that case. But a new set of plaintiffs filed a new case making the same argument. Last year, Junell ruled against them again, noting it was "nonsensical to say a government would attempt to suppress speech by requiring disclosure of that speech at an open meeting."
Now a three-judge panel of the 5th Circuit Court has unanimously affirmed Junell's ruling a second time. Given this track record, you might expect the plaintiffs to give up. Instead, their attorneys have vowed to take the case to the full 5th Circuit Court and the U.S. Supreme Court if necessary.
The spectacle of local government officials fighting to weaken a law that ensures transparency and accountability is bad enough. The fact that taxpayers in Alpine, Big Lake, Pflugerville and Rockport are being forced to subsidize this battle against good government and common sense demonstrates the need for having such laws with criminal penalties on the book.
Lubbock Avalanche-Journal. Sept. 30, 2012.
Federal ruling affirming Texas Open Meetings Act was good for citizens
We appreciate the ruling by a three-judge federal panel Tuesday upholding the constitutionality of the Texas Open Meetings Act.
There should be no surprise at our approval. We would expect journalists to be universally pleased with the decision from the panel of the 5th U.S. Circuit Court of Appeals in New Orleans.
Texans residents, who ultimately benefit from the legality of requiring meetings to be open to the public, should feel the same way.
The Texas Legislature acted on behalf of the public when it passed the first version of the act in 1967 and in the amendments to the act passed since then. The lawmakers intended to make government more open by ensuring the public would have legal access to public meetings.
Not every member of the public could attend government meetings, but all of them have access to news coverage of the meetings. The journalists represent the public at meetings and report to their audiences what happened.
We agree with the statement issued after the ruling by Texas Attorney General Greg Abbott, who represented the state in the lawsuit against the Texas Open Meetings Act, when he said, "Today's ruling is a great victory for democracy and the First Amendment."
Abbott went on to say, "The decision further guarantees the public will continue to have access to information about how their government works. Making meetings accessible and allowing the public to see how decisions are made are the foundation of open government. A healthy democracy requires that the public have access to how government operates."
The federal ruling last week began in a state lawsuit eight years ago against members of the Alpine City Council, alleging a majority of the members were discussing official business by email.
Under the Texas Open Meetings Act, which is often called TOMA, the only way a majority of elected officials can address official business is in a public meeting in which the notice of the meeting was published at least 72 hours in advance.
The lawsuit against the Alpine officials was dismissed after the statute of limitations expired.
Fifteen municipal elected officials from the state, including four from Alpine, later challenged TOMA, alleging it restricted free speech and was vague and overbroad. The state district court ruled against the plaintiffs, saying the law required disclosure rather than restricting speech. The 5th Circuit panel upheld the state court ruling.
Some officials have expressed concern the open meetings law could inadvertently be violated with use of emails and social media. We believe one of the many responsibilities that must be accepted by a person elected to public office is to learn the requirements of the open meetings law and make certain he or she is following those requirements.
Amarillo Mayor Paul Harpole said he no longer communicates through Facebook and Twitter, Lubbock Mayor Glen Robertson said he still uses social media, but he and fellow city council members are extremely careful.
Public officials should make following the requirements of TOMA a high priority that would generate sufficient caution to prevent inadvertent violations. The public who elects them deserves nothing less.
Fort Worth Star-Telegram. Sept. 29, 2012.
Texas Open Meetings Act: not tough enough
Some public officials around Texas might feel frustrated by the Texas Open Meetings Act because it prevents them from horse-trading before they come to do their business in front of the public.
And they might have convinced themselves they have something to fear because the law has teeth: It carries jail time and fines for those who knowingly violate it.
And they might believe TOMA is impossibly vague because the Legislature has required that they get trained on obeying it.
But they would be wrong, wrong and wrong again.
The 5th U.S. Circuit Court of Appeals has said as much in a 3-0 panel ruling that holds the law is constitutional. (1.usa.gov/UTNtx3)
Maybe now those officials who've spent years challenging TOMA's penalties along with the Texas Municipal League, which has helped them will refocus their energies on really serving the public interest.
