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Denton mayor wants to criminalize disclosure of closed session talks. Experts in the law say that would be unconstitutional.
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Denton Mayor Gerard Hudspeth has proposed making it a crime for council members to reveal publicly what’s discussed in closed meetings. But experts on the Texas Open Meetings Act and federal law say that would be a violation of those council members’ First Amendment rights.

Joseph Larsen

“These people are not employees,” said Joseph Larsen, an attorney who represents the Freedom of Information Foundation of Texas. “The government can direct an employee on what to say and what not to say, but you cannot do that with an elected official. The 5th Circuit [Court of Appeals] has looked at that and rejected that theory altogether. You can’t do it.”

On Tuesday, Hudspeth suggested making disclosure of closed session discussions a crime while responding to council member Deb Armintor’s request that officials record the audio of every closed session.

‘A non-issue’

Gerard Hudspeth

“I think it’s important for those watching to understand this has been a non-issue,” he said. “This body — not all members here — but this body reduced the penalties for exposing information that is disclosed in closed session. If we’re talking about tightening things up, let’s go back to making it punitive to share what’s happening in closed session.”

Armintor was not successful in receiving consensus on recording closed sessions on Tuesday, with only Paul Meltzer showing support. Meanwhile, Hudspeth resurrected this issue from 2015, when Larsen sent a letter to then-Mayor Chris Watts and the Denton City Council cautioning that adopting an ordinance making it a crime for elected officials to talk to the public and the press about issues raised in closed meetings is unconstitutional.

Letter to city council

Chris Watts

“I’m surprised it happened so quickly again in the same place,” Larsen said. “You would think there would be some institutional governance, and you’ve got case law and AG opinions on this. I don’t know what’s wrong with these people. Do they not understand the democratic process?”

That ordinance from 2015 was repealed. Watts said this past week he could offer little else on the issue.

“I don’t know the status anymore,” he said. “That was six years ago. And six years ago, we made a decision based on information we had at the time. I haven’t kept up on the reiterations of that.”

Hudspeth said he stands by what he said during the council meeting on Tuesday, when he asserted that the City Council should “go back to making it punitive to share what’s happening in closed session.”

Deb Armintor

“That is something I can get on board with,” he said Tuesday. “That has real teeth. Now, we’re talking about misdemeanor charges. Let’s make it punitive again to share what happened in closed session. That is a first step.”

Armintor at the time challenged Hudspeth on the legality of doing that.

“It is illegal to punish free speech in that way,” she said. “That is why that [ordinance] was removed. I don’t think we should bring that back.”

Kelley Shannon, the executive director of the Freedom of Information Foundation of Texas, agreed.

Kelley Shannon

“That is a violation of First Amendment free speech rights,” she said. “We wrote a letter to the Denton City Council to that effect in 2015. I can tell you that you can’t prevent people from talking. City council members have free speech rights, and you can’t penalize them for saying what they wish to say.”

‘Very troubling’

David Zoltner, a former member of the Denton Ethics Board, was one of several people who asked the Freedom of Information Foundation of Texas to intervene in 2015.

David Zoltner

“Our mayor and mayor pro tem should both understand that closed sessions do not create ‘confidential’ information under the law,’” Zoltner said. “Nor does the law prohibit sharing that information with the press or public. Their comments during that Tuesday meeting were very troubling, in my opinion.”

Jesse Davis is mayor pro tem and an assistant district attorney for Denton County. During Tuesday’s meeting, he said he saw no reason to record closed sessions and later told the Denton Record-Chronicle that revealing information from closed sessions goes beyond First Amendment rights.

‘Not just legal consequences’

Jesse Davis

Attorney general's opinion

“It’s not just legal consequences for the individual but legal consequences for the city,” Davis said. “It’s practical consequences in contract negotiations. It’s a pretty narrow read when that [the attorney general] said you can’t criminalize the First Amendment right to free speech by elected officials. I think it’s a mistake to read it real narrowly.”

