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

October 9th, 2013
San Marcos police probe P&Z meetings with developer

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

Writing a new chapter in the ongoing tale of Darren Casey’s miscarried Sessom Drive dream, the San Marcos Police Department is investigating whether planning and zoning commissioners violated the Texas Open Meetings Act when they met individually with the San Antonio developer in a series of meetings nearly two years ago.

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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80 thoughts on “San Marcos police probe P&Z meetings with developer

  1. One-on-one meetings are not, by definition illegal, UNLESS the non-government official gives notice that they have/intend to meet or converse with other government officials.

    An example given to me was that, if a private citizen contacts a member of the City Council via phone, and during the course of the conversation the council member discovers that the citizen has already contacted other council members, or that they intend to, they cannot continue the conversation.

    This creates a bit of a headache when someone contacts the entire council via e-mail, as the individual members can’t respond, even with a cursory “thank you for your message”, because of the possibility that the other members have done the same.

    Since the November 16th email was sent to a quorum of the P&Z, anyone who actually went through with a meeting on the 17th and 18th committed a pretty blatant TOMA violation.

    P.S. While Escamilla-Leffingwell may be an interesting read, it’s essentially a political document with no real binding authority.

  2. “Environmental advocate”, “Occupy San Marcos member”…so subtle. Maybe you could add long-time citizen of San Marcos to that list of characterizations of Mr. Fulkerson.

  3. Sorry you don’t like, Watson.

    I’ve had multiple people ask me, “Who is this guy?” These are things intended to help answer that question because I don’t know much more. He told one of the ethics commissioners, in response to a question, that he lives with his aging father, who he helps care for. I think he said he has a chemistry degree but he said he doesn’t have a job. So I can’t really identify him by his occupation or vocation, which normally is a pretty good identifier.

    By the way, I called him an environmental advocate instead of an activist, which has kind of a shrill sound to it. I don’t know what’s wrong with being an environmental advocate but he certainly is one. I’m just trying to flesh out the story, not smear the guy.

    What is it about these descriptors that you find so objectionable?

  4. Was this after Morris recused himself?

    If so, it would seem like there are two issues. The article and the investigation seem to focus on whether or not there was a rolling quorum, but there also seems to be a question of whether Morris was discussing the project with city officials.

    I understand that speaking to council was a “minor” violation, that may have been the result of a misunderstanding of the rules, but facilitating (and possibly participating in) meetings with P&Z would seem to be far more difficult to explain away.

  5. Ever catch yourself using the same word a hundred times in one brief statement, and wonder how it got stuck in your head?

    It seems like I need a thesaurus today.

  6. This was before I the recusal, I think, but not really sure about that. But you’re right that there are kind of layered issues here that can be separated into to main categories: Conflicts of Interest and Open Meetings.

    I’m sure most P&Z and city council members would love to keep the focus on the Conflict of Interest stuff and avoid the wider spread Open Meetings issues. I focused on the Open Meetings part because I just want some clarity about what the rules are.

    This Cosentino interpretation of the Open Meetings Act is absurd as far as I can tell, not from a legal standpoint, of course, but just from a matter of practicality. I understand our city attorney’s been told by many a legal authority that his view is rather extreme. If we apply his interpretation to our community, every P&Z commissioner and every city council member and every county commissioner is running amok with illegal meetings.

    I do not believe this to be the case, but this seems like a good time to ring some answers out of these people.

    Addendum: On the recusal, the earliest recusal affidavit I have Carter Morris is November 22, 2011 so these meetings would have taken place a week beforehand.

  7. Thanks for the clarification.

    Re: running amok with illegal meetings, I don’t have any idea what might be going on (although I did see phone records a few years ago, which certainly gave me pause). I suspect that may be what gets people all wound up. Whether it is legal or not, people already upset about controversial issues are likely to get even more upset when they find out they haven’t even been involved in (or aware of) the conversations surrounding the issues.

    While these private meetings may not lead to secret deliberations, they do seem to be an opportunity for one side to present its case, without the other side hearing, which makes it difficult for them to refute any claims that may be made.

    The fewer private meetings about hotly contested public issues, the better, IMO.

  8. Again, great work here Brad. Sorting the wheat from the chaff in Texas Open Meetings Law violations is not for the faint of heart. Your thoroughness in fleshing out all sides over these always volatile/hostile San Marcos land use issues is top shelf.

    Excellent piece sir. SM is lucky to have you.

  9. Fulkerson is complaining that private citizens who serve as volunteers on a city commission took time out of their life to learn more about a project they were considering – oh the horror. And he would take it so far as to bring a criminal complaint against them? All for an issue that his ilk won on? I think I will make a complaint to the police about Fulkerson stealing money from all of us who pay local taxes to support the police force and district attorney to fight crime, not be tools for his personal grudge. What a jerk.

  10. Ted

    I was being sarcastic about council members running amuck with illegal meetings.

    From what I understand, Cosentino has been telling council members — citing this Escamilla-Leffingwell thing as his basis — for a while that they are breaking the law if they meet with anyone — a citizen, a developer, a citizen-developer — who happens to have already met with three other council members because then they are taking part in a walking quorum. The whole thing is ridiculous and only serves to separate elected officials from the people who elected them.

    This Morris situation has some added wrinkles but the basic shape is the same. P&Z members were invited to meetings to learn more about a big project that was coming up. Unless someone was sitting there collecting pledge cards — i.e. “knowingly conspiring to circumvent [the Open Meetings Act] by meeting in numbers less than a quorum for the purpose of secret deliberations” — then I don’t see a violation.

    Bottom line — and I have an opinion piece on this coming — this is an election season stunt to undermine the citizenry’s trust in their government and give a leg up to the team that can never post a win without a little theatrics.

  11. It does make me wonder why they wouldn’t want to learn about the project in a public meeting. Perhaps the material covered there would have swayed public opinion.

    Assuming that public opinion was ever going to be swayed.

  12. As if public opinion was ever going to be swayed….or do we need to be reminded “Not Here, Not Now, Not Ever”?

  13. Ted

    I guess most people would prefer to be able to make a case for something in a more informal, personalized meeting. It is often more efficient and more productive to do so. Questions can be asked and answered. People can take in information and ruminate on it.

