Empower Texans sues Watauga, city officials over ordinance prohibiting secret recordings
A foundation connected to a the conservative political advocacy group Empower Texans is suing Watauga and top city officials over an ordinance that the group alleges violates its reporters’ First Amendment rights.
In a federal lawsuit filed Thursday in Fort Worth, the Empower Texans Foundation — a nonprofit connected with the political advocacy group and its news site Texas Scorecard — argues that a recently adopted city ordinance that prohibits citizens from secretly recording city officials without giving them notice is unconstitutional, and seeks a permanent injunction from it being enforced.
In addition to the city, the lawsuit is also filed against Watauga Mayor Art Miner, Police Chief Robert Parker and City Manager Andrea Gardner for their roles as officials tasked with enforcing the ordinance.
Watauga spokesman Bradley Frawley wrote in an email Friday that, “The City of Watauga does not comment on matters that are pending litigation.”
The lawsuit stems from an ordinance Watauga City Council members voted to adopt on April 13 — despite opposition from a council member. During the city council meeting, Gardner said the ordinance was proposed due to issues in the past with city council members recording conversations with city employees and residents.
The prohibition on recording applies to official city business involving city officials and employees, and recordings are only allowed if “advanced notice” is given and “conclusively established,” meaning that the recording begins with an announcement that it is occurring in addition to acknowledgment from the parties being recorded.
There are limited exceptions, such as public portions of meetings conducted under the Texas Open Meetings Act, and official law enforcement activity. Violating the ordinance is subject to misdemeanor charges and a $500 fine.
The lawsuit notes that recording conversations with government officials is a routine part of the newsgathering process for Empower Texans Foundation’s reporters. But because of the ordinance, its reporters “are unable to engage in secret recording of interactions they have with Watauga officials, including in-person, over the phone, or on-line,” the lawsuit reads.
The lawsuit claims that because of the ordinance’s terms, a single reporter’s violation could subject many of the organization’s staff to criminal penalties “as persons who ‘allow another person to violate’ the anti-recording ordinance.”
As a result, the foundation has instructed its reporters to cease recording Watauga city officials, preventing the foundation from fully exercising its First Amenment rights, the lawsuit alleges.
Texas is a one-party consent state, meaning that generally a person may lawfully record a conversation or phone call if they’re a party to it.
Allegations that stemmed from a secret recording rocked the Texas House last year, after Empower Texans CEO Michael Quinn Sullivan alleged that during a June 12 meeting House Speaker Dennis Bonnen appeared to offer writers of the group’s news site long sought-after House press credentials in exchange for the group’s firepower in targeting 10 of his fellow Republican incumbents in their re-election bids.
In October, Bonnen announced he would not seek re-election to the Texas House after a wave of calls for his resignation following the release of a previously secret recording that largely supported Sullivan’s allegations.
Former councilman Scott Prescher, who resigned last month, said he warned other council members that Watauga would likely face a lawsuit if they voted to adopt the ordinance prohibiting secretly recording city officials without notifying them in advance.
During the April 13 meeting, Prescher requested to have the ordinance removed from the consent agenda so that the council could discuss it.
“I tried pointing out that terms were not defined, such an electronic communication. Does that mean text message or an email?” he said.
“I can’t save a text or voicemail on my phone without notifying an official that I’m saving a voicemail,” he said.
Prescher added that 99% of the public won’t be affected by the ordinance, but he said there are people who have had negative experiences with city officials, and felt that they needed to record interactions with them.
“If you feel intimidated, who is going to say, ‘Hey, I feel uncomfortable with you. I feel intimidated, so I’m going to record you,’” Prescher said.
Prescher said he also believes that when the council voted to remove him from two city boards on April 20, it was because he informed the public about the ordinance prohibiting secret recording of city officials.
This story was originally published May 1, 2020 at 2:08 PM.
