OPEN MEETINGS ACT - TOP PRACTICE TIPS

Transcription

1 OPEN MEETINGS ACT - TOP PRACTICE TIPS DAVID M. FELDMAN City Attorney, City of Houston 900 Bagby Houston, Texas State Bar of Texas 25 TH ANNUAL SUING & DEFENDING GOVERNMENTAL ENTITIES COURSE July 18-19, 2013 Austin CHAPTER 15

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3 David M. Feldman was born August 19, 1949, in Lake Charles, Louisiana. He holds a B.A. in Political Science from LSU (1970) and a J.D., summa cum laude, from South Texas College of Law (1976). Feldman served as a U.S. Army Infantry 0fficer from 1970 to 1972, and was employed at the NASA- Lyndon B. Johnson Space Center from 1972 to Feldman was appointed as City Attorney by Mayor Parker in April Over the course of his 33 years in private practice he served as a partner with the firm of Vinson & Elkins and as managing partner of his own firm, Feldman, Rogers, Morris and Grover, L.L.P., specializing in the representation of both private and public employers in all forms of labor and employment disputes, civil rights litigation and general litigation, and serving as outside council to numerous public entities, including school districts, community colleges, cities, housing authorities and special districts. He is licensed to practice before all Texas Courts, the U. S. District Courts for the Southern, Eastern, Western and Northern Districts of Texas, the Fifth and Eleventh U. S. Circuit Courts of Appeals and the U. S. Supreme Court. He is AV rated by Martindale Hubbell and has been named to Texas Super Lawyer ( ), Texas Top Notch Lawyer (2004, 2009) and Best Lawyers in America, (1987, 2009). He has been board certified in Labor and Employment Law by the Texas Board of Legal Specialization since 1984, and has served as a member and chair of the Labor and Employment Law Advisory Commission ( ) and a member of the Labor and Employment Law Exam Commission ( present). He has also served as adjunct professor at South Texas College of Law. As City Attorney, he serves as City s chief legal representative in all judicial and administrative proceedings in which the City is party, and personally participate in all major litigation, contract negotiations (both commercial and labor), and significant dispute resolution. He attends all meetings of City Council and provide on-going legal advice to Mayor and Council, supervises a City Legal Department composed of 100 lawyers and total staff of 185, covering general litigation; labor, employment and civil rights, tort claims and subrogation; municipal prosecution; deed restriction enforcement and nuisance abatement; ordinance creation and implementation; enforcement of all open government laws; real estate and land use; and contracts.

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5 Open Meetings Act - Top Practice Tips Chapter 15 TABLE OF CONTENTS I. PREPARATION OF THE AGENDA... 1 II. EMERGENCY MEETINGS TEX. GOV T CODE III. AND SOCIAL MEDIA POSE NEW COMPLIANCE CHALLENGES IV. EXECUTIVE SESSION CONSULTATION WITH ATTORNEY. TEX. GOV T CODE V. VIOLATIONS... 7 VI. ENFORCEMENT... 7 i