    It cuts both ways, all sorts of ways. On more than one occasion, I’ve seen the P&Z put a project on hold because the developer failed to reach out to the neighborhood they want to build in, hold coffees with surrounding property owners, etc. Sure, those neighbors could have learned about the project in a public meeting in council chambers but they often seem to appreciate being briefed first so they, too, can gather their thoughts and form a decision outside of the pressurized, televised council chamber.

    Making those deliberations and taking the vote in public — under the hot lights, often amid the passion and protests — is part of the process, too. But surely there’s not something necessarily wrong with residents dispensing information to city officials outside that environment, as well.

  14. Well, quite a bit of information here. Didn’t know that I was an environmental advocate. I guess that I am for the environment as well as for home grown tomatoes and living in a city where the laws are not only upheld when average citizens are concerned but also when the politically connected rich are concerned. My father once said, “The more money, the more justice” you can get. Does this ring true for our town and our system? Do the laws not apply to well connected that are supposedly representing us on the “voluntary” planning and zoning commission? The fact that “out of the good of their poor hearts”, some developers, builders, real estate brokers, and similar altruistic types serve on the planning and zoning commission shouldn’t be held to the Texas Statutes standards is really rubbish! There is a real job to do at the planning and zoning commission, which is to represent the best interests of the citizenry for future growth and health, safety, and welfare of our fair town. Some of the commissioners have brazenly side stepped our rules and values and they should be brought to answer for their inappropriate behavior. Behavior that, through out history, has been found illegal and unsavory. These are now what we call the Texas Statutes and San Marcos Ethics code. Developers, brokers, and builders shouldn’t have to cheat, or hook and crook, or have illegal private meetings with the whole planning and zoning commission to get their projects passed. Behind closed doors, under the table, should not be the kind of development that we want here in San Marcos. I should also mention that fly by night and carpet baggers are not the kind of developments that we want in San Marcos as well. Just look at look at The Retreat for an example. The developers requested a zoning change from us, and when they got it, they built and subsequently sold the property. Talk about no responsibility for the future and poor planning on the part of the P&Z.
    So, the email by Carter Morris speaks for itself, that is a circumvention of the open Meetings act by conspiring to get around the rules by having sequential meetings with the whole of the p&z commission. The actual private meetings don’t have to occur however, for Carter Morris to be guilty of breaking Texas Statute 551.0143 Open Meetings Act. The email is prima facia evidence derived from an open record request. The email by Carter Morris is also a violation of the Texas Statute 171.004 Conflict of Interest rules. The conflict of interest started at least when Ed Theriot, the consultant for the individual owners and Darren Casey Interests, filed an application at the City of San Marcos Planning and Development Dept for the Planned Development District or PDD of the Sessoms Creek Project on Oct 11,2011. Any talk about there is no conflict of interest until Carter Morris recused on Nov 22, 2011 is untrue. The real estate contracts on the sessoms properties were dated Aug 1, 2011 and together with the application to the Planning dept on Oct 11,2011, started the conflict of interest on teh “matter”. Carter should have abstained from any soliciting to other p&z commissioners, talking to the city planning staff in regard to the Sessoms Creek project, and any soliciting to city council members before any vote on the “matter”, and possibly any of many numerous other participations on the “matter”. So the talk of an altruistic Carter Morris giving up his time to ‘volunteer” on the Planning and Zoning commission for the good of San Marcos is really fabrication. He broke the law and should be made to answer.

  15. All the email shows is that Carter Morris attempted to schedule meetings. The meetings could have been purely informational, at least from what we know from the email, and informational meetings are not “deliberation”. You cannot find one judge or AG opinion that stretches the statute that far. Maybe the City Attorney thinks that but he has no more authority to rest that opinion on than you do.

    Further and contrary to your occupy crap, the P&Z is not made up of rich, politically-connected people chasing their self-interests. It is young, working folks who give up their time at home with their families and kids to serve to try to make the community better. If the meetings were the violation you claim they were, each of them would have violated, not just Carter who appears to be your target.

  16. Brad,

    That was good reporting until you got to the part where you mentioned Fulkerson’s ‘affiliations’. One of which I conclude that you just made up and the other you conjectured. It was irrelevant to the story and out of context. It was a blatant attempt to characterize one component of the issue. In light of your admitted lack of information, you thought it was relevant to list random affiliations? Along that line, why didn’t you list the members involved with this issue that are NRA members? How about the ones that shop at CostCo? See the point? Saving the environment has little to nothing to do with the legal proceedings covered in this article. Being part of Occupy also has little to do with the charges being investigated. Not only do I not care what this guy does in his private life, but if I was the kind of person that did care, I would expect you to have listed out everyone’s personal ‘affiliations’ and ‘interests’ so that we could develop a complete environment of some subtle underlying social construct.

    I did not attend any meetings, I don’t know any of the players. But, I do know it didn’t pass and was reading this article in hopes of learning more about the events and aftermath. Again it was good, except for what I interpreted as a deliberate personal characterization, that was way out of the article’s context. It was a disservice to your attempt to create responsible journalism, and I think that’s all the previous posted intended to convey, in a succinct manner.

  17. Fair enough, Ryan. I can see where mentioning his general political leanings — not details of his personal life, mind you — could seem a bit gratuitous. I still tend to think those two affiliations are relevant, and I certainly didn’t make them up or guess them into existence.

    I know he’s an environmental advocate because 11 of the 31 comments he’s posted here since 2011 deal in some form or another with environmental issues. I know he’s a member of Occupy San Marcos because, well, his Facebook page says he’s a member.

    It is relevant to mention that he clearly has an interest in environmental protection and clearly sympathizes with leftist causes. It tells the reader where he’s coming from. Those things could have been communicated in a more comprehensive way, sure, but one doesn’t always have the benefit of ideal circumstances to execute every detail ideally.

    I’ve talked to Forrest a few times in in recent weeks and, as I’ve told him, I believe that he believes he’s doing the right thing. I also think people are usually animated by a cocktail of motivations and I wouldn’t be surprised if some of his motives are less than noble. That’s fine, too. I’m not trying to judge his drivers; I’m just trying to figure out what they are.

    Despite what he suggests in his most recent comment, I do not think an abiding love for the rule of law is what moves him to pursue this issue.

  18. Hi, Brad,

    Fascinating and troubling. Can you elaborate on this:

    Bottom line — and I have an opinion piece on this coming — this is an election season stunt to undermine the citizenry’s trust in their government and give a leg up to the team that can never post a win without a little theatrics.

    Just curious.

