San Marcos Mercury | Local News from San Marcos and Hays County, Texas
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Council member John Thomaides, second from left, discussed an upcoming development vote with planning commissioner Carter Morris in January 2011. The Ethics Review Commission later determined it was improper for Morris to have arranged the meeting but made no determination on whether Thomaides was in the wrong for attending. SAN MARCOS MERCURY PHOTO by JOHN SHAPLEY

Council member John Thomaides, second from left, discussed an upcoming development vote with planning commissioner Carter Morris in January 2011. The Ethics Review Commission later determined it was improper for Morris to have arranged the meeting but made no determination on whether Thomaides was in the wrong for attending. SAN MARCOS MERCURY PHOTO by JOHN SHAPLEY

STAFF REPORT

City council member John Thomaides declined this afternoon to talk about a meeting in January 2012 between himself and planning commissioner Carter Morris that drew a rebuke from the San Marcos Ethics Review Commission last month.

Emerging from a 50-minute-long executive session, Thomaides announced that the council had instructed city staff to put an item on the agenda for the council’s meeting next Tuesday that would remove Morris from his planning and zoning commission post if he does not resign before then. Thomaides presided over the meeting as mayor pro tem because Mayor Daniel Guerrero was out of town, Thomaides said.

After the meeting, the Mercury asked Thomaides about the council’s decision and how he plays into it. One of the two infractions that five members of the ethics commission found to be “minor” violations of the ethics code involved a breakfast meeting between Morris and Thomaides.

At the time, developer Darren Casey had five large-lot homes near Sessom Drive under contract to buy, the setting for what he envisioned as a 1,000-bed luxury apartment complex with 20,000 square feet of retail space. Morris represented both Casey as the buyer and the home owners as the sellers.

While Morris recused himself from planning and zoning commission votes on the project, he met with Thomaides and most other council members to talk about Casey’s project as well as speaking in favor of the project at a city council public hearing.

Thomaides eventually voted against the project both times it came before the San Marcos City Council.

Here is audio of the exchange followed by a transcript. (Audio quality is uneven).

Audio

Transcript

Thomaides: What was your question?

Mercury: About the removal of the P&Z commissioner. Was that [decision] based on the Ethics Review Commission ruling on the subject?

Thomaides: Well, we discussed it. We had a thorough discussion about all aspects of it and the outcome of the discussion was, I had mentioned in the [meeting], from the council was to take this action and put it on the agenda for a possible removal if the resignation does not occur. … It’s really just a byproduct of the whole discussion that the council had.

Mercury: Since one of the infractions that the Ethics Commission identified involved a meeting with you, where do you stand in this? Do you think you did anything unethically in having that meeting?

Thomaides: We didn’t — that — that [laughs] That wasn’t really the discussion.

Mercury: Sure. But I’m just asking. You didn’t call me back. That was one of the things I was going to ask you on the phone. Since the Ethics Commission determined that meeting was improper and you were one of the people in that meeting, do you think you did anything improper?

Thomaides: If you want to talk about this agenda item, I’d be happy to talk to you about this —

Mercury: — So you’re not going to answer the question?

Thomaides: If you want to talk about something else, Brad, I’ll talk to about it at another time. But that’s not really part of what this is.

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9 thoughts on “Thomaides: No comment on propriety of meeting

  1. The conflict of interest was Morris’s conflict. Thomaides had no conflict. Thomaides violated no provision of the Ethics Code.

  2. Carter Morris crossed the line, a complaint was filed, was duly considered, and he was represented by a [high priced?] Austin lawyer.

    The commission voted. It set a precedent for future behavior. Carter Morris is probably not the least bit happy with the precedent probably being named the “Carter Morris Precedent” but he has been duly cited by the Ethics Commission in an open and public vote and any further action AT ALL by the council of throwing him under a bus, then a railroad engine, then a tractor with a plow, then under a grader, and then under a semi and then drone bombing him is just plain cruel overkill.

    And irrational. Way irrational.

    If you want to see what the REAL problem is, take a look at a copy of the city financial disclosure forms — apparently modeled after Washington financial disclosure forms — carefully designed, not for transparency but for opaqueness. Like all this fake “bank transparency”.

    Thom Prentice

  3. Thom-It’s funny that you mention transparency when trying to minimize Carter Morris participation before a vote at the P&Z. The whole effort by Forrest and many others is to have an open gov’t.

    It seems that the first two complaints were about illegal participation after the P&Z vote. They were settled with a warning. The participation was or could have been unintentional. The new complaint was about participation that was before the vote at the P&Z. Not only did Carter have a conflict of interest and broke those rules, but he broke the open meetings act by having and/or arranging private meetings as well. He also involved other P&Z members and risked the making the project voidable.

    The false assertion that there is a “new interpretation” of the ethics code is wrong. Texas statutes say the once a conflict is discovered or reasonable should have been discovered, then no “further” participation is allowed. This is the age old interpretation. Nothing has changed in the way that the SM Ethics commission interpreted the first two complaints. They were in line with the Texas statutes.

