My mama taught me many things as I was growing up. Several of her lessons I learned the hard way via a plum tree switch or her hand. Others she drove home in other ways via things like grounding. Needless to say she was strict.

I won’t say Clara Maida was right all the time, but she was right most of the time. Before I enlisted in the Air Force, she taught me to respect those that deserved it and tolerate the rest. She said to salute all officers because that was what was required. She said that a salute did not mean I had to respect those I was saluting. This helped me a lot when dealing with my superiors.

She also taught me to help others no matter the cost. She taught me to do the right thing no matter the cost too. She believed that the law was meant for everybody, which included the government. The older I get the more I realize how wise she was.

So if anyone has a problem with me wanting things to be right and legal, part of the blame falls on Clara Maida.

So this brings us to 2014. There may be people here in Italy that don’t care if the City of Italy obeys the law and rules they are supposed to follow. I happen not to be one of them. If I discover they are not doing what is right, I will ask say so. The council has access to everything I have access to. It is their responsibility to follow the law. I don’t think the City Council intentionally breaks the law but that does not change the fact that they sometimes do without even realizing it. I don’t believe there is one person on the council that does not have our best interest at heart. They have a thankless job that most citizens would not want. But good intentions don’t always keep us legal or make things fair and right.

The “good ol’ boy system” needs to die immediately. The council needs to realize that they must follow the law whether they want to or not. They need to be held accountable for their actions because their actions affect all of us. They also need to admit when they have done things wrong and not followed the law. The City of Italy is paying our city attorney, Ed Voss, for legal advice and to keep us legal. It is time for you to be the judge if we are receiving the correct advise.

In the September called meeting, the city approved the 2014-2015 budget. Included in this was changing several Public Works employees status from hourly to salaried and from non-exempt to exempt which violated federal employment law. They were also given large raises when other city employees were given 3% raises and police officers no raise at all. I wrote an article explaining the violation of the law. I expected the council to place this issue on the next agenda to rectify the problem.

When I saw the agenda for the October monthly meeting, there was nothing on it regarding employee salaries, compensatory time, overtime, or employee raises. There was nothing on the agenda regarding exempt or non-exempt employees. I was very disappointed. I knew from research that any issue the council was to discuss must by law be on the agenda, even issues for closed session.

In the meeting, Mayor Hobbs read the following from the agenda regarding what the council would discuss in closed session:

The Italy City Counsel reserves the right to adjourn into Executive Session as authorized by Texas Government Code Section 551.072 to discuss the matter listed below. The City Council also reserves the right to consult in closed session with the City Attorney on any posted agenda item pursuant to the Texas Government Code, Section 551.071 (b).

1. Deliberate personnel issues regarding the verbal warning placed in administrative employee files and all matters incident and related thereto (Texas Government Code Sections 551.074) (Farmer)

2. Deliberate with attorney Ed Voss regarding personnel and job description legal issues (Texas Government Code Sections 551.071).

3. Deliberations regarding real property (Texas Government Code section 551.072) (E. Voss)

4. Deliberate the appointment, employment, evaluation, reassignment, duties, discipline or dismissal of the City Attorney Ed Voss and all matters incident and related thereto (Texas Government Code section 551.074. (Farmer)

I was so disappointed when I realized they were not discussing the large salaries that were given to Public Works employees or raises at all. They were not going to state they broke employment law when they changed the status of the public works employees and rectify it.

In my press packet for the meeting, there were job descriptions for all city employees for the council to look at. #2 above states job descriptions. I could not figure out why these would be discussed in closed session (#2 above) because they did not fall within the law for closed sessions.

The council reconvened into open session and reported the following:

1. No action taken.

2. Council member, Paul Cockerham, spoke for the council. He explained they were going to place the public works employees back on an hourly pay scale instead of salaried exempt and reduce them back to what they were making before they were given their last raises. They would receive a 3% raise like the other employees received. He also explained that they would not receive compensatory time, but would be paid overtime. When questioned and asked to claify, he said that all other employees would receive compensatory time, not overtime.

Cockerham also stated that if a new police officer is hired, they would be paid $1.00 more per hour than several current officers which would not be fair, so the current officers will receive raises up to the $17.50 per hour. They then voted and approved the changes in salaries and overtime.

3. No action taken.

4. No action taken.

On the website, https://www.texasattorneygeneral.gov/AG_Publications/pdfs/openmeeting_hb.pdf, it states

The Texas Open Meetings Act represents a commitment to the people of Texas that the public’s business will be conducted in the open. It is a legal guarantee of a transparent government and one to which I’m committed as attorney general.

