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
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.Email | Print