Local Government - Closed and Locked!

                                                                        by Ron West

                                                Under national law, the Congress of the United States publishes all initial drafts of all new laws and then covers us up with all the amendments and committee activity.  This is to allow comment from all interested sources prior to the enactment of new laws.

    Under State of Texas law and the State Constitution, all new state laws are submitted in writing to our legislators and again made public to all for comment - prior to passing such laws.  Again the purpose is to allow comment from all interested parties. 

    In Texas, under existing law, local municipalities - such as North Richland Hills, Texas, the local elected officials have an option as to whether or not they choose to make pending new ordinances (laws)  and changes to existing ordinances (laws) public prior to enactment.  If an elected body is trying to hide their actions for any reason, they can elect not to publish such information prior to enactment, an in effect, spring all new laws on the citizens when they vote to make the new law.

    To complicate matters, or to block local observation, the rules for our City Council currently in effect, do not allow any public discussion or comments of new or changed laws that are placed on the council agenda.  This means that all new laws for NRH are developed in complete secrecy by city staff, are not available for any public viewing or comment, and when in final draft format, placed on the council agenda and then voted on by the City Council in a session that allows no public input.

    This methodology is what happened with the noxious RV/Parking ordinances of last year that were ultimately repealed after significant public outcry and the replacement of two of the offending city council people.

    Beginning in January of this year, I initiated an attempt to seek information on any new laws or changes to existing laws that were within 45 days of placement on the City Council agenda.  I submitted an open records request as follows:

Subject: Open Records Request 012605-7
Date: Wed, 26 Jan 2005 14:59:43 -0600
From: Ron West <rcw@ronwest.org>
To: City Secretary <CitySecretary@nrhtx.com>


Dear Ms. Hutson:

This is a request under the Texas Open Records Act, chapter 552 of the Government Code (formerly V.T.C.S. article 6252) as well as Article I, Sec. 8 of the Texas Constitution, the First Amendment to the United States Constitution, the common law of the State of Texas and any statue providing for public access to government information.

I request that I be sent copies of the following documents or, if there are a large number, be permitted to inspect the following documents and receive copies of the ones I would like:

    1)    A copy of any existing pending draft(s) of changes to existing ordinances that are planned to be submitted for council consideration in the next 45 days from the date of this request. 

    2)   A copy of any existing pending draft(s) of any new ordinances that are planned to be submitted for council consideration in the next 45 days from the date of this request.

    3)   A copy of any written communication between any elected official and any city employee, or between elected officials,  requesting new city ordinance preparation and/or changes to existing city ordinances.  This request is specifically applicable only to any item that exists under item 1 or item 2 above. 

Clarification:  This request is an attempt to allow citizen knowledge of pending law changes in our city before they are submitted to council meetings.  Since we are not aware of any other vehicle to find such information, we are planning to submit new open records requests every 15 days into the future.  This is not a request to release future or nonexistent information.  It is a specific request to identify only existing documents in whatever stage they are in, prior to the final drafting that occurs upon submission to the council.  This clarification is presented so that you may develop a method to capture such documents in the future to respond to these future open records requests.  I believe that the creation of new laws in our city must be opened to public view before such laws are enacted.
 
If you have any questions about the nature or scope of this request, please call me at the phone number listed below. If you determine that all or some portion of the information requested is excepted from required disclosure, I request that you provide me with the portions of the requested information that are public and reasonably segrable from that which you believe is excepted. If any records are in active use or in storage, please certify this fact in writing and set a date and hour within a reasonable time when the records will be available, as required by section 552.221 of the Act. If you determine that all or some portion of the information requested is excepted from required public disclosure under a particular exception, I request that you advise me as to which exceptions you believe apply. If you rely on previous determination, please advise me of the applicable court decision or Attorney General's opinion. If there is no such determination, please advise me of the request for such an opinion, as required under section 552.301 of the Act, and a dated copy of your letter to the Attorney General. I call your attention to section 522.353 of the Act, which provides penalties for a failure to release public records. I am prepared to pay reasonable costs for copying, within the guidelines set by sections 552.261, 552.262, 552.263, 552.267, 552.268, 552.269.

Thank you for your attention to this and I expect to hear from your office within ten days.

Sincerely,

Ron C. West
 

        This initial request was immediately sent to the Attorney General of Texas asking for an opinion as to whether or not the City was required to comply with my request under Texas Open Record laws.  A copy of that request may be reviewed here.  The city took the position under City Attorney George Staples, with the letter initiated by Charlotte Staples, that they did not want to release any information on pending changes to ordinances in the City of NRH.  There was no subsequent request made since the opinion request essentially stopped all such requests.

        Recently I received a copy of a rather cryptic letter from the Attorney General to Ms. Staples, that essentially confirmed that the city could claim an exemption from open records for any and all information regarding changes in the laws of our City by calling all such information part of the deliberative process.  While I didn't fully understand the letter, I confirmed my fears in two subsequent phone conversations with members of the Attorney General's staff.  The bottom line is that the City can legally follow a practice of passing all new laws without any notice, disclosure or discussion with the citizens such laws are to be imposed upon.  The first notice to the citizens is placement on the City Council agenda for the meeting at which such law(s) is to be enacted.

        The decision to withhold all such information is totally optional by the elected officials on a city by city basis.  Such decision can be made to apply only to any truly sensitive information or as in the case of NRH, it can be made to totally exclude the citizens from any participation in the development of new or changed ordinances of any kind.

        The letter from the Attorney General - combined with the current mind set of exclusion by our City Leadership - has effectively closed and locked the door to what they plan to do next regarding all laws for our city.

        I continue to ask myself why a governing body would choose to exclude the citizens?  What purpose does it serve?   What is being hidden and why?   What harm would come from allowing citizen comment and input on new laws prior to enactment?  The only answer that seems to make sense is that in some manner the council is afraid of public scrutiny of their actions or perhaps, they have become so arrogant that they truly believe that they know what is best for us without our input.

        Regardless of the outcome of the election that is now underway, it would seem that all citizens would want to at least be advised of new laws that are being considered before they become law.   If this is a true statement, then hopefully supporters of the incumbents would want to ask them some questions about their position on open government while they are seeking votes.   The challengers have stated full support for open government which I believe means they would elect to allow publication of any proposed new laws before they decide to vote on them.  So far, none of the incumbents has even made any type of statement regarding open government to my own knowledge despite the fact that it has been one of the "primary" issues of the challengers.

        The door to open government in NRH is currently closed and locked.  Only we as citizens - responsibly watching and communicating with responsive elected officials can unlock the door.  I personally think that NRH would be a better place to live if the door was unlocked.