TOMA and Campaign Season: Incumbents Beware!
As campaign season approaches, new candidates and incumbents seeking elected municipal positions will be asked to participate in a variety of political events. Candidate forums and fundraisers are two examples. For new candidates, the Texas Open Meetings Act (Act) does not apply because they are not yet members of the city council. For incumbents, however, the Act may create legal pitfalls.
The Act is intended to allow the public to view the business of the city council. But does the Act distinguish between official meetings and campaign gatherings of the city council? Absolutely not. If a gathering of a quorum of incumbents takes place anywhere, a “meeting” of the city council may have occurred, and all the Act’s requirements (e.g., a properly posted agenda, public access, and a specific listing of subject matter) may apply.
Several attorney general opinions (available online at the attorney general’s website) have broadly interpreted the definition of a meeting to include the attendance by a quorum of a governmental body at various lectures or gatherings. For example, opinion JC-0203 (2000) concludesthat the Act applies if: (1) a quorum of a governmental body attends the same speaking engagement or lecture; (2) an attending member participates in the discussion; and (3) the deliberation relates to public business or public policy over which the quorum of the governing body in attendance has supervision or control. See also opinions JC-0248 (2000) and JC-0308 (2000). Thus, if a quorum attends a chamber of commerce meeting, and discussion there concerns an issue over which the city council has authority (e.g., street repairs or economic development incentives), councilmembers may not participate in the meeting unless all requirements of the Act are met.
Consequently, the Act would apply if a quorum of a city council attends a “candidate forum” to debate among new candidates, themselves, or to answer questions from an audience. Why not just post the forum as a meeting of the city council? That’s a possibility, but in that case the dilemma is the inability to list the items for discussion. The attorney general concluded in opinion GA-0668 (2008) that general postings such as “Council and Other Reports” provide insufficient notice to the public. The same would be true of a candidate forum. For example, posting an agenda listing “candidate forum to discuss campaign matters” would be insufficient for incumbents to discuss any specific matter in detail.
The Act does allow a municipal elected official certain latitude at a properly posted meeting. Section 551.042(a) provides that:
If, at a meeting of a governmental body, a member of the public or of the governmental body inquires about a subject for which notice has not been given…, the notice provisions of this subchapter do not apply to: (1) a statement of specific factual information given in response to the inquiry; or (2) a recitation of existing policy in response to the inquiry.
Section 551.042(b) further provides that: “[a]ny deliberation of or decision about the subject of the inquiry shall be limited to a proposal to place the subject on the agenda for a subsequent meeting.” However, attorney general opinion JC-0169 (2000) provides that “[t]his provision relates to ‘inquiries’ from members of the public. Its purpose is to authorize a governmental body to make a limited response to an inquiry from the public about a subject not included on the posted notice and to prevent it from engaging in ‘deliberation’…about the subject matter of the inquiry. When an inquiry or a comment from a member of the public requires such deliberation…, members of the governmental body may respond merely that the matter shall be placed on a future agenda.” Thus, while a new candidate could respond in detail, an incumbent would arguably have to state that he or she cannot do so at the present time, and – of course – it is unlikely that attendees would understand why.
What about fundraisers? To begin, the following do not constitute meetings under the Act:
- the gathering of a quorum of a governmental body at a social function unrelated to public business; or
- the attendance by a quorum of a governmental body at a regional, state, or national convention or workshop, if formal action is not taken and any discussion of public business is incidental to the social function, convention, or workshop.
For example, if a quorum attends a Texas Municipal League Conference, that attendance is not generally subject to the Act so long as the members do not take formal action or more than incidentally discuss public business. In addition, if a quorum attends a cocktail party for a friend’s birthday or something similar, the Act does not apply.
Some fundraisers could arguably be classified as social functions, but it remains questionable as to whether that social function is “unrelated to public business.” Case in point: an incumbent councilmember in a central Texas city attended a private fundraising event held on his behalf. A quorum of other incumbents was present (although none sat at the same tables). The event was essentially a social function, but the incumbent was asked to give a short speech at the end of the evening. His speech was intentionally focused on his local heritage and connection to the community, rather than any specific items related to city business. Technically, that speech shouldn’t violate the Act. The councilmember’s position was that the event was a social one, and his presentation wasn’t about “city business” per se.
However, a person in the audience asked an inflammatory question relating to whether the councilmember knew that his constituents believed that he was a poor steward of taxpayer dollars. The councilmember answered in a general way. According to the councilmember, an opponent reported the exchange to the local county attorney’s office. The report led to a criminal investigation into the incumbent’s behavior at the fundraiser. Ultimately, no charges were filed, but the event led to much publicity regarding the incumbent’s integrity.
The League certainly has no position on who is the best candidate for any city council position; that’s up to the voters of each city. But every incumbent should be aware of the pitfalls described above. The following ideas may be worthy of consideration:
- A city might wish to establish procedures for giving proper notice if a quorum will attend outside gatherings, and/or warn councilmembers of the danger of public discussions.
- If compliance with the Act is not possible because the gathering of a quorum is not accessible to the public or notice has not been posted, the members in attendance may not deliberate or answer questions regarding subject matter that is within their supervision.
- If a member is invited to comment on issues raised by attendees, and a quorum is present, he or she should decline to address subjects within the jurisdiction of the city council, explaining that under the circumstances his or her remarks would violate the Act.
Keep in mind that the suggestions above are based on existing legal precedent, regardless of whether that precedent is a correct or incorrect interpretation of the Act. City officials should consult with their local legal counsel to determine the proper course of action in any given situation. With regard to candidate forums and fundraisers, it appears that the Act may hinder the free flow of ideas from incumbents to their constituents, while providing new candidates with a political advantage.
In the case of a candidate forum or fundraiser, does the Act violate an incumbent councilmember’s right to freedom of speech under the First Amendment to the U.S. Constitution? The U.S. Supreme Court, in the Texas case of Asgeirsson v. Abbott, said last year that it does not.