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7 Open Meetings Act Top Practice Tips Chapter 15 OPEN MEETINGS ACT TOP PARACTICE TIPS I. PREPARATION OF THE AGENDA A. A governmental body shall give written notice of the date, hour, place, and subject of each meeting held by the governmental body. Tex. Gov t Code B. Adequacy of notice would a member of the general public be aware of the subjects to be considered during the meeting? 1. The notice must alert the public that action may be taken. Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975). The Supreme Court set forth a common sense standard for notice: if the notice would alert a reader to the fact that some action would be considered regarding a matter (here, the charges for electric power sold in San Marcos), then it is sufficient. Specifically, the notice stated that the board would consider ratification of the prior action of the Board taken on October 19, 1972, in response to changes in electric power rates for electric power sold within the boundaries of the City of San Marcos, Texas. Id. 2. The Open Meetings Act does not invoke due process standards. City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991). A city agenda item read: An Ordinance determining the necessity for and authorizing the condemnation of certain property in County Blocks 4180, 4188, and 4297 in Southwest Bexar County for the construction of the Applewhite Water Supply Project. Id. A property owner argued that this notice violated the Open Meetings Act because it did not describe the condemnation ordinance, and the land to be condemned, in sufficient detail. Id. at 764. The Supreme Court held that the notice was sufficient because it notified the public at large that the city would consider the condemnation of certain property in a specific area for the purposes of the Applewhite project. The purpose of the agenda item was not to notify a property owner if his or her 1 tracts in particular were proposed for condemnation, but it would notify a landowner of the four listed blocks, and this level of notice was sufficient for purposes of the Act. Id. at Personnel matters require a case-by-case analysis, but personnel is never sufficient notice. Cox Enterprises, Inc. v. Board of Trustees, 706 S.W.2d 956, 959 (Tex. 1986). General topics, such as personnel and litigation were held to be insufficient notice. Particularly with respect to personnel matters, positions of particular interest to the public must be described with more specificity. A subject of personnel would not be sufficient to inform the public that the school board was considering hiring a new superintendent, as that is a position of particular public interest. Nor was litigation sufficient to describe a major desegregation lawsuit that had been ongoing in the district for many years. Id. 4. Personal notice is not required. Markowski v. City of Marlin, 940 S.W.2d 720, 725 (Tex. App. Waco 1997, no pet.). The notice need not be tailored to the individuals who are most likely to be affected; the purpose of the Act is fulfilled as long as the public is informed. Id. In this case, the meeting notice stated that the city would consider a firefighter s grievance. It was not adequate notice, however, because it did not alert the public that action would be taken with regard to the employment of the fire chief and captain two positions of public interest. Id. at As public interest in a particular subject increases, the meeting notice must become more specific. For example, a high school principal could be a position of interest that cannot be posted under the heading of employment of personnel. Point Isabel Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176, 182 (Tex. App. Corpus Christi 1990, writ denied). C. Public comments/presentations 1. Public comment is sufficient notice of a session at which the governmental body will hear from the general public,

8 Open Meetings Act Top Practice Tips Chapter 15 provided the governmental body does not deliberate or comment. By contrast, public comment does not provide adequate notice if the governmental body is aware, or reasonably should have been aware, of specific topics to be addressed that are not on the regular agenda. Tex. Att y Gen. Op. No. JC (2000). Practice tip: the City of Houston has speakers sign up starting two weeks in advance and provide a topic on which they plan to speak, which is then available for review prior to meeting as the list of speakers evolves. 2. Presentation by Commissioner did not provide adequate notice of a county commissioner s presentation on development and policy issues. Not only was the term presentation found to be vague, it was posted in the Proclamations & Presentations portion of the meeting, a time devoted to formalities, not substantive matters. Hays Cnty. Water Planning P ship v. Hays Cnty., 41 S.W.3d 174, 180 (Tex. App. Austin 2001, pet. denied). D. Government Code section requires a good faith effort to post notice on the internet. Argyle Indep. Sch. Dist. v. Wolf, 234 S.W.3d 229, 248 (Tex. App. Fort Worth 2007, no pet.). This case involved parents request to allow their children to attend Argyle ISD as transfer students. AISD properly and timely (within 72 hours) posted notice of a meeting to consider the parents request. The notice was posted on the bulletin board at the administration building, and the AISD webmaster posted the notice on the website, but it was later discovered that the link was not accurate. Therefore, when the parents checked the district s website, they got notice of the prior board meeting, not the one to consider their request. The link was corrected a few hours before the meeting. Id. The court dismissed the parent s claim alleging a violation of the Open Meetings Act based on two findings: 1. There was no evidence of bad faith that the AISD s webmaster inadvertently posted a bad link to the wrong agenda; 2 2. Although the parents claimed they were not informed of the meeting, they did attend, leading the court to conclude that they must have had at least some notice of the meeting. Id. at 249. Practice tips: Make sure you understand client concerns about sensitive matters. Make sure that a member of the public would understand whether action will be taken, and whether a member of the public would recognize the subject as something the individual is interested in. Be careful with personnel matters and be attentive to positions that may be of particular public interest in your client s community. II. EMERGENCY MEETINGS TEX. GOV T CODE (a) In an emergency or when there is an urgent public necessity, the notice of a meeting or the supplemental notice of a subject added as an item to the agenda for a meeting for which notice has been posted in accordance with this subchapter is sufficient if it is posted for at least two hours before the meeting is convened. (b) An emergency or an urgent public necessity exists only if immediate action is required of a governmental body because of: (1) an imminent threat to public health and safety; or (2) a reasonably unforeseeable situation. (c) The governmental body shall clearly identify the emergency or urgent public necessity in the notice or supplemental notice under this section. (d) A person who is designated or authorized to post notice of a meeting by a governmental body under this subchapter shall post the notice taking at face value the governmental body's stated reason for the emergency or urgent public necessity. (e) For purposes of Subsection (b)(2), the sudden relocation of a large number of residents from the area of a declared disaster to a governmental body's jurisdiction is considered a reasonably unforeseeable situation for a reasonable period immediately following the relocation. Notice of an emergency meeting or supplemental notice of an emergency item added to the agenda of a

