by Frank Sturzl
Executive Director


In October of 2004, a member of the city council in Alpine, Texas, sent an e-mail to other councilmembers asking if they wanted to place a particular item on a future council agenda. The following day, one of the other councilmembers responded to recipients of the first e-mail, stating that she agreed that the item should be discussed. The local district attorney decided that this e-mail exchange violated the Texas Open Meetings Act (TOMA) because the e-mails ultimately involved a quorum of the city council. As a result, two of the councilmembers were criminally indicted by a grand jury.

These two Alpine councilmembers, who were volunteering to serve their city, were merely trying to get an item on a future agenda for a public discussion by the entire city council. For doing so, they now have an arrest record and could have been convicted of a crime and sent to jail for up to six months.

Although the indictments were later dismissed, the two councilmembers sued in federal court claiming that the criminal provisions of TOMA violate their free speech rights under the First Amendment to the U.S. Constitution. While that lawsuit has been dismissed, a new legal action is planned.

In a related action, city officials in attendance at the 2009 TML Annual Conference in October approved a resolution, submitted by the City of Sugar Land, that calls upon the Texas Legislature to ease the imprisonment penalties in TOMA.

In response to these actions by city officials, newspapers around Texas have abandoned all pretenses of fairness and balance and have launched a campaign of criticism against city officials.

The Empire Strikes Back

Led by the Texas Daily Newspaper Association (TDNA), a powerful Austin-based lobbying organization, newspapers across the state have vilified city officials on a daily basis. Almost without exception, the newspaper editorials have been short on facts and balance but long on hysteria and distrust of city officials.

The lawsuit has been described as “outrageous”, “wacky”, “silly”, and “pointless”; the resolution as “disingenuous” and “duplicitous.” One editorial argued that TOMA’s imprisonment penalty is needed “to prevent rogue elected officials from thumbing their noses at the statute.” Another went so far as to suggest that without the threat of jail time, Texas would return to the days when local governments “routinely conducted public meetings as staged events” after “the real business was done in some backroom or roadside café.”

Another TDNA representative said that the imprisonment penalty is needed as a “stick.” The obvious implication is that local elected officials, left to their own devices, would immediately violate the law and betray voters.

According to our daily newspapers, local elected officials are guided by such evil tendencies that they can be controlled only by the threat of imprisonment or a few whacks with a stick.

In an obvious effort to deceive and confuse readers, most daily newspapers have reported simply that the lawsuit brought by the two Alpine councilmembers was dismissed. They cleverly fail to mention that the suit was dismissed only because the plaintiffs’ terms in office had come to an end due to term limits, and the court ruled they no longer had standing. The newspapers also make no mention of the fact that prior to the dismissal, a three-judge panel of the Fifth U.S. Circuit Court ruled that TOMA should be subject to “strict scrutiny” because it regulates speech. (A court that applies that scrutiny would likely strike down the punishment of imprisonment.)

The source of this animosity toward city officials is obvious. In the tortured thinking of the TDNA, no person is allowed to have a view of the open meetings act that differs in the slightest degree from the newspapers’ view. To do so is proof positive that one is a scoundrel and an enemy of the people.

The most astonishing editorial of all was written by Bill Hobby, a former lieutenant governor of Texas. In newspapers across the state, he opined that “governing bodies must conduct the people’s business in public or else face some serious penalties.” He went on to say that the open meetings act has a basic premise: “public bodies should deliberate in public.”

No one respects Bill Hobby more than I do, but I must point out that for 18 years he presided over the Texas Senate, a governing body which long ago exempted itself from the Texas Open Meetings Act and which has regularly met in secret and behind closed doors for hours on end. Yet Mr. Hobby holds forth on the reasons that TOMA should send local officials to jail. Not a single newspaper mentioned or commented on the obvious irony.

The goal of the press, of course is to create the impression among citizens and legislators that there is no honesty among city officials, but there is fear of jail, and that’s all that ensures open government.

The TML Reaction

The Texas Municipal League has opted not to respond with letters to the editor or op-ed pieces. There are two reasons for this decision.

First, editorial pages are owned by the same newspapers that have been disparaging city officials almost every day. The newspaper lobby can use those pages whenever it wishes; TML can have access only when the newspaper bosses allow. It is a virtual certainty that any newspaper that would print a TML op-ed piece would respond by launching another attack against city officials in the following days.

Second, we hold ourselves to a higher standard. We may disagree with the newspaper lobbyists’ views on TOMA issues, but we recognize their right to hold those views. I am confident that the important issues will ultimately be decided (favorably for cities) in courts of law. Thus, there is no reason for TML to follow the descent of TDNA into a mud-wrestling event. It is tempting to do so, but accomplishes nothing.

On the other hand, the tactics—and, indeed, the very existence—of a newspaper lobby group raise an important question. Does the eagerness of the newspapers to influence state policy and to deny city officials their day in court prevent them from fairly and objectively reporting and commenting on those issues? Unfortunately for the ever-diminishing ranks of newspaper readers, that’s apparently the case.

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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