FEDERAL JUDGE ORLANDO GARCIA SAYS
HOWDY DOODY IS A CROOK!


" CROOK! "

The mayor and some council members bemoaned U.S. District Judge Orlando Garcia's ruling on Tuesday that they violated the First and 14th Amendments by denying arts funding to the Esperanza Peace and Justice Center.

None had actually read the 84-page ruling, of course. They should, especially those who were on the 1997-99 council that defunded Esperanza.

If they are too busy to worry themselves with the niceties of the U.S. Constitution, they might want to start on Page 65.

There begins the section in which Garcia strongly suggests that they are criminals.

The judge begins by recounting exactly how council members came to decide to remove the Esperanza center from the budget that had been prepared by the city staff. It was Sept. 10, 1997, a Wednesday night and the eve of the council meeting at which the final budget would be approved. Mayor Howard Peak and a varying group of council members met in the office of then-City Manager Alex Briseño. At times, other council members participated by telephone.

It was not an official meeting, posted 72 hours ahead of time, nor were media or other outside observers (other than perhaps a spouse or special friend of one or two council members) present. It was, in other words, a private session.

Peak testified during the Esperanza trial that the purpose of the session was to reach a consensus on the budget and to avoid "a whole bunch of amendments from the floor that would take up lots of time" at the formal council meeting.

At various times during the meeting, nine members would be present or on the phone — all but Debra Guerrero and Jeff Webster. At times, Briseño would warn that one or more needed to leave the room in order to avoid violating the Texas Open Meetings Act. The ones who left would wait in the reception area outside Briseño's office.

According to sworn testimony by those who participated, decisions about the budget, including cutting Esperanza, were worked out that night. The next day's unanimous budget vote was a formality. There was no discussion, and no explanation of why Esperanza had been omitted.

Council members clearly thought they were obeying the letter of the law by making sure they didn't have a quorum.

But Judge Garcia would like to acquaint our good burghers with Section 551.143 of the Open Meetings Act, something the City Attorney's Office apparently failed to do. The section is bluntly titled the "Conspiracy to Circumvent Chapter." It says:

"A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter."

Garcia quotes a 1992 attorney general's opinion interpreting this provision: "In other words, if city council members are holding their discussion of public business in numbers less than a quorum in order to avoid having to meet the requirements of the Open Meetings Act, criminal prosecution can be pursued against such officials for such discussions."

Garcia concluded, "Surely the facts of this case present a classic fact pattern of deliberation by a quorum that purposely attempts to avoid the technical definitions of the Act by shuffling members in and out of an office. Clearly, a quorum of council members deliberated and reached agreement concerning the budget — perhaps the most important piece of public business the council considers — behind closed doors, actions condemned by both the Hitt court (referring to a 1985 case involving the San Antonio School District board) and the Texas attorney general. The transparent subterfuge of separating members physically by an office wall or a telephone line cannot avoid the strictures of the Act."

At another point, Garcia notes that the closed-door session resulted in a memorandum by Mayor Peak and signed by all council members before the public meeting containing the budget revisions forged in the closed-door session.

"A clearer manifestation of intent to reach a decision in private while avoiding the technical requirements of the Act can hardly be imagined," Garcia wrote.

So what is the penalty for violating the law? The mayor and the council members who participated could be fined up to $500 and sentenced to jail for up to six months.

They don't have to worry, though. The two-year statute of limitations ran out in September 1999.

Still, the current council and other elected officials need to understand that clever games of musical chairs don't get them off the hook.

Of course, that won't happen until some tough-on-crime elected official sees to it that the law is enforced.

The question now is: "What does Mr. Ed have to say?"


former mayor Mr. Ed