The 45-year-old law doesn't restrict political speech based on its content, the court said. It meets the legal test of being "substantially related" to furthering an important government interest.
Openness isn't just an "important" interest, it's a vital one.
Allowing government officials to discuss public business in private "lessens government transparency, facilitates corruption, and reduces confidence in government," Judge Jerry Smith wrote for the panel.
The law doesn't prevent local elected representatives from talking about policy on the radio, sending flyers to constituents, receiving emails from fellow officials or even meeting as a group to celebrate each other's birthdays or chat about knitting. As the courts recognized, the law doesn't prevent them from discussing the public's business, and it doesn't care about their particular views on any issue. It merely requires that when a quorum of them is doing it, they must do so where their constituents can see what's going on. This does force officials to hash out difficult decisions in front of the world, even when they'd rather not. That's what they were elected to do.
Among the 15 city officials who sued to get the penalties tossed out were Hurst Councilman Henry Wilson and Mel LeBlanc, who resigned from the Arlington City Council in February after disclosures about his use of illegal drugs.
This group took up the cause after an earlier suit that started in Alpine got dismissed because the officials initially involved left office.
TOMA defines a "meeting" as a gathering of a quorum of elected officials to discuss or take action on public business. Meeting notices must be posted publicly at least 72 hours beforehand, giving a location and an agenda. Only a few topics, such as personnel, litigation and real estate transactions, can be discussed in closed sessions, and all votes must be in public. It's a misdemeanor, punishable by a maximum $500 fine and up to six months in jail, to knowingly discuss public business in secret or deliberately circumvent the law.
Though the plaintiffs argued their free-speech rights were threatened, the appellate panel said public officials have no First Amendment right to deliberate in private, and enforcing the law doesn't amount to harassment.
The officials might be right on one point: TOMA is under-inclusive by exempting the governor, mayors and state legislators, they argued. That doesn't make it unconstitutional; that means it doesn't go far enough.
Mayors and other heads of public bodies are notorious for working their colleagues privately to find out where they stand on issues. This "rolling quorum" inevitably leads to vote-trading and majority-building, too often resulting in limited discussion in a public forum.
More officials also are skirting openness by blatantly "talking" to each other via cellphone texts during meetings. A bill that would have barred texting, emailing, instant messaging or Internet posting during a public meeting died in committee during the 2011 session.
Lawmakers should re-examine the Texas Open Meetings Act next year and consider making it tougher.
Austin American-Statesman. Sept. 26, 2012.
Open meetings law protects democracy
Thoroughly rejecting claims that the Texas Open Meetings Act violates First Amendment rights of elected officials, the U.S. 5th Circuit Court of Appeals upheld the law that requires public business to be conducted in public.
Council members from a variety of Texas cities including Pflugerville filed a lawsuit that made the audacious claim that the Open Meetings Act violates their right to free speech.
The law prohibits a quorum four members of a seven-member city council for example to discuss public business unless a meeting has been posted 72 hours in advance. Violations are punishable by a $500 fine and six months in county jail. After members of the Alpine City Council were indicted on charges of violating the Open Meetings Act, they and others filed a federal suit arguing that the law criminalized free speech and denied them 1st Amendment rights enjoyed by the unelected citizenry. The council members also complained the law is vague.
U.S. District Judge Rob Junell soundly rejected those rather bodacious claims. Junell, who served in the Texas Legislature before his appointment to the federal bench by President George W. Bush, noted that the law "does not impede the freedom of speech; the Act simply requires speech be made openly, and in the presence of an interested public, as opposed to 'behind closed doors.'"
A "Texas citizen has at the minimum a significant right, if not a fundamental right, to open government. Speech concerning public affairs is more than self-expression; it is the essence of self-government," Junell wrote.
