For a year, the board of directors of the Tarrant Appraisal District has unknowingly violated the Texas open-meetings law that requires government bodies to post their agendas publicly 72 hours before a meeting.

The idea, one of the most basic in participatory democracy, is to alert the public to topics that might be of interest so people can attend.

In a random check with the Tarrant County clerk’s office to see who follows the 72-hour rule, The Watchdog found that the district had routinely missed the deadline.

Under state law, if the agenda is not properly posted 72 hours before a meeting, any votes taken during the meeting could be considered illegal. A concerned party could challenge the action in a lawsuit and nullify a vote.

“I am shocked,” district Executive Director and Chief Appraiser Jeffery Law said. “To hear you say we are the No. 1 violator — that absolutely blows me away.”

As readers of the Fort Worth Star-Telegram Dave Lieber Watchdog column first learned, Law said his office staff mails the agenda a week before each meeting to the clerk’s office. Apparently, the mail is slow in arriving. Month after month.

The law requires postings to be on a bulletin board in a place convenient to the public three days before a meeting. Weekends count as regular days. When an agenda arrives at the clerk’s office, it is immediately stamped with the date and time. Then it is posted on a bulletin board and on the county website.

The Watchdog compared called meeting times for the district with the time stamp from the clerk’s office. The deadlines for the June 17 and June 30 meetings were missed by one day and two days, respectively.

- – - – - – - – - – - – - – - – - – - – - – - -

More Watchdog Nation News:

Watchdog Nation Partners with Mike Holmes

America meets Watchdog Nation/Listen to Fun Radio Interview

Watchdog Nation Debuts New e-Book and Multi-CD Audio Book

- – - – - – - – - – - – - – - – - – - – - – - -

Other missed deadlines for district meetings in the past year: April 22 (one hour), Feb. 15 (two days), Feb. 4 (four hours), Jan. 21 (one day), Dec. 3 (one day), Oct. 15 (90 minutes), Sept. 17 (one day) and July 9, 2010 (one day).

Theoretically, a taxpayer in dispute with the district could file a lawsuit challenging any actions taken at those meetings.

The clerk’s office can’t compel governments to follow the law. The Texas attorney general’s office says enforcement is left to local district attorneys. The Tarrant County district attorney’s office says unintentionally missed deadlines are not considered criminal offenses. Actions taken at these meetings are best challenged by interested parties in lawsuits.

Boards that do a good job of meeting the requirements include the Tarrant County Commissioners Court, Trinity River Authority, Tarrant Regional Water District and Tarrant County Hospital District, which has been known to cancel meetings if an agenda is posted a few minutes late.

Houston lawyer Joe Larsen, a board member at the Freedom of Information Foundation of Texas, said, “When you abridge the amount of notice you give, you are basically abridging the right of participation.”

“Until the people of Texas, the citizens of Tarrant County and any other county begin to take notice and make this an issue, the district attorneys are going to continue to ignore it because they get pressure from their co-officeholders not to enforce it and they don’t get much pressure from the public to enforce it. So to them, it’s an easy call.”

Law said: “I want to thank you for bringing this matter to our attention. It was never our intention to act in any kind of manner that would mislead the public or hide our meetings from public view.”

From now on, the district will post notices on its own website – www.TAD.org – in addition to the clerk’s office.

 ”I am taking corrective action immediately beginning today to make sure that all of our meetings are held in strict compliance of the law,” Law said. “This is going to be fixed.”

Dave Lieber shows Americans how to fight back against corporate deceptions in his wonderful book, Dave Lieber’s Watchdog Nation: Bite Back When Businesses and Scammers Do You Wrong. Are you tired of losing time, money and aggravation to all the assaults on our wallets? Learn how to fight back with ease — and win. Get the book here.

Read The Watchdog Nation manifesto here!

Visit Watchdog Nation Headquarters

Like Watchdog Nation on Facebook

Watch Watchdog Nation on YouTube

Twitter @DaveLieber

Fort Worth has a reputation for being difficult to deal with when it comes to public records requests. A Star-Telegram examination last year showed that the city delays requests by going to the state attorney general far more than other Texas cities of its size.

I decided to test the system with a request. The results are worse than I expected. The city’s grade is an easy F, with no room for appeal.

Here’s what happened: On Nov. 11, I asked to see the e-mails and personnel record of a city police sergeant. On Nov. 29, the city asked the Texas attorney general whether it had to release the records, with a city attorney saying he believed that the records could be kept secret.

