Hispanic Educ Com v. Houston Indep Sch, et

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20029
Summary Calendar

HISPANIC EDUCATION COMMITTEE, ET AL.,

Plaintiffs-Appellants,

VERSUS

HOUSTON INDEPENDENT SCHOOL DISTRICT, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court
For the Southern District of Texas
(CA H 94 1065)

(August 29, 1995)

Before GARWOOD, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*

Appellants brought this action alleging that Appellees, in

their appointment of a new school superintendent, violated

Appellants' constitutional rights to free speech and equal

*
Local Rule 47.5 provides:
"The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and
burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
protection, as well as provisions of the Texas Open Meetings Act.

Appellants claim that the school board selected a superintendent

outside a public meeting and intentionally excluded Hispanics from

the selection process. Appellants sought declaratory and

injunctive relief. Appellees moved for summary judgment, which the

district court granted. Appellants filed a timely notice of

appeal. We affirm.

I. FACTS

Some time before January 20, 1994, the then superintendent of

schools for the Houston Independent School District ("HISD"), Dr.

Frank Petruzielo, conveyed to the Board of Education ("the Board")

his intention to resign from that position. After that point, but

prior to January 20, 1994, certain members of the Board privately

discussed the qualifications of Dr. Rod Paige to fill the impending

vacancy. On January 20, 1994, the Board then met in a closed or

executive session to consider the appointment of Dr. Paige to the

superintendent's job. After the executive session and in a public

meeting, the Board voted to ask Dr. Paige to consider becoming the

next superintendent. At a public meeting on February 3, 1994, the

Board voted to officially offer Dr. Paige the job of

superintendent. On February 7, 1994, the Board publicly voted to

approve the employment contract with Dr. Paige.

II. SUMMARY JUDGMENT STANDARD

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 A court may terminate litigation by rendering a summary

judgment when no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Celotex

Corp. v. Catrett, 477 U.S. 317 (1986). Once the party seeking

summary judgment makes the initial showing, negating any disputed,

material fact, the party opposed to the motion must offer evidence

reflecting the existence of one or more genuine issues of material

fact. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992),

cert. denied, 113 S. Ct. 82 (1992). The non-movant must direct the

court's attention to specific, triable facts in the record.

Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300 (5th Cir. 1988). The

bare allegations of the pleadings will not suffice to show the

existence of a genuine issue of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510 (1986).

Finally, although the Court must make all reasonable inferences in

favor of the nonmoving party, "[t]here is no issue for trial unless

there is sufficient evidence favoring the nonmoving party for a

jury to return a verdict for that party." Anderson, 106 S. Ct. at

2511.

III. TEXAS OPEN MEETINGS ACT CLAIMS

A. Private Meetings Prior to January 20, 1994:

The Texas Open Meetings Act ("TOMA") defines a "meeting" as "a

deliberation between a quorum of a governmental body, or between a

quorum of a governmental body and another person, during which

public business or public policy over which the governmental body

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has supervision or control is discussed or considered or during

which the governmental body takes formal action." Tex. Gov. Code

§ 551.001(4) (emphasis added). The Board consists of nine members.

Therefore, to have a quorum and thereby a meeting to which the TOMA

would be applicable, at least five members must be present.

Appellants present no evidence to show that a quorum existed

at any of the pre-January 20, 1994, meetings of which they

complain. Therefore, the TOMA is inapplicable to these private

discussions.

Appellants allege that the Board improperly held these private

meetings in numbers less than a quorum in order to circumvent the

formal requirements of the TOMA, in violation of the criminal

conspiracy provision, § 551.143. That provision is inapplicable to

this suit, as enforcement is limited to the local prosecutor. Tex.

Att'y Gen. LA-92-9 (1992).

B. The Executive Session at the January 20, 1994 Meeting:

In a closed, executive session prior to the public portion of

the meeting on January 20, 1994, the Board met for what the agenda

termed "Consideration of Appointment of New Superintendent of

Schools; Interim or Acting Superintendent of Schools; and/or

Discussion of Process for Selection of New Superintendent of

Schools." Appellants contend that this meeting went beyond the

exception to the TOMA for personnel matters. That exception allows

for a private meeting "to deliberate the appointment . . . of a

public officer or employee." Tex. Gov. Code § 551.074(a)(1).

Appellants make two arguments for the inapplicability of the

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personnel exception: (1) that the discussion of the selection

process did not concern the "appointment" of Dr. Paige and was

therefore outside the scope of the exception; and (2) that the

Board did more than "deliberate" because it actually determined

that Dr. Paige would be offered the position.

Neither argument is availing. In this case, deliberations

concerning the selection process were inseparable from the

appointment of a specific public employee. The record does not

indicate any discussion of policy concerning how the HISD should

conduct a general search for superintendent. Rather, the record

shows that certain trustees believed that existing support by a

majority of trustees for a known candidate would have made a

lengthy and open application process ineffective and wasteful. The

expression of such a sentiment does not go beyond deliberating "the

appointment" of Dr. Paige.

Furthermore, the Board did not exceed the personnel exception

by making a final decision in the closed session. Section 551.102

provides that "[a] final action, decision, or vote on a matter

deliberated in a closed meeting under this chapter may only be made

in an open meeting. . ." Tex. Gov. Code § 551.102. Appellants

contend that the Board members actually resolved the issue of who

would be offered the job in the private session and then merely

took a formal vote on the matter in the open meeting. Appellants

cite Board of Trustees of Austin Indep. Sch. Dist. v. Cox Enter.,

Inc., 679 S.W.2d 86, 89 (Tex. App.--Texarkana 1984), aff'd in part,

rev'd in part, 706 S.W.2d 956 (Tex. 1986), for the proposition that

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"[t]o allow public officials to make their actual decisions in

private sessions and then merely report their decision or present

a formal, unanimous front to the public in an open meeting would

thwart much of [the purpose of the TOMA]."

The present case is inapposite. There is no evidence of a

final decision or vote taking place in the closed session. Rather,

the record shows that members of the Board merely expressed support

for Dr. Paige. The actual decision and vote took place in the open

meeting, as required by law.

IV. CONSTITUTIONAL CLAIMS

Appellants contend that the Board violated the equal

protection rights of members of the Hispanic community by denying

them their rights to political expression and participation.

However, the Supreme Court has provided guidance in dealing with

such claims:

Policymaking organs in our system of government
have never operated under a constitutional
constraint requiring them to afford every
interested member of the public an opportunity
to present testimony before any policy is
adopted. . . . Public officials at all levels
of government daily make policy decisions based
only on the advice they decide they need and
choose to hear. To recognize a constitutional
right to participate directly in government
policymaking would work a revolution in existing
government practices.

Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271,

284, 104 S. Ct. 1048, 1066 (1984). There is no constitutional

right to be included in private political consultations by

government officials.

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 Furthermore, the record shows that Appellants were provided an

opportunity to address the Board at the January 20, February 3, and

February 7, 1994, meetings. There is no evidence to support an

inference of intentional exclusion on the basis of race or

ethnicity.

WE AFFIRM.

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