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Craig Doyal

Bills to restore Open Meetings Act filed

This is good to see.

Sen. Kirk Watson

Two state legislators are aiming to restore a provision of the Texas Open Meetings Act that was struck down last week by the state’s highest criminal court.

Sen. Kirk Watson, D-Austin, and Rep. Dade Phelan, R-Beaumont, filed identical bills to reverse the court ruling that the “walking quorum” provision of the act is “unconstitutionally vague.” The provision made it a crime for government officials to secretly discuss the public’s business in small groups. Senate Bill 1640 and House Bill 3402 will reword the passage to make it more precise and remove confusion, Watson and Phelan say.

“We simply couldn’t let this ruling go unanswered,” Watson said Wednesday. “Without some kind of walking quorum prohibition, there’s nothing to stop government actors from meeting in smaller groups to avoid the spirit and intent of the Open Meetings Act.”

[…]

The bills already appear to have strong support, as Phelan is the chairman of the House of Representatives State Affairs Committee, which is likely the first stop for the bills before a hearing on the House floor.

Rep. Dade Phelan

“Texans want their elected officials to be transparent and allow honest participation in the process,” Phelan said in the press release. “If we do not act this session to address this ruling, we deny them the open government they deserve.”

Watson and Phelan’s legislation come two days before the bill filing period ends for the session, leaving Freedom of Information Foundation of Texas President Kelley Shannon thankful that the court’s ruling left enough time for legislators to address the issue.

“We’re really glad that several lawmakers are interested in fixing this situation, and we’re fortunate that we still have the bill filing period so they can address it this session,” Shannon said. “It just goes to show how important the Texas Open Meetings Act is for this state and how widely recognized that is.”

The court’s ruling stems from the indictment of Montgomery County Judge Craig Doyal, who met privately with a county commissioner and a political consultant about a road bond when he was a member of the county commissioners court in 2015. A misdemeanor criminal charge against Doyal was thrown out by the ruling.

Doyal argued the law is too vague and violates his free speech rights.

Impacts of the court’s ruling are already being seen in the Houston area, where prosecutors asked a judge to dismiss all charges against six current and former members of the Pasadena Second Century Corp., who were indicted last year for violating the Open Meetings Act. Board members Ernesto Paredes and Emilio Carmona, former board President Roy Mease and ex-board members Brad Hance, Jackie Welch and Jim Harris allegedly met twice on Nov. 28, 2016, with engineering firm Civil Concepts to discuss potential designs for a new civic center.

See here for the background. SB1640 is here, and HB3402 is here. I was skeptical that anything would get done by the Lege about this, at least in this session, but there does seem to be a chance. We’ll keep an eye on this.

Not so open meetings

We’ll have to see how big a deal this is.

In a major blow to the state’s government transparency laws, Texas’ highest criminal court has struck down a significant provision of the Texas Open Meetings Act, calling it “unconstitutionally vague.”

That law, which imposes basic requirements providing for public access to and information about governmental meetings, makes it a crime for public officials to “knowingly [conspire] to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations.” That provision aims to keep public officials from convening smaller meetings — without an official quorum present — to discuss public business outside the view of the taxpayers and the media.

Craig Doyal, the Montgomery County judge, was indicted under that statute for allegedly conducting “secret deliberations” — without a quorum of the commissioners court present — about a November 2015 county road bond. Doyal filed to have the charges dismissed, claiming the statute was unconstitutional. The case eventually made it to the Texas Court of Criminal Appeals, which handed him a victory Wednesday. Two judges on the nine-member, all-Republican court dissented.

“We do not doubt the legislature’s power to prevent government officials from using clever tactics to circumvent the purpose and effect of the Texas Open Meetings Act,” Presiding Judge Sharon Keller wrote for the majority. “But the statute before us wholly lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our own judicial views. This we decline to do.”

Attorneys for Doyal argued months ago that the case should not be interpreted as a broad “take-down of the entire Texas Open Meetings Act.”

“This case is not about discussions of public matters in a quorum,” they wrote in a July 2018 brief. “This case is not about shutting out the public and the press from the political process.”

But open government advocates warned that the ruling, while specific to one slice of the open meetings act, importantly undermines its aims.

“I’m disappointed in the ruling,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. “Some people will use it as a chance to try to get around the spirit of the law. But the vast majority of people want to follow the law and want the public to understand government and participate in government. The vast majority of public officials know they can’t go around in secret and deliberate.”

See here for a bit of background on the Doyal case. I don’t know about you, but I have always assumed that Sharon Keller imposes her own judicial views on every appeal she hears. Be that as it may, my first thought on reading this story was whether it might have an effect on the accusations against five HISD trustees who are alleged to have formed a “walking quorum” and met illegally to discuss replacing Superintendent Grenita Lathan. That charge, if justified, represents another reason for the TEA to take over HISD. Unless, I presume, it turns out that what they allegedly did wasn’t actually illegal. As of yesterday, that was unclear.

