Montgomery County case tests strength of open meetings law

By Mike Snyder
Houston Chronicle
Originally published March 23, 2017

It must have seemed like such a simple solution.

The chairman of Pasadena’s tax-funded economic development agency wanted its board to hear a presentation from an engineering firm last November. But no public notice had been posted, as the Texas Open Meetings Act requires.

So Roy Mease, the chairman of the Pasadena Second Century Corp., divided the board into two groups that received separate briefings on the same day. No quorum; no problem. Right?

After Mease acknowledged this gambit to my colleague Kristi Nix, Pasadena Councilman Sammy Casados filed a complaint with the Harris County attorney’s office alleging that the gatherings violated the open meetings law. A clause in the statute prohibits what’s known in layman’s terms as a “walking quorum” – a subterfuge that enables public officials to share information without gathering at the same time and place.

Next week in a Conroe courtroom, lawyers will try to convince a judge that this provision is unconstitutional. The outcome could have important implications for the cause of open government in Texas.

Montgomery County Judge Craig Doyal, one of three elected officials indicted last June on misdemeanor charges of conspiring to violate the open meetings law, asked state District Judge Randy Clapp on Monday to dismiss the charge. His motion argues that the law’s criminal conspiracy provision “violates the free speech provisions of the First Amendment and is vague and overbroad.”

Two other defendants, Commissioner Charlie Riley and political consultant Marc Davenport, joined in Doyal’s motion. The fourth defendant is cooperating with prosecutors, so dismissal of the charge against Doyal would eliminate the entire criminal case, which stems from communications among officials preparing for a road bond election last November.

Moreover, a ruling in Doyal’s favor would “open up a hole in the (open meetings) law big enough to drive a truck through,” said Joe Larsen, a Houston lawyer who is a board member of the Freedom of Information Foundation of Texas.

Doyal’s attorney, Rusty Hardin, said his motion creates an opportunity to correct a defective law.

“Draft one that’s constitutionally clear,” Hardin said.

‘Anemic governance’

He said the timing was not connected to the recent announcement that one of the indicted officials, Commissioner Jim Clark, had agreed to testify against the other defendants in exchange for favorable sentencing.

Doyal’s is not the first constitutional challenge to the open meetings law.

A case involving emails sent by City Council members in the West Texas town of Alpine made a long and circuitous journey through state and federal courts, ending with a 2012 ruling by the 5th U.S. Circuit Court of Appeals that the law is constitutional.

Hardin’s motion says the 5th Circuit decision is “dubious” in light of a later decision by the U.S. Supreme Court in a separate case. And in addition to his legal arguments, he makes a practical one: This section of the law is so vague, he says, that it leaves public officials fearful of even routine communications outside posted meetings.

“That is the path to anemic governance,” his motion states. “We should not be governed by officials who may neither hear or speak to a fellow member of his council outside of publicly posted meetings.”

Transparency needed

The prosecutors, Christopher Downey and David Cunningham, argue in response that the criminal provisions of the open meetings law are “both constitutional and enforceable.” And during a time of deep public distrust of government, their motion says, public officials with nothing to hide benefit from open government laws with strong enforcement provisions.

“Openness and transparency provides an honest public official with numerous opportunities to demonstrate his fidelity to his constituency and to overcome the doubts of a skeptical citizenry,” the attorneys write.

In other words, we’re likely to be more confident that our elected leaders are doing the right thing if we know they face punishment for acting in secret.

Readers who follow the colorful politics of Montgomery County will no doubt have a keen interest in how this case progresses.

But even if you’d have trouble finding Conroe or The Woodlands on a map, you might keep an eye on how Clapp rules on Doyal’s motion. A key principle of government transparency hangs in the balance.