When Keller school board members agreed to cancel a vote on LGBT protections last month, they temporarily defused an explosive controversy in the conservative, affluent suburb of Fort Worth.
They also broke the law, according to three experts on the Texas Open Meetings Act.
Hours before the board’s August 13 meeting, Keller ISD Superintendent Randy Reid sent a group text message to all seven trustees. Reid recommended that the proposal to add sexual orientation and gender identity to anti-bullying and nondiscrimination policies be pulled from the agenda. Five trustees responded with their feedback, with three agreeing to Reid’s recommendation and two opposing it.
The private group text message exchange, obtained by the Observer through a Public Information Act request, constituted an illegal meeting of the board, according to Wanda Garner Cash, a University of Texas journalism professor and former executive director of the Freedom of Information Foundation of Texas. The act prohibits a quorum of a governmental body from discussing public business behind closed doors.
“This is really squirrelly,” Cash said. “Government by text message? I don’t think so. When you get a group text message, that’s pretty overt and tangible that somebody’s trying to subvert the transparency intended by the state’s open meetings law.”
Amanda Bigbee, Keller ISD’s general counsel, maintained the communications were legal.
“There were no deliberations of government business or policy,” Bigbee said in an email. “The notification was regarding the agenda — not the merits of the items on the agenda. You will see that Dr. Reid was clear with the trustees that he was not trying to elicit votes or responses but simply notifying them of the decision he had made.”
In his initial text message, Reid told board members he’d sent an email recommending that the vote be canceled, and asked them to read it and “confirm” so he could announce the decision publicly.
“Count this as my OK,” Board President Craig Allen responded.
“With hesitation, mine too,” wrote Trustee Karina Davis.
Two trustees who’ve publicly opposed LGBT protections, Jo Lynn Haussmann and Brad Schofield, objected to Reid’s recommendation. Given intense opposition from some residents, Haussmann and Schofield apparently wanted to force their colleagues to go on record.
“You said you supported it 100 percent,” Haussmann wrote to the group, addressing Reid. “The word is in the community and postponing won’t make any difference. You said you wanted to protect the students. If we postpone the vote, your opportunity to do that is not going to be in effect when school starts.”
“The kids are counting on all of us,” Schofield wrote, perhaps sarcastically. “Don’t let them down.”
“ABSOLUTELY!!!” Haussmann responded.
After Reid said he’d removed the item from the agenda, Haussmann asked if everyone had voted and questioned whether the group text message would be considered a meeting.
“No ma’am,” Reid responded. “The decision to pull the item is totally within my jurisdiction. I really wasn’t asking for a vote. Just your opinion. I made the call myself.”
Contacted by the Observer, Allen, the board president, referred to Bigbee’s legal opinion and suggested the exchange wasn’t unusual for trustees.
“We were not discussing the policy,” Allen said. “We were discussing, ‘Should this item be pulled from the agenda?’, which is fairly routine communication for us. To my knowledge, we’re not required to set our agenda in a public meeting. We’re simply required to discuss agenda items in a public meeting.”
In an email, Vice President Cindy Lotton denied receiving the text messages, even though she’s listed among recipients. Trustee Davis said only that the group text message “was actually about a change in the agenda for the meeting.” Other board members didn’t immediately respond to requests for comment.
Kelley Shannon, executive director of the Freedom of Information Foundation, said the board’s conversation went beyond setting the agenda. She also said because the agenda was already posted, it shouldn’t have been changed until the meeting.
“The board is not supposed to be having a group discussion like that about public business outside of public view,” Shannon said. “Just because technology is out there doesn’t mean you can just bypass the Open Meetings Act.”
Violations of the act are misdemeanors, punishable by up to six months in jail. However, prosecutions are rare, according to Joel White, an Austin lawyer who specializes in open government.
“I have seen prosecutions of intentional and serious violations of the Open Meetings Act maybe half a dozen times in 30 years, and I don’t think this is one of those cases,” White said. “I think they just messed up.”
Asked about legal consequences for violating the act, Cash acknowledged there are effectively “none.”
“The real repercussion is for the media to write about it and let the taxpayers in the Keller ISD know that this is how business is conducted, by text message,” Cash said.
As for the proposed LGBT protections, they appear to be on hold indefinitely. In his statement announcing the vote was canceled, Reid said the issue had become “extremely polarizing” and threatened to create “winners and losers.” He suggested officials would try to address anti-LGBT bullying without amending the policies.
Trustees each amassed 400 pages of email correspondence about the issue with members of the public, according to Bigbee.
The proposed LGBT protections were initiated by lesbian high school student Casey Akers after administrators barred her from making a “promposal” to another girl this spring. Ahead of the board’s scheduled vote, the proposal drew opposition from the likes of conservative talk show host Glenn Beck, a Keller resident, and Julie McCarty, president of the influential Northeast Tarrant Tea Party.
District spokeswoman Shellie Johnson said recently that officials were focused on the start of the school year.
“We’re just not talking about it,” Johnson said of the LGBT issue.
At least not publicly.