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2012-01-12

Did BCRAGD director's emails violate Open Meetings Act?

By Carolyn B. Edwards BCC Staff Writer

Two long-standing issues were pulled from the agenda of the Thursday, Jan. 5, quarterly meeting of the Bandera River Authority and Groundwater District at the advice of the district's attorney, Richard Mosty, of Kerrville.

Through documents obtained from an open records request, the Courier has learned that emails sent by board member Lee Kneupper regarding the two items may have violated the Open Meetings Act and possibly other laws.

Following an executive session that lasted an hour and a half, Board President Don Sloan announced that he was removing agenda items VII and XIII from discussion. He later said the removals were based on Mosty's advice given to the board during the closed session.

Item VII stated, "Discuss and consider for action: Items from executive session in reference to Flying L Ranch and Flying L PUD contested case."

Item XIII stated, "Discuss and consider for action: "Items from executive session in reference to letter to district attorney and AG opinion."

In a letter dated Dec. 13, 2011, Texas Attorney General Greg Abbott's office responded to a request for an opinion from Sloan asking for clarification of the Open Meetings Act regarding communications via
email among board members.

Sloan had submitted copies of numerous emails allegedly written by Kneupper expressing opinions on current and possible future agenda items and sent to and-or forwarded to enough members of the board of directors to possibly constitute a quorum.

On Dec. 27, 2012, Sloan also sent a letter to District Attorney Bruce E. Curry that included a copy of the opinion given by the attorney general's office as part of "a complaint of official misconduct" against Kneupper.

The letter to Curry asked the district attorney to look into the possible violation of the Open Meetings Act as well as the possibility that Kneupper engaged in ex parte communications with an attorney representing a party in a contested case involving the BCRAGD.

Ex parte communications?

There are several examples of ex parte communications, most of which involve judges, and some of which are entirely legal. Basically, an ex parte communication occurs when one party involved in a case is not invited to participate in a discussion of the case and is not informed of the discussion.

Ex parte contact also occurs when an attorney communicates with another party outside the presence of that party's attorney. Under rule 4.2 of the American Bar Association Model Rules of Professional Responsibility, a lawyer should refrain from contacting a party who the lawyer knows is represented by another attorney, unless the lawyer has the consent of the other attorney or is authorized by law to do so.

It is this latter definition that may have been violated by Kneupper and Rene Ruiz, an attorney representing the Flying L Ranch in a contested case before the BCRAGD. Ruiz works for the law firm Cox Smith.

"The Executive Committee [of the BCRAGD] is concerned that Director Kneupper's current course of conduct may violate state law and impact the Director or the other board members," Sloan's letter to Curry stated. "We ask your office to investigate these matters and take appropriate action."

Ruiz and Kneupper had apparently exchanged a series of emails discussing the Desired Future Conditions (DFCs) approved by BCRAGD and its effect on the Flying L Ranch, the issue of whether or not the Flying L Public Utility District's well is illegally commingling water from various aquifers, and what role the BCRAGD's attorney should be playing in BCRAGD board discussions.

Open Meetings Act violations?

Sloan's letter to the AG's office requesting an opinion regarding the possibility that emails sent to a quorum of board members may violate the Open Meetings Act included copies of approximately 18 emails sent from Kneupper's address to various combinations of board members. While some of the emails appear to be sharing information only, several state a position on a matter before the BCRAGD board and may be construed as discussion subject to the Open Meetings Act.

An email dated Tuesday, May 5, 2011, stated, "FYI the BCRAGD has turned the proposed new rules into a moving target. The copy on the www.bcragd.org website now shows edits relative to the original proposed rule changes, edits that are now apparently being made as BCRAGD goes along. I guess I would call the version on the website the 'working draft.' Very confusing." The email was sent to, among other people, board members Dick Connors, Don Kruckemeyer, Jim Chastain, Gene Wehmeyer and Karen Ripley. Five members constitute a quorum of members on the BCRAGD board.

Another email, dated Friday, Feb. 18, 2011, reflected Kneupper's opinion about ASR (Aquifer Storage and Recovery), which a BCRAGD committee was looking into. Kneupper was not a member of the ASR committee. "FYI attached is what people are talking about. Actually the concept is much more about using surface water instead of groundwater than about ASR. ASR is a small part of the problem. A BCRAGD board committee is now looking at some sort of modified and-or scaled down version of the concept." This email was sent to board members Dick Connors, Don Kruckemeyer and Karen Ripley.

The AG's opinion, numbered GA-0896, cites the Texas Government Code and previous AG's opinions to conclude, "members of a governmental body need not be in each other's physical presence to constitute a quorum... Therefore, ...we conclude that electronic communications could, depending on the facts of a particular case, constitute a deliberation and a meeting that must comply with the Act."

The opinion went on to say, "We have not determined whether the electronic communications you include in your request constitute a deliberation for purposes of the Act... nor have we determined whether the members who disseminated the electronic communications violated the Act."

Both of those determinations would require further investigation on the part of the AG's office.