  19. The law:

    TEX GV. CODE ANN. § 551.144 : Texas Statutes – Section 551.144: CLOSED MEETING; OFFENSE;

    (a) A member of a governmental body commits an offense if a closed meeting is not permitted under this chapter and the member knowingly:
    (1) calls or aids in calling or organizing the closed meeting, whether it is a special or called closed meeting;
    (2) closes or aids in closing the meeting to the public, if it is a regular meeting; or
    (3) participates in the closed meeting, whether it is a regular, special, or called meeting.

    The email from Morris a week before the vote at P&Z:

    Hi Everyone,

    Just wanted to remind you of the meetings scheduled for tomorrow with myself and the developers of the North Campus Project. Please be at the Randall Morris and Associates office, 333 Cheatham Street, at your scheduled time. The meetings should run about 45 minutes. Thank you in advance for your attendance.

    Thursday-

    9 am- Sherwood Bishop

    10 am- Kenneth Ehlers and Brooks Andrews

    11 am- Bill Taylor

    1 pm- Randy Bryan?

    2pm- Curtis Seebeck

    3pm- Travis Kelsey

    4pm- Chris Wood

    5pm- Randy Bryan?

    Friday-

    3:30 pm- Bucky Couch

    Carter John Morris
    Broker Associate
    Randall Morris and Associates
    512-757-1555
    carter@randallmorris.com

  20. I agree with what Brad wrote:

    “From what I understand, Cosentino has been telling council members — citing this Escamilla-Leffingwell thing as his basis — for a while that they are breaking the law if they meet with anyone — a citizen, a developer, a citizen-developer — who happens to have already met with three other council members because then they are taking part in a walking quorum. The whole thing is ridiculous and only serves to separate elected officials from the people who elected them.”

    This would explain why, despite several emails to council as well as snail mail via US mail that I have received NO response from these elected and appointed officials, not even phone calls.

    This is especially egregious since the City of San Marcos website offers one-stop convenience for sending email to Mayor and Council, which one might presume infers the notion of response.

    I just heard of this in the past few days and I have sent a letter to the City Attorney — an open records/FOIA request if it must be — to ask for copies of precisely what advice, warnings or orders he has sent to Mayor and Council which has the effect of separating elected officials from the citizen voters who elected them by preventing them from responding to constituents. I ask for copies of the relevant attorney general’s opinions and anything else the City Attorney may be using to justify this further piano-wire-around-the-throat-pulled-tight treatment of democracy and the democratic process. I also ask whether or not an AG opinion has been requested on this very issue: are council members in fact REALLY prohibited from responding to citizen correspondence?

    Interaction, feedback and conversation is essential for democracy. Cutting it off for spurious and specious rationales is not a good thing for democracy which perhaps the City Attorney has not contemplated. Or perhaps he has.

    I am in favor of requiring US Congresspersons and Senators and state senators and legislators to immediately disclose when, where, and for how long they meet with lobbyists or principals of banking or corporate interests and what they talked about and what documents were exchanged. This might be a good idea for CC and P&Z also.

    However this business of citizen-developers really needs to be restricted just as citizen/developer/public official might need to be further restricted. It is dishonest and a sin to be pushing a development — even one’s own — but do it under the false flag of just being an ordinary ole citizen and just happening to have this development project in my back pocket…

    This issue also suggests that it would be prudent for voters to approve

    PROPOSITION ONE

    to remove the anti-democratic and “exclusive” real estate requirement for membership on the Planning and Zoning Commission. This is either democracy or it is not democracy. The real estate requirement takes us back to King John and Magna Carta territory. Besides no peer city nor any city up and down the IH 35 corridor and even as far afield as San Angelo and Tyler has a similar real estate ownership requirement — it is always resident, voter or resident and voter.

    I also think full financial disclosure is not provided by the current financial disclosure system. Last year I filed my income tax returns for the previous year for the Mayoralty election and I will be filing them this week as well for the current council election.

    This quibbling which erects a Berlin Wall between Mayor and Council and other elected officials and the voters is NOT what the Open Meetings/Open Records/FOIA was ever intended for. It was intended to keep secret good-buddy/ole friend kind of deals from happening behind closed doors — not driving a stake into the heart of democracy and communication/feedback/accountability between citizens and elected officials.

    Basically this is about sending “carbon copies”. If this is indeed the position of the City Attorney, it is ridiculous. We shall see if and when the City Attorney responds to my information request aka FOIA request.

    Thom Prentice
    Old Man Yells at Cloud
    Candidate, Council Place 2

  21. Watson

    I don’t think its a meeting at all, closed or otherwise, if there isn’t a quorum or if there isn’t an effort to engineer a walking quorum to circumvent the law. You can copy and paste snippets of the statute all you want, but I think this article is pretty thorough in explaining how the law is currently interpreted by the courts and the attorney general and most every city and county attorney, Michael Cosentino and David Escamilla excepted.

    You have to understand I’ve been an advocate of the Texas Public Information Act and the Texas Open Meetings Act since I was a high school journalist. They are the foundation on which we build all our efforts at transparent government.

    When clever lawyers try to twist the clear meaning of the law into something far more restrictive and far less rational, it endangers the whole damn thing. How long do you think our Legislature is going to let the Open Meetings Act stand, as written, if the interpretation takes hold that an elected or appointed city or county official cannot to speak to a citizen that calls her unless she knows for sure that the citizen has not already talked to too many other elected officials? Otherwise, the village busybody might seek criminal charges on the *blind assumption* that a walking quorum was held.

    Texas has remarkably solid transparency laws in the Public Information and the Open Meetings acts but they are put in peril when people abuse them, either to harass elected officials or try to score political points. Think I’m exaggerating? *Last year* city council members from across the state — with the backing of the Texas Municipal League — sought to invalidate the Open Meetings Act — have the whole damn thing struck down — and took the case all the way to the U.S. Supreme Court on free speech and other grounds. It failed at SCOTUS but that’s too close for comfort.

    It’s easy to get really rigid about these things when its the big, bad developer whose meeting with every P&Z commissioner. But when you think about the implications of what you’re saying for everyday people, they are chilling.

