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Featured: Former Edinburg Mayor Joe Ochoa, featured left, with Edinburg City Manager Juan Guerra on Thursday, February 14, 2019 at Edinburg City Hall. Since Ochoa’s first of his three terms, which began in the early 1990s, the city’s elected and appointed leaders have continued to emphasize transparency in government, which is openness, accountability, and honesty. (https://ballotpedia.org/Government_transparency)

Photograph By MARK MONTEMAYOR

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City of Edinburg, as part of its dedication to open government, also posts advance notices for certain informal events which feature its elected and appointed leadership, reports Omar Ochoa

By DAVID A. DÍAZ
Legislativemedia@aol.com

As part of its dedication to transparency in government, which is openness, accountability and honesty, the City of Edinburg is now posting advance notices for certain informal events which feature its elected and appointed leadership, reports City Attorney Omar Ochoa

“Under state law, if a quorum of the five-member Edinburg City Council, which includes the Mayor, is not anticipated to show up for an informal event where one member will be speaking with the public, there is is no advance public notice required,” said Ochoa. 

A quorum refers to a majority of members of a governing body, unless a quorum is defined differently by an applicable law or rule or charter of the body. A quorum must be present for the body to take action.

“But Edinburg has a long and rich history of being transparent, even more so that what state laws require,” he emphasized. “That tradition and commitment to open government remain a pillar of the Edinburg City Council’s philosophy and actions, and posting advanced notices of this type of informal meeting is the latest step forward on behalf of the people’s right to know.”

Under the Texas Open Meetings Act, a governmental body must give advanced public notice of the date, time, place and subject of an upcoming meeting. The notice must be posted in a place readily accessible to the general public at all times at least 72 hours before the meeting. In case of an emergency or “urgent public necessity,” a meeting notice or addition to a meeting agenda may be posted at least two hours prior to the meeting. The governmental body must clearly identify the emergency.

Governing boards, commissions, agencies and other bodies created within the executive and legislative branches of government are subject to the Texas Open Meetings Act. Commissioners courts, city councils, school boards and certain nonprofit corporations providing public services or spending taxpayer money are among the entities covered. Certain property owners’ associations also are subject to the law.

“The Open Meetings Act has certain exceptions (instances) for where a quorum may meet, but still no advanced posting is required,” he said. “However, the City of Edinburg is taking a proactive step to make sure if there is a potential quorum, to notify the public that a quorum may occur.”

Those advanced public notices of certain informal events, as well as all other public notices of meetings of the Edinburg City Council and its jobs-creation arm, the Edinburg Economic Development Corporation,  are posted near the entrance of Edinburg City Hall, and are posted online – and remain posted on the city’s website – for several years. 

(http://cityofedinburg.com/government/agendas_and_minutes/index.php)

Examples of such advance notice postings for informal events are found on the city’s website, with the latest notice taking place for the “City Hall on Call Town Hall Meeting”, which took place on Wednesday, September 18, 2019 at Edinburg City Hall.

In the posting for that event, Ochoa wrote the following language:

“One or more members of the City Council, Planning and Zoning Commission, and Board of Adjustments, City of Edinburg, may attend this gathering of city staff, community members, and council members,” stated the agenda posting. Their attendance may establish a quorum of one or more of these governmental bodies. None will deliberate as a governmental body, take any formal action, or discuss any agenda items or city business. Because of this, no minutes will be taken. This notice is being posted in compliance with the Texas Open Meetings Act, Texas Government Code Chapter 551.” 

City Secretary Ludvinia Leal added on the advanced advisory posting: “I hereby certify this Notice of a Possible Quorum of the City Council was posted in accordance with the Open Meetings Act, at the City Offices of the City of Edinburg, located at the 415 West University entrance outside bulletin board, visible and accessible to the general public during and after regular working hours. This notice was posted on September 13, 2019 at 4:30 pm.”

The same language was used about a week earlier, letting the public know in advance of the Thursday, September 12, 2019 “Coffee with the Mayor” session held at JC’s Restaurant, located at 711 S. Closner Blvd., and about two weeks previous, on Tuesday, August 27, 2019, for the “Mix and Mingle with Mayor Richard Molina” event, held at the Edinburg Chamber of Commerce, located at 602 W. University Drive.

