DA declines to pursue San Benito FOI issue

The Cameron County District Attorney’s Office has refused to prosecute a case filed by the Valley Morning Star accusing San Benito officials of violating the Texas Open Meetings Act, officials said last week.

The Star filed the complaint in April accusing city commissioners of failing to disclose the nature of a discussion they held in a closed meeting on April 12.

The newspaper also accused the city of illegally posting the meeting’s agenda, which failed to state the nature of the discussion commissioners planned to hold in executive session.

“The District Attorney’s Office received this case and reviewed it,” Assistant District Attorney Charles Mattingly said in an e-mail. “After evaluation, it was determined that the case was without merit. Therefore, the DA’s Office declined to prosecute.”

City Attorney Jan Cassidy said the city carefully follows the Open Meetings Act.

“I knew all along the city didn’t violate the law,” she said.

The decision riled Joel White, an Austin attorney with the Texas Freedom of Information Foundation.

“I saw it as a blatant violation of the Open Meetings Act,” White said in an interview. “I’m not surprised that the DA chose not to prosecute. DAs like to work on violent crimes and they don’t like to prosecute elected officials.”

White said the Star could file a lawsuit against the city.

“It’s a sad day when the District Attorney’s Office rules that such a case has no merit when in fact it absolutely has merit,” Star editor Paul Binz said. “Instead of defending the spirit of the law, the DA’s office apparently has disregarded San Benito residents’ right to know exactly what their city government is doing.

“We’re tracking these unfortunate incidents of impeding open government and all our options are open.”

White said an assistant district attorney called him two or three times about six weeks ago to discuss the legal issues in the case.

“She was trying to figure out how there was a violation because it’s rare for DAs to be dealing in Open Meetings cases,” said White, who said he didn’t remember the assistant district attorney’s name. “They’re not familiar with it.”After the April 12 executive session meeting, the three-member City Commission voted to order a city-contracted attorney to “proceed as discussed” in the closed session.

White called the case a “clear violation” of the Open Meetings Act.

“It violates the entire purpose of the Open Meetings Act,” White said. “If they can do this legally, there’s no purpose of having the law in the first place.”

The meeting’s agenda stated that commissioners planned “to seek attorney’s advice regarding matters protected by attorney-client privilege in which the attorney’s duty to the government body under the Texas Disciplinary Rules of Professional Conduct of State Bar of Texas clearly conflicts with Chapter 551 of the Texas Government Code.”

The language refers to the Bar’s guidelines for lawyers and the Open Meetings Act.

White called it an illegal agenda.

“It doesn’t tell a member of the public anything whatsoever,” White said. “They could be discussing anything.”

But Cassidy strongly stood behind the legitimacy of the agenda.

“(The law) doesn’t require you to give specifics as to what you discuss with a lawyer,” Cassidy said of the agenda’s language. “You have a right to have privileged conversations with your attorney.”

Across Texas, district attorneys rarely prosecute alleged Open Meetings violations, White said.

“I can count on one hand the number of violations that DAs got on the Open Meetings Act,” White said.