Untitled Texas Attorney General Opinion

The Attorney General of Texas Decemli,er 3, 1984 JIM MATTOX Utorney General iuprrme court Building Honorable Mike Driscol.1 Opinion No. J&238 ‘. 0. Box 12540 Barr16 County Attornc!) 51214752501 4urun. TX. 78711. 2545 1001 Preston, Suite O:i4 Re: Whether staff members of Houston. Texas 7700:1 the Harris County Commissioners isiex BlW074-1387 Telecopier 5121475-0266 Court and other county officers and employees are authorized to attend executive sessions of 714 Jackson. Suite 700 the commissioners court Jailae. TX. 75202-4505 2111742-8944 Dear Mr. Driscoll: 4S24 Alhla Ave., Suite 160 You ask the fol:.owing questions: El Paso, TX. 79905.2793 31Y53M404 1. W the commissioners court permit or authorize one or more county officers or employees 100. ,exas. Suils 700 to attend o closed or executive meeting or session Ho~slon. TX. 77002-3111 of commissioners court held for the purpose of 713t223.5888 consulting with its attorney or attorneys regarding IBending or contemplated litigation? 000 Broadway. Suite 312 Lubbock, TX. 79401.3479 2. (a) Would the conclusion to the first 8oM47-5238 question al>ply to such officer or employee who Is a party t(l the litigation and is represented by the same al:toraey? 43C4 N. Tenth. Suite B MCAllwl, TX. 79501.1885 512@92-4547 (b) WorlZd the conclusion be the same if said officer or employee were represented by a different clttorney? 200 Main PI=*. Suite 400 San Antonlo. TX. 78205.2797 51212254191 Your request letter contains the following facts. In 1973, both the Harris County Commissioners Court and the Harris County Sheriff were named as defendants in a lawsuit concerning conditions in the An Equal Opporlunltyl county jail. The :)arties agreed that the Harris County Attorney AIfltmative Action Employer should represent the commissioners court and that the Harris County District Attorney shculd represent the sherfff. During the last 11 years the commissioners court has met several times in executive session to discuss this litigation. These sessions have been attended by the members of thl? commissioners court and their staffs, by various elected and appoint&l county officials, by the sheriff, and by the district attorney, the county attorney, and their assistants. A p. 1068 - Honorable John Pi. Bolaca, Jr. -. Page 2 (JM-238) dispute over whether some of these individuala were authorized to attend these executive sessions prompted your questions. Attorney General Opinion .I&6 (1983) established that the members of a governmental body ma)’ exclude non-members from its closed meetings. You wish to knov whether persons who have no right to attend executive sessions may be admitted by the governmental body. The Open Meetings Act, article 6252-17. V.T.C.S.. provides in relevant part: Sec. 2. (a) Except as otherwise provided in this Act or spc!c if ically permitted in the Constitution. every . . . meeting or session of every governmental body shall be open to the public; and no closed or executive meeting or session of any governmental body for any of the purposes for which closed or executive meetings or sessions are hercsinafter authorized shall be held. . . . . . . . (e) Private coasultations between a govern- mental body and Its attorney are not permitted except in those inf:tances in which the body seeks the attorney’s advice with respect to pending or contemplated litigation, settlement offers, and matters where the duty of a public body’s counsel to his client, pursuant to the Code of Professional Responsibility of the State Bar of Texas, clearly conflicts with this Act. This act requires governmental bodies to open their meetings to the general. public, except for limited circumstances under which executive sessions are al Lowed. Your questions require us to determine whether the admiss:lon of some public officers and employees to an executive session conveined under section 2(e) is consistent with the policy of openness underlying the act. Since your question is limited to sessions convenl!tl under section 2(e), the “litigation exception.” our conclusions ~I.11 also be limited to that issue. Section 2(e) could be interpreted to authorize only the members of a governmental body and its attorney to attend executive sessions held thereunder. The 3wovislon refers to “[nlrivate -.