For Texas Education Agency Commissioner Mike Morath, the bottom line of what happened with open government this spring was that he got a green light to pursue Houston Independent School District trustees for allegedly doing public business in the dark.
What the rest of the state got – or will, if Gov. Greg Abbott signs the bill as expected – is legislation that breathes new life into a section of the Texas Open Meetings Act outlawing a practice that public officials in many parts of the state have used to keep citizens uninformed on controversial issues.
The year didn’t start out with good news from Morath’s point of view, however, or for other open-government advocates.
In February, the Texas Court of Criminal Appeals handed down a ruling that seemed to invalidate Texas’ prohibition of what are called walking quorums – public officials gathering privately in a succession of small groups to discuss public business without having to talk about it in public.
In general, state law requires that when enough members of a city council or other governmental body are present to constitute a quorum, that gathering becomes a meeting that must be posted in advance and open to the public. The smaller meetings get around that requirement.
The court ruled that the portion of the Texas Open Meetings Act that applied to walking quorums was “hopelessly indeterminate by being too abstract.” As a result, the court held that a Houston-area county commissioner did not violate the law when he and two colleagues negotiated the details of a bond proposal with members of a political action committee rather than with taxpayers in a public meeting.
Morath, meanwhile, was dealing with problems in the Houston school district. TEA was probing numerous allegations that trustees had violated the open meetings law.
In one important instance, many observers, including several other board members, believed that Board President Diana Dávila plus trustees Holly Maria Flynn Vilaseca, Elizabeth Santos, Sergio Lira and Anne Sung broke the law by engaging in a series of private discussions about ousting Interim Superintendent Grenita Lathan.
In October, the five had blindsided their colleagues with the motion to fire Lathan. They won on a 5-4 vote.
Not for long, however. The district’s TEA-appointed conservator ordered the school board to stop a search for a new superintendent while the agency investigated the allegations of open-meeting violations.
After the high court issued its ruling in the county commissioner case, Morath wrote to the AG’s office asking for guidance.
In response, the AG’s office put together the language for a legislative proposal to clarify the “abstract” language. State Rep. Dade Phelan, R-Beaumont, sponsored it in the House, Sen. Kirk Watson, D-Austin, sponsored it in the Senate, and it was approved by both houses.
Along the way, witnesses told legislative committees that it is common practice in Texas for elected officials to confer in private before making decisions, in violation of the law.
During testimony in April on the house version of the bill, two members of the House State Affairs Committee said they have witnessed walking quorums in practice.
Rep. Bobby Guerra, D-McAllen, said that in the executive sessions held by most city councils, members take an informal poll of how they will vote on an issue before going back into public session, as required, for the official vote. The vote often happens with little or no discussion in the open meeting.
“Which is why some entities record their executive sessions and others don’t,” Guerra said.
“I think this happens all the time in local government,” added Phelan. ”I’ve seen city councils walk out and vote on an issue without even talking about it. Some of the other members out there have no idea what they talked about, [but] obviously a decision was made before they even walked in that room.”
That’s roughly what happened in the Houston case, where five school trustees surprised their colleagues in October with the motion to oust Lathan.
The five trustees have denied the alleged conspiracy. It’s unclear whether the district itself is investigating the incident. Houston schools spokeswoman Rebecca Suárez did not respond to an email seeking comment.
Jennie Hoelscher, who heads the opinions division of the AG’s office, told the House committee that the new law will pass legal muster in future cases involving alleged walking quorums.
“The issues are completely taken care of,” she told committee members.
The measure that clarifies the state’s walking quorum rule awaits the governor’s signing. It would take effect Sept. 1.
Steve Miller can be reached at [email protected].