He also suggested that when council members reveal matters discussed in closed session, their motives are personal.

Denton City Attorney Aaron Leal did not respond to Hudspeth’s remarks about criminalizing council members who talk about closed-session items publicly during Tuesday’s meeting. He later declined an interview request. Instead, the city issued a statement.

“Like many policy issues, staff has provided the council with information to inform their policy discussion but does not take part in that discussion,” states an email from Ryan Adams, director of customer service and public affairs. “This is to ensure that the residents and council can remain confident that no matter the policy adopted, city staff [will] faithfully and ethically implement it. Additionally, the city attorney legal opinions and advice are provided only to city officers and employees. As a result, we will not be able to comment on this council policy discussion.”

‘Willing to follow the law’

Meltzer, the lone supporter of Armintor’s request to record closed sessions, said he’s not clear on the legality of criminalizing council members who talk about closed session items publicly.

Paul Meltzer

“I’m willing to follow the law if it can be clearly explained,” he said. “There is, in any event, a role for confidentiality when you’re talking about personnel matters, competitive issues and legal strategy or security arrangements.”

Under the Texas Open Meetings Act, the Denton City Council may enter closed session to discuss personnel matters, ongoing litigation or the possibility of litigation, real estate transactions, economic development project negotiations, and safety and security protocols.

“People think that if something’s recorded, it’s possible to put it in a lockbox until we need it for some beneficial purpose,” Davis said. “if it exists, it is possible that someone can get a judge to rule for them that it should be made available.”

Texas law only requires city councils to keep minutes of closed sessions and to place on their agendas 72 hours in advance why they may enter closed session. They are not required to record them.

‘Just absurd’

“It’s just absurd,” Larsen said. “I think they should require recording all sessions. They are anti-transparency.”

During Tuesday’s meeting, Leal said that documenting what is said during closed meetings is generally not for public consumption and is done for a specific purpose.

“Actually doing this is to ensure that you are meeting in closed session under a proper [exception],” he said then. “I know there are members of the public that may think these recordings can be used for other purposes but that is not what the law requires.”

Those recordings would be used only during trials in which the plaintiffs claim City Council members violated the Texas Open Meetings Act, Leal said.

Texas Open Meetings Act

“Anybody wanting to challenge the actual closed session — whether or not it was properly held — that is the kind of litigation that would be … in district court,” he said. “It would be filed to allege that the City Council met in closed session and didn’t have proper jurisdiction or their discussion ventured into other areas. It’s just to determine if you followed the process.”

The next Denton City Council meeting is scheduled for 3 p.m. on Tuesday.

Oft-forgotten frontline workers, school nurses rise during pandemic

March 2020 turned Laura McFerren’s life upside down and kicked off a year she could best describe as “surreal.”

She is among the dozens of local school nurses tasked with crafting and implementing many of the day-to-day pandemic safety measures now commonplace.

McFerren is a nurse at Sanger’s Butterfield Elementary where she is also the district’s coordinator for health services. That means she had plenty on her plate before the pandemic came along more than a year ago.

“I think that we realized when this hit just how flexible school nursing is,” she said Friday.

She, like many others in the industry, spent years working in hospitals and other nursing jobs before heading to work in schools.

She was among the first employees when Butterfield opened in 2008, she said, and she spent nearly 8 years in nearby Pilot Point ISD before that.

Prior to that, she was nurse for roughly 8 1/2 years at Denton Community Hospital, which is now Texas Health Presbyterian Hospital Denton. She worked in progressive care, intensive care units, surgery and several other areas before she felt comfortable working as a school nurse.

Contrary to the prevailing opinion that school nursing “isn’t quote-unquote ‘real nursing,’” McFerren said, the job has a high level of independence and thus requires a diverse and in-depth skillset.

“Like me, a lot of nurses feel they need that experience to just troubleshoot some of the things that come your way when you get into a setting like this,” she said.

