David LeDoux, Contributor
There is a wide range of issues facing San Marcos. Residents are concerned with policing policies, homelessness, affordable housing, rising crime rates, historical preservation, flooding, gentrification, rising property taxes, and utility rate hikes. Additionally, small business owners are struggling to make payroll during a global pandemic.
Regardless of what topics you discuss at the microphone or in written comments submitted for City Council meetings, your free speech rights under the Texas Open Meetings Act (TOMA) are threatened by our elected officials. And those limitations to your First Amendment Rights are being codified in our City Charter this year on the ballot.
Three elected officials in San Marcos wanted to maintain the Charter Review Commission (CRC) recommendations for citizen communications aligned with the Texas Open Meetings Act; Shane Scott, Alyssa Garza, and Maxfield Baker.
The final recommended amendments by the CRC were changed by the mayor and approved by all City Council members except Alyssa Garza and Maxfield Baker.
The revisions that the mayor created are against TOMA. To that effect, a vote for their version of the charter amendment overturns months of work by the CRC and will be a vote against state law, Free Speech and Free Press.
The City Council has spent more time discussing spearfishing in an open forum at Regular Meetings than the Charter Review Commission recommendations.
The Charter Review Commission is the Constitutional Convention of San Marcos, Texas. Past city councils have respected CRC recommendations. City Council discussed its final approval of the amendments to the City Charter in a Work Session, making changes in a meeting with no public comment.
During the work session, the rules of engagement for public comment were discussed, impacting free speech rights protected under the Texas Open Meetings Act.
According to TOMA, all public/open meetings must have public comments. The CRC attempted to mitigate oversights to free speech as it has been interpreted during the pandemic with Question and Answer Session from the Press and Public omitted during Regular Meetings. And, the complete omission of public comment from other meetings such as Work Sessions, Emergency Meetings, and Special Meetings.
If you value your free speech rights and value freedom of the press, what has occurred this year with the amendments to the City Charter is also your issue.
Changes that occurred to the CRC Recommendations Appearing on the Ballot
Purpose: To promote transparency in city government by allowing citizens and the media to ask questions and comment on city practices and proposed policies or programs at all council meetings.
Changes were made with no public comment allowed in “Work Session” on Wednesday, September 29, and adopted in “Regular Meeting” on August 20, 2021, with NO discussion by our elected officials.
PROPOSITION – D
FOR/AGAINST The amendment of Section 3.09 (Meetings of the City Council) to require all regular city council meeting agendas to include “Citizen Comment Period” and “Question and Answer Session with Press and Public” as agenda items.
Recommendations
The city council could pass an ordinance that ALL meetings would require public comment. Every meeting: Work Sessions, Special Meetings, Regular Meetings, etc., should have a Citizen Comment and Question and Answer Session with the Press and Public. This could then be codified during the next round of the Charter Review Amendment Process.
The San Marcos city council has more “Special Meetings” and “Work Sessions” than most other councils, where business is carried out. This would ensure transparency and public input.
For instance, $500,000 dollars were given to the local hospital in an Emergency Meeting. The agenda did not have a public comment portion.
This means that someone could take the city to court, and the $500,000 could be disputed simply because the city refused to follow TOMA.
Recently, during Questions from the Press and Public, Lisa Marie Coppoletta (LMC) called out city council members for violating TOMA.
“So I’m not understanding. Maybe city staff or one of the elected officials can explain to me why TOMA was not required in that July 6 meeting,” LMC said.
”Does Bert have an answer?” LMC asks after a lengthy pause.
“What do you mean by TOMA wasn’t required?” said Mayor Jane Hughson.
“Why was the Texas Open Meeting Act not required? I guess the question is, why was there no public comment in that meeting, especially since you gave direction and overturned decisions and changed ballot language from the Charter Review Commission? And you completely change the language and now it’s different. It didn’t happen in a ‘Regular Meeting.’ Right? So why was TOMA not used in that meeting?” LMC clarifies.
“Well…when…when you’re saying why TOMA wasn’t used, that can mean a lot of things,” said Mayor Hughson.
“What I’m specifically asking, and I don’t want you to eat my time Mayor. My question is, why was there no public comment in that meeting? Why was there no public comment allowed? Because you, you gave direction. You had a quorum, you had it agenized you overturned a decision in a regular meeting? Why was TOMA not used in that meeting? Why was there not public comment?” said LMC.
“Should this be a question for our city attorney?” said Councilmember Melissa Derrick.
“First of all, the meeting was posted in accordance with the law 72 hours in advance and was accessible via zoom to the public,” City Attorney Michael Cosentino said. “So the public comment provision that I believe it’s 551 007, which you refer to speaks to having public comment when there is consideration of a matter. The vote was tonight”
“So it speaks to the consideration of that item. The vote was tonight on what goes on the ballot,” said Cosentino. “Okay. All the other ones were discussion about what to put in an ordinance but the vote was tonight. And you’re making your citizen comments tonight about this particular item as TOMA allows because it was on for consideration tonight.”
The City Attorney is painfully incorrect. TOMA does not make a distinction, “deliberation” and “discussion” are synonymous for purposes of TOMA.
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Care about our city? Then vote NO on each and every pending charter amendment.
These new changes will allow YOUR council to become more unaccountable to YOU.
You choose (elect) city council members to be accountable for decisions affecting YOU.
Your council now wants to appoint persons who will make those decisions for you.
Worse, council wants to give those persons authority to appoint others.
Sound a little out-of-hand--even if you don't have a degree in law? It should.
Delegata Potestas Non Potest Delegari is a maxim of constitutional and administrative law from ancient Roman law to this day which means that authority which is delegated cannot again be delegated. ... In other words a person to whom some power is delegated cannot sub-delegate that power to someone else. Or else the swindle never stops because the permission is endless.
The Hijack. YOUR council members are unaccountable due to having no specific territorial district ("at large"). They now reach for the holy grail of all hijacks on behalf of big money interests. "Gosh, that's so-and-so's decision, he works for himself with his own employees, this is how municipal law works now, so maybe I can write a letter on your behalf." They will tell you this while having the guy's number on their speed dial for three-party conference calls. Who stands to gain here? You don't need a degree in law to know this answer. Council will always challenge YOUR right to control YOUR city. Therefore, do NOT give them the tools.
More to come on this issue. VOTE "NO" on all charter amendments.