- ~~ consultations ~~~ between a governmental both and Its attorney.” The underlined language could be read to pcrrmit attendance at the executive session onl; by members of the go&:nmental body and a single attorney to advise them. Under such ;a construction, neither party would be p. 1069 Ronorable John B. Eolmsa, Jr. - Page 3 (a-238) allowed to bring an asent or essociate to the session. lIowevers the dominent consid&atlon In cormtruing a atatute lo the intent of the legislature. Calvert v. Texi!) Pi e Line Co.. 517 S.U.2d 777 (Tex. 1974); City of San Uarcor .l> Lower Colorado River Authority, 308 S.W.Zd 403 (Tex. Clv. App. . . Austin 1974). modified 523 S.W.Zd 641 (Tex. 1975). As originally enacted, the open Meetings Act provided that “[nlothing in this Act shall b,e construed to prevent a governing body from consulting vith Its attorney.” Acts 1967, 60th Leg., ch. 271, at 597 * In 1969, however, the! legislature amended the act; in the process, it deleted this prov:ision. Acts 1969, 61st Leg., ch. 227, at 674. Shortly thereafter, ::he same legislature passed Senate Concurrent Resolution No. 83, Acts 1969, 61st Leg., at 3082, which noted the deletion and stated: WHEREAS, the privileged nature of comounica- tions between attorney and client are recognized by the common law, by Article 38.10, Code of Criminal Procedure of Texas, 1965, and by the rules of the State 13er of Texas; and WHEREAS,It was the intent of the legislature, in repealing the TAoted portion of Section 2, Chapter 271. Acts o,E the 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon’s Texas Civil Statutes), the open meetings law. to eliminate from that law surplus matter already covered elsewhere in the law; now, therefore, be it RESOLVED,By the Senate of the State of Texas, the Rouse of Repreclentatives concurring, that the Legislature declarr! that it did not Intend. in passing Senate Bill No. 260 [amending the act], to abridge or in any wa:f affect the privileged nature of communications between attorney and client. A 1972 Attorney General >pinion determined that Senate Concurrent Resolution No. 83 did not r’wtore the deleted language to the Open Meetings Act. Attorney General Opinion M-1261 (1972). It surveyed out-of-state cases which relied on the attorney-client privilege to find an imulled exceotion fcbr attorney-client conferences in public meetings acts that weke silent on that-subject. Sacramento Newspaper Guild v. Sacramento County Board of Supervisors. 69 Cal. Rptr. 480 (Cal. App. 1968); Times Pubzlshlng Co. v. Wllliams. 222 So.Zd 470 @la. App. 1969). Contra Lama-nv. McCord. 432 S.U.Zd 753 (Ark. 1968). See generally Annot. 38 A.m; 3d 1070 et seq. (1971). p. 1070 Honorable John B. Holmer, Jr. -n Page 4 (3)3-238) Attorney General Opinion M-1261 (1972) reasoned that the act must be construed harmoniously with Senate Concurrent Resolution No. 83 and statutory and common law rule13 on the confidentiality of the attorney- client relationship. It conc:luded that a governmental body may hold a closed session to discuss lqial matters with its attorney when it desires advice in regards to pending or contemplated litigation, settlem,sut offers, and similar matters where the duty of ,I public body’s counsel to his client, pursuant to the Rules and Canons of the State Bar of Texas, clearly conflicts with that Article. A 1973 amendment to article 6252-17, V.T.C.S., enacted the present section 2(e), incorporating almost verbatim the foregoing language. Acts 1973, 63d Leg., ch. 31, 52, at 46. Thus, Senate Concurrent Resolution No. 83 and Attorney General Opinion M-1261 provide si~;nificant evidence of the legislative policies underlying section 2(e). This provision enables governmental bodies and their attorneys t,> secure the protection of the attorney- client privilege for delibe:rstlons it covers. The purpose of the privilege is to promote !:be unrestrained communication between attorney and client, withou: fear that the attorney will disclose confidential communications. West v. Solito, 563 S.W.2d 240 (Tex. 1978); 8 Wigmore, Evidence 1:!;:91 (McNaughton rev. 1961). A provision like section 2(e) gives a governmental body the opportunity for full communication with its attorney without disclosing its side in litiga- tion to its oooonents. See E,acramento NeWSDaDer Guild v. Sacramento --- County Board 0; Supervisors, .supra; Minneapolis Star and Tribune Co. v. Rousing and Redevelopment Authority, 251 I’ %’** L1A I”‘-- ‘,,,) ; Oklahoma Association of Municipal Attorneys v. State, 577 P.2d 1310 (Okla. 1978); cf. Laman v. li&Zord. supra, (Pogleman, J., concurring) (city attorney= prepare cs;ehout detailed discussions with city council). ‘See also City of San Antonio V. Aguilar. 