Our open government laws have long been among the strongest in the nation, and I am proud of my office’s efforts to maintain that strength. With the United States Supreme Court’s affirmation of a key provision of the Open Meetings Act, Texas secures its reputation as a leader in requiring government to be conducted openly.

This Open Meetings Act Handbook is one of the myriad ways my office provides guidance to public officials and citizens alike. The Handbook is freely available on the Internet at
https://www.oag.state.tx.us/open/publications_og.shtml. It is intended to help public officials comply with the law and avoid unintentional violations of the law as well as help all Texans understand how the Open Meetings Act benefits them.

The public places a great trust in its elected and appointed officials. This trust includes the expectation that public officials will conduct public business responsibly and in accordance with the law. It is my sincere hope that this Handbook honors that trust and ensures this great state continues to flourish under a government that operates in the sunshine.

The Texas Open Meetings Act (TOMA) states a governmental body subject to the Act may not conduct its meetings according to procedures inconsistent with the Act.

The Mayor and Council have all have been required and taken the TOMA training. I don’t expect them to remember everything they learned, but they can reference the Act. TOMA is their guideline of what they can and cannot do in their meetings.

Section 551.005 requires each elected or appointed public official who is a member of a governmental body subject to the Act to complete a course of training addressing the member’s responsibilities under the Act. The public official must complete the training not later than the 90th day after taking the oath of office, if required to take an oath to assume duties as a member of the governmental body, or after the public official otherwise assumes these duties if the oath is not required.

Completing training as a member of the governmental body satisfies the training requirements for the member’s service on a committee or subcommittee of the governmental body and ex officio service on any other governmental body. The training may also be used to satisfy any corresponding training requirements concerning the Act that another law requires members of a governmental body to complete. The failure of one or more members of a governmental body to complete the required training does not affect the validity of an action taken by the governmental body.

The attorney general is required to ensure that the training is made available, and the attorney general’s office may provide the training and may approve any acceptable training course offered by a governmental body or other entity. The attorney general must also ensure that at least one course approved or provided by the attorney general’s office is available at no cost on videotape, DVD, or a similar and widely available medium.

The training course must be at least one and no more than two hours long and must include instruction in the following subjects:

(1) the general background of the legal requirements for open meetings;
(2) the applicability of this chapter to governmental bodies;
(3) procedures and requirements regarding quorums, notice and record keeping;
(4) procedures and requirements for holding an open meeting and for holding a
closed meeting; and
(5) penalties and other consequences for failure to comply with this chapter.

The entity providing the training shall provide a certificate of completion to public officials who complete the training course. A governmental body shall maintain and make available for public inspection the record of its members’ completion of the training. A certificate of course completion is admissible as evidence in a criminal prosecution under the Act, but evidence that a defendant completed a training course under this section is not prima facie evidence that the defendant knowingly violated the Act.

Thus, a quorum of the governmental body must be assembled in the meeting room, the meeting must be convened as an open meeting pursuant to proper notice, and the presiding officer must announce that a closed session will be held and must identify the sections of the Act authorizing the closed session. There are several purposes for requiring the presiding officer to identify the section or sections that authorize the closed session: to cause the governmental body to assess the applicability of the exceptions before deciding to close the meeting; to fix the governmental body’s legal position as relying upon the exceptions specified; and to inform those present of the exceptions, thereby giving them an opportunity to object intelligently.

A governmental body must give the public advance notice of the subjects it will consider in an open meeting or a closed executive session. If they had stated they were going to talk about the issues of the raises, comp time and changes in a class of employees, I would have been allowed to voice my opposition to that and stated I felt this violated TOMA and request they discuss this in open meeting.

Section 551.074. Personnel Matters

Section 551.074 authorizes certain deliberations about officers and employees of the governmental body to be held in executive (closed) session:

(a) This chapter does not require a governmental body to conduct an open meeting:

(1) to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee; or

(2) to hear a complaint or charge against an officer or employee.

(b) Subsection (a) does not apply if the officer or employee who is the subject of
the deliberation or hearing requests a public hearing.

This section permits executive session deliberations concerning an individual officer or employee. Deliberations about a class of employees, however, must be held in an open session. For example, when a governmental body discusses salary scales without referring to a specific employee, it must meet in an open session.

When the council discussed the salaries of the public works employees and police officers in closed session, did they violate TOMA? Also, did they violate TOMA by discussing comp time and overtime in closed session? According to TOMA, should all of this have been discussed in open session? Not only did they not put these on the agenda, they discussed these in closed session. Was that a violation of TOMA?