“The City has always been interested in being open and having good government,” Ochoa said. “This was kind of in keeping with that tradition – making sure the public understands that a quorum may occur at these events and to make sure that the City is in compliance with the Texas Open Meetings Act.

“Here at home, Edinburg’s city leadership long has demonstrated its support for transparency in government at the local level, such as through the posting on our website of the entire city council agenda packets, through broadcasting live and maintaining on our city website the full meetings of the city council and Edinburg Economic Development Corporation Board of Directors full meetings,” Ochoa added. “Neither of these major acts of government transparency are required by state law, but the mayor and city council members fully support informing our citizens of the actions of their local government at all times.”

(https://edinburgpolitics.com/2019/06/18/transparency-government-hallmark-edinburg/)

The Texas Municipal League is a government sector lobbying association in Texas. Founded in 1913, its mission is “to serve the needs and advocate the interests of its members.”

TML provides examples of instances when advanced notice postings are not required, even if a quorum of an elected body is present, with the following question and answers for its public:

Does the Open Meetings Act always apply when a quorum of a governmental body is present?”

The Act does not always apply when a quorum of the governmental body is present. There are exceptions throughout the Act when it does not apply when a quorum of the governmental body is present. 

These situations are: 

• A social gathering that is unrelated to the body’s public business, regional, state, or national conventions or workshops, ceremonial events, or press conferences, or the attendance by a quorum of a governmental body at a candidate forum, appearance, or debate to inform the electorate, as long as no formal actions are taken and the discussion of public business is only incidental to the event;

• Attendance at a legislative committee or state agency meeting if the deliberations at the meeting by the members of the governing body consist only of:

a. Publicly testifying at the meeting,
b. Publicly commenting at the meeting, and
c. Publicly responding at the meeting to questions asked by a member of the legislative committee or agency; or 

• When the staff or a member of the governing body of a city or county makes a report about items of community interest during a meeting of the governing body without giving notice of the subject of the report if no action is taken and possible action is not discussed regarding the information provided in the report. Items of community interest include: 

a. Expressions of thanks, congratulations or condolence;
b. Information regarding holiday schedules;
c. An honorary or salutary recognition of a public official, public employee or other citizen, except that a discussion regarding a change in the status of a person’s public office or public employment is not an honorary or salutary recognition for purpose of this subdivision;
d. A reminder about an upcoming event organized or sponsored by the governing body;
e. Information regarding a social, ceremonial or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the political subdivision; and
f. Announcement involving an imminent threat to the public health and safety of people in the political subdivision that has arisen after the posing of the agenda.

The Freedom of Information Foundation of Texas strives to ensure that the public’s business is conducted in public and protects the liberties of free speech and press guaranteed by the First Amendment.

They assist individual citizens, journalists and government officials through educational seminars, an annual conference and a speakers bureau. They also file briefs in important legal cases addressing open government and freedom of speech and press. The Foundation’s FOI Hotline connects Texans with volunteer attorneys who explain open government laws. Their Light of Day project teaches college students how to use public records in their reporting. They are a non-profit 501(c)3 organization.

According to the Texas Freedom of Information Foundation of Texas, two major state laws in Texas help promote and protect the people’s right to know about the activities of their governments and its elected and appointed leaders.

Texas Public Information Act

Covered Entities

The Texas Public Information Act applies to all governmental bodies, including all boards, commissions and committees created by the executive or legislative branch. It also may apply to a body that is supported by public funds or that spends public funds. Private organizations that hold records for governmental bodies also are covered. However, private individuals and businesses are not covered even though they supply goods or services through a government contract.

Types of Information

Public information refers to information collected, assembled, produced or maintained in the course of transacting public business. It may be on paper or film or in electronic communications such as emails, Internet postings, text messages or instant messages.

Exceptions

Some information is not open to the public. These types of information are listed as exceptions in the Texas Public Information Act. They include some information in personnel records, pending litigation, competitive bids, trade secrets, real estate deals and certain legal matters involving attorney-client privilege. Attorneys’ fees paid by a governmental body are generally public.

Law Enforcement

Generally, the front page of a police report is public. Records that would hinder the investigation or prosecution of a crime if they are released are exempt from disclosure.

