You Decide Part 3: The Texas Open Meetings Act Violations
How Many Laws Is the City Breaking?
An Opinion Piece
by Joe Carter
Draft Version 1.0
As of 8/12/2022
Possible Violations of the Texas Open Meetings Act (TOMA)
The Texas Open Meetings Act is described in layman’s terminology in the Texas Open Meetings Act Handbook. It is our understanding that the act requires that all deliberations and actions taken by the City Council must be done in a properly run public open meeting by a quorum of City Council Members, with limited exceptions. The public must be allowed to involve itself in the meeting. The public must also have access to materials being deliberated upon during the meeting. In order to oversee the decisions of City Council Members, citizens need access to the same information that Council Members used to make those decisions.
Further, we understand that decisions that are not properly made in an open meeting are voidable by a court. That voiding would also nullify any subsequent decisions that followed from the original improperly made decision. For example, if a project and budget were approved by an illegal quorum outside an open meeting, a subsequent vote to accept a general contractor’s bid on that project would also be voidable as would any work the contractor performed as a result.
Our layman’s review of the public record provides evidence that the decision to fund and execute the Senior Center project was not made in a properly-constituted open meeting, much less in the manner prescribed by the City Charter. Our detailed analysis of the decision process for launching and executing the Senior Center project is outlined below.
A bond issue that included a new Senior Center was defeated by popular vote in a May, 2021 bond issue election. In spite of the failed bond issue vote, a quorum of City Council members evidently decided at some point to move forward building the new Senior Center facility with alternate funding. This decision was not codified by a quorum of Council members in an open meeting. It is our layman’s understanding that this failure may violate the Texas Open Meetings Act. A thorough examination of City Council Meeting Minutes as outlined in the points below reveals that no other approval votes were ever sought or executed until a winning bidder was selected on January 4, 2022. The following points contain references to all the meetings we could find where the Senior Center project was discussed. None of them describe a budget approval vote.
Minutes of the September 14 2021 Stephenville Senior Citizens Center Advisory Board (SSCCAB) state, “... the City Council wishes to pursue plans to build a stand-alone Senior Center at a yet-to-be-determined location. … The Council’s plan for funding the construction can come through City Reserves without depleting them.” This is the first mention we can find in the public record of a plan to build a new stand-alone Senior Center using the general fund balance. There is no prior record of approval for this expenditure in an open meeting. If the Council considered the budget approved at this point, then the approval was via an illegal quorum and subject to being voided. If it was only tentative at this point, a layman would expect that the budget approval could be found later in the public record. As outlined below, there is no subsequent approval either. In addition, prior to this meeting or after, there has been no public hearing specifically asking for input on spending a million dollars out of reserves to build a new Senior Center. From a layman’s perspective, it would appear that such a hearing would be important, especially since the public had rejected a bond issue for a new Senior Center 4 months prior. Why did the Council hold a bond election if they already had the needed funds in a Council slush bucket?
In the Sept 28, 2021 Council Workshop minutes, the Senior Citizens Center is listed for the first time as a $1 million item to be funded from the Fund Balance of the General Fund. A notation in the minutes following the item states, “Council directed staff to proceed with pursuing funding for the above projects.” This directive is the closest the new Senior Center project came to being formally approved. The project seems to have been on auto-pilot from that point forward. As you’ll see from the timeline outlined below, no other approval votes were ever sought or executed until a winning bidder was selected on January 4, 2022. The Council’s directive to fund the project appears to be unusual for several reasons as follows:
The City’s fiscal year runs from October 1 to September 30. September 28 is way late to be approving budget items for the upcoming fiscal year. Per the City Charter, all projects are supposed to be deliberated as part of a comprehensive budget presented 45 days before the fiscal year. Final approvals of the budget package must be made at least 7 days before the fiscal year after public hearings.
The Senior Center project was never integrated into the fiscal year budget as published either as a regular item or an emergency item accepted by amendment
There was no vote to OK the directive
Even if there had been an approval vote, it would have been invalid because the Sept 28 meeting was a workshop. Final decisions are not voted on in workshop meetings.
Since final approvals are not permitted in workshop meetings, one has to assume that the approval to proceed was arrived at via an illegal quorum prior to the meeting.
As you’ll see in the following timeline, from the Sept 28, 2021 meeting forward, the project budget is always presented as a done deal, not a project that is contingent on some future approval.
