IS CITY VIOLATING TEXAS OPEN MEETINGS ACT BY WEASEL WORDING PERSONNEL ITEMS ON COMMISSION AGENDAS?

 Special to El Rrun-Rrun

If the city manager and city commission met in closed session to discuss your employment and – after emerging from the closed session – approved your termination, should you have been given notice they were discussing you and your job and given you a chance to air your side of the story in an open hearing?

Former City of Brownsville Director of Internal Services Roxanne Moreno says that although the Texas Open Meetings Act does not require absolute notice requirements, it does require "substantial compliance" to alert employees that they are the subject of the agenda item where their employment – and their termination – was discussed. 

On November 3, she – through her attorney John Shergold – sued the city for failure to comply with a section of the act (551.074) and is asking that she be reinstated to her former position. Moreno and Shergold declined to comment on the lawsuit. 

Moreno was employed by the city from November 12, 2019 until September 13, 2021 when she was terminated by City of Brownsville Manager Noel Bernal. She alleges that she supervised numerous employees at the Building and Facility Maintenance, Fleet and Call Center. Through that entire time, she says she never received any complaints from any city employee or members of the public or any negative written evaluations.

Yet, a week after her termination – during the September 21 meeting– City Attorney Victor Flores posted an item on the agenda that read: 

"Closed session...to consult with legal counsel pursuant to Section 551.074 of the Texas Government Code to deliberate personnel matters, including discipline, termination or dismissal of public officer(s) or employee(s), and other related legal issues."

Moreno believes that she and other public officers or employees were discussed under the agenda item that is not permitted by the Act. Had she been told that her employment and that her employment (and that of others) were the subject of the discussion, they had the right to request an open hearing before the city commission under the state's Sunshine Legislation.

Further, she claims that since the city commission took action on personnel matters involving her and others that is not permitted in an illegal meeting conducted outside of a public meeting posted and conducted pursuant to the Open Meetings Act and that the alleged statutory violation by the city commission at the meeting can be voided, and employees can move to stop, prevent, or reverse a violation of the statute. 

In fact, another section of TOMA (551.142) allows "an interested person, including a member of the news media," to bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation...by a governmental body. 

If the claim prevails, the court is allowed to assess costs of litigation and attorneys fees incurred by the plaintiff acting in good faith who prevails in an action.

The case was assigned to the 445th District Court.