That includes split-second decision-making, developing and juggling care plans for students and staffers alike, and helping to draft district health policy.

Several local school nurses said their jobs hadn’t changed much over the past year. For instance, their clinics were already engaged in many of the heightened hygiene protocols the pandemic required for most public spaces.

Instead, they said the pandemic amplified their existing work, which brought them into more direct communication with district parents.

Their treatment varied drastically depending upon what district and campus they worked at.

For instance, Argyle High nurse Sherrie Thompson, speaking during the March 15 board meeting, reported being yelled at, cursed at, called a liar and accused of various things by angry parents over the past year.

“I do not lie,” Thompson said during the meeting. “I do not make up names. I don’t know the names of all 1,300 kids. I don’t hardly get out of my office because I’m answering emails; being yelled at, hollered at, being accused of this, that and the other on the phones.”

In neighboring Denton ISD, two nurses reported no such harassment.

Both Lesa Mash and Shirl Wills, nurses at Wilson Elementary and Guyer High respectively, said their interactions with parents were overwhelmingly positive this past year.

“This year has been extremely exciting for that because I’ve gotten to work with and get to know parents more so than before,” Mash said.

Wills said the pandemic’s early days saw longer work days, but that faded as procedures were put into place. What has remained are the frequent communications with families and faculty to update them on how the campus is doing.

“Until, I would say, probably a month ago, [my work] was just 99-100% COVID, and now I feel that we’re seeing a return to — we’re seeing the normal stuff,” she said.

Back in Sanger, McFerren agreed the majority of parents are grateful for the help she and others nurses could provide.

“There has been a wide variety of responses from families, and, you know, everyone has a different stance on [the pandemic], it seems,” she said.

Sometimes that meant families were upset and disagreed with the district’s approach to keeping students safe. Fortunately, she said, most of that anger was directed at county, state and federal agencies whose guidelines school districts followed instead of the districts themselves.

One of the most prominent pandemic measures came in the form of contact tracing, which school nurses were at the heart of.

Mash and Wills said DISD nurses were responsible for contact tracing when infected students or staffers had been on campus, but principals and other campus leaders were charged with communicating findings with families.

Similarly, McFerren said Sanger ISD nurses were the primary contacts for contract tracing efforts on their campuses.

Those efforts were responsible for many interactions between nurses and families, leading some parents to admit they didn’t realize the extent of what school nursing entails.

For now, each of the nurses is looking hopefully toward shrinking coronavirus infection numbers as we draw closer to the school year’s end. If things continue at this rate, they might have a normal school year come fall.

McFerren said nursing in general, and school nursing in particular, isn’t typically seen fully for what it is: “We work behind the scenes, and this year has kind of pulled our voices up into the forefront as we’ve just kind of seen the reality of COVID hit.”

Americans desperate to get out set stage for gasoline comeback

Americans are getting ready to rekindle their love affair with the open road, unleashing a full-fledged recovery for gasoline that could send demand to a record.

Traffic is already roaring back in cities like Houston as offices reopen. Things will really start taking off this summer as pent-up travel demand finally busts out thanks to the increase in vaccinations. After almost half of Americans ended up canceling trips in 2020, many are planning to take an extra week of vacation this year to make up for lost time. Theme parks are gearing up for an influx of visitors, and attendance at national parks is expected to swell.

Demand is predicted to be so hot that Phillips 66 is set to reverse the flow of one of its pipelines starting May 1 so it can carry gasoline from Texas into Denver as more tourists head west.

Charles Ocasek, a 24-year-old, is one of them. In late May, he’s hitting the road for the first time since the pandemic started, driving his 2004 Nissan Pathfinder from the Chicago suburbs out to the Rocky Mountain resort town of Telluride, Colorado, for a meet-up with friends. He’s been living with his parents who are in their 60s, so the specter of getting and spreading COVID kept him from traveling until now. But by next month, he’ll be fully vaccinated, and he’s planning more trips for the summer.

