Odessa American sues Odessa City Council

By Corey Paul
Odessa American
Originally published June 7, 2017

The Odessa American filed a lawsuit against the Odessa City Council on Wednesday, accusing the elected officials of violating the state law that requires most public business be conducted in public.

The lawsuit alleges multiple violations related to a May 9 meeting when the City Council met for about 56 minutes behind closed doors before voting to oust the head of the board overseeing economic development sales tax money. The OA is seeking a court order to prevent future violations of the Texas Open Meetings Act by the City Council.

Referencing a pattern of discussing public business in private and “other improper closed sessions,” the lawsuit alleges the City Council violated the Texas Open Meetings Act “by failing to give proper notice of Odessa City Council closed sessions, holding closed sessions without announcing an applicable exemption, failing to release public information detailing the substance of improperly held closed sessions, and through other improper conduct. . .”

“We firmly believe that the state’s open meetings laws provide strict and narrow parameters under which elected bodies such as the Odessa City Council can conduct the people’s business in private,” OA Publisher Patrick Canty said. “And we believe there is an indication that the City Council — or at least some of its members — have too often played fast and loose with these requirements and thus have been depriving the public’s right to know how they formulate many of their decisions.”

The lawsuit names each City Council member as a defendant — Mayor David Turner and council members Malcolm Hamilton, Dewey Bryant, Barbara Graff, Filiberto Gonzales and Mike Gardner, who was absent during the May 9 meeting.

The lawsuit asks for a court to order the City Council not to violate the Texas Open Meetings Act with future meetings behind closed doors, to disclose “details and information relating to any improper closed City Council sessions” and “to maintain detailed written minutes or audio recordings” of all future closed meetings, which a judge could then examine if violations seem apparent.

The lawsuit also seeks recovery from the city of the OA’s legal expenses.

CBS 7 representatives have said the news station plans to join the OA’s lawsuit.

Asked to respond to the lawsuit, city spokeswoman Andrea Goodson said “We are aware of the lawsuit, we are going to review it and respond appropriately.”

The elected officials who were in the room May 9 refused in the time since to explain the decision to remove the volunteer appointee, Jimmy Breaux, from the Odessa Development Corporation despite his public requests for an explanation.

Those officials include Bryant, who cast the lone dissenting vote, and Turner, who said he argued against Breaux’s ouster behind closed doors.

Since the meeting, Turner called for more public meetings. And Gardner said he would not participate in any closed sessions without merit and that he plans to publicly question the need to invoke an exemption to open meetings law before the City Council goes behind closed doors.

But a court order would add pressure for the entire City Council to do so.

“The fact that several council members have stated that it is “illegal” for them to discuss executive session proceedings with members of the news media shows that these elected public servants either do not understand open meetings laws or do not fully appreciate them and instead use this as a lame excuse to hide what they are doing and discussing on matters that people have a right to know,” Canty said. “To be sure, it is not illegal for a council member to divulge what has transpired in an executive session. It is illegal for them to conduct matters in a closed session that by law are not permissible.”

Canty said given this type of behavior, the newspaper is hopeful that the courts will impose conditions on the council that will give members of the news media a more effective way of ensuring the elected public servants are following the letter of open meetings laws.

“And we hope this action sends a clear message to other elected bodies who believe the ends justify the means in manipulating laws that have been put in place as a service to the citizens of this community,” Canty said. “We will not stand for it.”

The OA and CBS 7 initially filed a criminal complaint on May 12 with County Attorney Dusty Gallivan that alleged multiple violations by the City Council, including the failure to announce the justification for the closed meeting and a failure to properly notify the public on the intent and purpose of the closed session.

Gallivan ultimately said he found “violations” that did not appear to rise to the level of a criminal offense, citing his own research and a review by a Texas Ranger.

“The meeting that was held, discussing the removal of Jim Breaux as the head of the Odessa Development Corporation, violated the Open Meetings Act,” Gallivan wrote in a May 25 letter to Turner and other officials including each City Council member and City Attorney Larry Long.

Gallivan’s letter cited the media outlets’ accusations, reminding the City Council that provisions of the open meetings act “are mandatory and are to be liberally construed in favor of open government,” while encouraging the elected officials to review the act.

The May 9 meeting continued a pattern of secrecy by the City Council, which spent almost half the time during their regular meetings behind closed doors as they had facing the public in 2017.

“It may be that the city’s misconduct doesn’t amount to a crime, yet the fact remains that it is still a violation of Texas open government law,” said John Bussian, an attorney who represents the Odessa American along with its parent company and an expert in freedom of information issues. “The remedy for that is to secure an order in a civil lawsuit to stop this from happening again. And that is what the OA is doing.”

Bussian added: “This is all about the public’s right to know, and there are good reasons why the city has to tell the public and the press why it is going into a closed session.”

In the days following May 9, experts on Texas open meetings law also said the trend of private meetings coupled with signs of a cavalier attitude about open meetings law raised serious questions about transparency and effective local government.

“Good public policy is to make most of their meeting time open,” Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, told the OA after the May 9 meeting. “The public then doesn’t have reason to guess at what’s going on or think there is something suspicious. If it’s out in the open everybody knows.”

But the notice of the May 9 meeting appeared to hide the true purpose of the closed session, said Joe Larsen, a Houston attorney who is a leading expert on Texas open meetings law, in the days that followed. Graff and Gonzales placed the item on the agenda for the meeting, purportedly to discuss removal of each of the five ODC members, including their own appointees.

“It doesn’t appear that there were any issues related to the others and that was just a way of obscuring who the true target was,” Larsen said. “In the context of it, it appears to be an effort to obscure what was going on.”

Plaintiff’s Original Petition for Writ of Mandamus, Declaratory Judgment, And Injuctive Relief by Corey Paul on Scribd