9 Open Meetings Act Top Practice Tips Chapter 15 meeting to address a situation described by this subsection must be given to members of the news media as provided by Section not later than one hour before the meeting. A. The meeting notice must identify the emergency. Piazza v. City of Granger, 909 S.W.2d 529, 532 (Tex. App. Austin 1995, no writ). A city s only police officer directly contradicted the mayor s directive, prompting the mayor to call an emergency meeting to consider termination of the officer s employment. The meeting was posted for a little over two hours. The officer attended the meeting, which resulted in a vote to terminate of his employment. He then filed suit, alleging a violation of the Open Meetings Act. Id. at 531. The court of appeals concluded that notice of an emergency meeting is defective if it fails to clearly identify the emergency giving rise to the meeting. In this case, the city posted a notice stating the purpose was to consider lack of confidence in its officer. Whether an emergency exists is also important, the court noted, but here, the city did not clearly identify an emergency or urgent public necessity requiring immediate action. The court concluded that the city could have dealt with its immediate concerns without violating the Open Meetings Act and without an emergency. Consequently, the officer was entitled to injunctive relief in the form of reinstatement, back pay, and benefits for the period of time following his illegal termination until reinstatement. The offer was also entitled to attorney s fees. Id. at B. Failure to plan or postponing a decision does not an emergency make. River Rd. Neighborhood Ass n v. S. Tex. Sports, 720 S.W.2d 551, 558 (Tex. App. San Antonio 1986, no writ ). San Antonio ISD owned a stadium for football games and other athletic events. After declining to take action at its May 9 and May 20 board meetings, the school board called an emergency meeting for May 31 to consider a lease of the stadium. Since the need for action on May 31 was brought about by the decisions of the school board not to act previously, the court declined to find that an emergency existed. Id. C. When there are 20+ days to take action, there is no emergency. Garcia v. City of 3 Kingsville, 641 S.W.2d 339, 342 (Tex. App. Corpus Christi 1982, no writ). Approximately 50 hours after notice of a meeting was posted, City Commissioners voted to dismiss the City Manager. The former employee filed suit, and the court determined that there was no urgent public necessity that justified the waiver of the required 72 hours notice. Id. D. Receiving notice of a lawsuit does not constitute an emergency. Tex. Att y Gen. Op. No. JM-1037 (1989). During a regular meeting, city council eliminated the position of a city employee. Near the conclusion of the same meeting, the terminated employee handed the council members copies of the pleadings in a lawsuit he had filed the same day. City council then posted notice to hold an emergency meeting upon two hours notice. The topics for discussion were: indemnify the Alvin City Council; and hire a law firm to represent the Alvin City Council. Id. The Attorney General advised that the meeting was improper for two reasons: (1) the legislature had recently added the requirement that the reason for an emergency must be stated in the notice; and (2) no emergency, within the definition of the law, existed. In so ruling, the AG noted that cases of emergency and urgent public necessity are limited to imminent threats to public health and safety or reasonably unforeseeable situations requiring immediate action by the governmental body. Although he recognized the council members would be concerned about their liability, the council did have 20 days from the Monday following service to answer the plaintiff s initial pleadings, and therefore, there was no reason to excuse giving 72 hours notice of a meeting to discuss the matter. Id. Practice Tips: 1. Determine whether an emergency exists. Is there an imminent harm to public health or safety? What would be the result if your client had to wait 72 hours? 2. If there truly is an emergency, identify the emergency in the agenda and post it within two hours of the meeting. Remember to give notice to members of the news media who have previously filed a request with the governmental body.

