Putting These in the Record...
Aug 28
7 min read
The City Council continues to play fast and loose with the Open Meetings Act. So far, the lawsuit I filed hasn't been enough to compel them into substantial, ongoing compliance, and the agenda for the 9/1 meeting continues this trend.
Specifically, there are problems related to sequencing on the public comment period after executive session and further action on items from Councilman Johnson's improper use of the public comment period in the 8/4 meeting.
I've submitted the following emails to the City Secretary and the Coucilmembers to have these included in the record for the 9/1 meeting. It likely won't do much good, but I'd like for others in the public to be aware of what the issues are here and why they matter.
We're entitled to have a City administration that complies with the law, particularly in matters concerning transparency and open government.
Ignorance is not a defense, and there are no excuses for not getting these things right. The Attorney General publishes a handbook on the Open Meetings Act that covers all of this. If I can know it, so can they.
Objection to Item 13 — September 1, 2026 Meeting
Ms. Burling:
Item 13 on the 9/1 agenda consists of essentially the same proposals Councilmember Craig Johnson presented during the prior meeting’s public forum period and asked to have placed before the Council at a future meeting: elimination of the road-maintenance fee, monthly residential electric and water credits, a Coleman Park lighting retrofit, a public meeting and conference center, and an increase in the homestead exemption to 100%.
Johnson's use of the public comment period is the exact issue addressed in Stratta v. Roe, 961 F.3d 340 (5th Cir. 2020).
In Stratta, a member of the governmental body attempted to participate in the public comment period as a “member of the public” and use that opportunity to raise an unposted subject for placement on a future agenda. The Fifth Circuit rejected that procedure. It held that § 551.042 does not permit a member of the governmental body to bypass TOMA’s notice requirements by introducing an unposted subject during public comment and stated specifically:
“Stratta thus was not permitted under § 551.042 to raise a new topic as an agenda item in a future meeting during the existing meeting.” Id. at 364.
Section 551.042 exists to deal with subjects unexpectedly raised by members of the public. It does not exist to provide members of the governmental body an alternative means of introducing their own unposted governmental business or otherwise circumventing the limitations on which topics may be discussed during the meeting.
Councilmember Johnson was not a “member of the public” for purposes of the Open Meetings Act while attending a meeting of the City Council as a member of the body. The Fifth Circuit explained that the Open Meetings Act “is designed to protect the public from Board member violations, not to allow Board members to circumvent its requirements by calling themselves ‘members of the public.’” Id. at 363
Item 13 now consists of the same proposals Councilmember Johnson improperly introduced and requested for future consideration during public comment. If the City’s position is that Item 13 was not placed on the agenda pursuant to Johnson’s request, but instead represents an independent exercise of the City Manager’s authority to initiate Council business, then the City should make that distinction clear in the meeting record. What it cannot do is defend Johnson’s use of public comment as a lawful means of requesting that these items be placed before the Council. Stratta directly forecloses that idea.
Please preserve this objection as part of the September 1 meeting record and reflect my objection to item 13 in the minutes.
Subject: Written Objection Regarding September 1, 2026 City Council Meeting — Agenda Notice and Public Testimony
Ms. Burling,
I am submitting this written objection in advance of the meeting and request that it be made part of the official meeting record. I specifically request that the minutes reflect that I submitted a written objection before the meeting concerning the sufficiency of the posted notice and the sequencing of public testimony relative to the scheduled executive session. I further request that this correspondence be retained with the official records of the meeting and attached to or incorporated by reference into the minutes if that is the City’s practice.
The September 1 notice is styled as a “Regular Meeting” of the City Council beginning at 7:00 p.m. It separately states that “[a]n Executive Session will be held at 6:00 p.m.,” then states again that “[t]he regular meeting” will be held at 7:00 p.m. The numbered agenda beginning at 7:00 starts with “Reconvene.” The only expressly identified general public-comment item is Item 23, “Visitors and Public Forum,” after the substantive agenda items and after Item 22, “Discussion/Action on Executive Session items if any.” The notice further tells the public that “during Visitors and Public Forum, anyone may address the Council.”
I object to that notice and sequencing.
