Freeport City Council members to be restricted from making public comments

The Facts
By EMILY HANSON emily.hanson@thefacts.com
August 25, 2023

FREEPORT — Members of city council are not considered members of the public and therefore cannot take the lectern during the “Citizens’ Comments” section of the agenda.

That’s a decision which came from Mayor Brooks Bass during this week’s City Council meeting.

Bass made the announcement following public comments from Councilman Jeff Peña during Monday night’s meeting.

Bass first asked City Attorney David Olson to explain to the public what the Texas Municipal League is.

Olson said the Texas Municipal League is an association of governing bodies in Texas.

Bass next explained a Freeport councilman recently attended a meeting of the Texas Municipal League during which the question of whether board members are allowed to speak during public comments was raised.

The answer, Bass explained to the public and council, has become a federal law.

“A member of a governing body does not have the First Amendment right to speak during the public comment portion of a public meeting,” Bass said. “Next meeting, we will be implementing this.”

Olson, during the meeting, agreed with Bass regarding the statement.

According to the Texas Open Meetings Act handbook from 2022, the case Bass referred to is Stratta v. Roe in which the Fifth Circuit U.S. Court of Appeals took up the case of David Stratta, a member of the Brazos Valley Groundwater Conservation District. Stratta sued the district when he was prevented from speaking during the public comment period on a matter which was not included in the agenda.

According to the handbook, the court recognized the Open Public Meetings Act does not define “member of the public.”

“The court determined Stratta could not bypass the Act’s notice requirement by attending a meeting as a member of the public,” the handbook states. “It concluded that ‘whatever Stratta’s rights otherwise may be, they were overcome by his status as a Board member and the Board correctly prevented Stratta from speaking at the meeting.’”

When speaking with The Facts this week, Bass did not mention any particular council member. However, Peña regularly uses a four-minute allotment during the Citizens’ Comment time to make statements to the City Council concerning issues he has with how City Hall is running, what he believes the needs of Freeport are and various other statements.

During his time Monday night, he stated the Freeport City Council lacks vision and called the budget for fiscal year 2023-24 — which has not yet been approved and is still being finalized — a “bankruptcy plan” for the city.

Bass said Friday he made the statement about council members no longer taking part in public comment time because he is a rule follower.

“If there are restraints against board members or council members, we’re going to follow those rules,” Bass said.

He stated he does not know whether council members will be prohibited from making statements during Citizens’ Comments.

“We have evolved our agenda over the years,” Bass said. “I would like the agenda to be fair to the public, fair to the council. It is a work in progress and I hope to have it done before I leave the council. I certainly do not want to stifle free speech.”

Peña said Bass’ pronouncement Monday night was just another effort to try to silence him.

“Every citizen can go up there and attack any councilman or the city,” Peña said.

He stated he did not believe the “Work Session” section of the agenda, where each councilman is given a time to make announcements and comments, was a more appropriate venue for his statements to the council.

“I’ve been repeatedly cut off at those work session,” Peña said. “Bass isn’t telling anyone else to be silent.”

Bass said the Work Session section was added to the budget specifically to give council members the opportunity to talk about any topic they wish.

“If council members want to bash anybody on Facebook, they’re welcome to,” Bass said. “If there are constraints on what a board member may say during public comments, I like to follow the rules.”

Peña said he plans to meet with Olson regarding the legality of Bass’ pronouncement, but also said he does not plan to change how he speaks to the council.

“I’m going to speak out front and during public comment because I can’t be cut off,” he said.