Transparency?

City Taking Action Behind Closed Doors

The City of South Padre Island announced its appeal of the food truck lawsuit decision on January 15, one month after filing with the 13th District Court of Appeals on December 15, 2021.

The City's third-party attorneys, Denton Navarro Rocha Bernal & Zech (DNRBZ), requested a ruling from the Attorney General (AG) to withhold documentation of an appeal to the food truck lawsuit (legal posted agendas, minutes, recorded, approved, or otherwise) requested by Island Matters (IM). Meeting minutes, after approved, can be found on the city’s website.

The DNRBZ’s brief to the AG claimed that the information be withheld, "on the ground that it is excepted from public disclosure." They wrote that according to the Texas Open Meetings Act (TOMA) "certified agenda or tape of a closed meeting is available for public inspection and copying only under a court order."

City’s Brief to Attorney General

Since the request to withhold information was filed 2-days late, DNRBZ released the posted agenda and minutes to the 1/6/2021 City Council meeting. Despite the clear request for agendas and minutes, the DNRBZ wrote to the AG implying IM was seeking confidential information from the closed meeting on 1/6/2021.

[NOTE: Island Matters frequently requests agendas and minutes, and this is its first denial.]

Mayor Patrick McNulty’s Statement Regarding Food Truck Litigation

IM sought out Texas Public Information Act (TPIA) attorneys that work closely with the Texas Open Meetings Act (TOMA). Island Matters also reached out to City Attorney Ed Cyganiewicz.

Plaintiff's lawyer Arif Panju told IM in an interview via email that the City again violated the TOMA and misled the public. "The City ignored the Texas Open Meetings Act with its ‘Food Truck Planning Committee’— which allowed a handful of politically-connected local restaurant owners to cook up a permit cap and restaurant-permission scheme. And after the Cameron County District Court declared the City's food-truck permit cap and restaurant-permission scheme unconstitutional, the City has again violated the Texas Open Meetings Act by keeping the public in the dark, choosing to issue a misleading press release via Facebook rather than comply with its legal obligations for transparent and open hearings when conducting the public's business."

Attorney Joe Larsen, one of the Directors on the Freedom of Information Foundation of Texas board, commented on the possibility of a violation of the TOMA. "It's a very public process. It does appear that there may have been an open meeting act violation. It doesn't look like the city specifically took action in public at an open meeting, authorizing the appeal. That's what it appears." Although he also commented, "There are reasons to think there might not be so."

While explaining the appeals process, Larsen stated, "As far as appealing a lawsuit is concerned, it's a matter of public record. You cannot do it behind anybody's back. There has to be evidence in the court. They cannot appeal under the rug. They have to file a notice of appeal."

According to TexasCourts.gov, the 13th Courts of Appeals revealed an appeal had been made by the City on December 15, 2020. The City, through their third-party attorneys, gave Island Matters the wrong documents to which no official action of an appeal was taken place, while the appeal already took place without the public or the press knowing.

[NOTE: Island Matters is present at all city meetings open to the public.]

Interview – City Attorney, Edmund K. Cyganiewicz

Island Matters: The law says according to the Open Meetings Act 551.102, "A final action, decision, or vote on a matter deliberated in a closed meeting under this chapter may only be made in an open meeting that is held in compliance with the notice provisions of this chapter."

Did the City of South Padre Island comply with the Open Meetings Act concerning the appeal of the food truck lawsuit?