Lawsuit says BISD violated Open Meetings Act
The Beaumont Independent School District is in the legal crosshairs of a concerned citizen who has filed a lawsuit against the district for violations of the Texas Open Meetings Act, according to Mike Getz, Beaumont City Councilman and attorney for Donna Forgas, who initiated the suit.
“I sought to obtain a restraining order that kept them from going into executive session at their last board meeting,” said Getz. “The restraining order says they are prohibited from going into executive session unless they provide a notice that complies with the Texas Open Meetings Act.”
The center of the issue are the details of the BISD Meeting Agendas, or for the sake of the lawsuit, the lack of detail. The lawsuit filed in Judge Donald Floyd’s 172nd District Court, states that in the last BISD board meeting on Thursday, May 31, the “consideration of personnel matters” was discussed in executive session. That personnel issue turned out to be the consideration of three possible promotions of assistant principals at three BISD campuses, including two high schools, according to Getz.
“There is no way that you could gather from the item noticed for executive session that the subject matter of the meeting was to consider the promotion of three assistant principals at various BISD schools,” Getz wrote to BISD attorney Melody Chappell of the law firm Wells, Peyton, Greenberg & Hunt LLP in a letter that also indicated the settlement terms that Getz and his client are seeking.
The request calls for BISD to do the following: 1. Submit to a training session on the requirements necessary to comply with the Texas Open Meetings Act. 2. Agree to abide by the Texas Open Meetings Act in future notices. 3. Pay incurred attorney’s fees of $1,500. 4. And pay incurred court costs of $332.
A deadline was set for Thursday, June 7, at 2 p.m. for BISD to accept the settlement or Getz and Forgas will proceed with the lawsuit in court on Monday, June 11, which Getz indicated in his letter to Chappell would “of course … result in additional lawyer’s fees.”
Messages left for Craig Eichhorn, information officer for BISD, were not returned and Chappell was “out of the office” for the day as of Wednesday afternoon.
Despite no comment from BISD administration or the district’s legal counsel regarding the latest lawsuit brought against it, apparently the move by Getz and Forgas has received someone’s attention because both Getz and school board trustee Mike Neil were both surprised and pleased to learn that an agenda outlining the Thursday, June 7, meeting was decidedly more specific than previous agendas.
“I’m glad to see that,” Getz said.
Charles Daughtry is a Houston attorney who is also on the board of directors for the Freedom of Information Foundation of Texas, an organization whose mission is to “provide the leadership to ensure that the public’s business is conducted in public and to protect the individual liberties guaranteed by the First Amendment.”
Daughtry is well-versed in the Open Meetings Act and said based on what he knows about the way BISD has prepared its agendas and maintained a tight lip on matters discussed in the executive sessions, it looks pretty clear BISD has been in violation.
“This complaint about posting an executive session with no explanation isn’t even close to complying with the law, and if so, I guess, I applaud them for finally complying, but I hate that it took somebody filing a lawsuit for them to finally do it,” Daughtry said. The 30-year veteran attorney said he was impressed with the action taken by Getz and Forgas to put BISD’s feet to the fire.
“I really applaud him and his client for doing this,” said Daughtry of Getz and Forgas going after BISD. “One of the shortcomings of the Open Meetings Act, as far as I’m concerned, is it takes someone like them to sue a governmental agency before they’ll start complying with the Act, and that’s not an inexpensive proposition. And so people have to spend hard-earned money out of their pockets to get these people to do what the law clearly tells them to do.”
According to the Texas Open Meetings Act, “A governmental body must give the public advance notice of the subjects it will consider in an open meeting or a closed executive session,” meaning that even though a discussion is to take place in closed executive session, the public has the right to know what the subject of that discussion will be.
In a separate action, Neil, along with fellow BISD trustee member Tom Neild, has filed a lawsuit against the district’s legal counsel over language in newly elected Superintendent Timothy Chargois’ contract that stipulates an automatic pay raise. Neil said the contract they viewed and voted on had nothing in it about an automatic raise.Regarding the executive session lawsuit, Neil said he’s grown weary of the dearth of information that is given to board members, especially in matters concerning the agenda and matters that are handled in executive session.
“We’re not specific at all in what we’re doing,” Neil said of the agenda’s detail, adding that he’s concerned more than ever considering a judge felt the district was violating the Open Meetings Act enough that he deemed it necessary to grant the restraining order before last week’s special meeting.
“I’ve heard concerns (about the agenda) outside of the closed meetings, but in the position we’re in, we hear a lot of concerns,” said Neil, who conducted his own research and from talking to the Texas Association of School Boards attorney, indicated there’s possible criminal action that could result if attending an executive session in violation of the Open Meetings Act.
“I was told by their (TASB) attorney that if you knowingly go and participate in a meeting that has been illegally posted, then it’s a Class C misdemeanor, a criminal offense. But I’ve also heard you can sit in a meeting and just not participate. I don’t know which way to go with either one, and I’d hate to have a judge decide that for me,” said Neil.The question remains now as to whether or not the district will accept the deadline; if they do, it means more information will be included in the agenda – as the law stipulates it’s supposed to have. If the settlement is not accepted, and BISD opts to take the matter to court, then it becomes another legal battle for BISD which means more money spent on a legal issue that according to Daughtry, the district doesn’t have much of a legal leg to stand on.
“I would hate to see that,” he said of BISD trying to fight the issue, “because it doesn’t even sound like a close call to me. That kind of vague agenda doesn’t comply with the Open Meetings Act; it’s not a close call, and they’re going to lose, in my opinion. So the right and correct thing to do is to resolve it and start posting agendas like they did today.”
And in the event BISD’s legal counsel does go the litigation route, Daughtry said it’d be a losing proposition.
“If this were to end up going to trial, all you need as exhibit one is the old agenda, and exhibit two is the agenda they posted after getting sued. It doesn’t take a rocket scientist to see the difference in the two. It wouldn’t make sense for them to litigate it. And in the end, nobody loses if they do it correctly.”