In a September 30, 2021 called meeting of the Senior Center Advisory Board, the minutes say “Councilman Thurman proceeded to give information on the proposed new senior center, saying the City Council has a one-million-dollar budget and is working with Jim Burgeon of Rocky Creek Builders.” The existence of the $1 million budget and the work with Rocky Creek Builders are stated as facts, not as items contingent on future approval. As stated above, there is no record of an approved budget or a vote in an open meeting for such a budget as of September 30, 2021. There is also no record of a vote in an open meeting to approve working with Rocky Creek Builders as of this date. The minutes go on to describe in detail the drawings and plans for a Senior Center to be built “at the end of East Tarleton Street.” The minutes further state, “The City Council will vote on this proposal at 5:30 p.m. October 4, 2021.” The minutes of the referenced October 4th meeting contain no record of any matter having to do with a senior center project in that open meeting, nor do any subsequent meeting minutes. It is our layman’s understanding that, either the budget approval occurred via an illegal quorum or the budget approval never occurred at all.
An RFQ for the senior center construction project was first advertised sometime around October 12, 2021 with an opening date of November 9, 2021. The RFQ specified a budget not to exceed $1 million, a location near the intersection of Tarleton Street at Vine Street - address to be determined later, 4400 square feet of building space. The Nov 16, 2021 Council Special Meeting minutes state, “The single proposal that was received exceeded the $1,000,000 budget allocation for the project. Mr. Barnes recommended that council reject the proposal and direct staff to re-advertise.” The Council rejected the bid. Neither the name of the unsuccessful bidder, nor the bid amount, nor the bid package the Council used in their deliberations was made available to the public. Our layman’s understanding is that this vote and the RFQ language provide evidence that a firm budget of $1 million was in place prior to this vote. If so, the firm budget was arrived at via an illegal quorum in a closed meeting.
The minutes for the Nov 9, 2021 Senior Center Advisory Board meeting state, “Darron Trussell clarified the new location for the new Senior Center.” It is our understanding that this “clarification” was that the location of the building had been moved from the corner of Tarleton Street and Vine Street, approximately 125 feet south to a Vine Street address adjacent to the tree. In an informal discussion with a Council Member after construction had commenced, he indicated that the move was necessitated because the Council had decided to add 1300 square feet to the building to make it large enough to accommodate City Council meetings. The Tarleton Street location was too small to accommodate the larger building. The “clarification” statement for the address didn’t include any information about the new Vine Street location. No subsequent record reveals that information either. More information on this anomaly is provided in blog posts You Decide Part 4 (work in process) and The Tree That Didn’t Bark.
Sometime shortly after November 9, 2021 the city re-advertised a Senior Center RFQ # 1009 Opening Date December 15, 2021 with identical specifications to the previous one -- budget not to exceed $1 million, a location near the intersection of Tarleton Street at Vine Street - address to be determined later, 4400 square feet of building space. These specifications were identical even though plans for the building had evidently undergone major changes on or before November 9, 2021. The new Vine Street address had indeed been determined; the building size had been increased from 4400 square feet to 5700 square feet and the budget had been increased by $180,000 to accommodate the size increase. The opening date of the re-advertised RFQ was December 15, 2021. In the January 4, 2022 regular council meeting, the Council approved a bid by Rocky Creek Builders, the sole bidder on the re-advertised RFQ. A motion to amend was also approved to increase the building size to accommodate addition of space for Council Chambers. Cost of the additional space was $180,000. These were the only votes recorded in the Council meeting minutes to approve anything related to the Senior Center. These were not votes to approve funding of the Senior Center project; they were votes to approve selection of a builder and to increase a budget that presumably had already been approved.
Neither the RFQ nor the winning bidder’s response was included as an agenda attachment for the January 4, 2022 meeting in which the bid was approved. There were 10 items on the agenda that night. 9 of them had attachments. The Senior Center agenda item was the only one without an attachment. Neither the RFQ nor the bidder’s response was included in the meeting packet. Failure to provide these materials violated the public’s right to have access to the materials used by the City Council in its deliberations concerning the bid response. It’s unlikely that the Council made their decision without examining these materials. It is our understanding that the public must have access to the same materials as the Council to be knowledgeable about their actions.
Per the Texas Open Meetings Act (page 4), “The minutes or tape of an open meeting are open to the public and must be available for inspection and/or copying.” Up until approximately August 5, 2022, the minutes from Senior Citizens Center Advisory Board Meetings held on January 11, 2022 and March 5, 2022 were missing from the public record. They were finally posted on or about August 5, 2022 for approval during an August 9, 2022 meeting of the Stephenville Senior Citizens Center Advisory Board. Note that the City Council was notified that we had engaged the Hill Gilstrap Law Firm during the August 2, 2022 City Council Meeting. This oral notification was followed up by letter on August 3, 2022. Retroactive publication of January 11 minutes on August 5 is likely in response to this notification. Citizens shouldn’t have to hire lawyers to get the City to fulfill their legal obligations under TOMA.
Per the Texas Open Meetings Act Handbook, violations of TOMA can be punishable by
(1) a fine of not less than $100 or more than $500;
(2) confinement in the county jail for not less than one month or more than six months
