1. SUNSHINE VERSUS FREEDOM OF SPEECH AN OPEN MEETINGS ACT CHALLENGE UNDER THE FIRST AMENDMENT Presented to the 18th Annual Administrative Law Course Austin, Texas September 28, 2006 Greg Hudson HUDSON & OLEARY LLP 1717 West Sixth St., Suite 258 Austin, Texas 78703 (512) 441-9941 ghudson@holaw.net ghudson@holaw.net

2. City Council* – City of Alpine City Council* – City of Alpine Composed of five (5) councilpersons Composed of five (5) councilpersons And a Mayor, who does not vote except in a tie And a Mayor, who does not vote except in a tie QUORUM = MAYOR & 3 COUNCILMEMBERS, OR QUORUM = MAYOR & 3 COUNCILMEMBERS, OR FOUR COUNCILMEMBERS *Alpine City Charter, Art. III.

3. October 21, 2004 email – Alpine Councilperson, Katie Elms-Lawrence to three other council members Avinash, Manuel … Anna just called and we are both in agreement we need a special meeting at 6:00 p.m. Monday … so you or I need to call the mayor to schedule it (mainly you, she doesnt like me right now Im Keris MOM) … we both feel Mr. Tom Brown was the most impressive … no need for interviewing another engineer at this time … have him prepare the postponement of the 4.8 million, get us his firms review and implementation for the CURE for South Alpine … borrow the money locally and get it fixed NOW … then if they show good faith and do the job allow them to sell us their bill of goods for water corrections for the entire city … at a later date … and use the 0% amounts to repay the locally borrowed money and fix the parts that dont meet TECQ standards … We dont have to marry them … with a life long contract, lets just get engaged! Let us hear from you both KT

4. October 2, 2004 Email reply – Avinash Rangra to Elms-Lawrence and 3 councilpersons Hello Katie … I just talked with John Voller of Hibb and Todds of Abilene … and invited him to come to the Monday meeting. I asked him to bring his money man also … these guys work for Sul Ross … He said … he will be at meeting Monday … Ill talk with Tom Brown also after my 8:00 class … Thanks for the advice … and Ill talk with Mickey as per your, Anna, and Manuel directions … and arrange the meeting on Monday … WE must reach some sort of decision SOOOOOOOOOOOOON. Avinash Katie … Please correct my first name spellings … Thanks

6. Dismissal of Indictments Due to problems with evidence, the criminal indictments were dismissed upon motion of the District Attorney Due to problems with evidence, the criminal indictments were dismissed upon motion of the District Attorney Defendants objected to the dismissal, but trial court overruled and dismissed Defendants objected to the dismissal, but trial court overruled and dismissed Defendants appealed dismissal to El Paso Court of Appeals Defendants appealed dismissal to El Paso Court of Appeals El Paso Court of Appeals affirmed dismissals without prejudice El Paso Court of Appeals affirmed dismissals without prejudice Led to Civil Action filed in Federal Court by Plaintiffs Led to Civil Action filed in Federal Court by Plaintiffs

7. One of two Criminal Provisons of Tex. Open Meetings Act § 551.144. CLOSED MEETING; OFFENSE; PENALTY. (a) A member of a governmental body commits an offense if a closed meeting is not permitted under this chapter and the member knowingly: § 551.144. CLOSED MEETING; OFFENSE; PENALTY. (a) A member of a governmental body commits an offense if a closed meeting is not permitted under this chapter and the member knowingly: (1) calls or aids in calling or organizing the closed meeting, whether it is a special or called closed meeting; (1) calls or aids in calling or organizing the closed meeting, whether it is a special or called closed meeting; (2) closes or aids in closing the meeting to the public, if it is a regular meeting; or (2) closes or aids in closing the meeting to the public, if it is a regular meeting; or (3) participates in the closed meeting, whether it is a regular, special, or called meeting. (3) participates in the closed meeting, whether it is a regular, special, or called meeting. (b) An offense under Subsection (a) is a misdemeanor punishable by: (b) An offense under Subsection (a) is a misdemeanor punishable by: (1) a fine of not less than $100 or more than $500; (1) a fine of not less than $100 or more than $500; (2) confinement in the county jail for not less than one month or more than six months; or (2) confinement in the county jail for not less than one month or more than six months; or (3) both the fine and confinement. (3) both the fine and confinement. (c) It is an affirmative defense to prosecution under Subsection (a) that the member of the governmental body acted in reasonable reliance on a court order or a written interpretation of this chapter contained in an opinion of a court of record, the attorney general, or the attorney for the governmental body. (c) It is an affirmative defense to prosecution under Subsection (a) that the member of the governmental body acted in reasonable reliance on a court order or a written interpretation of this chapter contained in an opinion of a court of record, the attorney general, or the attorney for the governmental body.

