Denton Mayor Gerard Hudspeth has proposed making it a crime for council members to reveal publicly what’s discussed in closed meetings. But experts on the Texas Open Meetings Act and federal law say that would be a violation of those council members’ First Amendment rights.
“These people are not employees,” said Joseph Larsen, an attorney who represents the Freedom of Information Foundation of Texas. “The government can direct an employee on what to say and what not to say, but you cannot do that with an elected official. The 5th Circuit [Court of Appeals] has looked at that and rejected that theory altogether. You can’t do it.”
On Tuesday, Hudspeth suggested making disclosure of closed session discussions a crime while responding to council member Deb Armintor’s request that officials record the audio of every closed session.
“I think it’s important for those watching to understand this has been a non-issue,” he said. “This body — not all members here — but this body reduced the penalties for exposing information that is disclosed in closed session. If we’re talking about tightening things up, let’s go back to making it punitive to share what’s happening in closed session.”
Armintor was not successful in receiving consensus on recording closed sessions on Tuesday, with only Paul Meltzer showing support. Meanwhile, Hudspeth resurrected this issue from 2015, when Larsen sent a letter to then-Mayor Chris Watts and the Denton City Council cautioning that adopting an ordinance making it a crime for elected officials to talk to the public and the press about issues raised in closed meetings is unconstitutional.
“I’m surprised it happened so quickly again in the same place,” Larsen said. “You would think there would be some institutional governance, and you’ve got case law and AG opinions on this. I don’t know what’s wrong with these people. Do they not understand the democratic process?”
That ordinance from 2015 was repealed. Watts said this past week he could offer little else on the issue.
“I don’t know the status anymore,” he said. “That was six years ago. And six years ago, we made a decision based on information we had at the time. I haven’t kept up on the reiterations of that.”
Hudspeth said he stands by what he said during the council meeting on Tuesday, when he asserted that the City Council should “go back to making it punitive to share what’s happening in closed session.”
“That is something I can get on board with,” he said Tuesday. “That has real teeth. Now, we’re talking about misdemeanor charges. Let’s make it punitive again to share what happened in closed session. That is a first step.”
Armintor at the time challenged Hudspeth on the legality of doing that.
“It is illegal to punish free speech in that way,” she said. “That is why that [ordinance] was removed. I don’t think we should bring that back.”
Kelley Shannon, the executive director of the Freedom of Information Foundation of Texas, agreed.
“That is a violation of First Amendment free speech rights,” she said. “We wrote a letter to the Denton City Council to that effect in 2015. I can tell you that you can’t prevent people from talking. City council members have free speech rights, and you can’t penalize them for saying what they wish to say.”
David Zoltner, a former member of the Denton Ethics Board, was one of several people who asked the Freedom of Information Foundation of Texas to intervene in 2015.
“Our mayor and mayor pro tem should both understand that closed sessions do not create ‘confidential’ information under the law,’” Zoltner said. “Nor does the law prohibit sharing that information with the press or public. Their comments during that Tuesday meeting were very troubling, in my opinion.”
Jesse Davis is mayor pro tem and an assistant district attorney for Denton County. During Tuesday’s meeting, he said he saw no reason to record closed sessions and later told the Denton Record-Chronicle that revealing information from closed sessions goes beyond First Amendment rights.
‘Not just legal consequences’
“It’s not just legal consequences for the individual but legal consequences for the city,” Davis said. “It’s practical consequences in contract negotiations. It’s a pretty narrow read when that [the attorney general] said you can’t criminalize the First Amendment right to free speech by elected officials. I think it’s a mistake to read it real narrowly.”
He also suggested that when council members reveal matters discussed in closed session, their motives are personal.
Denton City Attorney Aaron Leal did not respond to Hudspeth’s remarks about criminalizing council members who talk about closed-session items publicly during Tuesday’s meeting. He later declined an interview request. Instead, the city issued a statement.
“Like many policy issues, staff has provided the council with information to inform their policy discussion but does not take part in that discussion,” states an email from Ryan Adams, director of customer service and public affairs. “This is to ensure that the residents and council can remain confident that no matter the policy adopted, city staff [will] faithfully and ethically implement it. Additionally, the city attorney legal opinions and advice are provided only to city officers and employees. As a result, we will not be able to comment on this council policy discussion.”
‘Willing to follow the law’
Meltzer, the lone supporter of Armintor’s request to record closed sessions, said he’s not clear on the legality of criminalizing council members who talk about closed session items publicly.
“I’m willing to follow the law if it can be clearly explained,” he said. “There is, in any event, a role for confidentiality when you’re talking about personnel matters, competitive issues and legal strategy or security arrangements.”
Under the Texas Open Meetings Act, the Denton City Council may enter closed session to discuss personnel matters, ongoing litigation or the possibility of litigation, real estate transactions, economic development project negotiations, and safety and security protocols.
“People think that if something’s recorded, it’s possible to put it in a lockbox until we need it for some beneficial purpose,” Davis said. “if it exists, it is possible that someone can get a judge to rule for them that it should be made available.”
span style=”text-decoration: underline;”span style=”color: #000032;”Texas law/span/span only requires city councils to keep minutes of closed sessions and to place on their agendas 72 hours in advance why they may enter closed session. They are not required to record them.
“It’s just absurd,” Larsen said. “I think they should require recording all sessions. They are anti-transparency.”
During Tuesday’s meeting, Leal said that documenting what is said during closed meetings is generally not for public consumption and is done for a specific purpose.
“Actually doing this is to ensure that you are meeting in closed session under a proper [exception],” he said then. “I know there are members of the public that may think these recordings can be used for other purposes but that is not what the law requires.”
Those recordings would be used only during trials in which the plaintiffs claim City Council members violated the Texas Open Meetings Act, Leal said.
“Anybody wanting to challenge the actual closed session — whether or not it was properly held — that is the kind of litigation that would be … in district court,” he said. “It would be filed to allege that the City Council met in closed session and didn’t have proper jurisdiction or their discussion ventured into other areas. It’s just to determine if you followed the process.”
The next Denton City Council meeting is scheduled for 3 p.m. on Tuesday.
PAUL BRYANT can be reached at 940-566-6881 and via Twitter at @paulbryant_DRC.