Publicity is justly commended as a remedy for social and industrial diseases.  Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. 

    [City officials] do not violate the TOMA when the communication with their fellow city council members…[takes place]…one-on-one by phone or e-mail about public business outside of a quorum.” 

On March 25, Judge Robert Junell of the United States District Court for the Western District of Texas issued his much-anticipated decision in Diana Asgeirsson v. Greg Abbott and the State of Texas.  The case is commonly referred to as “Alpine II” or “TOMA II,” and is the second challenge brought by several city councilmembers who claim that the criminal closed meeting provision of the Texas Open Meetings Act (Act) unconstitutionally infringes on their right to freedom of speech.

In short, the city officials lost.  Specifically, Judge Junell ruled that the Act is – in legal terms – a valid “time, place, and manner restriction.”  In other words, he concluded that the Act does not limit what city officials can say, but merely limits when and where they can say it (e.g., at a properly posted open meeting). 

The plaintiffs in TOMA II – city officials and a number of cities – filed their lawsuit at the end of 2009.  In February 2010, the attorney general brought a motion to dismiss the cities as plaintiffs.  The court granted
the motion in July 2010, concluding that “when a political subdivision sues its state creator on constitutional grounds, [a determination of whether the city has standing] requires an analysis of the constitutional provisions involved in the case. If a provision is ‘written to protect individual rights, as opposed to collective or structural rights,’ it does not apply to the political subdivision and, therefore, the subdivision may not bring the claim against its own state.”

Of course, the individual city officials were not dismissed from the lawsuit, and a bench trial was held in November 2010.  Several city officials and a League attorney testified at the trial. 

In its decision, the court acknowledged the difficulty in balancing a public official’s right to freedom of speech and the citizens’ right to open meetings.   In doing so, however, it cited to U.S. Supreme Court precedent holding that “the principal inquiry in determining content neutrality…is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”  The court concluded that the Act is a “permissible time, place, and manner restriction” because it is not based upon either the content or subject matter of the speech:

    Plaintiffs are simply asked to limit their group discussions about these ideas to forums in which the public may participate. Thus, at no point are members of governmental bodies…prevented from speaking.  Public officials are allowed to talk about any topic they please…[and are only required] to disclose their speech to their constituents.

Content-neutral statutes (like the Act, according to the court) that minimally affect speech rights are examined under a legal standard known as “intermediate scrutiny.” Under intermediate scrutiny, content-neutral laws must: (1) leave open ample alternative channels of communication; and (2) be narrowly tailored to serve a significant government interest. 

Strangely, the court concluded that the Act meets criteria (1) because a council that holds an illegal closed meeting can correct its violation at a subsequent open meeting.  In a civil law context, that conclusion might make sense.  But in the criminal law sense, it is an odd conclusion indeed.  Why?  Because once the closed meeting is held, by accident or otherwise, the elements of the crime have been met.  A public official is then subject to prosecution, period. 

As for whether the Act meets criteria (2), the court once again hung its hat on a flimsy hook.  The court concluded that, because a city official can rely on a court order, an attorney general opinion, or the opinion of the city attorney regarding the Act’s application, he is protected from prosecution for actions that might otherwise be crimes under the Act.  That may be somewhat true, but not entirely so.  The Act does provide an affirmative defense to prosecution for reliance on those things, but that does not prohibit a prosecutor from seeking an indictment and even moving forward with a trial. 

At trial, some city councilmembers testified that the Act suppresses their speech at social functions.  Others testified that they don’t talk to each other – even individually – outside of open meetings because of the fear of establishing a “walking quorum.”  Many public officials clearly have these worries.  The court dismissed their fears by quoting from the Act, which provides that, if a quorum attends a social function and does not take formal action or more than incidentally discuss public business, the Act does not apply. 

The court further stated that city councilmembers “can even discuss public business one-on-one with their fellow city council members as long as they do not knowingly conspire to circumvent the [Act].”  That conclusion neglects to take into account the broad interpretations of the Act by the attorney general and some prosecutors.  The court’s dismissal of their concerns will likely be little consolation to city councilmembers who still scratch their heads over how to conduct city business without running afoul of the Act. 

The attorney general has released a press release and newspaper editorials have and will continue to appear in droves over the coming days proclaiming a victory for “government in the sunshine.”  But well-intentioned city officials probably remain in the same place they were before:  the only 100-percent safe way to avoid criminal prosecution under the Act is not to speak to other members of their governmental body except at a properly posted open meeting. 

For a detailed paper on the case, please go to https://www.tml.org/legal_pdf/TOMA-II_paper.pdf.

TML member cities may use the material herein for any purpose.
No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the
Texas Municipal League.

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