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 e-mails 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 are 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, e-mailing, 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.

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