Questions Raised About San Antonio Council’s Closed Door Decision

By Shelley D. Kofler
Texas Public Radio
Originally published June 2, 2017

Have City of San Antonio officials violated the Texas Open Meetings Act?  That’s a question being raised after council members decided in a closed executive session to sue the state over its new sanctuary cities law, instead of voting on the decision in a public meeting.

At least three city officials or their spokespersons say that last week during an executive session, city council members and staff met and discussed whether the San Antonio City Council should sue the state to stop the implementation of its new sanctuary cities ban.

In a statement Thursday, Mayor Ivy Taylor said a “majority of City Council” gave “direction” for city staff to join in a lawsuit against the SB4 legislation.

So was there a head count to determine that most council members supported a lawsuit, which might have been equivalent of a vote behind closed doors?

Councilmembers Mike Gallagher and Joe Krier both say a discussion and vote by elected officials should have taken place in a public meeting.

“I believe that’s wrong, bad policy and not transparent and that there should be a posted notice of any decision to file a lawsuit especially against the State of Texas,” Krier told TPR.

San Antonio City Attorney Andrew Segovia says the council and staff did nothing wrong.  He says private discussions about litigation between council members and city staff are allowed by law, and that it’s not wise to “telegraph” when the city plans to take legal action.

The city’s government affairs director, Jeff Coyle, says the council members didn’t vote and weren’t polled.

How then without a head count, can staff know a majority of council supported the lawsuit, as the Mayor stated?

Paul Watler is a Dallas attorney widely recognized for his expertise on media law and the Texas Open Meetings Act.  Here’s what Watler says:

“The Act does permit council members in a meeting to indicate their appraisal of a situation or to indicate if they agree or disagree with a proposed course of action. But what the Act makes clear is that the final action of a council collectively has to be expressed in a vote that is before the public in a public meeting.“

In this case a vote in a public meeting didn’t happen.

Councilman Krier says he can’t divulge specifics about executive sessions, but says business in those sessions often proceeds this way:

Krier:  “The standard practice has been to go around the room and let everybody voice their opinion.”

Kofler:  “That sounds like a vote.”

Krier: “It certainly sounds like one and I have thought it sounded like one for a long time, which is why I intend to go to the Charter Review Committee next week and urge that we revise the Charter to require a council vote before we can sue other governmental entities.

Kofler:  “Has this happened on other issues?

Krier:  “Oh, absolutely,” he said referring to the manner in which other issues discussed in executive session have been handled.

Attorney Watler wouldn’t comment on how San Antonio council members handled this and perhaps other legal decisions, but says violating the Texas Open Meetings Law can result in criminal or civil penalties, though that sort of penalty is rare.

In contrast to San Antonio, Austin council members took a public vote on May 18 to authorize their city staff to sue over the sanctuary cities ban.