Untitled Texas Attorney General Opinion

ATTORNEYGENERAL OF TEXAS
GREG ABBOTT

January 3 1,2007

The Honorable Kurt Sistrunk Opinion No. GA-05 11
Galveston County Criminal District Attorney
600 59th Street, Suite 1001 Re: Whether the Open Meetings Act, Government
Galveston, Texas 77551-4137 Code chapter 55 1, permits a governmental body to
admit selected members of the public into a closed
meeting (RQ-0496-GA)

Dear Mr. Sistrunk:

You ask whether a meeting of a school district board of trustees complied with the Texas
OpenMeetings Act, chapter 551 ofthe Government Code (the “Act”).’ See TEX. GOV'TCODEANN.
ch. 55 1 (Vernon 2004 & Supp. 2006). Your questions relate to Government Code section 551.074,
which authorizes a governmental body to conduct certain deliberations about its officers and
employees in a closed meeting. See id. 5 551.074 (Vernon 2004).

1. Background

You describe a school board meeting at which the board met in a closed session to evaluate
the school superintendent and to consider whether to renew his contract, a matter of significant local
interest. See Brief, supra note 1, at 1. The board convened in an open meeting with a quorum
present, announced a meeting closed pursuant to section, 551.074, and adjourned into the closed
meeting. The superintendent did not object to the closed meeting or participate in it, nor did he
request an open meeting. See id.

It has been alleged that the board brought members of the public into and out of the closed
meeting in the following manner: A board member would come out to where the public was sitting,
ask who wanted to “give input (i.e., say something),” and choose a person from those who raised
their hands to go into the closed meeting. See id. A member of the news media attending the public
meeting asked to go into the closed meeting but was denied entry. See id. After concluding the
closed meeting, the board reconvened in open meeting but took no action on the item posted
for deliberation in the closed ,meeting. See id. At a later meeting the board renewed the
superintendent’s contract. See id.

‘LetterfromHonorableKurt Sistrunk,GalvestonCountyCriminalDistrictAttorney,toHonorableGregAbbott,
Attorney General of Texas (May 23, 2006) (on tile with the Opinion Committee, also available af
http://wwwoag.state.tx.us)[hereinakr Request Letter], Brief attachedto Request Letter [hereinafterBrie&
The Honorable Kurt Sistrunk - Page 2 (GA-051 1)

Your request “is precipitated by an assertion that such conduct is permissible under [section]
55 1.074(a)(2), since a governmental body may conduct a closed session to hear a complaint.” Id. ;
see TEX. GOV’T CODE ANN. 5 551.074(a)(2) (V ernon 2004). You seek advice on the following
issues:

1.) the adequacy of notice under Texas Government Code Section
551.074 to authorize an executive session* consistent with [the Act]
when the notice does not specify which subsection the governmental
body is relying upon and listed items pertain only to one subsection;

2.) the permissibility of selectively including members of the public
(to the exclusion of other members of the public and the exclusion of
news media) in a session closed pursuant to [Section] 55 1.074; and

3.) the construction of Texas Government Code Section 551.144
[criminal penalty for unauthorized closed meeting] and whether
inadequacy of notice and/or the selective inclusion of members of the
public into a session closed under [Section] 551.074 defeats the
exception such that the closed session is not permitted under [the Act]
for purposes of the criminal offense provision.

Request Letter, supra note 1, at 1 (footnote added).

II. Analysis

The Act requires meetings of governmental bodies to be open to the public, except for
expressly authorized closed meetings, and to be preceded by written notice of the time, place, and
subject matter of the meeting. See TEX. GOV’T CODE ANN. 53 55 1.002, ,041 (Vernon 2004). Your
questions pertain to section 55 1.074 of the Act, which provides as follows:

(a) This chapter does not require a governmental body to
conduct an open meeting:

(1) to deliberate the appointment, employment,
evaluation, reassignment, duties, discipline, or dismissal of a public
officer or employee; or

2Theterm “executive session” is sometimes used to mean “closed meeting,” even though the latter is the
statutory language. See TEX.GOV’T CODE ANN 3 551.101 (Vernon 2004). Before the Act was recodified as
GovernmentCode chapter 551 in 1993,both “executivesession”and “closedmeeting”appeared in it. See Act of Apr.
3, 1973,63d Leg., RX, ch. 3 I, 5 2, 1973Tex. Gen. Laws 45,45-46, as amended by Act of May 31, 1987,7OthLeg.,
R.S., ch. 549, $5 l-6, 1987Tex. Gen. Laws2211,2211-14, repealedbyActofMay4, 1993,73dLeg., R.S., ch. 268,
$5 1,.46,1993Tex. Gen.Laws583,591,9X6(nonsubstantiverevisionofstatutesrelatingto state and localgovernment).
The Honorable Kurt Sistrunk - Page 3 (GA-05 11)

(2) to hear a complaint or charge against an officer or
employee.