670 S.W.2d 681 (Tex. ADP. - San Antonio -1984. writ dism’d w.0.1.) (dicta on impracticality of open meetiq decision to appeal); Attorney General Opinion MW-417 (1981). Attorney-client coramunicatlons are not confidential in the “presence of s third person ,tiho is not the agent of either client or attorney.” 8 Wigmore, x~, S2311. Thus, section 2(e) does not permit an executive session held to discuss potential litigation with the opposing party. Attorney General Opinion MI-417 (1981). Texas law, however, has recognized that the privilege may extend to persons who are the media of communication between the attorney snd client. Burnett v. State, 642 S.W.21 765 (Tex. Crim. App. 1982) (hypnotist hired by attorneys to refresh defendant’s memory). Moreover, rule 503 Ronorablc John 1). Rolmes, Jr. .- Psge 5 (m-238) of the Texas Rules of Evidence defines the rttornev-client urivilene to cover c~nications between the client or his ;epresent;tive aid his lawyer. Tex. R. Rvid. 503(a) and (b). Rule 503 defines “client” to in&de a public officer or a p&ic entity. Tex. R. Rvid. 503(a)(l). Where the presence of (I third party agent or representative of the commissioners court Is necessary to the court’s full and un- restrained cmnication witt, its attorney , we believe that party may attend an executive session validly held under section 2(e) of the Open Meetings Act. See - Sacramento -- Newspaper Guild v. Sacramento County Board of Supervisors,. suprcl, (attorney-client conferences permitted in executive sess:lon under circumstances defined by Cal. Rvid. Code which permitted presence of some third parties), In some cases, the officers and employees of a governmental body will possess information relevant to the litigation or to evaluating a settlement offer. The litigation may te based on the actions of such persons, carrying out policy of the commissioners court under its supervision and control. Their presence and contribution at the executive session may be essential to effective, communication between the government’al body and its attorney. We therefore conclude that governmental bodies may admit to executive sessions held under section 2(e) those officers and employees who are their representatives or agents with respect to the particular litigation in question and whose presence Is necessary to effective cosununication with the attorney. Furthermore, the govern- mental body may not admit to its closed discussion of litigation those third parties who are adversaries or whose presence would otherwise prevent privileged communical:ion from taking place. We do not believe that governmental bodies may simply admit anyone they wish regardless of whether that nerson is likelv to make a lenitimate contribution to the discussion. See generally-Johnson V. Sta&m~i7~4 S.W. 1047 (Tex. Crim. App. 1915); Attorney G~?neral Opinion MW-417 (1981). We do not have sufficient information to determine whether the sheriff could legally be admitted to the executive session. The fact that he is represented by a different attorney is one factor which is relevant to determining whel:her he is sufficiently aligned with the commissioners court in th,Ls litigation to participate In their discussions. The sheriff :is directly involved in the litigation, however, and undoubtedly pt’ssesses important information concerning the litigation. The commissioners court must determine whether he la sufficiently aligned with 11:s position here to justify his presence. The alignment of the parties suggests that the sheriff and his attorney could properly be aknitted to the executive session. A case- by-case analysis of all reltvant facts will be necessary to determine whether a particular third party may be admitted to consultations held p. 1072 . 1 Honorable John B. Holmes, Jr. - Pa8e 6 (JR-238) under section 2(e) between an sttorney and the client 8overnmental body. The commissioners court may admit its agents or representatives to e:recutive session meetings held under section 2(eIl of the Open Meetings Act, article 6252-17, V.T.C.S., where the third party's interest Is aliened ,with the court's and where his presence is necessary to the court's full communi- cation with its attorney. Whether a particular person may be admitted must be decided by a case- by-case analysis of all relevant fscts. JIM MATTOX Attorney General of Texas TOMGREEN First Assistant Attorney Central DAVID R. RICRARDS Executive Assistant Attorney Ceneral RICK GILPIN Chairman, Opinion Committee Prepared by Susan L. Garrison Assistant Attorney General APPROVED: OPINION COMMITTRE Rick Gilpin. Chairman Colin Carl Susan Garrison Tony Guillory Jim Moellinger Jennifer RI886 Nancy Sutton p. 1073