    Kathy

    More on this later but I think this is going to fall so short of the scandal that certain people think it is that we will be left with no other conclusion than that cynical and manipulative people have taken advantage of Forrests’ earnestness and good intentions to try and manufacture an ethics crisis a month before the city election. They cannot win on the issues so, out of desperation, they have resorted to these intricate and well-choreographed machinations aimed at creating the (mis)impression that San Marcos City Hall is a cesspool of corruption that must be cleaned out. With so many good people honestly worried about their homes and neighborhoods in our changing city — busy, working people not immersed in the details — it’s not too far of a stretch to get them to believe that developers are writing checks to themselves from the city treasury and having elected officials bring them cold beers from the kitchen.

    Sorry, y’all. Didn’t work. At least not here.

  22. I probably should stay out of this since I am under investigation but thought I would fill in some details here.

    First, for the suggestion that the P&Z members are rich guys looking to line their pockets…please tell that to Frost Bank where I bank! We scrape by from month to month like many. I am self employed and sure have not struck it rich yet! And, just for the record, I am no longer a home builder. Have not built a house in over two years. I am pursuing other business opportunities that is completely unrelated to anything to do with P&Z. As a matter of fact, I do not have a single customer in San Marcos. I do have a few in Russia, though!

    As for the “meetings” themselves…to say they were to try to circumvent the Open Meetings act is completely false and ludicrous. They were an informal, quick view of what they developer was thinking of doing. It was not a sit down “meeting” and nothing about P&Z was ever discussed. I was never even asked how I would vote or if they had my support. I looked at some large concept drawing that were put on a stand. I was there about 20 minutes if that. I intentionally did not go in at the time shown above and choose to go Friday afternoon when Bucky Couch went. I did not want anyone to ever be able to say I had a private meeting with any developer. Mr. Morris made is VERY clear at the beginning that he was there as the developer’s agent and was not acting in any form as a P&Z Commissioner.

    And yes, for me at least, I am giving of my time with my family. I have a 7 year old daughter who I am not able to kiss goodnight twice a month, sometimes more. I have missed a number of her evening school programs over the years because they were on a Tuesday evening, same as P&Z. When it is a P&Z night, she is always upset when I leave at 5:15 so I am not late and always asks why I have to go to these meetings. So yes, for me at least, there is a fair amount of sacrifice for me to serve the city that I have grown up in. I do it because I like to be involved and help make a difference rather than just sitting back and complaining. I sure don’t do it for fame, glory, or financial gain!

    Again, I probably should not be posting here and if I had an attorney, he/she would probably say I am foolish. However, I have nothing to hide and don’t believe I have ever done anything unethical. If the law disagrees and something comes of this, I guess I will learn more firmly that no good deed goes unpunished!

  23. Interesting.

    The story makes it sound like Forrest is driving this.

    Will the follow up identify those other parties and explain what they did to manufacture a crisis? I may be out of touch (which would explain the feeling of contentment), but all I have heard is what you have written and the associate docs you posted.

    If someone is out there working people into a lather, they may not be doing a very good job of it.

  24. Ted

    I think Forrest is an intelligent and well-meaning person who initiated this, possibly of his own accord, possibly with encouragement. Having made it thus far, he attracted the attention of “sponsors” and “advisors” who saw electoral opportunity. I cannot prove the whole of this theory just yet which is why I’m saying it in the comment thread instead of putting it in a story.

    I can say this: In my conversations with Forrest, he has constantly talked about “us” and “we” and when I asked him who he was working with on this — who is the “we” — he kind of got coy and said, in effect, I can’t tell you just yet. He did let slip that he’s been in communication/coordination with Lisa Prewitt and then immediately said “Uh, forget I said that.” I’m not saying Lisa is the puppetmaster here — and I have nothing in the world against her at all — but my point is that Forrest, by his own inadvertent admission, has been working with Lisa Prewitt on this issue while the “official” story line is that he’s an unaffiliated, concerned citizen who just wants clean government.

    They are not doing a good job of working people into a lather because it is too early to bring it to a boil. Early voting doesn’t start until Oct. 21. They just now in the last week or two convinced someone in SMPD — or maybe it didn’t take much convincing — that the department would be derelict not to investigate and then started in on me with the argument that I would be derelict if I didn’t write about it. The mere news that P&Z is being investigated by SMPD sounds really bad to the average voter so there’s not much distance from where we stand today and people being worked into a lather. I decline, however, to go along with it.

    Lastly, if you’re content with being out touch, I’d seriously consider staying there were I you. This is ugly, just as I’ve come to fully expect from San Marcos politics.

  25. Ah, again.

    I don’t have an opinion, other than a vague feeling that Morris having the meetings doesn’t sit right. Lots of things don’t sit right with me, which are perfectly legal and appropriate to whatever process is relevant.

    I am always a little leery of stories that come out right before an election, be they sudden interest in open meetings rules, or questionable hairstyles of candidates in their younger years.

    It’s little wonder so few want to run or serve on various boards (although I know that P&Z has had at least one more volunteer than they have needed, in the not too distant past). It’s probably the same reason many choose to post anonymously.

  26. I have evidence that the whole open meetings violation charge is a false-flag operation by Bill Taylor and Carter Morris. The purpose is to create a backlash against homeowners who are trying to keep apartments out of their neighborhoods. I will provide the evidence at a later date, to be announced.

  27. Brad,

    I never told you that Lisa Prewitt had spoken with me about or had ever suggested a plan of action toward an ethical complaint against Carter Morris. In fact, she has always been against ethical complaints against Carter Morris during early anti Sessoms Creek Meetings. You seem to have gone over to the dark side here with you tangential suppositions. The hyperbole is really quite imaginative. Me and Lisa just so happen to live in the same town. Many people are and were against the Sessoms Creek project. That’s our connection. Brad, you are really reaching and I might add losing credibility here. Are you being paid by the Morris’s now? Speak the truth, not wishful fabrication. I never had instruction or prompting in my complaints against Carter Morris. Carter Morris just seemed to be the one who had made the most mistakes and is most brazen.
    Who would have guessed that Carter Morris was only the tip of the iceberg with regard to inappropriate developer/real estate broker influence. I just thought that the thing smelled and started investigating. Yes, I did it myself. I’ll say it again, Yes I did it myself.
    Let’s start talking about the issue again. So a group of P&Z commissioners are sent an email about meetings that they know are going to happen in separate, sequential times. There will be at the meeting on Nov 17, 2011 the Broker Carter Morris(which has a conflict of interest in the matter of the PDD since Oct 11. 2011), the consultant Ed Theriot(represents the current owners and the developer Darren Casey), and the commissioner them self. They are going to talk about the project or as it is called in legal and city circles, the “matter”. The “matter” will be voted on at a later date Nov 22, 2011. Three of the P&Z commissioners have already admitted to attending the meetings via open record request. Now the following is one of those lovely snippets that Brad so dislikes: The law interpreted by the current AG Greg Abbott:

    2014 Open Meetings Handbook • Office of the Attorney General
    pg 20
    E. Meetings of Less than a Quorum in Attempt to Evade the Act:
    “Walking Quorums”

    On occasion, a governmental body has tried to avoid complying with the Act by deliberating about public business without a quorum being physically present in one place and claiming that this was
    not a “meeting” within the Act. Conducting secret deliberations and voting over the telephone, when no statute authorized this, was one such method.139

    A “walking quorum” is described in Esperanza Peace and Justice Center v. City of San Antonio.140

    The night before an open city council meeting was to be held, the mayor met with several city council members in the city manager’s office and spoke with others by telephone about the city budget. A decision was made that night and ratified at the public meeting the next day. The federal court stated that it would violate the spirit of the Act and render a result not intended by the Legislature “[i]f a governmental body may circumvent the Act’s requirements by ‘walking quorums’
    or serial meetings of less than a quorum, and then ratify at a public meeting the votes already taken in private.”141 The Esperanza court said that a meeting of less than a quorum is not subject to the Act
    “when there is no intent to avoid the Act’s requirements.”142

    On the other hand, the Act would apply to meetings of groups of less than a quorum where a quorum or more of a body attempted to avoid the purposes of the Act by deliberately meeting in groups less than a quorum in closed sessions to discuss and/or deliberate public business, and then ratifying their actions as a quorum in a subsequent public meeting.143

  28. To clarify, I don’t know that the individual commissioners went to the private meetings with Carter Morris, the developer, and consultants before the vote at p&z in sequential meetings in order to circumvent the open meetings act. I do know and that the email written by Carter Morris, encompasses a conspiracy to circumvent the open meetings act (Tex Gov’t code 551.0143)by Carter Morris. No one ever had needed to attend the meetings for this violation to occur. The email is proof enough. I said it earlier, but people are getting caught up on the “meeting” issue.

    Curtis, I think if the shoe fits…etc. I didn’t think that you were one out to line your pockets. But I bet you can guess who those might be. They do exist. So, thanks for your frankness and from what I know of you, your honesty. I hope people believe in my honesty as well. The timing of my complaints were a culmination of a failed attempt in Jan 2012 to bring a complaint against Carter Morris from what I thought was inappropriate participation. The two people that had admitted to me that there were private meetings with p&z and developers then, later recanted and/or misunderstood what I had asked. I had to withdraw my ethics complaint. I had heard about other questionable participation of Carter Morris and City Council members, so I then set out to investigate the reports. Jaimy Breihan told me about a meeting with Carter Morris and City Council member John Thomaides at Cafe on the Square on Jan 12, 2012 before a vote on the “matter” at city council. During my investigation. I found another violation where Carter Morris appeared before the city council on Jan 17, 2012 speaking for the development before a vote. The two complaints originated from evidence derived through open record requests that could not be taken back or recanted. This is the story of the timing of my complaints. All else is conjecture.

  29. Forrest,

    I’m don’t blame you for denying having implicated Lisa in your deal. It was a pretty bad flub on your part. But I am not mistaken about the exchange between you and I as described in an earlier comment.

  30. Brad,
    I think that you are the one getting political here in this election season. I don’t know what you think that you heard during your interview with me, but it wasn’t anything about Lisa Prewitt.
    Why don’t you ask Bill Taylor why he didn’t reign in Carter Morris during all of the illegal meetings with the developers and the consultant Ed Theriot? Bill Taylor is supposed to control the obvious conflict of interest violations and of course open meetings violations. He is supposed to be the eldest and wisest.

  31. It’s odd that after all these “ethical” issues with Planning and Zoning, Bill Taylor would be the only one not to file the first campaign finance report. I would have assumed they would all be on their toes considering all the issues that have been raised of late.

    Surprised you haven’t reported on that Brad. But maybe you are just waiting for Mr. Taylor to get his in to the City.

  32. Good question…where is Bill Taylor’s Candidate/Office Holder report required by state law to be filed on October 7th? Bill has run for office numerous times and served on the city council. His treasurer is John Diaz, also a candidate multiple times and former council member. They should know better than anybody that these reports have hard deadlines.

  33. @Brad 4:47PM, there doesn’t have to be a “meeting” but it sure looks like an attempt to get a “rolling quorum” that being a member of the body organizing a series of sequential meetings. As to “intent” a member of the body was attempting to organize sequential meetings, as in, there wouldn’t be a quorum. Looks like a rolling quorum, walks like a rolling quorum, quacks like a rolling quorum …. Nothing in that interpretation prevents a member of the body from meeting with anyone, but it does prevent the body, or a quorum thereof from doing so.

    Curtis 4;59PM, you are correct, you shouldn’t be posting here as there is an ongoing criminal investigation.

  34. The logical action would be for Mr. Morris to resign from P&Z. He has already, for lack of a better term, been declare ethically challenged. He is the center of this storm. And then there’s that pesky business of having to recuse himself all the time.

  35. Winchester, while your creative and original “looks like a quorum, walks like a quorum” construction is amusing, I doubt it carries much legal weight. Which kind of underscore my point: This isn’t about the rule of law and maintaining an ethical city. This is about winning political points in the run-up to an election. Soundbites work better in this regard than reasoned, legal arguments.

    These meetings were not illegal if the developer was presenting information to decision makers. Every P&Z member I’ve interviewed has described the meetings as purely information in nature — without my having explained beforehand the distinction between whether they were there to get information or there to be lobbied and polled. I have a feeling that you understand this distinction but the truth, in this case, appears utterly unhelpful to to your ideological aims.

    I’ll say again: I feel for the people who feel their lives have been put in turmoil by living in a growing city. But if those same families let a band of thieves steal the right to petition their government for change, then, well, that would just be a damn, crying shame. Or to deploy a creative and original argument of my own: It would be throwing the baby out with the bathwater.

    And Curtis: Don’t let this clown shut you up about telling your side of the story. You have every right to defend your honor publicly — to shout it from the rooftops — whether there is an ongoing investigation or not. I am hopeful the police and prosecutors will do their jobs as professionals and ignore the lynch mob.

