None of your business?
Last February, Rick Finlan--taxpayer, voter, idealist--tried to go to a meeting about the proposed new sports arena.
The early morning get-together was between select city officials and Dallas Mavericks owner Don Carter. It was being held in a conference room in Reunion Arena, and when Finlan walked in about 8:30 a.m., he noticed immediately that there was a great spread of food on the table--plump pastries drizzled with icing, slices of fresh fruit, glasses of freshly squeezed juices. There was a big urn of piping-hot coffee, pitchers of ice water, and plenty of comfortable chairs for people to sit in.
Certain people, that is. But not Finlan or his partner in civic rebellion, Don Venable, who, with a few other stragglers, had trooped down to that same conference room that morning in hopes of participating in the public process.
The two eyed the luscious-looking table with envy. But mere citizens weren't about to get their grubby hands on this food, their hosts made clear. "John Ware even made a little joke to us that if we wanted a doughnut, we could have one, but it would cost $75 apiece," Finlan and Venable recall the city manager telling them. "We opted for the ice water."
(They should have gone for the doughnuts. Though they didn't know this, the lovely finger food had been "donated" by Host Marriott, the food services division of the hotel company, which has a $2.4 million contract for concessions at Reunion Arena.
As Finlan and Venable sipped their ice water, their hosts-- John Ware, First Assistant City Manager Cliff Keheley, First Assistant City Attorney Charles Bierfeld, and council members Barbara Mallory, Glenn Box, Bob Stimson, Chris Luna, and Don Hicks--stared at them as though they were a couple of smelly homeless people. I mean, what were these people doing in here? Who had let them into this public building? Did they think they owned the place, sitting in chairs reserved for the Great Ones, liberally quaffing their ice water?
This was, after all, the esteemed Downtown Sports Development Committee, which Mayor Steve Bartlett had formed to speed things up on the troubled arena project. Bartlett wanted the committee to cut a deal with Don Carter and landowner Ray Hunt and bring it back to the full council for approval--something these five council members were all salivating to do.
There was only one thing threatening to stand in their way, and that was this motley crew of city hall gadflies, who had come here to question the legality of this series of closed-door meetings. But our elected officials didn't consider these lowly folks much of a threat.
"The arrogance of these people that day was just incredible," recalls Venable. "They didn't want us there, and they were going to make sure we didn't stay there--and they did that by using every intimidation tactic they could think of."
None of which worked--that is, until five rather grim-faced arena security guards arrived. "John Ware had a discussion with us, asking us if we were going to leave peacefully or not," Finlan said. "Finally, we went ahead and left because if push had come to shove, they were clearly ready to throw us out. Those security guards followed us all over the building that morning."
But that's okay. Because after Venable and Finlan left--no doubt amid chuckles from the pastry-stuffing council members, who "acted like they'd never eaten before, with icing dribbling down their chins," Finlan recalls--they did what they do best when they come across a perceived public slight: they hauled off and sued the bastards. And, miracle of miracles, last week they won.
Chalk one up for the lowly citizens.
'Tis absolutely true: The only way to get the City of Dallas to obey the Texas Open Meetings Act is to sue City Hall.
And I'm not just talking here about a handful of meetings of the short-lived Downtown Sports Development Committee.
Thanks to Venable and Finlan, those committee meetings were halted last month by U.S. District Judge Joe Kendall, who on May 10 issued a temporary restraining order barring the committee from meeting with the Carter and Hunt people. Then, last week, in Richard E. Finlan and Don Venable vs. City of Dallas, et al, the judge granted a preliminary injunction and explained his ruling--in words he did not mince.
"...The purpose of the Texas Open Meetings Act is to protect the public's interest in knowing the workings of its governmental bodies...As the Texas Supreme Court has observed, citizens 'are entitled not only to know what government decides but to observe how and why every decision is reached. The explicit command of the statute is for openness at every stage of the deliberations,' " Kendall wrote in his June 6 ruling. "...The Court concludes that the Downtown Sports Development Committee has acted in violation of the TOMA [Texas Open Meetings Act]."
In a nutshell, here's why these five council members--not to mention Ware, who participated in the meetings, and City Attorney Sam Lindsay, who gave the group legal advice every step of the way--violated the law.
For one thing, the committee held its first two meetings without posting them, as the law requires. They also failed to tape record them--another violation.
Then, when the committee finally did start posting and taping--only after Finlan and Venable filed a criminal complaint against the city with the Dallas County District Attorney's office, which decided to refer it to a grand jury--it didn't even do that right.
"The Committee notices are woefully inadequate," Kendall wrote. "They merely parrot the statute, failing to disclose the specific subject matter or the outside participants invited to a particular meeting. The Court considers this notice to be no notice at all."