The ruling could impact the Texas Education Agency’s investigation into allegations of Open Meetings Act violations by some members of the Houston ISD Board of Trustees.

TEA officials are investigating whether five trustees illegally coordinated ahead of an October 2018 vote to oust Interim Superintendent Grenita Lathan, who took over the position indefinitely in March 2018. The five trustees each spoke with Lathan’s chosen replacement, Abelardo Saavedra, prior to the vote. Some trustees have said they communicated with one other board member about a potential motion to remove Lathan.

Trustees ultimately voted 5-4 to replace Lathan with Saavedra, but they reversed the decision several days later following intense public backlash and Saavedra’s decision to back out of the job. Saavedra told the Houston Chronicle he quickly discovered HISD’s issues stemmed from the school board, as opposed to Lathan’s administration.

TEA opened a special accreditation investigation in January after receiving “multiple complaints” about violations of the Open Meetings Act. TEA leaders said they are investigating whether trustees were “deliberating district business prior to a regularly scheduled board meeting,” regarding Lathan’s removal.

While the notice alludes to misconduct described in the same statute that was overturned Wednesday, TEA officials did not indicate they are investigating HISD based on that statute. Rather, the TEA notice lists the entire chapter of open meetings laws, leaving it unclear whether the investigation rested entirely on the now-invalidated statute.

TEA officials declined to comment Wednesday “due to the open investigation.”

I Am Not A Lawyer and am thus not qualified to assess that possibility, but as a blogger I’m fully capable of speculating about it. My point is that this ruling may well have some odd and unexpected consequences. Greg Abbott says he wants state agencies to “continue to follow the spirit of the law”, whatever that means. I expect that would eventually lead to more litigation, until or unless the Lege fixes the law to satisfy this ruling. Anything is possible, but I tend to bet the under in these matters. Welcome to the mostly post-Open Meetings Act world that we now live in. The Observer has more.

Meanwhile, in Montgomery County

There they go again.

The Republican primary defeat of embattled Montgomery County Judge Craig Doyal — and close contests in two county commissioner races headed for runoffs — could signal major leadership changes and a shift further to the right in the fast-growing Houston suburb.

State Rep. Mark Keough, who defeated Doyal, was among several candidates favored by the county’s influential tea party movement — and like-minded statewide groups — who fared well Tuesday. Others in this cohort include Steve Toth, who overwhelmingly won the Republican nomination for the legislative seat that Keough is vacating, and Greg Parker, who got 43 percent of the vote in a three-person race and forced County Commissioner Charlie Riley, with 43.5 percent, into a primary runoff.

Toth and Parker have staked out positions aligned with the most far-right elements of their party. Parker’s campaign website says he wrote a book described as “a critical look at the myth and liberal hysteria surrounding climate change.” Toth, who was instrumental in the formation of the county’s tea party movement, has advocated eliminating property appraisal districts and freezing appraisals at the purchase price of a home.

[…]

Political observers agreed that toll roads emerged as a dominant issue in the county, where tea party groups carry a lot of clout, particularly in The Woodlands. Texas lawmakers have gone from championing to criticizing toll roads, a shift that some Houston-area leaders worry has gone too far and could limit coming projects.

“Without toll roads and that funding, I don’t know what we are going to do,” Doyal said late last year, citing the need for new roadways in rapidly growing parts of the Houston area.

Keough took a hard stance against toll roads.

“I think toll roads are another form of taxation,” Keough said last December. “I’m out on toll roads. Toll roads are about a bigger issue; it’s about big government.”

Doyal was embattled for a reason, and I’m sure that had something to do with it. I figure as long as the developers are able to keep building things life will go on more or less as normal up there. I mean, at some point they’re going to need to come up with a politically acceptable way to pay for the roads they want to build, but that’s their problem.

I confess, I don’t quite get the diatribe against toll roads. The whole idea with toll roads is that you only pay for them if you use them. Everyone pays gas taxes, whether they use the roads that get built with them or not. Which is fine by me, of course, but I’m one of those big-gubmint-loving-liberal types. If gas taxes, floating bonds, and toll roads are all off the table, what’s left? Perhaps Montgomery County will show us.

(Just a reminder, there is a choice if you think all of this is messed up.)

Montgomery County Judge suspended for road bond allegations

This just keeps getting better.

A state commission has suspended Montgomery County Judge Craig Doyal without pay after a grand jury charged him with violating Texas’ open meetings law while developing a bond package for new and improved roads.

The move by the State Commission on Judicial Review came four days after the indictments of Doyal, County Commissioners Jim Clark and Charlie Riley and a political adviser for allegedly engaging in behind-the-scenes negotiations before putting a $280 million road bond measure on last November’s ballot. Voters passed the bond package.