The attorney general’s office ruled Feb. 7 that the records should be released because the city failed to meet a legal deadline. The AG’s letter to the city states: “You have not submitted to this office comments explaining why the stated exceptions apply, nor have you submitted a copy or representative sample of the information requested. “Therefore, we have no choice but to order the city to release the information.”

Then I waited some more. Nothing.

- – - – - – - – - – - – - – - – - – - – - – - -

More Watchdog Nation News:

Watchdog Nation Partners with Mike Holmes

America meets Watchdog Nation/Listen to Fun Radio Interview

Watchdog Nation Debuts New e-Book and Multi-CD Audio Book

- – - – - – - – - – - – - – - – - – - – - – - -

So on Feb. 28, I filed a complaint with the attorney general. A month later, the office notified Fort Worth of the complaint. Then on Saturday, April 2, at 7:16 p.m., the city attorney responsible for my request, C. Patrick Phillips, finally responded. He provided about 80 of the sergeant’s e-mails and other records, fulfilling my request.

“As for the delay in release of these records, I offer you my personal apology,” Phillips wrote in an e-mail. “Please trust that such delays are contrary to the intentions of the City Attorney’s Office, the Police Department, and the City of Fort Worth.”

Four days later, on April 6, Phillips’ employment with the city ended. One of his supervisors won’t say why.

“I can’t talk about the details of a personnel case, but he’s no longer with the city,” Deputy City Attorney Peter Vaky said. Vaky has been placed in charge of open-records management. He says he and new City Attorney Sarah Fullenwider are “taking steps to make sure that will never happen again.”

He declined to talk about what happened in my case, but he said there is no current backlog of requests in the open-records office.

Reached Friday, Phillips said he couldn’t comment. “Dealing with anything having to do remotely with a former client is not anything I can talk about,” he said. Phillips, 33, had worked in the city attorney’s office for four years.

Critics have said that the city relies on attorney general opinions on some requests to delay releasing the information. The city denies that.

In my test case, I requested information that had caused the city trouble once before. A Fort Worth police officer had sought the e-mails of the same police sergeant and couldn’t get them.

A year ago, when I interviewed Phillips about the matter, he told me that the officer had received all the available information. He explained that the e-mails probably no longer existed. “We just don’t have it,” Phillips told me last year.

Fetching the e-mails from a backup server would be difficult and unnecessary, the attorney general’s office had ruled. But the 80 e-mails that I received included ones that Phillips said the city didn’t have.

I checked last week with the officer who requested those records more than two years ago, and he still hasn’t received them.

Vaky declined to comment, saying he wasn’t familiar with what Phillips had done or said or why the e-mails had suddenly become available.

Last year, Phillips told me, “We know the process is ugly. … We would like it to get better.”

My test case shows that didn’t happen. But the city says it is now on top of it. We’ll see.

# # #

Thanks to TexasWatchdog.org for picking up this story here.

Visit Watchdog Nation Headquarters

Like Watchdog Nation on Facebook

Watch Watchdog Nation on YouTube

Twitter @DaveLieber

Dave Lieber, The Watchdog columnist for The Fort Worth Star-Telegram, is the founder of Watchdog Nation. The new edition of his book, Dave Lieber’s Watchdog Nation: Bite Back When Businesses and Scammers Do You Wrong, is available in hardcover, as a CD audio book, ebook and hey, what else do you need. Visit our store. Now revised and expanded, the book won two national book awards in 2009 for social change. Twitter @DaveLieber

Here’s the latest information on public officialdom’s assault on the Texas Open Meetings law.

A federal judge in West Texas ruled in April 2010 that the Texas Open Meetings Act can stand as it is. Public officials who break the law by holding secret discussions can be fined and go to jail. That hasn’t happened once since the law was passed more than 40 years ago. But that hasn’t stopped some officials from challenging the law.

The fight is not over. A lawyer challenging the law on the grounds that it violates public officials’ free-speech rights says his side will appeal. The case could end up in the U.S. Supreme Court, he says.

——-

Read the complete transcript of the Texas Opens Meeting Act trial here.

——-

The issue comes down to this: If a quorum of public officials talks to one another or to others about government business outside of an announced public meeting, are the officials violating the law?

Some elected officials say the answer is not clear. Different lawyers give them different answers. That causes confusion, they say.

“No one can answer that question as to what we can and cannot do,” says Arlington Councilman Mel LeBlanc, who testified against portions of the law at the trial.

The law “limits our ability to discuss matters legally with our constituents as well as other council members for fear of being prosecuted and imprisoned,” says Hurst Councilman Henry Wilson, who also testified at the trial.

