From the Austin (Texas) American-Statesman (3/17/09): It started as a minor prosecution of two Alpine City Council members accused of discussing city business in private e-mails and not, as Texas law requires, in a public forum.
Now, with a recent U.S. appeals court ruling, the 2004 incident is mushrooming into a national issue — bringing denunciations from open-government advocates who fear the decision will cripple laws that ban elected officials from conducting public business behind closed doors.
The controversy surrounds a 5th U.S. Circuit Court of Appeals ruling that the Texas Open Meetings Act compromised the Alpine council members’ free speech rights and may have to be overturned or rewritten.
Critics say the ruling could undermine open meetings laws not only in Texas, Louisiana and Mississippi — the states in the 5th Circuit Court’s region — but also in every other state.
Texas Attorney General Greg Abbott has asked the entire 17-judge appeals court to void the April 27 ruling by a three-judge panel. Eighteen other states have joined Abbott’s call.
At stake is government transparency and accountability, said Lucy Dalglish with the Reporters Committee for Freedom of the Press, a nonprofit free speech watchdog.
“The 5th Circuit said public officials’ rights to meet secretly may trump your right to know what they are up to,” Dalglish said. “I just think this decision is cracked and stupid and offensive. We don’t allow secret meetings in this country except under very special circumstances.”
But Houston lawyer Dick DeGuerin, who represents the council members, said critics’ concerns are overblown.
The Texas Open Meetings Act began with the right intentions — to prevent secret deals and secret meetings — but legislative additions have morphed it into a draconian and “stupid” law that improperly limits how elected officials can express themselves, DeGuerin said.
“When we elect someone to speak for us, we need to allow them to speak. Elected officials, particularly in representative bodies, have the same full and robust rights of free speech as other citizens,” said DeGuerin, a lawyer of 44 yearswhose long list of clients has included former U.S. House Majority Leader Tom DeLay, drug smugglers and millionaires accused of murder.
The case began with an October 2004 e-mail from Alpine City Council Member Katie Elms-Lawrence to three fellow council members about a pending water project. Elms-Lawrence said she favored one engineer and asked that a council meeting be scheduled to complete the contract.
Council Member Avinash Rangra sent a “reply all” e-mail saying that he invited a second engineer to make a presentation to the council.
Because four council members represent a quorum — enabling the City Council to conduct business — then-District Attorney Frank Brown launched an investigation that ended with Elms-Lawrence and Rangra being indicted for violating the Open Meetings Act, a misdemeanor punishable by one to six months in jail and a $100 to $500 fine.
“They were talking business,” said Brown, now in private practice in Alpine, a West Texas town of fewer than 6,300. “It would be like having four council members in chambers, and two talking about city business and two listening. Conceptually, you have a quorum.”
Brown said he had to drop the charges when one of the two “listening” council members recanted earlier testimony that he had received the e-mail. Without a quorum established, the case fell apart, Brown said.
Seeking to clear his name, Rangra, who has since left the council, filed a federal lawsuit arguing that the Open Meetings Act violated his First Amendment free speech rights.
U.S. District Judge Robert Junell disagreed, finding that the state law does not improperly limit speech but “simply requires speech to be open and public.”
He wrote: “To allow a quorum … to deliberate public policy issues outside the public view would turn open meetings into sessions where public officials simply approved messages previously debated over phone or e-mail.”
But the appeals court overruled Junell, saying that because the Open Meetings Act places limits on what officials may say, it must pass the strictest constitutional review — requiring Texas to prove the act is the least restrictive possible and that it promotes a compelling government interest. The standard is known as “strict scrutiny.”
“Whether a quorum of public officials may communicate with each other outside of an open meeting depends on whether the content of their speech refers to public business or public policy,” Judge James Dennis wrote in the opinion.
The strict scrutiny standard, recognizing that free speech is a cornerstone of civil rights, is designed to negate most government attempts to limit speech.
And that’s what has open-government advocates worried.
The 5th Circuit Court ordered Junell to re-examine the Open Meetings Act under the strict scrutiny standard. But even if Junell finds the law constitutional, any public official charged under the act could tie up legal proceedings by forcing the government to prove, time and again in court, that the law passes muster as applied, Dalglish said. At a minimum, she said, affected states would have to rewrite their laws to meet the standard.
No other court — particularly state supreme courts, a number of which have ruled on the matter — has applied the strict standard to open meetings laws, Abbott told the 5th Circuit Court.
“This requirement helps prevent corruption, tempers the secret influence of special interests and makes elected officials more accountable,” Abbott’s brief said. “It limits speech only to the extent necessary to ensure Texas citizens’ right of access to the decision-making processes of their representatives.”
The court has given DeGuerin and other lawyers until May 26 to respond to Abbott’s request for review by the entire court.
by Chuck Lindell, American-Statesman Staff