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November
30, 2006
TOMA Talk March 8, 2007 ["The Desert-Mountain Times] "Anti-Philippi faction hurting
area's image, Beard says
"Permanent
Link
"By Andrew Stuart Staff writer "Brewster County Judge Val Beard weighed in this week on the efforts by some Alpine city council members to fire City Manager Karen Philippi and about Alpine city government more generally, describing the current functioning of the city government as the worst she has seen in more than 30 years of living in Brewster County. Beard said in an interview Monday (Jan. 17) that she chose to voice her concerns about matters at the city because of a column by council member Avinash Rangra that appeared in the Jan. 13 issue of The Desert-Mountain Times. Beard said the column misrepresented Philippi’s efforts and achievements and failed to “give credit where credit is due.” “There are some management things that are being taken care of for the first time in years,” Beard said, “and no credit’s being given for that.” She was particularly concerned, she said, by “Dr. Rangra’s assertion that the city manager was not responsible for getting the city back in the grant game.” “I disagree with that completely,” she said. “That was one of the first things (Philippi) asked about when she got here. As nearly as I can tell, she’s pursued everything we talked about – and more.” In his column, Rangra said that Jake Brisbin, executive director of the Rio Grande Council of Governments, should be given credit for securing a $260,000 Community Development Block Grant for Alpine, because Brisbin had informed the council about the grant opportunity. But Brisbin said Tuesday that he had made the presentation to the council at the request of Philippi and Beard. “The truth is that Karen Philippi and Judge Beard recommended that I come out there,” Brisbin said, “and they did that because they’re good public officials.” Beard pointed to Philippi’s efforts to secure a $4.8-million, zero-interest loan from the Texas Water Development Board to address long-overdue water-pressure problems on Alpine’s south side, as well as the city’s long-term water needs. “A zero-percent loan is, in effect, almost a grant,” she said. While some have described Philippi as a “big-city” type who doesn’t understand how to manage a small town, Beard said Philippi understands the challenges faced by rural communities with limited economic resources. “She understands limited resources,” Beard said, “and she’s got the basic skills.” While Philippi is “tough,” “independent” and “blunt,” Beard said, it is not the city manager’s job to be a deft politician, but to work aggressively to address the priorities identified by the city council. Beard said that while council members are charged with overseeing the city’s finances, they must also be willing to give a city manager the ability to run day-to-day operations and to pursue the council’s priorities. “They’re making it a lot harder than it needs to be,” she said, “because they’re getting into things they don’t need to get into in that form of government.” The council recently voted to place a charter-amendment measure on the ballot in May that, if approved by voters, would greatly limit the city manager from moving budgeted funds from one line item to another within a single department. Beard said the measure was too constrictive, noting that county department heads can make line-item transfers. “They want to micro-manage, and they don’t know how to manage,” she said of the city council. “Are they going to meet five days a week? You have to establish a financial policy and see that your CFO or city manager executes the policy.” “This is the absolute low point,” Beard said. “The problems started well before, but it’s gotten worse and worse. It’s got to stop.” Beard said that operations at the city council are hindered by a fundamental lack of civility, an atmosphere of acrimony in which elected officials with disagreements and concerns are unable to treat one another and city staff with respect. “You can function without unanimity,” she said. “But you can’t function without civility and respect.” That lack of respect, she said, extends to the attitude of some council members toward their constituents. “You shouldn’t be in public office unless you have respect for your constituents,” she said. “There are some folks in the council that don’t respect their constituents.” The atmosphere of mistrust, Beard said, also creates an unfair assumption that all city employees are “lazy and corrupt,” simply because they are public employees. Beard said the inability of the Alpine city council to work effectively with a city manager and its failure to pursue consistent policies are impacting the other government entities in the region. “Alpine is part of a region,” she said, “and because of the actions of the city council, Alpine has lost credibility in the region. And that costs all of us.” She said the city council’s inability to work effectively will discourage new businesses from moving to Alpine, which affects all the taxing entities, including the county and Alpine ISD. “Ultimately what it’s going to do is affect the tax base,” she said. “If you’re a small business and you read the local newspapers, you have to ask, ‘Do I want to get involved with that? Do I want to relocate there?’” Alpine ISD Supt. Mike Davis said the council’s behavior also discourages families from moving to the area. “The negativity of the council as it works together has influence as to whether people want to be part of our community,” Davis said. “As long as there is turmoil on the council, it keeps families from moving into the area.” In the long-run, the in-fighting and dysfunction at city hall threaten Alpine’s ability to secure state and federal funds for vital city