By CHARLES RICHARDS
eParisExtra.com
The Paris City Council will go into executive session Monday night to discuss the city’s relationship with the Paris/Lamar County Health Department.
That would be a violation of the Texas Open Meetings Act, which provides that meetings of governmental bodies must be open to the public, except for expressly authorized executive sessions.
The council agenda cites Section 551.071 of the Texas Government Code, “Consultation with Attorney,” which permits a governmental body to consult with its attorney in executive session to receive advice on the legal issues raised by a proposed contract.
In a state attorney general’s opinion issued on June 22, 2000, Attorney General John Cornyn responded to a state representative who wrote that the Port of Beaumont Navigation Commission went into executive session on Aug. 23, 1999, to evaluate four proposals for loading and unloading services. After the closed session ended, the commissioners returned to open session and unanimously approved one of the proposals for the contract, without discussion in the open session.
The legislator asked if that was permissible under the Texas Open Meetings Act.
Cornyn wrote: “A governmental body may hold an executive session to seek or receive the advice of its attorney only with regard to matters in which it seeks the attorney’s legal advice or with regard to matters which relate to a specific pending or contemplated legal proceeding.”
The attorney general said Section 551.071 of the Government Code “does not authorize discussion of other matters related to the contract. … General discussion of policy, unrelated to legal matters, is not permitted …”
Cornyn’s ruling is reprinted in its entirety at the bottom of this page.
interim city manager Gene Anderson
Finance director Gene Anderson, who said he was acting in his capacity as interim city manager, informed Paris/Lamar County Health Department Director Anthony Bethel on Monday, July 11, 2011, that as of Oct. 1, 2011 (the beginning of the 2011-12 fiscal year), the city would no longer take care of the department’s bookkeeping needs or carry its workers as city employees.
A consequence of that would be that health department workers would lose their health insurance and no longer be eligible for city retirement.
Members of the health board argued that Anderson had overstepped his authority in acting unilaterally without consulting the city councill. The board passed a resolution asking that the council void Anderson’s action and reinstate the status quo.
On Wednesday, July 20, Paris mayor AJ Hashmi convened a one-hour meeting that included various city and county officials and members of the health board. After a round of tense discussion, the group agreed with a suggestion by health board member Dr. Bert Strom that the Anderson’s action be postponed for at least six months.
“We have decided for the next six months nothing is being done other than we will all work together to try to resolve the issue,” Hashmi said before ending the meeting. He pledged that the matter would be brought before the entire city council for discussion.
Monday night’s agenda item, in executive session, apparently is that discussion.
Anderson said the city took over the health department’s financial records in 1987 at a time when health department personnel were paid by the state. The city picked up the employees, he said, when the state cut off its funding of county health departments shortly thereafter.
Anderson said the city has spent more than $125,000 in legal fees after being sued twice in the past decade — along with the health department and members of the health board – over personnel issues.
The city was drawn into the lawsuits because it treated the health department as its employees, Anderson said.
It’s not a question if another lawsuit will come along, but when, he said.