- – - – - – - – - – - – - – - – - – - – - – - -

More Watchdog Nation News:

Watchdog Nation Partners with Mike Holmes

America meets Watchdog Nation/Listen to Fun Radio Interview

Watchdog Nation Debuts New e-Book and Multi-CD Audio Book

- – - – - – - – - – - – - – - – - – - – - – - -

Keith Elkins, executive director of the Freedom of Information Foundation of Texas, says the court challenge is based on untruths. Public officials violate the law only if enough members to make up a quorum gather and talk about public business out of the public’s eye.

“If you have four or six council members sitting at a diner having breakfast and talking about sports or Justin Bieber, that’s not a violation of the Open Meetings Act,” Elkins said. “If they’re talking about city business, it is.”

And nothing in the law prevents a public official from talking with a constituent or answering a constituent’s question, he said.

He adds, “Public officials are held to a higher standard. If they are uncomfortable, perhaps they shouldn’t run for office.”

Rod Ponton, the city attorney for Alpine and one of the lawyers challenging the law, told me, “We think the district judge was flat wrong. … Every public official in Texas that deals with [the Texas Open Meetings Act] on a daily basis knows that his First Amendment rights are being infringed upon.”

He continued, “They talk about how they can’t talk with each other except at a meeting. They can’t communicate with each other the way the members of the Legislature do. That’s a chilling of political speech. You can talk about the weather. You can talk about sports. But you can’t talk about public matters. … There’s no reason they shouldn’t be able to have informal discussions among themselves all the time.”

If they did that, though, the public may not know how government decisions are made, critics say.

Under Texas law, notice of a public meeting must be posted 72 hours before it begins. The posting includes the agenda. Only what is posted can be discussed at the meeting.

The law allows for closed meetings when officials discuss certain matters such as real estate purchases, lawsuits or some personnel issues.

Here’s an example given by Hurst Councilman Wilson at the November trial that he says shows how his free-speech rights are being violated:

The city was looking at changing its gas-drilling ordinance to toughen water and air quality standards. Because the council couldn’t discuss the issue privately, Wilson testified, the questions instead were asked of Chesapeake Energy officials in a public forum.

“We generated a very severe adversarial relationship with the drilling company that we were really looking at doing business with because the city had sold a lot of their mineral rights or given permission to the companies,” Wilson testified.

He added, “It presented a problem in our relationship with Chesapeake. … We ended up having to air all our concerns and be on the opposite side of the issues in the public with them.”

In his ruling, released last week, U.S. Judge Robert Junell writes, “Open meetings enable public discussion and discourage government secrecy and fraud.”

Public officials “are merely asked to limit their group discussions about these ideas to forums in which the public may participate.”

He continued, “Governmental bodies have no First Amendment right to conduct public business behind closed doors. TOMA ensures that governmental bodies perform their duty, which is informing Texas citizens about public affairs.”

The same judge ruled similarly in 2006. Two years ago, his ruling was reversed by the 5th U.S. Circuit Court of Appeals. The case will now be appealed with that same Louisiana-based court.

If Junell is reversed again, the U.S. Supreme Court could eventually hear the case. At that point, the Texas case could have implications for open government across the land.

Visit Watchdog Nation Headquarters

Like Watchdog Nation on Facebook

Watch Watchdog Nation on YouTube

Twitter @DaveLieber

Are you tired of fighting the bank, the credit card company, the electric company and the phone company? They can be worse than scammers the way they treat customers. A popular book, Dave Lieber’s Watchdog Nation: Bite Back When Businesses and Scammers Do You Wrong, shows you how to fight back — and win! The book is available at WatchdogNation.com as a hardcover, CD audio book, e-book and hey, what else do you need? The author is The Watchdog columnist for the Fort Worth Star-Telegram. Visit our store. Now revised and expanded, the book won two national book awards for social change. Twitter @DaveLieber

You thought Facebook and Twitter were ways to tell the world what you had for breakfast? Or that cellphone texting means you can ask your spouse what’s for dinner?

Well, what about school board and City Council members who use those social media and communication tools to subvert the concept of open government?

The council member who text-messages another member during a meeting and asks, “How am I supposed to vote?”

The school board members who use Facebook’s private chat to decide which contractor should get hired for a multimillion-dollar job.

According to state law, officials are not supposed to deliberate or discuss public matters at any unannounced meeting held in private. And the public has a right to inspect or copy many government records, which can include e-mail and other electronic postings.

The Texas attorney general’s office is strict about that.

