DA says commissioners don’t have to operate ‘in a fish bowl’ — even if what they say sounds fishy

Posted on 20 Apr 2011 at 2:40pm
County Judge Clay Jenkins says he was not aware that sexual orientation didn’t include transgender people.

A while back we filed a request, under the Texas Public Information Act, seeking any and all records related to the Dallas County Commissioners Court’s decision to add sexual orientation — but not gender identity/expression — to the county’s nondiscrimination policy.

County Judge Clay Jenkins and Commissioner Dr. Elba Garcia, who spearheaded the amendment, have said they thought sexual orientation included gender identity/expression, based on advice they received from the county’s Human Resources department. But frankly we’re a little skeptical of this claim. Since Jenkins and Garcia told us this, one critical fact has emerged: They are one vote short of the majority needed to add gender identity/expression to the policy, which leads us to wonder whether that’s why it was left out in the first place.

After all, gay District Clerk Gary Fitzsimmons has said he shared his department’s nondiscrimination policy, which includes transgender employees, with Jenkins prior to the court’s vote to add sexual orientation but not gender identity/expression to the countywide policy. And during Jenkins’ campaign last year, he told us how as a civil rights attorney in private practice, he once represented a transgender person who won a lawsuit against a popular restaurant chain. As the plaintiff’s attorney in that case, wouldn’t Jenkins have become familiar with the distinction between sexual orientation and gender identity/expression? And as for Garcia, she was on the Dallas City Council in 2002 when the council passed a nondiscrimination ordinance that includes “gender identity” — albeit under the definition of sexual orientation.

To be sure, this can be a confusing distinction, especially to those who aren’t members of the LGBT community, and even to many who are. So if Jenkins and Garcia truly thought sexual orientation included gender identity/expression, it would be forgivable. What would be less forgivable, in that case, is their failure to consult with stakeholders, and namely people in the LGBT community, prior to voting on the sexual orientation-only amendment.

In light of all this, we filed our records request, but unfortunately it doesn’t look like we’ll be getting answers anytime soon, if ever. In a letter to Attorney General Greg Abbott’s office dated today, Assistant Dallas County District Attorney Michele Tapia maintains that the county shouldn’t be required to release the records we requested. Tapia argues that the county can legally withhold the records because they “constitute inter- or intra-agency communications that consist of advice, recommendations, and opinions reflecting the policymaking processes of a governmental body” that “would not be available by law to a party in litigation with the agency.” To download a copy of Tapia’s letter, click here.

“The disclosure of these documents would chill and discourage candid discussion on improvements from staff at all levels. Further, disclosure would serve to dampen open discussion and actions to improve processes and necessary corrective actions or improvement measures,” Tapia writes. “It would be impossible to have any frank discussion of legal or policy matters in writing if all such writings were to be subjected to public scrutiny. … It has been argued, and with merit, that the efficiency of a government agency would be greatly hampered if, with respect to legal and policy matters, all government agencies were forced to operate in a fish bowl.”

Abbott’s office now has 45 days to render a decision on the county’s request about whether it can withhold the records. Of course, in the meantime, this whole thing would probably just go away if the Commissioners Court simply went back and added “gender identity/expression” to the policy.

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