ORDER NO. 31527 OPEN MEETINGS VIOLATION BY GMA9 Came to be heard this the 9th day of November, 2009, with a motion made by Commissioner Letz, seconded by Commissioners Oehler/Baldwin, the Court unanimously approved by a vote of 4-0-0 to: Approve requesting the County Attorney to pursue Open Meetings violation by GMA9, and review terminology in HB 1763. 1,~3 3 ~ Sa -~ COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND TEN (10) COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT MADE BY: Comm. Letz MEETING DATE: November 9, 2009 TIME PREFERRED: SUBJECT: Consider, discuss and take appropriate action on requesting the County Attorney to pursue Opening Meetings violation by GMA9 and review terminology in HB 1763. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: Comm. Letz ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: 5:00 PM previous Tuesday THIS REQUEST RECEIVED BY: THIS RQUEST RECEIVED ON: @ .M. All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards your request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. OFFICE: County Commissioner KERR COUNTY APPEAL TO THE TWDB REGARDING DESIRED FUTURE ® CONDITIONS SET BY GMA9 FOR THE ELLENBERGER AND HICKORY AQUIFERS THE DFC's SET BY GMA9 ARE VOID DUE TO FAILURE TO COMPLY WITH TEX GOVT. CODECHAPTER 551 TEXAS GOVERNMENT CODE Chapter 551 (Open Meetings Act, hereinafter "the Act") applies to every governmental body in the State of Texas. "Governmental bodies" include special districts created by law (§551.002[H]) and deliberative bodies that have rulemaking or quasi judicial power (§551.002[D]). The Texas Legislature specifically acknowledged this requirement in TEXAS WATER CODE §36.108(e): "A joint meeting under this section must be held in accordance with Chapter SSl, Government Code. . .Notice of the meeting shall be given in accordance with the requirements for notice of district board of directors meetings under that Act." Id., emphasis added. The Act requires that written notice be given of all meetings, which must include the date, hour, place and subject matter of each meeting. §551.041, emphasis added. Governmental actions taken in violation of the Act's notice requirements are voidable. §551.141; See also, Swate v. Medina Community Hospital, 966. S. W.2d 693, 699(Tex. App. -San Antonio 1998, pet. denied). The notice not only must identify the subject matter to be discussed, but must be sufficiently clear and accurate to give the public notice of what will be considered and whether any specific action may be taken. Under this standard, the public notice of the joint planning meeting at which these DFC's were yet was defective with respect to the Desired Future Conditions (DFC) set by the GMA9 for the Hickory and Ellenberger Aquifers. The agenda for the meeting provided as follows: 6. Discussion and possible action on Blanco Pedernales GCD proposal to set Desired Future Conditions for the Ellenberger, Hickory, and Marble Falls aquifers in Blanco County only. 0 0 Although the posting expressly stated that any action to set DFC's for these three aquifersl would be set for Blanco County only, the resolution adopted by the GMA9 on August 29, 2008 (Resolution #082908-01 is not so limited. It orts to ado t DFC's Pm'P P for the entire region, based on a posting expressly limited to the confines of Blanco County. For this reason, the GMA9's resolution setting DFC's should be declared void. SUMMARY: The public notice that DFC's would be set for the entire region was inadequate under the Open Meetings Act to give the public notice of the action that was to be considered and taken at the GMA9 joint meeting on August 29, 2008. The TWDB should therefore declare the action taken pursuant to this posting to be void. i 1 1 Kerr County's appeal relates solely to the Ellenberger and Hickory aquifers, and not the Marble Falls aquifer, because there is no evidence that any portion of the Marble Falls aquifer exists within Kerr County; however, we believe that the posting was also inadequate to set the DFC's in that aquifer, for the reasons stated herein.