OPEN MEETINGS ACT VIDEO
INTRODUCTION: Centuries ago, our nation was founded as no other - free, democratic and open. Spelled out in the Declaration of Independence and the Bill of Rights, government derives their just powers from the consent of the governed. Powers intrusted to them by the populous. The public’s right to know is essential to accountability in government. We have the right to know what occurs in government meetings and what is contained in public records. It’s openness mandated by state and federal law. It’s only natural that elected officials and government leaders want recognition for their successes but not their failures. But we as a healthy democracy need to know the good, the bad, and the ugly. Today we carry on the ideals and sacrifice of our countries founders. Openness and accountability, not secrecy and concealment, is what keeps our democracy strong and enduring. That’s what a free democratic government is all about and you can’t have one unless people know what is going on behind government doors. The Texas Attorney General’s Office presents Open Government Training - Open Meetings.
GENERAL ABBOTT: Hello, I’m Texas Attorney General Greg Abbott. Thomas Jefferson once said that a public office is a public trust, and in that spirit the work of government must be open to all the people. It is a principle written into Texas law and upheld by the courts. The Sharpstown stock fraud scandal of the early 1970's serves as a reminder of the public trust and also of what happens when that trust is breached. Federal accusations and state charges were levied upon several elected officials. After the scandal new Texas open government laws were passed to ensure that a scandal of that magnitude never happened again. As public officials elected to office, we owe it to all Texans to protect the openness and freedom this state and this country were founded upon. I’ve found that in most cases were a governmental body does not comply with the Open Meetings Act, it is simply because public officials do not know what the law requires of them. This video is a good step towards understanding the Open Meetings Act and how it applies to your particular responsibility. And while this video will address issues such as quorums and closed or executive sessions, among other things you will no doubt have questions. Rest assured we will stand ready and willing to help you in any way we can. Thank you very much for your time and, more importantly, for your dedication to the people of Texas.
NANCY: Welcome to the Attorney General’s Open Meetings Act training video. I’m Nancy Fuller, Chair of the Attorney General’s Opinion Committee. The opinion committee is responsible for interpreting various provisions of the Open Meetings Act and the purpose of this video is to outline for you the basics of what the law requires in your everyday business as a public official concerning meetings. We’ll begin with some background.
[GRAPHIC Introduction & Overview of the Open Meetings Act]
ANNOUNCER: An introduction and overview of the Open Meeting Act
NANCY: A member of a governmental body has a duty to comply with the Texas Open Meetings Act. The Act’s requirements remind us that a public officer’s governmental authority is to be exercised for the benefit of the public. The Open Meetings Act requires all meetings of governmental bodies to be open to the public, except where the Act or another statute allows for a closed meeting. The public must be given notice of the time, place, and subject matter of each meeting, and records must be kept of open and closed meetings. The Act also provides civil remedies and criminal penalties for violations.
[Graphic: Purpose of the Open Meetings Act]
ANNOUNCER: Purpose of the Open Meetings Act
The Open Meetings Act was first adopted in 1967 on the premise “Our citizens are entitled . . . not only to know what government decides but also to observe how and why every decision is reached.”
NANCY: As Attorney General Abbott mentioned earlier, the importance of open government laws became evident when the Sharpstown scandal came to light in 1971 and 1972. [VIDEO OR GFX Slide 2: Gfx of headlines of Sharpstown scandal/and or video montage with sweeps and pans.] This scandal involved a bank’s effort to secure favorable legislation by bribing legislators, and it resulted in the conviction of the incumbent Texas Speaker of the House and two associates for stock fraud violations.
[video clip] - NEWSWOMAN: Sharpstown State Bank , the crux of the scandal that shook the faith of the people in the state government . . .
NANCY: After many legislators lost their offices in the next election, the legislature adopted laws favoring openness in government, and made substantial revisions to the Open Meetings Act to close loopholes and to extend the Act’s requirements to more governmental meetings.
NANCY BACK ON CAM:
The Act has been amended numerous times since 1973 for various reasons, for example to deal with advances in communications technology, to close a loophole allowing for staff briefings, and on occasions to address concerns of specific governmental bodies. The Act was codified as Government Code 551 in 1993, and this is where you can locate the Act now.
NANCY CAM TURN TO NEFTY’S CAMERA:
ANNOUNCER: As the Open Meetings Act is discussed, it will be helpful for you to listen for the following information....
[GRAPHIC: LIST BELOW]
[SLIDE 3 showing following points with new voice-over]
Requirement of a governmental body to hold open meetings.
Definition of “governmental body.”
Definition of “meeting.”
Notice of time, date, place, and subject matter of meetings.
Open and closed meetings.
Penalties and remedies for violations.
[GRAPHIC: The Open Meetings Act: Governmental Bodies, Quorums and Meetings]
ANNOUNCER: The Open Meetings Act: Governmental Bodies, Quorums and Meetings.
ANNOUNCER: Under the Act, all of a governmental body’s meetings must be open to the public, unless a law allows a closed meeting.
NANCY: The Act applies only to governmental bodies, and there are three types of governmental bodies that are subject to the Act. [GRAPHIC 5: ✔governmental bodies; ✔entities required by law or rule to comply with the Open Meetings Act; ✔in certain circumstances, a committee or subcommittee]: First of all, entities that are within the Act’s own definition of “governmental body”; entities that another statute or rule make subject to the Act; and sometimes a committee of a governmental body, if the committee makes final decisions for the governmental body.
When you think about an open meeting this is likely what you think of...