The taping was also woefully inadequate--and illegal--because, as the judge could tell by listening to the tapes, the merry band of councilmembers decided to tape only selectively. "Several times during various meetings the tape recorder was obviously turned off and then on again," the judge wrote. "Some committee members joke about this on the tapes."
But those are mere housekeeping issues compared to the big picture here--which is that these meetings never should have happened in the first place.
According to the Dallas City Charter and as mandated by state law, all city council committee meetings must be open to the public. There are only four exceptions to the law, and they're narrowly defined. They include discussions of personnel matters, consultations with the city attorney, certain matters of safety and security, and sensitive real estate deliberations.
Building a new sports palace is not one of them--though Sam Lindsay made that feeble argument to the judge. First--in a try to cover his bases--Lindsay argued that the Downtown Sports Development Committee just isn't subject to either the city charter or the open-meetings act. The judge dismissed that argument out of hand. Okay then, Lindsay said, even if the committee is subject to the act, its discussions regarding a proposed arena can be held in secret because they fall under the real estate exception.
"The City's interpretation misreads the provision," Kendall wrote. The members of the committee "may consult with their employees in private, but may not consult with other third parties in private...When third parties are allowed into closed meetings where they can observe the City's deliberations, the privilege is waived so that the public cannot be legitimately shut out."
But there was still another problem with the city's reasoning. In the committee meetings, the city had not stuck to discussions of "the purchase, exchange, lease, or value of real property"; the real estate exception specifically allows discussion of those matters behind closed doors if a public airing would "put the city at a negotiating disadvantage."
In fact, the judge said, the committee had gone way beyond that to discuss financing strategies, tax revenues, and the city's agenda in the Texas Legislature. "It is hard to see how this specific, limited and narrow exception applies to lobbying plans in the Texas legislature," Kendall wrote. "The attorney consultation and real estate exceptions are not magic talismans that can be dragged out every time a body subject to the TOMA wants to have a secret meeting."
Read that last line and weep, Dallas taxpayers.
Because that is exactly what the city council and city manager are doing regularly down at City Hall--having secret meetings that should, by law, be open to the public.
The posted agendas for the weekly closed executive sessions of the Dallas city council meetings are written in the same cryptic, meaningless language that Judge Kendall deems "woefully inadequate." And they usually hinge on those two favorite "magic talismans"--attorney consultation and real estate exceptions.
One issue alone--the sports arena--provides more than enough proof to substantiate this claim.
For an entire year now the city council has been briefed regularly on plans, problems, and ideas for a new sports arena--last fall it was on a weekly basis. But during that year, you could count on one hand the number of times those meetings were held publicly. The overwhelming majority of them were in closed, executive session--and it was not unusual for one of these secret arena discussions to last three or four hours.
The lack of public discussion is absolutely astonishing considering that the arena has been the most time-consuming, high-priority issue at City Hall for 12 solid months.
Largely because the city manager and council have been unwilling to share their thoughts and actions with the public--afraid that such interference would hamper their efforts--the sports arena has also been the most controversial, underhanded, downright smelly issue at City Hall during the past year.
We've had a secret $50,000 arena study commissioned by the staff that the council was never told about. We've had a $500,000 arena study with predetermined results. We've had outrageous scapegoating of city employees by the city manager's office. And we've had repeated lies and misinformation going to the city council from a scheming, manipulative city manager's office. (None of which includes the lies Mayor Bartlett served up to the public about how a $142 million arena wasn't going to cost the taxpayers any money.)
All of which is known only because the Texas Open Records Act--after months of battling between the city and the Observer--triggered the release of some 15,000 pieces of paper that revealed the truth.
None of which will change as long as the city manager and council continue to plot and scheme on this new arena behind closed doors.
It seems certain that they have been breaking the Texas Open Meetings Act law on a regular basis for a year now. And they have been able to do it thanks to the erroneous, soggy, twisted legal advice--or lack of it--of City Attorney Lindsay.
Frustrated council members have been telling me for nine months that closed-door discussions on the sports arena--unlike the agenda postings that say those discussions are limited to sensitive real estate matters--are almost always full-blown briefings on various aspects of the project.
"I've gone up to Sam Lindsay so many times in closed session and said, 'Sam, what they're talking about is way off limits for executive session,' " says council member Paul Fielding. "Sometimes he'll say something to stop it--but a lot of times he doesn't do anything. And the council members could care less--they go off on tangents all the time. It's just a free-for-all."
Lindsay does not dispute this. "On several occasions, Mr. Fielding did come up to me about several individuals, and if they got off on different tangents, it was brought up to the presiding officer, who is the mayor, and that's all I'm going to say about it."
Great. Telling Bartlett--out of earshot of the press or the public--that he was maybe getting too zealous in his lust to build a new sports arena for his pal Ray Hunt is like telling him that there's a giant package under the Christmas tree with his name on it.
And what of those times when Lindsay didn't react to Fielding's complaints?
