Former commissioner alleges judge violated Open Meetings Act
Marfa
After last Wednesday’s Commissioners Court meeting, former Precinct 4 Commissioner David Beebe filed a complaint against Judge Joe Portillo for an alleged violation of the Open Meetings Act. During a discussion about a $1 million grant program for underserved border communities, Portillo mentioned that he had spoken to Precinct 2 Commissioner Margarito Hernandez and Precinct 3 Commissioner Franky Ortiz about the item. Beebe asked the judge to clarify, and Portillo repeated that he had talked to the two commissioners before the meeting.
“That’s a violation of the Open Meetings Act, meeting with two commissioners prior to the meeting,” Beebe—who is currently campaigning against Portillo—said. “I just wanted to point it out in a public forum.”
All county officials who take part in public meetings must complete training in the Open Meetings Act, or OMA, a state law designed and continually refined by the Legislature in an attempt to make government more transparent and accountable. The OMA has a number of requirements that regulate how government entities draft agendas, notify the public about meetings, vote on items and confer about sensitive or confidential matters.
The OMA has rules designed to prevent a “walking quorum”—a term used to describe when a quorum, or simple majority, of a governmental body discusses a matter behind closed doors that should be deliberated in an open meeting. The Texas OMA Handbook describes a walking quorum through the example of Esperanza Peace and Justice Center v. City of San Antonio, a 2001 district court case concerning a nonprofit that had city funding pulled after the mayor met privately in person and over the phone with city council members.
The law doesn’t explicitly criminalize the “discussion of public business” at a social event outside of a meeting so long as it is “only incidental to the event,” but criminal penalties ramp up when members of a quorum confer with each other to intentionally skirt the OMA’s requirements. “State law also provides that if less than a quorum of the governing body gathers to intentionally or knowingly circumvent the Act, criminal penalties can be imposed against the participating officials,” Zinda Thomas, assistant general counsel for the Texas Municipal League, explains in an online pamphlet about the OMA. “In other words, if members are holding their discussion of public business in numbers less than a quorum to avoid meeting the requirements of the Act, criminal prosecution can result.”
Beebe’s complaint about Portillo’s conduct was filed with Justice of the Peace Dina Jo Marquez last Wednesday afternoon. The complaint will be forwarded to District Attorney Ori White’s office, with a possibility that it could be referred up the chain to the state Attorney General. Violations of the OMA are misdemeanors and can carry fines of up to $2,000 and jail sentences of up to six months.
Portillo declined to comment on the matter while waiting to hear if DA White would act, but denied intentional wrongdoing and expressed optimism about the future of the grant program that had sparked the issue at last week’s meeting. “We have a hell of an opportunity to get it,” Portillo said.