  4. Brad, are you running a newspaper or a supermarket tabloid? The idiom, “Quit beating a dead horse,” comes to mind.

  5. Lamar:

    I’m glad you showed up here. I have a legal question:

    According to the interpretation of the Open Meetings Act advanced by Forrest Fulkerson and this pseudonymous attorney John C — both of whom are posting comments from the same IP address, by the way — P&Z members participated in an illegal walking quorum by meeting individually with Morris and Casey. Would the same logic not apply to the City Council? If it was illegal for Sherwood Bishop, Kenneth Ehlers and Curtis Seebeck, etc. to meet individually with Morris about the Casey project would it not likewise be illegal for John Thomaides and any other council member who took meetings on this subject outside a formal, called meeting of the full council? (That’s assuming that a quorum did so. And I assure you that a quorum did so.)

    And here’s a question for council members:

    Do you think maybe you’re being manipulated into bringing the temple down on your own heads?

    This gets more interesting by the minute. In the next hour or two, I will post a letter from Morris’ lawyer in which he makes clear Morris will not go away quietly. Addendum: I probably won’t post the letter until tomorrow. Trying to digest all the arguments.

  6. This is not a simple question, but I will try to sort out the legal issues.

    The leading case that is quite complicated is Esperanza Peace and Justice Center v. City of San Antonio, 316 F. Supp. 2d 433 (W.D. Tex. 2001). It involves many issues other than Open Meetings requirements. Here’s how I think it applies to your question:

    If two or more members of a governmental body meet to deliberate on a public matter in order to avoid open meetings requirements, a violation may well have occurred.

    When a third party meets with one member of a governmental body to discuss a public matter, the Open Meetings Act does not seem to be triggered. Here I make a distinction between Morris’s meeting with a council member to discuss a public matter and his meeting with a member of P&Z on which he serves as a member. Because Morris is not a member of the City Council, no Open Meetings violation can occur because Morris and a city council member can’t deliberate about a public matter. They can merely discuss it.

    If Morris meets with another P&Z member to deliberate about a public matter that is before or will come before P&Z, that is different because they can deliberate since both are decision-makers on that governmental body. In that situation, the “rolling quorum” analysis MAY apply, depending on the facts. I don’t know all the facts, so I would not try to make a judgment about that.

    One of the issues discussed by Esperanza is was there an intent to deliberate and thus violate the requirement for open, public deliberations of a public matter. The following quote from Esperanza discusses these and related matters:

    “The Texas Open Meeting Act requires that “[t]he executive and legislative decisions of our governmental officials as well as the underlying reasoning must be discussed openly before the public rather than secretly behind closed doors.” Acker v. Texas Water Comm’n, 790 S.W.2d 299, 300 (Tex.1990). The Act requires “openness at every stage of a governmental body’s deliberations.” Id. Because citizens are entitled to know not only what government decides but to observe how and why every decision is enacted, exact and literal compliance with the terms of the Open Meetings Act is demanded. Id. “The Open Meetings Act was promulgated to encourage good government by ending, to the extent possible, closed-door sessions in which deals are cut without public scrutiny.” Save Our Springs Alliance, Inc. v. Lowry, 934 S.W.2d 161, 162 (Tex.App.Austin 1996, orig. proceeding) (citing Cox Enters., Inc. v. Board of Trustees of Austin Indep. Sch. Dist., 706 S.W.2d 956, 960 (Tex.1986) (“The Act is intended to safeguard the public’s interest in knowing the workings of its governmental bodies.”)). Provisions of the Act should be liberally construed to effect its purpose. Finlan v. City of Dallas, 888 F.Supp. 779 (N.D.Tex.1995).”

  7. Unless I misunderstood, John C’s argument was that an Open Meetings violation occurred simply through discussion of an upcoming official business outside of a properly called meeting because the developer met with quorum of the body, one member at a time. In that case, it is immaterial whether Morris was present at the meetings with P&Z commissioners in determining whether the meetings violated the Open Meetings Act. And it would seem, consequently, that the council members’ meetings with Morris and/or Casey would have been Open Meetings violations, whether or not Morris was a city council member.

    My argument was that the Morris/Casey meetings with P&Z commissioners were not necessary a violation of the Open Meetings Act, though they could have been depending on whether the meetings were a conscious attempt to circumvent the Open Meetings Act instead of just receive information. Your assessment seems to more or less coincide with mine. I hope you aren’t insulted by my saying so and, if it’s any consolation, I think we reached our conclusions differently. 🙂

  8. This is my view, put as succinctly as I can put it: The Morris meetings with P&Z members could have been a violation of the OMA depending on all of the facts. His meetings with city council members could not have been violations because he is not a member of that body.

    I can imagine circumstances where council members use a third party intermediary to circumvent the OMA, but I am unaware of any facts that suggest that Morris functioned in that role on behalf of city council members in the instant case. From what I have read, he was functioning as a representative of Casey, not any members of the council.

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