[ROLL OPEN GOVERNMENT VIDEO]
MAYOR: Good evening, I’d like to welcome everybody to this meeting of the city council. (Then skip to the following...) After our deliberation with the people here tonight we will briefly convene in executive session ...... (Then skip to.)
ATTENDEE: Why can’t you all discuss it out here?
MAYOR: Settle down, settle down. In order to be fair to Mr. Linton and to determine his availability and ability to oversee the repairs it’s appropriate, and lawful I might add, for us to discuss in private this matter.” (Fade to black)
NANCY: That scenario was obviously the start of a city council meeting and a discussion about some of the business to be discussed. In some cases, meetings can become SPIRITED... our goal with the scenarios we present here are to provide you with an idea of how to handle some of the issues you may face. We’ll also address the steps you need to take before calling a meeting and walk you through the process of making sure you are following the Open Meetings Act.
The clip you just saw was a city council meeting, but there are many more examples of governmental entities that – by law– have to abide by the Open Meetings Act.
Let’s examine these categories of governmental bodies more closely.
NANCY CAM TURN FOR SIDE CG SET UP:
[SIDE CG: Defining “governmental body”; +State Agencies; +Counties; +Cities; +School Districts; +Some Non-Profit Corporations]
The Act defines the term “governmental body” to include, for example, state agencies, counties, cities, school districts and some types of private non-profit corporations. (Info below needs to go on a handout, not a slide):
ANNOUNCER: A more complete list of entities subject to the Open Meetings Act would include...
- a state board, commission, department, or agency that is within the executive or legislative branch of government and that is directed by at least one elected or appointed member;
- a county commissioners court and a municipal governing body;
- a department, agency, or subdivision of a county or municipality that has rulemaking or quasi-judicial power—that is, a department, agency, or subdivision of a county or municipality with authority to determine policy making rules or to decide contested cases;
- a school board of trustees, a county board of school trustees, and a county board of education;
- the governing board of a special district created by law;
- a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that the state has authorized to serve a geographic area of the state; and
- finally, a nonprofit corporation that is organized under chapter 67 of the Water Code, that provides a water-supply or wastewater service, or both, and that is exempt from ad valorem taxation.
NANCY: The Act also applies to entities that are not governmental bodies but – by some other law or rule – are made subject to the Open Meetings Act. For example, the legislature has adopted statutes providing that economic development corporations and the governing bodies of open-enrollment charter schools are subject to the Open Meetings Act.
And finally, the Act applies to a committee of a governmental body IF the committee does more than simply advise the governmental body. If the committee’s recommendations are routinely “rubber stamped” by a governmental body or if the committee has the power to make actual, final decisions for the governmental body, then the committee is subject to the Act. And this is true even if less than a quorum of the governmental body sits on the committee.
[GRAPHIC or SIDE CG: Entities NOT subject to the Open Meetings Act; the judiciary; an advisory committee; a private non-profit corporation that performs government business; a private entity]
Certain entities are not subject to the Act. They include:
- the judiciary;
- an advisory committee, whose actions are not simply rubber stamped by the parent
- a private nonprofit corporation that performs governmental business unless it is specifically made subject to the Open Meetings Act by statute or rule; and
- a private entity.
Now, merely because a private entity receives public funds does not mean that it’s subject to the Open Meetings Act, although it might be subject to the Public Information Act. The Open Meetings Act and the Public Information Act are separate laws that are completely independent of each other.
For the purposes of this video, when we refer to a governmental body, we’re referring to an entity that’s subject to the Open Meetings Act.
[GRAPHIC: What is a quorum?]
ANNOUNCER: What is a quorum?
ANNOUNCER: The term “quorum” generally refers to “a majority of a governmental body.”
The Open Meetings Act applies to a gathering of a quorum of a governmental body’s members where public business is deliberated or discussed.
NANCY: Some entities have special requirements for what constitutes a quorum, but generally it’s a simple majority of the members. Let’s say, for example, that there are 8 members on the city council or school board – that means 5 have to be present to make a quorum. A quorum of a governmental body must be present for them to transact business and to take final action. In some situations, the Act applies even when there is not a quorum present. For example, committees that are not truly advisory such as we discussed earlier. Another example is when members knowingly meet in numbers less than a quorum in order to avoid having a public meeting. We will discuss this conspiracy provision later on in the presentation.
[GRAPHIC: So what constitutes a meeting?)
ANNOUNCER: What constitutes a meeting?
[GRAPHIC: A meeting occurs when: a quorum gathers; public business is discussed; and EITHER (1) a member of the governmental body speaks or (2) the governmental body called, conducts, and is (3) responsible for the meeting.)
ANNOUNCER: The Open Meetings Act defines the term “meeting” to include two types of gatherings. Both require the presence of a quorum and the discussion of the governmental body’s public business. One type is when at least one member of the governmental body joins in the discussion of public business. Or, the other, occurs when the governmental body called the meeting, conducts the meeting, or is responsible for the meeting.
NANCY: Trying to figure out if a quorum is present and whether certain gatherings are meetings subject to the Open Meetings Act can be difficult to determine sometimes. Here are a few scenarios that will give you a better idea about situations that may arise and whether or not they’re considered “meetings” under the Open Meetings Act.
The following are examples of various gatherings of a five-member governmental body – it could be a school board, special district, county commissioners court, or even a city council – the important thing to focus on is trying to determine whether the gatherings of the individuals are meetings subject to the Act. The first step is always to determine whether a quorum is present. Then look at whether the quorum is discussing public business over which the governmental body has authority, and if either a member is participating in a deliberation of the public business or the governmental body called, is conducting, and is responsible for the meeting.