(b) Subsection (a) does not apply if the officer or employee
who is the subject of the deliberation or hearing requests a public
hearing.

Id. 5 551.074.

A. Sufficiency of notice

The notice posted for the school board meeting included the following:

Section 551.074 - For purposes of considering the appointment,
employment, evaluation, reassignment, duties, discipline, or dismissal
of a public officer or employee or to hear complaints or charges
against a public officer or employee

(a.) Contract extensions of Administrative Staff - Assistant
Superintendents, Directors, Principals and Assistant Principals

(b.) Deliberation regarding evaluation of the Superintendent

(c.) Consider approval of the Superintendent’s contract

(d.) Discuss duties and responsibilities of the Superintendent and
Board members

Brief, s~pra note 1, at 1.

The notice of a meeting must include all subjects that a governmental body will discuss,
including those that may be discussed in a closed meeting. See Cox Enters., Inc. v. Bd. ofTm., 706
S.W.2d 956,958 (Tex. 1986). It must inform the public of action taken at the meeting, and an action
is subject to judicial invalidation if the notice is inadequate. Point Isabel Indep. Sch. Dist. v.
Hinojosa, 797 S.W.2d 176, 180 (Tex. App.-Corpus Christi 1990, writ denied); see TEX. GOV’T
CODE ANN. § 55 1.14 1 (Vernon 2004) (an action taken by a governmental body in violation of the
Open Meetings Act is voidable). The notice requirement is intended to benefit members of the
interested public, rather than individuals affected by a governmental body’s decisions. See Rettberg
v. TeX. Dep’t ofHealth, 873 S.W.2d 408,411 (Tex. App.-Austin 1994, no writ). Notice must be
sufficiently specific to inform the general public of the subjects to be considered during the meeting,
and more specificity is required when the subject slated for discussion is of special interest to the
public, See Cox Enters., Inc., 706 S.W.2d at 958; Rettberg, 873 S.W.2d at 41 l-12; Point Isabel
Indep. Sch. Dist., 797 S.W.2d at 1SO-8 1. While the notice must state the topic of discussion, it need
not state all of the possible consequences resulting from consideration of the topic. See Tex. Tpk.
Auth. v. City of Fort Worth, 554 S.W.2d 675, 676 (Tex. 1977).
The Honorable Kurt Sistrunk - Page 4 (GA-051 1)

Neither the Act nor judicial decisions require the notice to state the section number of the
provision authorizing the closed meeting. In Rettberg, the State Board of Examiners of Professional
Counselors voted at a meeting to recommend termination of its executive secretary. See Rettberg,
873 S.W.2d at 411-12. The notice of this meeting read in part:

[T]he board will meet in executive session3 to discuss the evaluation,
designation and duties of the board’s executive secretary; and the
board will meet in open session to discuss and possibly act on the
evaluation, designation and duties of the board’s executive secretary.

Id. at 410 (footnote added). This notice item did not refer to section 551.074, the provision
authorizing a closed meeting in cases involving the appointment, employment, evaluation,
reassignment, and other matters concerning a public officer or public employee. The Rettberg court
held that the notice complied with the Act. See id. at 412.

In Weatherford v. City of&n Marcos, the city council held a meeting to discuss a property
owner’s application to rezone his land for commercial development. Weatherford v. City ofSun
Marcos, 157 S.W.3d 473,478 (Tex. App.-Austin 2004, pet. denied). The city council went into
a closed meeting pursuant to section 551.071 of the Government Code to seek the city attorney’s
advice about “the Weatherford future land use plan amendment.” Id. at 48 1. The notice of the
meeting listed consideration of adopting a specific amendment to the city’s land use plan and noted
that the city council might adjourn into executive session to consider items appropriate for executive
session discussion. See id. at 486. The notice did not, however, refer to Government Code section
55 1.071. See id. The court found the published notice sufficient to comply with the Act. See id.
Thus, the notice of a closed meeting~need not cite the section number or numbers of the Open
Meetings Act provisions authorizing the closed meeting. Accordingly, the notice does not need to
refer by number to specific subsections of the Act.

We need not consider whether the notice was sufficient to inform the public that the school
board would hear complaints pursuant to section 551.074(a)(2) because, as discussed infra, we
observe that the board did not in fact adjourn into the closed meeting to hear complaints.

