FOI Foundation: Denton ordinance likely illegal

By Peggy Heinkel-Wolfe
Denton Record-Chronicle
Originally published Aug. 31, 2015

A 10-year-old city of Denton ordinance that could make criminals of City Council members who talk about City Hall secrets is probably illegal, according to the Texas Freedom of Information Foundation, which has called for the ordinance’s repeal.

Houston attorney Joseph Larsen wrote the City Council a two-page letter last week on behalf of the foundation, a statewide nonprofit that advocates for open government. In the letter, Larsen detailed how the ordinance compromises the First Amendment free-speech rights of council members, the public and the press. The ordinance also usurps and contradicts state law that requires local governments to release public information, he wrote.

To his knowledge, no other Texas city has such an ordinance, Larsen said. He’s heard of public officials, a mayor or school board president, for example, pressing council members or school trustees to keep quiet on an important initiative until its on a meeting agenda. State law allows city councils and top staff to hold secret sessions about things such as personnel decisions, land sales or acquisition or lawsuits.

“They say, ‘You can’t talk about what we said in closed session,’” Larsen said, but, “that’s simply wrong.”

Denton’s ordinance exposes council members to a Class C misdemeanor punishable by a maximum $500 fine, a public sanction and possible removal from office.

Denton’s ordinance makes everything discussed in closed session a confidential matter, but state law requires a city to demonstrate a compelling public interest in keeping things secret from the public.

Denton city officials sometimes stamp records “confidential.” Denton’s ordinance puts a council member in jeopardy if an item stamped “confidential” is shared, but Larsen said a city government doesn’t have the authority to make a document confidential.

Passed in May 2006, the ordinance was one of the last adopted as Euline Brock left office as mayor and Perry McNeill took over.

Brock could not be reached for comment. The ordinance was adopted before George Campbell became city manager in late 2006 and before Anita Burgess was named city attorney in 2008.

Lowell Brown, a former staff writer with the Denton Record-Chronicle, said he recalled more than one council member telling him that they faced a penalty if they divulged information from closed sessions.

“It was just always there,” recalled Brown, who now works for the State Bar of Texas in Austin.

Denton resident David Zoltner, who ran unsuccessfully for City Council several years ago, said he had heard about the rule and wondered why it was still on the books.

“It’s designed to intimidate — that’s all,” Zoltner said.

Earlier this year, Zoltner said he watched one council member look to the city attorney before speaking during a public hearing. He decided he must do something about the ordinance, he said.

Tensions were high at the meeting, Zoltner said. The City Council was poised to repeal the citizen-driven initiative that banned hydraulic fracturing. Council members were choosing between three possible strategies to respond to lawsuits from the state and industry. But Zoltner said he believed council members were afraid to talk about it in public.

He sent a copy of the ordinance to the Texas Freedom of Information Foundation for review. Zoltner asked for a legal opinion, and was pleasantly surprised when the foundation elected to write the city a letter.

“They went above and beyond,” he said.

The group occasionally writes letters and legal briefs when it finds a matter serious enough to take a public stand, according to Kelley Shannon, the foundation’s executive director.

“We hope they correct the problem,” Shannon said.

Larsen said the foundation could not file suit to overturn the ordinance, but others who’ve been muzzled by the law might have standing to file a civil rights lawsuit alleging breaches of the First Amendment. Those plaintiffs might include a council member, the press or a member of the public.

Current council members Keely Briggs and Kathleen Wazny, both elected to council this spring, recall the city attorney advising them that information discussed in closed session is to be kept confidential. Briggs said she later received training through the Texas Municipal League and then understood that she could talk about many of the things discussed in closed council sessions.

More senior council members generally said they didn’t feel impeded by the ordinance. However, Kevin Roden, who often blogs about city issues, said he has had some difficulty in putting together his essays on public policy for his constituents.

“I find myself asking, ‘Where did I get this information?’” Roden said.

He makes sure what he writes doesn’t come from closed sessions, he said.

Council member Dalton Gregory said he thought the City Council passed the ordinance because of “a problem council member” who talked about closed sessions. He would like to see it revised to acknowledge the reality of a person’s First Amendment rights.

Council member Greg Johnson said that he believes previous councils may have discussed more behind closed doors than the current council does. He didn’t think the city should remove the provision that held council members accountable — for example, sharing the bottom line of a property negotiation “just to appear in the know,” he said.

Mayor Chris Watts and council member Joey Hawkins both said they needed more information before making a decision about the ordinance. Watts said he expected it to be put on a council agenda soon.

Zoltner said he knows it will take the city a little time to examine the issue, but he said he is prepared to push for the ordinance’s repeal.

“I’m ready to file suit if needed,” he said.