Open Meetings; Bob Moore and Journalistic Ethics, and, oh yea Susie Byrd Did the Right Thing

Correction, August 18, 2013 at 9:00am: Yesterday it was brought to my attention that I had inadvertently removed some journalists from the discussion thread during my transcription. It was also pointed out to me that the executive session was called by Dee Margo based on “personnel matters”, which is a permissible use of the executive session. Since I am not sure who the other journalists are, I am reproducing the entire discussion thread at the end of the post. Scroll to the bottom to see the entire thread.

What!? Yes, I know but I have to give credit where credit is due, in this case Susie Byrd did the right thing. However, before jumping right in to why Byrd did the right thing let me first set the stage because as usual the local media coverage is lackluster, at best.

As you might already know, El Paso Independent School District (EPISD) announced that Juan Cabrera was a finalist for superintendent on August 13, 2013. The process is suspect at best and there are many questions about how he was selected. For now, I’m just going to focus on the fact that EPISD invited school board members into the closed session where Cabrera was interviewed by the Board of Managers. It is important to note that the school board members have no standing at this moment because they have been relieved of their authority by the State of Texas.

Susie Byrd was present but she declined to enter the proceedings, because she correctly pointed out that she had not taken the oath of office yet.

Susie Byrd was right not to accept the invitation to participate in the school district’s closed session.

Texas has very strong open government laws in place, and recently enacted even stronger authority for the community to be informed of the activities of the government. There is one exception to the open government doctrine and that is to give government entities an opportunity to discuss client-attorney privileged items in closed session, as well as confidential matters about employees without the public listening in. However the topics of discussions in a closed session are very limited.

An aspect that the media has not addressed is that under Texas law, it is my understanding that client-attorney privilege is automatically waived when the client and the attorney opens the discussion to other parties.

If my understanding on this is correct then, the school district’s board of managers has inadvertently opened a door by which activists can request a transcript of the proceedings that transpired during that executive session. This is because executive sessions are meant for conducting private client-attorney privilege discussions. If, I’m correct in my understanding of the attorney-client relationship in Texas then by inviting inactive members of the school board, EPISD has in effect released their client-attorney privilege thus making the executive session a matter for the public record.

As you all know I’m a frequent critic of the El Paso Times’ lack of journalistic ethics. I am especially critical of Bob Moore’s actions at the paper that to me showcase serious lapses in journalistic ethics on his part. Whenever I point those out invariably I’m challenged by his supporters in my lack of formal journalism training.

A reader recently pointed me to an exchange between Debbie Nathan and Bob Moore on Facebook where Nathan challenges Bob Moore by arguing that Bob Moore committed a journalistic faux pas by injecting himself into the story rather than reporting on it, as he should have done.

I have numerous times commented on how the El Paso Times, and especially Bob Moore become part of the story rather than keeping, a distant and objective point of view and reporting on the outcome. However, I am just a critic without the formal training to challenge the journalistic-integrity of Bob Moore. Therefore I think it is best if Debbie Nathan, a documented journalist with decades of experience and a former reporter for the El Paso Times, lays it out for us.

Below is the Facebook exchange between Bob Moore and Debbie Nathan. The only thing I removed were comments by non-journalists or comments not germane to the exchange. I have quoted the exchange exactly as it appeared on Facebook on August 13, 2013, including typographical and grammatical errors.

Bob Moore started the thread as follows:

At the outset of tonight’s EPISD Board of Managers meeting, I lodged an objection when the board invited school board members in attendance to join them in closed session to interview a superintendent candidate. State law prohibits government bodies from admitting members of the public from attending closed session. The TEA has repeatedly said the school board has no authority while the board of managers is in place. Four of the board members, elected this spring, have never taken an oath of office. I made the objection after consulting two attorneys from the Freedom of Information Foundation of Texas.

BoM Chair Dee Margo overruled my objection, then came out a short time later and said a TEA and district lawyer had both OK’d the arrangement.