projects, Beard warned. “If this keeps on, they aren’t going to get loans, and they aren’t going to get grants,” she said, “because they lack credibility. The agencies that administer grant funds want to see a track record – you’re not going to give funds to a three-ring circus.” Beard said Alpine deserves a city council that can work together to advance a positive vision of the city’s future. “Look at this place! Everybody wants to be here,” she said. “We’ve got such great assets, and we need a great city council. The county needs a partner, but you can’t work with a partner that won’t stay hitched on issues.” " February 1, 2007 HOUSE JOURNAL SEVENTY-NINTH LEGISLATURE, REGULAR SESSION PROCEEDINGS THIRD DAY — THURSDAY, JANUARY 13, 2005 STATEMENT BY REPRESENTATIVE KEEL In adopting its rules for the 79th legislative session, as in previous sessions, the Texas House of Representatives and the Texas Senate place themselves under the exclusive authority of their own rules. Those same rules exclusively govern the remedies for their violation. Observers should take note that the Texas Open Meetings Act is inapplicable to the Texas Legislature. This point warrants clarification because the incorrect notion that the Act applies to interaction among legislators occasionally gets raised. The open meetings law was originally enacted in 1967 by the 60th Legislature. It has been amended many times by subsequent legislatures. In 1969, the legislature amended the Act to recognize that the legislature has the authority to set the rules for the notice of legislative committee meetings (sec. 551.046). In 1993, the law was codified as Chapter 551, Texas Government Code. Section 551.003 reads: "In this chapter, the legislature is exercising its powers to adopt rules to prohibit secret meetings of the legislature, committees of the legislature, and other bodies associated with the legislature, except as specifically permitted in the constitution." Article III, section 11 of the Texas Constitution grants independent authority to each house for each session of the legislature "to determine the rules of its own proceedings." It is the generally accepted rule of law that one legislature many not bind a subsequent legislature by enactment of laws, whether a substantive law or a procedural limitation. Although the 60th Legislature chose to prescribe rules relating to legislative meetings in the adoption of the Open Meetings Act and other legislatures followed suit by refining those rules, more recent legislatures used the power granted by article III, section 11 of the constitution to enact rules governing legislative operations and proceedings. The rules that govern each house of the current legislature (and, as noted, most legislatures in contemporary history) include a statement of authorization and precedence, citing article III, section 11 of the constitution. The House Rules state: "Pursuant to and under the authority of Section 11, Article III, Texas Constitution, and notwithstanding any provision of statute, the House of Representatives adopts the following rules to govern its operation and procedures. The provisions of these rules shall be deemed the only requirements binding on the House of Representatives under Section 11, Article III, Texas Constitution." On its face, chapter 551 of the Texas Government Code could be argued to apply to the legislature. But by using the power granted it in the constitution, each house of the legislature instead adopted a body of rules to govern its operations and place procedural limitations on its meetings, whether meeting as bodies of the whole or in committees. Those rules provide the exclusive requirements and remedies that bind each house. Included in the rules is rule 4, sec. 12, which states: "All meetings of a committee or subcommittee, including a calendars committee, shall be open to other members, the press, and the public unless specifically provided otherwise by resolution adopted by the House." It should be noted that implicit in this rule is the fact that the House, if it were to choose to do so, could anytime by resolution close its committee meetings. Indeed, the House Rules also provide for certain committees to meet in secret. This plainly corroborates the fact that Government Code § 551.003 limits the statute's applicability to the legislature. See also Texas Senate rules. Furthermore, article III, section 16 of the Texas Constitution provides: "The sessions of each House shall be open, except the Senate when in Executive session." An attempt to apply the literal provisions of the Open Meetings Act to the House and Senate would conflict with the competing provisions of the Texas Constitution because the rule-making authority given to the legislature by the constitution would have no meaning. Non-public meetings--such as those authorized by rules adopted by the House for the General Investigating committee, or for the impeachment or punishment of a member of the House, "or any other matter of a quasi-judicial nature" (Rule 4, Sec. 12) (authorizing closed meetings to examine witnesses, deliberate, or consider or debate a decision)--would be illegal. Such meetings might also be construed as an illegal attempt to "circumvent" the Open Meetings Act under § 551.143. Thus, every time a legislator meets with other legislators to secure a majority vote on an issue before a committee or the full house, that legislator would be violating the Open Meetings Act. Attempting such a misapplication of the Act leads to absurd results, given that the conduct described is universally recognized as proper and necessary for legislators in a representative democracy. Furthermore, Rule 4, Sec. 13 of the House Rules states: "The Rules of Procedure of the House of Representatives, and to the extent applicable, the rules of evidence and procedure