OPEN GOVERNMENT AND THE LEGISLATURE: BEATING A DEAD HORSE?
What is most interesting about the Texas Open Meetings Act? Probably the fact that, while it applies to local governmental bodies, it does not apply to the Texas House or the Texas Senate. Both houses of the legislature take the position that their rules of procedure, which are adopted pursuant to the constitution, trump the Act. Under those rules, the members can discuss public business freely amongst themselves, groups of their members, or even as a “caucus of the whole Senate” outside of the public’s view.
Legislative standing committees are supposed to comply with the Act as well. But the members frequently suspend the law to allow them to meet with little notice. Case in point? S.B. 751, which was reported on in a previous edition of the Legislative Update. The bill amends the law relating to committee procedures to provide that “the attendance at a legislative caucus meeting by members of a standing committee who constitute a quorum of the committee is not considered a meeting of the standing committee under other law [e.g., the Act] or under the rules of procedure for the house creating the standing committee.” In addition to caucus meetings, legislative committee members commonly visit in private break rooms behind committee chambers to come to agreements on legislation that is before the committee.
Contrast that with a later-filed bill, H.B. 2977. That bill would provide that a member or group of members of a local governmental body – including a city council – commits an offense if the member or group of members knowingly transmits an electronic communication during a public meeting. (The bill defines an “electronic communication” as an e-mail, text message, instant message, or posting on an Internet Web site, and does not apply to an electronic communication that contains only administrative or ministerial information or that is sent in relation to an emergency situation.)
Anyone who has ever sat in the gallery of the House or Senate chamber knows that legislators furiously send text messages during floor debates. Should it be a crime for them to do so? Well, “if it’s good for the goose…” More philosophically, should members of a governmental body of any type and at any level be prohibited from using technology to communicate? In today’s new world of technology, text messages and Facebook posts are almost akin to casual, in-person, conversations. The next thing you know, open government advocates will ask that local government officials carry around a digital recorder and archive every conversation they have with anyone about public business.
The work of government should be done in the public view, there is no doubt about that. But prohibiting members of governing bodies from discussing their business with each other, and expecting them to learn about an issue in the few hours per month that they are actually in a public meeting, makes little sense. Just ask almost any member of the Texas House or Senate. For doing what those members do every day, a city official is subject to six months in jail.
As we’ve printed before, many legislators seem to believe strongly in open government, so long as it doesn’t apply to them. Stop beating a dead horse? Maybe when the press points out that the legislature should be subject to the Act just like local officials.