(VIDEO - Example One)
ANNOUNCER: This is the most common scenario - a board or city council at a traditional meeting. You can see – a quorum is present – which means at least a simple majority of the council members are in attendance and, at least one member of the council is discussing the city’s public business. The city council has called, is conducting, and is responsible for the meeting. This is clearly a meeting that is subject to the Open Meetings Act.
(VIDEO - Example Two)
ANNOUNCER: This second example again shows members of a board or city council at a regularly called and scheduled meeting. This time though, only one member of the city council is discussing the city’s public business with a member of the audience. Because a quorum is present, one council member is participating in a deliberation of the city’s public business, and the city council called, is conducting, and is responsible for the meeting, this is a meeting subject to the Open Meetings Act.
(VIDEO - Example Three)
ANNOUNCER: Our next example shows three city council members and the mayor discussing the city’s public business in a social setting away from city hall and the council chambers. The three members constitute a majority of the five-member city council, so a quorum is present. The quorum is discussing the city’s public business and at least one member is participating in the deliberations. Even though the governmental body probably didn’t call this meeting, it’s still a meeting under the Act because all of the other elements of a meeting are present. Unfortunately, these members are having an illegal meeting.
NANCY: This next example is most certainly a situation that occurs in city halls, school administration buildings and other government offices regularly. Members of a governmental body have to be careful that they don’t “drift” into an unplanned meeting like this one, especially when they are in social situations, or when they’re at an administration building. If a member of the commissioners court, for example, is discussing county business with the county judge in the county judge’s office and another county commissioner walks in and joins the discussion, suddenly a meeting subject to the Open Meetings Act is taking place.
The seriousness of this can be seen in a notorious 1990 case - in it, the Texas Supreme Court found that two members of a three-member water commission violated the Act because they discussed public business in the restroom during a break from the regular meeting. The Court said when a quorum of a governmental body is considering the governmental body’s public business, “there can be no ‘informal’ discussion. There is either formal consideration of a matter in compliance with the . . . Act or it’s an illegal meeting.”
Cut to concerned looking audience member who is raising her hand.
NANCY: I see you have a question.
AUDIENCE MEMBER: Yes, I’m very concerned about this. I had no idea that the Act applied so broadly. I serve on a five-member city planning commission that is subject to the Act. Three of us are friends and our kids play on the same soccer team. We see each other all the time at parties, and at soccer games, and at practices. Should we avoid talking to each other except at commission meetings?
NANCY: That’s really a good question and I’m glad you asked that question because we get it a lot, and it’s a common misconception about the Open Meetings Act. And, no, it’s not that you need to avoid talking to each other in social settings. Remember, the Act applies only to discussions about public business of the governmental body. The Act clearly states that social functions unrelated to public business do not apply. Now, if you avoid talking about the planning commission’s public business when you are with other members socially, you really don’t have to worry about violating the Act. .
DIFFERENT AUDIENCE MEMBER: So, what if another member comes up and starts talking about a matter of public business?
NANCY: Well, you should probably politely direct the other member to hold their comments for a future open meeting. If you continue the conversation, you run the risk of a walking quorum problem by knowingly discussing public business outside of a public meeting.
(VIDEO - Example Four)
ANNOUNCER: In this next example, the city council members are silently listening to members of the audience discuss the city’s public business. This is reminiscent of a public hearing where someone other than the council is doing all of the talking. A quorum is present, the city’s business is being discussed, and even though no city council member is participating in the deliberation, the city council called the meeting, is conducting the meeting, and is responsible for the meeting. This meeting is subject to the Act even though no members participate in the discussion.
(VIDEO - Example Five)
ANNOUNCER: This next example is similar to the first, except this time the city council is listening to a city staffer speak about the city’s business. Once again, a quorum of the city council is present, and city business is being discussed. Even though no council member participates in the discussion, the city council called, is conducting, and is responsible for the meeting. This meeting is subject to the Act. The fact that this was a staff briefing makes no difference because the legislature specifically closed the “staff briefing exception” to the Open Meetings Act in 1999.
NANCY: But not all meetings are held in public chambers and in city, county and state buildings. So what happens if, let’s say, the meeting was in the Mayor’s office?
[VIDEO - Example Six]
ANNOUNCER: The change of location does not affect the result: a quorum of the city council is present, the city’s public business is being discussed, and even though no council member is participating in the discussion, the city council called, is conducting, and is responsible for this meeting. This meeting is subject to the Open Meetings Act.
[VIDEO - Example Seven]
ANNOUNCER: This example is the same, but instead of being located in a mayor’s office, this gathering occurs at a local park during a city council retreat. None of the city council members are participating in the discussions but the results are the same: a quorum of the city council is present, the city’s public business is being discussed, and the city council called, conducts, and is responsible for the meeting, even though no council member is participating in the discussion of public business. This is a meeting subject to the Open Meetings Act.
[VIDEO - Example Eight)
ANNOUNCER: In this example, four members of the city council are attending a school board meeting to listen to a discussion of public business affecting the city as well as the school district. Although a quorum of the city council is present and the city’s business is discussed, no council member participates in the discussion and the city council did not call this meeting. This is not a meeting of the city council subject to the Act.
[VIDEO - Example Nine]
ANNOUNCER: We have here the same scenario with one important difference: a city council member participates in the discussion of the city’s public business. As in the previous example, a quorum of the city council is present and the city’s public business is being discussed. Thus, even though the city council did not call this meeting, this is now a meeting of the city council subject to the Act because a city council member participated in the discussion. In this scenario the city, in addition to the school board, should have posted proper notice of the meeting.