Five of the seven school board members joined the five BoM members in executive session. Susie Byrd declined to attend after hearing my objection. David Dodge was absent.

I still believe this is an illegal executive session by the BoM. I don’t think it will impact tonight’s expected announcement of a superintendent finalist. But process matters a lot, especially in a district trying to rebuild public trust.

Bob Moore adds as a reply:

Should say prohibits government bodies from inviting members of the public “to” executive session

Debbie Nathan writes:

Bob, were you at the meeting in your capacity as a private citizen or as a reporter for the Times? If the latter, by “lodging an objection” (rather than, for example, asking a reporter’s question about the issue at hand), you inserted yourself into the story and you changed the story. If you were a private citizen, was a Times reporter there as well? Can you please explain? Your post is very puzzling.

Bob Moore replies:

Debbie, I’m never not the editor of the El Paso Times, much as I would like to get away sometimes. I have trained journalists who work for me over the years that they need to object when they perceive the open meetings act is being violated. That’s not unusual among newspaper editors. We don’t like to insert ourselves in to stories, but sometimes there’s no one else who is in a position to stand up. I found out about this plan shortly before the meeting and provided a copy of the relevant attorney general opinion to the board chair and attorney via email before the meeting. Unfortunately, neither had checked their email. That left me no choice but to object to what I believed was an illegal meeting. Probably the third or fourth time in my journalism career I’ve done so.

Bob Moore adds:

Also, there is a Times reporter and TV media present at the meeting.

Debbie Nathan replies:

Bob, I am not aware that violations of open meetings acts constitute special grounds for reporters or editors to insert themselves into stories by making objections — any more than the observation of any other wrongdoing are grounds. Can you cite some professional precedent or codification — other than your own opinion or past actions — justifying this? I can certainly see a member of the press consulting with attorneys after learning of the circumstances you’ve described. I can see that media person showing the determination of the attorneys to the EPISD board of managers and asking, as a reporter, what’s going on. But that’s not “lodging an objection.” It’s just stating a fact in the context of asking a reporter’s question. Is that what you meant?

Debbie Nathan adds:

To clarify: I can remember a few times, while working as a reporter for the El Paso Times, that I witnessed government officials breaking the law (specifically, agents of the INS and the Border Patrol). In these instances I did not “object” to what I saw. I watched it, asked the agents if they knew they were breaking the law and to give me a response about that. Then I reported. Is this not what Times people are supposed to do?

Martin Bartlett interjects:

Isn’t changing the story the very essence of journalism?

Bob Moore replies:

Here’s an example of the kind of card many members of the media have long carried in case of an open meetings violation.

This is the link Bob Moore provides: How to Object to a Closed Meeting: panewsmedia.org What to do when a meeting is closed Provided by the PENNSYLVANIA NEWSMEDIA ASSOCIATION (717) 703-3000 (Mr. Or Madame Chairman): I am _______, a reporter for__________newspaper. I protest the closing of this meeting, the reason you have listed for closing the meeting does not meet the provisions of P…

Debbie Nathan replies to Martin Bartlett:

Martin, you write a story, it goes out into the universe, you hope people will use the information but you can’t predict how that will happen or if it will happen — meanwhile, no, you don’t show up to places with reporter’s notebook in hand, aiming to change the immediate course of the very events you’re covering.

Debbie Nathan replies to Bob Moore:

Bob, re above card: that objection refers to when the reporter can’t get into the meeting, nor can any member of the public. In your case, you objected that they let certain members of the public in–i.e. that the meeting was (partially) opened. If you’d wanted to be consistent with the professional principle, you should have demanded that you, too, plus all the members of the public in the room besides the elected school board, be allowed into the meeting.

Martin Bartlett replies:

Debbie, then why have journalism at all?

Debbie Nathan replies to Martin Bartlett:

So that people will know what’s going on.

Martin Bartlett replies:

But they won’t know what’s going on if no one stands up for open meetings rules.