10 Open Meetings Act Top Practice Tips Chapter An emergency item may be added to a previously called regular meeting if it meets the definition of an emergency and if it is posted two hours before the meeting. 4. Do not add a nonemergency item to an emergency meeting if 72 hours notice has not been given. III. AND SOCIAL MEDIA POSE NEW COMPLIANCE CHALLENGES. is convenient and fast, and while it really can be quite a helpful tool for communicating, it does pose some perils with respect to OMA compliance. Because it is so fast, and reply all is so easy to use, it can become an easy way to circumvent the Open Meetings Act by facilitating deliberations between members in groups of less than a quorum. The definition of meeting is expansive and includes times when a quorum receives information from a third party or consists of a deliberation between a quorum of the governmental body. A. The definition of meeting includes situations in which members of the governing body receive information from third parties, including employees. Tex. Gov t Code (4). Meeting means: (A) a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; or (B) except as otherwise provided by this subdivision, a gathering: (i) that is conducted by the governmental body or for which the governmental body is responsible; (ii) at which a quorum of members of the governmental body is present; (iii) that has been called by the governmental body; and (iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control. B. The telephone posed a hazard 11 years ago. Tex. Att y Gen. Op. No. DM-95 (1992). It would be possible for members of a governmental body to violate the Open Meeting Act even if they are not physically present in one place, for example, by discussing public business of the governmental body over the telephone. Id. C. But using the phone does not always lead to a violation. Harris County Emergency Serv. Dist. No. 1 v. Harris Cnty. Emergency Corps, 999 S.W.2d 163, 169 (Tex. App. Houston [14 th Dist.] 1999, no pet.). Evidence that one board member of a fivemember district occasionally used the telephone to discuss the agenda for future meetings with one other board member did not amount to a violation of the Open Meetings Act. Id. D. Written communications give rise to potential violations. Tex. Att y Gen. Op. No. JC 307 (2000). Not just spoken words give rise to potential violations; written notes and electronic mail are other ways to possibly run afoul of the Act. In this opinion, the attorney general answered several hypothetical questions, one of which asked whether the Act is violated when a claim, invoice, or bill is circulated from commissioner to commissioner and approved for payment outside of an open meeting. Id. E. Recall the problem of the walking quorum, which is made easier by , Twitter, or Facebook. Esperanza Peace and Justice Center v. City of San Antonio, 316 F. Supp.2d 433, 475 (W.D. Tex. 2001). The night before a city council meeting was to be held, the mayor met with several council members in the city manager s office and spoke with others by telephone about the city budget. The mayor s purpose was to reach consensus on changes to the budget, and this consensus was memorialized in a memorandum, which was signed by the mayor and all council members prior to the formal vote. Id. at 476. This violated the Act. The court held that the Act would apply to meetings of groups of less than a quorum if a quorum or more of a body attempted to avoid the purposes of the Act by deliberately meeting in groups less than a quorum in closed sessions to discuss and/or deliberate public business, and then, as in this case, ratify their actions as a quorum in a subsequent public meeting. The evidence showed that the city council intended to violate the Act. (Note: the Open Meetings Act claim was raised in addition to free speech claims, hence the federal court took jurisdiction.) Id. at