“I’m tentatively planning on taking a month or a month-and-a-half and doing a multi-state road trip all over the country,” Ocasek said.

The surge in consumption means gasoline is likely going to be even more expensive than the U.S. government is forecasting. The Energy Information Administration last week said average pump prices this summer will be more than 30% higher than last year at $2.78 a gallon. But many analysts are estimating prices will hit $3 a gallon for the first time since 2014.

Rising gasoline prices will be another marker of inflation that impacts Americans unevenly. Just like soaring food bills, more expensive fuel hits harder for lower-income families, with the costs making up a larger share of spending. That comes amid the unequal economic recovery, with the Black unemployment rate still trending high and lower labor-market participation among Americans without college educations.

Meanwhile, crude traders are widely anticipating a meaningful return of fuel demand in the world’s largest oil consuming country to help drive the next leg higher in prices.

A big part of oil’s rally so far this year has been on the supply side, with the OPEC+ alliance displaying strict output management and higher prices not yet drawing U.S. shale producers out in force. But crude has pulled back from multi-year highs in recent weeks, and will continue to face resistance until concerns over consumption start to fade.

“Prices are higher today than where they were pre-pandemic, despite demand not all the way back,” said Peter McNally, global head for industrials, materials and energy at Third Bridge. “Vaccines are now being mass-distributed to the biggest consumers of energy, as we’re getting to business travelers and family vacationers, which we haven’t seen to date.”

One of the most bullish predictions for fuel use comes from Mark Le Dain, vice president for strategy at refinery consultant and software company Validere, founded at Harvard. He says this summer will be the strongest one ever for gasoline demand, beating the previous all-time high set in 2019. He cited an increase in bookings for national and state parks and a shortage of rental-car availability along with the return to work from people who haven’t gone back yet.

For a record 2021 to happen, Americans will have to add about 1 million barrels of gasoline consumption a day to levels as of March 26. The extra portion alone would be enough to fill 1.5 million empty F-150 Ford pickups.

Even so, “there are a lot of things aligning right now to show demand being strong,” Le Dain said.

National retail prices for gasoline averaged $2.87 on Wednesday. As demand strengthens this summer, the price will hit at least $3, according to Patrick DeHaan, head of petroleum analysis at retail tracker GasBuddy, Robert Yawger, head of the futures division at Mizuho Securities and Trisha Curtis, chief executive officer at analysis firm PetroNerds in Denver.

“I’m not sure when it happens, but yes, it happens,” Curtis said.

A surge in gasoline burning will also bring a jump for greenhouse gas emissions after declines in traffic congestion helped to clear the air last year.

It’s not just road trips that will boost demand for fuels.

U.S. airlines are bringing back more pilots as they prepare for a travel rebound, and jet fuel consumption is on the rise. Still, that segment of the oil market has much further to climb before hitting pre-pandemic levels.

Outside of travel, another linchpin for the oil recovery will be how many people burn fuel to go back to work, and for how many days a week.

“There is a slow return back to offices for workers, but it takes time,” said Jeff Lenard, vice president for strategic industry initiatives at the National Association of Convenience Stores.

One thing that could scuttle the recovery would be a spike in COVID-19 cases. The U.S. Centers for Disease Control and Prevention this month said that fully vaccinated people can resume recreational travel in the U.S. at “low risk,” but CDC Director Rochelle Walensky has also warned of “impending doom” as cases begin to rise again.

Jennifer Fink, 54, and her husband, John, are looking forward to getting out of their home in the San Francisco Bay area for the first time since the pandemic started. They’re planning a mid-summer road trip up through Oregon and Washington state to Tofino, British Columbia. But they’re also keeping an eye on travel restrictions and canceled plans for trips last year when California was forced back into lockdown. Fink is more optimistic this time after getting her first dose of the vaccine. Her husband is already fully vaccinated.