Debbie Nathan replies to both:

Martin, Bob wasn’t objecting about an improperly closed meeting that he and you and I couldn’t attend. He was objecting that it was just a little bit open. He seems to have preferred that it be COMPLETELY closed to the public. Hardly a journalism stance.

Martin Bartlett replies:

Huh?

Bob Moore replies:

Debbie, I objected because they were violating a very specific transparency law. I did not get to the point of suggesting a remedy because my objection was denied. I would have loved to have had time to hire a lawyer and have her wage the fight on the public’s behalf. Again, I don’t like interjecting the media in to the story. But there’s a rich history of the media standing up for transparency — filing suit to block courtroom closures, taking legal action to free public documents,

Bob Moore adds:

objecting to attempts to improperly close public meetings, etc.

Debbie Nathan replies:

Bob, you didn’t object that YOU and your reporter and the TV person weren’t allowed at the meeting so you could witness it. Along with the rest of the public. That’s the only acceptable objection you could have made as a journalist. Anything else should have been reportage. You needlessly intervened in a story. End of discussion.

David Crowder interjects:

Don Flores would have done it too! Right?

Clearly, I am not the only one that believes Bob Moore does not have the journalistic integrity, nor understanding to lead the city’s only English daily. And, now, a professional journalist seems to agree with me as well.

Complete transcribed discussion thread added on August 18, 2013

Bob Moore: At the outset of tonight’s EPISD Board of Managers meeting, I lodged an objection when the board invited school board members in attendance to join them in closed session to interview a superintendent candidate. State law prohibits government bodies from admitting members of the public from attending closed session. The TEA has repeatedly said the school board has no authority while the board of managers is in place. Four of the board members, elected this spring, have never taken an oath of office. I made the objection after consulting two attorneys from the Freedom of Information Foundation of Texas. BoM Chair Dee Margo overruled my objection, then came out a short time later and said a TEA and district lawyer had both OK’d the arrangement. Five of the seven school board members joined the five BoM members in executive session. Susie Byrd declined to attend after hearing my objection. David Dodge was absent. I still believe this is an illegal executive session by the BoM. I don’t think it will impact tonight’s expected announcement of a superintendent finalist. But process matters a lot, especially in a district trying to rebuild public trust.

Bob Moore: Should say prohibits government bodies from inviting members of the public “to” executive session.

Debbie Nathan: Bob, were you at the meeting in your capacity as a private citizen or as a reporter for the Times? If the latter, by “lodging an objection” (rather than, for example, asking a reporter’s question about the issue at hand), you inserted yourself into the story and you changed the story. If you were a private citizen, was a Times reporter there as well? Can you please explain? Your post is very puzzling.

Trevor Hughes: I know who my money is on in this case…

Bob Moore: Debbie, I’m never not the editor of the El Paso Times, much as I would like to get away sometimes. I have trained journalists who work for me over the years that they need to object when they perceive the open meetings act is being violated. That’s not unusual among newspaper editors. We don’t like to insert ourselves in to stories, but sometimes there’s no one else who is in a position to stand up. I found out about this plan shortly before the meeting and provided a copy of the relevant attorney general opinion to the board chair and attorney via email before the meeting. Unfortunately, neither had checked their email. That left me no choice but to object to what I believed was an illegal meeting. Probably the third or fourth time in my journalism career I’ve done so.

Bob Moore: Also, there is a Times reporter and TV media present at the meeting.

Kathy Anderson: Scary night for me. I can see them picking someone like Moses in Dallas.

Debbie Nathan: Bob, I am not aware that violations of open meetings acts constitute special grounds for reporters or editors to insert themselves into stories by making objections — any more than the observation of any other wrongdoing are grounds. Can you cite some professional precedent or codification — other than your own opinion or past actions — justifying this? I can certainly see a member of the press consulting with attorneys after learning of the circumstances you’ve described. I can see that media person showing the determination of the attorneys to the EPISD board of managers and asking, as a reporter, what’s going on. But that’s not “lodging an objection.” It’s just stating a fact in the context of asking a reporter’s question. Is that what you meant?