    This is also a lesson in negotiating with terrorists. Curtis Seebeck, Travis Kelsey and Sherwood Bishop — joined from time to time by other commissioners — have often made tough calls to exercise their own judgement in voting down developments. But that carries no weight, none at all, with these power-hungry psychopaths. When the time came to light the bonfire, you made just as good kindling as the rest of them.

  36. Why didn’t they just schedule a workshop for the P&Z Commission and have the developer present the “facts” of his proposal to all of them at one time – while in compliance with the Open Meetings Act? As a workshop, no vote would have been taken. It would have been for discussion only. And there would have been full transparency.

    Workshops happen all the time with City Councils and P&Z Commissioners for just this purpose. The fact that there was some need to meet one-on-one and in private is far, far less than “transparent,” whether or not if was illegal. But then, it is really up to the courts to decide the legality of the matter. The “legal opinions” on this blog are nothing more than – opinions. Let the courts decide, if and when the matter arrives there.

    I will say, however, Brad is doing a brilliant job of spinning this for his candidates. Does anyone doubt that if the shoe was on the other foot, Brad would be yelling for the bastards to be hanged and quartered? LOL

    And Brad – “throwing the baby out with the bath water” is neither creative or original, nor is it an argument. It’s just a cliche

  37. I said it was creative and original in jest.

    And, yes, I would be screaming as loudly if the shoe were on the other foot. I don’t particularly like some of the people implicated in this and I do like some of the people who benefit from this. I just don’t think it’s right the way it has gone down. And I am beyond tired of the posturing and hypocrisy and the sanctimony coming from those moved in part by nothing more than plain ole’ jealousy.

  38. There has always been this tension between the letter of the law, and the meaning of the law. The meaning of the Open Meetings Act is clear, to stop secret back room discussion and decision making by elected and appointed offices. How can there be any discussion and decision making when the decision makers, the P & Z members are meeting one at a time?

  39. Mr. Editor:
    Your opinion about this issue is fairly well informed and most welcomed, but your argumentum ad hominem concerning Mr. Fulkerson (“clown”) and citizens who support the rule of law (“lynch mob”) is not expected in civilized public discourse, much less from the editor of a local newspaper. Tell us, when did you pass judgment on Mr. Fulkerson? Did you decide he was a clown at the moment he agreed to be interviewed by you? And who is this lynch mob that you describe? Do they subscribe to The Mercury and buy the products and services advertised therein?
    If such intemperance wasn’t enough, your genuflection toward Commissioner Seebeck pretty much sealed it as a genuinely unforgettable WTF moment. Not that I have anything against Mr. Seebeck; quite the contrary, Curtis is one of the more reasoned and thoughtful P&Z members. If genuflection is in order, please do it at his feet. However, as a reporter, let me suggest that yours be a more balanced approach.
    I’ll admit that I won’t be able to read the Mercury in the future without reflecting on the intemperance you’ve shown here. I now know who butters your bread, so to speak, and so does a whole lot of other people.

  40. Lila, Your suggestion of a workshop is a good but impractical solution. Trying to coordinate the schedules of at least 9 people who have lives outside of P&Z for a special meeting is difficult. If that was done for every project, I believe we would have to move in and take up residence at City Hall!

  41. Oh yeah, this already happens anyway. On a PDD, we have a presentation, many times from the developer, and public hearing with discussion only. Then, at the following meeting, we have another public hearing and take action. We used to only have one public hearing but I raised enough concern when I was the vice chair that it was decided to have two public hearings to give as much transparency and opportunity for public input as possible. However, many people still do not feel comfortable talking in public and have a hard time getting their point out in the 3 minutes allotted.

  42. Terrorists? Power-hungry psychopaths? Clowns and lynch mobs?
    Really, Brad?
    Trolling your own page is an unexpected choice. Wow.

  43. To Curtis: Perhaps the workshop could be scheduled either before or after a regularly scheduled meeting. That might be more convenient for the commissioners. But that would be up to your chair.

    And so glad to hear that we will be getting more from the “intemperate” Brad, the journalist. I think he is lobbying for a position at Fox News. LOL Good luck with that buddy. Try dyeing your hair blonde….. LOL
    You never responded to me about the lack of Bill Taylor submitting his campaign finance report. Guess that doesn’t really bother the “intemperate” Brad.

    You should go into political consulting. Oops. Guess you already have.

  44. I really ought to know better than to wade back into this mess, but I have to ask how it is that the P&Z folks have schedules that make it too difficult to get them all to one meeting, but not to a series of meetings, one right after the other.

    I also have to ask how this is an example of Brad “doing a masterful job of spinning this for his candidates.” That usually involves deflecting attention from an issue, whereas this appears to be attracting the most attention (to date) to the issue.

    Regardless of Brad’s views, I doubt many people would even be aware of the issue, if it weren’t for his coverage.

  45. I can not speak for anyone else but I know my schedule did not permit for “a series of meetings, one right after the other”. I could not go on the day or time i was asked to go. Can’t say what happened with the other commissioners. My schedule permits two scheduled meetings a month and many times, it is even stretching it to get to them. I used to be on a couple of other boards (not city) as a board member and had to drop all of them because I just did not have the time for it.

  46. I think another important question is what would be the chances of a normal citizen having the clout to procure private meetings with a governmental body concerning an issue they had a clear financial issue in. I’m guessing not so much. And that should probably bother all of us.

  47. That has been done in the past, Lila. That is problematic, though, since P&Z starts at 6pm and most can not get there at 4 or 4:30 for a special workshop. After P&Z…well, sometimes our meetings get done fairly late. Most usually around 7:30 – 8:00 but occasionally they will last to much later. One lasted to nearly midnight.

  48. Keith, In the past, I have been willing to talk with anyone regarding issues that were to come before us so I would say the chance was pretty good. I doubt it will be any longer, though.

  49. Ted

    How do you know if Lila Knight is being insincere? Her lips are moving/her fingers are typing/etc. She doesn’t really think I’m being a masterful political consultant. She’s just advancing the idea that I’m spinning this for political reasons. I personally would be disappointed to see the bad guys rewarded for bad behavior here, but I’m pretty indifferent to how this plays out politically. Nor am I under the illusion that I have much to say about how it turns out politically. There are bigger things at work.

