THE ATTORNEY GENERAL
OF TEXAS
lanyard a, 1988
Mr. Robert 0. Viterna opinion No. m-840
Executive Director
Commission on Jail Standards Re: "Certified agenda" re-
P. 0. Box 12985 quirements imposed by
Austin, Texas 78711 recent amendments to the
open Meetings Act, art.
6252-17, V.T.C.S. (RQ-1244)
Dear Mr. Viterna:
The Texas Open Meetings Act, article 6252-17,
V.T.C.S., requires governmental bodies, as defined in the
act, to deliberate and take all final actions on govern-
ment policy and business in meetings that are open to the
public. See 52(a). The act authorizes governmental
bodies to deliberate under certain limited circumstances
closed or executive sessions. See art. 6252-17,
ii:2 (e) (f), ($0, (W, (j), Cm), (n), Co), (p). Because
the public has been excluded from executive sessions, the
public has been unable to determine whether the
governmental body met the requirements for the executive
session. During the recent legislative session, the Texas
Legislature responded to this problem by enacting Senate
Bill No. 168 (Acts 1987, 70th Leg., ch. 549, 51). See
Bill Analvsis to Senate Bill No. 168 70th Leg. (1987), on
file in Legislative Reference Library. Senate Bill No.
168 added section 2A to the act, a section requiring
governmental bodies to keep a "certified agenda" or a tape
recording for each of its meetings that is closed to the
public.
YOU ask what constitutes a "certified agenda."
Section 2A provides:
(a) For each of its meetings that is
closed to the public, except for consulta-
tions in accordance with Subsection (e) of
Section 2 of this Act, a governmental body
shall keep a certified aaenda of the
proceedings.
p. 4051
Mr. Robert 0. Viterna - Page 2 04-a40)
(b) The presiding officer must certify
that the agenda kept under Subsection (a).of
this section is a true and correct record of
the oroceedinas.
(c) The certified agenda shall include an
announcement made by the presiding officer
at the beginning and end of the meeting
indicating the date and time. The certified
agenda shall state the subject matter of
each deliberation and shall include a record
of any further action taken. The certified
agenda of closed or executive sessions shall
be made available for public inspection and
copying only upon court order in an action
brought under this Act.
(d) In lieu of the requirements for main-
taining a certified agenda as provided in
Subsections (a), lb), and (c) of this
section, a governmental body may make a tape
recording of the proceedings which shall
include an announcement made by the
presiding officer at the beginning and end
-.
.of the meeting indicating the date and time.
(e).The certified agenda or tape shall be
available for in camera inspection by the
judge of a district court if litigation has
been initiated involving an alleged viola-
tion of this Act. The court upon entry of a
final judgment may admit the certified
agenda or tape into evidence in whole or in
part. The court may grants equitable or
legal relief it considers appropriate,
including an order that the governmental
body make available to the public the
certified agenda or tape of any part of a
meeting that was not authorized to be closed
under this Act.
(f) The governmental body shall preserve
the certified agenda or tape for at least
two years after the date of the meeting. If
an action involving the meeting is commenced
during the required preservation period, the
certified agenda or tape shall be preserved
pending the outcome of the action.
p. 4052
Mr. Robert 0. Viterna - Page 3 (JM-840)
,-
(g) No member of a governmental body
shall participate in a meeting of the
governmental body closed to the public
knowing that a certified agenda of the
meeting is not being kept or tape recording
is not being made. A person who violates
this subsection commits a Class C
misdemeanor.
(h) No individual, corporation, or part-
nership shall, without lawful authority,
knowingly make public the certified agenda
or tape recording of a meeting or that por-
tion of a meeting that was closed under
authority of this Act. A. person who
violates this subsection shall be liable to
any 'person injured or damaged thereby
. . . . (Emphasis added.)
YOU ask, in general, what constitutes a "certified
agenda." You ask specifically whether an announcement of
the. date and time accompanied by a statement that
unspecified W1litigation" was discussed with your attorney
meets the requirements of section 2A.
Subsection (a) of Section 2A resolves your specific
question about a "certified agenda" for executive sessions
to discuss unspecified litigation with your attorney.
Subsections (a) requires a governmental body to keep a
"certified agenda" Il[f]or each of its meetings that is
closed to the public, excevt for consultations
accordance with subsection (e) of section 2 of this act:
(emphasis added). Subsection (e) of section 2 provides:
Private consultations between a govern-
mental body and its attorney are not
permitted except in those instances in which
the body seeks the attorney's advice with
respect to pending or contemplated litiga-
tion, 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.
