LEGAL MEMORANDUM - CONFIDENTIAL

TO: Members of Forney City Council

Cc: James Fisher, City Manager

FROM: Jon Thatcher, City Attorney

RE: Questions regarding Council action on Maintenance and Service Agreement with Markout WSC

DATE: July 12, 2017

_____________________________________________________________________________________

Following the Council meeting on July 6, 2017 meeting, I have received several questions
regarding the legality of events including council meetings and actions surrounding the Maintenance and
Service Agreement between the City of Forney (the City) and the Markout Water Supply Corporation
(Markout). The intent of this legal memorandum is to respond to these inquiries and provide same to
the whole council.

Background

In the fall 2016, as your legal counsel, I was asked to draft a maintenance and service agreement
with Markout for Council consideration. Markout had requested that the City assist them in performing
certain regular and special maintenance in their service area. Markout did not, nor do they currently have
the proper staff in place to provide the necessary maintenance in their service area. The Talty Special
Utility District (Talty) had been providing these services at the time of the request from Markout to the
City. Markout had indicated that they were unsure whether Talty desired to continue providing the
maintenance services and asked that the City consider stepping in should Talty decide to withdraw.

On December 6, 2016, an item was placed on the agenda under an executive session under
Section 551.071 of the Texas Government Code to receive legal advice. The agenda language tracked the
necessary statutory language and listed the item as Markout Water Supply Corporation. Further, the
agenda stated that following the executive session, the Council would consider taking any action as a
result of the executive session. As a result of the discussion in executive session, the Council voted 7-0 to
authorize the City Manager to execute a Maintenance and Service Agreement with Markout. The
agreement was executed by both the City and Markout and contained a clause that any services from the
City would only be provided if Talty withdrew from its contracted obligations to provide the service to
Markout. The City did commence performing the services a few months later when it was notified by
Markout that Talty was no longer providing the services.

At the request of a council member, the matter was placed on the agenda for the June 6, 2017
council meeting. I understood that it was the intention of the councilmember to discuss the term of the
contract and the legal implications of considering a termination of the agreement. The matter was placed
on the agenda in the same manner as it was in December 2016. Again, the agenda called for a
consideration of any action as a result of the executive session.

Following the executive session, the Council, by a simple majority, voted to terminate the
agreement and send notice of same to Markout.

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Legal Questions Presented

1. Were the executive sessions on December 6, 2016 and June 6, 2017 properly called and posted
meetings in accordance with the Texas Open Meetings Act?

2. Were the actions taken as a result of the executive sessions on December 6, 2016 and June 6,
2017 in violation of the Texas Open Meetings Act?

3. Were any members of the City Council in violation of the Texas Open Meetings Act as it relates
to the executive sessions on December 6, 2016 and June 6, 2017?

4. Who has the authority to call a special meeting of the City Council for the City?

5. If members of the public desire to speak on any item either included or not included on agenda,
does the City Council violate their First Amendment Rights if the citizens are not given the
opportunity to speak?

6. Regarding a Motion to Reconsider, why are only the council members who voted in the majority
on an item allowed to make a motion to reconsider?

Question #1 Were the executive sessions on December 6, 2016 and June 6, 2017 properly called
and posted meetings in accordance with the Texas Open Meetings Act?

The Texas Open Meetings Act, as codified in Chapter 551 of the Texas Government Code (the
Act) provides certain narrowly drawn exceptions to the requirement that meetings of a governmental
body be open to the public. One such exception is found in Section 551.071.

If a closed session is going to be called, a governmental body must first convene in an open
meeting for which notice has been given as required by the Act (72 hour notice, posted on the Citys
bulletin board and published on the Citys website), and during which the presiding officer publicly
announces that a closed meeting will be held, and identifies the section or sections of the Act under which
the closed meeting is held. The reason for requiring the public announcement before going into executive
session is to inform the members of the public of the exceptions and give them an opportunity to object
intelligently.

Section 551.071 allows for a governmental body to go into executive session for attorney
consultations. These consultations can be to receive legal advice about pending or contemplated litigation,
or a settlement offer, or 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 of Bar of Texas clearly conflicts with the
Act. This latter provision is sometimes referred to as the attorney/client privilege exception. To go into a
closed meeting under this exception requires that the attorney for the governmental body be present.
Discussion in executive session under this exception must not move outside of this provision. For
example, general discussion of policy, unrelated to legal matters is not permitted under the language of
this exception merely because the attorney is present.

