Open Government 101: The Texas Open Meetings Act Texas Association of Counties Fall Judicial Education Session November 16, 2016

Open Meetings Act The Open Meetings Act – Government Code Chapter 551. The public has a right to know a lot about how, when and why you make your decisions as a public official. Judges and Commissioners Tax Assessor Collector on tax appraisal board Board and commission members All commissioners court meetings must be public.

What is a meeting? A meeting is a deliberation between a quorum of the members of the court during which: public business is discussed the commissioners court take formal action Quorum is three for commissioners court.

What is a meeting? (cont’d) ‘Walking quorum’ is meeting in less than a quorum in attempt to avoid the Act – this is being prosecuted. Minutes of a public meeting must be in writing and show: Each subject considered The vote, order, decision or action on each item

Agenda Preparation Commissioners court as a whole is responsible for preparation of the agenda Each member of the commissioners court must be permitted to place any item on the agenda Commissioners court may or may not use the county clerk to prepare and post its agenda

Notice of a Public Meeting Must be in writing posted not less than 72 hours before the beginning of the meeting at a place accessible to the public. Notice is posted both at the county courthouse and on-line if the county has a website. Notice must include: date, hour, place, actions under consideration.

Notice of a Public Meeting (cont’d) Commissioners court can only take action on an item that is on the agenda. No exceptions – this includes executive sessions. Emergency meetings require two hour notice, but must be real emergency: Imminent threat to public health and safety Unforeseeable situation that required immediate action

Executive Sessions Public meeting must be convened before you may go into executive session. Executive sessions are limited exceptions to rule of public action. For example: Consultation with attorney – lawyer must be there Personnel matters – must be county staff and must be open at request of employee under discussion

Executive Sessions (cont’d) Other exceptions of importance to county government: Real estate – must relate to county’s negotiations Economic development – must relate to county’s offer to business being solicited

Rights of the Public Public has a right to attend and record public meetings. Public does not have a right to talk during your meetings. Commissioners court may allow public comment as agenda item – must also post topics if known.

Do’s and Don’ts DO publish notice of a meeting, even a committee meeting of less than a quorum if court is likely to rubber stamp decision. DO get what you want to talk about on the agenda with enough information that a reasonably intelligent person will know what you are going to discuss.

Do’s and Don’ts (cont’d) DON’T communicate with other court members outside of a public meeting with the intention of persuading them to vote a certain way – this includes e-mail. DON’T vote in executive session – no ‘straw votes’. DON’T debate issues raised in public comment period unless it is also posted – limit response to facts or policy statement.

Penalties – Open Meetings Act Actions taken in violation of Open Meetings Act are voidable by court order. Misdemeanor: Meeting in number less than a quorum with intent to violate the law Participation in an illegal closed meeting Fine: $100 - $500 Jail: 1-6 months Both fine and jail

Penalties – Open Meetings Act. (cont’d) You can commit a violation by participating in an illegal executive session even if you don’t know that the closed meeting is not allowed. It is an affirmative defense if you relied on a written opinion from the county attorney saying the executive session is allowed. Conviction of a county officer for a misdemeanor involving official misconduct operates as a removal from office.

TOMA STATUTORY ANALYSIS: “WALKING QUORUM” PROHIBITED Under TOMA §551.143, it is a crime to knowingly conspire to circumvent the requirements of TOMA by meeting in numbers less than a quorum for the purpose of secret deliberation.   “Walking Quorum” = prohibited, sequential conferencing in numbers less than a quorum. The “physical presence of a quorum in a single place at the same time is not always necessary for a violation...to occur.” Op. Tex. Att’y Gen. No. DM-095 (1992) at 4. Members of a governmental body may “violate the Open Meetings Act even though they are not physically present in one place, for example by discussing public business of the governmental body over the telephone.” Tex. Att’y Gen. No. LO-055 (1995) at 3-4. Tex. Gov’t Code §551.143

TOMA STATUTORY ANALYSIS: 2011 TXOAG OPINION REGARDING “WALKING QUORUM” Op. Tex. Att’y Gen. No. GA-0896 (2011) at 1-2, citing Op. Tex. Att’y Gen. No. DM-095 (1992) and relevant case law  Facts = Email disseminated among members of governing body in numbers less than a quorum TXOAG concluded that:   Although TOMA applies to a “verbal exchange” of a “quorum” of the members of the body, the: (1) words need not be spoken in person; and (2) members need not be in the physical presence of each other to constitute a quorum.   Electronic communication (including email) may constitute “deliberation” and a “meeting” under TOMA -- thereby requiring TOMA compliance.   A determination of whether the members of the body violated TOMA involved an analysis of the “respective states of mind” of each member involved in an alleged violation -- this because the TOMA “walking quorum” statute (§551.143) requires the violator to “knowingly” commit the violation.   Risk exists for a “walking quorum” in view of the widespread use of electronic communication -- including email, texting, and social media.   Tex. Gov’t Code §§551.001, 551.143-.144

