June 14, 1989

Mr. Charles Stevenson Opinion No. JR-1858 Acting Commissioner Texas Department ofHuman Re: Whether the Texas Open Services Meetings Act authorizes P. 0. Box 2960 governmental body to hoi: Austin, Texas 78769 "briefing sessions" to receive information from staffmembers without providing notice (RQ-1686)

DearMr. Stevenson:

You askwhether the Texas Open Meetings Act, article 6252-17, V.T.C.S., applies to orientation or briefing sessions of the Board ofHuman Services, at which board members receive information and ask questions of staff members but donot engage in~discussionbetween themselves. This office has issued two opinions concluding that such sessions were not subject to the requirements of the Open Meetings Act. Attorney General Opinions JM-640 (1987); JR-248 (1984).

Attorney General Opinion JM-248 relied on the trial court's construction of the OpenMeetings Act inPea Picker, Inc..v. Reaaan, 632 S.W.2d 674 (Tex.App. -Tyler 1982, writ ref'd n.r.e.). The court found that ameeting held by
acommissioners court to hear reports from agents and employees was not a @'meetingl'within article 6252-17, V.T.C.S. The act then defined a l'meeting*l as "anydeliberation between aquorum of members of agovernmental body at which anypublic business
. . . isdiscussed.1W (Emphasis added.) See Acts 1973, 63dLeg., ch. 31, 5 1,at 45. Ifno deliberations were held between members of the governmental body, then no *lmeetingN* took place and the requirements of the Open Meetings Act did not apply. See also Attorney General Opinion JM-640 (1987) (oralexam of applicant by licensing board was not a "meeting").

Senate Bill 168 of the 70th Legislature adopted a number of amendments to the Open Meetings Act. S.B. 168, Acts 1987, 70th Leg., ch. 549, at 2211. Thebill added

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language to the definition of *'meetingl' so that itnow reads inpart:

(4 'Meeting' means v an between aquorum ofmembers ofagovernmental body, or between a Quorum of members of a v and anv other I) aovernm t 1bod

en a erson, at which anypublic business
. . .is discussed
or considered
. . . . (Emphasis added.)

V.T.C.S..art. 6252-17, § l(a). The same language was added to the definition of 11deliberation*1 so that itnow reads as follows: (b) 'Deliberation' means a verbal exchancredurina ameetinq between aquorum of members of agovernmental body, orbetween a

members ofaaovernmental bodv cuerum of and
a Y other D concerning any issuewithin t:e jurisdizETz:'of the governmental body or anypublic business. (Emphasis added.)

**Id. 5**  **l(b).**

A facial reading of the amended sections l(a) and 1(b) yields more than one interpretation. This office has found the Open Meetings Act applicable to a meeting called by a district judge and attended by a quorum of members of a county commissioners court if the commissioners engaged in deliberations. Attorney General Opinion MW-390 (1981). The Act has also been held to apply to a joint meeting of representatives of two or more governmental bodies if a quorum of members of one governmental body attends and engages indeliberations. Attorney General Opinion MB-417 (1981);see Attorney General Opinion MW-28 (1979). The amendments could have been adopted to make explicit this application of the Open Meetings Act. However, the bill analysis prepared for Senate Bill 168 indicates that the amendments were designed to overturn the conclusion of Attorney General Opinion JM-248. The following language appeared inthe bill analysis prepared for the introduced version of the bill, but was not updated as the bill underwent substantive changes:

The Texas Open Meetings Act (TOMA)
. . . was enacted in 1967to ensure that important governmental decisions are made in public meetings. Several problems under TOMA currently are frustrating this purpose of 'government inthe sunshine.' Courts and the

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attorney general have ruled thatmembers of a public bodymay meet without complying with TOMA to receive information and ask questions of athird party. [The analysis then mentions Attorney General Opinion JR-248 and its reliance on an appellate court case].
. . . InThe Pea Picker, Inc.v. Reaaan, . . . the court held that receiving information from employees was not a 'meeting' because no 'deliberation' had occurred inthat there was no exchange between themembers. (Emphasis inoriginal.)

