Untitled Texas Attorney General Opinion

QBffice of the Elttornep @enera &ate of Qtexae DAN MORALES ATTORNEY GENERAL December 16.1992 Honorable David Cain Opinion No. DM-191 Chainnan Transportation Committee. Re: The withdrawal and reconsideration Texas House of Representatives of Anomey General Opinion DM-17 P. 0. Box 2910 (1991) (RQ-4W Austin, Texas 78769 Dear Representative Cain: You have asked this office to withdraw and reconsider Attorney General Opinion DM-17 (1991). In that opinion, we addressed whether the Open Meetings Act, V.T.C.S. article 6252-17. permitted the Houston Metropolitan Transit Authority (METRO) to hold a closed session to review proposals submitted in response to MBTRO’s “Request for Proposals for a Pied Guideway Transit System.” During this session, the board reviewed the proposals by listening to presentations by the proposers. The board members did not discuss the proposals among themselves and did not make any decisions. The board held the meeting in private to permit the proposers to present proprietary information to the board members all at once. We concluded that briefing sessions, such as this one, did not constitute meetings within the meaning of the Open Meetings Act and, thus, could be held in private without giving public notice. We now overrule that decision. Before the 1987 amendments to the Open Meetings ‘Act, a meeting subject to the act was held when a quorum of members of a governmental body was present and the memberstook any formal action or engaged in a verbal exchange among themselves about the public business or policy over which the body had jurisdiction. Acts 1973,63d Leg., ch. 31, 5 1, at 45 (V.T.C.S. art. 6252-17, 5 l(a), @)).I Thus, the members of a governmental body could meet privately to receive information from and ask questions of ‘Befote the 1987antendmnts,arlicle 6252-17,sectionl(a) stated,in n&vant part: “Mcding”mcaosanydclik~oaktwcenaquonun~mcmkrsota gcvemmcntalbodyat which any publicbusinessor public policy ever which the govcmmentalbcdyhasmpuvisioncrwntrclisdisnumdorwasidcrcd,crat which any formalaction is taken. Acts 1973.63d Lea., ch. 31, g 1, at 45. “Deliion” was detitud as “a verbal exclrsaae kchvunaqucmmcfmembersofagovcrnmuual body attemptingto arrive at a decisionon any publicbosiness.” Id. p. 1006 Honorable David Cain - Page 2 (DM-191) their employees or other third parties so long as they did not discuss any public business among themselves. See Attorney General Opinion JM-248 (1984); see also l?re Pea Picker, Inc. v. Reagan, 632 S.W.2d 674 (Tex. App.-Tyler 1982, writ ref d n.r.e.). This type. of briefmg session was not a “meeting” covered by the Open Meetings Act, and therefore, a governmental body could convene without admitting the general public. Attorney General Opiion IM-248 at 2. In 1987. however, the legislature amended the definitions of “meeting” and “de&ration.” The definition of “meeting” now reads, in relevant part: “Meeting” means any deliberation between a quorum of mem- bers of a govemme-ntal body, or between u quorum of members of a~ governmental bo@ and any other person, at which any public busiiess or public policy over which the governmental body has supervision or control is discussed or considered, or at which any formal action is taken. V.T.C.S. art. 6252-17, Q I(a) (emphasis added). The defmition of “deliberation” now includes “a verbal exchange. . between a quorum of members of a governmental body and any other person,” as well as “a verbal exchange . . between a quorum of members of a governmental body.” Id. 5 l(b). Our decision in Attorney General Opinion DM-17 essentially read these amendments out of the statute. Because the new language in both definitions includes the phrase “between a quorum of members of the governmental body,” we concluded that a meeting covered by the Open Meetings Act still had to involve deliberations among the members of the governmental bod~.~ However, the previous definitions of “meeting” and “deliberation” were broad enough to encompass briefing sessions at which the members of a governmental body discuss business among themselves and with third parties. Therefore, this reading of the amendments rendered them meaningless. We overrule Attorney General Opinion DM-17, in part, to give the 1987 amendments to sections l(a) and l(b) of the Open Meetings Act some meaning. We must presume that the legislature intends to make some change in the existing law when it Qcfom the 1987 ~thcphra5e”bctweeaaqumumofmembcrscfagovanmntal ~puitcdtartyrrfcncdtodelikrPtionrorvcltralacbangcsamongthemrmkrsofagovanmntal lmdywkn a quomm was present. Tkmfore, ia Attcmey Geaerai Opinkm DM-17, we interpretedthe phnue”hchwenaqwmmefmembeadagcvemmea talbdyandanyothcrpmon”tompireathmc- wayamvumtion: thcnllmbenofthc govanmcntal bodymost &l~heratcamongtlwnselvcs and with at kastoncthirdpdrty. p. 1007 Honorable David Cain - Page 3 (DM-191) adopts an amendment, and we must give effect to that change. i’kuvenol Lab., Inc. v. -lab., Inc., 608 S.W.2d 308, 314 (Tex. Civ. App.