The 6:00 p.m. executive session cannot lawfully be treated as a separate proceeding detached from the public meeting. Government Code § 551.101 provides that a governmental body may not conduct a closed meeting unless a quorum first convenes in an open meeting for which notice has been given. The Attorney General has stated the point expressly: “[a]n executive session is not a separate event,” but rather “an integral part of a public meeting.” Tex. Att’y Gen. Op. No. JC-0285 (2000).
The City’s own agenda reflects that relationship to some degree. Page 3 states that the Council reserves the right to “adjourn into executive session at any time during the course of this meeting.” Yet the first page simultaneously creates the appearance of two distinct proceedings: an executive session at 6:00 p.m. and a “regular meeting” beginning at 7:00 p.m. If the Council actually convenes publicly before 6:00 p.m., receives public testimony, and then recesses into executive session, those proceedings are not a separate preliminary meeting or an informal accommodation. They are part of the same meeting for which advance notice is required.
Texas Government Code § 551.007(b) separately requires the Council to allow a member of the public who wishes to address an agenda item to do so “before or during” the Council’s consideration of that item. Section 3 of the City Charter independently requires public testimony on any matter before executive session. Thus, the noticed “Visitors and Public Forum” at Item 23 cannot itself satisfy those timing requirements for matters Council has already considered in executive session or otherwise addressed earlier in the meeting.
If the City’s position is that it satisfies those requirements by opening the floor for public testimony before entering executive session at 6:00 p.m., that creates the notice problem. The posted notice does not tell the public that the meeting will first convene in open session before 6:00 p.m. for public testimony. Instead, it tells the public that the “Regular Meeting” begins at 7:00 p.m. and affirmatively identifies a later portion of that meeting—Item 23, “Visitors and Public Forum”—as the occasion “during” which anyone may address the Council.
I am not suggesting that the City is prohibited from providing more than one opportunity for public comment, nor that the agenda must recite every procedural right afforded by law. The issue is much simpler: The City has noticed one public comment period while omitting the one it would legally rely on to satisfy § 551.007 and the Charter. The defect is therefore not the existence of an additional opportunity to speak. It is the disconnect between the public testimony procedure disclosed by the notice and the procedure upon which the City relies for legal compliance.
The City’s treatment of the FY2027 budget is useful for comparison. Item 6 expressly notices the required public hearing, and Item 7 separately notices consideration and adoption of the budget. The City does not omit the public hearing from the agenda and rely instead on an unannounced invitation for anyone already present to speak before Item 7. Yet that is effectively the position the City would have to take here if it relies upon an unnoticed public comment opportunity before the 6:00 p.m. executive session. In each instance, the public participation opportunity is legally significant because of when it must occur. If the City relies on that proceeding for compliance, the public should not have to discover its existence only after arriving at the meeting. That would essentially defeat the point of the notice requirement altogether.
This disconnect is compounded by the way the meeting itself is described. The notice makes the legally operative pre-executive session portion of the meeting appear separate from the noticed 7:00 p.m. “Regular Meeting,” even though TOMA treats the executive session and the open proceedings necessary to convene it as parts of the same meeting. A member of the public reading this notice could reasonably conclude that the meeting begins at 7:00 p.m. and that public comment occurs at Item 23. Nothing in the notice tells that person that, to exercise the right to address Council before its consideration of an executive-session matter, the person must instead be present before 6:00 p.m.
That is precisely why advance notice matters. Notice is directed to members of the public before they arrive at City Hall. An oral invitation to persons who happen already to be present cannot inform those who relied on the posted notice that they needed to attend at an earlier, undisclosed point in the meeting.Texas courts have rejected notices where the proceeding or actions taken are not consistent with the notice given. The same concern arises when the City relies on a legally significant proceeding that the posted agenda does not disclose at all.
Attorney General Opinion JC-0169 recognizes that a public comment session itself must be noticed under TOMA, although the description may be general. Texas courts likewise judge notice from what the governmental body’s posted language reasonably communicates to the interested public. See City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991); Rettberg v. Texas Department of Health, 873 S.W.2d 408, 411–13 (Tex. App.—Austin 1994, no writ). And River Road Neighborhood Association v. South Texas Sports, Inc., 720 S.W.2d 551, 557 (Tex. App.—San Antonio 1986, writ dism’d), recognizes that a governmental body’s own agenda terminology and practices matter when determining what the notice communicates to the public.
Please preserve this objection as part of the official record of the September 1, 2026 meeting and expressly reflect its submission in the minutes.
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