    However, hypothetically, if I were trying to look at this from a political consultants’ perspective, I’d think it would be silly to think this could be deflected/swept under the rug/minimized. Too much has been invested in setting this up. This is their big play. They’re going to get the “news” out somehow, through direct mail, through furtive whispering, through emails distributed on the eve of voting, if by no other means.

    Incidentally, I hear that the San Marcos City Council is meeting tomorrow in executive session to talk about Carter Morris’ role on P&Z. One of the options on the table is to remove him from P&Z. It will be interesting if that happens. It would raise the question to me if there is a reason why they are trying to cut him off at the knees before any prosecutor or court has made any determination about the legality of his behavior. In other words, maybe there IS more to this than what I thought and maybe it involves some council members who want to see Morris discredited as quickly as possible.

  50. Brad,

    My suggestion. Write an editorial if you disagree then let the people speak. You seem to be acting like a partisan, not a news source. Is there a revenue source to this position?

    As in Shakespeare, “The lady doth protest too much, methinks.”

    Just my thoughts.

    Truly,

    Scott

  51. Scott, I don’t think there’s any profit in taking such an unpopular position. I feel strongly about this for a number of reasons, more strongly than I expected.

    First, I feel strongly about warping the Open Meetings Act to achieve political purposes. Secondly, I am always sympathetic to people being accused of wrongdoing and not being given a fair hearing and a chance to defend themselves before onlookers pile on. I’ve been there and it is not a fun place to be.

    As I said in response to your email earlier tonight, I’m just fighting for what I believe in. I know you are doing the same and I don’t hold it against you for doing so.

  52. I’ve long felt that realtors and developers shouldn’t be on P&Z just out of principle. It’s simply too easy for people to cry “conflict of interest” (even if none really exists) when the P&Z members’ livelihoods depend on the selling and development of the very tracts of land that they’re making rulings on.

    The counter-argument (and it’s admittedly a good one) was that people in these professions may well be the *best* people for the job as they understand the nuance of the task at hand in a way that say a florist might not.

    Even if Mr. Morris was guilty of nothing under the letter of the law, he should have at the very least realized that his vocation as a realtor meant that his every action on P&Z would be scrutinized under that lens. He should have been making every effort to provide transparency for all of his actions….and he clearly did not. Whether that’s criminal in its motive, or arrogant, or simply careless I do not know. When it comes to ethical issues, the mere appearance of impropriety can often be enough to damage credibility – perception is very much reality.

    The end result is that Morris is now “damaged goods” and I can’t really muster up all that much sympathy for him because he made his own bed. If he knew this deal would require his recusal, he shouldn’t have been anywhere near a discussion of it, much less calling private meetings with the rest of P&Z about it – because now, no matter what they actually did during those meetings, it looks bad.

    The worst part about this whole deal is that now he’s given the local moonbats something real to latch on to….at right at election season no less (and if you think the timing of these revelations is anything but calculated, I have a bridge in Kansas to sell you).

  53. Dano,

    I’m kind of leaning that way. Like I said before, just because it doesn’t sit right with me, doesn’t mean it’s illegal (might be, but that’s not for me to determine, based on the information available).

    It’s just something that adds to an already messy situation, with a lot of distrust on both sides, and enough dysfunction (reportedly) to run off a city manager.

  54. The timing does make me question the altruistic motivation behind the request for an investigation, particularly since this happened two years ago.

  55. As a lawyer, I have to say that the definition of “meeting” as defined by the open meetings act is different than has been presented in these comments:
    Tx Gov’t Code 551.001 Open Meetings Act (TOMA)

    “(4) “Meeting” means:(A) a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; or

    (B) except as otherwise provided by this subdivision, a gathering:

    (i) that is conducted by the governmental body or for which the governmental body is responsible;
    (ii) at which a quorum of members of the governmental body is present;
    (iii) that has been called by the governmental body; and
    (iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control..

    The term does not include the gathering of a quorum of a governmental body at a social function unrelated to the public business that is conducted by the body, or the attendance by a quorum of a governmental body at a regional, state, or national convention or workshop, ceremonial event, or press conference, if formal action is not taken and any discussion of public business is incidental to the social function, convention, workshop, ceremonial event, or press conference.
    The term includes a session of a governmental body.”

    Now with that interpretation, one could just sit in a gathering/presentation where the subject that is to come before the board or commission is discussed and the presentation is considered a meeting under the TOMA.

    So, Brad you are wrong in your assessment of TOMA. The key elements are a “gathering”, responsibility for the matter at the P&Z commission, quorum by sequential meetings whether intentional or not, and receiving information about public business.

    I’d say that they should have abstained from these meetings. Not only are the meetings illegal, but the action, the Sessoms Creek project in this case, that is before the board, is voidable or subject to litigation. They are risking the development as well in this matter.

  56. Bottom line: Unless they both discussed public policy AND arrived at a decision, there was no violation of the Open Meetings Act. Would it have been better politically to have this presentation in open meeting: YES. Did Carter Morris’ act illegally: NO.
    Does Carter Morris have a conflict of interest: YES. So, while it may not be a politically astute move to recuse yourself from your P & Z position & choose to represent a controversial business in a series of private meetings, it is not illegal.

  57. JohnC: I suggest you read Hitt v Mabry, 687 S.W. 791,794-795 (Tex. Civ.App.-San Antonio 1985, no writ).

  58. Hitt v Mabry appears to confirm that a “meeting” can take place, even if all the parties do not meet in the same place, or at the same time.

    Can you clarify what it is we should be looking for in there?

  59. Kids2Cute, No need to go to other case law. if you read section(IV) of the previously mention TOMA, one must only receive information on the subject.

    ( (IV)at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control..)

    TOMA doesn’t require a need to respond or decide upon at the private meetings, just to sit there and receive information. All four of the criteria for a gathering TOMA 551.001 (4)(B)have been met.

    So, did Carter Morris act illegally according to TOMA, I say Yes. Did he break the Conflict of Interest Statute, Yes as well.

  60. JohnC,
    It is a statute. Everyone can read. You do not have to be a super reader in order to be a lawyer, nor does your title give any greater authority to your reading.

    Look at it closer…
    Meeting is either (A) deliberation between a quorum of a governmental body
    OR
    (B) a gathering that meets four other requirements (all four; conjunctive “and”) but is not ruled out by the exceptions (you can meet all four but still not satisfy B if you are excepted).