-Waco 1980. writ refd n.r.e.). Therefore, we now conclude that a&r the 1987 amendments, a meeting covered by the Open Meetings Act no longer must involve deliberations between the members of a governmentsJ body when a quorum of members is present. Rather, a governmental body also holds a meeting covered by the Open Meetings Act when a quorum of members is present and meets with a third party about the public business or policy over which the body has jurisdiction. The addition of section 2(r) to the act in 1987 provides tkrther evidence that the legislature intended to include briefing sessions in the definition of “meeting.” This section provides as follows: Nothing in this Act shall be wnstrued to require a quorum of the members of a governmental body to w&r with an employee or employees of the governmental body in an open meeting where such conference is for the sole purpose of receiving information from the employet or employees or to ask questions of the employee or employees; provided, however, that no discussion of public business or agency policy that atkts public business shall take place between members of the governmental body during the wnf~ence. Id. 5 2(r) (as added by Acts 1987,7Oth Leg., ch. 549, 0 2). This section creates a specific exception for briefing sessions between the members of a governmental body and their employees. See Attorney General Opinion JM-1058 (1989). If the amendments to sections l(a) and l(b) were not intended to make the definition of “meeting’* encompass briefing sessions, then the addition of section 2(r) to the act was unnecessary. Although we now interpret the Open Meetings Act to encompass brie.Gng sessions between the members of a governmental body and third parties other than employees, we also re&rm the decision in Attorney General Opinion JM-1058. In that opinion, we concluded that brieling sessions in which the members of a governmental body receive information gem and ask questions of an employee or employees without engaging in any discussion among themselves do not constitute meetings under the Open Meetings Act. This conclusion is based on our reading of section 2(r), rather than our reading of sections l(a) and l(b). Therefore, it survives our reinterpretation of sections I(a) and l(b). Although this opinion changes the result reached under Attorney General Opiion DM-17, we do not believe that members of governmental bodies will be subject to the penalties wntained in the Open Meetings Act for acting in accordance with Attorney &neral Opinion DM-17 prior to issuance of this opinion. To be subject to the miminal pn&ie.s contained in section 4 of the act, a member of a governmental body has to engage in a knowing violation of the act. V.T.C.S. art. 6252-17, 5 4. Knowing conduct p. 1008 Honorable David Cain - Page 4 (DM-191) occurs when a person is aware that the conduct is reasonably certain to cause the unlawful result. SEARCY& PAI-IXRSON,practice Commentary, Penal Code 5 6.03(b) (Vernon 1974). Absent other facts, we do not believe a member of a governmental body would violate the Open Meetings Act when that member was acting in accordance with an opinion of the anomey general. In addition, the Texas Supreme Court has held that government 05cials act in good faith when they rely on the advice of the attorney general. Wi&a Corm@ v. Robinson, 276 S.W.Zd 509, 516 (Tex. 1954) (opinion on motion for rehearing). SUMMARY This opinion overrules Attorney General Opiion DM-17 (1991). After the 1987 amendments to the Open Meetings Act, a “meeting” subject to the act includes a briefing session in which a quorum of members of the governmental body is present and meets with a third party, other than an employee, about the public business or policy over which the body has jurisdiction. However, section 2(r) of V.T.C.S. article 6252-17, as added by Acts 1987, 70th Leg., ch. 549, 4 2, wntinues to exclude from the definition of meeting briefing sessions between the members of a governmental body and that body’s employees. Therefore, the members of a governmental body may consult with their employees in private, but may not consult with other third parties in private. DAN MORALES Attorney General of Texas p. 1009 Honorable David Cain - Page 5 (DM-191) WILL. PRYOR Pii Assistant Attorney General MARYKELLBR Deputy Assistant Attorney General RBNEAHICKS Special Assistant Attorney General MADELEINE B. JOHNSON Chair, Opiion Committee Prepred by Margare-t A. Roll Assistant Attorney General p. 1010