A Fort Bend County commissioner wants state lawmakers to consider exemptions to the open government law during emergencies, part of a larger trend of officials slackening important regulations in the name of public safety.
As Hurricane Harvey’s torrential rains battered Fort Bend County in late August, flooding 4,000 homes in a largely unincorporated area near Katy, County Commissioner Andy Myers needed to coordinate high-water rescues and discuss mandatory evacuation warnings with other local leaders. But Myers was hamstrung, he told an interim Texas House committee on Tuesday, by a government transparency law prohibiting elected officials from discussing public business in private.
Now Myers — who appears to have some support from Attorney General Ken Paxton’s office — wants an exemption from provisions of the state’s open meetings law during times of emergency. An open government expert who testified at the hearing said such a carve-out could lead to erosions of government transparency in the state.
The Texas Open Meetings Act, passed as part of a suite of transparency legislation in 1973, requires a public meeting to be held when government officials deliberate public business. The law also requires government officials to give citizens a heads-up in advance about the meeting, so that members of the public can attend. Though rare, violations of the law can be punishable by fines or up to six months in jail.
Myers told members of the Texas House Committee on Government Transparency and Operations that flooding brought on by Harvey necessitated calling Fort Bend County Judge Robert Hebert — the county’s de facto emergency manager — to coordinate a response, but the county attorney cautioned against doing so. That could be seen as a violation of the law, he said.
“I understand and agree with the purpose of the Open Meetings Act and understand why it’s important for public officials to err on the side of caution,” Myers testified. “This caution, though, greatly inhibited my ability to effectively communicate with my constituents during Harvey.” Myers asked the committee to consider future legislation allowing public officials to waive the notice requirement in large, unincorporated areas where the state or federal government has declared an emergency.
The law already allows exceptions when “an imminent threat to public health and safety” or “a reasonably unforeseeable situation” emerges, whittling down the usual 72-hour notice requirement for counties to only two hours. And most counties have extensive emergency management plans that give officials guidance for how to react to disasters, which should limit the need for formal meetings in a hurricane’s midst.
Jim Hemphill, an Austin attorney who advises the Observer and other media clients on libel matters, said at the hearing that such an exemption could be abused by officials who use emergencies as an excuse to operate out of public view.
Hemphill told the Observer that public notice should only be suspended under urgent, pressing circumstances, where people’s lives and health will be in danger. “What I imagine is that those instances will be vanishingly rare.”
Jennie Hoelscher of the Texas Attorney General’s Office testified at the hearing, saying suggestions for “small modifications to the act to make responding to these disasters more efficient.”
Hemphill said a waiver of the law’s notification rule could be abused by opaque public officials. If officials would rather not alert the public to meetings in emergency situations — even if they’re able to — “they’re not going to give notice.” In the case of Fort Bend and other counties, commissioners also have the power to extend their own disaster declarations. That means, theoretically at least, that officials could take a secret vote at a secret meeting to continue meeting in secret. Furthermore, Hemphill said that even small exemptions to the Open Meetings Act could foretell gaping loopholes in the future; just look at the state’s open records law, which has been weakened so significantly that it can no longer bring about the release of taxpayer-funded payments to entertainers. An Observer deep dive, next month’s cover story set to be published online April 2, explores the quickening erosion of Public Information Act.
Myers may very well find support within the committee, which is made up of five Republicans and two Democrats and is chaired by state Representative Gary Elkins, a Houston Republican and the pioneer of payday lending in Texas, an industry that has kept regulators at bay in part by operating in secrecy. In the last legislative session, Elkins killed measures that aimed to repair damage done to the state’s open records law by recent Texas Supreme Court rulings.
At Tuesday’s hearing, Elkins suggested that legislators consider a law that would let local officials waive some provisions of the Open Meetings Act anytime a hurricane is spotted in the Gulf of Mexico. “If we’re gonna fix this, let’s fix this for an emergency like Harvey. There needs to be communication during an emergency to protect people’s lives,” Elkins said.
Of course, such a broad standard could let public officials operate in secret for weeks at a time. After Harvey made landfall on August 25, other hurricanes were slamming the Gulf Coast as late as October 7.
If county officials were allowed to discuss public business in private whenever they want during an emergency, as Myers proposed, such a waiver could be stretched indefinitely. As defined by state law, an “emergency” can last for weeks, or even months. In September, Fort Bend County officials voted to extend the county’s disaster declaration through October 10 — a decision made at a public meeting of the county commissioners.
Myers’ request fits within the larger theme of state and federal politicians latching onto neverending states of emergency to slacken rules that inform or otherwise protect the public. In the most obvious example of this trend, the USA Patriot Act was signed into law six weeks after the 9/11 terror attacks, giving the federal government broad new powers to spy on the American public in the name of stopping terrorists. In 2013, The Guardian revealed that the National Security Agency was collecting the phone records of millions of Verizon customers, which was allowed by the Patriot Act.
Also in response to 9/11, Texas lawmakers passed the state’s Homeland Security Act in 2003, which has since been used by state agencies to withhold information related to dangerous chemicals stored at facilities across Texas. Following a 2013 chemical plant explosion in West, where 15 people died and 160 people were injured, then-Attorney General Greg Abbott said the inventories could be kept secret, lest terrorists get their mitts on them. If citizens wanted to know whether facilities near their homes stored volatile chemicals, they should just visit the plants and ask, Abbott suggested at the time. “You know where they are if you drive around. You can ask every facility whether or not they have chemicals … and if they do, they tell which ones they have.”
Shortly after Harvey hit the Texas coast, Abbott suspended more than a dozen state rules regarding air pollution, underground injection wells and other environmental regulations. Those suspensions will be in effect until the state’s disaster declaration expires — and no one knows when that will be. The Dallas Morning News reported that the governor put the kibosh on at least 214 rules after Harvey, going so far as to tell a group of community leaders in Victoria, “If any state rule or regulation is standing in your way, let me know.” Come the 2019 legislative session, the Open Meetings Act may be the next casualty in Abbott’s purge of state regulations.