Pflugerville sues state, challenges Open Meetings Act

By Rob Heidrick Thursday, 17 December 2009

PFLUGERVILLE — The City of Pflugerville has joined several other cities in a lawsuit against the Texas Attorney General’s office, charging that the Texas Open Meetings Act prescribes unconstitutional penalties for local officials who are charged with violating the law.

The act makes it illegal for a group, or quorum, of city council members to communicate with one another anywhere but in an official public meeting. In Pflugerville, the presence of three or more elected officials is considered a quorum.

Violations of the law are punishable by a $500 fine and up to six months in jail.

Pflugerville City Attorney Floyd Akers said the criminal penalties violate the First Amendment’s guarantee of free speech because they prevent council members from speaking at will for fear of being prosecuted.

“The city decided to join the lawsuit because the council believes the Open Meetings Act chills the free speech rights of elected officials—and also the citizens’ rights to listen to their elected officials,” Akers said.

The cities of Alpine, Big Lake and Rockport joined Pflugerville in filing suit against the state and Texas Attorney General Greg Abbott.

The Open Meetings Act was designed to prevent elected officials from making decisions in secret without public accountability. But Akers said the act spills over into the private lives of council members because it technically forbids them from congregating in any club or social setting, even if they have no intention of discussing city business. It also technically outlaws candidate forums and debates that take place outside of official city meetings.

In April, members of the city council attended a reelection fundraiser for Councilman Victor Gonzalez, who fielded questions from constituents at the event. Gonzalez’s opponent, Erica Grignon, then filed a criminal complaint claiming a violation of the Open Meetings Act—charges were ultimately dismissed.

Akers added that the act disproportionately affects small cities because city officials in these communities often belong to the same civic organizations, such as the Lions Club, Rotary International or local churches. In larger cities such as Austin, council members live father apart from one another and are less likely to be involved in the same community organizations, Akers said.

“The smaller the town the greater it affects the public officials’ rights,” he said.

The City of Alpine issued a similar challenge to the Open Meetings Act in April, when a three-judge panel on the 5th Circuit Court of Appeals deemed the criminal penalties unconstitutional. Abbott appealed the decision but withdrew the case after the terms of several Alpine council members came to an end, rendering the appeal moot.

Texas is one of five states to impose criminal penalties for violating the Open Meetings Act. The remaining 45 states void any action taken by city officials outside of public meetings but do not include the possibility of fines or jail time.

“The desired outcome here is to show the state that the criminal provisions are unconstitutional and to have them removed from the act,” Akers said.

The lawsuit was filed with a federal district judge in Pecos, Texas, and no hearing dates have been set.

Read the Lawsuit [PDF]