OPINION: Discussions on the public business belong in a public forum

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By MIKE EDDLEMAN
Managing Editor
As quickly as Monday’s Liberty Hill City Council meeting opened, the Council moved into executive session.

Two items were pulled immediately from the regular agenda at the request of Council member Kathy Canady after the body voted unanimously in support of her motion. At no point was there public discussion on one of the items, and only a brief statement by Mayor Rick Hall on the other.

Executive session is not intended to be a place where the council goes to deliberate issues privately before returning to the public forum with a unanimous decision and clear plan of action to vote on silently in unison.

The limited evidence available through observation is that this tool – designed for attorney consultation – is being stretched and manipulated to allow for discussions behind closed doors that the law demands be held publicly.

The agenda item regarding an agreement with the Liberty Hill Chamber of Commerce is the best recent example of this ongoing practice.

The item was listed on the Council agenda as “Discussion and possible action on a proposed agreement between the City of Liberty Hill and the Liberty Hill Chamber of Commerce for use of the Fowler Building.”

The Council materials provided to The Independent – which we are told includes the same materials provided to Council members – had no reference documents attached to the item and no explanation.

It was unclear what this proposed agreement was before the meeting began, and just as unclear when the meeting concluded. All the public knew at the end of the night was that an agreement would be drawn up for a vote at the next meeting.

It is unlikely there is anything intentionally secret about this agreement, but it might as well be because the Council chose not to discuss the issue in open session and failed to explain the agreement when a vote was taken.

Why the need to be so vague? Why not have the discussion in the open forum?

When the Council voted on the agreement, the motion – made by Liz Rundzieher – stated, “I would like to ask the attorney to draw up an agreement between the Chamber of Commerce and the City of Liberty Hill as we discussed in the executive session and have the contract at the next meeting this month.”

After a unanimous vote in favor of the motion, the Council moved on.

What is the decision-making process for this Council?

Some form of request from the Chamber of Commerce, or suggested agreement from the City to the Chamber must have led to this item being placed on the agenda. Where was this documentation when the packet was presented for consideration?

Hall declined Wednesday to elaborate on the agreement being drafted, explaining that the agreement required the approval of both the Council and the Chamber of Commerce. This means the agreement the Council unanimously supports will not be public information until the Council votes on the particular wording.

Based on past actions, the assumption can be made this agreement will allow the Chamber to office in the Fowler Building downtown, something the previous Council rejected as not the original intent for the property when the City purchased it. But that’s an assumption in light of the absence of facts.

To be clear, the concern on the part of The Independent isn’t about whether the Chamber should office in the Fowler Building or not. If the Council voted for it, the Chamber was happy with the agreement and the community supported it, or was even indifferent, this would simply be a piece of news on where the Chamber will office in the future. The decision-making process is at the heart of this issue.

There is a place for executive session. There are circumstances when it is appropriate, and as a journalist I understand and respect that need.

The Council has every right to discuss issues in executive session with the City’s attorney, but within a limited scope.
Texas Open Meetings law spells out what may be discussed in closed session.

“A governmental body may not conduct a private consultation with its attorney except:
(1) when the governmental body seeks the advice of its attorney about:
(A) pending or contemplated litigation; or
(B) a settlement offer; or
(2) on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter.”

I assume there was no litigation or settlement being discussed on this particular matter. But even under the blanket claim of “consultation with attorney” there is the further question of how much of that conversation can legally be conducted behind closed doors.

According to the Texas Open Meetings Handbook, Section IX under “Closed Meetings”, once the attorney consultation is completed the discussion of a particular decision must return to open session for consideration.

“A governmental body may, for example, consult with its attorney in executive session about the legal issues raised in connection with awarding a contract, but it may not discuss the merits of a proposed contract, financial considerations, or other nonlegal matters in an executive session held under section 551.071 of the Government Code.”

But when the Council returned to open session Monday, made the vague motion and called for the vote without any discussion, it seemed clear that whatever questions or discussion of the purpose, parameters, issues, concerns or details of this agreement had been ironed out in the executive session. Everyone was clearly in agreement on what the vote was for and what the motion intended.

Everyone, that is, but the curious public.

Returning to open session and declaring that no action was taken in executive session is a flimsy cover for defending the notion of making decisions in public.

Not voting on an issue in executive session does not cover the requirement to conduct City business in a public forum.

It is flatly illegal to vote in closed session, a clearly black and white issue.

What is not so clear is where the line is crossed in discussing City business in closed session. That is left up to the government body, generally, to police itself and do the right thing.

This scenario has played out a number of ways at Council meetings over the last 18 months, from Hall requesting that discussions of the Mayor’s powers be discussed behind closed doors rather than publicly, to other items pulled from the agenda to be discussed in executive session and later voted on through a vague motion that left more questions than answers.

For her part, Canady defended the motion to go into executive session in a conversation with The Independent Tuesday, saying she did have legal questions, but chose not to elaborate. She also said she would inquire about the use of executive session, and added that she wants the process to be as open as possible.

I applaud that, but at the same time, if this issue was as open as possible there would not still be a question on what this agreement entails two days after the meeting concluded.

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