Opponents of Darren Casey’s Sessom Drive development, including longtime resident Ted Breihen, were jubilant when the San Marcos City Council in June rejected the developer’s rezoning and land use change requests for the second time, effectively killing Darren Casey’s plans to remake 14.5 hilltop acres on Sessom Drive. SAN MARCOS MERCURY PHOTO by JON SHAPLEY
by BRAD ROLLINS
Eight members of the planning and zoning commission were invited to hour-long briefings by Casey and his consulting team on Nov. 17 and 18, 2011, the week prior to the commission’s first public hearing on the proposed $60 million-plus retail and residential landmark across from Texas State University’s north campus area. In a Nov. 16 email, real estate broker and planning commissioner Carter Morris outlined a schedule of meetings between Casey and the other planning commissioners, a document unearthed through public information requests by environmental advocate Forrest Fulkerson, the San Marcos resident whose criminal complaint the police department is looking into.
“It’s what I call the ‘smoking gun’,” Fulkerson said of the email, which he thinks proves officials ignored transparency laws in the run-up to votes on Casey’s development.
Whether his assessment is correct — and a close examination suggests Fulkerson may well be mistaken about key elements of his theory — Fulkerson has succeeded in pushing the Casey affair into the headlines again. This time the police are involved. [Editor’s Note: This story originally said that Fulkerson is a member of Occupy San Marcos. He is a member of Occupy San Marcos’ Facebook group but says he is not a member of the Occupy movement itself.]
Confirming the ongoing investigation on Monday, Assistant Police Chief Chase Staff said he had interviewed all but two of the residents who sat on the planning commission during the period under examination. When he finishes his inquiry, Stapp said he will forward his findings to Assistant District Attorney William Hale, Hays County’s chief misdemeanor prosecutor.
“I am investigating a citizen’s complaint regarding meetings that occurred in 2011. … I hope to wrap it up within the next two weeks and the DA will decide whether there is a criminal case to be made and whether to present it to a grand jury,” Stapp told the San Marcos Mercury.
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The legal question in play is likely whether planning commissioners “knowingly conspire[d] to circumvent [the Open Meetings Act] by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter,” a tactic known as a “walking” or “rolling” quorum. Such an arrangement is described in one opinion issued during Texas Attorney General Greg Abbott’s administration as “a daisy chain of members the sum of whom constitute a quorum that meets for secret deliberations.”
Since all of the commissioners were copied on the same email containing the meetings schedule, it would seem obvious that commissioners knew Casey would be meeting with a quorum of the commission, one commissioner at a time. But that alone does not constitute a violation.
In a widely cited 2000 decision in a lawsuit brought against the City of San Antonio by a coalition of nonprofit groups, Federal District Judge Orlando L. Garcia affirmed that overt acts to circumvent the Open Meetings Act are still violations whether a quorum of members are ever in the same room or on the same conference call. But, Garcia wrote, “a meeting of less than a quorum is not a ‘meeting’ within the act when there is no intent to avoid the act’s requirements.”
Similarly, Travis County Attorney David Escamilla acknowledged that “individual one-on-one meetings not otherwise prohibited under [the Open Meetings Act] are not per se illegal” in an October 2012 settlement agreement with Austin Mayor Lee Leffingwell that ended an investigation into Austin City Hall. When trying to wave city council members away from meetings he considers questionable, San Marcos City Attorney Michael Cosentino reflexively points to the Escamilla-Leffingwell agreement and has circulated links to the documents among council members in what several council members have said they regard as a not-so-subtle warning from their own attorney.
A careful reading of the document, however, makes clear that the major violations that landed Austin city council members in trouble were group emails — often sent from officials’ personal email accounts — through which city policy was discussed and decided on, not Leffingwell’s customary courtesy meetings with each council member before each council meeting.
In interviews on Monday, Taylor and Bishop readily acknowledged that they have routinely met informally with developers — and residents opposed to development — over the years without any concern for whether they were inadvertently violating Open Meetings law.
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