BillAnalysis, S.B. 168, 70th Leg. (1987). Since Attorney General Opinion JR-248 relied on the definitions of "meeting" and "deliberation," Senate Bill 168 sought to bring such briefing sessions within the coverage of the Open Meetings Act by amending those definitions.

These amendments to subsections l(a) and l(b) of the OpenMeetings Act appeared inSenate Bill 168 as introduced and inthe bill as adopted by the legislature. The introduced bill was reported adversely by the Senate Committee on State Affairs and a committee substitute was reported favorably. The committee substitute included the following provision,not found inthe introduced bill:

(r) Nothing in this Act shall be construed to require a quorum of the members of agovernmental body to confer with an employee or employees of the governmental body inanovenmeetinq where such conference is for the solepurpose of receiving information from the employee or employees or to ask questions of the employee or employees: provided, however, that no discussion of public business oragency policy that affects public business shall take place between the members of the governmental body during the conference. (Emphasisadded.)

V.T.C.S. art. 6252-17, 5z(r).1

1. Aprovision onmeeting by telephone conference call also codified as section 2(r)was added to the Open Meetings Act by another bill during the same session. S.B. 560,Acts 1987, 70th Leg., ch. 964, 54,at 3283.

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Section 2(r) uses the terms "confer" and l*conference" instead of the statutorily defined terms "meeting" and "deliberation" todescribe a briefing session. Nearly all of the section 2exceptions use one orboth of the statutory terms. But seeid. 552(e) ("consultations" with attorney), 2(p) ("interviews and counseling sessions" between members of Board of Pardons and Paroles and inmates of Department of Corrections). The legislature could have chosen its language to distinguish such conferences frommeetings and to remove them completely from the Open Meetings Act, including its notice and record-keeping requirements. On the other hand, the legislature may have thought that the section 2(r) "conference" would involve *Ia verbal exchange

. . .between aquorum ofmembers ofagovernmental body and any other person" and that itwould therefore be a "meeting" atwhich l'deliberationsl* take place.

The placement of subsection (r) in section 2does not resolve this ambiguity, since section 2 includes various types ofprovisions and notmerely provisions authorizing a closed session during ameeting subject to the Open Meetings Act.2 Although several of these provisions authorize executive sessions for governmental bodies subject to the act, others appear to remove some entities completely from the act. Comvare V.T.C.S. art. 6252-17, 52(e), (f), (s), (h), (j), Cm), to), (P), (s)withid. 52(d), (n). Various other procedural provisions are also included in section 2. See id. 8 z(a), (b), (c), (i), (W, (l), (r) (telephone conference calls).

2. TheAustin Court of Appeals recently issued a decision reconciling theprovisions of the Administrative Procedure and Texas Register Act on exvarte communications between agency members incontested cases, - V.T.C.S. art. 6252-13a, 5 17,with the OpenMeetings Act provisions requiring governmental bodies to deliberate in public. Texas Water Comm'n v.Acker, No. 3-87-244-CV (Tex.App. - Austin, May 17, 1989) (motion for rehearing filedMay 31, 1989); - Attorney General Opinion JM-645 (1987) (Administrative Procedure and Texas Register Act creates an exception to Open Meetings Act permitting commission decisions on claims of privilege to bemade ina closed meeting); cf Attorney General Opinion H-1269 (1978) (decision-making process under article 6252-13a, V.T.C.S., isnot exempt fromrequirements ofOpenMeetings Act). The court's list ofprovisions authorizing executive sessions did not include section 2(r) of the OpenMeetings Act.

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The legislative intentmust ultimately be found in the language of the statute. See. e.a., Government Personnel Mutual Life Ins. Co. v.Wear, 251 S.W.Zd 525 (Tex. 1952). The answer to Your ouestion devends on what the lanauaae adopted as Senate Biil 168 ~~--a co-ed comm;nicates to thepersons who read it.3 As already pointed out, subsection 2(r) uses the terms "conferl*and %onference." this provision used The samebill that adopted very different language inthe amendments to subsections l(a)and l(b). The legislature's use of language in subsection 2(r) that differs from the language added to the definitions suggests that 2(r) and those definitions do not refer to the same thing.