The commission’s order strips Doyal of the ability to perform official duties while the criminal case is pending. He has requested a hearing within 30 days to ask the commission to lift the suspension.

“I understand the open meetings laws,” Doyal said at a news conference at his attorney’s office. “I did not violate the open meetings laws, nor did I conspire to violate the open meetings laws.”

See here and here for the background. I have no opinion the merits of this, or on the likelihood of any particular outcome. I’m just enjoying the show.

Montgomery County officials indicted over road bond shenanigans

I know I’m a bad person, but this continues to amuse me greatly.

A grand jury has indicted Montgomery County Judge Craig Doyal and two commissioners, charging them with violating Texas’ open meetings law last year while developing a bond package for new and improved roads.

Traffic-weary voters in the rapidly growing county approved the $280 million financing proposal, but the indictments left Doyal and Commissioners Jim Clark and Charlie Riley to face criminal charges for their actions in getting it on the ballot.

Grand jurors also charged Marc Davenport, an adviser who helped to broker a deal on the bond proposal. He is married to the county’s treasurer, Stephanne Davenport.

Chris Downey, the special prosecutor who presented the case to the grand jury over six months, said that the misdemeanor charges are punishable by a fine up to $500, as many as six months in jail or both.

Downey said that it’s too early to know whether the case will go to trial.

“Like any criminal matter, whether or not a matter goes to trial is going to be a function of further discovery and negotiation,” he said.

See here for the background. The charges are fairly small potatoes, and I’ll be very surprised if they result in any kind of guilty verdict. I just find it all hilarious. The next time anyone tries to tell you that the suburbs are so much better at running things than the big cities, point to this and remind them that we can generally get bond measures on the ballot without anyone getting indicted.

No way to run a road bond election

Am I a bad person for being unreasonably amused by this?

A special prosecutor has been assigned to determine whether behind-the-scenes negotiations could void a last-minute deal struck by Montgomery County commissioners to get a scaled-back $270 million road bond package on the upcoming November ballot.

At question is whether some commissioners and a powerful tea party group violated the open meetings law. It would mark the third defeat of a road bond proposal in the past decade, with the last one coming four months ago when voters rejected a 20 percent larger bond proposal.

“We’re going to aggressively inquire into all communications and activities that led up to commissioners putting this latest bond proposal on the ballot,” said Chris Downey, the Houston attorney appointed as special prosecutor. “We need to move quickly to determine if anything criminal was done before the Nov. 3 election is held. It could be voidable.”

A Texas Ranger has been ordered to gather emails, phone records and statements from those involved in the negotiations. Downey will then use the information to determine whether a quorum of elected officials intentionally held secret deliberations with the Texas Patriots PAC tea party that decided upon the bond proposal.

County Judge Craig Doyal and Commissioner Charlie Riley have acknowledged meeting with the tea party group, but that doesn’t represent a quorum of the five-member court. However, if emails or phones were used to include other commissioners in the decision process, it could become a “walking quorum,” which violates the law.

“This can be a way for officials to avoid open discussions in a public venue. Under the law, the public is to be notified of when and where a meeting is held so that anyone can attend,” said Dan Bevarly, interim executive director of the National Freedom of Information Coalition. “It sounds like elected officials in this case might later come together in public only to rubber-stamp decisions made earlier in private.”

On Thursday night, The Woodlands Township Board voted unanimously to withdraw support given to the November bond package in light of the investigation.

“It stinks. It’s a back-room deal that lacks transparency,” said Township Chairman Bruce Tough. “A special interest group (Texas Patriot PAC) is dictating terms of the road bond to the county. They are not elected to represent us.”

See here and here for some background. I haven’t followed the details of Montgomery County’s efforts to get another road bond on the ballot, and I don’t have anything constructive to say. I’m just laughing at the comedy of errors going on here. For a region that has so much growth and projected growth, they sure have a hard time governing themselves. You have to wonder if this inability to do anything will eventually hinder all that growth they’re supposed to have.

And then there’s this:

The Texas Patriot PAC issued a written statement: “All private citizens have a right to petition people they elected to serve them. Meeting with two commissioners is not a violation of the open meetings laws. Any suggestion that these meetings violated such laws is entirely without merit.”

Because of the fast-approaching deadline to get a bond proposal on the ballot, the organization said there was insufficient time for more input from residents.

“Throughout this process, we thought of ourselves as representatives of all the conservative citizen groups. The framework ultimately agreed to was representative of what all the groups had been proposing since (the last bond defeat),” the statement said.

However, Duane Ham, who had served on the committee that supported the last failed bond proposal, disagreed. He recently formed the Texas Conservative Tea Party Coalition that the Patriot PAC called the “fake tea party.” “It’s sad when a few are controlling and dictating what happens in our county instead of our people.”

I’m not the only one who thought of this, am I?

I don’t know what this world is coming to when tea party groups start turning on each other.