Open Meetings Act Basic Training Jennie Hoelscher Division Chief Opinion Committee Charlotte Harper Deputy Division Chief Opinion Committee

 Training is required for each elected or appointed public official who is a member of a governmental body.  A governmental body must maintain and make available for public inspection the record of its members’ completion of the training. Required Training

Today’s Goal

 Chapter 551 of the Texas Government Code  Office of the Attorney General’s Open Meetings Act Handbook, available on-line at: openmeeting_hb.pdf Open Meetings Act Resources

 Every regular, special, or called meeting of a governmental body shall be open to the public, except as provided by the Act. Tex. Gov’t Code § Basic Rule of the Open Meetings Act

 The purpose of the Act is to safeguard the public’s interest in knowing the workings of its governmental bodies.  The public interest is “not only to know what government decides but to observe how and why every decision is reached.” Purpose of the Open Meetings Act

 To whom and when the Act applies  Notice requirements  How to conduct open meetings  When closed sessions are permissible and how they must be conducted  Penalties and remedies under the Act Today’s Agenda

 The Act generally applies whenever there is: A governmental body, and That body is meeting. Applicability of the Open Meetings Act

 State agencies, boards, commissions, committees, or departments  County commissioners courts, city councils, school boards, special district boards, and deliberative bodies with rulemaking or quasi-judicial authority  Local workforce development boards  Certain nonprofit corporations and property owners’ associations Applicability: The Act’s Definition of “Governmental Body”

 Committees, subcommittees, or separate entities that have been delegated decision-making authority  Other governmental bodies made subject to the Act by a law outside of the Act, a rule, or a local ordinance Applicability: Governmental Bodies Subject to the Act

 Generally, the Act applies whenever a quorum of a governmental body meets.  A quorum is a majority of the governing body, unless otherwise defined by law. Applicability: Quorum

 If our board has 9 positions, but only 7 are filled, and 5 of the 7 members attend a meeting, do we have a quorum?  A city council has 7 positions, but 5 officials are removed at a recall election. Can the city council act with the two remaining officials? Hypo: Do we have a quorum?

 Even if a quorum is not present, the Act also applies when: There is a meeting of a committee or subcommittee with authority to supervise public business; or Members of the governmental body conspire to circumvent the Act. Applicability: No Quorum

 “A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent [the Act] by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of [the Act].” Tex. Gov’t Code§ Applicability: Walking Quorums

 An eleven-member city council works on city budget amendments together in discussions over the telephone and in the Mayor’s office. To avoid implicating the OMA, the city manager ensures that at no time are there more than five members engaged in the discussion. At the end of the evening, all members of the city council sign a memo outlining the agreed-upon budget changes. Hypo: Have we conspired to circumvent the Act?

 The definition of “meeting” requires: A gathering of a quorum of the governmental body; and  Deliberation about the governmental body’s public business or formal action taken by the governmental body, or  An opportunity for members to ask, speak or listen to matters relating to public business. Applicability: Definition of a “Meeting”

 A gathering of a quorum at a: Social function Convention or workshop Ceremonial event, or Press conference  Is not a meeting, provided: No formal action is taken, and Any discussion of public business is incidental to the authorized event Applicability: Exceptions

 Written notice must include the: Date Hour Place Subjects to be considered Notice: Content

City Council Meeting December 17, :00 p.m. Mayor’s Report Old Business Personnel Matters Public Comment Hypo: What is wrong with this notice?

 Political subdivisions must generally post notice 72 hours before a meeting.  Governmental bodies with statewide jurisdiction must generally post notice 7 days prior to a meeting.  In emergencies, notice must be posted 2 hours before the meeting. Notice: Deadlines for Posting

 Sections – provide detailed posting requirements for state entities, counties, cities, school districts and other districts and political subdivisions, which vary depending on the governmental body.  Many entities are now required to post notice on their websites. Some are also required to post meeting materials. Notice: Place of Posting

 The Act creates an exception to the 72-hour or 7-day posting requirements in the event of an emergency, which is defined as a situation when immediate action is required because of: An imminent threat to public health and safety; or A reasonably unforeseeable situation Notice: Emergency Meeting Exception

 Scenario A: City’s meeting notice is posted 2 ½ hours prior to an emergency meeting. The notice indicates that the city council’s “lack of confidence” in the city’s sole police officer “makes it an emergency or urgent public necessity.”  Scenario B: At a properly noticed city council meeting, the city council eliminates the position of a city employee. By the end of the meeting, the employee hands the council members the pleadings in the suit against the city. The city is formally served with the suit four days later and posts notice for a subsequent meeting with only two hours notice to discuss issues related to the lawsuit. Hypo: Does this constitute an emergency?

