In an effort to defend a suit brought by Empower Texans President Michael Quinn Sullivan under the Texas Open Meetings Act, the Texas Ethics Commission has doubled down on their lawless behavior. Late last week, the TEC admitted for the first time that commissioners met in secret to craft an order against Sullivan for his work informing taxpayers about the actions of the legislature.

On Monday, the TEC’s executive director testified in open court that the meetings were not called, were not planned, that no notice was given to the public, that no agenda or minutes for the meetings were kept, and that no recordings of the meetings were made. The commission is stipulating to their complete disregard of the Texas Open Meetings Act, arguing that the law which binds other governmental bodies doesn’t apply to them.

Never before has the TEC disclosed such secret meetings, or publicly claimed a right for commissioners to do so.

When the suit under the Open Meetings Act was filed, it was expected to require extensive discovery to determine how far the commission had gone in disregarding the law. However the TEC is now arguing that it has complete authority to meet in secret, and that orders issued by the commission need not even include the names of the commissioners and how they voted.

The commission has placed its self so far outside of the open meetings law that the case is moving fast for a determination on the legal issues alone. The facts aren’t in dispute, the TEC claims they are not going to be bound by the Open Meetings Act absent a court order to the contrary.

Soon a court will likely rule whether the commission is bound by the requirements of open government, or whether the statutes creating the commission have granted it the unique ability to conduct its business almost entirely in secret.

It seems unlikely that the Texas legislature intended that the agency charged with enforcing the open meetings act and other government disclosure requirements would operate almost entirely in the dark. However a Travis County District Court will soon make a determination on that very issue, with the ruling almost certain to be appealed to the 3rd Court of Appeals by whomever is on the losing side. If the courts agree that the Texas Open Meetings Act does apply, then the TEC will be once more restrained from acting lawlessly.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.