Mark McBrayer after taking the oath of office, image from screen capture of video from the City of Lubbock
New Lubbock Mayor Mark McBrayer said he didn’t violate the Texas Open Meeting Act by communicating with council members one-by-one to ask if they’d support him on a few upcoming city issues because he hadn’t been sworn in yet.
Some council members agree with McBrayer and there’s a Texas Attorney General legal opinion to back him up.
But Don Richards – a Lubbock attorney who specializes in media law, open records and open meetings law – believes it was not a proper thing for Lubbock’s new mayor to do according to the spirit of the law.
Richards added he voted for McBrayer and donated $500 to his campaign, but has a different opinion on this issue.
If McBrayer had done this after he was sworn in, it would be what’s known as a “walking quorum.”
During our interview with the new mayor, he said, “Now that I’ve been sworn in, I know the rules have changed. The rules fully apply to me, and I plan to follow them.”
In this article
- What happened
- The contents of McBrayer’s memo
- Legalities
- McBrayer’s comments to Lubbock Lights
Explaining the walking quorum
Texas law prohibits something called a “walking quorum.” It’s one method an elected official might use to coordinate the outcome of a vote before an issue comes up officially in an open meeting.
A quorum is simply the majority of voting members. There are seven members of the Lubbock City Council, so a quorum is four or more.
A “walking quorum” in Texas was defined in a court case called Esperanza Peace and Justice Center v. City of San Antonio.
It was defined as, “ … deliberately meeting in groups of less than a quorum in closed sessions to discuss and/or deliberate public business, and then ratifying their actions as a quorum in a subsequent public meeting.”
What happened
No candidate for mayor in the May 4 election got more than 50 percent. That led to a June 15 runoff election between McBrayer and Steve Massengale. McBrayer won by 72-28 percent.
After that, but before McBrayer took the oath of office, he drafted a memo as part of his discussions with council members. In many cases the meetings were in person. In at least one case, it was by phone.
Lubbock Lights acquired a copy.
What the memo says
The key areas of the memo included McBrayer asking:
“Can you support me in nominating Christy Martinez Garcia as Mayor PT?” Mayor PT means mayor pro-tem – the person who fills in when the mayor is unavailable.
McBrayer also points out his priorities. His first three are:
- Public safety – hiring more police officers and getting first responder pay into the top ten in Texas.
- No new revenue rate this year.
- Neighborhood development.
Later he asked: “Can I count on your support on the first 2 or 3 priorities.”
Those are the areas of the memo which would be a walking quorum if he’d taken office.
The memo started by asking if council members had time to get settled and figure things out. They were also asked to describe their own priorities for the next two or four years. He also mentioned how he wanted to run meetings, asking for a professional tone.
“Look at alternatives to impact fees,” it also said. Impact fees are paid by developers to offset the cost of things like major thoroughfares in new parts of town.
“Work closely with developers especially on West and North side developments,” it said, including Broadway as a high priority street-improvement project.
Please click here to see a copy of the memo.
Letter of the law and spirit of the law
“I was not sworn in yet,” McBrayer said, and the results of a June 15 runoff had not been certified yet.
The official Texas Open Meeting Handbook for 2024 said, “A person who has been elected to serve as a member of a governmental body but whose election has not been certified and who has not yet taken the oath of office is not yet a member of the governmental body.”
That’s based on a 2005 legal opinion from then-Texas Attorney General Greg Abbott, the handbook said.
“It was not a walking quorum. I’m confident in that,” McBrayer said.
There’s the letter of the law, which says McBrayer is right.
Then there’s the spirit of the law.
Meriam Webster’s online dictionary defined “the spirit of the law” as “the aim or purpose of a law when it was written.”
Richards said, “It clearly violates the spirit of the act because he is talking about business, about which he’s already been elected. … He’s about to have jurisdiction over the very points that are being discussed.”
Some items in the memo would be tough to peg as violation no matter what because they’re not specific city proposals. They’re more like how to be respectful and get along.
“It’s hard to complain about that,” Richards said, but still not the best way to handle it.
“That’d be better if that was done during an open meeting,” Richards said.
LubbockLights.com also reached out to City Attorney Matt Wade who declined to comment.
How does this apply to citizens?
If the mayor cannot talk to a majority of the Council except during an official meeting, then what about you, the voter?
“I have the right to communicate with all my legislators, every City Council person. I can go down and lobby them. That’s my right to protest under the First Amendment. I have the right to go down and talk to anyone,” Richards said.
The elected officials are limited in how they respond.
“They’re allowed to give a factual response, but they cannot give a deliberative response,” Richards said. In other words, elected officials cannot coordinate how they’ll vote outside of official meetings.
That’s true of conversations but also true of emails if a citizen writes an email to a majority of the council.
Richards reiterated his support of McBrayer, but made it clear he still thinks the new mayor could have handled the situation better.
“Just so you know, I’m not changing my opinion of what’s taking place here. … I don’t think I’m prejudiced in my opinion in any way,” Richards said.
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