 When calling an emergency meeting: Post the notice two hours before the meeting Notify the media Clearly identify the emergency or urgent public necessity in the notice Notice: Emergency Meetings

 To convene a meeting, a quorum is required.  If members leave, resulting in the loss of a quorum, the meeting should be adjourned until a quorum is again present. Conducting Open Meetings

 The following governmental bodies are required to broadcast on the Internet or archive some meetings: General academic teaching institutions University systems Junior college districts with enrollment of more than 20,000 Certain transit authorities School district boards with student enrollment of 10,000 or more Home-rule municipalities with a population of 50,000 or more Counties with a population of 125,000 or more Conducting Open Meetings: Internet Broadcasting and Archiving

 Meetings must be: In a location within or reasonably close to the geographic boundaries of the governmental body Accessible to the public Accessible to individuals with disabilities Conducting Open Meetings: Location and Accessibility

 The following entities are allowed to hold certain meetings by teleconference, with restrictions: Governing board of an institution of higher education Governing board of junior college district Specific state agencies Any governmental body holding an emergency meeting if convening at one location of a quorum is difficult  Videoconferencing is permitted by all governmental bodies as long as the requirements of section are met. Conducting Open Meetings: Teleconferencing or Videoconferencing

 The public must be able to Attend Record by video, audio, or other means Conducting Open Meetings: Rights of the Public

 If allowing the public to speak, the governmental body may impose reasonable limits but cannot unfairly discriminate among speakers based on their views for or against a specific matter. Conducting Open Meetings: Public Comments or Speech

To the extent that closed meetings are permitted, they are only for purposes of deliberation. Any final action, decision, or vote on a matter deliberated in closed meeting must be conducted in an open meeting. Conducting Open Meetings: Final Actions

 A governmental body may meet in a closed meeting or executive session: When expressly authorized to do so by the Open Meetings Act When expressly authorized to do so by a statute outside the Act  The authority to meet in executive session may not be implied from a statute. Closed Meetings

 A governmental body may meet in a closed meeting to seek advice from its attorney: When discussing pending or contemplated litigation or a settlement offer, or When discussing a matter that requires the attorney to meet in a closed meeting in order to comply with the Texas Disciplinary Rules of Professional Conduct Closed Meetings: The Attorney Consultation Exception

 Scenario A: An executive session is held under the attorney- consultation exception to discuss consequences and legal ramifications of termination of a contract with the city’s garbage services provider. Deliberations include merits of awarding a new contract to a different provider.  Scenario B: An executive session is held under the real estate exception by a city’s sports development committee to negotiate with owners of professional sporting teams regarding improvements to a city-owned arena. Deliberations include discussions about legislative initiatives to create special tax districts for additional tax revenue. Hypo: Is a closed session permitted?

 Post notice  Do not begin until a quorum is present  First convene in an open meeting  Identify in the open meeting the legal provision authorizing the governmental body to meet in closed session  Keep a certified agenda or make a tape recording as required by law Closed Meetings: Procedure

 Only members of the governmental body have a right to attend.  An employee may attend if the employee’s presence is: Necessary to the closed meeting, and Would not defeat its legal basis.  No one whose presence would undermine the legal basis for the closed meeting may attend. Closed Meetings: Who May Attend

 The Act requires a governmental body to make and keep a certified agenda or recording of most closed meetings  Certified agendas are required to indicate: The presiding officer announced the date and time at both the beginning and end of the meeting A statement of the subject matter of each deliberation A record of any further action taken The presiding officer has certified that the agenda is a true and correct record of the closed meeting  Recordings are required to include the presiding officer’s announcements of the date and time at both the beginning and end of the meeting Closed Meetings Certified Agenda or Recording

 A certified agenda or recording of a closed meeting is confidential and is not available to the public except by court order  A person who knowingly and without lawful authority makes a certified agenda or recording public commits a Class B misdemeanor  A certified agenda or recording shall be preserved for at least 2 years Closed Meeting: Certified Agenda or Recording

 Express authorization is required. Authority for a closed meeting may not be implied by statute.  Notice is required by the governmental body, even if it anticipates the entire meeting to be closed.  Closed meetings are limited to deliberations; no final actions.  A certified agenda or recording is required for most closed meetings. Closed Meetings: Review

 Criminal penalties exist for knowingly violating the Act: Failing to keep a certified agenda or recording Unlawfully disclosing a certified agenda or recording Holding or participating in an illegally closed meeting Circumventing the Act by meeting with numbers less than a quorum Criminal Penalties

 The Act permits a court to void any action taken in violation of the Act.  Individuals may sue to prevent threatened actions in violation of the Act. Remedies

 Scenario A: Judicial invalidation  Scenario B: Mandamus, injunction, or declaratory judgment  Scenario C: Criminal penalties Hypo: What happens if we fail to comply with the Act?

Toll Free (877) OPEN TEX (877) Views expressed are those of the presenters, do not constitute legal advice, and are not official opinions of the Office of the Texas Attorney General. Open Government Hotline