NANCY: A meeting subject to the Open Meetings Act doesn’t just apply to traditional meeting settings... it can also occur through a nonspoken exchange, such as written materials or email. ***FOOTAGE OF EMAIL EXCHANGE*** The Office of the Attorney General has determined, for example, that circulating an invoice among members of a commissioners court until a quorum agrees to approve a payment by signing the invoice, instead of considering that invoice at a public meeting, violates the Act. Written approval of the invoice was no different from the deliberation of any other county business that would normally be required to take place during an open meeting.
Because circulating written comments can constitute a meeting subject to the Act, the members of a governmental body should be very cautious about email or text-message interactions among themselves on a subject matter that is related to the public body’s business. If you receive an email that you feel is questionable you SHOULD NOT REPLY to that email and you should immediately contact your legal counsel.
Generally, a governmental body cannot meet by telephone or video conference unless they are specifically authorized by state law to do so. Because the provisions authorizing meetings by telephone or video conference are so specific and detailed, you should consult with your legal counsel before holding or participating in a meeting by telephone conference call or video conferencing.
This has been a lengthy discussion of the Act’s definition of a “meeting.” Anytime you encounter discussion of public business outside the course of an open meeting, you should develop a habit of asking yourself whether the discussion might violate the Texas Open Meetings Act. If you are unsure, you should always err on the side of caution and delay the discussion until the matter can be discussed in a formal meeting or have an opportunity to consult your attorney or the attorney general’s open government hotline. The attorney general’s hotline number will be provided at the end of this presentation.
[GRAPHIC: Notice Requirements for Open Meetings]
ANNOUNCER: Notice Requirements for Open Meetings
The Act requires a governmental body to provide to the public “written notice of the date, hour, place, and subject of each meeting held by the governmental body.”
Before a public meeting covered under the act gets to this point....
[NATS FROM OPEN GOVERNMENT TAPE: Backtime from last sentence]
MAYOR: The only discussion will be to consider council action to authorize the appropriation of funds to immediately begin repairs on the water treatment facility.”
There must first be a notice posted.
[VIDEO - someone typing out a notice or a screen shot of a prepared notice]
City of Texasville
Notice of Meeting of the City Council
January 4, 2006
City Administration Building
1. Personnel Matters
2. Consideration of appropriation to begin immediate repairs on the water treatment facility.
3. Consideration to appoint an interim manager to oversee the repairs of the water treatment facility.
4. Consideration of ordinance condemning property between blocks 1 and 2 of McMurtry Way between Lonesome Dove Drive and Hat Creek Cover, for construction of a city park.
5. Public Forum
Here’s an example of a notice. Make sure you provide basic information including time, location and business that will be discussed. In the case of the Texasville City Council meeting you’ll remember one of the issues they were considering was the authorization of immediate repairs to the water treatment facility. You’ll notice that is clearly indicated on the agenda.
NANCY: In general, notice must be sufficient to inform the general public of the subjects to be considered during the meeting. Whether the notice is legally sufficient, however, can vary based on the facts. [NANCY HOLD UP NOTICE]
In our example here of notice for the January 4th, 2006, Texasville City Council meeting, we see that in item 1, the council has given notice that it intends to discuss personnel issues. Let’s suppose that the council proposes to uses only the word “personnel” to alert the public of the council’s intention to select a new director. Do you think that is sufficient wording on the notice?
[SOME CROWD MEMBERS MUMBLE NO, SOME SHAKE THEIR HEADS YES]
Well, I see some yes’s and some no’s. In this case, if the notice item had only used the word “personnel”, it would be insufficient to describe the selection of a new director because of the high level of public interest in the appointment. On the other hand, if the business at hand was to discuss hiring a new clerk – simply using the word “personnel” could be okay.
The Texas Supreme Court has held that notice of a closed meeting to discuss “personnel” was insufficient to describe the selection of a school superintendent because it was a subject in which the public had a great deal of interest. The court said that selecting a new school superintendent is not the same as ordinary personnel matters– and that a label like “personnel” fails to let the public know what the meeting is really about. Selecting a director or a city manager, for instance, is clearly on the same level as the selection of a school superintendent and it’s probably of special interest to city residents. However-- absent special circumstances in some particular case-- the hiring of clerk to the city secretary is probably not a subject of special interest to city residents and therefore, in a case like that, “personnel” is likely a sufficient description of the intention to discuss the item. Again, err on the side of caution when making decisions or consult your legal counsel.
The Act requires notice to fully disclose the subject matter under consideration... but notice DOES NOT NEED TO outline all the consequences that might result from considering a matter. Our notice also describes a proposed condemnation by the city of land in a particular area. This type of meeting notice is adequate according to the Texas Supreme Court. It is not necessary to inform particular landowners that their land might be condemned in your meeting notice. The Act is designed to benefit the public, not individuals, so notice under the Act does not have to be specifically tailored to individuals whose interests are most likely to be affected by a proposed action.
[ROLL TEXASVILLE CITY COUNCIL MEETING]
(woman approaches the microphone)
ELMA: You’ve run the Paynes clear off their land for this precious sewage system, and now look what happens. I think you should revote and give the land back to the people it rightfully belongs to. Ha! This ain’t progress, this is nothing but scandal and dirty politics and greed!
MAYOR: Elma, Elma, we’ve been over this. The city needed the land, and Josie and Randy were very handsomely compensated for it. Besides, I don’t see them here complaining about it. Now we covered all of this at a city council meeting three months ago, And if I remember correctly you had plenty to say at the time. So unless you have a specific question or an opinion about this matter, I’m going have to ask you to step aside.
ELMA: I just want you to know how the folks in this town feel.