    Here we cannot know if it was a deliberative meeting by a rolling quorum without knowing more about the meeting. So A is certainly not proven at this point, and is not met if it was merely informational. That only leaves B, but to satisfy B it must meet all four requirements and not be ruled out by an exception. Let’s see if it meets all four:
    (1) conducted by the governmental body.. NO, this was called by the developer. We can stop right there. For this same reason, it similarly fails to satisfy condition (3), so even though it may satisfy 2 and 4, it is not a meeting under B and we don’t even have to look at the exceptions. If it was illegal, it was illegal under A which requires a quorum and deliberation.

  61. Ted, The holding in Hitt makes it clear that “to discuss public business or public policy and/or engaged in deliberations to discuss policy and to arrive at a decision on public business or public policy ” without conforming to the Texas Open Meetings Act is violative. It is not enough to have a meeting, daisy chain or not; there must be “deliberation”. What is deliberation? It’s a discussion followed by a decision/concensus. The facts as presented here demonstrate that no decision or consencus was reached at these meetings.

    JohnC: Unfortunately, case law is necessary to correctly interpret a statute.

  62. Kids2Cute, again, can you point me to that information?

    As far as I can tell, the case decided whether people had to be in the same place, at the same time, not whether action had to be taken.

    I am open to the idea that I am misunderstanding the case, but it would be helpful to have someone tell me where to look.

    https://www.oag.state.tx.us/opinions/opinions/48morales/lo/1995/htm/lo1995055.txt

    “Attorney General Opinion DM-95 (1992) at 5. Our opinion further states:

    Though polling members of a governmental body by telephone was specifically at issue in Mabry, it seems immaterial to the application of the law whether such polling was done by telephone or otherwise. Following Mabry, it appears that the physical presence of a quorum in a single place at the same time is not always necessary for a violation of sections 2 and 3A to occur. Avoiding the technical definition of “meeting” or “deliberation” is not, therefore, a foolproof insulator from the effect of the act. Indeed, it would appear that the legislature intended expressly to reach deliberate evasions of these definitions in enacting section 4(b) [now Gov’t Code § 551.143(a)] of the act.”

  63. Note that they are referenceing “meeting” or “deliberation” which are defined (I believe) as discussion, not action.

    If Hitt v Mabry indicates that a decision must be made, I would just like to understand where this is.

    https://www.oag.state.tx.us/AG_Publications/pdfs/openmeeting_hb.pdf

    ““Deliberation,” a key term for understanding the Act, is defined as follows:

    “Deliberation” means a verbal exchange during a meeting between a quorum of a
    governmental body, or between a quorum of a governmental body and another
    person, concerning an issue within the jurisdiction of the governmental body or any
    public business.

    “Deliberation” and “discussion” are synonymous for purposes of the Act.121 A “verbal exchange”
    clearly includes an exchange of spoken words,122 but it may also include an exchange of written
    materials or electronic mail.

    The Act includes two definitions of “meeting.”124 Section 551.001(4)(A) uses the term
    “deliberation” to define “meeting”:

    (A) a deliberation between a quorum of a governmental body, or between a quorum
    of a governmental body and another person, during which public business or public
    policy over which the governmental body has supervision or control is discussed or
    considered or during which the governmental body takes formal action . . .”

  64. Ted,

    Please look on pages 794-795. The language I quoted is after the header “Permanent Injunction”. If you read that section, the Court explains that to engage in deliberations on public business AND to arrive at a decision on public policy without meeting the requisites of the Texas Open Meetings Act is prohibited.

    If you go to page 796, you will see that the Court allows that public officials and employees can use telephone conferences or informal meetings to discuss public business. However, to use these meetings to come to an agreed decision is violative.

    I hope this helps. I’m just basing my opinion on what little facts the public knows at this point.

  65. Thanks.

    I’ll have to dig into that later, but just because taking action is prohibited, does not mean that discussing without taking action would not also be prohibited, it just wouldn’t have come up in that case, because they did take action.

    If there is a case out there, where there was discussion and no action, and the court found that there was no violation, that would seem like a clearer example to cite.

  66. Skeptical, deliberation = discussion, as far as I can tell. Any exchange of information would make for a deliberative meeting.

  67. Debate the semantics all you want….the bell can’t be unrung. The actions of Morris were, regardless of the “legal or not legal” debate, sketchy enough that his credibility has been damaged and the perception of his integrity has been corrupted – seemingly beyond repair. It looks like he’s on the verge of being “fired” by Council, so the only relevant questions to debate on the legal ramifications are whether he’ll face actual jail time or not over this.

    I’m pretty sure he was aware that he worked as a realtor for a living. And I’m pretty sure he knew that he had absolutely no business conducting private meetings with fellow P&Z members and the developer on a project that he stood to profit directly from. Whether they were “meetings” or not and whether or not “deliberations” took place, the whole situation stinks to high Heaven. It’s simply too much of a stretch for me to believe that the intention behind these meetings was not to attempt to influence other P&Z members’ opinions on the project – “lobbying,” if you will.

    Again, no sympathy for the guy from me.

  68. Dano, the debate here doesn’t really have any bearing on anything. I suspect some people have made up their minds, and others won’t make them up until the issue is resolved legally.

    It is interesting to discuss though, and if someone takes the time to cite case law, I’m happy to spend a little time digesting it.

  69. Kids2Cute, p. 796 seems to indicate that the original injunction was too broad, in that it barred all trustees, as well as all employees if SAISD from the use of telephone conferences to discuss public business. It goes on to point out that there is no known authority to prevent school administrators from discussing public business on the phone, or in informal meetings.

    So, they modified the injunction, to prevent arriving at a decision through those means, but (to me) it sounds like that it was modified in this way, because they cannot restrict the right of employees to discuss public business on the phone.

    I do not read the modification to the injunction to mean that action is required, for the school board (or P&Z) to violate the open meetings act. I have no idea what they would have thought of that part of the injunction, if it had only mentioned trustees.

    It will be interesting to see how it all plays out.

  70. Kids2Cute, the case law that you quoted was dated 1985, but amendments to the TOMA show a later date of 2007.

    My earlier assessment stands with regard to not having to respond or decide on public matters. But I admit that the rolling quorum is up to an interpretation. I believe that this opinion by Greg Abbott holds some answers with regard to “meeting” and “knowingly” with reference to conspiracy to circumvent. AG opinion GA-0326:
    https://www.oag.state.tx.us/opinions/opinions/50abbott/op/2005/htm/ga0326.htm

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