In the open meeting I was hoping they would have stated they had violated federal employment law on the record and then discussed what to do to fix it in open session. I think it should have been listed on the agenda in the open session portion of the meeting.

551.071. CONSULTATION WITH ATTORNEY; CLOSED MEETING.

A governmental body may not conduct a private consultation with its attorney except:

(1) when the governmental body seeks the advice of its attorney about:
(A) pending or contemplated litigation; or
(B) a settlement offer; or

(2) on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter.

The items in #2 that they discussed in closed session do not in any way fall into this category.

Sec. 551.101. REQUIREMENT TO FIRST CONVENE IN OPEN MEETING.

If a closed meeting is allowed under this chapter, a governmental body may not conduct the closed meeting unless a quorum of the governmental body first convenes in an open meeting for which notice has been given as provided by this chapter and during which the presiding officer publicly:
(1) announces that a closed meeting will be held; and
(2) identifies the section or sections of this chapter under which the closed meeting is held.

Sec. 551.071. CONSULTATION WITH ATTORNEY; CLOSED MEETING.

A governmental body may not conduct a private consultation with its attorney except:
(1) when the governmental body seeks the advice of its attorney about:
(A) pending or contemplated litigation; or
(B) a settlement offer; or
(2) on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter.

Again, none of these applied to what they discussed.

Sec. 551.074. PERSONNEL MATTERS; CLOSED MEETING.

(a) This chapter does not require a governmental body to conduct an open meeting:
(1) to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee;
(2) or to hear a complaint or charge against an officer or employee.
(b) Subsection (a) does not apply if the officer or employee who is the subject of the deliberation or hearing requests a public hearing.

So, where do we go from here. This is just my opinion, which is worth something to me but probably not to anyone else. Like I said in the beginning of this column, I know there are people that don’t care if the City breaks the law. They probably also don’t care if we pay an attorney lots of money to keep us legal but are allowed to possibly break the law anyway. I happen not to be one of them.

There is something horribly wrong here. First of all if we pay an attorney to keep us legal, I expect him/her to do just that. If the attorney is not going to do that I think the city should hire one that will. Also, I don’t think the council showed good judgement when they did what they did at the last meeting. Only paying one class of employees’ overtime and not paying all of them is just plain wrong. In fact paying any overtime instead of comp time is just plain wrong.

On page 30 of the City’s Personnel Policies, Section 13.10 states:

Hourly personnel shall accrue compensatory time in lieu of overtime pay. Compensatory time is accrued at the rate of time and one half the hours worked; one hour overtime work (hours in excess of the normal work period) will accrue one and one-half hours of compensatory time, which is to be taken outside the work period in which it is earned, but must be taken within the quarter in which it is earned.

So, paying anyone overtime violated written city policy. Why set up personnel policies if you are not going to follow them.

I explained to one of the council members after the last meeting that they had possibly broken the law by discussing all this in closed session. His answer – we broke the law doing what we did before – we had to fix it. My answer to him – not by breaking the law again. I told him that two wrongs did not make a right. I stand by that.

It is time for the council to be held accountable for bad decisions as well as good ones. It is time we hold them accountable to follow the law, not break it. It is time for this “good ol’ boy” system to die and never be resurrected. If I am the only one that believes this, we are in worse shape than I ever could have imagined.

I want the mayor and council to know this is nothing personal. I am hoping they will hold themselves accountable and admit they broke the law and fix this properly. I also hope they will follow the law in the future. That is the only hope our city has. It is time for transparency. It is time the citizens are allowed to know what is going on in our city. That is what transparency is all about. The end for now.

Comment by John Droll, 10-17-14 2:24pm

Only regarding the question revolving around:

551.071. CONSULTATION WITH ATTORNEY; CLOSED MEETING.

A governmental body may not conduct a private consultation with its attorney except:

(1) when the governmental body seeks the advice of its attorney about:
(A) pending or contemplated litigation; or
(B) a settlement offer; or
(2) on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter.

I believe it’s Chapter 1.05 of the book mentioned in (2) that concerns confidentiality. Basically information given by a client to obtain legal advice from their attorney is covered by this confidentiality. So consultation by a governmental body with it’s attorney can be a conflict with the Texas Open Meetings Act. It’s the same reason a police officer doesn’t stay in the interrogation room while a suspect is consulting with his attorney. Both need the ability to speak openly and completely, as do you and I if we obtain an attorney.