| Office of the Attorney General – State of Texas John Cornyn |
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June 22, 2000
Dear Representative Lewis: You ask whether a governmental body may meet with its attorney in executive session to discuss a contract that it proposes to enter. Section 551.071 of the Government Code permits a governmental body to consult with its attorney in executive session to receive advice on the legal issues raised by a proposed contract, but it does not authorize discussion of other matters related to the contract. See Tex. Gov’t Code Ann. § 551.071 (Vernon 1994). Your question relates to an executive session held by the Commissioners of the Port of Beaumont Navigation District of Jefferson County ["the Port"], a governmental body established pursuant to article XVI, section 59 of the Texas Constitution and governed by a board of Port Commissioners. See Act of May 4, 1949, 51st Leg., R.S., ch. 147, §§ 1, 6, 1949 Tex. Gen. Laws 270, 272, 275. As a district organized under article XVI, section 59 of the Texas Constitution, it is subject to the provisions of Water Code, chapter 60. See Tex. Water Code Ann. § 60.001 (Vernon 1988); see also Tex. Att’y Gen. LO-97-031.(1) In 1999, the Port requested proposals from stevedoring companies for a contract for loading and unloading services. See Brief from Guy N. Goodson, Attorney at Law, Bernsen, Goodson, Mann & Rothman, on behalf of the Port of Beaumont Navigation District of Jefferson County, to Honorable John Cornyn, Attorney General of Texas (Mar. 1, 2000) [hereinafter "Port Brief"]. The Port of Beaumont Commission gave notice of a meeting to be held on August 23, 1999, to consider and act upon various items, including the following: 9. Executive session in accordance with Texas Government Code, Chapter 551, Subchapter D, (551.071), which provides that the public may be excluded from the portion of a meeting to consult with attorney on Loading and Unloading Contract. 10. Consider bids received and award contract for port’s Loading and Unloading Contract. See Port Brief enclosures (“Notice of Meeting” dated Aug. 17, 1999). During the August 23 meeting, the Port Commission adjourned to executive session to evaluate four proposals for loading and unloading services. See Port Brief at 1; see also Letter from Honorable Ron Lewis, Texas State Representative, to Honorable John Cornyn, Texas Attorney General, at 1 (Dec. 13, 1999) (on file with Opinion Committee) [hereinafter "Request Letter"]. After the closed session ended, the commissioners returned to open session and unanimously approved one of the proposals for the contract, without discussion in the open session. See Request Letter at 1. You ask whether the Open Meetings Act permits the Port Commission to meet with its attorney in executive session to discuss proposals for a contract. See id. The Port Commission and an interested party give different descriptions of the discussion during the executive session. See Port Brief at 7-8; see also Request Letter enclosure (Letter from Joseph R. Larsen, Attorney at Law, on behalf of the Beaumont Enterprise, to Mr. Tom Rugg, First Assistant District Attorney of Jefferson County (Sept. 27, 1999)). We cannot determine in an attorney general opinion what was discussed during a closed meeting, but we can discuss the legal issues raised by this matter. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0152 (1999) at 12-13, JC-0032 (1999) at 4; DM-95 (1992) at 1. The Open Meetings Act (the “Act”), chapter 551 of the Government Code, provides that meetings of governmental bodies must be open to the public, except for expressly authorized executive sessions. See Tex. Gov’t Code Ann. § 551.002 (Vernon 1994). Among the provisions expressly authorizing an executive session is section 551.071 of the Government Code, which provides as follows: A governmental body may not conduct a private consultation with its attorney except: (1) when the governmental body seeks the advice of its attorney about: (A) pending or contemplated litigation; or (B) a settlement offer; or (2) on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter. Tex. Gov’t Code Ann. § 551.071 (Vernon 1994). Section 551.071 allows a governmental body to meet in executive session with its attorney when it seeks the attorney’s advice with respect to pending or contemplated litigation or settlement offers. See Lone Star Greyhound Park, Inc. v. Texas Racing Comm’n, 863 S.W.2d 742, 748 (Tex. App.