Debbie Nathan: To clarify: I can remember a few times, while working as a reporter for the El Paso Times, that I witnessed government officials breaking the law (specifically, agents of the INS and the Border Patrol). In these instances I did not “object” to what I saw. I watched it, asked the agents if they knew they were breaking the law and to give me a response about that. Then I reported. Is this not what Times people are supposed to do?

Lisa Ann Schoenbrun: Wish I could comment

Martin Bartlett: Isn’t changing the story the very essence of journalism?

Bob Moore: Here’s an example of the kind of card many members of the media have long carried in case of an open meetings violation. Link: http://panewsmedia.org/legal/openmeetings/objecting

Debbie Nathan: Martin, you write a story, it goes out into the universe, you hope people will use the information but you can’t predict how that will happen or if it will happen — meanwhile, no, you don’t show up to places with reporter’s notebook in hand, aiming to change the immediate course of the very events you’re covering.

Debbie Nathan: Bob, re above card: that objection refers to when the reporter can’t get into the meeting, nor can any member of the public. In your case, you objected that they let certain members of the public in–i.e. that the meeting was (partially) opened. If you’d wanted to be consistent with the professional principle, you should have demanded that you, too, plus all the members of the public in the room besides the elected school board, be allowed into the meeting.

Martin Bartlett: Debbie, then why have journalism at all?

Debbie Nathan: So that people will know what’s going on.

Martin Bartlett: But they won’t know what’s going on if no one stands up for open meetings rules.

Debbie Nathan: Martin, Bob wasn’t objecting about an improperly closed meeting that he and you and I couldn’t attend. He was objecting that it was just a little bit open. He seems to have preferred that it be COMPLETELY closed to the public. Hardly a journalism stance.

Martin Bartlett: Huh?

Bob Moore: Debbie, I objected because they were violating a very specific transparency law. I did not get to the point of suggesting a remedy because my objection was denied. I would have loved to have had time to hire a lawyer and have her wage the fight on the public’s behalf. Again, I don’t like interjecting the media in to the story. But there’s a rich history of the media standing up for transparency — filing suit to block courtroom closures, taking legal action to free public documents, o

Bob Moore: objecting to attempts to improperly close public meetings, etc.

Debbie Nathan: Bob, you didn’t object that YOU and your reporter and the TV person weren’t allowed at the meeting so you could witness it. Along with the rest of the public. That’s the only acceptable objection you could have made as a journalist. Anything else should have been reportage. You needlessly intervened in a story. End of discussion.

Jan Risher: Bob Moore, you are a wise, wise man.

Keith Townsend: Correct, Bob.

Rafael Adame: Thx for the intelligent & civil discourse regarding this matter. However I’m puzzled by their action.

Carlos Sanchez: Thanks for standing up for transparency, Bob. I note your objection and sustain it as completely appropriate for a journalist.

Debbie Hiott: Agreed. The point is that once non ‘executives’ are brought into an ‘executive session,’ it’s no longer a closed meeting to the public, and thus should be opened to all. Bob’s objection makes perfect sense to me.

Dan Wever: You or I could not have attended Bob and the old board members have no more standing than us. This is nuts! It is good to know at least Susie had enough sense to stay out.

Carolyn Rhea Drapes: Thank you, Bob, and thank you, Susie Byrd.

Daniel Dooly: Here we go again with the Central office little kingdom.

Mary Carraher: Glad you are still out there fighting for our right to know!!

Daniel Dooley: Closed meetings for PUBLIC schools is moronic. Oops oxymoronic. Demagogues

Daniel Dooley: Thanks Bob, nice call.

Ross Moore: Welcome to the Philippines under Marcos or Panama under Noriega. Been there, done that.

David Crowder: Don Flores would have done it too! Right?

Joshua Byers: You’re right on this … you wouldn’t believe what they get away with in Kentucky!

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