QBfficeof the !Ztttornep &hem1
&ate of Qexae
DAN MORALES August 12,1992
ATTORNEY
GENERAL
Mr. Michael Hines Opinion No. DM-149
Executive Director
Texas Commission on Fire Protection Re: Whether section 2(g) of the Open
P. 0. Box 1607 Meetings Act permits an executive
Austin, Texas 78767 session discussion about persons
considered for appointment to advisory
committees created pursuant to the
Government Code, sections 419.023 and
419.072 (RQ-249)
Dear Mr. Hines:
The Texas Commission on Fire Protection, established by consolidating the
former Fire Department Emergency Board with the former Commission on Fire
Protection Personnel Standards and Education, Acts 1991, 72d Leg., ch. 628, is
required to establish and appoint certain advisory committees pursuant to sections
419.023 and 419.072 of the Government Code. The commission wishes to know
whether it may meet in executive session under section 2(g) of the Texas Qpen
Meetings Act, V.T.C.S. article 625’2-17,to discuss the qualifications of persons
considered for appointment to these committees.
The two advisory committees are the Fire Protection Personnel Advisory
Committee, governed by section 419.023 of the Government Code, and the
Volunteer Fire Fighter Advisory Committee, governed by section 419.072 of the
Government Code. Section 419.023 provides in part:
(a) The commission shall establish a fire protection
personnel advisory committee to assist the commission in
matters relating to fire protection personnel and fire
departments. The committee shall be composed of nine
members appointed by the commission. Six members must be
fire protection personnel or retired fire protection per-
sonnel.. . . A committee member serves at the will of the
commission.
p. 780
Mr. Michael Hines - Page 2 m-149)
(b) The committee shall meet at least twice each calendar
year at the call of the presiding officer or at the call of the
commission.
(c) The committee periodically shall review commission
rules relating to fire protection personnel and fire departments
and recommend changes in the rules to the commission.
Notwithstanding Section S(f). . . [of V.T.CS. article 6252-13a]t
the commission shall submit all proposed changes and additions
to the rules that relate to fire protection personnel and fire
departments to the committee for development. If the commis-
sion does not approve a rule developed by the committee, the
commission shall indicate to the committee the reasons that the
commission did not approve the rule and return the rule to the
committee for further development.
Gov’t Code 9 419.023.
The Texas Gpen Meetings Act, V.T.CS. article 6252-17, which establishes
the general rule that every meeting of every governmental body shall be open to the
public, permits closed meetings for certain purposes. Section 2(g) provides as
follows:
Nothing in this Act shall be construed to require
governmental bodies to hold meetings open to the public in
cases involving the appointment, employment, evaluation,
reassignment, duties, discipline, or dismissal of a public officer
or employee . . . unless such officer or employee requests a
public hearing.
V.T.CS. art. 6252-17 0 2(g).
This exception applies only when the governmental body’s deliberations
concern a public officer or public employee. In Attorney General Opinion H-246
(1974). this office concluded that section 2(g) does not allow the board of regents of
‘8ectioa
S(f) of ariick62S2-l3a,
V.T.C.S.,
authh amagency touseiaformal
coafarences
to
obtaiathe advice.of iatere5tcd personsconccraing contemplated
mlem~ and to appoint
committeestoadviseitwithrespecttocontemplatedrulemaking.
p. 781
Mr. Michael Hines - Page 3 m-149)
a state university to meet in closed session to discuss the qual&ations of persons
under consideration for award of an honorary degree, unless the candidate was also
a “public officer or employee” of the governmental body. The opinion stated that
the exception “was designed primarily to prevent the unjustified harm to an
employee that might result from public discussion about matters related to his
employment status which are traditionally kept confidential.” Id. at 2.
Attorney General Opinion MW-129 (1980) determined that a governmental
body may not meet in closed session to discuss the employment of an independent
contractor, such as an engineering, architecturaI, or consultant !km. It cited the rule
of liberal construction of the Gpen Meetings Act and established that an
independent contractor is not an officer or employee and is thus not within the
section 2(g) exception.
Members of the Fire Protection Persomtel Advisory Committee are neither
officers nor employees within section 2(g) of the Gpen Meetings Act. A public
officer generally has a fixed term and may be removed only in accordance with the
applicable provisions of law. Akfine Indep. School Dirt v. Stmdlq, 280 S.W.2d 578
(Ten 1955); DonrnjieId v. Stare, 73 S.W.2d 83 (Tex. 1934); see tilro Tex. Const. arts.
V, 824; XV, 9 7; XVI, 930; V.T.C.S. art. 5961. Members of the committee, in
contrast, serve at the will of the commission. Gov’t Code # 419.023(a). They do not
have sufficient authority over public business to be public officers within the
following definition stated by the Texas Supreme Court:
[Tlhe determining factor which distinguishes a public officer
from an employee is whether any sovereign function of the
government is conferred upon the individuaj to be exercised by
him for the benefit of the public, &rgeiy independent of the
control of others.
Aldine, 280 S.W.2d at 583 (emphasis in original) (concluding that a school district
tax-assessor-collector was an employee and not an officer of the district).
