How much can a city council member say about an issue that is not on the agenda? That seems to be an issue of some debate among some of the members of the Commerce City Council.

Councilman and former mayor John Sands believes there should be a designated time during each council meeting when elected members can bring up items they feel need to be looked into or placed on a future agenda.

“Where else do you go to ask about things or to comment or to advise the city manager about directions you’d like to see or reports you want to do unless you do it one on one,” Sands said. “You can’t talk to the council so it all has to go through the city manager.

“To me, that’s just not the way a democracy should operate.”

Commerce Mayor Sheryl Zelhart feels the Council is doing the right thing by not letting members make additional comments.

“My concern is that we follow the law,” Zelhart said. “The law says that items that are to be discussed by the council must be posted 72 hours prior to the meeting. By law, we may not discuss items that are not on the agenda.”

Sands said many things can happen between council meetings and a situation could arise where things need to be looked into.

“According to our attorney, you can’t make a comment because it’s not on the agenda,” he said. “What do you have to do, wait another two weeks to get something started?”

City attorney Jim McLeroy said he did advise the council not to talk about items that were not included on the agenda.

“They have to give legal notice to the whole world of what they’re going to discuss and possibly take action on at meetings so that anyone who’s interested has an opportunity to appear at those meetings and participate in the decision-making process as part of open government,” McLeroy said. “So my advice to council, and it’s the advise that I take straight from the attorney general’s handbook on open meetings, is that anything that council members want to discuss has to be on an agenda item.”

Sands said he feels like he is losing some rights that ordinary citizens have.

“If anybody on the street can come up and start talking about anything, why can’t an elected official? We’re under the same rule. We can’t make a decision, but we can refer it to staff or we can put it on a future city council agenda.

“They told since I’m on the city council, I’m different. I don’t have a right to do that.”

But McLeroy said the dynamic on bringing up any issues changes when the council is in session.

“Is it appropriate to do that at council meetings when you’ve got a quorum of council there ready to act on it? That’s what the attorney general has a problem with,” McLeroy said.

“Once you establish that quorum of council members present, then the dynamics take on a whole new perspective. Now you’ve got everything you need to pass legislation.”

Sands would even like to be able to congratulate employees or groups in the city that have done something worthwhile. He would also like to be able to make announcements about upcoming events for civic and service organizations.

Both Zelhart and McLeroy said if a council member wants to make any comments, they should contact the city manager and have it placed on an agenda. Things like the congratulations and announcements can be included in the city manager’s report.

The Commerce City Council used to have a specific section on the agenda for items the council wanted to discuss. But the Texas Municipal League, propelled by some court cases, urged all cities to remove any such items from the agenda, according to McLeroy.

The TML is also pushing for all city managers’ reports to be removed from council agenda throughout the state.

The council held a workshop about the matter in December, but Sands said he is unconvinced from what he heard that the council is not allowed to make such comments.

“What’s the difference between that and a public citizen getting up and making a complaint about street lighting,” he said. “It’s not on the agenda.

“I just feel like we’re not able to conduct city business out in public where it ought to be.”

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