“Maybe the fifth or sixth time is the charm, and we’ll be able to go somewhere,” she said.

Americans on average are planning to take 13 vacation days this year, up from just eight days in 2020, according to a study from travel giant Expedia Group. A study from AARP showed that just over half of Baby Boomers plan to travel in 2021, and nearly a quarter of those making plans didn’t travel at all last year.

“What we’re hearing more and more is that people are just desperate to go out and do the stuff that they were not able to do,” Seema Shah, chief strategist at Principal Global Investors, said last month in an interview on Bloomberg Television. “There could be certainly some upside surprises to come.”

Dormant bill might harm local governments if Austin resuscitates it

A bill recently left to die in the Texas Legislature would have cost local governments more money and harmed taxpayers, opponents said.

If passed, it would have banned taxpayer-funded lobbying, which would have included lobbying done on behalf of municipalities by nonprofits.

That would have been a big deal for school districts that are members of the Texas Association of School Boards, or TASB. The association counts as members more than 1,000 school districts across the state, including Denton and many other local districts.

TASB is a voluntary nonprofit that helps draft school board policies and monitors legislative actions on behalf of districts to track potentially helpful and problematic bills alike. It’s that lobbying work that House Bill 749 sought to end.

The bill, which was left pending in committee on March 26, would have barred school districts from being paid members of TASB so long as the association employed lobbyists.

Similarly, the city of Denton and other entities associated with the Texas Municipal League wouldn’t have been able to do so.

A separate bill, Senate Bill 10, would have banned aspects of taxpayer-funded lobbying for municipalities and counties but not school districts. That bill was left pending in committee, effectively killing it for this session, on April 6.

Deron Robinson, a Denton ISD attorney, said TASB isn’t engaged in the type of lobbying work that first comes to mind for most people. The work the association is engaged in, he said, doesn’t come in the form of expensive dinners for legislators but instead in the form of late nights spent watching committee hearings at the state Capitol.

Deron Robinson

“If this passes, we can’t have TASB keep us abreast of bills because they have registered lobbyists,” he said.

Even with his experience, Robinson said it’s difficult to keep up with the legislature’s various committees and pending bills.

“I live in this world ... and I cannot keep up with them,” he said.

He related that both he and Superintendent Jamie Wilson were on a call with Mayes Middleton, R-Wallisville, who authored HB 749, roughly a month back.

Most arguments Robinson recalled in favor of the bill didn’t apply to DISD or TASB, he said. When asked how they would keep up with legislation, Robinson recalled Middleton suggesting the district hire a legislative watch.

Robinson estimated DISD pays TASB between $1,700 and $1,800 each year for advocacy. That would be dwarfed by the hypothetical six-figure salary necessary to hire a full-time legislative watch.

“And smaller districts couldn’t afford to do that,” DISD school board President Barbara Burns said.

Barbara Burns

Besides, they said, it would be easy to legislate away unseemly aspects of lobbying if that were what bothered legislators most.

“This is a great way to do away with local control,” Robinson said.

In short, a bill like HB 749 would make it far more difficult for local governments to stay up to date with the intricacies of the state Capitol, which the bill’s opponents say would inevitably lead to more unfunded mandates and other costs being passed down from Austin.

“Some bills come through and the legislators have good intentions, but they do not have an understanding of what it will do in practice,” Robinson said.

In a perfect world, he argued, legislators would contact local governments directly to ask how various bills would affect their constituents back home, but that isn’t often the case.

“I would be remiss if I didn’t say that’s exactly what [state Rep.] Lynn Stucky [R-Denton] does,” Robinson said.

Even though the measure seems dead this legislative cycle, it seems unlikely the issue won’t be revisited next time around. It was pursued but left unfinished in 2019, and Lt. Gov. Dan Patrick included it in his list of legislative priorities for the 2021 session.

“It’s a platform of the Texas Republican Party,” Robinson said.