Moreover, subsection 2(r)provides that "no discussion ofpublic business or agency policy that affects public business shall take place between the members of the governmental body during the conference." defined as "Meeting" is

"any deliberation" between certain described persons "atwhich anypublic business orpublic policy over which the governmental body has supervision or control isdiscussed or considered
. . . .*IV.T.C.S. art. 6252-17, § l(a). The quoted phrases arenot identical, but their differences are subtle. The phrases are sufficiently similar that a reasonable person could read subsection to prohibit 2(r)

the kind ofdiscussion which is characteristic of a "meeting" a defining and therefore to exclude a "conferencel'from the definition of opinion, l'meeting.lq In our

whatever the legislature may have intended, the relevant provisions donot communicate an intent to subject briefing sessions to the Open Meetings Actwith the option ofholding them inexecutive session.

The adoption of Senate Bill 168 involved negotiation and compromise between competing interests. sessions were subject to the If briefing OpenMeetings Act, the public would receive notice of the time, place, and subject of such sessions, although they could be excluded from the actual briefing. Id. 53A. Members of thepublic would thus have

3. A review of the testimony on this bill shows conflicting statements by the senate sponsor. See Hearing on S.B. 168before the Senate Comm. on StateAffairs, 70th Leg. (March 23, 1987) (taperecording available from Senate Staff Services Office); Debate on S.B. 168on the Floor of the Senate, 70th Leg. (April 15, 1987) (taperecording available from Senate Staff Services Office).

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access to aminimal amount ofadditional information about government. The governmental body would have to keep a record of the briefing session as required by section 2A, and this requirement presumably would help enforce the prohibition against board members discussing among themselves "public business or agency policy that affects public business" when involved in a conference under subsection 2(r).

On the other hand, ifagovernmental body had to comply with the notice requirements prior to briefings by employees, itwould have towait three days or seven days to hear the information, depending on which notice period applies to it. Id. S 3A(h). Inthe event of an emergency orurgent public necessity, itwould have towait for two hours before the briefing. a Y Attorney General Opinion JM-985 (198~'(d~&~?~~l~eaning of emergency). This delaywould occur before a session in which the governmental body would neither deliberate nor take action, but would only receive some information relevant to itspublic duties. Delays inthe board members1 receipt of information needed for their work could interfere with the efficient conduct ofpublic business andmight even paralyze the governmental body inmatters ofgreat urgency. Inweighing these competing interests, the legislature might reasonably have concluded that briefing sessions should be taken completely out of the OpenMeetings Act.
Finally, since members of a governmental body are subject to criminal penalties for certain knowing violations of the Open Meetings Act, - V.T.C.S. art. 6252-17, 54, a contrary interpretation of subsections l(a) and (b)and 2(r) would raise a constitutional question. The Fifth and Fourteenth Amendments of the United States Constitution prohibit the enforcement ofany lawthat "either forbids or requires the doing ofan act interms sovague thatmen of
common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269U.S. 385 (1926); see also Baker v. State, 478 S.W.2d 445 (Tex. Crim. App. 1972). A vague statute threatens punishment of people who had no fairwarning of what conduct to avoid. See United States v. Cardiff, 344 U.S. 174 (1952). Ahigher standard of certainty isrequired of a statute imposing criminal penalties than of one relying
on civil enforcement. Xolender v. Lawson, 461U.S. 352, 358 atn. 8 (1983);see Winters v.New York, 333U.S. 507 (1948).

We believe that the language of the statute does not fairlywarn persons of common intelligence that a subp. 5512Mr. Charles Stevenson -Page 7 (JM-1058)

section 2(r) conference is a "meeting" within the Open Meetings Act and that they will be subject to criminal penalties for participation in a conference that is not conducted according to the requirements of the act. Our construction of the statute isthus necessary because of the inclusion of criminal penalties to enforce its procedural provisions.

SUMMARY

Conferences between members ofa governmental body and anemployee oremployees for the solepurpose ofreceiving information or asking questions arenot l'meetings*' or "deliberations" subject to any requirements of the OpenMeetings Act, article 6252-17, V.T.C.S. Subsection 2(r) ofthe act, adopted by Senate Bill 168 of the 70th Legislative Session,
removes the conferences itdescribes fromthe coverage of the act.

JIM MATTOX Attorney General ofTexas

MARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Susan L.Garrison Assistant Attorney General

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