But the new communication tools have become “second nature” to everyone, including public officials in Texas, said William McKamie, a San Antonio lawyer who serves as city attorney for several municipalities. People feel more uninhibited about communicating when using them, he said.

That can lead to trouble.

It did lead to two debates Friday in Fort Worth at the annual meeting of the State Bar of Texas.

McKamie suggested that state lawmakers clarify rules about social media for public officials, and he bristled at the idea that elected officials should be so limited in discussing public business.

Sitting beside him on an open-government panel, Wanda Garner Cash, a University of Texas journalism professor, had a different view. The Texas Public Information Act, she said, should apply to all forms of communication. That includes, as an example, smartphones regardless of who owns or is paying for them, she said.

“I disagree with that,” McKamie said.

Cash cut him off: “Public communication is public communication.” Even if an official uses a personal cellphone to discuss public business, it’s still subject to the state law, she said.

But McKamie said public officials “don’t give up their First Amendment rights when they get elected to an office.”

“It has nothing to do with First Amendment rights,” Cash countered. “It has to do with conducting business — whether it’s done on your home phone or your office phone.”

The debate is no longer just theoretical.

Several Texas cities and public officials (including Arlington City Councilman Mel LeBlanc) have sued to remove the criminal penalties in the state’s Public Information Act. A trial is scheduled for fall in a Pecos federal courtroom.

As Rod Ponton, Alpine city attorney and a lead lawyer on the case with Houston attorney Dick DeGuerin, explained it at a second panel discussion Friday: “The First Amendment was written more than 200 years ago and, of course, we didn’t have Twitter. We didn’t have e-mail. We didn’t have electricity. But the idea was that political speech should be protected.”

Ponton said the state law has had a chilling effect on elected and appointed officials’ communication because they are afraid that they could go to jail for up to six months if caught breaking the law.

State Rep. Carol Kent, D-Dallas, also on the panel, said that during her five years as a Richardson school board member, the threat of a criminal conviction “certainly yanks your chain a little bit, and it gets your attention.”

“When you come into office and you take the oath, you know you’re going to face a higher level of scrutiny for the conversations that you have.

“You have to behave differently. You’re going to have to be more careful about the things you do, the things you say.”

Ponton called that unfair. “Public officials shouldn’t lose their rights to speak,” he said.

Hardly, according to panelist Keith Elkins, executive director of the Freedom of Information Foundation of Texas. He said his group could find only one example in 40 years where a Texas elected official was convicted and served jail time in such a case.

“I don’t think there is a real rush to the courthouse where overzealous prosecutors are trying to put elected officials in jail. … We hear pretty much hear the opposite.”

People contact a district attorney for help when they believe that their elected officials violated the open-meetings law with private deliberations, but prosecutors don’t want to take the case, he said.

What’s more, “if you only had one violation, something must be working.”

But Ponton said the use of social media may lead to more prosecutions. “Because if tweets go around, or e-mail or Facebook, the discussion of public matters is not posted,” he said. “Now you have an electronic trail which proves there has been political discussion among a quorum, and they could be indicted.”

Kent agreed that it was “chilling in a sense” but said that it was also “being ethically responsive to the notion that the public has a right to know what a school board is thinking about or discussing.”

While McKamie called for state lawmakers to rewrite rules, Cash said little needs to change. Whether you’re conducting public business “in an official meeting or on the hood of a pickup truck,” she said, it’s still the people’s business.

What do you think?

# # #

Want to learn more and see the documents involved? Click on this WatchdogNation.com link to read an earlier post.

# # #

Dave Lieber, The Watchdog columnist for The Fort Worth Star-Telegram, is the founder of Watchdog Nation. The new 2010 edition of his book, Dave Lieber’s Watchdog Nation: Bite Back When Businesses and Scammers Do You Wrong, is out. Revised and expanded, the book won two national book awards in 2009 for social change. Twitter @DaveLieber

When Lucille Drain resigned in November from the Newark City Council, she was 96 years old and the oldest serving public official in Texas. But her age wasn’t what did her in.

After 26 years on the council, she wrote in her resignation letter: “The main reason for resigning early before term ceases, I care not to work with new council members through computers with all the questions and answers cut and dried before meetings.”

As first reported in the Wise County Messenger, she said she believed that city business was being discussed by council members and the mayor via e-mails, instead of in a public forum.

“I don’t think a city can be run by computers,” she stated.

Bless her for telling it like it is. In many towns and school districts, e-mail communication, texting, phone calls and face-to-face talk about the people’s business is conducted by public officials away from publicly announced meetings where the work of government is supposed to take place. But violations are difficult to prove.

