The City of Georgetown has legal problems.
On September 8, 2009, the Georgetown City Council made the decision to hire a new, in-house city attorney, Mark Sokolow, in a closed-door executive session. That appears to be a violation of the Texas Open Meetings Act.
Attorney Jim Hemphill of the Austin law firm Graves Dougherty Hearon and Moody, serving as a volunteer attorney on behalf of the Freedom of Information Foundation of Texas, described the nature of such a violation.
“While the Open Meetings Act allows deliberation of personnel matters to be held in executive session, it does not have any provision authorizing hiring decisions to be made in executive session,” Hemphill said.
Hemphill pointed to Open Records Decision No. 605, issued by then Texas Attorney General Dan Morales, that states:
A possible second violation of the Open Meetings Act is also connected to the hiring of Mark Sokolow. This one relates to the description of an agenda item for the executive session. The notice did not adequately describe what the city council was to discuss behind closed doors. The posting for the 6pm session of the September 8, 2009, agenda stated for Item BB:
Patricia “Trish” Carls of the Austin law firm Carls, McDonald and Dalrymple had served as Georgetown’s city attorney for years. She was present and acted in that capacity at the September 8 council meeting. (It is common practice for small cities to contract with outside law firms for legal services rather than hire the staff necessary to provide such services.)
The wording of the agenda item for the executive session is unclear. It could be construed by the public to mean that a discussion of Carls would be undertaken.
What actually occurred, however, was revealed in the minutes of the September 8 council meeting, which under “Action from Executive Session,” reads as follows:
“Motion by (Council Member Pat) Berryman, second by (Council Member Gabe) Sansing that the Human Resources (sic) have the authority to continue his discussions with the candidate for city attorney and, upon completion of these discussions, he move forward with the recommendation addressed in Executive Session. Approved 6-1 (Council Member Dale) Ross opposed.”
This indicates the city council decided, behind closed doors, to hire the new city attorney. The public had no way of knowing that the council was discussing the hire.
The lack of specificity in the wording of this agenda item may be a violation of the Open Meetings Act.
Attorney Hemphill said, “In general, how specific the notice needs to be depends on how significant the action is. Routine matters don’t need to be noticed with a great deal of specificity. But the more consequential the matter is, the more specific the notice needs to be.
“I would consider the hiring of a city attorney to be a fairly consequentlal action.”
The name of the new city attorney was publicly announced October 1 when the city issued a press release, which stated:
“Mark Sokolow, currently the city attorney for Port Arthur, will start as the new city attorney for Georgetown on October 19. The Georgetown city council voted on September 8 to hire Sokolow after a six-month search process.”
Thus, the press release inadvertently confirmed the fact that the decision to hire Sokolow was made behind closed doors.
Following the September 8 meeting, the Georgetown City Council met on September 22, October 13, and October 27. Sokolow was not named in the minutes for these meetings until October 27.
In examining the agendas for these meetings, it is clear that the city council failed to hire Sokolow “only in an open session properly noticed in accordance with section 3A of the Open Meetings Act.”
Mayor George Garver was informed of these facts by The Austin Bulldog at Georgetown’s city hall after last night’s city council meeting.
Garver called The Austin Bulldog this morning to say that he had just reviewed the city’s contract with Mark Sokolow. The mayor said that both he and the city secretary signed the contract on September 14, 2009.
“Your premise on the hiring process is absolutely correct,” Garver said. “The contract was never formally presented to the council. We clearly, in my opinion, dropped the ball by not having the city council ratify the hiring.”
“I’m embarrassed. This fell through the cracks. I apologize to you and the people we serve.”
“The Open Meetings Act is clear that actions taken in violation of the act are voidable,” attorney Hemphill said, pointing to Texas Government Code Section 551.141.
“What that means precisely, and what other consequences may flow from a violation, are arguably unclear,” he said.
“Voidable may mean that if an action is challenged, and if a judge finds a violation of the Open Meetings Act, then the court has no choice but to declare the action void. Others argue that a judge has discretion whether or not to declare an action void, even if the action violates the Open Meetings Act.”
Sokolow’s hiring is subject to legal challenge, should anyone desire to press the matter.
If Sokolow’s hiring is voidable, then any legal actions he may have taken since becoming city attorney may also be voidable, Hemphill says.
“What, if anything, can be done after an action is declared void is also unclear,” he said. “For example, if a city official’s hiring violated the Open Meetings Act, and the hiring is thus declared void by a court, what happens to actions taken by that city official after his hiring? Are they void, too? I’m not aware of any court cases dealing specifically with that situation.”
Mayor Garver said, “In my opinion, nothing we’ve done with this poor process should affect” legal actions that Sokolow may have taken in representing the city. “But if you’re affected” by those actions, he added, “I guess you could go to court.”
According to Mayor Garver, the city’s contract with Sokolow indicates that his performance would be reviewed after he had been on the job for six months. If his performance was deemed satisfactory in that review he would get a raise of $5,000 per year.
In a properly posted executive session held last night, the Georgetown City Council discussed with Sokolow his duties and evaluated his performance.
In the open session that followed the executive session, the council voted to approve the raise. However, the agenda for the open session did not provide notice of the possibility of increasing the city attorney’s pay. Thus, the council’s vote to grant the pay raise may itself be a violation of the Open Meetings Act.
Last year, the Williamson County Sun, a newspaper based in Georgetown, reported that city officials were given a “refresher” course on the Texas Open Meetings Act during an executive session held March 24, 2009.
That training came on the heels of two events that happened early last year—a phone call and a luncheon—which seemed to indicate that certain council members may have participated in a “walking quorum” or meeting of less than a quorum in an attempt to evade the requirements of the Open Meetings Act.
“In our society people are very suspicious of government,” Garver said. “The government is responsible to recognize that people have not given us carte blanche. People want us to become accountable for how we govern. The more open, the more transparent we are, the greater the trust in what we do.”
Mayor Garver told The Austin Bulldog that the city is studying what it should do to rectify the problems created by flaws in the city attorney’s hiring process. We will monitor and report on what action the city takes.
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