in civil courts of Texas shall govern hearings and operations of each committee . . . ." The legislature did not adopt the Texas Open Meetings Act or any other statute as applicable to its committee operations. The remedy for a violation of the House Rules is therefore contained exclusively within the Rules. For example, where a point of order is sustained for a violation of Rule 4, Sec. 12, the remedy is to knock the bill off the floor and send it back to committee. Trepidation about gatherings of legislators (such as committee dinners, which is one of the more inane concerns that frequently gets raised) is unfounded. There are two rulings some will cite as authority for applying the Open Meetings Act to the legislature. One is In Re Texas Senate, 36 S.W.3d 119 (Tex. 2000), in which the Texas Supreme Court considered the application of the open meetings law to the election of the lieutenant governor. Preliminary to its holding, the court stated that the Open Meetings Act "clearly covers the Committee of the Whole Senate." In saying this, however, the court did not consider and did not address arguments that the statute is inapplicable. The court held that a provision of the Texas Constitution expressly authorized the secret ballot. The court's statement regarding the Texas Open Meetings Act was therefore dictum. It is important to note, however, that the competing Constitutional provision prevailed regarding the procedural issue. An attorney general opinion, no. JM-122 (1983), found that the Open Records Act expressly applies to the legislature and prevailed over conflicting legislative rules adopted by the house that purported to make certain committee records confidential. Yet the confidentiality of legislative records is hardly a procedural issue--it presents clearly substantive, as opposed to procedural, matters. The opinion did not address meetings, which is just as plainly a procedural issue. Particular note should be taken that there is no criminal exposure for legislators in the face of allegations that their routine legislative interactions run afoul of the Open Meetings Act. The Texas Code of Criminal Procedure limits the duties of a grand jury to inquiries of offenses "liable to indictment." Tex. Code Crim. Proc. art. 20.09. Because the Texas Open Meetings Act does not apply to the legislature, if a prosecutor directed grand jury scrutiny toward meetings of legislators (such as discussions held among members of a House Committee in private), premised solely upon a supposed violation of the Open Meetings Act, such would constitute an abuse of the grand jury by that prosecutor, in my opinion. I have discussed with the Travis County District Attorney my observations and I understand that his own considered opinion and that of his Public Integrity Unit staff on the broader, critical issue of the inapplicability of the Texas Open Meetings Act to the legislature is consistent with the conclusions I have expressed here. • November 10, 2006 Attorney General of Texas Greg Abbott News Release "Wednesday, November 8, 2006 <>"Attorney General Abbott Wins Landmark RulingTo Keep Texas Open Meetings Act Intact" "Ruling by U.S. District Judge Robert Junell says law does not restrict free speech among public officials . . . " http://www.oag.state.tx.us/oagnews/release.php?id=1816 "November 9, 2006 "The Big Bend Sentinel "Judge upholds Texas Open Meetings Act; appeal planned "BY STERRY BUTCHER The Big Bend Sentinel The Presidio International "PECOS — A federal district judge has ruled that Alpine city council members didn't have free speech protection when they exchanged emails about city business. . . . " [Click link below to see entire story.] http://www.marfatx.com/uploadedfiles/toma%281%29.html www.bigbendsentinel.com/ September 20, 2006 Here are the links to the Eighth Court of Appeals' 8/17/06 Opinions "In Re Katie Elms-Lawrence" and Avinash Rangra: Katie Elms: "(1). There was no probable cause to support the indictment in Cause No. 3744 at the time it was presented; "(2). There was no probable cause to support the indictment in Cause No. 3744 at the time it was dismissed; . . . " "COURT
OF APPEALS
EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS No. 08-05-00333-CV
Appeal from the394th District Court IN THE MATTER OF THE EXPUNCTION OF K.E.L. of Brewster County, Texas (TC# 2005-05-B8281-C)"
Avinash
Rangra: must refile
"TOMA ruling expected in September by Betse Esparza EDITOR . . . . . " . . . said Brown, who believes a ruling for the plaintiffs could result in 'bedlam.'
"You could
just start having meetings anywhere.
—District
Attorney Frank Brown
Nothing would be posted." The Alpine Avalanche, Page 1 August 10, 2006 Strong men differ? Here is the conclusion of a 1989 Attorney General Opinion by Jim Mattox (JM 1058): . . . . . ". . . Finally, since members of a governmental body are subject to criminal penalties for certain knowing violations of the Open Meetings Act, see V.T.C.S. art. 6252-17, s 4, a contrary interpretation of subsections 1(a) and (b) and 2(r) would raise a constitutional question. The Fifth and Fourteenth Amendments of the United States Constitution prohibit the enforcement of any law that "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385 (1926); see also Baker v. State, 478 S.W.2d 445 (Tex.Crim.App.1972). A vague statute threatens punishment of people who had no fair warning of what conduct to avoid. See United States v. Cardiff, 344 U.S. 174 (1952). A higher standard of certainty is required of a statute imposing criminal penalties than of one relying on civil enforcement. Kolender v. Lawson, 461 U.S. 352, 358 at n. 8 (1983); see Winters v. New York, 333 U.S. 507 (1948). "We believe that the language of
the statute does not fairly
warn persons of common . . . . .
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