Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

October 30,2006

The Honorable Allan Ritter Opinion No. GA-0477
Chair, Committee on Economic Development
Texas House of Representatives Re: Whether the ‘Open Meetings Act
Post Office Box 2910 requires specific notice of a non-binding
Austin, Texas 78768-2910 vote on a “personal endorsement” motion
(RQ-0477-GA)

Dear Representative Ritter:

You ask about the notice required by the Open Meetings Act, Government Code chapter 551
(the “Act”). See TEX. GOV’T CODE ANN. $5 551.001-,146 (Vernon 2004 & Supp. 2006). You first
ask whether “a non-binding vote on a ceremonial ‘personal endorsement’ motion taken during the
operrsession of a City Council meeting [must] be specifically noticed at least seventy-two hours
prior to the meeting in order to fully comply with the . Act.“’ A letter from the city’s mayor states
that the posted notice for the city council meeting listed “Discussion and Possible Action on Mayor’s
Report.“’ At the meeting, the mayor announced that he had appointed a committee to investigate
the disclosure of city banking information. See Hill Letter, supra note 2, at 1. After the
announcement, a city council member offered a personal endorsement motion in support of the
mayor’s action, which was approved by the city council. See id. It has been suggested that adoption
of the motion violated the Act because’it was not specifically mentioned in the posted notice. Id

The Act requires a governmental body to “give written notice of the date, hour, place, and
subject of each meeting held by the governmental body.” TFX. GOV’T CODE ANN. 5 551.041
(Vernon 2004). A local governmental body such as a city council must generally post the notice at
least seventy-two hours before the scheduled time of the meeting. See id. § 55 1.043(a) (Vernon
~~~~~~~~~~~~~~~~~~Supp.-2006)
-Noticeis~adequatewhen-it-alertsa-reader-~b~~ considered-relative~~~~~~~-~~~~~~~~~
to a topic. See Cox Enters., Inc. Y. Bd. of Trs., 706 S.W.Zd 956,958 (Tex. 1986). And “[a]s long
as a reader is alerted to the topic for consideration, it is not necessary to state [in the notice] all of
the consequences which may flow from consideration of the topic.” Id.; see also Rettberg v. Tex.

‘Letter from Honorable Allan Ritter, Chair, Committee on Economic Development, Texas l&use of
Representatives, to Honorable Greg Abbott, Attorney General of Texas (Apr. 10, 2006) (on file with the Opinion
Committee, also avaihble nf www.oag.state.tx.us) [hereinafier Request Letter].

‘Letter from Honorable Roy W. Hill, Mayor, City of Fairfield, to Honorable Byron Cook, Texas House of
Representatives, at 1 (Feb. 22, 2006) (on file with the Opinion Committee) [hereinafter Hill Letter]:
 The Honorable Allan Ritter - Page 2 (GA-0477)

Dep’t. ofHealth, 873 S.W.2d 408,411 (Tex. App.-Austin 1994, no writ) (“The fact that possible
consequences [of discussion and evaluation of the board’s executive secretary’s duties] might
include a change in job description, a raise in salary or even termination does not invalidate the
action taken if the . . notice was sufficient to alert the reader of the topic under consideration.“).
To determine if the notice adequately informs the public ofthe topic under consideration, a court will
compare the content of the notice given and the action taken at the meeting. See Markowski v. City
ofMarlin, 940 S.W.2d 720,726 (Tex. App.-Waco 1997, pet. denied). As part of that analysis, a
court may consider the established notice-posting customs and practices ofthe governmental body.
See RiverRd. NeighborhoodAss’nv. S. Tex. Sports, 720 S.W.2d551,557(Tex.App.-SanAntonio
1986, writ dism’d) (holding that notice stating “discussion” did not alertthe public that action would
be taken, in light of district’s well-established practice of stating “discussion/action” when action
was contemplated and merely “discussion” when no action was taken). The notice must be more
specific or detailed when the subject considered is of special or significant interest to the public. See
Markowski, 940 S.W.2d at 726; Rettberg, 873 S.W.2d at 411. Whether the topic is of special or
significant interest to the city residents is a question of fact. See Gardner v. Herring, 21 S.W;3d 767,
773-74 (Tex. App.-Amarillo 2000, no pet.). But “irrespective of whether the topic is of special
or no interest, the Act still requires the governing body to make ‘full disclosure of the subject matter
of the meetings.“’ Id. at 773.

Turning back to your question, a notice ofthe city council meeting must alert the public that
some action will be considered with respect to the topic of the personal endorsement motion. See
Cox Enters., Inc., 706 S.W.2d at 958; Gardner, 21 S.W.3d at 773. As long as the notice alerts the
public of the topic, the Act permits the notice to specifically state that a personal endorsement
motion or resolution will be considered for adoption or vote but doesnot require the notice to do so
unless the city’s meeting notices routinely indicate when amotion or resolution will be adopted. See
Cox Enters., Inc., 706 S.W.2d at 958; River Rd. NeighborhoodAss’n, 720 S.W.2d at 557; see also
City of San Angelo v. Tex. Natural Rex Conservation Comm’n, 92 S.W.3d 624, 630 (Tex.
App.-Austin 2002, no pet.) (“We hold . that the Commission did not have to include additional
language indicating that it might act on issues under consideration.“). The posted notice “Discussion
and Possible Action on Mayor’s Report” would generally alert the public that the city council may
vote on such a matter. But whether the posted notice would adequately alert the public of the topic
of the endorsement-investigation of the disclosure of city banking information as we understand
it-and whether more specificity was required because of the topic’s significance to the city’s
residents are questions of fact. See Gardner, 21 S.W.3d at 773-74. The attorney general’s office
~~~~~~~~~~~~~~~~~~~~~~~~~~.~~does-not-determine~~q~i~~s~~~~a~t~i~~~~h~~~i~~~i~~~~r~eess~~ee,~~e~~~~.~e~~~~~~~y~~~~en
GA-0156 (2004) at 10 (stating that fact questions cannot be answered in the opinion process).

