ethics law and open government_bill dugat

© 2016 BICKERSTAFF HEATH DELGADO ACOSTA LLP

Ethics Law and Open Government

Bill Dugat 512-472-8021

[email protected] 3711 S. MoPac Expwy.

Bldg. 1, Suite 300 Austin, TX 78746

www.bickerstaff.com

Texas Alliance of Groundwater Districts Leadership Training

Austin, TX October 27, 2016


•  Conflict of interest laws affecting Directors

Ø  Chapter 171 Local Government Code

Ø  Chapter 176 Local Government Code

•  Selected open meetings issues

Ø  Walking Quorum

Ø  Closed meeting/executive sessions

Overview


•  Prohibits a Director from:

Ø  Voting or participating

Ø  On a matter where the Director has a “substantial interest”

§  Business entity

§  Real property

Ø  Resulting in a special economic effect

•  “Substantial interest” Director or family member:

Ø  Business entity – owns:

§  10% or more ownership in voting stock

§  10% or more or $15,000 or more of FMV

Ø  Real Property

§  Interest with FMV $2,500 or more

Chapter 171


•  Business Entity means: Ø  Solo proprietorship, partnership, corporation,

holding company, joint stock company, trust, and any other entity recognized by law

Ø  Does not include a public entity •  Special economic effect undefined


Three questions: 1.  Is there a vote or decision before a Board

involving a “business entity” or “real property?”

2.  Does a director have a “substantial interest?” 3.  If so, will Board action have a special

economic effect on the business entity or real property?


Yes –

•  Before a vote or decision, file affidavit with record keeper

•  Must abstain from further participation

•  Violation is Class A Misdemeanor


Requires a director to file a statement disclosing relationships with vendors conducting business with the District.

Chapter 176


Director must file a statement with district record administrator if:

•  Director or family member has an employment or business relationship

•  With a vendor of the District and •  Receiving > $2500 in preceding 12 months or •  Receives gifts > $100 preceding 12 months

(does not include food accepted as a guest)


E-mail Exchange and Walking Quorum •  Crime to knowingly conspire to circumvent requirements of

TOMA by meeting in numbers less than a quorum for purposes of secret deliberation

•  Walking quorum: sequential conferencing in numbers less than a quorum is prohibited

•  TOMA applies to “verbal exchange” of a “Quorum” •  AG OP GA-0896 (2011):

Ø  Words need not be spoken in person Ø  Need not be physically present Ø  Text message, e-mails, and telephone may constitute

deliberations •  Violations could occur if using devices during a formal

meeting.


•  Meeting cannot begin until quorum present -- must begin in open session pursuant to proper agenda posting

•  Final action/decision can occur only in open session held in compliance with TOMA.

•  Secret ballots or unanimous written consent prohibited -- ACTUAL VOTE AT MEETING BY MEMBERS OF BODY REQUIRED

•  REQUIRED RECORD OF OPEN SESSION = minutes or tape recording (public records); minutes must be permanently preserved

TEX. GOV’T CODE §§551.021-.023, 551.101-.102

TOMA Meeting Requirements -- Open Session Rules


Meeting Requirements -- Closed Session Rules

•  Move to closed session through pronouncement of TOMA statute/authorized topic to support closed session

•  TOMA does not prohibit opinions being expressed in closed session -- but decision must occur in open session

•  REQUIRED RECORD = (1) certified agenda (describes subject matter, action taken, and announcement by presiding officer of date/time and beginning/end of session); or (2) tape recording;

•  Record must be (1) preserved at least 2 years -- and to completion of any suit filed regarding meeting, and (2) is EXPRESSLY CONFIDENTIAL

TEX. GOV’T CODE §§551.071-.074, 551.087, 551.101-.104, 551.129



•  No person may be admitted whose interest is adverse to government -- exclusion extends to opposing suit parties and proposed seller of property to government

TEX. GOV’T CODE §§551.071-.074, 551.087, 551.101-.104, 551.129



•  Many authorized topics exist under TOMA -- including: (1) personnel matters; (2) consultation with attorney; (3) deliberation regarding real property; (4) gifts and donations; (5) economic development negotiations.

TEX. GOV’T CODE §§551.071-.074, 551.087, 551.101-.104, 551.129


•  Member of body commits offense if he knowingly conspires to circumvent TOMA by meeting in numbers less than quorum for secret deliberations in violation of TOMA;

•  Member of body commits offense if closed meeting is not permitted under TOMA,

and he knowingly: (1) calls/aids in calling or organizing closed meeting, whether special or called

meeting; (2) closes or aids in closing meeting if a regular meeting; or (3) participates in closed meeting, whether regular, special, or called meeting;

•  PUNISHMENT = fine of not less than $100 or more than $500, jail confinement for not less than one month or more than six months, or both such fine and confinement.

TEX. GOV’T CODE §§551.143-.146

Criminal Enforcement


•  Member of body commits offense if he participates in closed meeting knowing that certified agenda is not being kept or tape recording is not being made.

Ø  PUNISHMENT = fine of not more than $500.

•  Individual, corporation, or partnership commits offense if, without lawful authority, he/it knowingly discloses to member of public certified agenda or tape recording of meeting lawfully closed to public under TOMA.

Ø  PUNISHMENT = fine of not more than $2,000, jail confinement for not less than 180 days, or both such fine and confinement.

TEX. GOV’T CODE §§551.143-.146

Criminal Enforcement


Ethics Law and Open Government

Bill Dugat 512-472-8021

[email protected] 3711 S. MoPac Expwy.

Bldg. 1, Suite 300 Austin, TX 78746

www.bickerstaff.com

Texas Alliance of Groundwater Districts Leadership Training

Austin, TX October 27, 2016

ethics law and open government_bill dugat

Education