Consequently, section 2A does not require a "certified
agenda" for executive sessions in which only subsection
(e) matters are discussed.
p. 4053
Ml-. Robert 0. Viterna - Page 4 (m-840)
You should note, however, that executive sessions
under subsection (e) of section 2 are limited to
situations in which governmental bodies seek legal advice
from their attorneys with regard to specific anticipated
or pending litigation. Attorney General Opinion JM-100
(1983). Moreover, the "certified agenda" requirements of
section 2A are distinct from the notice provisions of the
Open Meetings Act. V.T.C.S. art. 6252-17. Notice of an
executive sessicn that addresses unspecified l'litigationL'
may not satisfy the act's notice requirements. Sea cox
Lntervrises v. Board ofTrustees of the Austin Indevendst
S&hoc1 District, 706 S.W.2d 956 (Tex. 1986).
Your concern also focuses on the detail necessary to
comply with the "certified .agenda" requirement for 0tAer
closed or executive sessions. You suggest that subsection
(c) of section 2A indicates that the only two requirements
of a "certified agenda" are 1) an announcement of the date
and time of the executive session at the beginning and end
of each session and 2) a statement of the subject matter
and of further action taken on each deliberation.1 The
question is the detail the statement must contain.
Section 2A does not provide much guidance. Subsection (b)
of section ?A provides that the agenda is to be "a true
and correct record of the proceedingsl' of the execut iv2
session.
The primary concern in interpreting a statute is to
ascertain and give effec,t to legislative intent as
expressed in the language of the statute. State VL
Terrell, 588 S.W.Zd 784 (Tex. 1979). The language chosen
by the legislature in this case is somewhat ambiguous.
Two extremes in interpreting "certified agenda" are
possible. At the least, the agenda must include a one or
two word statement of every subject actually discussed.
At the most, the agenda must be a verbatim transcript of
the executive session.
Interpreting legislative intent also requires
consideration of the old law, the evil to be remedied, and
the remedy provided by the amendment. Prior to amendment,
because the public was excluded from executive sessions,
the public had no way to determine whether the
1. You should note that this reference to "further
action" does not mean final action. As indicated, final
action may only be taken-open meetings.
p. 4054
Mr. Robert 0. Viterna - Page 5 (34-840)
governmental body met the requirements for holding the
executive session.. The legislature intended the amendment
to provide a method of verifying in court proceedings that
executive sessions comply with the Open Meetings Act.
The other provisions contained in Senate Bill No. 168
provide only indirect guidance on the meaning of
"certified agenda." Senate Bill No. 168 also amended the
provisions governing meetings that are open to the public
by requiring governmental bodies to prepare and retain
minutes or a tape of each of their meetings. Acts 1987,
70th Leg., ch. 549, 54 (adding section 3B to article
6252-17). "Minutes" is defined as a memoranda or notes of
a transaction or proceeding, see Black's Law Dictionary
(5th Ed.), or as the official record of the proceedings of
a meeting; See Webster's Ninth New Colleaiate Dictionarv.
To "minute" somethins is to make notes or a brief summary
of the thing. Id. The common usage of "minutes" is more
likely to connote something like a verbatim transcript
than the common usage of "agenda." On the other hand, the
legislature amended the act to require that minutes of
open meetings be kept and that the "minutes shall state
the subject matter of each deliberation" and each action
taken by the gov.ernmental body. A verbatim transcript is
not required by this language. As indicated, the
"certified agenda" must also "state the subject matter of
each deliberation." The phrase l'agenda'lmeans a memoranda
of things to be done, as items of business or discussion
to be brought up at a meeting, see Black's Law Dictionary
(5th Ed.), or a list, outline or plan of things to be
considered or done at a meeting. See Webster's Ninth New
Colleaiate Dictionarv. If the legislature had meant the
"minutes" or "certified agenda" to be a verbatim
transcript, the legislature would have so indicated. Two
things are apparent from the language of the amendment.
First, the legislature intended that l'minutes'l be less
than a verbatim transcript. Second, despite the use of
the same general description for ltminutesl'and "certified
agenda," the legislature intended that the "agenda" be
something less detailed than tlminutes.UV
The history of the passage of Senate Bill No. 168
through the Texas Legislature reinforces this conclusion.
As originally introduced, the bill would have required
governmental bodies to keep "minutesVq of executive
sessions to "state the substance of each deliberation."
The requirement for a "certified agenda" was, however,
substituted for "minutes." Additionally, subsection (c)
was modified from "minutesl' stating "the substance of each
deliberation" to an "agenda" stating "the subject matter
p. 4055
Mr. Robert 0. Viterna - Page 6 (JM-840)
of each deliberation." The committee hearing tapes reveal
two thing.s: 1) that opponents of the bill feared that
80minutes*1 meant a verbatim transcript or something
similar, and 2) that the bill as originally introduced was
not intended to require a verbatim transcript. It is
clear, however that a one-word description such as
"personnel" will p& suffice.