The Judiciary

Information collected and maintained by the judiciary is not covered by the Texas Public Information Act. That information is governed by public access rules set by the Texas Supreme Court and other applicable rules and laws.

Making a Request

Filing a request under the Texas Public Information Act is as simple as asking the government agency in writing for the desired information. The request can be made through a letter or via email or fax. It does not need to contain any particular language, but it’s important to be clear. Try to be specific. This will help produce the information that is sought and can eliminate the need later for narrowing down a request that is too broad. The governmental body is not allowed to ask why the information is being requested.

Charges

A governmental body or agency can charge for copies of the information, but the fee must be reasonable and cannot be used to discourage someone from asking for information. The requester is entitled to an itemized bill if the charge is more than $40. A governmental entity can also waive copying charges. For more information, see the Texas Cost Rules tab in the Resources section of the website for the Freedom of Information Foundation (http://foift.org). To avoid charges, the requester can ask to view the records in person on the premises of the governmental body.

Withholding Information

Public information is supposed to be released “promptly.” There is a misconception that a governmental body or agency has 10 days to release information. The 10-day mark is the deadline for a governmental body, if it contends the information is not public, to ask for an attorney general’s decision allowing it to withhold the records. (Texas’ open records law is stronger than those in many other states in that if a governmental entity wants to withhold information, it has to ask the attorney general for permission to do so.) After a ruling is sought, the attorney general then decides within 45 days. The person making the original request can also offer written comments to the attorney general. If a governmental body fails to seek an attorney general decision in time, the information is presumed to be public.

Appealing an Open Records Decision

When the attorney general’s office agrees with a governmental body that information can be withheld from the public, the person making the original request has the option of filing a lawsuit in state district court to attempt to have the information released.

Texas Open Meetings Act

The Texas Open Meetings Act is detailed in Chapter 551 of the Government Code. It states that governmental bodies must hold open meetings unless there is an authorized reason for a closed session, also known as an executive session.

Key provisions of the act are as follow:

Covered Entities

Governing boards, commissions, agencies and other bodies created within the executive and legislative branches of government are subject to the Texas Open Meetings Act. Commissioners courts, city councils, school boards and certain nonprofit corporations providing public services or spending taxpayer money are among the entities covered. Certain property owners’ associations also are subject to the law.

Quorum

A quorum refers to a majority of members of a governing body, unless a quorum is defined differently by an applicable law or rule or charter of the body. A quorum must be present for the body to take action.

Posting of Notice

The governmental body must give the public notice of the date, time, place and subject of an upcoming meeting. The notice must be posted in a place readily accessible to the general public at all times at least 72 hours before the meeting. In case of an emergency or “urgent public necessity,” a meeting notice or addition to a meeting agenda may be posted at least two hours prior to the meeting. The governmental body must clearly identify the emergency.

Other Exceptions to Posting Law

Boards or commissions with statewide jurisdiction must have their meeting notice posted on the Internet by the secretary of state at least seven days before a meeting.Committees of the Texas Legislature are not subject to the meeting notice rules above. Their rules are set by the Texas House and Senate.

Closed Sessions

Closed, or executive, sessions may be held by a governmental body in certain situations. Executive sessions are permitted when a body is meeting with its attorney on litigation or a settlement offer; deliberating personnel matters; deliberating the purchase or lease of property; discussing certain financial contract negotiations; or discussing deployment of security devices. Several other exceptions to open meetings are also contained in the Texas Open Meetings Act.

Deliberations Between Meetings

Under a new provision of the act that took effect Sept. 1, 2013, members of a governing body are allowed to communicate with one another about public business between meetings if they do so in writing and on a publicly accessible online message board. The message board must be prominently displayed and easy for the public to find on the government entity’s website. Officials may not take action on the message board. That must wait for a posted meeting.

Video Conferencing

The Texas Open Meetings Act now allows for members of a governmental body to attend a public meeting via a video conference call. The head of the board or commission must be physically present in the designated meeting place and the public must be given access to that meeting space. The public must be able to witness the comments and actions of those officials attending the meeting remotely via audio and video equipment and be able to participate via the videoconferencing just as they would at a traditional public meeting.

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For more on this and other Texas legislative news stories which affect the Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature (TitansoftheTexasLegislature.com).

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