When U.S. Congressman Max Sandlin's representative was denied admittance to the SeRBiA March 2003 meeting in New Boston, the Congressman asked the Attorney General of Texas (perhaps with the assistance of Legislator Robert Puente) to render an opinion concerning the legality of that meeting. Apparently Attorney General Greg Abbott solicited the service of a Houston law firm to write the opinion for him. This opinion was mailed from Houston to the Attorney General on 12 June 2003. State Legislator Robert Puente got a copy of it and sent it along to Max Sandlin and Mark Homer, from whom it made its way to my desk. Although there are no prison penalties for violating the Open Meetings Act, its enforcement is left up to local prosecutors, so "theoretically" Mikes Huddleston and Burke could be indicted by the Bowie County District Attorney. The whole situation is pathetic. Mikes Huddleston and Burke just screwed up, pure and simple. Now they must pay the price. I hate to sound so "cynical" and "ugly" about this, but as you may recall, they treated me like dirt when I tried to submit my elaborate presentation in June 2002. It is hard to be "cordial" and "forgiving" to clueless jerks like that. Good Riddance! Roberto
*****
Ogden, Gibson, White & Broocks, L.L.P.
Attorneys
2100 Pennzoil South Tower
711 Louisiana Street
Houston, Texas 77002
June 12, 2003 Via Certified Mail
Honorable Greg Abbott
Attorney General of Texas
Opinion Committee
209 West 14th Street
Austin, Texas 78711
Re: Request by Representative Puente, Chair, Committee on Natural Resources, regarding whether a River Authority may, under the Open Meetings Act, hold informational meetings that are open only to press and community leaders (Request No. 0044-GA)
Dear General Abbott:
We are submitting the following comments on behalf of the Freedom of Information Foundation of Texas on the above-referenced request for Attorney General opinion. Thank you for this opportunity to provide comments on this and other important open government issues.
These comments address three issues with regard to the request for opinion: (1) is a river authority subject to the Open Meetings Act; (2) is an "informational meeting" a meeting as defined in the Open Meetings Act; (3) may a meeting under the Open Meetings Act be held subject to invitation only. As our analysis shows below, the short answers to the foregoing questions are yes, yes, and no.
The River Authority Is Subject To The Open Meetings Act
River authorities are public governmental agencies generally created directly by legislative enactment under authority of the conservation amendment to the Texas Constitution. Brazos River Auth. v. city of Graham, 354 S.W.2nd 99, 101 (Tex. 1961). As set out in Mr. Puente's letter, river authorities are directed by "a board appointed by the Governor" or "appointed by a state agency, such as the Texas Water Development Board". Thus, river authorities fall squarely in the definition of a "governmental body" under § 551.001(3)(A):
(A) a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members:
There are reported cases concerning actions taken by river authorities and their compliance with the Open Meetings Act, each of which apply in the Open Meetings Act to river authorities. See Friends of Canyon Lake v. Guadalupe - Blanco River Authority, 96 S.W.3rd 519 (Tex. App. - Austin 2002, pet. denied); Lower Colorado River Authority v. City of San Marcos, 523 S.W.2nd 641 (Tex. 1975). Indeed, Representative Puente's request for opinion does not indicate any serious question regarding application of the Open Meetings Act to river authorities, but whether the specific action of an informational meeting is in violation of the Act.
An Informational Meeting Is Subject To The Open Meetings Act
There is no reasoned distinction between an "informational meeting", and any other kind of meeting. The Open Meetings Act defines "meeting", in relevant part, as follows:
(A) a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; or
(B) except as otherwise provided by this subdivision, a gathering:
(i) that is conducted by the governmental body or for which the governmental body is responsible;
(ii) at which a quorum of members of the governmental body is present;
(iii) that has been called by the governmental body; and
(iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control. The term does not include the gathering of a quorum of a governmental body at a social function ...
Tex. Gov't. Code Ann. § 551.001(4) (Vernon Supp. 2000) "Deliberation" is defined as "a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business." IJ. § 551.001(2).
Under the first definition of "meeting", the situation described in the request for opinion constitutes a "meeting" when a quorum is present and when one or more members of the board engages in a deliberation with any other member of the board or committee or with any other person about public business or policy over which the board has supervision or control.
