By Jon Cassidy
So, you and a couple buddies have gotten control of a school board or a county commission somewhere, you’ve got your guy installed as the chief executive, and you’d like to cash in on your opportunity – send some work to a contractor you know, maybe put a few relatives on the payroll.
The specifics don’t matter too much, as long as you get a kickback. Just make sure you’ve got plenty of bond money to play with, so nobody at work notices anything is missing.
Nobody’s ever going to catch you actually taking the envelope full of cash from the contractor, as long as you’re not stupid about it, but there is going to be a paper trail for the money paid to him. Those are the records you want made as unpublic as possible.
Used to be, you had to worry about gadflies or political opponents or even reporters filing public records requests for these contracts. You’d have to cough ‘em up, as everyone knows government spending is the very thing that sunshine laws are meant to cover.
Then two years ago, in a case called Boeing v. Paxton, the Supreme Court of Texas asked the question, but what if you don’t feel like sharing? Now, if you or your buddy don’t want anyone to know how much he’s getting paid, you just have to say that disclosure would be a “competitive disadvantage,” and you can keep it secret.
With one move, the court removed money from the things taxpayers are entitled to know about; for an encore, they might as well go ahead and strike “information” from the Texas Public Information Act.
Now, to be fair to honest folk, the decision was so bad that state lawmakers are even talking about doing their jobs and fixing it.
But that’s OK, because in January, the Supreme Court came up with an even stronger pro-corruption decision than Boeing, and lawmakers aren’t going to touch it, because in this case, they’re the corrupt ones.
This ruling in Hall v. McRaven was so pro-lawbreaking that it would be hard to make it any plainer. The court took this principle, “a public officer has no discretion or authority to misinterpret the law,” and turned it into the principle of virtually “unconstrained” discretion. In other words, the law is what we say it is, and the courts aren’t going to correct us.
The Boeing ruling took care of all the nosey parkers out there, but until Hall, you still ran the risk of getting into a scandal like the one that consumed Beaumont Independent School District. A mess of people went to jail, and there are some others who maybe should have, but got lucky.
The crooks were in charge of the school district, and the board majority turned a blind eye, but somehow, two ornery board members with no political power managed to wreck all the good scams.
What did Mike Neil and Tom Neild do when district officials balked at sharing something?
“We said, ‘We know the law,’” Neil said. “If it wasn’t for the statute we used to get the information, Beaumont would still be run by those guys.”
Now, statute’s not quite the word, but Neil did have the law on his side. He used attorney general rulings like this and this and this and this, all favoring the right of an individual member of a governing body to access agency records.
There’s nowhere in statute that we know of that the Legislature spelled out that members of this board or that commission get to actually see the stuff they’re supposed to oversee. There’s nowhere in law that says you’ve got to have chairs at a meeting, either. Some things are just obvious.
For nearly four decades, the attorneys general of Texas have consistently told government bodies to share records with their overseers, even the annoying dissenters.
In some parts of the law, there’s some fairly clear language supporting that. Regents of the University of Texas, for example, are burdened with a legal fiduciary duty to the university, and fiduciaries by definition exercise dominance and control in a relationship.
Also, duties carry rights. That’s why the attorneys general have long upheld an “inherent right of access” for government officials charged with oversight. State law might not use the phrase, but neither does state law confer any explicit authority on a board majority to eviscerate a minority.
Yet the Supreme Court of Texas, without even addressing this principle, just decided that a school board – and by extension, any government oversight body – has the authority under its general rulemaking power to sideline its own dissenters.
In a unanimous decision, the court ruled that Wallace Hall, a regent of the University of Texas, had no inherent right to access records in his individual capacity as a regent.
“That is a dangerous decision,” Neil says, but you’d expect that from him.
Like Hall, Neil constantly dealt with officials who saw him as a pest.
“Every time I requested something, they started talking about the cost,” Neil says.
They did the same with Hall, of course, even turning that into grounds for impeachment.
Folks would probably catch on to that excuse, eventually, but fortunately, we don’t have to use it any more.
Now, when the Neils and Halls of the world ask for information, we can just tell them no. Thank the Supreme Court of Texas.
Jon Cassidy reports for the Texas Bureau of Watchdog.org. Contact him at firstname.lastname@example.org and follow him on Twitter @jpcassidy000.