The Texas Open Meeting Act
Not long ago, smaller governmental bodies in Texas practiced a lot of “local control” with few limits imposed by the State. Not surprisingly, this local control was abused. The unchecked power of local governmental bodies made it difficult for citizens to know what was happening or for them to have any input regarding important decisions. The Open Meeting Act (TOMA) is the result of rule breaking, manipulation, and a lack of transparency.
Governmental transparency, and, by its other name, open government, can be a difficult to understand. A working definition comes from Encyclopedia Britannica:
, capacity of outsiders [regular citizens] to obtain valid and timely information about the activities of government…”
Transparency in TOMA requires local governmental bodies to be much more transparent in their processes for the sake of the citizens who put them in power:
“The Open Meetings Act (the “Act”) was adopted to help make governmental decision-making accessible to the public. It requires meetings of governmental bodies to be open to the public, except for expressly authorized closed sessions, and to be preceded by public notice of the time, place, and subject matter of the meeting. “The provisions of [the Act] are mandatory and are to be liberally construed in favor of open government.” The Act was adopted in 19673 as article 6252-17 of the Revised Civil Statutes, substantially revised in 1973, and codified without substantive change in 1993 as Government Code chapter 551.5 It has been amended many times since its enactment.”
from the Open Meetings Handbook 2018
What was it like before TOMA?
Then, as now, a quorum (a majority) of governmental officials was required to meet in public, give their opinions, and decide business. For example, for a City Council of 10 elected officials, if 6 or more are present, a public meeting must be called, and city business will then be allowed to be decided. This straightforward requirement was manipulated and violated enough that the State was required to step in with TOMA.
Before TOMA, cities, school districts, college districts, counties, municipal water districts, and other smaller entities had a lot of leeway in deciding how to be transparent to citizens. Meeting dates, times, and topics could be changed or altered at the last minute in attempts to evade citizen oversight. Elected officials could and would meet in secret to make decisions.
“Walking quorums” are another way governmental bodies attempt to circumvent rules to this day, even with TOMA. Officials deliberate or decide how to vote in small groups to avoid the quorum that requires the holding of a public meeting. For example, a city mayor might decide he wants a specific tax rate to be adopted, which happens to be on the next agenda. To ensure his plan is passed beforehand, he might meet or phone a Councilman to tell him/her how to vote on the agenda item. That Councilman would then tell another one, and so on. Soon, the entire governing body would have deliberated in secret and decided something that should have been decided in the open during the meeting. Walking quorums still happen because they are difficult to prove and difficult to prosecute.
Here’s a real example from the 2018 Open Meetings Handbook, page 20:
“A “walking quorum” is described in Esperanza Peace and Justice Center v. City of San Antonio. The night before an open city council meeting was to be held, the mayor met with several city council members in the city manager’s office and spoke with others by telephone about the city budget. A decision was made that night and ratified at the public meeting the next day….The evidence showed that the city council intended to avoid the Act. For example, the mayor met with council members constituting less than a quorum to reach a conclusion; the city manager kept track of the number of council members present so as to avoid a formal quorum; the consensus reached was memorialized in a memorandum containing the signatures of each council member; and the consensus was “manifested” when adopted at an open meeting.”
Because of TOMA, every local governmental body must abide by very narrow requirements for decision-making in the open. Agendas must be specific, understandable, and posted in a timely manner. Meetings must be called when a quorum is present, and decisions must be made in the open after public deliberations. There are also specific requirements for work sessions and interactions with the public at meetings. And, all citizens must be presented with the same information.
There should be no insider information on any level. There cannot be official or unofficial policies made for some, but not others. Our elected public officials need to be held accountable by us.
Texas Municipal League information on City Council meetings
AG Opinion No. JC-0169