The War on Sunshine

Officials in some cities are trying to gut Texas’ open meetings law.
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Posted May 19, 2010 by Peggy Venable in News

A war against open government is being fought in Texas. Cities and public officials — including some in Arlington and Hurst — are using public money to go to court to try to gut the Texas Open Meetings Act, which prohibits a quorum of elected officials from discussing official matters outside of a posted public meeting.

This constitutes lawsuit abuse. And to add insult to injury, the Texas Municipal League is behind the measure. The league is one reason Texas property taxes are so high, since it opposes any legislative effort to give local voters the right to reject property tax increases that exceed the rate of inflation and population growth.

The latest assault on open government began in 2004 in Alpine, when a city council member, using private e-mail, queried others on the council about whether a specific item should be on their meeting agenda. One council member replied, also using a private e-mail account. The local district attorney decided this e-mail exchange violated the open meetings law because the messages involved a quorum of the city council. As a result, two council members were indicted, though the charges were later dropped.

Alpine, several other towns, and officials in additional cities filed a lawsuit last December claiming the open meetings act violates city officials’ right to free speech. Furthermore, the lawsuit claims that official communications over the internet, including e-mails and social networking sites, should be exempt from the provisions of the law.

This lawsuit is an attempt by city officials to use social media to defeat the goal of open government by pulling the teeth of the open meetings law. New media should not become just a new method for circumventing the law.

The attorney representing the cities is none other than Dick DeGuerin, who also represented (among others) David Koresh during his standoff with federal law enforcement agencies in Waco.

The lawsuit claims that the cities and officials “seek nothing more than to enforce freedom of speech for public officials whom the citizens of Texas have elected to speak for them.” They want to “unshackle Texas elected officials so they can perform their duties as representatives of the citizens who elected them to speak.”

Actually, voters elected them to do the people’s business. These elected officials chose to work in the public sector. They handle  public dollars and make decisions that gravely affect citizens’ lives and livelihoods. That business should be conducted in the light of public scrutiny.

Would the same argument these rogue cities are making work for insider trading? Would free speech cover a corporate representative of a publicly held company giving private tips to sell the company before the information is made public?

The Texas Municipal League passed a resolution supporting the lawsuit and calling for the open meetings law to be amended by replacing the criminal enforcement provisions with less restrictive penalties to “balance the First Amendment right of governmental officials.”

First, the cities and officials who are suing apparently don’t want to change the basic law — they just want lighter penalties for when they break it.

Second, the league contends that citizens elect the city officials to “speak for them” before the Texas Legislature. Really? Then why do cities and the league spend millions of taxpayer dollars a year hiring lobbyists to speak for the cities, a practice most taxpayers find offensive?

Third, an elected official’s ability to speak in private among a quorum of fellow elected officials is trumped by the people’s right to have their business done in public. The fact that these city officials and the league want the right to do business in private makes their work all the more suspect.

Those organizations that have publicly come to the defense of the open meetings law include the Texas Press Association, Texas Daily Newspaper Association, Texas Association of Broadcasters, the Freedom of Information Foundation of Texas, and now Americans for Prosperity.

While the cities’ suit claims that elected officials’ individual free speech rights are being chilled, they are willing to put the citizens’ right to an open, transparent government on ice. If they succeed in their attempt to have the Texas Open Meetings Act declared unconstitutional, the public will be the biggest loser.

Peggy Venable is state director of Americans for Prosperity, a nationwide organization of citizen leaders committed to advancing the individual’s right to economic freedom and opportunity, in part by reducing the size and scope of government.


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