Access denied: City manager left out of executive session per attorney

Lambert

by ANDY SEVILLA

Kyle’s city manager was kept from participating in discussions affecting city involvement in litigations with water entities during an executive session earlier this month, though the directive did not come from council members.

Just before the executive session of the council’s Feb. 5 meeting, City Manager Lanny Lambert and City Attorney Julian Grant exchanged a few words in the council chambers that resulted in council members meeting only with Grant during executive session. Lambert stayed behind in his office.

“The only people that HAVE TO attend an executive session is the council,” council member Brad Pickett said in an email. “It has been this council’s preference to have the city manager there (and city attorney), unless discussing his performance.”

But Lambert’s performance was not on the table.

According to the meeting’s agenda, council members were to discuss litigation updates on two lawsuits the city is involved with – one against Aqua Operations, Inc., and one against the Barton Springs Edwards Aquifer Conservation District.

Council members also were to have “an attorney-client consultation, on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas conflicts with this chapter.”

“Nobody on council, including myself, knew [Lambert] was not going to be at executive session,” said Kyle Mayor Lucy Johnson.

Pickett, too, said he was perplexed at Lambert’s absence in executive session, “except for maybe the last issue of executive session on the agenda [the attorney-client consultation].”

Grant

“[Grant] told me a head of time, a couple of days before, that he needed the opportunity to meet with the city council, his bosses, and tell them about his goals, directions and ideas for his department; and to brief them regarding what he’s discovered and found, and his impressions of the city, of the organization,” Lambert said.

Respecting that privacy, Lambert said he agreed to forgo involvement in executive session during that part of the closed meeting’s agenda.

Grant said the “attorney-client consultation” in the executive session agenda was just a discussion between the council and city attorney on matters that are going to remain confidential.

“I couldn’t discuss anything about that,” Grant said. “But no, I mean [Lambert] and I did a mutual thing about that. You know, in most cities, anything that somebody wants me to meet with the attorney for some frank discussion, you know the way we handle that is, you know, kind of part of the discussion. You know what I mean; it’s just kind of the same parcel of it. But certainly a mutual decision.”

Pickett, however, said that the authority to ask someone to attend or not attend an executive session should be up to the council as a whole. Echoing him, Johnson said the council should be asked, not the city attorney, whether Lambert is to attend executive sessions.

“To be truthful… I thought they would call me back in for the litigation [discussions],” Lambert said. “But I had not spoken with the mayor about it, I had only spoken with [Grant], so I think it probably was just an oversight, I don’t think he thought about it and I don’t think the council knew why I wasn’t there.”

Grant, however, said that because he and Lambert decided it would be too early and premature to bring in outside counsel for the litigation discussions, he, too, decided not to include Lambert in those discussions on Feb. 5, because “there wasn’t anything to discuss really.”

“We took the matter up and just felt that, like I said, we’re not in a state where we have much to share with [Lambert] this was kind of a status, here we are.”

“We would have our outside counsel there to discuss it if we were really doing much in detail and certainly [Lambert] and the outside counsel and any other staff members that might have some relevance would be in there, things that are necessary for the council to be informed, but it wasn’t anything that’s of that really, it just shook out that way,” Grant said.

When told that Lambert said he thought he would be involved in the litigation update agenda item during executive session, and that Johnson said the council did not participate in the decision behind excluding Lambert from that discussion, Grant was in disbelief.

“Honestly, I assume that they haven’t been, that no one in the council would be discussing even the merits of what we talked about with you, and they’ve certainly made that aware to me,” Grant said. “So I would be cautious, I would just say be cautious there, because I wouldn’t want you or anyone else to be inciting them to violate the Open Meetings Act.”

The Hays Free Press sent an email requesting comment to all seven elected officials. In the email, questions were asked about why Lambert did not participate in the executive session and who decided that. They were also asked if discussions during that executive session deviated from the agenda, by discussing personnel matters or hearing complaints on Lambert.

Council members Samantha Bellows-LeMense, Diane Hervol and David Wilson all expressed discomfort with discussing matters of executive session.

According to a July 11, 1989 opinion by then-Texas Attorney General Jim Mattox, Section 551.146 of the Open Meetings Act “does not prohibit persons who are present at the executive session from afterwards talking about the subject matter of the session.”

Other state statutes or duties, however, may limit what a member of the governmental body may say publicly.

Grant said there was nothing “nefarious” behind the Feb. 5 executive session. “It’s just the way it procedurally was.”

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