The second definition of "meeting" is in some respects broader than the first because it does not require any sort of deliberation between board members. It thus would apply to a situation in which the meeting's only purpose is for members of the board to "give information to" a "third person", including the media or community leaders. There can be little question that the informational meeting described by the request for opinion falls within the definition of meeting under the Open Meetings Act. See Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Land Owners Ass'n, 2 S.W.3rd 459, 461-62 (Tex. App. - San Antonio 1999, pet. denied)(discussion of projects under water district's control at informational gathering of land owners, at which quorum of water district board members were present, was "deliberation" under Texas Open Meetings Act, so that gathering was "meeting" it had to be open and publicized, where at least one board member asked questions and another board member answered questions, and meeting was designed to inform land owners about the district's future plans): Tex. Att'y Op. JC-0313(2000) (subcommittee of board of Edwards Aquifer Authority subject to Open Meetings Act where committee meeting attended by additional voting members of the authority's board so that a quorum of the board was present, members of the board "received information from, given information to, asked questions of, or received questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control.")
The Public Cannot Be Excluded From The Meeting
Because the "informational meeting" described in Representative Puente's request for opinion falls within the definition of meeting under the Open Meetings Act, the public clearly cannot be excluded. As an initial matter, the notice of the meeting must be posted in conformance with the Act, and not made by invitation only. Tex. Gov't. Code §§ 551.041 and 551.043. Further, § 551.002 specifically states that the meetings "shall be open to the public, except as provided by this chapter". The only exceptions then to a meeting being opened to the public are when the matter falls within several exceptions permitting a closed meeting, none of which are at issue here. It is well settled under Texas law that the intended beneficiaries of the Open Meetings Act are not individuals citizens, but members of the interested public. Stockdale v. Mena, 867 S.W.2nd 123, 124-125 (Tex. App. - Austin 1993, writ denied). Texas law requires governmental policymakers to conduct their meetings in a place and manner accessible to the public. Hispanic Edu. Comm. v. Houston ISD, 886 F. Supp. 606 (S.D. Tex. 1994), off'd, 68 F.3rd 467 (5th Cir. 1995).
In summary, a river authority, however constituted, is subject to the Open Meetings Act; an "informational meeting" meets the definition of meeting subject to the Open Meetings Act; a meeting subject to the Open Meetings Act cannot be by invitation only or exclude any member of the public.
Very truly yours,
Joseph R. Larsen
CC: Robert R. Puente, Chairman, Committee on Natural Resources, P.O. Box 2910, Austin, Texas 78768-2910
Contrast all of that to the letter sent by
SRBA attorney David Tuckfield of Vinson & Elkins in Austin
(Enron's former law firm, and we all know what happened to corrupt
Enron!) to SRBA Administrator Mike Huddleston. This letter was
dated 13 May 2003 BEFORE the May 20 SRBA monthly meeting at the
Mount Pleasant Civic Center and BEFORE the issuance of the previous
opinion of the Attorney General in June 2003. Mr. Huddleston distributed
copies of this letter to members of the public who were present
at the May meeting.
Vinson & Elkins, Attorneys at Law
Austin, Beijing, Dallas, Houston, London, Moscow, New York, Singapore,
Washington, D.C.
Dear Mr. Burke:
I understand that the Authority has received inquiries regarding whether its recent briefings were permissible under the Texas Open Meetings Act, Chapter 551, Texas Government Code. The briefings are proper.
The Texas Open Meetings Act (the "Act") requires that meetings of a governmental body like the authority be open to the public. Tex. Gov't Code § 551.002. For a gathering to be a "meeting" under the Act, a quorum of the governmental body must be present. Id. § 551.001(4). Because a quorum of the Authority's board has not attended its press briefings, the briefings are not "meetings" under the Act and therefore are not subject to any of the Act's requirements and need not be open to the public.
Please do not hesitate to call if you have any other questions.
Sincerely Yours, David J. Tuckfield (2801 Via
Fortuna, Suite 200, Austin, Texas 78746)
Is it therefore any surprise that half a dozen former Enron executives are awaiting trial for insider-trading, cover-ups and other crimes? With "friendly lawyers" like Vinson & Elkins, who needs enemies? Mikes Huddleston and Burke just SCREWED UP, PURE AND SIMPLE. They deserve to go back to peddling cheap pagers again in Texarkana, Arkansas. I couldn't care less. Roberto