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The war on sunshine in Texas

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Peggy Venable

Americans for Prosperity State Director

A war on sunshine and an attack on open government rages in Texas.

Cities are using public money to sue the state to gut the Texas Open Meetings Act (TOMA), which prohibits a quorum of elected officials from discussing official matters outside of a posted public meeting.

This constitutes lawsuit abuse. And to add insult to injury, the Texas Municipal League is behind the measure.

The League is one reason Texas property taxes are so high, since they oppose any legislative effort to give local voters the right to reject property tax increases that exceed the rate of inflation and population growth.

The latest assault on open government began in 2004, when in Alpine, a city councilmember used private email accounts to ask fellow council members if a specific item should be on the council’s agenda. One councilmember replied using a private email account that is should.

The local district attorney decided this email exchange violated TOMA because the emails involved a quorum of the city council.

As result, two of the council members were criminally indicted by a grand jury.

The charges were later dropped.

Alpine, and several other cities, filed a lawsuit last December claiming the Texas Open Meetings Act violates city officials’ right to free speech. Furthermore, the lawsuit claims that official communications over the Internet, including emails and social networking sites, should be allowed.

City officials want to use social media to get around the Open Meetings Act, and in doing so, they want to take the teeth out of the Act.

New media should not be used to constitute new ways to circumvent the law.

The criminal attorney representing the cities is none other than Dick DeGuerin, who also represented (among others) David Koresh during his standoff with federal agencies in Waco.

The lawsuit claims that the cities "seek nothing more than to enforce freedom of speech for public officials the citizens of Texas have elected to speak for them."

They want to "unshackle Texas elected officials so they can perform their duties as representatives of the citizens who elected them to speak." Actually, voters elected them to do the people’s business. Elected officials chose to work in the public sector.

They handle public dollars and make decisions which impact citizens’ lives and livelihoods.

That business should be conducted under the light of public scrutiny.

Would the same argument these rogue cities are making work for insider trading?

Would free speech cover a corporate representative of a publicly-held company giving private tips to sell the company before the information is made public? The Texas Municipal League passed a resolution supporting the cities’ lawsuit which reads, in part:

"…the Texas Municipal League has the ability to represent the best interests of Texas municipalities before the legislature…" and they call for amending the Open Meetings Act by replacing the criminal enforcement provisions with less restrictive penalties to "balance the First Amendment right of governmental officials."

First, to amend TOMA by only lifting the criminal enforcement provisions indicates they just want the penalties to be lighter, while not changing the law.

Second, the League contends that citizens elect the city officials to "speak for them" before the legislature. Really? Then why do cities and the League spend millions of taxpayer dollars a year hiring lobbyists to speak for the cities, a practice most taxpayers find offensive.

Third, an elected official’s ability to speak in private among a quorum of his fellow elected officials is trumped by the public’s right to have the people’s business done in public. The simple fact that these city officials and the League want the right to do business in private makes their work all the more suspect.

Those organizations coming to the public defense in support of TOMA include the Texas Press Association, Texas Daily Newspaper Association, Texas Association of Broadcasters, The Freedom of Information Foundation of Texas and now Americans for Prosperity.

While the cities’ lawsuit claims that elected officials’ individual free speech rights are being chilled, they are willing to put the citizens’ rights to an open, transparent government on ice. If their claim that the Texas Open Meetings Law is unconstitutional prevails, the public will be the biggest loser.

Americans for Prosperity (AFP) is a nationwide organization of citizen leaders committed to advancing every individual’s right to economic freedom and opportunity. AFP believes reducing the size and scope of government is the best safeguard to ensuring individual productivity and prosperity for all Americans. AFP educates and engages citizens in support of restraining state and federal government growth, and returning government to its constitutional limits. For more information, visit www.americansforprosperity.org.


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