San Marcos Mercury | Local News from San Marcos and Hays County, Texas

July 7th, 2009
'Rolling quorum' questions remain for council

The San Marcos City Council will meet Tuesday night, in no danger of a “rolling quorum,” to dscuss the Springtown redevelopment, among other matters. File photo.

By SEAN WARDWELL
Managing Editor

To what extent can San Marcos City Councilmembers speak with city residents without violating the Texas Open Meetings Act?

This question arose at the end of last week, when two councilmembers decided to not speak with a gathering of the Downtown Association after receiving legal advice that they could be at risk of creating a “rolling quorum.”

A quorum is a gathering of a majority of city council members, which is a necessary and sufficient condition for a meeting. However, such a quorum is only legally permissible if the meeting has been posted by the city 72 hours in advance.

On July 3, the Downtown Association expected to hear from San Marcos City Councilmembers Kim Porterfield and Pam Couch about a potential $5 million city loan for developers looking to transform Springtown Center into a multi-venue entertainment complex. However, Porterfield and Couch declined to attend the meeting. A member of the Downtown Association had already spoken with Councilmembers John Thomaides and Chris Jones.

Many at the meeting were angered that they could not speak with their elected officials regarding the proposed loan. Downtown square bar owner Allen Shy said a city subsidy for drinking establishments at Springtown is a blow against business owners who invested downtown after the city passed a downtown master plan.

Shy told Downtown Association at the July 3 meeting that he had spoken with Porterfield, who told him she was dissuaded from attending by the advice of San Marcos City Attorney Michael Cosentino. Shy said Porterfield was concerned about a possible “rolling quorum.”

Porterfield could not be reached for comment as to why she didn’t attend the Downtown Association meeting. However, Couch confirmed that Cosentino advised her and Porterfield against meeting with the Downtown Association.

“We were advised to be careful, that was said up front,” Couch said. “(Cosentino said) it would put us in jeopardy. It was very questionable. He did not tell us tell us that we could not go. He gave us some scenarios and talked to us.”

Couch said she decided on her own to not speak with the group after hearing from Cosentino.

However, a spokesperson at the Texas Attorney General’s office was unaware of anything called a rolling quorum.

“Technically, a citizen can talk to whoever they want,” said a spokesperson with the Attorney General’s Office. “They can talk to any member.”

The Texas Open Meetings Act does refer to a “walking quorum,” which prohibits elected officials from deliberating or making decisions either in person or over the phone outside of a meeting. However, nothing in the act prohibits citizens from speaking with their elected officials.

Cosentino would not comment on advice he gave to city officials, citing attorney-client privilege. However, he saw the statement from the Attorney General’s office as one interpretation.

“If there’s an attempt by a citizen to avoid having a posted meeting by consulting with every member of the city council, and that was the plan and they told city councilmembers what we intend to do, that would create some problems there,” Cosentino said. “Because the exchange between the citizen and the councilmember is still a deliberation, a verbal exchange.”

Cosentino then asked about the intentions of Shy in contacting councilmembers, and suggested that Shy or Scott Gregson, co-owner of Newstreamz, be contacted about their intentions with the council. Both Shy and Gregson are members of the Downtown Association.

“My intention was simply to speak to my city councilmembers as a concerned citizen and as a businessman,” Shy said.

The council has confronted similar situations in the past.

“I think what we have to do is clear this up,” Thomaides said. “It’s happened before.”

Thomaides spoke of citizens who wanted to discuss matters with councilmembers, but councilmembers were told they couldn’t by city legal staff.

“When your attorney tells you not to do it, you don’t,” Thomaides said. “No one wants to do anything wrong. No one wants to be embarrassed or be wrong.”

Thomaides said he always thought it was not a violation of the open meetings act to meet individually with citizens.

“Clearly, we’re going to have to get this clarified,” Thomaides said.

The city council agenda lists discussion and possible approval of the Springtown loan at its Tuesday night meeting. Couch said she’s leaning toward approval, based on what she already knows.

“Redeveloping Springtown into something that would be a great, viable business, bringing in lots of sales tax to us, to a great place for families to come, to have entertainment,” Couch said. “How can we turn down something like that, especially in this economy? We’re a blessed community that people would still want to be coming into San Marcos and spending their money.”

Target, which previously occupied much of the space being considered in Springtown, has an Operating Easement Agreement (OEA) that prohibits theaters, bowling alleys, nightclubs and other retail uses from developing on or near the property. The city loan would help the Springtown redevelopers to purchase the building from Target.