11 Open Meetings Act Top Practice Tips Chapter 15 Practice Tip: This same type of situation can occur much more easily by . One council member s two others, who each then one or more others, and the deliberation happens outside of the public eye. F. New legislation allows more communication via the Internet. See HB 1414, from the 83 rd Texas Legislative Session. New Section of the Texas Government Code states 1 : Sec WRITTEN ELECTRONIC COMMUNICATIONS ACCESSIBLE TO PUBLIC. (a) A communication or exchange of information between members of a governmental body about public business or public policy over which the governmental body has supervision or control does not constitute a meeting or deliberation for purposes of this chapter if: (1) the communication is in writing; (2) the writing is posted to an online message board or similar Internet application that is viewable and searchable by the public; and (3) the communication is displayed in real time and displayed on the online message board or similar Internet application for no less than 30 days after the communication is first posted. (b) A governmental body may have no more than one online message board or similar Internet application to be used for the purposes described in Subsection (a). The online message board or similar Internet application must be owned or controlled by the governmental body, prominently displayed on the governmental body's primary Internet web page, and no more than one click away from the governmental body s primary Internet web page. (c) The online message board or similar Internet application described in Subsection (a) may only be used by members of the 1 Note: at the time of preparation of this article, this legislation had not yet been acted upon by the Governor. 5 governmental body or staff members of the governmental body who have received specific authorization from a member of the governmental body. In the event that a staff member posts a communication to the online message board or similar Internet application, the name and title of the staff member must be posted along with the communication. (d) If a governmental body removes from the online message board or similar Internet application a communication that has been posted for at least 30 days, the governmental body shall maintain the posting for a period of six years. This communication is public information and must be disclosed in accordance with Chapter 552. (e) The governmental body may not vote or take any action that is required to be taken at a meeting under this chapter of the governmental body by posting a communication to the online message board or similar Internet application. In no event shall a communication or posting to the online message board or similar Internet application be construed to be an action of the governmental body. IV. EXECUTIVE SESSION CONSULTATION WITH ATTORNEY. TEX. GOV T CODE A governmental body may not conduct a private consultation with its attorney except: (1) when the governmental body seeks the advice of its attorney about: (a) pending or contemplated litigation; or (b) a settlement offer; or (2) on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter. A. The presence of third parties must be weighed.

