By BILL PETERSON
The San Marcos City Council agenda is up for the July 21 meeting, which promises another tense evening.
The highlight is the return of Springtown Center redevelopment incentives, which the council unanimously voted to deny at the July 7 meeting after much criticism from city residents.
We can be pretty sure, one supposes, that a $5 million interest-free loan won’t be on the table, but Springtown incentive supporters have brought an alternative back quickly, apparently with hopes of going all the way this time. As the agenda item reads, the item is a “Presentation from developer regarding redevelopment of Springtown Center; discussion, consideration and possible approval of incentives for redevelopment of Springtown Center and authorize staff to finalize contract negotiations.”
If you just can’t wait for that show, Economic Development San Marcos (EDSM), the city’s economic development board, is meeting Thursday (that’s today) at 11:30 a.m. in the conference room at City Hall. One expects that the latest Springtown proposals will take a trial run there. After all, wouldn’t it be a kick in the head if council takes up the matter next Tuesday without vetting EDSM?
The EDSM is a public meeting. As Terrell Owens once said, get your popcorn ready. In light of the recent Springtown fiascoes that have been extensively documented by this publication, we’ll be especially interested in how much of the new discussion gets hidden away in executive session.
Another executive session where one wishes to be a fly on the wall will take place among councilmembers at next Tuesday’s council meeting, which starts at 6 p.m. Right after roll call, the council is scheduled for an executive session to discuss unspecified economic development negotiations that almost certainly involve the Springtown incentives.
One of the subtopics relating to that executive session topic reads: “Deliberation on the duties and responsibilities of a public officer; to wit: appointed Board and Commission members(.)” Could someone be going to the woodshed? More seriously, we ask, is that really a matter for executive session? Looks like a pretty long stretch from here.
Presumably, the board under discussion is EDSM, which is an advisory board. The Texas Open Meetings Act (OMA) says councils can close session to discuss certain personnel matters, but only as they pertain to employees and public officers. But EDSM members, as such, aren’t city employees. And an opinion from the Texas Attorney General’s (AG) office says members of advisory boards aren’t public officials. Therefore, the OMA does not support closed session to discuss EDSM members.
Here are the details, labored as they are.
The Texas open meetings handbook says a governing body can meet in executive session “to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee; or … to hear a complaint or charge against an officer or employee.” However, the executive session prerogative “does not apply if the officer or employee who is the subject of the deliberation or hearing requests a public hearing.” Furthermore, the open meetings act allows “executive session deliberations concerning an individual officer or employee. Deliberations about a class of employees must, however, be held in an open session. (italics in the original, Section 551.074, page 49).”
It’s just not at all clear that the OMA gives city councils the green light to enter closed session for general discussion about how board and commission members are to conduct themselves. It is odd that the handbook specifically says a governing body can’t close session to talk about a class of employees, but doesn’t specify that it can’t close session to discuss a class of public officers. The act doesn’t specifically permit closed discussions about a class of public officers, but it doesn’t specifically prohibit that discussion, either.
It’s an open question that raises another open question: are members of boards and commissions really “public officers” for the legal purposes of the open meetings act? EDSM advises and makes recommendations to the city council. It does not pass laws or place the final stamp on big economic development deals. Most of its members certainly aren’t city employees. Do they count as public officers?
By one reading, they don’t. In a 1992 opinion from the AG office, which appears to be the most recent applicable opinion, the AG said the Texas Commision on Fire Protection could not meet in executive session to discuss the qualifications of persons being considered for advisory committees. The reason? Members of advisory committees are neither public officers nor employees. Therefore, they aren’t legitimate topics for closed session.
Quoting from the opinion (Opinion No. DM-149), an advisory committee in question, “has only advisory and ministerial functions, and its members do not exercise any sovereign function of government, largely independent of others. Accordingly, the members of this committee are not officers.” Furthermore, quoting the same opinion, “An employee is a person who works for another for salary or wages,” and the EDSM members certainly don’t serve as such for salary or wages.
Executive session to discuss the “duties and responsibilities” of “appointed Board and Commission members” just doesn’t pass the smell test, especially if the board in question is EDSM. The OMA specifically states that closed session to discuss personnel matters pertains only to employees and public officers. We know most EDSM members are not city employees, and the AG opinion indicates that members of advisory committees are not public officers.
The call for executive session does not appear legal, nor does it even seem relevant. As this publication has argued, the previous Springtown matter resulted from no misconduct by anyone.
It’s late as we read the agenda and write this, so we’re not waking up City Attorney Michael Cosentino for his opinion. He’s likely to invoke attorney-client privilege, anyway. We also don’t have attorneys lying around here. But we can read, and we don’t see justification for executive session on that point.
The city council’s Tuesday night agenda also calls for a couple change orders that involve existing road contracts with Kellogg Brown and Root (KBR), which has a great reputation for road work, but also has been named in a number of ethics questions connected to its international business and its war contracts with the federal government.
Way back in February, this publication pointed out that Hays County and San Marcos both were doing business with KBR. For whatever reason, the county caught all the heat and the city skated. The county ended up cancelling a contract with KBR. The city has taken no such initiative, nor has there been an outcry for the city to do so.
Now, two KBR projects are coming before the city with change orders. Because the city’s website is in transition, it’s not possible to get at the agenda back-up information on short notice. So, we don’t know if the city is breaking contracts with KBR, if it’s merely changing orders, or if it’s fixing to pay KBR even more money. If KBR isn’t good enough to do business with the county, is it good enough to do business with the city? Both items are on the consent agenda, which means they won’t be discussed unless a councilmember pulls them aside. Just a heads up.
And another heads up. The city council, which decided last week to go ahead with prayer at the start of its meetings, is making a bid to at least break its pattern of Christian prayer. The invocation at Tuesday night’s meeting will be given by Rabbi Kerry Baker with Congregation Kol Halev.Email | Print