The City of Odessa on Tuesday held a private “informational” workshop to teach city council about the Texas Open Meetings Act – a meeting which very likely violated state law, top Texas legal experts say.
Alan J. Bojorquez, an Austin-based attorney who gave the presentation, claimed that even though at least six out of seven council members were participating, the meeting was exempt from the Open Meetings Act because the gathering was for “informational purposes” and no council action would be taken. Bojorquez also argued that he called for the meeting, which made it a “private” meeting exempt from state law.
But Freedom of Information Foundation of Texas Executive Director Kelley Shannon and Austin-based attorney Bill Aleshire, an expert on the Open Meetings Act, both dispute Bojorquez’s interpretation of the law.
Prior to the start of the meeting, which was held at the MCM Elegante Hotel, Bojorquez demanded that news media and members of the public immediately leave the conference room.
“It is at least ironic, if not pitiful, that a meeting of the city council called to discuss the Texas Open Meetings Act violated that Act,” Aleshire said. “Contrary to what Mr. Bojorquez said, the Open Meetings Act – and compliance and training for it – is ‘public business or public policy over which the governmental body has supervision or control.’ It turns the Open Meetings Act on its head to claim that compliance with the Act is not public business.”
Aleshire said the city was also in violation for not publicly posting the meeting in advance, as required by state law.
If the council was planning to discuss a lawsuit, “Once the meeting started, they could retire to executive session to receive attorney-client privileged advice,” Aleshire noted.
Shannon agreed with Aleshire’s assessment adding that, if it wasn’t an executive session under one of the open meetings act allowable exceptions, the public should not have been excluded from attending.
“It doesn’t matter who called the meeting,” Shannon said. “If it’s a quorum of the body it must be open to the public.”
Bojorquez also contended that all documents and materials used during the workshop were copyrighted by him and are not subject to disclosure through a FOIA request. Prior to the start of the meeting the OA was initially provided the documents, which primarily cited state laws pertaining to the Open Meetings Act. The same information is easily accessible on the Internet to any member of the public.
John Bussian, the OA’s legal counsel and a nationally-recognized open meetings/records expert, agreed that the meeting was a violation. He said the city’s excuse for excluding the public and media is legally incorrect.
“So, the Austin lawyer (Bojorquez) is clearly a third person to whose communications and handouts the Act applies,” Bussian said.
The Bojorquez Law Firm is no stranger to Odessa. The firm was hired several years ago by the City of Odessa to provide an interim city attorney, Gary Landers. Landers was Odessa’s interim city attorney following the departure of long-time attorney Larry Long in 2018. He was replaced by current City Attorney Natasha Brooks in 2019.
An FOI request was filed by the OA Tuesday seeking information as to how much the law firm has been paid by the city for Landers’ employment, as well as how much was spent on the Tuesday workshop has been filed.
During council’s June 22 meeting, Brooks said she was planning an Open Meetings Act workshop and said that the meeting would be open to the public. She was unavailable for comment on Tuesday.
The OA successfully sued the City of Odessa for open meeting violations in 2017 that resulted in the city paying legal fees as well as agreeing to record all executive sessions held by the city in the future.
The OA remains embroiled in another lawsuit against the city, which in May lost its second legal battle against the Odessa American’s efforts to force the municipality to comply with state freedom of information laws.
The OA filed its lawsuit against the City more than a year ago, alleging the municipality was violating the Texas Freedom of Information Act by requiring the newspaper to file formal freedom of information requests in order to obtain police reports and probable cause affidavits, records that have always been readily and promptly available to any member of the public. The process resulted in delays in the release of the public records, which oftentimes contained information that was redacted. The newspaper’s lawsuit seeks a writ of mandamus by the court, which essentially is a ruling that forces the City to comply with state open records laws.