-Austin 1993, writ denied). In addition, subsection 551.071(2) of the Government Code permits a governmental body to consult in executive session with its attorney “on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter.” Tex. Gov’t Code Ann. § 551.071(2) (Vernon 1994) (emphasis added). This provision incorporates the attorney-client privilege, an attorney’s duty to preserve the confidences of a client. See Tex. Disciplinary R. Prof’l Conduct 1.05, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G. app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9); see also Tex. Att’y Gen. Op. Nos. JM-238 (1984); JM-100 (1983); M-1261 (1972). In Attorney General Opinion JM-100 (1983), this office construed the predecessor of Government Code section 551.071, at that time codified as section 2(e) of article 6252-17 of the Revised Civil Statutes. See Act of May 4, 1993, 73rd Leg., R.S., ch. 268, §§ 1, 46, 1993 Tex. Gen. Laws 583, 589, 986 (repealing numerous statutes and adopting titles 5, 6, and 10 of the Government Code). Attorney General Opinion JM-100 concluded that the predecessor of Government Code section 551.071 incorporated the attorney-client privilege, stating as follows: The crux of these requirements for purposes of section 2(e) [(now Government Code section 551.071)] is that the communication must be related to an opinion on law or legal services or assistance in some legal proceeding. Thus, a governmental body may hold an executive session to seek or receive the advice of its attorney only with regard to matters in which it seeks the attorney’s legal advice or with regard to matters which relate to a specific pending or contemplated legal proceeding. If the discussion does not relate to a specific legal proceeding, the closed door discussion with the attorney must be limited to legal matters. General discussion of policy, unrelated to legal matters, is not permitted under the language of section 2(e) merely because an attorney is present. Tex. Att’y Gen. Op. No. JM-100 (1983) at 2 (emphasis added). According to this opinion, a governmental body may consult with its attorney in executive session to discuss the legal issues raised in connection with awarding a contract, but it may not discuss the merits of a proposed contract, financial considerations, or other nonlegal matters in an executive session held under section 551.071 of the Government Code. See Finlan v. City of Dallas, 888 F. Supp. 779, 782 n. 9 (N.D. Tex. 1995) (citing Tex. Att’y Gen. Op. No. JM-100 (1983)). The Port argues that rules 1.03, 1.05, and 2.01 of the Disciplinary Rules of Professional Conduct together provide “clear authority for the provision of the legal right of an attorney to private consultation with his client [(here the entire Port Commission)] in a negotiated contract.” Port Brief at 8. It continues that “to do otherwise would force an attorney to conflict with Rule 2.02 by attempting to negotiate an arm’s length contract on behalf of his client by disclosing information to third parties.” Id. Thus, the Port suggests that section 551.071(2) permits a governmental body to discuss nonlegal matters with its attorney in executive session, if the attorney is negotiating a contract on the body’s behalf. We disagree with this expansive reading of section 551.071(2). Rule 1.03 requires a lawyer to keep a client reasonably informed about the status of a matter and to “promptly comply with reasonable requests for information.” Tex. Disciplinary R. Prof’l Conduct 1.03, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G. app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9). Rule 1.05, as already noted, sets out an attorney’s duty to preserve the confidences of a client. See id. 1.05. Rule 2.01 requires a lawyer to “exercise independent professional judgment and render candid advice” in advising a client. Id. 2.01. Rule 2.02 provides as follows: A lawyer shall not undertake an evaluation of a matter affecting a client for the use of someone other than the client unless: (a) the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client; and (b) the client consents after consultation. Id. 2.02. The Port brief also cites the following comment to rule 2.02: Lawyers for the government may be called upon to serve as advisors or as evaluators. A lawyer for the government serves as advisor when the lawyer is an advocate for a government agency or is a counselor for a government agency. When serving as an advisor the rule of confidentiality of information applies. Id. 2.02 cmt. 2; see also Port Brief at 8. The Port does not explain how Rules 1.03, 1.05, 2.01, and 2.02 require the attorney for a governmental body to advise it in confidence about the financial advantages of a proposed contract, a strategy for negotiating it, or any issue other than the legal questions raised by the contract. Nor are we are aware of any basis for this conclusion. Furthermore, we reject the expansive interpretation of the exception urged by the Port. The exceptions in the Act are narrowly drawn. See Acker v. Texas Water Comm’n, 790 S.W.2d 299, 300 (Tex. 1990); Cox Enterprises v. Board of Trustees, 706 S.W.2d 956, 958 (Tex. 1986). Attorney General Opinion JM-100 has concluded that the executive session discussion authorized by section 551.071(2) is limited to strictly legal matters, and the courts of other states have reached similar conclusions in construing the “attorney client” provision of their public meetings statute. See Tex. Att’y Gen. Op. No. JM-100 (1983) at 2; see also City of Prescott v. Town of Chino Valley, 803 P.2d 891, 896 (Ariz. 1990) (“legal advice” encompasses advice given the public body “regarding the legal ramifications of the facts and information given to him and the legality of the proposed legislation,” but does not include discussion of merits of enacting the legislation); Fisher v. Maricopa County Stadium Dist., 912 P.2d 1345, 1353 (Ariz. App. 