When area landowners packed Denton City Hall last month to oppose the city’s planned annexation of thousands of acres, Mayor Mark Burroughs said their concerns deserved more discussion.

Mark Burroughs

Council members have met on the annexations multiple times since then, but the public has been shut out of most of the talks. City leaders say their closed-door sessions with their attorneys are legal under the Texas Open Meetings Act, but some residents and open-government watchdogs are questioning what they view as a lack of public debate on the issue.

The Open Meetings Act says the public generally has a right to attend when government bodies meet. There are some exceptions, including hearing legal advice, but they are narrowly drawn, said Joe Larsen, a Houston lawyer and board member of the Freedom of Information Foundation of Texas.

“The attorney-client exception to the Open Meetings Act is limited to actually receiving advice from your attorney on legal matters,” Larsen said. “Just because your lawyer’s in there doesn’t mean you get to hold an executive [closed] session and talk about anything you want to talk about.”

Larsen reviewed written agendas from recent Denton City Council meetings and public statements made by Burroughs about the closed-door meetings, which were posted under an exception to the Open Meetings Act for “consultation with attorneys.” Larsen stopped short of saying the city is violating the law but said he is “extremely suspicious” when government bodies repeatedly meet in closed session on the same subject.

“Their actions strongly suggest that there’s more going on in these closed sessions than just the facilitation of professional legal services,” Larsen said.

Holding an illegally closed meeting is a misdemeanor punishable by up to six months in jail and a fine of between $100 and $500.

City officials defended the meetings.

“The City Council is entitled to receive advice from their attorneys with regard to the legal issues related to the annexation,” City Attorney Anita Burgess said. “They have done so, from both the city attorney’s office and their outside counsel.”

Anita Burgess

Burgess declined further comment.

Burroughs said the closed meetings were needed because annexations are complex and rife with legal pitfalls. The talks have focused on the “legal implications” of the proposal, he has said.

“I can understand why people would question it,” said Burroughs, who is a lawyer. “I can make my own assurance that in every discussion that we’ve had … I’m very conscious of what the legal threshold is.”

David Zoltner, a Denton veterinarian and open-government advocate, said he believes the city is abusing the attorney-client exception. Affected landowners and other members of the public have a right to know what factors are affecting council members’ votes, including those with legal implications, he said.

“There is a lot of legal information that the public also has a right to hear,” Zoltner said, admitting that the law allows closed meetings under narrow exceptions. “There are a lot of questions that should have been answered in the public domain that were not.”

Annexation plan

The city is considering a plan to absorb 18 areas totaling about 9,000 acres, including four large tracts of land northwest of Denton and smaller unincorporated pockets throughout the city. On Feb. 9, the council unanimously approved the initial annexations, involving 15 areas totaling about 7,480 acres, on the first of two readings. The final round of votes on those annexations is set for May 4.

Affected landowners have been aggressively fighting the annexations since December, when they began receiving correspondence from the city.

The city planning department presented the initial annexation plan to the council last March. Council members held several public discussions on the plan after that, most recently a Jan. 19 session on the cost of serving the areas. They’ve also held at least five closed-door sessions since Dec. 15, including one before the Feb. 9 open meeting.

Nature of meetings

Burroughs explained the nature of the closed meetings in a Jan. 19 interview.

“Our issues that are discussed in closed sessions are: What are the legal implications? Can we change terms of individual contracts? Can we offer extensions under certain circumstances? Can we exclude properties? At what stage?” he said. “There are a lot of questions that we council members — particularly those of us who aren’t attorneys — have to work through. And new council members are having to see this for the first time. So there are a lot of questions about process.”

In a subsequent interview, Burroughs said there was “a lot of educating going on” in the closed meetings related to the history of annexations, legislative pronouncements on annexations and past legal challenges.

Asked why the history of annexations would be a closed-door topic, Burroughs said that discussion revolved around why there are restrictions on particular properties, along with why the city had annexed certain areas in the past and “why we are annexing now.”

The closed sessions also have focused on annexation timelines imposed by state law, along with the requirements for offering non-annexation agreements to agricultural landowners, Burroughs said.

“Those [issues] have added complexities that we had to get answers to as best we could,” he said.

Burroughs said several landowners had attorneys make “inquiries” to the city about the annexations, though he was unaware of any pending litigation.

Rationale questioned

Larsen, of the Freedom of Information Foundation, said Burroughs’ descriptions of the meetings included some scenarios that would justify a closed session, such as asking attorneys whether granting a break to one property owner would invite lawsuits from others.

“But whether to grant an exemption in the first place, after they know whether they can or can’t, is a policy issue,” Larsen said. “It’s the very sort of thing that needs to be discussed out in public: Why do you want to grant an exemption to ‘X’ ranch or a particular municipal utility district? I don’t know who they’re looking at [to annex], but the policy basis of it, why people might be upset about it — those are political issues.”

