The thing I hate most about covering local government is secrecy. Elected board members in some towns and school districts put on a show for the public, but beforehand, in secret, they’ve mapped out their actions.
Proving it, though, requires luck and magic. Or, as happened in Richardson ISD, an insider turns whistleblower.
The rule in Texas, as explained to me by the Texas attorney general’s office, is that boards must do all their deliberations in public, except for a few exceptions.
Discussions must be in publicly announced open meetings. No behind-the-scenes maneuvering, also known as “walking quorums” because they talk privately and share information as they “walk” and talk to one another off the grid.
But there have been two significant developments.
The state’s highest criminal court, in a terrible decision, last month decriminalized walking quorums when it struck down criminal penalties for the practice. That could remove the incentive for officials to follow the law.
The second is that Richardson ISD settled two lawsuits with former board member David Tyson Jr. One sets up single-member voting districts. The other, important here, is that the school board agreed to undergo open-meetings training after Tyson sued over alleged violations.
The district agreed to pay Tyson’s lawyer $385,000 in taxpayer (or insurance) money to end the two lawsuits. More on Tyson’s sensational accusations against his former board colleagues in a bit.
The terrible 7-2 decision by the all-Republican Texas Court of Criminal Appeals ruled that the open meetings law is “unconstitutionally vague.”
Sorry, judges, it’s not vague at all: Board members may not knowingly conspire to circumvent the open meetings law “by meeting in numbers less than a quorum [majority] for the purpose of secret deliberations.”
I read that loud and clear. Two council members can’t deliberate, and then “walk” to talk to a third and fourth. They meet without actually meeting.
The Watchdog agrees with dissenting Judge Kevin Yeary: “To provide a true disincentive, the stigma of a criminal penalty is necessary.” Civil penalties, such as the one agreed upon in the Richardson ISD lawsuit, remain in the law.
Rusty Hardin, the Houston lawyer who won the case for a county judge accused of meeting in secret, said after the victory that public officials were confused by the written law.
Not really. No deliberating on issues is allowed.
“Will this item be on the agenda at our next meeting?” That’s OK.
“How are you going to vote?” Probably not.
The good news is that state lawmakers can rewrite the law during their current session to eliminate judicial objections.
House Bill 3402 (along with Senate Bill 1640) puts the criminal penalties back. HB 2965 attempts to clarify the actual violation.
Too good to be true
In the Richardson ISD case, what kind of evidence would have come out in a trial? How about one study that showed 443 out of 444 board votes were unanimous?
In what world do seven people agree 99.9 percent of the time without prior, off-the-grid discussions?
School board president Justin Bono, who speaks for the district, was unavailable to comment.
In Tyson’s now-settled lawsuit, the former board member claimed that his colleagues “choreographed behind the scenes.”
Board members used emails, texts and voice messages to work toward unanimity, the suit charged. Then they deleted the evidence.
That means you and I can’t see those messages, which are subject to the state’s public records law. Under law, we’re entitled to copies, if we want, because they are our public records.
Board members also held private mini-sessions with the superintendent and the district lawyer, the suit charged.
According to the settlement agreement, school board members must undergo open-meetings training, which they already are required to do.
Behavior not so unusual
My strong hunch is that this kind of behavior is more common than not.
Tyson’s lawsuit, filed by Dallas lawyer William Brewer III, was one of the clearest confirmations yet about how elected and appointed officials deliberate in secret.
Brewer, who has sued several school districts to create single-member voting districts, tells The Watchdog, “The theory of open government works.
“People act better,” he adds, “when they include all points of view, and they have to make a decision out in the open. Government works better in the cleansing light of these sunshine laws.”