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BRIAN MAFFLY Texas Water Commission conference chamber JOURNAL Open Meetings Law Goes to. Court AUSTIN When two members of the Texas Water Commission met in a public restroom in November of 1986, Charles Acker, a retired electrician,’ became at least a minor subject in the legal history of the state of Texas. Two commissioners is a quorum of the three-member water commission. And since the commissioners discussed Acker’s case in the restroom, what occurred there was meeting of the Texas Water Commission. Acker operates a mobile-home park outside the city of Huntsville in Walker County. His case came before the Texas Water Commission [TWC] after he invested $60,000 in the installation of a private sewage treatment plant. A Walker County public health official had advised Acker to upgrade his septic system by adding a centralized treatment plant to accommodate the increasing number of units on his 40acre tract. Acker complied and it was only after the $60,000 system was installed that he learned he didn’t have the proper discharge permit to operate it. An alternative to Acker’s on-site treatment system would have been to connect the park to Huntsville’s sewer system. However, the city’s requirement that all of its subdivision ordinances apply to the park in return for the use of its regional disposal system made this option impractical because of the high costs of complying with the city’s ordinances. For the November 26, 1986 TWC hearing, Cynthia Hayes, the commission’s hearings examiner who reviewed Acker’s application, submitted a PFD \(proposal for Acker’s sewage system. And she proposed that the commission grant Acker a discharge permit. Early in the hearing a recess was called and, adjourning to the relative privacy of the men’s room, commissioners Paul Hopkins and Ralph Roming continued the hearing ex parte. Though no minutes of the restroom meeting were recorded, attorney Andrew Taylor overheard the commissioners deliberate on how much it would cost Acker to comply with Huntsville’s subdivision ordinance. Acker recalls: “This fellow [Taylor] came out of the men’s room and said, ‘you may as well forget about your case. [The commissioners] have already decided it in there.” Upon reconvening, the commission immediately voted to deny Acker’s application, despite the hearings examiner’s recommendation and without any further discussion of the issues. A violation of the 1973 Texas Open followed the restroom meeting, judges have ruled both ways and it now appears the final ruling will have to come from the Texas Supreme Court. In a summary judgement in Travis County, District Judge Jerry Dellana ruled that the state’s open meetings act had indeed been violated and ordered the commission to reconsider Acker’s permit request. However, the Third Court of Appeals in Austin ruled, in a unanimous opinion handed down on May 17, that a 1977 amendment to the Administrative permits just such “ex parte” deliberatiOns concerning contested cases but only when no party involved in the dispute is present. It indeed appears that the two laws, TOMA and APTRA, are in conflict regarding the issue of deciding contested cases. APTRA was amended in 1977 to “allow agency members to communicate ex parte with other members of the same agency in a contested case in which they are involved without prior notice to all parties.” Because of its specificity and more recent enactment, this clause, the Third Court ruled, supersedes the Open Meeting Act’s sweeping commandments. Justice Bob Gammage of the appeals court wrote, “In cases of apparent conflict, a subsequently enacted specific law usually is construed as constituting an exception to, or qualification of, a previously enacted general law.” Many advocates of open government fear that this novel interpretation of the law, which seems to override the basic precepts of the Open Meetings Act, has the potential to change the way the state’s regulatory agencies hear cases. Before the May 17 ruling it was assumed that regulatory boards were required to make all deliberations involving a quorum in an open meeting, or at least convene in open session before reconvening in executive session. Now it appears that public officials can privately discuss disputes over which they . have jurisdiction. The ruling “basically allows agencies to discuss cases in secret and announce decisions later in open session,” said Bruce Bennett, the Austin attorney who argued Acker’s case before the Third Court of Appeals. Since many regulatory boards have only three members, a quorum is created anytime two members of such an agency get together. Jo Campbell, a lonely minority member of the three-member Public . Utilities Commission [PUC] complained to the Austin American-Statesman that the appeals court ruling could allow “a majority of a commission to totally isolate a minority.” Though Campbell feels there is no evidence to suggest that her colleagues on the commission discuss public business privately, she described to the Observer certain practices of the PUC which inhibit full public participation in the decisionmaking process. Because the commission receives information from utility companies 4 SEPTEMBER 15, 1989