1995) (executive session to receive “legal advice” from attorney may not include discussion of what action to take based on attorney’s advice); Underwood v. City of Presque Isle, 715 A.2d 148 (Me. 1998) (zoning board could hold executive session with attorney to discuss its legal rights and duties as to imposing conditions of permit, but could not deliberate on the merits of the application); People v. Whitney, 578 N.W.2d 329, 337 (Mich. App. 1998) (discussion of written legal opinion at closed meeting is limited to the meaning of strictly legal advice presented in opinion and does not authorize discussion of matters of public policy). It is the governmental body that must comply with the Open Meetings Act in carrying out its responsibility to decide whether to enter into a particular contract. If it wishes to involve its attorneys, employees, or other agents in its deliberations leading toward this decision, it must do so consistently with the Act. S U M M A R Y Section 551.071(2) of the Government Code incorporates the attorney-client privilege. Under section 551.071(2), a governmental body may consult with its attorney in executive session to receive advice on the legal issues raised by a proposed contract, but under this provision the governmental body may not discuss the merits of a proposed contract, financial considerations, or other nonlegal matters related to the contract merely because its attorney is present. Yours very truly,
JOHN CORNYN ANDY TAYLOR CLARK KENT ERVIN ELIZABETH ROBINSON Susan L. Garrison |
By CHARLES RICHARDS
eParisExtra.com
As part of a beautification effort in the planning for months, the City of Paris will plant hundreds of crape myrtle trees in the median of Loop 286 from U.S. 271-South to U.S. 271-North, mayor AJ Hashmi confirmed Sunday to eParisExtra.com.
The first segment of 138 trees – 20 feet apart — along the southeast loop from U.S. 271-South to Lamar Avenue is expected to begin the first week of November and take approximately a week, the mayor said.
Hashmi said private investors, including himself, along with money from Keep Paris Beautiful will make possible the initial plantings of four sections of 138 trees — 552 crape myrtle trees in all — from 271-South to 271-North.
After that, he said, the goal will be to encourage citizens to donate toward the cost to plant crape myrtle trees around the entire 26-mile circumference of the city.
Each donation of about $50 would pay for another new crape myrtle tree, the mayor said.
“This project is a collaboration of the individual members of the Paris City Council along with Keep Paris Beautiful,” Hashmi said.
Hashmi said the work is being done with the aid and approval of architects from the Texas Department of Transportation.
Maps of the various stages of the project will be in place along the walls of the City Council Chambers at 107 E. Kaufman St. for viewing by those attending Monday night’s meeting of the Paris City Council.
Once in place, the Paris Fire Department will be responsible for watering the trees, and the City of Paris will be responsible for general maintenance of the crape myrtle trees and grass.
At the very start of the project:
“As we proceed, we want to make sure it is safe for both workers and motorists,” Hashmi said. It is likely that traffic will be slowed in the vicinity of the work during the duration of the project, he added.
When Hashmi announced last January his intention to run for the City Council, the first goal he mentioned was beautification of the city.
He said he was appreciative that Keep Paris Beautiful and the entire council have joined to get the project done.
On June 18, 1997, the Texas Legislature passed a resolution declaring Paris the official “Crape Myrtle City of Texas.”
In 1857, the wife of Confederate General Sam Bell Maxey introduced the crape myrtle to Paris, Texas, and in 1916, after a fire devastated the city, one of the community’s first beautification projects incorporated the colorful shrubs.
Several years later, newspaper publisher A. G. “Pat” Mayse further established the city’s link to the plant when he sold thousands of crape myrtle seedlings for 25 cents each as Paris’s residents prepared to celebrate Texas’ centennial.
Later, citizens planted crape myrtles along the 18-mile stretch of highway between Paris and the Texas-Oklahoma border, providing a distinctive welcome to travelers entering the Lone Star State from the north and a memorable Texas farewell to those leaving Texas.
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By GREG WILSON
eParisExtra.com
For years, four-lane access to an interstate highway has been a holy grail of sorts for economic interests in Paris and Lamar County.
Groups like the Sulphur River Regional Mobility Authority (SURRMA) — headed through recent years by Don Wall, Curtis Fendley and others — have worked with elected officials, the Paris Economic Development Corp. and the Chamber of Commerce to make their plea to TxDot heard for four-lane access to I-30.
“Any major jobs project looking to come to Paris has asked if we have four-lane access. They almost always require it for a town to be considered,” said PEDC executive director Steve Gilbert.