Both of the executive sessions from December 6, 2016 and June 6, 2017 were properly posted 72
hours in advance of the meeting on the Citys bulletin board outside of City Hall and online on the Citys
website. The Mayor, as the presiding officer of the Council, stated prior to going into executive session
what exceptions to the Act were being invoked and the Council took action to go into and out of
executive session. As a result, the meetings were properly called and posted meetings.

Legal Memorandum - Confidential July 12, 2017 Page 2 of 5

Question #2 - Were the actions taken as a result of the executive sessions on December 6, 2016 and
June 6, 2017 in violation of the Texas Open Meetings Act?

As was stated above in Question #1, the executive sessions were duly called and proper. Further,
the agenda stated that the Council would, following each executive session, consider taking action as a
result of the executive session. The form of the agenda provided the proper legal notice required under the
Act.

However, following the action of the Council on June 6, 2017 regarding Markout, it became very
apparent that some members of the public did not have enough detail or notice regarding the action that
the Council ultimately did take. The Act states that notice of any action to be taken by the governmental
body must be sufficient to apprise the general public of the subjects to be considered during the meeting.
In short, when action is contemplated by the Council on any item, whether in open session or as a result
of executive session, the agenda was to provide enough detail to the public to properly apprise them of the
subjects to be considered. This is based on an objective standard, however, the actual reaction from the
public showed me as your counsel that the agenda language regarding the Markout item more than likely
did not support the action taken by Council on June 6, 2017.

Even though the agenda language was the same on the agendas from December 2016 and June
2017, the City did not receive any objection to the Councils action in December 2016. This does not
substantiate the sufficiency of the agenda language from December 2016, however, the lack of public
apprisal was more apparent following the response from the public after the June 2017 action.
Nonetheless, it is my legal opinion that by simply adding the language of the Maintenance and Service
Agreement to the original Markout language could have provided enough detail regarding the actions
taken.

Any action taken by the governmental body that is not supported by sufficient language on the
agenda is not rendered void. Upon receiving a petition for judicial invalidation, a court of proper
jurisdiction can choose, depending on the facts, to invalidate an action that is taken in violation of the Act,
but it is not required to do so. The Court could still uphold the Councils action.

One remedy of the governmental body when there is a question as to the voidability of one of
their prior actions is to ratify it in a subsequent public meeting complying with all applicable provisions
of the Act. The ratification of the matter can avoid any future challenge to the original action of a
governmental body.

Based on some of the questions from the public and after consultation with attorneys from the
Texas Municipal League and the Texas Attorney Generals Office, I made the recommendation through
an email exchange on June 22, 2017 to the Council to seek to ratify the action from June 6, 2017 at the
next regular term of the Council. Later that same day, two council members requested a special meeting
to address the matter and ensure compliance with the Act. This meeting was requested to be set for June
26, 2017 at 5:00 pm. It was at this meeting that a quorum of the Council met and took action to ratify the
action from June 6, 2017.

Because this item was ratified, there is no basis for a determination that the actions from the
executive session were in violation of the Act.

Legal Memorandum - Confidential July 12, 2017 Page 3 of 5

Question #3 - Were any members of the City Council in violation of the Texas Open Meetings Act
as it relates to the executive sessions on December 6, 2016 and June 6, 2017?

There are various bases for a member of a governmental body to have violated the Act, especially
when it comes to an executive session. For example, a member of the governmental body commits an
offense if the member participates in a closed meeting of the governmental body knowing that a certified
agenda of the closed meeting is not being kept or that a recording of the closed meeting is not being
made. Currently, the City a certified agenda is maintained for every executive session held by the City.

Other violations of the Act include the following:

Section 551.146 of the Act - It is an offense for an individual, corporation, or partnership that
without lawful authority knowingly discloses to a member of the public the certified agenda or recording
of a meeting that was lawfully closed to the public under the Act.

Section 551.143 of the Act A member or group of members of a governmental body commits
an offense if the member or group of members knowingly conspires to circumvent the Act by meeting in
numbers less than a quorum for the purpose of secret deliberations in violation of the Act.

