The Texas Court of Criminal Appeals struck a worrying blow to the Texas Open Meetings Act on Wednesday.
The hit was delivered to one of the most important sections of the law: The part that makes it a crime for our public officials to “knowingly [conspire] to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations.”
In essence, the rule tries to prevent officials from discussing public business away from the public’s view. The Court of Criminal Appeals called it “unconstitutionally vague.”
“We do not doubt the legislature’s power to prevent government officials from using clever tactics to circumvent the purpose and effect of the Texas Open Meetings Act,” Presiding Judge Sharon Keller wrote for the majority. “But the statute before us wholly lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our own judicial views. This we decline to do.”
We would disagree on the law’s vagueness. There’s a difference between good-faith lobbying and back-door dealing when it comes to public governance, and it’s clear to us that the particular section of the Texas Open Meetings Act was written in the spirit of tamping down on misdeeds behind closed doors.
The Court of Criminal Appeals takes issue with this, in effect calling it a blanket ban that would require “a person to envision actions that are like a violation of TOMA without actually being a violation of TOMA and refrain from engaging in them.”
Heaven forbid our government officials and elected representatives play it safe just in case they might violate the law!
The spirit of the Texas Open Meetings Act is clear: The public has an unalienable right to know what elected officials are doing and why — and decisions should be made in the open. It’s far better that our officials should make every effort to keep the public informed about what they are doing and to make sure the public’s business is conducted out in the open. Too many bad decisions are made behind closed doors, and far too often the public has had to scale mountains to fix those decisions once they are brought to light.
This ruling means one of the act’s most powerful incentives for keeping elected officials honest is unenforceable. The Texas Legislature must act to restore such enforcement immediately, working to find definitions and rules that will meet the Court of Criminal Appeals’ satisfaction.
In the meantime, we are heartened by Gov. Gregg Abbott’s mandate to state agencies on Thursday:
“Regardless of yesterday’s ruling, my standard and expectation is for all agencies and boards to continue to follow the spirit of the law,” he wrote. “You should not waver in your commitment to providing transparency in the work you perform for Texans at your respective governmental entities.”
We just hope our government officials feel the same now that nobody can punish them for doing the opposite.