8. Is an email exchange a deliberation under TOMA? A deliberation under TOMA is defined as averbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business. Tex. Govt Code §551.001(2).

9. EMAILS = DELIBERATION? The Attorney General has relied on the dictionary definitions that equate deliberation with dealing in or with words rather than necessarily being limited to spoken words. The Attorney General has relied on the dictionary definitions that equate deliberation with dealing in or with words rather than necessarily being limited to spoken words. Tex. Atty Gen. Op. No. JC-0307 (2000) at fn.6.

10. DOES A QUORUM HAVE TO BE PHYSICALLY PRESENT FOR A VIOLATION OF THE ACT? NO – There is such a thing as a Walking Quorum NO – There is such a thing as a Walking Quorum A situation wherein a deliberation occurs without an actual quorum of the local governing body being physically present in one place. A situation wherein a deliberation occurs without an actual quorum of the local governing body being physically present in one place. Esperanza Peace and Justice Center v. City of San Antonio 316 F. Supp. 2d 4233 (W.D. Tex. 2001) Esperanza Peace and Justice Center v. City of San Antonio 316 F. Supp. 2d 4233 (W.D. Tex. 2001) Tex. Atty Gen. Op. No. JC-0307 (2000) Tex. Atty Gen. Op. No. JC-0307 (2000)

11. But Doesnt the Deliberation Require the Participation of All Members of the Quorum Present? No. A prohibited deliberation may involve a communication on a matter of public business by one member of a local governing body made in the presence of other members whose numbers in total constitute a quorum. No. A prohibited deliberation may involve a communication on a matter of public business by one member of a local governing body made in the presence of other members whose numbers in total constitute a quorum. The Open Meetings training video produced by the Attorney General states that a meeting occurs when: a quorum gathers; public business is discussed; and EITHER (1) a member of the governmental body speaks or (2) the governmental body called, conducts, and is (3) responsible for the meeting. The Open Meetings training video produced by the Attorney General states that a meeting occurs when: a quorum gathers; public business is discussed; and EITHER (1) a member of the governmental body speaks or (2) the governmental body called, conducts, and is (3) responsible for the meeting.

12. Deliberations Involving Non- Board Members Tex. Atty Gen. Op. No. JC-0307 (2000) - Facts: a non-board member meets and confers upon matters of public business with individual members of a public body, ultimately meeting with a quorum of such officials. Tex. Atty Gen. Op. No. JC-0307 (2000) - Facts: a non-board member meets and confers upon matters of public business with individual members of a public body, ultimately meeting with a quorum of such officials. The Attorney General noted that these conversations do not constitute violations of TOMA when they are initiated by the non- board member on his/her own volition, even though he/she meets with a quorum of the governing board. The Attorney General noted that these conversations do not constitute violations of TOMA when they are initiated by the non- board member on his/her own volition, even though he/she meets with a quorum of the governing board. However, if the non-board member is enlisted by a board member to poll or work out an understanding among a quorum of the local governing board, there could be a violation. In fact, the Opinion went on to state that the section 7.01 of the Penal Code (the accessory statute) potentially makes the non-board member criminally responsible for an offense under TOMA if he/she aids or abets the commission of the crime. However, if the non-board member is enlisted by a board member to poll or work out an understanding among a quorum of the local governing board, there could be a violation. In fact, the Opinion went on to state that the section 7.01 of the Penal Code (the accessory statute) potentially makes the non-board member criminally responsible for an offense under TOMA if he/she aids or abets the commission of the crime.

