The controversy over Texas’ prohibition of “walking quorums” by public officials heated up last week on two fronts.
On one hand, McLennan County prosecutors decided not to pursue charges against a local mayor because of questions over the provision’s constitutionality. Meanwhile, a possible legislative fix for those questions — already passed by the Texas House — cleared a Senate committee.
“Walking quorums” refers to a practice by public officials who are trying to circumvent laws requiring public discussion of government business. State law requires that when enough members of a city council or other body are present to constitute a quorum, that constitutes a meeting that must be posted in advance and open to the public. A “walking quorum” happens when members of the governmental body gather in successive meetings, in numbers smaller than a quorum, to discuss public business in secret. According to training provided by the attorney general’s office, violators are subject to both civil and criminal penalties.
However, the viability of the walking-quorum prohibition — and the question of whether it violates public officials’ free-speech rights — came to the fore in February with a ruling by the Texas Court of Criminal Appeals that the law is unconstitutionally vague.
Numerous lawsuits in recent years have challenged government bodies on allegations that they were holding such small group meetings to avoid public discussion of controversial issues. Gov. Greg Abbott, as attorney general in 2005, ruled that such back-door meetings, often done by phone, text, or email, blatantly violated the spirit of the state’s open-meetings law, if not the law itself. He coined the term “walking quorum” in that opinion.
The February ruling by the state’s highest criminal court held that “the statute before us is hopelessly indeterminate by being too abstract.” The ruling came on an appeal from Montgomery County Judge Craig Doyal, who, along with two commissioner colleagues, was accused of negotiating details of a bond proposal with a political action committee, not in an open session of the commissioners’ court.
A measure seeking to clarify that “abstract” language passed a Senate committee last week. A House companion was approved earlier this month.
State Sen. Kirk Watson, D- Austin, who authored the senate bill, told the Austin Chronicle, “We want to remove any ambiguity, and also make it easier to understand for the public officials subject to it.”
Allegations of walking quorums have become more common, as ubiquitous cell phones, texting and other convenient communications methods make it increasingly easy for policymakers to converse on issues away from the public eye.
A State Bar of Texas panel in 2010 predicted a legal showdown on the walking quorum provision, noting Abbott’s reference to a walking quorum in an opinion.
Abbott’s 2005 opinion “blurs the line between discussions that clearly involve a quorum, and those that involve less than a quorum,” the state bar report noted. “That’s why most city attorneys reluctantly stick to the ‘no discussions with other members outside of a meeting’ answer. And that leads council members to ‘self-censor’ their speech, which is contrary to their First Amendment right,” the report concluded.
More recently, David Tyson Jr., a former member of the Richardson school district, alleged that school board members on many occasions had communicated privately before votes, and that “the board would then vote on the issue in question at the open meeting, knowing that a unanimous decision had already been reached.”
In that case, school board members denied engaging in any secret meetings, but the district nonetheless settled with Tyson.
Last week, McLennan County prosecutors said they would not pursue allegations that Mayor Ed Passalugo of Hewitt, a town south of Waco, had violated the Texas Open Meetings Act. The question of criminal charges arose after a city council member recorded a call in which Passalugo admitted he participated in calls with other council members about budget and staffing issues.
McLennan County assistant prosecutor Nelson Barnes told the Waco Tribune-Herald that his office would not follow up on the case because of the February ruling from the criminal appeals court.
In his dissent from that February ruling, Judge Kevin Yeary wrote, “Yet another perfectly good statute falls today, adding fuel to the claims that this Court is often too quick to reject the considered will of our state’s Legislative Department. In my opinion, striking this law is unnecessary.”
Steve Miller can be reached at [email protected].