You next ask: “If the City Council, at a subsequent meeting, re-adopts the non-binding,
,ceremonial ‘personal endorsement,’ after that motion has been specifically set forth on the agenda
and posted . , does that revote ‘cure’ any [shortcomings] in the prior action]?]” Request Letter,
supra note 1, at 1.

A court may void governmental actions taken in violation of the notice requirements of the
Act. See TEX. GOV’T CODE~ANN. 3 551.141 (Vernon 2004); Swate v. Medina Cm@ Hosp., 966
The Honorable Allan Ritter - Page 3 (GA-0477)

S.W.2d 693,697-99 (Tex. App.-San Antonio 1998, pet. denied). But such an invalid action can
be ratified at a later, validly noticed meeting as long as there is no retroactive effect. Markowski, 940
S.W:2d at 726. Accordingly, in the event that the city council’s adoption of the personal
endorsement motion violated the Act’s notice provisions, the city council may cure the invalid action
by readopting the motion at a subsequent meeting after giving adequate notice ofthe motion. In such
an event, the motion would be effective only from the date of its readoption.
The Honorable Allan Ritter - Page 4 (GA-0477)

SUMMARY

To comply with the Open Meetings Act (the “Act”), a city
must give advance notice that it will consider the topic of a “personal
endorsement” motion. The city may specifically state in the notice
that a personal endorsement motion will be considered for adoption
but is note required by the Act to do so unless the city’s meeting
notices routinely indicate when a motion or resolution will be
adopted. If adoptton of the personal endorsement motion was invalid
because it violated the Act’s notice provisions, the invalid action may
be cured by readopting the motion at a subsequent meeting after
giving adequate notice. The motion would be effective only from the
date of its readoption.

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

Sheela Rai
Assistant Attorney General, Opinion Committee