The Tarrant Regional Water District may have violated the open meetings law by not providing clarity on why the board went into a closed door session during a special meeting, according a retired attorney who urged the board to discuss hiring a top executive in public.
But legal counsel for the district contends no violation occurred.
The board of directors are in the midst of selecting a new general manager to replace Jim Oliver, who is retiring after 30 years. Board president Jack Stevens has said he wanted to make that selection before any newly elected members are seated. On Tuesday the board met to certify the election, but not before spending a little more than an hour in executive session to deliberate on “personnel matters,” according to the agenda which did not note the position or personnel being discussed.
Don Richards, a media law lawyer who teaches on the subject at Texas Tech, said there is “no doubt” the board violated the Texas Open Meetings Act if the general manager’s position was discussed during the closed door meeting. Texas courts have made it clear that discussion of high-level executive positions must be spelled out on agendas, even when the discussion is executive session, he said. Richards also provides legal counsel through the Freedom of Information Foundation of Texas hot line.
“When we’re talking about the top management positions, like superintendent of a school, football coach, the public has a high level of interest,” Richards said. “And the general manager of any authority would be in that category where they would should give specific notice.”
An attorney with the law firm that represents the water district said matters discussed during executive session could not be disclosed, but that the board “absolutely” did not violate the open meetings act.
“Obviously I am not at liberty to disclose the discussions at any executive session, but if, as and when the Board deliberates the selection of a new General Manager, it will be posted on the meeting notice,” Lee Christie, an attorney with Fort Worth firm Pope, Hardwicke, Christie, Schell, Kelly and Taplett, wrote in an email.
The board is overseeing the $1.17 billion Panther Island project, which would create an island north of downtown by cutting a channel between the Clear and West forks of the Trinity River.
Board members previously decided to funnel questions about the hiring process through Leah King, who is on the search committee with fellow board member Marty Leonard.
King, in an interview with the Star-Telegram, didn’t provide specifics about the executive session, but confirmed the she and Leonard provided an update on the hiring process to the rest of the board.
Jim Lane, a long time water district board member, told the Star-Telegram last week he didn’t expect the board to vote on a new hire during the special meeting, but he did expect to talk about it during a closed-door session.
“I think in that executive session the search committee will tell us what their recommendation is and then then next week everybody will find out because it’s my understanding we’ll vote in open session,” he said at the time.
Board member-elect Mary Kelleher, who ousted Stevens in the May 1 election, attended the meeting but was shut out of the executive session because she has not been sworn in. Austin-based Lehman Associates, the firm conducting the search for a new general manager, was asked to updated Kelleher on the process, King said
Two speakers raised concerns about the vague agenda item, but the board moved into executive session anyway.
Jackee Cox, calling into the meeting, said the cloudy nature of the executive session was frustrating. She pointed the the Texas Attorney General’s Open Meeting Handbook and said it was clear the board needed to note if the discussion would be on the general manager position.
Cox, a retired lawyer, noted that during the recent campaign multiple board members committed to improving transparency at the water district. She asked the board to refrain from discussing hiring a replacement for Oliver until proper notice could be given to the public.
Former state Rep. Lon Burnam called in to support her comments.
“I do ask that you be sensitive going forward to the fact that you are elected officials, and there’s supposed to be a channel of open communication between you and the public when you get ready to do something of the magnitude of hiring an executive director,” Cox said.
Cox told the Star-Telegram after the meeting she hoped the Tarrant Regional Water District would move beyond “sloganeering” about transparency and become more open to the public. She contrasted the hiring of the water district general manager to Fort Worth’s recent process for hiring a new police chief. The city made a short list of finalists public, along with their backgrounds and conducted public forums with the candidates. The water district has not done that.
Regarding any potential open meetings act violation, Richards said there likely wasn’t much that could be done. If they board had discussed the general manager behind closed doors and then voted on a replacement, an interested party could sue to block the hiring, he said, but the board took no action.
King told the Star-Telegram she understood the concerns of the callers who spoke Tuesday.
The board will likely be altering the process for how agenda items are worded after Kelleher is sworn in, she said. Stevens, as the board president, and legal counsel work with staff on agenda wording, but in the future, King said, it is likely the whole board would have input.
“We all know for sure is that there will be a lot of change,” King said, adding latter: “I’m pretty confident that the way that processes worked just over the recent past will likely be updated anyway just, if nothing else, by virtue of having, you know, a new person in that seat.”