Texas public officials are arguing for the second time this year that the state’s Open Meetings Act violates their right to free speech. At least 20 elected officials from cities across the state have signed onto a potential lawsuit, including the mayor and four city council members in Pflugerville, the Austin American Statesman reported.
The act in question prevents a quorum of government officials from deliberating in secret and attaches a penalty of up to six months in jail and a $500 fine.
Rod Ponton, who represents the elected officials, told the Austin American Statesman the new suit against the State of Texas and Texas Attorney General Greg Abbott will be filed in federal court next month in the West Texas city of Pecos.
The Fifth Circuit dismissed a similar suit last month because the plaintiffs, Alpine city council members who were no longer in office, lacked legal standing. Ponton, who also represented the plaintiffs in that suit and is Alpine’s city attorney, said after the court dismissed the suit, current public officials from various parts of Texas contacted him and expressed interest in filing a new suit.
The plaintiffs will allege that the state’s Open Meetings Act infringes on their right to communicate freely with one another, since as few as three or four public officials constitutes a quorum in some small municipalities.
Ponton said that the new case cannot be dismissed for lack of standing because “current public officials are still having their first amendment rights chilled by the statute.” Because case law requires only a credible threat of prosecution under the statute, public officials need not actually be prosecuted to have standing under the law, said Ponton.
Ponton points to an incident that occurred at a candidate forum in May to illustrate a credible threat of prosecution. A citizen filed a complaint alleging that a candidate seeking reelection violated the act by answering a question about city business while a quorum was present. The complaint is still pending review in the Travis County district attorney’s office.
Ponton argues that under the act, not only the candidate who spoke but also all of the public officials present could be prosecuted. “What happened in Pflugerville is clearly a crime. It’s been interpreted by court cases and AG opinions,” said Ponton.
The case the Fifth Circuit dismissed last month, Rangra v. Brown, stemmed from a dispute over whether public officials could discuss city business in secret, over email. Two former Alpine council members, Avinash Rangra and Anna Monclova were initially indicted under the law, but those charges were dropped years before the suit made its way to the Fifth Circuit.
The Reporters Committee filed a brief with the Fifth Circuit in support of the constitutionality of the open meetings law during the first case. Prior to the case’s dismissal, U.S. District Court Judge Robert Junell in Midland, Texas upheld the constitutionality of the act in 2006.
"Sometimes the audacity of public officials and their complete lack of understanding of what it means to be a public servant astonishes me," Reporters Committee executive director Lucy Dalglish told the American Statesman. "Quite honestly, the Texas open meetings statute does not seem to be onerous. It’s very mainstream."