12 Open Meetings Act Top Practice Tips Chapter Tex. Att y. Gen. Op. No. JM-1004 (1989). Six school board members who were sued by another board member had the right to consult with their attorney outside of the presence of the opposing party in the lawsuit. The six school board members could, therefore, meet in executive session with the board s attorney and exclude the board member who sued them. 2. Tex. Att y Gen. Op. No. JM 238 (1984). A governmental body may include in a meeting closed to consult with its attorney an officer or employee who is the governmental body s representative or agent with respect to the litigation and whose presence is necessary to effectively communicate with its attorney. 3. Tex. Att y Gen. Op. No. JC-0506 (2002). If a county commissioners court wishes to include a nonmember such as the county auditor during a closed meeting with its attorney, the commissioners must consider the following: a. Whether the auditor s interest are adverse to the county s; b. Whether the auditor s presence is necessary to the issues to be discussed; and c. Whether the court may effectively waive the attorneyclient privilege by including the nonmember. B. Giving legal advice to clients in executive session complies with ethical rules. Markowski v. City of Marlin, 940 S.W.2d 720, 726 (App. Waco 1997, no writ). When the legislature adopted section , it intended to permit governmental bodies to consult with their attorneys without risk of disclosing confidential information. Tex. R. Evid. 503 provides a client with a privilege to refuse to disclose and to prevent another person from disclosing confidential information made to facilitate receiving legal advice. discussion focused. If the conversation moves from the topic requiring legal advice, and beyond any other notified exception, advise your client to stop that discussion. If the client will not comply.. Never allow your client to take action or a vote in a closed session. Make sure proper notice is given for the closed session. Remember, for example, litigation is not adequate notice of a pending lawsuit. C. Certified Agenda or Tape Recording? Executive sessions must be documented by a certified agenda or a tape recording, except for an executive session held by the governmental body to consult with its attorney in accordance with section of the Government Code. 1. If a certified agenda is kept, the presiding officer must certify that the agenda is a true and correct record of the executive session. The certified agenda must include (a) a statement of the subject matter of each deliberation, (b) a record of any further action taken, and (c) an announcement by the presiding officer at the beginning and the end of the closed meeting indicating the date and time. Tex. Gov t Code Ann Section provides for courtordered access to the certified agenda or tape recording under specific circumstances. a. In litigation in a district court involving an alleged violation of this chapter, the court: (1) is entitled to make an in camera inspection of the certified agenda or tape; (2) may admit all or part of the certified agenda or tape as evidence, on entry of a final judgment; and (3) may grant legal or equitable 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 required to be open under this chapter. Tex. Gov t Code Ann Practice Tips: Make sure you, as the attorney in the room, keep the 6 Practice tip: If you have the choice, the certified agenda should generally be the

13 Open Meetings Act Top Practice Tips Chapter 15 preferred option, but make sure you consult the Act regarding the entity you represent. For example, county commissioners courts and the Texas Facilities Commission are required to make a tape recording of the closed session. Tex. Gov t Code ; V. VIOLATIONS 3. Access to closed meeting records is limited, but there is an exception for a member of the body. Tex. Att y Gen. Op. No. JC 0120 (1999); Tex. Att y Gen. Op. No. LO (1998). A member of the governmental body who did not attend a closed meeting may review the tape recording of the closed session but may not copy it for his or her own use. A. An action taken in violation of the OMA is voidable. Tex. Gov t Code B. Any interested person may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Act. The prevailing party may be assessed costs of litigation and reasonable attorney fees. Tex. Gov t Code C. A member or members of a governmental body commit an offense if the member or members knowingly conspire to circumvent this chapter by meeting in numbers of less than a quorum for the purpose of secret deliberations of the Act. Such an offense is punishable by fine ($100 to $500), confinement in jail (one to six months), or both. Tex. Gov t Code D. A member of a governmental body commits an offense if a closed meeting is not permitted under the Act and the member knowingly calls, aids in calling, or organizes a closed meeting. It is an affirmative defense to prosecution that the member acted in reasonable reliance on a court order or written interpretation of the Open Meeting Act provided by a judicial opinion, the attorney general, or the attorney for the governmental body. Tex. Gov t Code Such an offense is punishable by fine ($100 to $500), confinement in jail (one to six months), or both. Tex. Gov t Code E. A member of the governmental body commits an offense if the member 7 participates in a closed meeting knowing that a certified agenda is not being kept or a tape recording is not being made. Such an offense is a class C misdemeanor. Tex. Gov t Code F. An individual, corporation, or partnership that without lawful authority discloses a certified agenda or tape recording to the member of the public commits a Class B misdemeanor offense and is liable to any person injured or damaged by the disclosure, including exemplary damages. Tex. Gov t Code VI. ENFORCEMENT Chapter 402, subchapter C, authorizes the attorney general to issue legal opinions at the request of certain public officers. Pursuant to this authority, the attorney general has addressed and resolved numerous questions of law arising under the Open Meetings Act. The Act does not give the attorney general enforcement authority but district attorneys, criminal district attorneys, or county attorney, may request the attorney general s assistance in prosecuting a criminal case, including one under the Act. See, Tex. Gov t Code

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