Target, JC Penny and Bealls already have moved from Springtown to the new Stone Creek Crossing, after the city provided $6 million in incentives to relocate. The city was unable to remove the restrictions listed in the OEA after offering the incentives.

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10 thoughts on “'Rolling quorum' questions remain for council

  1. So, is the Springtown item still on the agenda? There were comments made that it was pulled and the agenda is not available on the city website, at least not at ci.san-marcos.tx.us/cityhall/citycouncil/. The agenda is listed as “being upgraded.”

  2. Wouldn’t the exchange between a citizen and someone else with regard to what a councilman “planned to do” be “heresay.” I think that may be the basis of the Attorney General’s decision and the distinction between a walking quorum wherein the “talking” is directly between councilmen – with no middlemen. Come on, if some guy off the street told you what a councilman was going to do – wouldn’t you question it…. It’s a whole different ball game than hearing it from the horse’s mouth.

    It was never the intention of the Open Meetings Act to limit access of citizens to their representatives. Get over it.

    Geez. The Council in San Marcos is really paranoid. Or – would rather not face their constituents. The Attorney General’s office has a really great publication on their website about open meetings. It addresses many of these questions.

    Do you think that City Councilmen hesitate in quite the same manner when lunching with developers? Hmmm. I wonder if they keep careful track of who else on Council is doing lunch with them….

  3. “Thomaides said he always thought it was not a violation of the open meetings act to meet individually with citizens.”

    Mr. Thomaides, you are correct. You are allowed to meet (and talk) with citizens.

    If our city council and staff are unable to interpret their own basic protocols, can they be trusted to critically analyze a multi-million dollar proposition?

    I don’t mean to pick on the council (especially Thomaides, hopefully he’ll run for Mayor, he does a good job) but they really need to step up their game. If their too busy with their day jobs, then they need to step down, like Palin.

  4. Jason— what??? “if their too busy with their day jobs, then they need to step down..” ? Do you not understand, that unlike your example of Palin who made over $140,000 per year as Governor, OUR city council and mayor do NOT get paid??? If they quit their day jobs, then how are they supposed to support their families, duh???
    As for the “rolling quorum”, I think those who are critizing the city attorney might want to read deeper in the Open Meetings Act— the part about “meeting in numbers less than a quorum” which is a criminal offense…you can find the Attorney General’s opinions on this as well as case law at the Texas AG website…if you make the effort…

  5. Yes they are paranoid, but for good reason. If there is anything the AG’s office has been consistent about with the Open Meetings Act, it has been their constantly changing interpretations of the Act, especially in regards to quorums discussing items pending on an agenda.

    However, Lila is correct about the distinction between direct interaction between the council members versus receiving and responding to feedback from citizens, and each Councilmember should know that since it is covered in mandated Open Meetings training. Citizen groups rarely get into the polling issues, which is the other issue that may have concerned the city attorney (who is actually quite good, BTW). He advised them to use caution and provided scenarios for what would/would not be OK; he did not tell them not to go.

    This Council definitely needs to step up its game though; it’s time for some of them to start acting like statesmen and demostrate their abilities to critically analyze the increasingly complex issues coming before them.

  6. Chris,

    Perhaps you missed my point. Our Council Members are unpaid, yet its clear that the Council Members’ jobs require more than a part-time work load. Solution? Either we decide to pay our council full-time salaries, so that they can afford to fulfill their elected duties, or we vote for candidates who can afford to work unpaid (not a great solution). My point is that, for whatever reason, our current Members aren’t committing the massive amount of time and energy required to make informed decisions (perhaps because they’re too busy working their day jobs). In comparison, our County Commissioners have great salaries, plus generous annual vehicle allowances. And the commissioners have oversight on a lot less issues than a city council (as far as i can tell). I think maybe our town is too big to have volunteers running it.

  7. This sounds like an excuse more than a reason.

    I know there is a person or group here in town that can administer those funds toward the overall goal of promoting entertainment. That entity would likely have been found at the meeting.

    Problem is, someone at the city already promised this money to someone else; the more in-the-dark we are (esp. local business owners) the better so far as that someone is concerned.

  8. I wonder who that spokesperson was from the Attorney General’s Office? Weird how it’s the Attorney General’s Office who prints the Open Meetings Act booklet. I have read over the 2006 and 2008 Open Meetings Act, and I would like to know where you get the information that they are constantly changing? From what I have read they are pretty consistent…especially about the “rolling quorum” and the criminal charges which I believe council members should be charged with. If you want transparency and an honest council then charge them please.

    Jason, have you ever worked for a city official? You might want to do that before you say they don’t put in massive amounts of time into their job as a city official.

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