Feb. 26, 2004, 12:34AM

Governor meets with agencies' leaders in secret
New council bucks tradition

AUSTIN -- Gov. Rick Perry on Wednesday convened the first meeting of the Governor's Management Council, and open-government advocates promptly criticized him for locking the public out of the proceedings.

The new council consists of the governor and the heads of 11 "executive branch" agencies that implement policies for education, health and human services, transportation, insurance, environmental concerns and more.

"Our success in achieving our goals will not be measured only by the passage of legislation but also by the execution and efficiency of state agencies that have set the right priorities," Perry said in brief comments before ushering reporters from the meeting room.

The governor's office issued written information on topics and ideas the governor reportedly discussed with agency heads: fraud prevention, agency budget "transparency," economic development and physical fitness for obese Texans.

Historically, Texas governors have not had formal Cabinets. While the new council is not a Cabinet itself, Perry has increasingly consolidated his power in a series of new laws that reorganized state government.

In the past, agency heads discussing policy with their governing boards were required to do so in public meetings. The government reorganization, however, has eliminated some of those boards.

"For true free flow of information, I think to close the doors to talk to those agency heads about what's going on over there, it's quite appropriate to close the doors," Perry said when asked why he thought excluding the public was appropriate.

Perry said the presence of news reporters, in particular, could inhibit "clear and truthful" discussions by public officials. He described the thought process officials might have if the process were open:

"There may be someone saying, `Well, you know what? I don't know whether this idea that I've got I really want to be tagged with. Maybe I haven't thought it completely through,' " he said.

Yet, several open-government advocates questioned whether the meetings of Perry's Management Council violate either the letter or the spirit of the Texas Open Meetings Act.

"I think it's reasonable to assume that important issues of public policy are going to be discussed," said Kathy Mitchell, an open-government specialist at nonprofit publisher Consumers Union.

"I think that it's critical that the governor's office respect the traditions that Texas has abided by for decades and conduct important policy work with his leadership in public," she said.

The governor's staff contended the meetings do not fall under the Texas Open Meetings Act because they are not "deliberate." While the governor could make the meetings open to the public, he is not required by law to do so, his staff argued.

Tom "Smitty" Smith, Texas director of the Ralph Nader-founded watchdog group Public Citizen, said the legal test is whether the group engages in "executive functions," such as conducting policy-making decisions.

"The very name in and of itself would indicate to me that its function is to manage the state, which is inherently an executive function," Smith said. "There's no justification for it not to be open. Why else are they meeting except to decide how the state is to operate?"

Suzy Woodford at the government watchdog group Common Cause said legalities or not, the taxpaying public has a right to know what its government is doing.

"They all seem to have forgotten they're public servants and they're being paid by the taxpayers," she said. "Nobody elected them king. We thought we were electing a public servant that would be receptive to the public's input."

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