One of the few ways to enforce the Texas Open Meetings Act is the fear among officials that if they violate the law, they could get caught. The penalty is a $500 fine and up to six months in jail.

As I first reported in the Dave Lieber column in the Jan. 8, 2010 Watchdog column in the Fort Worth Star-Telegram, now there’s an attempt under way by some public officials to remove criminal penalties from the law. These officials, acting in what appears to be a highly coordinated effort, are saying that the open-meetings law is too strict.

Although 1989 was the last time a public official in Texas went to jail for this offense, some public officials claim that the law is a violation of their right of free speech. They say they want it changed because they should be allowed to talk to whomever they want to without the threat of jail hanging over their heads.

Under the law, a majority of members, or quorum, of a public board is prohibited from discussing government business outside an official meeting. According to the most widely accepted interpretation of the law, the public is not prevented from talking to government officials, but in some circumstances, officials are not allowed to fully respond in a public meeting unless the topic has been listed on a pre-published meeting agenda.

Also, the “free speech advocates” say they are afraid that e-mails can be used against them

Any movement to decriminalize the open-meetings law and roll back open government in Texas during this era of greater accountability might sound absurd on its face. Approximately 20 states tie some form of strict penalty to their open-meetings laws, open-government experts says.

However, one of Texas’ best lawyers, Dick DeGuerin of Houston, is co-counsel in a federal lawsuit filed last month in Pecos that challenges the open-meetings law on free speech grounds. Here is the lawsuit challenging Texas’ open records law.

The lawsuit states, “Citizens are afraid to talk to the officials who represent them, and those same officials are afraid to talk to the citizens, for fear of being indicted and prosecuted.”

Among those public officials listed as plaintiffs in the case: Arlington City Councilman Mel LeBlanc, who told my newspaper, the Fort Worth Star-Telegram, last month, “It’s an insult to individuals that spend a good portion of our lives in community service that if we misinterpret the Open Meetings Act in its vagueness that we can go to jail or be fined.”

At its annual conference, held in October in Fort Worth, the Texas Municipal League, which lobbies lawmakers on behalf of cities, passed a resolution submitted by the city of Sugar Land calling for decriminalization.

The resolution supports legislation next year “to amend the Open Meetings Act by replacing the criminal enforcement provisions with less restrictive penalties that balance the First Amendment right of governmental officials.” The replacement penalty most talked-about would overturn any decision made by a body if the open meetings act has been violated. This already exists as a noncriminal penalty under the current law.

Further momentum for the cause came when the 5th U.S. Circuit Court of Appeals ruled last year in a lawsuit filed by Alpine City Council members that public officials are protected by free speech even when they conduct “their official duties.”

Read the 5th Circuit’s opinion that pertains to Texas open government here.

That gives hope to those who want to remove the threat of a fine or jail time.

Frank Sturzl, executive director of the Texas Municipal League, says he believes that opinion shows that in the future, a federal court could rule that Texas’ law is too tough on public officials. Read his column “Texas Newspaper Lash Out At City Officials” on tml.org here.

Alpine City Attorney Rod Ponton, DeGeurin’s co-counsel in the lawsuit, told me: “We are fully in favor of open government and no ’secret deals.’ However, we favor individual First Amendment rights over government laws that censor elected officials.

“There is a balance that allows free communications and open government. Texas goes too far. Elected officials lose their free speech rights when they take office, and that violates the First Amendment.”

Sharply countering that, Texas Attorney General Greg Abbott’s office released a statement: “In this case, elected officials, municipalities and critics of open government are turning the First Amendment on its head. The First Amendment is furthered, not frustrated, by open meeting laws. And for that reason open meetings laws have been upheld under the First Amendment by every court . . . that has ever considered the issue.”

Blunt talk also comes from open-government advocate Keith Elkins, executive director of the Freedom of Information Foundation of Texas. He says, “Anybody that is having trouble following the law as it applies to open meetings of government officials should reconsider running for public office rather than trying to change the law.”

Meanwhile, momentum builds. The Wichita Falls City Council voted three weeks ago to join Alpine, Big Lake, Pflugerville and Rockport as co-plaintiffs in the current federal lawsuit.

Watchdog Nation will keep an eye on this one.

***

Dave Lieber, The Watchdog columnist for The Fort Worth Star-Telegram, is the founder of Watchdog Nation. The new 2010 edition of his book, Dave Lieber’s Watchdog Nation: Bite Back When Businesses and Scammers Do You Wrong, is out. Revised and expanded, the bookwon two national book awards in 2009 for social change. Twitter @DaveLieber