Taxpayers are on the hook.

Previous case ended in a deal.

Simple solution overlooked.

Catherine Dominguez has just updated Courier readers on the investigation underway involving alleged violation of the Texas Open Meetings Act by members of the Montgomery County Commissioners Court in the course of their back room dealings with Julie Turner and the Texas Patriots PAC related to negotiations to get the November 2015 road bond referendum on the ballot.

After more open dealings with a panel formed by Montgomery County Tea Party waxed more demanding than suited the commissioners, County Judge Craig Doyal dispatched political intermediary Marc Davenport to engage with the PAC instead.

Email communications obtained via the Texas Public Information Act became the center of the investigation initiated when District Attorney Brett Ligon, who declining the responsibility himself called on the Texas rangers to get involved. From there the investigation somehow morphed into the appointment of a special prosecutor by favorite DA punching bag Judge Kelly Case.

Dominguez quotes the special prosecutor “We have used grand jury authority to start the process but we haven’t dug into details with a grand jury yet,” and “It is our hope we can have this information collated and organized for an effective review the first part of January with the seated grand jury.”

But a Survey of similar cases in Texas in recent years reveals outcomes that may be less than satisfying for those who made complaints in the case.

In 2011 Travis County Attorney David Escamilla began an investigation after receiving a complaint council members violated the Open Meetings Act by sharing information with one another about items the council would discuss in future meetings.

More than  bargained for

The outcome in that case, a deal –

“Mayor Lee Leffingwell and a lawyer representing Council Member Mike Martinez confirmed to the American-Statesman on Wednesday that they had entered into a “compliance agreement” with prosecutors in the Travis County Attorney’s Office. The deal, which has been offered to other council members as well, caps a two-year inquiry and an embarrassing saga at City Hall.”

At least the County Attorney took the “bull” (so to speak) by the horns. However, as reported recently by the Austin Bulldog, in 2013 “just days before the City of Austin’s first Open Government Symposium was held April 17 of that year—the city wound up paying $157,636 for the criminal defense attorneys who defended Mayor Lee Leffingwell and the five current and one former City Council member during Escamilla’s lengthy investigation.”

“Individual attorney’s fees ranged from as little as $7,525 to defend Council Member Spelman to $47,810 to defend Leffingwell.”

On the subject of private attorneys handling commissioner defense we already checked in with Commissioner Noack who is using Ross Fischer from Gober Hilgers a fancy Austin Law Firm to handle Open Records requests since the investigation began. Fischer advised “my client has directed me to inform you that our firm’s legal services are not being paid with public funds.”

Yet another case concerns Waller County commissioners who protesters complained, violated the Texas Open Meetings Act by secretly colluding with developers, months before anyone else in the community knew about the proposal, to bring the landfill to Waller County.

In that case there was no special prosecutor but rather a civil lawsuit brought by Citizens Against the Landfill and the City of Hempstead who won a verdict in their favor saying the commissioners broke the law. They also won at the ballot box by replacing members of the court.

But as goes with those unintended consequences for Waller County voters Attorney General Ken Paxton issued an opinion KP-0016 which says in summary –

“A county has the authority to pay attorney’s fees for a member of a commissioners court who sought legal representation for a criminal investigation that did not result in any criminal charges filed, provided that the commissioners court determines, subject to judicial review, that the payment will serve a public interest and not merely the member’s private interest.”

Lets make a deal

So now take a look at the findings of the CA in the Austin case.

“We found that (they) regularly deliberated outside of the public’s purview by use of almost every modern communication medium that exists,” he said. “We found probable cause to believe that multiple violations of the Texas Open Meetings Act had occurred.”

However, he said: “This was never an investigation into corrupt practices. There was never even a hint that any of the City Council members were involved in self-dealing, nor was there any evidence that any council member was engaging in these (private) deliberations in order to benefit a friend or political supporter.”

It’s safe to speculate that a Grand Jury in Montgomery County is going to find the same thing i.e. nothing to indict.

Technical Solution

And finally, could all of this have been avoided?

We owe thanks to Chuck Meyer, currently running for Judge for 410 District Court for suggesting commissioners and others to implement a message board which allows government boards including commissioners and authorized staff to post messages about, and hold online discussions of, county business that the public can also follow on the Internet.

It offers a technical solution to the complaints that elected officials, confronted with restrictions placed on deliberations by the Texas Open Meetings Act, sometimes try to make about the need to talk to each other outside of public meetings. The message board solution was authorized by State Senator Kirk Watson’s SB 1297 enacted in 2013 and codified as Government Code Section 551.006.

City of Austin Council Message Board