This hindrance to bringing in new local businesses was a key point of discuss last November when the PEDC, City Council and the Lamar County Commissioners convened with others to create a list of the top seven priorities for community planning projects.
After doing SWOT- type analysis on the various suggested priorities, it became clear that getting four-lane access was critical for the financial growth of our community.
SURRMA convened Tuesday night in Cooper with local representatives Holland Harper and Clifton Fendley in a meeting chaired by Delbert Horton of Delta County after being given word by TxDOT engineer Bobby Littlefield that TxDot had granted the award of construction for the widening of the final 10 miles of Texas Highway 24 between Cooper and Commerce.
The TxDot approval is part of the $3 billion Proposition 12 bond issue funding major construction projects.
The Highway 24 widening will entail the requirement of a local “buy-in” of $4.4 million by the local communities.
Discussions regarding who will fund the $4.4 million have been going on for several months now, and while all involved are certain agreement can be reached between PEDC, Paris and Lamar County, how debt service of the $4.4 million will be allocated has not yet been determined.
While 2012 budgets have already been established for all three entities, financial commitment by the three would not be required until the 2013 budget year.
“This is a victory,” said Gilbert. “And while many people have worked very, very hard on getting this goal accomplished, things really started heating up during Lamar County Days in Austin when we met with Amadeo Saenz (executive director of Texas Department of Transportation at the time).”
This is a further testament to the value of the community leaders, supporters and volunteers who go down to Austin each year to give voice at our state capital for our local needs.
Meetings will begin in November with the three local entities to work toward a resolution for a united commitment to the $4.4 million.
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send questions or suggestions about this article to
extra@eParisTexas.com
For years now, four lane access to an interstate highway has been a holy grail of sorts for economic interests in Paris and Lamar County. Groups like Sulphur River Regional Mobility Authority (SURRMA) headed through recent years by Don Wall, Curtis Fendley and others have worked with elected officials, the PEDC and the Chamber of Commerce to make their plea to TxDot heard for four lane access to I-30.
“Any major jobs project looking to come to Paris has asked if we have four lane access. They almost always require it for a town to be considered,” said PEDC executive director Steve Gilbert. This hindrance to bringing in new local businesses was a key point of discuss last November when the PEDC, City Council and the Lamar County Commissioners, and others convened to create a list of the top 7 priorities for community planning projects. After doing SWOT- type analysis on the various suggested priorities, it became clear that getting four lane access was critical for the financial growth of our community.
SURRMA convened Tuesday night in Cooper with local representatives Holland Harper and Clifton Fendley in a meeting chaired by Delbert Horton of Delta County after being given word by Bobby Littlefield that TxDot had granted the award of construction for the widening of the final 10 miles of TX Hwy 24.
The TxDot approval is part of the $3 billion Proposition 12 bond issue funding major construction projects. The Hwy 24 widening will entail the requirement of a local “buy-in” of $4.4 million by the local communities. Discussions regarding who will fund the $4.4 million have been going on for several months now, and while all involved are certain agreement can be reached between PEDC, Paris and Lamar County, how debt service of the $4.4 million will be allocated has not yet been determined. While 2012 budgets have already been established for all three entities, financial commitment by the three would not be required until the 2013 budget year.
“This is a victory,” said Gilbert. “And while many people have worked very, very hard on getting this goal accomplished, things really started heating up during Lamar County Days in Austin when we met with Amadeo Saenz (executive director of Texas Department of Transportation at the time).” This is a further testament to the value of the community leaders, supporters and volunteers who go down to Austin each year to give voice at our state capital for our local needs.
Meetings will begin in November with the three local entities to work toward a resolution for a united commitment to the $4.4 million.
By CHARLES RICHARDS
eParisExtra.com
The Paris City Council interviewed two city manager candidates during a special session Friday afternoon, but took no action after coming out of their closed-doors meeting.
Mayor AJ Hashmi said one more applicant will be interviewed in executive session during the next regular meeting of the council on Monday, Oct. 10.
One of those interviewed on Friday had been before the council in executive session several weeks ago, but that was before District 2 councilman Robert Avila had been sworn in.Fri
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