Larsen said there’s no justification for holding a closed meeting on the history of annexations.

“That’s the sort of thing that would be given in a college class,” he said.

City leaders have invited scrutiny by their behavior, including by hastily calling a closed session after getting assailed in a Jan. 12 public hearing, Larsen said.

“It strongly suggests that what they’re talking about is the substantive issues people raised at the public hearing, rather than some legal pitfalls in regard to this annexation,” he said.

Council member Joe Mulroy said the closed-door talks focused on a “broad range of our legal possibilities,” not on specific tracts. He also said the council had “an abundance” of public deliberations on the annexations in the months leading up to the Feb. 9 votes.

Mulroy acknowledged that city leaders could do a better job explaining to the public the core issues involved in closed sessions.

A section of the Open Meetings Act prevents participants in closed meetings from releasing recordings or certified agendas from the sessions, but it doesn’t stop them from making public statements about what they discussed. A 2006 Denton city ordinance forbids the disclosure of “any information” from closed meetings — a restraint Larsen said flies in the face of council members’ free speech rights.

“I’d love to see them try to enforce that statute against somebody,” Larsen said. “I’d like to take up the First Amendment challenge if they did.”

Past concerns

Zoltner, the open-government advocate, said he believes the council has relied too heavily on the attorney-client exception under Burgess, who was hired to lead the city’s legal department in 2008.

“It’s the default position: Take it to closed session rather than risk anything being discussed in public,” he said.

Burgess took heat from open-government watchdogs during her tenure as Lubbock’s city attorney. In 2003, she barred police from releasing information on traffic deaths and murders to the public, saying releasing the information could violate a newly enacted federal medical privacy law, according to media reports. The state attorney general later ruled that the information should be released.

In 2006, Larsen was quoted in the Lubbock Avalanche-Journal saying the Lubbock council had improperly discussed that city’s management structure during a closed meeting. Burgess was not quoted in the article, but council members said they did nothing wrong.

Burgess declined to comment to the Denton Record-Chronicle on the Lubbock cases.

“I’m not at liberty to discuss any of those matters because I acted as the counsel,” she said.

DRC/David Minton

Robin Gregory, left, Melinda Carter and Eddie Carter protest the city of Denton’s annexation of their property, in front of the Murchison Performing Arts Center before the first Republican gubernatorial debate Jan. 14.

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‘Kind of depressing’

Some area landowners seemed stunned by the lack of public deliberations at the Feb. 9 council meeting.

Claudia Lynch watched as council members unanimously passed the first eight annexation-related items on their agenda. They were casting votes so fast at first that the city secretary had to ask them to slow down so she could keep up with the paperwork.

“I feel like this is all already decided, and it’s kind of depressing,” Lynch said when it was her turn to address the council. “I hope y’all prove me wrong and actually don’t approve one of the annexations.”

The council voted without discussion to annex the land.

Fifteen minutes later, council members had voted to annex several more areas and had asked questions about just one — a 1,165-acre tract near Denton Airport.

“I can’t believe how easy this is for you guys to just come up and vote and say yes to everything,” said Silvia Peña, a schoolteacher who said her family would struggle to pay city taxes if annexed because her husband has been laid off. “It’s pretty sad how easy you guys are just checking off on it.”

As the unanimous votes piled up, Deborah Cottle implied that landowners were wasting their time.

“It seems like every one is just 7-0, 7-0,” she said. “We could’ve TiVoed this and predicted what the outcome was going to be.”

LOWELL BROWN can be reached at 940-566-6882. His e-mail address is lmbrown@dentonrc.com.

ANNEXATION MEETING SET

The Denton City Council’s recent annexation meetings have focused on 15 areas totaling about 7,480 acres. The remaining land under consideration — three areas making up nearly 1,600 acres — falls under a state law that would require a three-year annexation process.

The council has scheduled an open work session for 4 p.m. Tuesday on those three areas, which can’t be annexed immediately because they each have more than 100 homes. The meeting will take place at City Hall, 215 E. McKinney St., before the council’s regular meeting at 6:30 p.m.

City records list the three areas as:

* Doughnut Hole 7: About 143 acres generally located on the east and north sides of Teasley Lane, south of Teasley Harbor Subdivision and west of Southlake Drive

* Doughnut Hole 9: About 298 acres generally located north of Pockrus Page Road and north, south and northeast of Edwards Road

* Doughnut Hole 12: About 1,153 acres generally located south of East University Drive, east of North Mayhill Road, north and south of Blagg Road, north and south of Mills Road and east and west of South Trinity Road