November 3, 1989 

Honorable Bob McFarland Opinion No. JM-1112 

Chairman 

Criminal Justice Committee Re: Should notice of a school 

Texas State Senate board meeting to consider an 

P. 0. Box 12068 employee's grievance in execuAustin, Texas 78711 tive session under section 2(g), 

article 6252-17, V.T.C.S., state 

the employee's name and subject 

of grievance (RQ-1830) 

Dear Senator McFarland: 

You ask about the notice required by the Texas Open 

Meetings Act, article 6252-17, V.T.C.S., for an executive 

session meeting of a school board to consider the appeal of 

an employee's grievance. By rule of the State Board of 

Education, each public school district in the state must 

adopt a written policy establishing a grievance procedure 

for employees to present complaints concerning wages, hours, 

or conditions of work. 19 T.A.C. 8 61.232; see Educ. Code 

55 11.24, 13.323. This procedure must allow a reasonable 

opportunity for an appeal to the local board of trustees. 

19 T.A.C. § 61.232(a)(3). The aggrieved party is given 

written notice of the time and place of the hearing. Id. 

5 61.231(c)(2)(D). The board's hearing on the appeal of an 

employee's grievance is subject to section 2(g) of the Open 

Meetings Act, which provides as follows: 

Nothing in this Act shall be construed to 

require governmental bodies to hold meetings 

open to the public in cases involving the 

appointment, employment, evaluation, reassignment, duties, discipline, or dismissal 

of a public officer or employee or to hear 

complaints or charges against such officer or 

employee, unless such officer or employee 

requests a public hearing. 

V.T.C.S. art. 6252-17, 5 2(g). 

Section 3A of the Open Meetings Act requires the board 

of trustees for the school district to give advance written 

P. 5830 
Honorable Bob McFarland - page 2 (JM-1112) 

notice of the "date, hour, subject, and place" of its 

meetings. L 5 3A(a). The notice must 

disclose the 

specifically 

subjects to be considered at the upcoming 

meeting, including subjects slated for discussion in 

executive session. Cox Enterorises v. Board of Trustees of 

Austin IndeD. School Dist., 706 S.W.Zd 956 (Tex. 1986); 

Attorney General Opinion H-1045 (1977). 

You inform us that the Arlington Independent School 

District states notice for an employee grievance as follows: 

Grievance of (name of employee). 

Some associations of school district employees suggest 

that the notice should not identify the employee by name, 

because naming the employee "creates a chilling effect which 

discourages employees from bringing forward their appeal to 

the board of trustees." They suggest that the written 

notice of the subject matter should state only the title of 

the employee, for example: 

Grievance of teacher. 

It has also been suggested the written notice of the 

subject matter should include the subject matter of the 

grievance, for example: 

Grievance of (name or title of employee) 

relating to appeal of a written reprimand. 

You ask us how specific the notice of an executive 

session must be under the circumstances you have described, 

in particular, whether the notice must contain the name of 

the aggrieved employee and the specific nature of the 

grievance. 

We will first deal with the suggestion that inclusion 

of the employee's name in the notice creates a "chilling 

effect." You do not identify any statute or constitutional 

provision that would prevent a governmental body from 

identifying the employee in the notice.1 A brief,submitted 

1. The "chilling effect" refers to statutes that 

"chill" First Amendment free speech rights because they are 

vague or overbroad. 1 Levy, Karst, Mahoney, Encyclopedia of 

the American Constitution, Chillina Effect, at 249. 

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Honorable Bob McFarland - Page 3 (JM-1112) 

on behalf of a teachers' association argues that protection 

of the individual employee's privacy is at issue here. 

