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County teeters toward open meetings violation

June 1st, 2017 under Top Stories


PRESIDIO — The Presidio County Commissioners Court may have violated the Texas Open Meetings Act in May when it entered into an unannounced executive session.

The commissioners’ court entered a closed executive session in the middle of a special May 16 meeting in Presidio to discuss personnel matters. The meeting’s agenda said the commission would discuss the loss of law enforcement contracts between the Presidio County Sheriff’s Office and the City of Marfa and Jeff Davis County.

Commissioner Lorenzo Hernandez requested the commission enter a closed meeting to talk about the item.

“I have some questions because I was not in Marfa,” Hernandez said, referring to a public meeting the week before in which the Marfa City Council had decided not to renew its law enforcement contract with the county. “I would like to ask those questions in executive session if it is allowed.”

“It’s allowed if it’s dealing with a department head or a personnel matter,” Presidio County Attorney Rod Ponton told the commission.

“I’ve got questions on personnel, so I would like to request that we go into executive session,” Hernandez said.

The Texas Government Code allows the county commissioners court to hold executive sessions, or closed meetings, without notifying the public beforehand so long as the subject of the closed meeting was previously posted on the agenda for the open meeting.

The Act requires that the posted notice of an open meeting contain the date, hour, place and subject of each meeting,” instructs the Texas Municipal League’s “Open Meetings Made Easy.”

The subject of the posted notice has to be sufficient to alert the public, in general terms, of the subjects that will be considered at the meeting. However, descriptions such as ‘old business,’ ‘new business,’ ‘other business,’ ‘personnel’ and ‘litigation matters’ are usually not sufficiently detailed to meet the requirements of the Act. Also, the more important the particular subject is to the community, the more specific the posted notice must be.”

Attorney Joe Larsen, a board member at the Freedom of Information Foundation of Texas, told the Presidio International/Marfa Big Bend Sentinel, the agenda item calling for discussion of a contract is not specific enough notice that a personnel matter would be discussed.

“When you’re going to discuss a contract, there is nothing about the term ‘contract’ in and of itself that would alert anybody that the real subject of the discussion is actually a personnel issue,” Larsen said.

Ponton told the International/Sentinel the commission had personnel issues arising from the cancellation of the county’s law enforcement contract with the City of Marfa. Prior to the county’s May 16 meeting, three sheriff’s deputies had been let go due to the lost revenue from the Marfa contract. The terminated personnel are related to the contract, Ponton said, justifying the closed session.

That rationale is a stretch, Larsen said.

“Unless they are trying to decide who is going to be let go based on performance and they have to talk about who is doing the worst job or who is doing the best job or who can we afford to lose. I can see that being personnel, if they get down to talking individual qualifications as opposed to how many people are we going to have to lay off to meet our budget,” Larsen said. “It’s clearly a notice problem, because ‘contract’ does not describe what they are really discussing, especially if it’s a matter of high public interest.”

Discussing a budget issue while in executive session under a personnel exemption potentially constitutes an illegal closed meeting, Larsen said. If such is the case, citizens can warn the commissioners court not to do that again and take legal action if they continue to hold illegal closed sessions.

When asked about the issue, Ponton stood by his interpretation of the Texas Government Code chapter 551.074. “That chapter provides narrow allowances for closed session meetings,” Ponton said. “The item on the agenda was the contract, and the subject of the closed meeting was personnel matters arising from the cancellation of the contract.”

Ponton added that neither he nor the county commissioners would want to violate the law.

“No decisions were made in executive session,” he said. “We believed it to be lawful.”

The agenda for that particular meeting did not include an executive session and did not include any personnel matters.

Three issues which can be discussed in executive session are personnel, litigation and purchase or sale of real estate. None of the three issues were on the agenda that day.

Properly styled agendas should note to the public that they may go into executive session when it’s proper.

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