13. A Violation of Section 551.144 Can Occur Without Criminal Intent Section 551.144 imposes criminal liability without scienter – similar to strict liability Section 551.144 imposes criminal liability without scienter – similar to strict liability Tovar v. State, 978 S.W.2d 584, 587 (Tex. Crim. App. 1998) (en banc) - A member of a governmental body can be held criminally responsible for his involvement in the holding of a closed meeting which is not permitted under TOMA regardless of his mental state with respect to whether the closed meeting is permitted under TOMA. Tovar v. State, 978 S.W.2d 584, 587 (Tex. Crim. App. 1998) (en banc) - A member of a governmental body can be held criminally responsible for his involvement in the holding of a closed meeting which is not permitted under TOMA regardless of his mental state with respect to whether the closed meeting is permitted under TOMA. All the member has to do is be a part of the quorum present when the impermissible deliberation occurs. All the member has to do is be a part of the quorum present when the impermissible deliberation occurs.

14. So is TOMA unconstitutionally vague and overbroad, (impinging on freedom of speech), or is it simply imposing time, place and manner restrictions? Plaintiffs and Attorney General sharply disagree Plaintiffs and Attorney General sharply disagree Attorney General Says 551.144 is plain on its face – easy to understand Attorney General Says 551.144 is plain on its face – easy to understand Plaintiffs complain it is broad and vague Plaintiffs complain it is broad and vague

15. The Trial – July 26, 2006 One day trial before the Hon. U.S. District Judge Junell in Pecos Texas (Western District) One day trial before the Hon. U.S. District Judge Junell in Pecos Texas (Western District) Testimony of 83 rd District Attorney (for State of Texas) Testimony of 83 rd District Attorney (for State of Texas) Testimony of Council members Rangra & Monclova, El Paso City Attorney, General Counsel Texas Municipal League, Dennis Olsen, Texas Tech Law Professor (For Plaintiffs) Testimony of Council members Rangra & Monclova, El Paso City Attorney, General Counsel Texas Municipal League, Dennis Olsen, Texas Tech Law Professor (For Plaintiffs) Subsequent deposition testimony of former State Sen. John Montford Subsequent deposition testimony of former State Sen. John Montford

16. Tex. Atty Gen. Op. No. GA-0326 (2005), citing Kolender v. Lawson, 461 U.S. 352, 357 (1983) – Generally, the void- for-vagueness doctrine "requires that a penal statute define the criminal offense with such definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.Tex. Atty Gen. Op. No. GA-0326 (2005), citing Kolender v. Lawson, 461 U.S. 352, 357 (1983) – Generally, the void- for-vagueness doctrine "requires that a penal statute define the criminal offense with such definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.Kolender v. Lawson, 461 U.S. 352, 357 (1983)Kolender v. Lawson, 461 U.S. 352, 357 (1983) ATTORNEY GENERAL - SECTION 551.144 IS NOT AMBIGUOUS

17. Attorney General - Statements and conduct of local governmental officials when acting in their official capacities is not Speech protected by the First Amendment. (citing Terrell v. Univ. of Tex. Sys. Police, 792 F2d 1360, 1362 (5th Cir. 1986)([S]peech made in the role as [public] employee is [protected] only in limited cases). PROTECTED SPEECH?

18. Plaintiffs Argue: Criminalization of the conduct at issue is unique to Texas Act – dissimilar to 33 other States acts Criminalization of the conduct at issue is unique to Texas Act – dissimilar to 33 other States acts 551.144 is vague and ambiguous and is therefore unconstitutionally overbroad 551.144 is vague and ambiguous and is therefore unconstitutionally overbroad Draconian illustrations of potential violations of 551.144 reflect its constitutional flaws Draconian illustrations of potential violations of 551.144 reflect its constitutional flaws

19. SUNSHINE VERSUS FREEDOM OF SPEECH AN OPEN MEETINGS ACT CHALLENGE UNDER THE FIRST AMENDMENT Presented to the 18th Annual Administrative Law Course Austin, Texas September 28, 2006 Greg Hudson HUDSON & OLEARY LLP 1717 West Sixth St., Suite 258 Austin, Texas 78703 (512) 441-9941 ghudson@holaw.net ghudson@holaw.net