NANCY: You’ll notice in this video clip that members of the public showed up to discuss something that had already happened at a previous Texasville City Council meeting.
Generalized terms such as “old business” and “new business” are not proper terms to give notice of a meeting because they really do not inform the public of the subject matter to be considered. The terms “public forum” or “public comment,” however, do provide sufficient notice of a public comment session. In a public comment session, members of the general public are allowed to address their governmental body about their concerns, and the governmental body does not comment on or discuss the concerns.
AUDIENCE MEMBER: Why are notice items like “old business” not okay, but general items like “public forum” are?
NANCY: That’s a good question. The difference has to do with who’s talking about the agenda item. Let me explain. Let’s say, for example, that somebody from the city zoning commission was giving a presentation at a public meeting. The council would be able to easily give advance notice of that subject matter because it knows in advance what specific items are going to be considered. On the other hand, if a member of the public comes in and talks about that same zoning issue that the governmental body couldn’t have predicted then that subject matter is not going to be on the notice. They can talk about it in a public comments session, but they can’t discuss it.
The Act also sets the minimum length of time a governmental body must post notice before each meeting and the location at which notice must be posted.
[GRAPHIC: [Slide 18] With certain exceptions, the notice of a meeting of a governmental body must be posted in a place readily accessible to the general public at all times for at least 72 hours before the scheduled time of the meeting.
ANNOUNCER: With certain exceptions, the Act requires a governmental body to post notice “in a place readily accessible to the general public at all times for at least 72 hours” before the meeting is scheduled to start. This 72-hour requirement applies to most local governmental bodies. A governmental body with statewide jurisdiction, HOWEVER, must give even more notice. That statewide governmental body must file notice of a meeting with the Texas Secretary of State’s Office. That notice will be posted on the Internet for at least seven days before the meeting day.
NANCY: Governmental bodies should post notice in their regular meeting place or administrative offices unless some other place is designated by law. For example, cities must post notice on bulletin boards in city hall, and school boards should post notice in the school district’s central administrative office. There are also specific notice requirements for political subdivisions that extend into fewer than four counties and larger ones that extend into four or more counties. Notice must be accessible to the public for the full 72 hour period. If the notice posted indoors is not accessible for the full 72 hour period because the building is closed at night and on the weekends, local governmental bodies may post a copy of the notice on an outdoor kiosk or a bulletin board next to the building.
A new provision of law pertains to Internet posting of notices. If a city, county, school district, college board or district, or a development corporation maintains an Internet website, [screen shot of person typing in “Texasville.state.tx.us” and having a typical city-like “web page” appear with “city council meeting January 4, 2006” in obvious print - person clicks on that and we see the notice back on page ___] it must also post its notice on its’ website as well as in its regular physical location. Where the Act requires or permits the notice to be posted online, as long as the governmental body makes a good-faith effort to attempt to continuously post notice on the Internet, the physically posted notice needs to be readily accessible to the general public only during business hours instead of “at all times.”
ANNOUNCER- There may be additional posting requirements for these types of governmental bodies if they exceed a certain size. Please consult your legal counsel for guidance on specific requirements that may apply to your situation.
NANCY - There are some special rules for notice of emergency meetings and for providing supplemental notice of subjects added as an emergency matter to a meeting notice after the initial posting. The public notice of an emergency meeting must be posted for at least two hours before the meeting is scheduled to begin. A governmental body may decide to consider an emergency item during an already scheduled meeting. But in that case, the governmental body must post notice of the subject that is added to the agenda at least two hours before the meeting on that emergency topic. These special rules apply only in the case of an emergency meeting or urgent public necessity.
[GRAPHIC: What constitutes an “emergency?”
ANNOUNCER: What constitutes an “emergency?”
[SLIDE 19 - READ BY ANNOUNCER] ANNOUNCER: An emergency or urgent public necessity exists only if a governmental body is required to take immediate action because of
(1) an imminent threat to public health and safety; or
(2) a reasonably unforeseeable situation.
ANNOUNCER - And the notice of the meeting or the additional agenda item must clearly identify the emergency or urgent public necessity; if the notice doesn’t do so, a court may invalidate it, and any actions that were taken at the meeting may be voided. To comply with the Open Meetings Act, any use of the emergency meeting provisions must be legitimate.
BACK ON CAM
NANCY - Over here.
AUDIENCE MEMBER: What do we do if we notice within 72 hours of the meeting that we forgot an agenda item off the notice?
NANCY: Well, you’re going to need to save that agenda item for the next scheduled meeting or reschedule the meeting and repost notice. Only emergency items can be added to the agenda once you’re within the 72 hour notice period before the meeting.
So what happens to your notice requirements if you recess a meeting?
A governmental body may recess an open meeting to the following regular business day without reposting notice of the continued meeting if the action is taken in good faith and not to circumvent the Act. For example, if your meeting goes until midnight and everyone’s tired and wants to go home, the governmental body can recess for the night and take up the meeting again on the next business day without reposting notice of the meeting. If, however, a meeting is called at 4:55 p.m. on one day with the intent of immediately recessing that meeting and then reconvening on the next business day in hopes of concealing from the public what’s actually taking place, then you’re going to be in violation of the good faith requirement.
[GRAPHIC: Preparing and Keeping a Record of a Meeting]
ANNOUNCER: Preparing and Keeping a Record of a Meeting
[GRAPHIC: READ BY ANNOUNCER ]
ANNOUNCER: A governmental body must prepare and keep minutes or make a tape recording of each open meeting of the body.
The minutes must:
(1) state the subject of each deliberation; and
(2) indicate each vote, order, decision, or other action taken.
