The Odessa City Council is scheduled to meet behind closed doors today for the first time since committing to reforms of the way they conduct such meetings in a March settlement stemming from a lawsuit filed last year by the Odessa American.
Once the City Council emerges from the private meeting, they could decide to make Interim City Manager Michael Marrero’s appointment permanent. They also could vote to keep using an outside firm for legal services that today are provided by Interim City Attorney Gary Landers, who works for an Austin-based firm hired by the city.
Both Marrero and Landers are scheduled to meet with the City Council in private for performance evaluations.
But the closed meeting is also expected to deal with other high-profile issues, including a pending complaint against the former city attorney and the way the City Council handles complaints against top appointees.
Those employees include the city manager, the city attorney, the city secretary and the two municipal judges. The review follows a scandal last year involving the previous attorney, Larry Long, which raised questions about how the City Council handles complaints about these appointees.
Last year, faced with a sexual harassment complaint against Long that had been corroborated by the city, the City Council never disciplined him. Instead, Long was allowed to retire in February in part so he could receive better retirement benefits.
In that case, a committee of two council members reviewed the complaint made in July 2017 and recommended no discipline to the full council, which was not provided with Human Resources findings for months. The City Council would later hire an outside attorney to handle a complaint filed by Long’s accuser with the Equal Employment Opportunity Commission.
Landers said he wanted to give the council legal advice in private and that the meeting will comply with open meetings law.
“The type of process you have, the way you go about the process, the way you describe the process all has public, financial and social ramifications,” Landers said. “So my advice to them is based upon what the law requires. It couldn’t be more based upon receiving some current legal advice.”
State law requires most public business be conducted in public, but it provides some exemptions.
One allows elected officials to discuss personnel matters, like the City Council plans to do with the evaluations of Marrero and Landers. Another allows the City Council to discuss real estate, which they are also scheduled to do today.
Elected officials can also excuse themselves from a public meeting to receive legal advice from their attorney. Landers said that, along with the personnel exemption, justifies the planned conversation about “procedures for the performance evaluation, appointment, and process for complaints against appointees for all City Council appointees; and to consider possible action on any pending complaints against a Council appointee.”
But even though council members can receive legal advice during the closed-door meeting, any debates between the elected officials about procedures should happen in public, said Bill Aleshire, an Austin attorney who specializes in open government law.
“They can’t go to executive session and deliberate procedures or policies about these complaints,” Aleshire said. “That would be illegal and they can’t do it just because the attorney is sitting in the room. They can do it to a limited extent if they are getting their attorney’s advice, and that’s all.”
After the legal briefing, City Council members could meet in public to discuss the procedures for handling appointees among themselves.
“That discussion ought to occur in public,” Aleshire said. “In fact, it’s going to look suspicious if they don’t have any discussion about procedures in public.”
Landers described the topic as “an item of much discussion and high interest, and would be any place, over the past year.”
“This is the first meeting where they are having a discussion like that with their new attorney,” Landers said. “And the goal of this type of discussion or a council item is to give the council the opportunity to provide direction to their interim city attorney on how these matters will be handled during the interim period.”
The pending complaint that the City Council is scheduled to discuss was filed late last year and involved another one of Long’s employees — an assistant city attorney who alleged unequal pay based on gender. The city has fought to release records about the case.
“One way of looking at this is there is one more unfinished-business claim,” Landers said. “Well let’s see if we can resolve that, because it’s probably been hanging out way too long.”
After the discussions about appointees, the City Council is scheduled to meet privately to consider a possible “acquisition or lease” of real estate — but no details were released Friday about the property.
The OA lawsuit had alleged the City Council violated the Texas Open Meetings Act in May 2017 during a closed door meeting before a majority voted to oust the head of the Odessa Development Corporation.
As part of the settlement, the city is required to keep the audio recordings of closed meetings instead of written summaries for at least two years, allowing a judge to examine the records if future lawsuits allege violations of the open meetings act. Keeping audio recordings of closed sessions goes beyond what the law currently requires.
Landers said he wanted the public notice of the closed meeting today to be broad, to give the council “maximum flexibility” while letting Odessans know the topics the council would take up.
“There is an appropriate needed space for confidential discussions, under specific situations,” Landers said. “But there’s a way that should be handled.”