By James Rincon

Pflag Reporter

Pflugerville is one of four cities named as plaintiffs in a lawsuit filed against the Texas Attorney General and the state of Texas that challenges the constitutionality of provisions in the Texas Open Meetings Act.

Mayor Pro Tem Victor Gonzales is also a named plaintiff in the case, which originated in the city of Alpine and will be brought before a U.S. District Court by lawyers Dick DeGuerin of Houston and Rod Ponton of Alpine.

The lawsuit focuses on Section 551.144 of Texas Governmental Code, which prohibits a quorum of elected officials from communicating outside the setting of a noticed public meeting.

In the suit’s petition DeGuerin and Ponton argue that “TOMA is overbroad and vague,” and causes the plaintiffs to “‘self censor’, e.g., not speak to fellow city council members,” which “causes a violation of each plaintiffs’ First Amendment rights each time he or she censors.”

Pflugerville City Attorney Floyd Akers said the criminality of this provision can have a large affect on officials in small cities.

“There are 1,100 cities in Texas, and only four of them are Dallas, San Antonio, Houston and Austin. Most of them are Pflugerville and smaller – in fact much smaller,” Akers said. “In Pflugerville, like in many smaller towns, many of our council members are members of several civic organizations, whether it be the Lions Club or the Chamber of Commerce.

“So for instance, the mayor gets asked to a speak to the Chamber of Commerce about a bond election for city hall, and he shows up to speak and lo and behold two other council members are there because they’re also members of the chamber of commerce – because they’re all business leaders here in Pflugerville. Now he can’t speak. So now not only has that chilled his free speech rights, that has also chilled the free speech rights of the citizens that are there at the chamber of commerce meeting to hear from him.”

In a Dec. 2 editorial column, the Fort-Worth Star Telegram called the argument against TOMA “an exaggerated and flawed reading of the open-meetings law,” arguing, “the law doesn’t ban unfavorable messages; it directs where and when officials can talk about public business. And it’s for a compelling reason anyway: so people can stay informed and keep tabs on their elected representatives.”

Plaintiff and city councilmember Gonzales said the case it not meant to veil officials actions, but rather to remove the risk of jail time for speaking with fellow council members.

“It’s not that we want to remove ourselves from the laws that describe how we have to behave regarding open records and open information, it’s that we don’t want to suffer the criminal and legal implications if in fact somebody does file a charge because somebody can walk by three council members and say they’re having an illegal meeting,” Gonzales said. “They can legally go down to the district attorney’s office, then they have to investigate. They have to come ask us what we were talking about. And it’s just a process that is really awkward.”

Gonzalez has first-hand experience with watchdogs of this TOMA provision. Supporters of his opponent filed charges against Gonzales for allegedly violating TOMA during a campaign event before his May re-election. City council members were present at the campaign event, during which Gonzales answered a question from the crowd that allegedly qualified as discussing city business in the presence of a quorum of officials. The initial complaint was dropped due to having been filed in the wrong county, but when filed properly, Williamson County launched an investigation into the incident that resulted in dismissal of the charges.

“As elected officials, particularly from the city of Pflugerville, we do want to hold elected officials accountable; we do want to make government transparent; and we want to have open accessibility for the citizens, and we have not and will not try and circumvent that,” Gonzales said. “The flip side of that is – as volunteers, we don’t want to be worried about having to put on cuff because we happen to meet at the wrong place at the right time.”

Former Georgetown city councilmember Ercel Brasheer wrote the ethics ordinance for Georgetown. He said skepticism of public officials is normal, but the close affiliations of small town residents complicate the issue.

“The fine line that you have to walk is when do we, under that affiliation, serve the benefits of the community and when is this to the detriment of the community? I don’t think you can draft a rule that keeps public officials from being exposed to the claims that they’re up to no good because they happen to physically occupy the same space and time,” Brasheer said. “Of all the people who serve the public by volunteering to participate in government in the state, the vast majority of those are sitting in positions that pay no money, required a disproportionate amount of time; and to say that there’s criminal behavior simply because you run into three people at the barbecue and you all sat at the same table or within shouting distance, to me, seems extreme. Certainly there is behavior that ought to be criminal behavior, but a simple gathering of like interest does not appear to need jail time.”

But whether city officials are meeting coincidentally at a barbeque or in smoke-filled rooms hashing out city policy, Attorney General Greg Abbott said the provisions in TOMA protect freedoms, not chill them.

“Under Texas law, taxpayers have a right to know what their elected representatives are doing on their behalf,” Abbott’s office said in a release. “If a quorum of public officials wants to discuss public business, the law requires that they do so in public. 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 meeting laws have been upheld under the First Amendment by every court in the country that has ever considered the issue.”