Analysis: Kerrville's desire to keep land deals private is backed up by Texas law

The Lead requested a feasibility study on public safety complex, but the city says its waiting on a ruling from Texas Attorney General Ken Paxton about the appropriateness of releasing documents.

The war of words over Kerrville's proposed public safety building was repeated on Tuesday night with another round of accusations about the project's scope.

Except there's one problem — there is technically no project.

On Thursday, The Lead filed a public records request with the city of Kerrville seeking a copy of the feasibility study of building or renovating a building to house the police department, fire administration and municipal court. Not surprisingly, we were politely told no. We got this response back from Assistant City Attorney William Tatsch:


"Section 552.105 of the Act excepts from public disclosure "information relating to location of real or personal property for a public purpose prior to public announcement of the project;" or "appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contract for the property," Tatsch wrote in a letter to Texas Attorney General Ken Paxton about requests regarding the public safety complex.

The feasibility study was presented in 2019 but the city of Kerrville halted discussions about building when the coronavirus pandemic created economic uncertainty. At the time, City Manager Mark McDaniel went into budget cutting mode, instituted austerity measures to ensure the city was on the right financial footing and place major capital projects on the back burner.

Tatsch was articulating that the city has received previous requests in July about the public safety project, and the city sought the guidance of Paxton's office before releasing anything publicly. Paxton has 60 days to make a ruling on the accessibility of the records.

However, the likelihood of Paxton ruling to release records ahead of a proposed land deal seems unlikely. Municipalities and governmental subdivisions have significant leeway to keep real property negotiations private for competitive reasons.

Tatsch's argument to Paxton for keeping those records private was: "The city is entitled to, and must, evaluate all information it has in order to obtain the highest price for real property it is selling for the public's benefit. Such an entitlement and responsibility would be undermined or completely vitiated by the disclosure of the very information it has obtained in order to determine its negotiating position. The city should· not be required to provide any information that would undercut its basis for negotiation on the sale of real property. Consequently, it is the city's reasonable belief that this appraisal report is excepted for disclosure pursuant to Section 552.105(b) of the Texas Government Code."

Repeatedly, backers of a petition that stopped the City Council's intention to issue certificates of obligation to start the process of funding the project have said they want to see the project, the site and the cost.

"The burden on the council is to produce a project that is clearly defined and easily supported," said former councilman George Baroody during the Aug. 24 City Council meeting. "If you put out something that has no answer in it, then clearly people are going to have problems understanding it. That burden is on the Council."

The problem with Baroody's argument is that the city is trying to determine the right place to site the expanded facility in a centralized location and grow for the future. Despite his experience on the City Council, Baroody has been steadfast in his demand to see a project plan. Other speakers have repeated that message at City Council meetings, including Tuesday night.

"What is the plan for the building and its location?" said Edward Tear to the City Council on Tuesday. "How much will that proposed plan cost?"

Tatsch reasoned that the city couldn't disclose those items based on Texas Government Code because it hadn't acquired the property. The issuance of a more flexible certificate of obligation with a vote of the City Council would have given the city to purchase the land before announcing the broader building plans.

"However, the property for the Public Safety Building has not yet been located and finalized, there are no plans drafted for a Public Safety Building, and the funding has not yet been finalized," Tatsch wrote Paxton. "Once these things are accomplished, the City will officially anounce the project. Because this project has not yet been officially announced and is still in the planning phase, the location of the potential real property necessary for the project is excepted from disclosure pursuant to Section 552.105 of the Texas Government Code."

Ultimately, the decision is with Paxton, but the reality is he will most likely rule in the city's favor.

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