Section 551.144 of the Act A member of a governmental body commits an offense if a closed
meeting is not permitted under the Act and the member knowingly calls or aids in calling or organizing
the closed meeting, or participates in the closed meeting.

As previously stated, the basis for each executive session on December 6, 2016 and June 6, 2017
was in accordance with the Act. At various times, discussion in any executive session can start to deviate
from the scope of the executive session agenda. It is during these times that the individual members of the
governmental body, including the presiding member, and the attorney for the governmental body should
be careful to keep any discussion within the scope of the agenda and the individual exceptions for the
executive session.

It is my opinion that the discussion from the executive sessions on December 6, 2016 and June 6,
2017 were within the scope of the agenda and the underlying exceptions. Specifically, the legal
consequences of terminating the Markout Agreement were discussed on June 6, 2017. The discussion, at
times, wandered off into opinions on policy, however, the main crux of the discussion related to the legal
consequences. As such, I do not believe that any members of the governmental body were in violation of
Act as it relates specifically to the discussion in executive session on June 6, 2017.

Question #4 - Who has the authority to call a special meeting of the City Council for the City?

Pursuant to the Citys charter, Section 3.08 states that any special meeting shall be held at the call
of the mayor or a majority of the Council members upon provision of public notice in accordance with
State Law.

This charter provision is effectively clarified under its Rules of Procedure, Section 2.6 by stating
that a special meeting may be called by the Mayor or two Council Members. It appears that this was done
as the Charter would only allow a Council Member other than the Mayor to call a special meeting with a
vote of the majority of the Council at a regular term of the Council. Otherwise, a majority of the Council
would have to convene to call the special meeting in violation of the Act. Nonetheless, either the Mayor
or two Council Members has the authority to call a special meeting of the City Council of Forney.

Legal Memorandum - Confidential July 12, 2017 Page 4 of 5

Question #5 - If members of the public desire to speak on any item either included or not included
on agenda, does the City Council violate their First Amendment Rights if the citizens are not given
the opportunity to speak?

The First Amendment guarantees the freedoms that many consider to be the essence of this
country. The freedom of speech is to protect the minority viewpoint from being overpowered by the
government. This freedom extends to public meetings only when a public forum is established. These
public forums are generally established during the public forum section of a regular term of the Council
towards the end of the Forney City Council agenda. The City has the ability to establish general rules to
avoid repetition and establish order to the process. The public forums also exist during a statutory public
hearing during a public meeting. For some items, Council consideration can only come after calling a
public hearing. These items include a zoning change request or site plan approval, etc. Opening a public
hearing on any individual item requires approval by a majority of the Council, which is established by
Section 4.6 of the Rules of Procedure.

Further, the Rules of Procedure for Forney, Section 3.2, provides a model format for an agenda
item discussion. After announcing an item, the presiding officer should receive a report from staff or other
appropriate person, thereafter opening the item up for the Council to ask clarifying questions of the
presenter. Following any clarifying questions, the Mayor or other presiding officer should invite resident
comments or at that time call for an action to open the public hearing if one is required.

While this section states that the Mayor or other presiding officer should invite resident
comments, this is not a requirement under the Rules, nor is it a requirement under state or federal law. As
long as the City continues to post a public forum during its regular terms and hold public hearings where
statutorily required there is no violation of any first amendment rights. Any additional opportunities for
public comment are at the discretion of the presiding officer of the governmental body.

Question #6 - Regarding a Motion to Reconsider, why are only the council members who voted in
the majority on an item allowed to make a motion to reconsider?

As stated in the Citys Rules of Procedure, a tenet of parliamentary procedure is finality. After a
vote is taken on an agenda item, the matter is deemed closed, subject only to reopening through a motion
to reconsider. There are two special rules that apply to a motion to reconsider. First, a motion to
reconsider can only be made at the same meeting where the item was first voted upon, or at the very next
meeting. For purposes of timing, the next meeting is considered to be the next meeting where action can
be considered by the Council. The second rule is that the motion to reconsider can only be made by a
member of the Council who voted in the majority on the original motion. It can then be seconded by any
member of the Council. The reason for these rules, again, is to provide finality to Council actions.

If you should have any questions regarding the content of this Legal Memo, please do not hesitate
to contact me directly.

Thank you.

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