Did the DART board break the law when it talked trans protections behind closed doors?

Posted on 16 Jun 2010 at 10:54am

If nothing else, I’m grateful for the little lesson on Texas open meetings law that I received this morning. I’ve worked as a journalist in three states over 10-plus years, so it all tends to blur together in my mind. But somehow, when the DART board closed its meeting last night, it just didn’t seem right.

To recap, the board met in a closed session for 30 minutes to discuss with their attorneys a proposal to add transgender protections to the agency’s nondiscrimination policy. After the meeting was reopened and we were allowed back in, board members promptly voted 11-2 to approve the proposal after no public debate. A final vote on the trans protections will come next week.

DART spokesman Morgan Lyons informs me that the board was relying on the following provision from Texas open meetings law:

A governmental body may not conduct a private consultation with its attorney except:

(2) on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter.

In other words, this is attorney-client privilege. Because it’s possible that the nondiscrimination policy will end up in court for some reason, the DART board has every right to get advice about it from the attorneys behind closed doors.

But — and this, in my mind, is a huge but — the one and only thing that can be discussed in the closed session is information that would fall under attorney-client privilege. Which means it would have been illegal for the DART board to discuss things like the political ramifications of the vote, or their personal beliefs about gender identity, or anything else for that matter.

This morning I spoke with Joe Larsen, a Houston-based attorney who’s on the board of the Freedom of Information Foundation of Texas. Larsen said based on my description of the meeting, the closed session sounds “extremely suspicious.”

“It sure sounds to me like they went beyond whatever legal implications this thing may have, just because of the time frame in combination with the complete lack of discussion once they went back into open session,” Larsen said. “Thirty minutes to talk about legal issues is a long time.”

Unfortunately, Larsen added, there’s really no way to prove it one way or the other — unless someone who was in the closed meeting decides to talk.

Because the vote went our way, it’s doubtful the LGBT community is going to get into an uproar about this possibly illegal closed meeting. But what if the vote had gone the other way?

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