"When they go off on things that aren't related, it's pointed out," Lindsay says. "But if you're asking me to (point it out) every time someone says something that's not related, I can't point it out every time. Because a lot of times it's all they say--they're just making a quip or something.
"If they continue with it, my first point is to see whether it relates to some issue. Some council members talk more directly than others. Others use examples, and take a while to get to the point they're making. And sometimes you ask yourself, are they going to get to a specific point?"
In other words, our city attorney just lets everybody in the room ramble around on a subject until they've exhausted the issue to the point where continued discussion in public is meaningless and repetitive.
Case in point. Last October 19, the Dallas City Council was formally briefed on the results of the big, half-million-dollar arena study--the one that determined after much "research" that a certain parcel of Ray Hunt's land was the very best site, only to have Hunt snap his fingers a few weeks later and order the arena moved to a different piece of land he owns (the clueless council wasn't given that reason by staff, of course, though city staff documents show that to be the real cause of the change).
The briefing on the study began in the morning in executive session. The session lasted five hours and went way beyond what is allowed by law, according to four different council members I spoke to afterward. But dumb reporters like me simply waited outside the door--by the city security guards who don't even let you near the glass wall that looks into the Royal Family's briefing room--twiddling our notebooks and praying for a few paltry minutes of public discussion.
When the public session finally began, late in the afternoon, council members admitted that there was nothing left for them to review--instead, they made a few political speeches for the 6 o'clock news about the great need for a new sports arena. Glenn Box went so far as to assure the public that everything going on behind the scenes was on the up-and-up.
A month later, on the day of another closed-door meeting on the arena, I was not so dumb. This newspaper had just unearthed a copy of the secret arena study, which the council had not yet questioned the city manager about. There was also a rumor that something was about to happen with the site--in fact, it was that day, November 16, that the council was snookered on the Ray Hunt site change.
As usual, only a closed-door session was scheduled. This time, though, I knew better. Even though the posted agenda told me nothing about what was going to be discussed, I knew that certain topics the council and manager planned to discuss were strictly off limits for an executive session. In other words, they were going to have an illegal meeting.
Councilwoman Donna Blumer knew this, too. As the council was adjourning its public morning session to go behind closed doors, she said that she wanted as much as possible discussed publicly. At that point, I stood up in the briefing room and formally objected to the upcoming executive session, citing the Texas Open Meetings Act and accusing the council of preparing to discuss specific items that were not appropriate for closed session.
Mayor Bartlett smirked at me. "I'm glad that you know what we're going to discuss before we even get a chance to discuss it," Bartlett said. He assured me that no laws would be broken, and then he adjourned the meeting and went into executive session.
Later that afternoon, the council did hold a short public briefing on the arena, though I never knew why. I just went. Last week, though, Sam Lindsay explained it. "When you stood up back in the fall and said there were certain things that could be discussed in open session, I made some inquiries about what was going to be discussed, and then I talked to [First Assistant City Attorney] Charles Bierfeld, and we both decided you were right. And so [the council] came back and did some of the briefing in open session."
What was most surprising about what Lindsay told me last week was that he hadn't known beforehand what was going to be on the closed meeting agenda. When I asked him about this, Lindsay told me that he hadn't known because he doesn't put together the executive session agenda--in fact, he doesn't even review it to make sure it's legal. He just lets the city manager's office do it. "If you're asking me if I look at every item they put on the agenda for executive session, the answer is no," Lindsay told me. "Sometimes if there's a discussion about putting an item on, they'll ask me my advice...But staff is very aware of the four exceptions for executive session."
In other words, there are only two ways to stop illegal meetings at the city of Dallas.
One is for a citizen to stand up before each executive session and threaten the council and manager and city attorney with the law--an uncomfortable thing to have to do, and one the council is sure to ignore after the first few times it happens.
The second is to sue them.
Joe Martin, a 69-year-old retired newspaper production man who lives in Oak Cliff and goes to every city council meeting and most committee meetings, has known this a long time. He's been told as much by some of the council members. "It's just like Mr. Garcia and Mr. Tandy used to tell me when I raised this point," says Martin, referring to former council members Domingo Garcia and Charles Tandy. "They'd say, 'Well, Mr. Martin, why don't you sue us?' Well, a citizen shouldn't have to sue to get these people to do what's proper."
But, as Judge Kendall's ruling suggests, it looks as if it's not going to happen otherwise.
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you’ll never miss Observer's biggest stories.
- That's It Then: The Cowboys 2015 Season Gets Put Out of Its Misery
Sat., Nov. 28, 12:00am
Sat., Nov. 28, 7:00pm
Sat., Nov. 28, 7:30pm
Sun., Nov. 29, 2:00pm
- The Cowboys' 5 Biggest Thanksgiving Turkeys
- Live From London: Your Holiday Weekend Weather Apocaforecast