Pflugerville public servants to fight transparency provision

Public servants say state act violates their free speech rights.

by Suzannah Gonzales / AUSTIN AMERICAN-STATESMAN
Date: 10-15-2009

Source: Austin American-Statesman

Pflugerville council members voted unanimously Wednesday to join a lawsuit, yet to be filed, that will claim the Texas Open Meetings Act violates their free speech rights.

“Our lawsuit is not trying to throw out the entire Open Meetings Act. We’re only asking to declare unconstitutional the criminal provision that says that council members can’t talk to each other except at a meeting,” said Rod Ponton, who is co-counsel in the matter. “We do believe that the First Amendment gives public officials the right to speak to one another or the public.”

The potential suit would come after a similar one was dismissed last month by the 5th U.S. Circuit Court of Appeals in New Orleans. Texas Attorney General Greg Abbott and others argued that the Alpine council members who challenged the act lacked legal standing because they were no longer in office. After the dismissal, public officials across the state, including in Pflugerville, contacted Ponton, who is Alpine’s city attorney, and expressed interest in joining a new suit, Ponton said.

The new suit is expected to be filed against the State of Texas and Abbott in the next month in federal court in the West Texas city of Pecos, said Ponton, who is representing the elected officials alongside Houston lawyer Dick DeGuerin.

In addition to Pflugerville Mayor Jeff Coleman and four council members — one council member was absent from Wednesday’s early morning vote — 15 elected officials from cities across the state, including Sugar Land, have joined the challenge as co-plaintiffs, Ponton said. He declined to identify all 15 officials. Ponton said cities, including Pflugerville, also will be named as co-plaintiffs in the matter, and he said he anticipates statewide organizations will also participate.

The act prohibits a quorum of members of a governmental body from deliberating in secret and is punishable by up to six months in jail and a $500 fine.

Elected officials “don’t want to go to jail. If they’re not sure (they’re violating the act), they’re just not going to say anything. And that’s what chills free speech,” Pflugerville City Attorney Floyd Akers said.

“I understand the other side. You don’t want corruption. But at some point, it gets a little onerous and you actually have the opposite effect. If you shut people up, you inhibit the dissemination of ideas, which is the purpose of the whole democratic process,” Akers said.

“Jail time is not the least restrictive means of promoting open government,” said Scott Houston, the director of legal services for the Texas Municipal League, which filed an amicus brief in the previous lawsuit in support of Alpine city officials but has not decided whether to support or join a new suit.

But Jim Hemphill, a member of the board of directors of the Freedom of Information Foundation of Texas and a lawyer who has represented the American-Statesman, said the Open Meetings Act and the First Amendment promote the public’s right to transparency in government.

“It’s kind of ironic that public officials are saying that the First Amendment requires government to be less transparent to the people,” Hemphill said. “It seems in some way it’s turning the First Amendment on its head.”

The earlier suit came after Alpine Council Member Katie Elms-Lawrence sent an e-mail in 2004 to three fellow council members about a pending water project. One of them wrote an e-mail response and sent it to the other three. That was problematic because four council members represent a quorum for that body. Then-District Attorney Frank Brown launched an investigation that ended with the indictments of Elms-Lawrence and Council Member Avinash Rangra in violating the Open Meetings Act.

Brown said he dismissed the cases when one of the other two council members recanted earlier testimony that he had received the e-mail.

Rangra and Anna Monclova, another council member, sued to challenge the law.

Though the 2004 incident will be mentioned and is the basis of the new challenge, Ponton said the new one will include incidents in which the plaintiffs have been threatened with prosecution for violating the act.

Akers cites this local example: Days before the May election, a supporter of Pflugerville council candidate Erica Anne Grignon filed a complaint with prosecutors alleging that her opponent, incumbent Victor Gonzales who later won, may have violated the act at a campaign event. A quorum of Pflugerville council members attended, and Gonzales spoke on various city-related topics, the complaint said.

The complaint is under review by the Travis County district attorney’s office.

The Alpine lawsuit caused a stir nationwide among media organizations and open government groups, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, which filed an amicus brief in that suit in support of Brown and Abbott. She said a new suit likewise could cause alarm.

“Sometimes the audacity of public officials and their complete lack of understanding of what it means to be a public servant astonishes me” Dalglish said. “Quite honestly, the Texas open meetings statute does not seem to be onerous. It’s very mainstream.”

sgonzales@statesman.com; 445-3616