NANCY: You must comply with one of the two options. You can simply prepare written minutes or making a tape recording. If the governmental body chooses to prepare written minutes, the minutes must state the subject of each deliberation and must indicate each vote, order, decision, or other action taken. The minutes and tape recordings of an open meeting are public records and must be made available to the public. If minutes are kept instead of a tape recording, the minutes must record every action taken by the governmental body.
AUDIENCE MEMBER: The commissioners court I serve on tapes its open meeting to assist the county clerk in typing up the official minutes. We then adopt the minutes at the next meeting. Are there any rules governing the maintenance of this tape?
NANCY: That’s another question that we get asked a lot. Under the Records Retention Act, a governmental body must have a schedule for retaining and destroying all of various types of information that it holds – and that schedule has to be approved by the Texas State Library and Archives Commission. The tape can then be destroyed consistently with that schedule. In general, the Texas State Library and Archives Commission requires a tape of a county commissioners court’s open meeting that is used to prepare written minutes - like the one you described - to be retained for 90 days after the commissioners court approves the minutes. You can check on the retention schedule for any particular kind of information with your records retention manager or online with the Texas State Library and Archives Commission’s Website.
[GRAPHIC ] Procedures and Requirements for Holding an Open Meeting and Procedures and Requirements for Holding a Closed Meeting
ANNOUNCER: Procedures and Requirements for Holding an Open Meeting and Procedures and Requirements for Holding a Closed Meeting
A meeting may not be convened unless a quorum of the governmental body is present in the meeting room.
NANCY: It’s important to note that this requirement applies even if the governmental body plans to go into a closed meeting immediately after convening. The Act requires a meeting of a governmental body to be held in a location accessible to the public. In addition, the Americans with Disabilities Act requires the room in which a public meeting is held to be physically accessible to individuals with disabilities.
NANCY CAMERA TURN TO NEFTY:
Let’s watch a meeting of the Texasville City Council being called into session.
[film footage- mayor convening meeting first and part of second sentence only]-
MAYOR: Good evening, I’d like to welcome everybody to this meeting of the city council. I’m sure most of you are here having seeing this article in the newspaper this morning. . .
(sound MUST fade out so that we hear NO MORE than “paper.” However, footage continues, while Nancy voiceover uses video to illustrate talking points]
NANCY: (keep video up, fade down audio) Members of the public, including the news media, attending an open meeting have a right to record the open meeting by audiotape, videotape, or other comparable means of recording. The governmental body may make reasonable rules to maintain order at a meeting, including rules about the location of recording equipment.
A meeting that is open under the Open Meetings Act is one that the public is permitted to attend. The Act, however, does not entitle the public to choose the items to be discussed or to speak about items on the agenda. A fundamental purpose of the Act is to allow the public to see its government in action. A governmental body may choose to give members of the public an opportunity to speak at a public meeting. [film footage should end here with women getting up to speak at podium - fades and screen returns to trainer].
NANCY ON CAM:
If it does so, it may set reasonable limits on the number, frequency, and length of presentations, but it may not unfairly discriminate among speakers for or against a particular point of view.
[AUDIENCE MEMBER RAISES HAND... ]
AUDIENCE MEMBER: What if a member of the public asks a question about something that is not listed on the notice? How should the governmental body respond?
NANCY: Well, first of all the governmental body can’t discuss it as a matter of public business because it wasn’t posted on that notice and so the public doesn’t have any notice that this was going to be discussed. But members of the governmental body can provide factual information and information about any existing policy.
ANNOUNCER - Closed Meetings
NANCY - A governmental body cannot discuss its public business in a closed meeting unless there is a specific statute that authorizes it to do so. A closed meeting must be specifically authorized by statute, whether that is contained in the Open Meetings Act itself or in another statue. For example, some governmental bodies are authorized by their governing law to hold closed meetings for reasons in addition to those permitted by the Open Meetings Act. A good example of some of the most common exceptions found in the Open Meetings Act allow for consultations with attorneys, deliberations about real property, deliberations about the implementation of security devices, and deliberations regarding economic development negotiations.
ANNOUNCER - Attorney Client Consultation
NANCY: One of the most common exceptions that allows for a closed meeting is the exception for attorney consultation.
A governmental body may consult with its attorney in a closed meeting to seek advice on legal matters. Implementing the attorney-client privilege, this exception allows a governmental body to seek advice of its legal counsel with respect to pending or contemplated litigation or settlement offers and on legal matters that are not related to litigation. However, a general discussion of policy that’s unrelated to legal matters, is not permitted under this exception just because an attorney is present in the room. A governmental body may, for example, consult with its attorney in a closed meeting about legal issues raised in connection with awarding a contract, but it may not discuss the merits of that proposed contract, financial considerations, or other matters in a meeting that is closed under the attorney consultation exception.
[GRAPHIC: Real Property Exception]
ANNOUNCER: Real property exception.
A governmental body may deliberate in a closed meeting on certain matters concerning real property.
NANCY: This exception permits a governmental body to go into closed meeting only where public discussion of the subject would have a detrimental effect on the governmental body’s negotiating position with respect to a third party.
[GRAPHIC(Fullscreen): Acceptable discussions in a closed meeting; implementing security personnel or security equipment; economic information from prospective business relocations]
NANCY: The Open Meetings Act permits a governmental body to discuss in a closed meeting deploying or implementing security personnel or devices. The Act also authorizes a governmental body to deliberate on commercial or financial information that it has received from business prospects that the governmental body seeks to have locate, stay, or expand in or near their territory and with which the governmental body is conducting economic development negotiations. Neither of these two exceptions have been interpreted by the courts or the attorney general’s office, but you need to be aware that they are out there.