That was plain enough, but a 5th Circuit Court of Appeals panel dismissed the ruling as moot in 2009 because the plaintiffs were no longer in office. The suit was revived in 2010, setting up this week's ruling the federal appellate panel. The 5th Circuit panel was equally plain: "Plaintiffs contend that (the Open Meetings Law) is overbroad because it criminalizes all private speech among a quorum of a governing body that is about public policy, and most of such speech does not lead to corruption. 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 Texas Open Meetings Act was passed in 1967, in the wake of the Sharpstown stock fraud scandal that led to a shake-up in the state's political leadership. Its purpose was simple: Public business should be conducted in public. Ironically, the Legislature where the scandal hatched exempted itself from the Open Meetings Act. The few exemptions including personnel matters, real estate acquisition and discussions of pending litigation are understandable to protect privacy and the public purse. The law correctly presumes that all other public matters should be discussed openly.
As lawyers for the state noted in a brief defending the Open Meetings Act, the First Amendment protects citizens from government oppression not government officials from citizen oversight.
The law doesn't deprive elected officials of speaking to one another, it forbids them from committing the public's name and money in private and that includes using technology to deliberate the public's business in private.
Anyone who has dealt with an eccentric public can appreciate the frustrations that come with the job, but frustration with democracy is no justification for trampling it.
The plaintiffs' constituents are subsidizing an unwarranted assault on a law that works in their interest. Yet, the assault will continue.
"We think we have a better-than-average chance" of getting the entire, 17-member 5th Circuit Court to review the case. If necessary, they plan to take the case to the nation's top court, said William McKamie, one of several attorneys who represent the plaintiffs on appeal.
"Our initial reaction is that the U.S. Supreme Court would be interested in some of this as well," McKamie said. "The First Amendment rights of these local government officials in Texas are certainly worth protecting."
With due respect, the counselor has it backward. The right of the public to have their business conducted in public is certainly worth protecting.
As lawyers are fond of saying, the courts have spoken on this issue in black and white and plain English. Pressing the point is the collective prerogative of the council members who filed the suit but they are torturing not only the law but their taxpayers.
Anyone who runs for public office in Texas is aware of the Open Meetings Act.
Those who are eager to dismantle it ignore the scandal that created the need for it. It's a civic amnesia we can't afford.
The Dallas Morning News. Sept. 22, 2012.
Texas should not honor Virginia's online gun permits
Wherever you come down in the perpetual rights-vs.-control gun debate, at least we can agree that Texas law is Texas law.
And in Texas, if you want to get a license to carry a concealed handgun, you can.
If you take a 10-hour course with a qualified instructor that includes an hour of range time. If you absorb state laws on when and where you may carry. If you learn about the safe handling of a weapon, especially around children. If you score a 70 on a 50-question written test and a 70 on a 50-shot test from three distances.
Do all this, pass a federal background check, and in the eyes of Texas, you may carry legally in our state. This newspaper generally supports concealed carry, and one reason is that Texas law makes sure an applicant understands the rights and responsibilities that come with it.
What no Texan should want is to have someone around who is armed but has no clear concept of Texas law or how to handle a gun. And that's what could happen more often if Texans sign up for nonresident permits from Virginia, which allows permitting entirely online.
It's no exaggeration to say that anyone with $39.95, an Internet connection and one hour can wind up duly licensed by Virginia to carry a concealed handgun. This not only increases gun danger for everyone, it cuts the legs from under Texas law.
Land Commissioner Jerry Patterson, who wrote the Texas statute while a state senator, worries most about nonresident Virginia permit holders not understanding our state's specific gun laws. Virginia's online course requires five chapters of reading and watching a video, followed by 20 true-false questions. Get 15 right, and you pass. Online customers can take the test up to four times, and the passing rate is right about 100 percent.
Most concerning, it cuts out the trained Texas firearms instructors who make sure applicants understand what it means to carry a gun in our state. Carrying a handgun isn't the same as placing a bid at eBay.
A 2005 reciprocity agreement means Texas and Virginia recognize the other's concealed handgun laws. Normally, this is good for Texas license holders, who can carry legally in Virginia (and other states with similar agreements).
In this case, however, Texas should reconsider. If it takes an act of the Legislature to change this agreement, that's what should happen and as quickly as the coming session. Texas has the correct gun laws now and doesn't need to absorb another state's bad idea.