The commission has general rule-making authority to adopt rules “for the
administration of its powers and duties.” Gov’t Code #419.00& In addition, it is
authorized to promulgate rules relating to fire protection personnel and fire
departments. See, e.g., id. 99 419.022(S) (standards for admission to employment as
tire protection personnel); 419.029 (curriculum requirements for schools for training
6re protection personnel); 419.032(b) (qualifcations relating to competence and
p. 782
Mr. Michael Hines - Page 4 w-149)
reliability of persons to be. fire protection personnel); 419.040 - 419.041 (standards
for protective clothing and self-contained breathing apparatus for fire protection
personnel). The Fire Protection Personnel Advisory Committee reviews
commission rules on fire protection personnel and fire departments and
recommends changes in the rules to the commission. Id. 0 419.023(c). If the
commission proposes to change or add to its rules on fire protection personnel and
fire departments, the committee develops2 the rules incorporating the proposed
changes and additions. Thus, the committee provides the specifics to implement the
commission’s purpose in proposing the rule and revises the rules it develops as
necessary to comply with the comm&ion’s requirements. Authority to adopt rules is
vested in the ammi5sio1~
The Fire Protection Personnel Advisory Committee has only advisory and
ministerial functions, and its members do not exercise any sovereign function of
government, largely independent of others. Accordingly, the members of this
committee are not officers.
An employee is a person who works for another for salary or wages.
BLACK’S LAW DICTIONARY 525 (6th ed. 1990) (definitions of “employee” and
“employer”). See also Civ. F’rac.& Rem. Cede 0 101.001(l) (“employee” is person in
the paid service of a governmental unit). Members of an advisory committee serve
without compensation. Gov’t Code Q419.008(j). Moreover, section 419.009 of the
Government Code authorizes the commission to “employ an executive director who
shall employ other personnel,” while other provisions authorize the commission to
appoint advisory committees. Id. Q#419.009,419.OONj),419.023,419.072. Thus, the
structure of the statute reflects the legislature’s understanding that a member of an
advisory committee is not an employee of the commission. The members of the
Fire Protection Personnel Advisory Committee are not employees of the
commission. Since the committee members are neither officers nor employees of
the Texas Commission on Fire Protection, the commission may not meet in
executive session pursuant to section 2(g) of the Gpen Meetings Act to discuss their
appointment.
Section 419.071 of the Government Code requires the cormmsst ’ ‘on to
develop a voluntary certification and regulation program for volunteer fire fighters
2siacctheaIatute
dooanoIdcfme‘de.volo~~
it istobe c.omtndaccordingtoammomusage.
God Cdc 0311.011(a).A dictionaqhasd&d “devdop” as‘tosetforthor makeclearby degnXS
OriadalaiL”
WEBSNIt’S NINIIINEWCOLIEGIATEDICtlONARY 347(1983).
p. 783
Mr. Michael Hines - Page 5 m-149)
and volunteer fire departments. The comm&ion is also required to establish a
Volunteer Fire Fighter Advisory Committee to assist it in matters relating to
volunteer fire fighters and volunteer fire departments. Id. 0419.072. The
composition and duties of the Volunteer Fire Fighter Advisory Committee closely
resemble those of the Fire Protection Personnel Advisory Committee. The
members of both committees are appointed by and serve at the will of the
commission. Id. 00419.023(a), 419.072(a). Both committees must meet at least
twice a year, and their members serve without compensation. Id. ~~419.008(j),
419.072(a). The duties of the Volunteer Fire Fighter Advisory Committee are as
follows:
The committee shall develop and recommend to the
commission for approval the rules of the program under this
subchapter. [Gov’t Code ch. 419, subch. D]s. The committee
periodically shall review commission rules relating to the
commission’s program under this subchapters and recommend
changes in the rules to the commission. Notwithstanding
Section 5(f). . . [of article 6252-13a, V.T.C.S.]. the commission
shall submit all proposed rules and all proposed changes and
additions to the rules that relate to the program under this sub-
chapter to the committee for development. If the commission
does not approve a rule developed by the committee, the
commission shah indicate to the committee the reasons that the
commission did not approve the rule and return the rule to the
committee for further development,
Id. 0 419.072(c).
The commission is authorized to make rules relative to certification as a
volunteer firefighter. Id. 5419.071(e). The Volunteer Fire Fighter Advisory
Committee provides the commission with advice and ministerial services in
connection with preparing these rules. For the same reasons advanced with respect
to members of the Fire Protection Personnel Advisory Committee, the members of
the Volunteer Fire Fighter Advisory Committee are neither officers nor employees.
Accordingly,~the Texas Commission on Fire Protection may not meet in executive
%hchapterD of chapter
419of theGovrmmentCoderqubes thecommksion toUcvelopa
voluntary
cwtiticatioa
and regulation
programfor volunteerfire fightersand volunteerfire
dopattmeats.’
G&t Code0419.071.
p. 784
Mr. Michael Hines - Page 6 0x-149)
session under section 2(g) of the Open Meetings Act to discuss the qualifications of
persons under consideration for appointment to the Volunteer Fire Fighter
Advisory Committee.
SUMMARY
Members of the Fire Protection Personnel Advisory
Committee and the Volunteer Fire Fighter Advisory Committee
appointed by the Texas Commission on Fire protection pursuaut
to chapter 419 of the Government Code are not public officers
or employees within section 2(g) of the Texas Open Meetings
Act, V.T.C.S. article 6252-17. Accordingly, the Texas Commis-
sion on Fire Protection may not meet in executive session
pursuant to section 2(g) of the Open Meetings Act to discuss the
qualifications of persons under consideration for appointment to
either of these advisory committees.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
RENEAHlcK!s
Special Assistant Attorney General
MADELElNE B. JOHNSON
Chair, Opinion Committee
Prepared by Susan L Garrison
Assistant Attorney General
p. 785