B. Admission of selected members of the public into a closed meeting

You next ask whether a governmental body may selectively include members of the public
in a meeting closed pursuant to section 55 1.074, while excluding other members of the public and
members of the news media. See Request Letter, supra note 1, at 1: This office has not considered
whether a governmental body may admit members of the public to a meeting closed under section
55 1.074 or any other provision authorizing a closed meeting. We look to the Open Meetings Act
to address this issue. A~court will ordinarily look first at the statute’s plain and common meaning.
See Meritor Auto., Inc. V. Rum Leasing Co., 44 S.W.3d 86, 89 (Tex. 2001). It may also consider

‘The notice need not state that a particular agenda item may be discussed in closed session, although many
governmentalbodies post a notice that includes this information. See Tex. Att’y Gen. Op. No. K-0057 (1999) at 6.
The Honorable Kurt Sistrunk - Page 5 (GA-05 11)

the purposes for which the statute was enacted. See TEX. GOV’T CODE ANN. 5 3 11.023(l) (Vernon
2005). The Act’s purposes are “to enable public access to and to increase public knowledge of
government decisiomnaking.” City ofsan Antonio v. Fourth CouriofAppeals, 820 S.W.2d 762,765
(Tex. 1991); see Finlan v. C@ ofDallas, 888 F. Supp. 779,783 (N.D. Tex. 1995) (the public policy
embodied in the Act is that, “absent compelling reasons to the contrary, the public business should
be conducted in public”). We also keep in mind that the Open Meetings Act is to be liberally
construed in favor of open government. See Willmann v. City ofSan Antonio, 123 S.W.3d 469,473
(Tex. App.-San Antonio 2003, pet denied); Toyah Indep. Sch. Dist. v. Pecos- Barstow Indep. Sch.
Di& 466 S.W.2d 377, 380 (Tex. Civ. App.-San Antonio 1971, no writ).

The Act provides that “[e]very regular, special, or called meeting of a governmental body
shall be open to the public, except as provided by this chapter.” TEX. GOV’T CODE ANN. 5 55 1.002
(Vernon 2004). “Open” is defined as “open to the public.” Id. 5 55 1.001(5). The Legislature has
moreover defined “[cllosed meeting” as “a meeting to which the public does not have access.” Id.
5 551.001(l). The courts have reiterated this definition. See Cox Enters., Inc., 706 S.W.2d at,958
(an executive session is a meeting, “even if properly convened and closed to the public”); Rivera v.
City oflaredo, 948 S.W.2d 787,789 n.1 (Tex. App.-San Antonio 1997, writ denied) (an executive
session “is a meeting or part of a meeting closed to the public”) (citing Cox Enters., Inc., 796 S.W.2d
at 957). We rely on the Act’s definitions of “open” and “closed meeting” to construe the Act. See
TEX. GOV’T CODE ANN. 5 311.01 l(b) (Vernon 2005) (words and phrases that have acquired a
particular meaning by legislative definition shall be construed accordingly).

The school board asserts that its conduct was permitted by section 551.074(a)(2), which
provides that a governmental body is not required to conduct an open meeting “to hear a complaint
or charge against an officer or employee.” TEX. GOV’T CODE ANN. $55 1.074(a)(2) (Vernon 2004).
We need not address this provision, because you informed us that the school board did not invite
selected members of the public into the closed meeting so that it could “hear complaints or charges
against an officer or employee.” It invited members of the audience into the closed meeting to “give
input” about the superintendent. However defined, the terms “complaint” and “charge” are narrower
in scope than “input.” See WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 269 (9th ed. 1983)
(defining “complaint” to include (1) an expression of grief, pain, or dissatisfaction, (2) the cause or
subject of protest or outcry, and (3) a formal allegation against a party); id. at 227 (defining “charge”
to include “accusation,” “statement of complaint or hostile criticism”); id. at 624 (defining “input”
to include advice, opinion, comment). In the situation you describe, the board in effect attempted
to hold a “public comment” session about the superintendent in a closed meeting, and thereby failed
to comply with the Act. See Tex. Att’y Gen. Op. No. JC-0169 (2000) (public comment session).

We note that this office has concluded that a governmental body may, in the exercise of
reasonable discretion, include in a closed meeting any of its officers4 and employees whose
participation is necessary to the matter under consideration and whose interests are not adverse to

“Two opinions of this office consider whether a commissioners court may adlnit independent county officers
into a closed meeting. See Tex. Att’y Gen. Op. Nos. JC-0506 (2002), JM-238 (1984). This office has not considered
whether an entity other than a commissioners court might admit independentpublic officers into its closed sessions.
The Honorable Kurt Sistrunk - Page 6 (GA-051 1)

the governmental body’s interests that the closed meeting protects. See Tex. Att’y Gen. Op. No.
JC-0375 (2001) at 2 (school board may require its superintendent to attend all of its closed~
meetings); see also Tex. Att’y Gen. Op. Nos. JC-0506 (2002) at 6 (commissioners court may include
county auditor in closed meeting), JM-238 (1984) at 5 (commissioners court, meeting in closed
session to discuss pending litigation with its attorney, may admit to closed session those county
officers and employees within the attorney-client privilege of commissioners court). While a
governmental body’s officers and employees are not board members entitled to attend closed
meetings, they are not “members of the public” in relation to their board. See Tex. Att’y Gen. Op.
No. JC-0375 (2001) at 2 (school superintendent). It is our understanding, however, that in the case
you describe the persons admitted to the closed meeting were not limited to officers and employees
whose presence was necessary.

