The Leander City Council is considering a measure that will put its citizens in the dark about the city’s business.
An item on tonight’s Leander City Council agenda would change the time of the city’s regular council meetings and establish a ‘briefing session’ before regular council meetings convene.
It sounds innocuous enough. Change the meeting time and hold a briefing session so council members can discuss matters with city staff before the official city council meeting begins. No big deal, right?
Maybe. Then again, maybe not.
City Council meetings are a matter of public record. Minutes are kept of council meetings, noting the discussions between council members, the points of order raised, and providing a record of the final vote on any issue. Leander, like many other cities, live streams video of its council meetings. These videos are available for replay at any time so that any interested person can see exactly what their elected officials are doing or have done on behalf of the city’s taxpayers and residents.
But here’s where it gets tricky.
While this proposed change would still have the council vote on issues in the regular meeting, the discussion council members have with city staff — and presumably with each other — would be held in a ‘briefing’ without same level of recording of those discussions for those who aren't able to be present at the time, or for those who want to review the meeting at a later time. According to city spokesperson Mike Neu, there would be no video or audio recording of these ‘briefing’ sessions, though Neu confirmed Thursday afternoon that the city does plan to keep minutes of these briefings if the proposal passes.
Still, we see this proposal — sponsored by Mayor Troy Hill, according to the council’s agenda — as potentially taking a good bit of the public’s business out of the eye of the public.
Why? Because absent audio or video of the council members' questions and comments, there might be no record of the detailed discussions or deliberations on an issue. Minutes can be recorded without documenting the detailed discussions, questions asked and answers provided, or the crosstalk between council members. Removing this information from the public record is a limitation on transparency.
According to the council’s agenda, this explanation given for this proposal is: “In the past, council has met individually with the city manager to discuss the upcoming agenda. A briefing session will provide an opportunity for council to meet with the city manager as well as senior staff to discuss agenda items and get questions answered prior to the start of the regular meeting. In this format, everyone will hear the same information at the same time. The briefing session will be held in the San Gabriel Conference Room. This is a public meeting and open to the public to attend.”
And while the city states that the briefing is a public meeting and open to the public to attend, the reality is that the public doesn’t always attend council meetings. Live video streams, recorded playbacks, and public records documents that can be reviewed at a later time establish the public record of the city council doing the work of the taxpayers.
Whether or not someone has the ability to physically attend a council meeting, the public has the right — and the ability — to review the actions, and the words, of the council under the current system. If this change is adopted, much of that public record would be lost.
Texas law states that once a quorum is established, a meeting of elected officials becomes a matter of public record. Elected officials cannot discuss public business outside a meeting authorized by the Texas Open Meetings Act, and can’t circumvent the Act by gathering through multiple communications involving fewer than a quorum (called a ‘walking quorum’) for the purpose of avoiding the requirements of the Act.
Attorney General Ken Paxton further clarified last month that “a meeting occurs when a quorum of a governmental body has a verbal exchange about public business or public policy within the jurisdiction of the governmental body.”
SB 1640, which passed with overwhelming bipartisan support this legislative session and is expected to become law, re-establishes criminal penalties for violating the Texas Open Meetings Act with a walking quorum.
While we are not accusing the city or any members of the council of any wrongdoing, and we took them at their word when they all expressed support for transparency at various points on the dais and during their election campaigns, we don’t believe taking deliberations about city business off the regular city council agenda and away from the camera’s eye and the audio/video recorder's detailed record, is in the public’s best interest.
We urge the council not to approve this change in meeting time and format.
If the change is adopted, simply posting an agenda stating that the briefing session will be held is not sufficient under the Texas Open Meetings Act. Texas law requires the public to receive “sufficient notice” about what will be discussed at a public meeting.
Guidance from the Texas Municipal League, which provides legal services to city governments across the state, says, “A posting simply indicating ‘employee briefing session’ or ‘staff briefing session’ does not provide the public with sufficient notice as to the subjects that will be discussed at a public meeting,” citing Texas Attorney General’s Opinion GA-668 (2008).
Austin attorney and former Travis County Judge Bill Aleshire told the Hill Country News that a 'staff briefing' as described in Leander's agenda would still require advance notice to the public at least 72 hours prior to the meeting, and that notice would need to detail every discussion that council members would engage in, and every staff member that would be questioned or who would provide information to the council at the briefing.
Neu was able to confirm Thursday afternoon that the city does plan to publish a detailed agenda in advance of any such briefing, in accordance with the Texas Open Meetings Act.
Don’t swap proposed efficiency for a lack of transparency, Leander City Council. If this measure is passed, it should include a requirement that all discussions in these briefings should be documented on the public record, as well as a requirement making audio and video available to the public, so that every discussion becomes part of the permanent record.
Related story: Council to discuss city manager contract, meeting changes
Note: This editorial was updated at 4:10 p.m. on June 6, 2019, with a statement from Austin attorney and former Travis County Judge Bill Aleshire on public notice requirements related to staff briefings.
Note: This editorial was updated at 4:53 p.m. on June 6, 2019 after Leander city spokesperson Mike Neu clarified that the city does plan to keep minutes of staff briefings, if the proposal passes. He confirmed that there is no plan to have the briefings recorded (audio or video). Neu also said the city also plans to publish a full agenda in advance for such briefings, in accordance with the Texas Open Meetings Act.