ANNOUNCER - Another common closed meeting exception is the personnel exception. A governmental body may deliberate employment matters in a closed meeting, including the hiring, evaluations, reassignment, discipline, or dismissal of an employee.
NANCY - There are several other exceptions permitting closed meetings. You should check the Open Meetings Act and consult with legal counsel about their proper use.
[GRAPHIC: Who can attend a closed meeting]
ANNOUNCER: Who can attend a closed meeting?
Only the members of a governmental body have a right to attend a closed meeting, although a governmental body’s attorney must be present when the governmental body closes a meeting using the attorney consultation exception.
NANCY: A governmental body has discretion to include the governmental body’s officers and employees in a closed meeting if their participation is necessary to the matter under consideration. However, a body must not admit a person whose presence is against the interests of the governmental body that the closed meeting is designed to protect. For example, a person who is trying to sell real estate to a city may not attend a closed meeting held under the real property exception because the closed meeting exception is designed to protect the city’s bargaining position in its negotiations with the seller.
ANNOUNCER: Let’s take a closer look at closed meeting procedures . . .
To conduct a closed meeting that is permitted by law, the governmental body must: (1) have a quorum; (2) properly convene in an open meeting; (3) have announcement that a closed meeting will be held; and (4) identify in the open meeting the sections of the law that allows the closed meeting.
ANNOUNCER: Closed meetings must be specifically authorized by a provision of the Act or another statute. When a governmental body wishes to go into a closed meeting, the governmental body must first assemble in the meeting room and convene the meeting as an open meeting for which proper notice has been posted, even if the governmental body plans to proceed immediately to a closed meeting. After convening the meeting, the presiding officer must announce that a closed meeting will be held and must identify the statute that authorizes the closed meeting. Let’s return to our Texasville example to see how they’ve handled this issue.
[ROLL VIDEO FOOTAGE]
[film footage- Mayor ends his opening of meeting -
MAYOR: After our deliberation with the people here tonight, we will briefly convene in executive session in compliance with Subchapter D, Subsection 551.074 of the Open Meetings Act, which allows us to deliberate the appointment, reassignment, duties, discipline, or dismissal of a public officer or employee. Afterward, we will reconvene here to vote on any action we may take toward the manager of the facility, Mr. Linton.”]
ANNOUNCER VOICEOVER: Take note the Mayor cited both the section number authorizing the closed meeting and described the exception. Either one of those by themselves would’ve been sufficient. Although a meeting notice does not have to indicate which items will be discussed in a closed meeting – unless the governmental body has a practice of doing so-- the notice must list all subjects that will be discussed, in both open or closed portions of that meeting. The public is entitled to know which members are present and whether there is a quorum. The public is also entitled to know which exceptions in the law authorize the closed meeting.
[BACKTIME VIDEO OF CLOSED TEXASVILLE SESSION]
JENNIFER: I think that a lot of those people had some important things to say. I think we should pay attention.
MAYOR: Hold on a second Jennifer, I’ve got to get this on tape for the certified agenda.
ANNOUNCER: A governmental body must make either a certified agenda or a tape recording of each closed meeting.
SHOW MAYOR: It’s 7:30p.m. and we are in this closed meeting to discuss possible disciplinary action against . . .
[INCLUDE SHORT SNIPPETS OF THE TEXASVILLE TAPE INTERTWINED WITH THE FOLLOWING EXPLAINER]
An exception to the recording of the meeting – you don’t have to record portions of a closed meeting during which the governmental body consults with its attorney under the attorney-consultation exception. Either a certified agenda or a tape must include an announcement by the presiding officer indicating the date and time at the beginning
MAYOR: November 30, 2000, it is 7:30 p.m.
and at the end of the closed meeting.
MAYOR: This concludes the closed meeting on the Linton issue. November 30, 2000, 10:07p.m..
A certified agenda also must include a statement of the subject of each deliberation and a record of any further action taken during the closed meeting.
NANCY ON CAM: Although the certified agenda or tape is confidential and not subject to the Public Information Act, a court may examine the certified agenda or tape in private to determine whether a violation of the Act occurred during the closed meeting. Also, a sitting member of the governmental body may review a certified agenda or tape, so long as the member is careful to preserve the agenda’s or the tape’s value as evidence in a possible lawsuit. The governmental body is obligated to keep the certified agenda for two years.
Again, let’s go back to Texasville and check in on their city council meeting.
[ROLL VIDEO OF TEXASVILLE CITY COUNCIL - sound on only for mayor to open meeting with date and time and indication of tape recording.]
MAYOR: This is November 30, 2000, it is 7:30pm and we are in this closed meeting to discuss possible disciplinary action against, or the possible dismissal of Junius Linton, Director of the Water and Wastewater Services for the City of Texasville.
[FADE SOUND, KEEP VIDEO UP]
NANCY: A governmental body’s final action, decision, or vote on any matter may be made only in an open meeting. The governmental body may not vote in an open meeting by secret written ballot, nor may it take action by written agreement without a meeting.
[VIDEO AND SOUND UP ON TEXASVILLE CLOSED MEETING ]
MAYOR: Not when a quorum is present. In the past the staff briefing exception has provided a loophole for some questionable voting tactics in certain governmental bodies.
COUNCILWOMAN: Then I think we should wait.
ANOTHER COUNCILWOMAN: We’re going to look soft.
MAYOR: Looking soft is not the problem. The problem is there is too much information . . .
[Cut to end of meeting]
MAYOR- Okay, the vote in the open meeting will be for disciplinary action or further review of the situation. Dismissal would be too drastic of a move at this point. Everyone ready, or do we need more discussion? Alright, let’s do it. This concludes the closed meeting on the Linton issue, November 30, 2000, 10:07 p.m.