Having found no provision of the Open Meetings Act authorizing the school board’s
inclusion of members of the public in its closed~ meeting, we finally note that a law other than the
Open Meetings Act may permit a third party to participate in a closed meeting. For example, a third
party might be admitted to a closed meeting as an employee’s representative or as a witness. See,
e.g., TEX. EDUC. CODE ANN. 5 21.207 (Vernon 2006) (hearing under term contract). In the case you
describe, however, the members of the public admitted into the closed meeting were not authorized
by a law other than the Act to be admitted to a closed meeting. Accordingly, in answer to your
second question, it was improper under the Open Meetings Act for the board to have admitted the
selected members of the public into the meeting closed under section 551.074.

C. Whether the board’s closed meeting was “not permitted” under section 551.144

Your third question relates to section 551.144, which provides as follows:

(a) A member of a governmental body commits an offense
if a closed meeting is not permitted under this chapter and the
member knowingly:

(1) calls or aids in calling or organizing the closed
meeting, whether it is a special or called closed meeting;

(2) closes or aids in closing the meeting to the public, if
it is a regular meeting; or

(3) participates in the closed meeting, whether it is a
regular, special, or called meeting.

(b) [punishment].

(c) It is~ an affirmative defense to prosecution under
Subsection (a) that the member of the governmental body acted in
reasonable reliance on a court order or a written interpretation of this
The Honorable Kurt Sistrunk - Page 7 (GA-051 1)

chapter contained in an opinion of a~court of record, the attorney
general, or the attorney for the governmental body.

TEX. GOV’T CODE ANN. 5 551.144(a)-(c) (Vernon 2004).

You ask whether inadequacy of notice or the selective inclusion of members of the public
in a closed meeting held under section 55 1.074 defeats the exception so that it is “not permitted” for
purposes of section 551.144. See Request Letter, supru note 1, at 1. Because of our conclusions as
to notice, we will consider only the effect of including members of the public in a closed meeting.

Tovur v. State addressed a former school board president’s conviction for two offenses in
violation of section 551.144. See To.var v. State, 978 S.W.2d 584 (Tex. Crim.,App. ‘1998). The
defendant “knowingly participated in a special closed meeting ofthe school board in violation of the
Act [and] knowingly called and aided in calling and organizing a special closed meeting of the
school board in violation of the Act.” Id. The court upheld the convictions under section 55 1.144
against defendant’s claims as to the mental state required by that section. See id. at 587. Implicit
in the court’s decision is that the unauthorized closed meetings were “not permitted” within section
55 1,144. A “[cllosed meeting’? is “a meeting to which the public does not have access.” TEX.
GOV’T CODE ANN. § 551.001(l) (Vernon 2004). By allowing members of the public to attend
portions of ‘a “closed” meeting, the board in effect acknowledged that confidentiality was not
necessary for that part of the deliberations. Thus, the meeting it conducted in closed session should
have been open to the public. Baaed on the facts you have provided, we conclude that the portions
of the “closed” meeting attended by selected members of the public were “not permitted” within
section 551.144(a).

Our construction of section 551.144(a) does not indicate that any member of the
governmental body committed an offense under section 55 1.144. We address only one element of
section 55 1,144-whether the meeting in question was permitted. Moreover, whether an individual
has violated a criminal law raises questions of fact for determination by a jury. See Tex. Att’y Gen.
Op. No. JC-0053 (1999) at 6 n.3.
The Honorable Kurt Sistrunk - Page 8 (GA-051 1)

SUMMARY

Notice of a meeting subject to the Open Meetings Act must be
sufficiently specific to inform the general public of the subjects to be
considered during the meeting, with more specificity for a subject that
is of special interest to the public. The Act does not require the notice
of a~closed meeting to cite the section or subsection numbers of
provisions authorizing the closed meeting.

The Open Meetings Act, Government Code chapter 55 1, does
not permit a governmental body to admit members of the public to a
closed meeting to give input regarding a public officer or employee.
Based on the facts provided, the portions of a “closed” meeting
attended by members of the public were “not permitted” within
section 55 1.144(a).

Very truly yours,

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee