You can't have your Cake and Eat it too!

The Board of Trustees of Carrollton Farmers Branch Indepedendent School District violate "Texas Open Meeting Act"  at the September 10, 2009 by passing a motion that purportedly instructs the District's legal counsel to  file appeals in, any and all, the litigation regarding Richard Fleming; including making an appeal to the Texas State Supreme Court?

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.

According to the State Attorney General, the Texas Open Meeting Act requires that the posted notice of an open meeting contain the date, hour, and place of the meeting and that the agenda describe each subject to be discussed at the meeting. 21 Texas courts have interpreted this to mean that the posting must be sufficient to alert the public. The courts have also ruled that the more important a particular issue is to the community, the more specific the posted notice must be.  See Cox Enters., Inc. v. Bd ofTrs. ofAustin Indep. Sch. Dist.,706 S.W.2d 956, 958-59 (Tex. 1986); Point Isabel Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176,179-81 (Tex. App.-Corpus Christi 1990, writ denied). Underlying these considerations is the fact that the provisions of the Act "are mandatory and are to be liberally construed in favor of open government." City of Farmers Branch v. Ramos, 235 S.W.3d 462, 467 (Tex. App.-Dallas 2007, no pet.).Cox Enters., Inc., 706 S.W.2d at 957. After explaining that notice under the Act "should specifically disclose the subjects to be considered at the upcoming meeting" the court held that those general terms "did not provide full and adequate notice, particularly where the subject slated fordiscussion was one of special interest to the public." Id. at 959. 

 Below is the excerpt of the from official posted agenda  for the September  10, 2009.

 Notice of Regular Meeting September 10, 2009

 The Board of Trustees Carrollton-Farmers Branch ISD 

 VIII. Reconvene Public Meeting to Vote on Matters Considered in Closed

Meeting   

A. Consider All Matters Related to Cause Number 09-07085, Richard Fleming v. Carrollton-Farmers Branch independentSchool District and Lynn Chaffin, Presiding Officer, 95th Judicial District Court, Dallas County (Texas Government Code 551.071 – Consultation With Attorney) - Action

After reconvening from an executive session into a public session, the Board of Trustees President Chaffin inquired of the board, if there is any action to be taken under item VIII of the agenda. Trustee Frank Shor (below) immediately made the following motion. James Goode seconded the motion, and it passed unanimously Sept 10.

"In light of the pending election -- four candidates are spending money, expending efforts, expending resources -- and to prevent the voters and the community members of this district from being disenfranchised, it would be my suggestion that the board's attorneys in the lawsuit pending in Judge Molberg's court be authorized to take the requisite action to obtain a legally final decision as expeditiously as possible."

At the October 22, 2009 regular meeting  Mark Gommesen, Carrollton a resident, inquired of  Board President Chaffin  to show where in the official minutes of the Board of Trustees instructed the legal counsel to file an appeal in the Texas 5th Court of Appeals.  In response to Mr. Gommesen, Board President Lynn Chaffin said the motion above gave the district's attorneys the green light to file an appeal in Fleming's lawsuit against the district.  Mr. Shor concurred, specifically pointing to phrase, "authorized to take the requiste action to obtain a legally final decision" in the above motion.  But at least one trustee didn't interpret it that way when she voted for the motion.
"I took it to mean the final decision in Judge Molberg's court," Karin Webb

If  Ms. Chaffin and Mr. Shor,  are correct that the September 10th  motion, was an authorization to legal counsel to take action beyond the 95th Civil Judicial  Court, Judge Mohlberg's court, the Board of Trustees violated the "Texas Open Meeting Act."

The agenda item  above did not provide sufficient notification  to "alert" the public of the Board of Trustees intent to authorize potentially numerous judicial appeals.  The Fleming case involves the Board of Trustee President declaring  Richard Fleming, a candidate ,elected by a majority of  the voters May 9, 2009, administratively ineligible. Any action by the Board of  the Board of  Trustees authorizing additional litigation regarding Mr. Richard Fleming is of great importance to the community.  Any agenda item, which the Board of Trustees was to take action to authorize and initiate  legal action, must"provide full and adequate notice, particularly where the subject slated for discussion was one of special interest to the public."


 The agenda only references, "All Matters Related to Cause Number 09-07085, Richard Fleming v. Carrollton-Farmers Branch independentSchool District and Lynn Chaffin, Presiding Officer, 95th Judicial District Court, Dallas County."  The Board of Trustees was only take action on matters related to case in the 95th Judicial District Court.  The courts have been consistent, provisions of the "Texas Open Meetings Act,"are mandatory and are to be liberally construed in favor of open government."

The Board of Trustees were only discuss  and seek advice from legal counsel on the item specifically identified in the agenda; it is not even permissable  to considered possible related matters.
 


  Olympic Waste Services v. City of Grand Saline, 204 S.W.3d 496 (Tex. App.—Tyler 2006, no pet.).The city violated the Act when it discussed entering into a new garbage collection contract in a closed session held under section 551.071, which allows a governmental body to seek legal advice from its attorney in closed session. The city council was authorized to consult with the city attorney in closed session about the legal ramifications of terminating its existing garbage collection contract,but it had no authority to discuss “resulting contractual options.”

The district is not legally required or even expected to make an appeal.  Statements prior to September 10th by the Board President would lead the public that an appeal was unlikely. Ms. Chaffin Statement


The meeting occurred on September 10, 2009, eleven days later, Judge Ken Molberg ruled in Fleming's favor and the district.There is no reason the public or the press would have reasonably  anticipated that Board of Trustees would take action to approved an appeal  prior to receiving a disparaging ruling in the district court.

The agenda description was so inadequate and the motion so ambiguous, that its true intent was concealed  from the public and  the Press. Matt Peterson, of the Dallas Morning News described the action taken by the board of trustees as:

"Shor's motion, backed unanimously by his colleagues, directed the district's attorneys to work toward the "expeditious" resolution of would-be trustee Richard Fleming's case before District Judge Ken Molberg."

In a online being conducted by the Dallas Morning News poll  overwhelmingly, the participants do not agree that the motion passed at the September 10th meeting authorized an appeal.

Clearly, if  Mr. Shor's motion was indeed a motion to authorize legal counsel to file an appeal on the behalf of the district, the Board of Trusteesdid not make full and adequate notice 
to the public and the press as required under the  "Open Meetings Act."

The  Open Meetings Act provides civil remedies and criminal penalties for violations of its provisions. District
courts have original jurisdiction over criminal violations of the Act as misdemeanors involving official misconduct.  An interested person, including a member of the news media, may bring an action
by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of this chapter by members of a governmental body.  The court may assess costs of litigation and reasonable attorney fees incurred by a plaintiff  who substantially prevails in an action.