Council Receives Opinion Regarding Violation of Texas Open Meetings Act

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On August 25, 2011 some members of the Duncanville City Council voted to remove all the sitting members on the Duncanville Economic and Development Board (4B). Problem is that action wasn’t on the agenda.

Following the meeting on that evening Duncanville City Council member Grady Smithey requested an opinion from a legal firm regarding the legality of that action.

While waiting for that opinion, Council member Leslie Thomas requested that an item be placed on the October 4, 2011 agenda to ratify the action taken on August 25. During discussions regarding that October 4 agenda item, legal counsel Bob Hager advised the council that they could not ratify a “voidable act” and that merely ratifying the vote would not stand if the initial vote was a violation of the Texas Open Meetings Act.

Because of  Council member Jameson’s request to receive proposals for legal services from different firms, the current city attorney firm of Nichols, Jackson, Dillard, Hager & Smith, L.L.P. asked City Manger Kent Cagle to solicit an opinion from an outside firm.

A letter dated October 7, 2011 from attorney Darrell G-M Noga of the firm Fee, Smith, Sharp & Vitullo, L.L.P. addressed to Mayor David Green and the Duncanville City Council outlined the opinion.

Click here to view the copy of the letter obtained by by Open Records Request with the City of Duncanville.

According to that opinion, the actions Texas Open Meetings Act was violated by the vote taken that night to “vacate” the DCEDC Board.  On August 25, 2011, Council member Johnette Jameson motioned to vacate the entire board, including members whose terms were not expired. Jameson, Thomas, Janet Harris and Don Freeman voted to remove all of the members.  Appointed to the board that night were:

  • Wendy Nalls (2-year term)
  • Jack Coleman (2-year term)
  • Tracy Shook (2-year term)
  • Tommie Rains (2-year term)
  • Ann Hubener (1-year term)
  • Deborah Hodge (1-year term)
  • Homer Ficannon (1-year term)
  • Steve Martin (Ex-Officio, 1-year term)

According to the legal firm, the official agenda posted for the meeting did not provide notice of the action actually taken. The Texas Supreme Court decisions makes it clear that a “reader of the posted agenda would have to have been given sufficiently specific notice that the City was actually considering action it eventually took at the meeting. Simply put, the agenda posting did not give fair notice of what actually occurred.”

The legal firm even went on to address the long history of disputes regarding the council and DCEDC.

“Further, given the economic import of the City and given the City records show a long and contentious history of public debate concerning the DCEDC, the issue of removing or ‘vacating’ the Board clearly appears one of significant public interest requiring even more detail in the Agenda posting at issue.”

Furthermore it suggested that other council members were blindsided by the motion to “vacate.”

“It also raises other issues and questions as to application of the Texas Open Meetings Act in that it appears some Council members had no idea the motion to vacate the DCEDC Board would be at issue until at the meeting itself.”

The final paragraph sums up that the posted agenda “did not notify the public that existing DCEDC Board would be replaced or that motions would be made to ‘vacate’ the Board, or that such removal was under consideration, it did not comply with the Texas Open Meetings Act and any actions taken as a result are voidable.” will continue to monitor the council agendas and post any updates on this item.

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