TOMA STATUTORY ANALYSIS: MEETING REQUIREMENTS -- CLOSED SESSION RULES Subject matter notice of authorized closed session topic in agenda  = BEST PRACTICE Move to closed session through pronouncement of TOMA statute/authorized topic to support closed session   Weatherford v. City of San Marcos, 157 S.W.3d 473, 485 (Tex. App. -- Austin 2004, pet. denied) (TOMA does not prohibit opinions being expressed in closed session -- but decision must occur in open session)   REQUIRED RECORD = (1) certified agenda (describes subject matter, action taken, and announcement by presiding officer of date/time and beginning/end of session); or (2) tape recording; Record must be (1) preserved at least 2 years -- and to completion of any suit filed regarding meeting, and (2) is EXPRESSLY CONFIDENTIAL   Many authorized topics exist under TOMA -- including (1) personnel matters, (2) consultation with attorney, and deliberation regarding (3) real property, (4) gifts and donations, and (5) economic development negotiations  No person may be admitted whose interest is adverse to government -- exclusion extends to opposing suit parties and proposed seller of property to government  Tex. Gov’t Code §§551.071-.074, 551.087, 551.101-.104, 551.129

TOMA STATUTORY ANALYSIS: MEETING REQUIREMENTS -- RATIFICATION When governmental body fails to comply with TOMA it may later meet to RATIFY (or re-authorize) incorrect action through meeting conducted in full compliance with TOMA   RETROACTIVE EFFECT NOT PERMISSIBLE -- Ratification is effective only from date of proper ratification Attempted ratification must be explicit and in strict TOMA compliance

TOMA STATUTORY ANALYSIS: CIVIL ENFORCEMENT Tex. Gov’t Code § 551.142 -- Interested person (including media) may sue to stop, prevent, or reverse violation of TOMA through injunction, mandamus, or declaratory judgment relief   Court may assess costs and attorney’s fees, dependent on whether: (1) action was brought in good faith, and (2) the body’s conduct had reasonable legal basis  Body may be ordered to stop violation or perform duty required by statute. ALSO, COURT MAY (BUT IS NOT REQUIRED TO) VOID ACTION TAKEN IN VIOLATION OF TOMA   Tex. Gov’t Code § 551.146 -- Individual, corporation, or partnership can be held liable for damages if, without lawful authority, he/it knowingly discloses to public certified agenda/tape recording of meeting lawfully closed under TOMA  DAMAGES = (1) actual damages -- including personal injuries, lost wages, defamation, or mental/emotional distress; (2) attorney’s fees and court costs; and (3) exemplary damages  DEFENSE = (1) good reason existed to believe disclosure was lawful; or (2) disclosure was result of mistake  Tex. Gov’t Code §§551.142, 551.146

TOMA STATUTORY ANALYSIS: CRIMINAL ENFORCEMENT Tex. Gov’t Code § 551.143 -- Member of body commits offense if he knowingly conspires to circumvent TOMA by meeting in numbers less than quorum for secret deliberations in violation of TOMA; PUNISHMENT = fine of not less than $100 or more than $500, jail confinement for not less than one month or more than six months, or both such fine and confinement   Tex. Gov’t Code § 551.144 -- Member of body commits offense if closed meeting is not permitted under TOMA, and he knowingly: (1) calls/aids in calling or organizing closed meeting, whether special or called meeting; (2) closes or aids in closing meeting if a regular meeting; or (3) participates in closed meeting, whether regular, special, or called meeting; PUNISHMENT = fine of not less than $100 or more than $500, jail confinement for not less than one month or more than six months, or both such fine and confinement. Tex. Gov’t Code § 551.145 -- Member of body commits offense if he participates in closed meeting knowing that certified agenda is not being kept or tape recording is not being made. PUNISHMENT = fine of not more than $500. Tex. Gov’t Code § 551.146 -- Individual, corporation, or partnership commits offense if, without lawful authority, he/it knowingly discloses to member of public certified agenda or tape recording of meeting lawfully closed to public under TOMA. PUNISHMENT = fine of not more than $2,000, jail confinement for not less than 180 days, or both such fine and confinement. Tex. Gov’t Code §§551.143-.146

How to Find Help TAC Legal toll-free: 888-ASK-TAC4 (275-8224) TAC Website: www.county.org Texas AG’s Open Government Helpline: 877-OPEN-TEX (673-6839) AG’s Website: www.texasattorneygeneral.gov