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“I am a little disappointed in you, I’ll be honest,” Hashmi said during Monday’s meeting. “I am more disappointed, not in you, but in the city attorney who advises us. If there is a problem, you should stop us.”
He took issue with a June 11 phone conference between Mayor Matt Frierson, Mayor Pro-Tem Richard Grossnickle, City Manager John Godwin, City Attorney Kent McIlyar and Danny Defenbaugh regarding the ongoing investigation of the Paris Economic Development Corp.
“There are certain things, Mr. Frierson, that I am concerned with you on, and I will point it out,” he said. “On the telephone conversation that you had, I want to advise you that Texas Open Meetings Act 551.04 section G, section E, they were both violated.”
He said on a couple of occasions that he did not mean for his accusations to be personal or to be construed as “going after” Frierson.
In making his argument, Hashmi referenced Section E of Chapter 6 in the attorney general’s Open Meetings Handbook 2014, which discusses a governmental body trying to circumvent meeting requirements by using small groups of members discussing the same topic rather than a full quorum. The councilman said the phone call created a “walking quorum” in violation of the law.
He then referenced Section G of the same chapter of the handbook, which says a governmental body can only use a telephone for meetings in an emergency, a situation where gathering a quorum in a single location is impossible or if the group is an advisory board.
“If you’re going to have this telephone conversation, then the conversation must be posted on the city website,” he said. “If this conversation is to happen, then it has to be made available to the public, so it has to be recorded. But the opportunity needs to be given to the public to either hear the conversation before, after or during.”
The phrase “walking quorum” was coined in the 2005 attorney general opinion GA-0326, which says the law applies “to members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of that body. In essence, it means ‘a daisy chain of members the sum of whom constitute a quorum’ that meets for secret deliberations.”
According to the attorney general, the overall deliberation must still involve a quorum of the governing body – which would be four people for the City Council – and they must knowingly be trying to circumvent the law.
“I understand what you’re saying about the phone conversation. If that’s your interpretation of the Open Meetings Act, I’m not disputing your opinion by any stretch of the imagination,” Frierson said. “But I’ll say that before we get lost in that, the issue was we didn’t get the answers we needed and some of the answers we did get weren’t right.”
McIlyar strongly disagreed with Hashmi’s assertions.
“A council member placing a phone call to a third party related to city business does not constitute a public meeting,” he said. “You do not have a quorum. It does not require a posting under the Texas Open Meetings Act. That is a complete misinterpretation of the law. To allege it’s a walking quorum, that’s a big accusation to make.”
In response, Hashmi said he was going to directly read the statute. Frierson said with a motion on the floor from Councilwoman Sue Lancaster to require the report by July 28, he was not going to allow it. He indicated it would be simply restating what Hashmi had already said.
“OK. That’s fine,” Hashmi said. “I will take it to the attorney general’s office with a complaint about the city attorney. If you want to go that route, that’s fine. That’s what we’ll do.”
Earlier in the discussion, Hashmi said he was “willing to forget all this” so long as it did not happen again and the council as a group demanded Defenbaugh submit a written report.
“We have paid for it,” he said. “He needs to submit the report. Good, bad, FBI, no FBI, it doesn’t matter. We need the report.”
After he announced his intention to go to the attorney general, he noted Defenbaugh’s contract was with the PEDC, asking, “What legal right do we have to do anything about it?”
McIlyar noted that the council initiated the investigation and it was “naive” to say the city had no say in the matter. He also said the city was referenced in the contract several times. Councilman Edwin Pickle amended Lancaster’s motion to have the city tell Clifford to give Defenbaugh until July 28 to deliver the report to PEDC, City Council and the public. Councilman Benny Plata seconded the amendment, which passed unanimously.