Analysis: Is it OK for Killeen council to vote at ‘workshop’ meetings?

Editor's Note

In an article that run on Page A1 Thursday, under the headline “Attorney: Killeen City Council violated Texas Open Meetings Act during concourse discussion.” the Herald stated that “under Texas law, during the workshops, council members cannot vote on agenda items.” The Herald could not find that law directly; however, the newspaper is running the following story as a clarification into the issue.

Killeen Daily Herald
By Paul Bryant | Herald Staff Writer
November 6, 2022

Killeen city officials may be arguing when it comes to determining whether they violate the Texas Open Meetings Act during workshops. But Austin attorney Bill Aleshire — an expert in open government — said avoiding the issue altogether is simple.

“It depends on what they say to describe a ‘workshop’ versus any other ‘meeting’,” he said after the Herald published a story on Thursday about council members deliberating public business not posted on the workshop agenda. “If they imply to the public that they will only be having discussion and not take any action on the agenda items, then it is misleading to the public.”

An attorney with the Freedom of Information Foundation of Texas, Aleshire admonished the council for its behavior.

“It would have been common sense just saying, ‘naming of the concourse,’ on the agenda,” he told the Herald on Wednesday. “That other concourse and that other person was not listed on the agenda, so they discussed a broader issue than one concourse and one name.”

Through a “motion of direction” — a formal request for staff members to act in a certain way — Councilman Michael Boyd was successful in advancing an effort to name two concourses at the Killeen-Fort Hood Regional Airport for the late Gen. Robert M. Shoemaker and former Killeen Mayor Timothy L. Hancock.

However, the agenda item listed for discussion during the workshop was to “discuss GRK concourse naming — Mayor Timothy L. Hancock.”

GRK is the code for Killeen-Fort Hood Regional Airport.

Under the Texas Open Meetings Act, council members should have limited their discussions to naming the concourse after Hancock because that’s how the notice was publicly posted, Aleshire said.

‘Complicates it’

“They actually listed one name and then acted on another name, and that complicates it even a little more,” he said. “It was not posted. They did not give notice to the public. They talked about more than one concourse and more than one name, so the action they took to name another concourse for another person was not listed on the agenda and subject to be voided by a court.”

He repeated that assertion two days later — and after the Herald asked if the council violated the Texas Open Meetings Act by voting during a workshop.

“If they say the meeting is for discussion, they should not vote — period,” Aleshire said. “A ‘motion for direction’ is a made-up term that appears nowhere in the Open Meetings Act. They can make a motion to direct the city manager in a regular voting session, so that doesn’t explain how a ‘motion for direction’ is okay in a meeting in which they tell the public they will not be taking action. If they are going to vote, it’s a ‘voting’ session.”

‘Both can happen’

Killeen City Attorney Holli Clements denied that the city violated the open meetings act — a misdemeanor under Texas law.

Killeen City Manager Kent Cagle, the city’s top administrator, went further, accusing the newspaper of wrongdoing.

“In general, workshops are for discussion and meetings are for action. However, both can happen at workshops and meetings,” he said in a series of emails to the Herald on Friday. “Either intentionally or unintentionally, you misinformed Mr. (Aleshire) about our meeting to get your inflammatory headline.”

That headline on Thursday was, “Attorney: Killeen City Council violated Texas Open Meetings Act during concourse discussion.”

During the workshop on Tuesday, Mayor Debbie Nash-King cast the tie-breaking motion of direction by Boyd and seconded by Nina Cobb to name the concourses as well as close a survey soliciting recommendations by residents for namesakes.

“I make a motion to name the north concourse for late Gen. (Robert) Shoemaker and the south concourse for former Mayor Timothy L. Hancock,” Boyd said.

‘Some different rule’

But Aleshire said that, too, was improper under the Texas Open Meetings Act, also known as TOMA.

“TOMA does not make any exception or different rule for posting notice of any meeting of the council,” he said. “Reading the comments by Mayor Nash-King in your story suggests that she thinks there is some different rule when council meets in a work session.”

While the Texas Open Meetings Act does not expressly prohibit or allow casting votes in workshops, it does address through case law how meeting agendas are posted.

“If the council does not post notice of a subject for their meeting, they cannot deliberate it — which means discuss, receive information about or vote — in a work session or a voting session. The problem the council created for itself is that they were very specific about their posting ‘discuss GRK concourse naming — Mayor Timothy L. Hancock’ — one airport concourse, one name. But they deliberated about two concourses and more names.”

Harker Heights Assistant City Manager Jerry Bark seems to agree with Aleshire.

“It depends how it’s stated on the agenda item,” he said. “In workshops, we don’t vote on them. The workshop is an opportunity for staff to present updates on city policies, plans for the future, and other presentations that keep council informed of the activities around the city. It’s a more in-depth discussion on topics that are listed on the workshop agendas.”

Also, during Killeen City Council workshops, Nash-King often warns council members about making motions to vote, stopping them to say, “This is a workshop,” including on Nov. 1 when she reminded Boyd of the same.

And a few years ago, the Killeen school board temporarily stopped meeting in workshops, instead conducting the public’s business in regular and special meetings in which they vote.

‘You don’t vote’

“Unless you break out of the workshop into a regular scheduled meeting, you don’t vote. Normally, workshops are just that — to discuss future items,” Bark said. “We do the same thing. As you may know, Harker Heights will have workshops on the first and third Tuesdays of the month that begin at 3 p.m. and council meetings on the second and fourth Tuesdays of the month, beginning at 5 p.m.”

Harker Heights’ regular meeting agendas, like Killeen’s, include such items as consent items, presentations, public hearings and general items for consideration for approval.

“Each segment of the regular meeting fulfills a specific purpose,” Bark said. “For example, the consent agenda enables City Council to vote on non-controversial items with a single vote. Opportunities for the public to address council occur during the regular meeting or the workshop meetings. Our council will not take an official vote on workshop items as they are presented as ‘receive and discuss.’”

Aleshire told the newspaper that the city must re-post Tuesday’s meeting “in order to proceed legally.” Under the Texas Open Meetings Act, a court may void the meeting if petitioned to do so.

The next Killeen City Council meeting is scheduled for Tuesday, at 5 p.m., at City Hall.