The Denison City Council authorized City Manager Jud Rex to move forward in negotiations regarding an undisclosed development during Monday’s council meeting. This broke from the norm for the council, which traditionally only take action once an item is ready to be presented in open session.
The action followed a closed, executive session discussion “regarding the potential sale/exchange of city-owned property for right-of-way and/or development purposes and advice regarding process for sale/exchange of city property and other related issues.”
“I move to direct the City Manager to proceed with action relative to the property as discussed in executive session,” Council Member Kris Spiegel said in his motion. Spiegel’s motion, which was made during open session, was seconded by Council Member Janet Gott and passed in a unanimous vote. Bill Malvern was absent for Monday’s meeting.
When asked for additional details regarding what the council was authorizing and what property was in question, Rex declined to comment, citing the ongoing negotiations and closed-session discussions. He said more details would be given at a future city council meeting, with hopes of having it ready for the Oct. 2 meeting.
The Texas Open Meetings Handbook allows for a city or municipality to go into closed session to discuss the purchase, exchange, lease or value of real property if “an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person.” However, this does not allow a city to “cut a deal in private, devoid of public input or debate.”
Rex said the city council will often go into executive session to discuss ongoing negotiation and projects using exemptions from public meetings. However, in most cases the council will exit the closed meeting and not take any additional action upon reconvening in open session, he said.
However, Monday’s meeting was different in that the council did take action in authorizing Rex to “proceed with action” despite not defining that action.
Rex said the purpose of Monday’s action was to give assurance to a developer, who was not named. Rex said he has not seen the council take similar action to reassure a developer since he became city manager about two years ago, but the practice is not uncommon in other municipalities.
“What the property owner wanted was that the city manager had the council’s support to continue negotiations,” City Attorney Julie Fort said Wednesday morning.
The other option available in this situation was for the council to take no action, Fort said.
Fort said she sees no issues with Monday’s action as the council did not finalize any deals and any such action would be taken in open session when and if it occurs. She added that she does not see any concerns with regard to transparency from Monday’s actions.
However, other experts said this kind of action falls in a gray area of public meeting regulations and protocol. An official with the Texas Attorney General’s Office, who asked not to be named, said there are no court cases, precedent or AG’s opinion on how vague a municipality can be when making similar actions.
While there is a need to have some discretion on the part of the city when dealing with negotiations, the official said, there typically are more details that come out when the item is brought into open session.
Margaret Maddox, an attorney with the firm Daughtry and Jordan, said typically a municipality must describe and summarize an action before taking a vote, which did not occur in this case.
Maddox is a volunteer for the Freedom of Information Foundation of Texas, which describes itself as a group that “works to encourage a greater appreciation, knowledge and understanding of the First Amendment and helps to ensure that the public’s business is conducted in public.”
Maddox said she has seen other municipalities use vague language in the past to hide the intent of council action. In the case of Denison, the council likely should have given some clarity to its motion and action as it was made during an open session, she said.
“It seems like a bit of a gray area they are trying to use here by not being clear about what they are asking,” she said. “It is one of those gray areas where they make the language as vague as possible to not let people know what they are acting on.”
Attorney Wesley Lewis, with the law firm of Haynes & Boone, also a Freedom of Information Foundation volunteer, said there aren’t many legal statues regarding what a municipality must declare in these situations, describing it as a loophole in the system.
“Many times bodies will take advantage of that lack of transparency into what an action will actually entail,” he said.
On Wednesday, Denison Mayor Jared Johnson said he disagrees with the assessment that the city is not being transparent in its actions related to this ongoing negotiation, describing it as a nonissue. He reiterated previous comments that the city will take more open action when the negotiations conclude and that Monday’s action was only symbolic.
“The city of Denison remains committed to being open and transparent with everything … that we can be,” he said.