The fact that the legislature provided governmental
bodies with the option of making a tape of the executive
session as an alternative to the "certified agenda" is
significant. Because the amendment uses the two as
alternate methods of effecting one legislative purpose,
the two must be intended to serve as substantial equival-
ents. The requirement that the agenda be certified, how-
ever, may have been intended as an alternative safeguard
when a tape or full transcript is & prepared. The tapes
of the committee hearings reinforce this conclusion. The
tapes suggest that the "certified agenda" is to serve
primarily as an affirmation that the governmental body did
not discuss matters it is not authorized to discuss in
executive session. For example, if the governmental body
holds an executive session under section 2(g) to discuss
the employment of a specific employee, the governmental
body must certify that it discussed only this topic. On
the other hand, if the governmental body discussed a topic
such as a pay cut or pay hike for all employees, a topic
for which executive sessions are not authorized, the
certified agenda must also state that this topic was
discussed. See Attorney General Opinion H-496 (1975).
Ultimately, the question of whether a particular
"certified agenda" complies with the statute will be a
fact question for the courts. a §2A(e). Because the
question involves an ambiguous provision, the courts may
apply a substantial compliance standard. In the area of
Open Meetings, however, the courts have been moving
towards requiring stricter compliance. See, e.a smith
Countv v. Thornton, 726 S.W.2d 2 (Tex. 1986); Co;' Enter-
prises v. Board of Trustees of the Austin Indevendent
School District, 706 S.W.Zd 956 (Tex. 1986). In m, the
Texas Supreme Court decided that the notice provisions of
the act require more than broad, general, one-word state-
ments of subjects such as "real estate," "personnel," and
"litigation.8' In light of this decision, it would be
unlikely if similar statements would be upheld as
sufficient for the "certified agenda" requirements of
section 2A. Moreover, even if such statements were deemed
sufficient under section 2A, this would not negate the
requirements that notice be more specific.
p. 4056
Mr. Robert 0. Viterna - Page 7 (JM-840)
This office cannot, however, set forth iron-clad
guidelines for complying with the statutory requirement in
every situation. It is clear that the agenda must contain
at least a brief summary of every specific subject
actually discussed, not just those originally intended for
discussion. So long as discussion is restricted to
matters contained in the notice for the executive session
and matters for which an executive session is authorized,
a "certified agenda" need not contain a detailed summary
or paraphrase of each question or idea presented on the
general subject of the executive session. Keeping a
more detailed record of discussions will, however, serve
to protect the governmental body from violating section
2A. If a discussion addresses something that does not
appear in the notice or should not be discussed in
executive session, greater detail is necessary. Enough
detail should be included to enable a district judge to
determine whether the act has been violated. If
discussion strays into topics for which executive sessions
are not authorized, the certified agenda must state that
those topics were discussed but may also state that the
governmental body remedied the error by repeating the
discuss~ion in open meeting. The greater the likelihood of
violation, the greater the detail necessary. Governmental
bodies can avoid problems in this area of ambiguity ~by
opting to keep a tape of executive sessions rather than a
"certified agenda."
SUMMARY
The Texas Open Meetings Act, article
6252-17, V.T.C.S., requires governmental
bodies, as defined in the act, to deliberate
and take all final actions on governmental
policy and business inT;zetagzs that .are
open to the public. authorizes
governmental bodies to deliberate under
certain limited circumstances in closed or
executive sessions. In Senate Bill No. 168,
Acts 1987, 70th beg., ch. 549, 51, the
legislature added section 2A to the act to
require governmental bodies to keep
"certified agenda" or a tape recording foZ
each of their meetings that is closed to the
public. Section 2A expressly does not apply
to consultations between a governmental body
and its attorney when those consultations
comply with subsectidn (e) of section 2 of
the act, i.e., when only subsection (e)
matters are discussed. For other executive
p. 4057
Mr. Robert 0. Viterna - Page 8 m-840)
sessions, a tape or "certified agenda" must
be kept. The agenda must be 'Iatrue and
correct record of the proceedings" of the
executive session. Although the agenda need
not be a verbatim transcript of the
executive session, section 2A requires more
than a one or two word list of the subjects
actually discussed. Ultimately, the
question of whether a particular "certified
agenda" complies with the act is a fact
question for the courts, but in general, the
greater the likelihood of violation, the
greater the detail necessary.
J /vLtGx
Ver truly rs,
k
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 4058