[GRAPHIC] Penalties and Other Consequences
ANNOUNCER: Penalties and Other Consequences
[GRAPHIC] SPOKEN BY ANNOUNCER: The Act provides for civil remedies and criminal penalties for violating its provisions.
ANNOUNCER: The Open Meetings Act provides that an action taken by a governmental body in violation of the Act is voidable. A court can invalidate action found to violate the Act.
NANCY: If a governmental body took multiple actions at a meeting but only one of them violated the Act, then only that action may be voided. To remedy action taken in violation of the Open Meetings Act, a governmental body can re-take or re-do an action that has been voided at a later date, properly noticed open meeting, but the action is effective only from the time the corrective or “redone” action occurred. A governmental body cannot give retroactive effect to a prior action that was taken in violation of the Act. For example, in a 1991 case, the Austin Court of Appeals discussed the plight of the former executive director of the Texas Board of Chiropractic Examiners, whom the Board tried to fire not once, not twice, but three times. The Board first attempted to fire her at a meeting on July 9, 1988, but the meeting did not comply with the Act. Then the Board tried again at a meeting on February 25, 1989, but once again, the meeting did not comply with the Open Meetings Act. Finally, the Board terminated her at a lawful meeting held on December 1, 1989–nearly seventeen months after the first try! The court determined that the executive director was employed until the date of that third meeting and was entitled to receive back pay and all the benefits that she would have received from the time of the first meeting to the last meeting.
The civil penalty provision of the Open Meetings Act authorizes any interested person, including a member of the news media, to bring a civil lawsuit to force officials to follow the Act or to have illegal meeting actions voided. A court can award attorneys fees and litigation costs to a party who prevails in a lawsuit under the Open Meetings Act.
Certain violations of the requirements concerning certified agendas and tape recordings of closed meetings are punishable as misdemeanors. Although the Open Meetings laws do not prohibit public officials from talking about what occurred during a closed meeting, there are other practical and sometimes legal reasons for maintaining the confidentiality of these meetings.
It is an offense to knowingly circumvent the Open Meetings Act by meeting in numbers less than a quorum for the purpose of secret deliberations. This provision penalizes participants in what is sometimes called a “walking quorum” where members of a governmental body gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of the body with the objective of avoiding an open meeting. A governmental body may be subject to both civil and criminal liability for conducting business by a “walking quorum.”
A member of a governmental body may also be penalized for conducting an illegal closed meeting. However, a member of a governmental body has an affirmative defense to prosecution if the member acted in reasonable reliance on a court order, a judicial opinion, the attorney general’s office, or the governmental body’s attorney. So, if you are in doubt about the legality of a closed meeting or actions taken in a closed meeting, always consult with your legal counsel.
AUDIENCE MEMBER: Under the criminal provision regarding members who knowingly conspire to circumvent the Act by meeting in numbers less than a quorum - what does ‘knowingly’ mean?
NANCY: A person acts “knowingly” under the law when he is aware that his conduct is reasonably certain to cause the result. So, for example, if you meet in numbers less than a quorum and you are aware that your conduct is reasonably certain to lead to deliberations about public business, it’s possible that you could be found guilty of “knowingly” violating the Act.
AUDIENCE MEMBER: Who enforces the Open Meetings Act?
NANCY: The criminal penalty provisions are enforced by district attorneys, county attorneys, and criminal district attorneys. Contrary to what some people might think, the Attorney General is not directly authorized to enforce violations of the Open Meetings Act. However, the Attorney General can get involved on the request of a local prosecutor and may provide assistance in the prosecution of a criminal case.
[GRAPHIC] Open Meetings Act Resources
ANNOUNCER: Open Meetings Act Resources
NANCY: This video has covered several topics and issues that you may have to confront in complying with the Open Meetings Act. But you will, no doubt, certainly find yourself with more questions about the Open Meetings Act during your time in public service. When you have questions about how to comply with the Act, please seek advice from your staff attorney or from the attorney general’s office. The Attorney General maintains an Open Government Hotline.
Open Government Hotline
(877) OPEN TEX (673-6839) (toll free)
NANCY: This service is available toll-free at 1-877-OPEN TEX...that’s 1.877.673.6839.
[VIDEO OF HOTLINE STAFF]
There are also a number of resources are available on the Attorney General’s Website at www.oag.state.tx.us. There you’ll be able to find the current Open Meetings Handbook, the text of the Open Meetings Act, and frequently asked questions about both the Open Meetings and the Public Information Acts.
[VIDEO OF THE CONFERENCE]
Every December, the attorney general’s office hosts an open government conference offering in-
depth coverage of both the Open Meetings Act and the Public Information Act. Other organizations
also host similar types of informational meetings and training that you may wish attend.
As officers of governmental bodies located throughout Texas, your service is invaluable. We
hope that, by providing you with this basic information about the Texas Open Meetings Act, we can
help you to better serve the public that you have been elected or appointed to represent. Thank you
for your service to the State of Texas.
CLOSING REMARKS BY ANNOUNCER:
You have now finished a certified training of the Open Meetings Act. To print a certificate saying you’ve completed this training, please go to our website at www.oag.state.tx.us. Once you’re there, access the open government training link and type in the code you see on the screen right now to get your certificate saying you’ve completed Open Meetings Act training. [For the visually impaired, the number is: TXOMA873] If you are required to go through this training by law, a copy of this certificate must be on file with your governmental agency. A copy of this certificate will not be kept by the Texas Attorney General’s Office.