Sukh Kaur defends the merits of her list during a City Council meeting last Thursday. Credit: Screengrab / COSA Government Channel

A list of concerns created by Councilwoman Sukh Kaur and circulated via email among select colleagues ahead of a critical vote on a water rate increase has raised the alarm from one political expert that the exchange may have violated the Texas Open Meetings Act.

Under Texas state law, government bodies are prohibited from conducting votes out of public view and from deliberating in secret ways that could influence the outcome of public business. An illegal procedure called a “walking quorum” is considered to have taken place if policymakers hold meetings or discussions outside of a posted meeting.

Kaur’s email list — which included improvements she and others on the dais wanted to see from San Antonio Water System (SAWS) and its CEO Robert Puente — was only circulated to a limited number of council members prior to Thursday, June 18’s vote on whether to let the city-owned utility raise rates. The document also called for an audit of SAWS’ spending before council would approve a rate hike.

Jon Taylor, who chairs the University of Texas at San Antonio’s political science department, said a list laying out demands before a vote by the whole council should raise a red flag.

“It’s not to say that councilmembers don’t text each other and talk,” Taylor said. “But, if you’re putting together something like a list, then that suggests to me that you’re at least attempting to skirt the spirit of the Texas Open Meetings Act.”

Further raising concern, District 2 Councilman Jalen McKee-Rodriguez maintained in a social media post Kaur’s “list” influenced the outcome of the June 18 vote.

‘He said, she said’

During council’s A session last Thursday, the dais descended into a “he said, she said” debate over the list Kaur admitted to creating and sending to only certain members of council.

District 3 Councilwoman Phyllis Viagran, District 8 Councilwoman Ivalis Meza Gonzales and San Antonio Mayor Gina Ortiz Jones said during discussions that they never received the list.

Meanwhile, McKee-Rodriguez, City Attorney Andy Segovia, SAWS CEO Puente, District 4 Councilman Edward Mungia and District 7 Councilwoman Marina Alderete Gavito said they had either seen the list or contributed to it prior to the meeting.

Viagran, who was upset she didn’t receive the list, expressed concern during the meeting that council could be veering into a walking quorum.

“If we’re going to have issues in terms of a walking quorum, that should be discussed in executive session, since it is a compliance issue,” city attorney Segovia said. “Second, the list that was shared with me. I understood it as a list of issues that some of the council members had concerns about. And, I made it clear that whatever vote that is taken today can’t be contingent on either the CEO, Mr. Puente, or the board taking certain actions, certainly, as the rate-making. You can ask all the questions you want, and raise whatever issues you want, but whatever vote is taken can’t be tied to a particular action by either Mr. Puente or the board.”

Defining a walking quorum

After reviewing footage of the meeting, San Antonio-based political attorney Andrew Cates said it would be hard to prove council members participated in a walking quorum. To establish that one took place, a prosecutor — in this case, the Bexar County District Attorney’s office — would need to prove some members knowingly conspired to effect the outcome of the vote.

“So much of the statute requires that it was ‘knowing,’” Cates told the Current. “Let’s say a council member sends [the list] to a couple of people, and then sends it to a couple of other people, then whatever. If it were a giant email chain, then it would be an obvious violation of the Texas Open Meetings Act. If anybody in it knew at the time they engaged in the communication that the whole series of emails would involve a quorum and would constitute a ‘deliberation’ over the issue, then at that point, it’s a violation.”

In a statement to the Current, city attorney Segovia said “a list of concerns shared with fellow council members does not constitute a walking quorum.”

“Legal advice was provided and remains confidential,” he added.

Mayor Jones echoed Segovia’s sentiments that the email list didn’t constitute a walking quorum during her Monday appearance on Texas Public Radio’s The Source with Davie Martin Davies. Even so, she added that she had concerns about the contents of Kaur’s list, which demanded “an executive session, presented by the SAWS Board, addressing succession planning for the executive management team.”

“Some of the items on that list, I’m very concerned, veer into what is not the purview of this body, and more so are related to operations and personnel, which is squarely in the bucket of the [SAWS] board,” Jones said. “We want to make sure that we are certainly compliant but also are not inviting any undue attention to ourselves — needlessly.”

Indeed, the SAWS Board, not City Council, is charged with making hiring and personnel decisions at the utility. Jones is the only member of the council dais who also sits on the SAWS board.

Conspiracy or conversation?

Kaur didn’t respond to the Current’s request for comment about whether she was intentionally trying to change the outcome of Thursday’s vote with her list of concerns.

However, McKee-Rodriguez, who was an active participant in the comments section of an Instagram video of the meeting, said Kaur’s list did influence the outcome of council’s 6-5 vote to postpone a decision on the proposed rate hike and delay further discussion.

“The reality is, if we had taken the vote a few days ago, there would have been no delay,” McKee-Rodriguez said. “It would have failed. Sukh tried to build a consensus toward a ‘Yes’ vote at a later date, but the ‘Yes’ votes wanted this over, whether it passed or failed. No one else was trying to build that consensus until her.”​

Attorney Cates said if prosecutors wanted to establish that the list constituted a walking quorum, they would need to prove Kaur was trying to influence the outcome of the vote and also prove others involved in the exchange knew her intentions, according to Cates.

That would be difficult to establish, the attorney added.

Even if the list doesn’t constitute a walking quorum, per se, UTSA’s Taylor said it does raise questions why some on council would exclude others from a conversation of such potential significance.

“The wonderful thing about media exposure is it’s like Clorox or Windex on city government — it cleans everything in terms of being able to see what’s really going on,” Taylor said.

While the chances of any kind of prosecution moving forward appear slim, all that’s required to spark a formal investigation is for a citizen to file a formal complaint with the Bexar County District Attorney’s Office. No such complaint has been filed as of press time, the office told the Current in a statement.

If found guilty of violating the Texas Open Meetings Act, a misdemeanor, Kaur and any alleged co-conspirators could face fines of up to $500 and up to six months in the county jail.

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Michael Karlis is a multimedia journalist at the San Antonio Current, whose coverage in print and on social media focuses on local and state politics. He is a graduate of American University in Washington,...