Statement made in Defense of Open Governent at C-FBISD meeting.

Mr. Gommesen has provided this blog a copy of his statement at the October 22,2009, Carrollton Farmers Branch ISD board of trustees meetings in defense of open government.

Ms. Chaffin, Dr. Burns, Members of the Board of Trustees:

I address to you tonight not in support of a principal spelled P-R-I-N-C-I-P-A-L but a principle spelled P-R-I-N-C-P-L-E. I address the board of trustees in support of Open Government. It is it is my unwavering belief that government should be conducted in the bright sanitizing light of sunshine.

Madam President , Under Sec. 551.042 of the Texas government code permits that at a meeting of a governmental body, a member of the public or of the governmental body inquires about a subject for which notice has not been given as required by Texas Open Meeting Act, the notice provisions of this Act do not apply to a statement of specific factual information given in response to the inquiry; It is my intent to make such an inquiry and respectfully request a response.

Madam President, I make the following inquiry: I have carefully examined the minutes of this public body. I am unable to locate where this board acted to instruct legal counsel to take action in the 5th appellate court on behalf of the board. Madam President , I inquire where in a the minutes of this body where the board of trustees gave instruction to legal counsel to take action in the Texas 5th Appeals court. Further, seek the assurance that the board did not act in executive session to instruct legal counsel to file in the appeals court.

Under 11.151 of the Texas Education authorizes the board to act as a “corporate board” in litigation.

Madam President, as you are well aware, under the “Texas Open Meeting Act” decisions entrusted to the board of trustees must be made by the body as a whole at a properly called meeting. A properly called meeting requires that the meeting be conducted in public, follow a published agenda, and a majority members be present . Any action of the board requires the majority vote of those present. In the current action in the Texas 5th Court of Appeals, the school district is the appellant. An appellant is defined as, the party bringing the action to court. That is the one who initiates the legal action.

Madam President, For the district to act as a plaintiff , that is initiate an appeal, requires a formal action of the board.

The board of trustees is permitted to consult with attorneys in executive session, the board cannot take any action , as a board, in executive session.  “The Texas Open Meeting Act” only permits the board of trustees to seeks the advice of its attorney about pending or contemplated litigation.

In the many month’s of litigation, I can only find one time where this board instructed legal counsel to take action on it’s behalf. At the September 10th regular meeting Mr. Shor made a motion to expedite litigation pending in the 95th District court.
This motion did not authorize legal counsel to file an appeal on the board for many reasons least of which are:

1. The motion was approved 11 days prior to the final ruling on the 95th Judicial District Court on September 21, 2009.  It is not reasonable that the board could act to appeal ruling without reviewing the judgment and determining, if would be in the public interest to file an appeal.  For the board to approve an action to appeal without first determining what is in the best interest of district, the students, and taxpayers, would be a violation of the public trust. On September 10th , there was simply nothing to appeal.
2. Appealing the judgment of the district court is hardly reaching a final decision "as expeditiously as possible." It could  be reasonably argued that the motion prohibits the district's attorney from seeking an appeal.
3. The "final decision “in the "lawsuit pending in Judge Mohlberg's court" would be the trial court's judgment.  While this final decision is subject to appeal, it is otherwise a final decision.
4. The district is not legally required to appeal the ruling of  the district court, nor is it even expected that the district would file an appeal.  Less than 1% of civil case rulings in trial courts are appealed. The Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, does not require or permit an  Attorney to file an appeal on behalf of a client who receives a disparaging ruling in a trial court without instructions from the attorney's client.
5. This resolution was passed unanimously, one of trustees voting in the affirmative have publicly stated her opposition to the appeal prior to this vote. This trustee made a motion at the October 12th special meeting to end this appeal. The language of the September 10th motion is so vague as to mean nothing and everything.  Because of wording of this motion is vague, it is not possible to ascertain from this motion the pleasure of  the board regarding a future appeal.
6. In the October 12, meeting  a motion was considered to terminate the appeal, and  the board president abstained from voting on motion.  The board president  cited a potential conflict of interest.  If a potential conflict of existed for the board president on a motion to terminate the appeal, certainly the same conflict of interest existed when voting to initiate the appeal.  However, when considering the September 10th motion, the board president did not relinquished the chair, nor abstain from  the vote. If the intent of September 10th motion was to authorize the district's attorneys to seek an appeal, the board president acted when she perceive she had a potential conflict of interest.
7. This motion specifically refers to "the lawsuit pending in Judge Mohlberg's court. Although, resolution authorizes the district 's attorney to take "the requisite action to obtain a legally final decision as expeditiously as possible"  the scope of the resolution can only be applied to the case in district court.
8. Under the Texas Open Meeting law,  the Board of Trustees can only take action on those items identified as actionable in the official agenda for the meeting.  In this case, the Board of Trustees could only take action on those matters related  to the litigation in the 95th district court only.  To apply to this motion to other matters would be violation of the Texas Open Meetings Act.
9. The stated intent of the motion, was to prevent the voters from being disenfranchised in the November 5, election, it is impossible that an appeal could have filed and adjudicated prior to the election.
10. The media did not report the intent of motion to authorize legal counsel to seek an appeal.
Thus, Madam President I make my inquiry.