Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL OF TEXAS April 6, 1989 Honorable Jim Mapel Opinion No. JM-1937 Criminal District Attorney Brazoria County Re: Whether the Texas open 329 N. Arcola Meetings Act, article 6252-17, Angleton, Texas 77515 V.T.C.S., authorizes a city to hold an emergency meeting to discuss indemnifying council members in a lawsuit and hiring an outside law firm to repre- sent the council (RQ-1545) Dear Mr. Mapel: You ask whether an "emergency meeting" held by the Alvin City Council complied with the Texas Open Meetings Act, article 6252-17, V.T.C.S. You advise that, on April 25, 1988, during a regularly scheduled meeting, the city council eliminated the position of a city employee. Near the conclusion of that regular meeting, the terminated employee handed the city council copies of the pleadings in a lawsuit the employee filed that same day. The city council was not served formally with the lawsuit until April 29. The city council posted notice to hold an emergency meeting, a meeting with only two hours notice, to discuss the lawsuit under the following topics: "Indemnify the Alvin City Council" and "Hire a law firm to represent the Alvin City Council." Section 3A(h) of article 6252-17 provides, in part: Notice of a meeting must be posted in a place readily accessible to the general public at all times for at least 72 hours preceding the scheduled time of the meeting . . . . The act authorizes a shorter notice period for emergencies: p. 5376 Honorable Jim Mapel - Page 2 (JM-1037) In case of emergency or urgent public neces- sity, which shall be clearly identified in the notice, it shall be sufficient if the notice is posted two hours before the meeting is convened. Any public official or person who is designated or authorized to post notices of meetings by a governmental body in accordance with Section 3A of this Act shall post the notice taking at face value the reason for the emeruencv as stated bv the aovernmental body. (Emphasis added.) Id. Section 3A(h) contains two requirements that are signi- ficant to the case at hand: (1) that notice for emergency meetings must state the reason for the emergency and (2) that an lVemergency,'q within the meaning of section 3A(W, must exist. The notice you describe, e, "Indem- nify the Alvin City Council" and "Hire a law firm to repre- sent the Alvin City Council,1' does not meet the first requirement of section 3A(h). The notice states no reason for the emergency. The 70th Legislature added the requirement that the reason for an emergency meeting be stated in the notice. See Acts 1987. 70th Leq.. ch. 549. 5 5. at 2213-14. In River Road Neishborhood-Ass*n v. South .Texas Soorts, 720 S.W.2d 551. 554 (Tex. Am. - San Antonio 1986. no writ). decided prior to this amendment, the court held that notice need not describe the nature of the emergency warranting an emergency meeting. The amendment of section 3A(h) responded to that case by requiring expressly that emergency meeting notice state the reason for the emergency. Section 3A(h) requires that the emergency or urgent public necessity "be clearly identified." In addition, the person who posts notice shall take "at face value the reason for the emer- aencv as stated bv the aovernmental body." (Emphasis added.) Further, on the facts you present, it does not appear that an "emergency," within the meaning of section 3A(h), existed. The 70th Legislature also added the language of section 3A(h) that limits expressly the situations that warrant emergency meetings: Cases of emergency and urgent public neces- sity are limited to imminent threats to pub- lic health and safety or reasonably unfore- seeable situations requiring immediate action p. 5377 Honorable Jim Mapel - Page 3 (JM-1037) by the governmental body. (Emphasis added.) Section 3A(h) requires an imminent threat to the public health and safety or a reasonably unforeseeable situation requiring immediate action. Neither was present in the case at hand. Although it is understandable that council members would be concerned about their liability, the situation presented was not one.that required "immediate action." The council was not served formally with notice of the lawsuit until April 29. At that time, the council had 20 days from the Monday following service in which to answer plaintiff's initial pleadings. Ample time existed during this period to post 72 hours notice of a meeting to discuss indemnifying council members and hiring a law firm to represent the council members, both actions that would require the expenditure of public funds. For this reason, the notice for the emergency meeting did not comply with section 3A(h). &g Attorney General Opinion JM-985 (1988) (action taken in violation of the Open Meetings Act can be voided in court action). SUMMARY An "emergency meeting," a meeting posted with only two hours notice, to discuss the topics l'Indemnify the Alvin City Council" and "Hire a law firm to represent the Alvin City Council" does not comply with the notice requirements of section 3A(h) of article 6252-17, V.T.C.S., when the notice fails to state the reason for the emergency and when the city had more than 20 days in which to take action on the topics discussed. Attorney General of Texas MARY KELLER First Assistant Attorney General LOU MCCREARY Executive Assistant Attorney General p. 5378 , Honorable Jim Mapel - Page 4 (JM-1037) JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee JENNIFER S. RIGGS Chief, Open Government Section of the Opinion Committee Prepared by Jennifer S. Riggs Assistant Attorney General P. 5379