In addressing these concerns, we observe that an 

employee does not achieve permanent confidentiality for his 

grievance by keeping his name out of the notice. In 

~~~',~li~~o~tgrlevance.he runs thearisk that the public will 

his grievance, since any "final action, 

decision, or vote" by the school board on the grievance 

would have to be made in open session. V.T.C.S. art. 

6252-17, § 2(l). Thus, excluding an employee's name from 

the posted notice would guarantee only a 72-hour delay in 

the time at which information about his grievance became 

public. x 5 3A(h) (notice must be posted for at least 72 

hours before a meeting). Any embarrassment the employee 

might feel at having other people know that he has a problem 

related to his job would only be delayed, not avoided.2 It 

is difficult to see how excluding his name from the notice 

would prevent the "chilling effect" you refer to. 

Nor does excluding an employee's name from the notice 

prevent members of the school board from knowing about his 

grievance before the meeting at which they will hear the 

appeal. See, e.a Attorney General Opinions JW-119 (1983) 

(trustee of school district has access to all district 

records needed in his official capacity): H-436 (1974) 

(documents supporting agenda of regents meeting are distributed to regents before meeting). Thus, the wchilling 

effect" you refer to does not result from the board's 

knowledge of the appeal. 

The purpose of the notice is to inform the "general 

public" of the meeting. V.T.C.S. art. 6252-17, 5 =(h). 

The general public in this case might include other school 

district employees, parents of school children in the 

district, and possibly members of the media. If the name of 

the aggrieved employee is included in the notice, more 

people might attend the meeting to learn how the board ruled 

2. According to testimony in Hubert v. H rte-Hanks 

Texas Newsoaners, 652 S.W.2d 546, 554 n.2 (Texa APP. - 

Austin 1988, writ ref'd n.r.e.), a candidate for the 

presidency of Texas A & M University wanted confidential 

treatment for his candidacy because his present employers 

were likely to wonder why he was unhappy working for them. 

If he was not chosen for the presidency, they would wonder 

what was wrong with him. 

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Honorable Bob McFarland - Page 4 (JM-1112) 

on the grievance, and media attention could be drawn to the 

employee and his dispute with the school district. These 

consequences of naming the employee in the notice would in 

fact help achieve the purpose of the Open Meetings Act, "to 

safeguard the public's interest in knowing the workings of 

its governmental bodies.01 Cox EnterDriSeS, suDra, at 960. 

Judicial decisions on grievances and related matters 

suggest that a school district employee has no constitutional right to confidential handling of his grievance. 

A school district did not deprive two non-contractual 

employees of a constitutional or statutory right when it 

refused them a hearing before the board of trustees to 

complain of the superintendent's denial of their employment grievances. Corvus Christi IndeD. School Dist. v. 

Padilla, 709 S.W.2d 700 (Tex. App. - Corpus Christi 1986, no 

writ). The employees alleged that the district's refusal of 

a hearing "chilled and violated their first amendment right 

to freedom of expression and denied them equal protection of 

the laws." & at 705. The court pointed out that time was 

allotted at every regular meeting of the board for an "open 

forum" at which any person could address the board about any 

matter, and that this opportunity to address the board gave 

adequate protection to their constitutional rights. 

In considering whether information about workmen's 

compensation claims was available to an association of 

employers under the Open Records Act, the Supreme Court of 

Texas stated as follows: 

Even though a workman's knowledge that information concerning his claim will be 

available for public inspection may deter him 

from exercising his statutory right to file a 

claim, the general availability of such 

information would not adversely affect any 

right thus far recognized to be within a 

constitutionally protected zone of privacy. 

Industrial Found. of the South v. Texas Indus. Accident Bd., 

540 S.W.2d 668, 681 (Tex. 1976), cert. denied, 430 U.S. 930 

(1977). We believe this discussion also applies to the 

"chilling effect" you assert. 

Decisions of the courts and this office under the Open 

Records Act have considered whether various items of 

information about public employees comprise *linformation 

deemed confidentiall' by a constitutional or common-law right 

of privacy or "information in personnel files, the disclosure of which would constitute a clearly unwarranted 

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Honorable Bob McFarland - Page 5 (JM-1112) 

invasion of personal privacy." V.T.C.S. art. 6252-17a, 

§ 3(a) (I), (4 (2). The following items of information have 

been found not to be private information under these 

standards: letters of reprimand sent to public employees; 

basic facts about citizen complaints against law enforcement 

officers, including the officer's name and the nature and 

disposition of the complaint: the names of school teachers 

who have not passed the TECAT exam: and details of a 

complaint of employment discrimination against a city filed 

with the city human rights commission. Attorney General 

Opinion MN-372 (1981); Open Records Decision Nos. 484 

(1987) ; 441 (1986): 155 (1977). These items of information, 

like a notice that the school board will hear the grievance 

of a named employee, reveal that someone has complained 

about the public employee, or that the public employee has a 

complaint against his employer. The fact that a public 

employee has a grievance against his employer is not private 

information. 

Some early open records decisions of our office appear 

to support a contrary conclusion. These opinions were based 

on a particular method of construing the Open Records Act 

and the Open Meetings Act in harmony. See Open Records 

Decision Nos. 82, 68 (1975). Open Records Decision No. 60 

(1974) considered whether information in school board 

minutes on the hiring, compensation, discipline, and 

dismissal of employees was subject to disclosure under the 

Open Records Act. The opinion determined that the public 

policy embodied in the Open Meetings Act permits nondisclosure of the parts of the minutes recording executive 

session discussion of these matters. It found them confidential under sections 3(a)(l) and 3(a)(2) of the Open 

Records Act. Open Records Decision No. 68 (1975) held that 

an employee's letter of resignation submitted at an executive session meeting of a school board was excepted from 

public disclosure by sections 3(a)(l) and 3(a)(2). Open 

Records Decision No. 103 (1975) accorded confidentiality 

to the name of a school district employee when the board 

discussed him in executive session but took no action. 

See also Open Records Decision No. 159 (1977) (overruled by 

Open Records Decision No. 485 (1987)). 

These decisions are characterized by an expansive 

notion of employee privacy. Moreover, they treat section 

2(g) of the Open Meetings Act as if it were a statute that 

deemed information "confidential by lawI' within section 

3(a)(l) of the Open Records Act. These constructions have 

been rejected by subsequent decisions of the courts and this 

office. Open Records Decision No. 485 pointed out that 

section 3(a)(2) of the Open Records Act applies only to 

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Honorable Bob McFarland - Page 6 (JM-1112) 

information about an employee that is highly intimate or 

embarrassing, such that a reasonable person would object to 

its release, and that is of no legitimate concern to the 

public. Hubert v. Harte-Hanks Texas Newsoaoers, 652 S.W.2d 

546 (Tex. App. - Austin 1983, writ ref'd n.r.e.) (citing 

Industrial Found. of the South v. Texas Indus. Accident Bd., 

540 S.W.2d 668, 683-85 (Tex. 1976)); see alSp Open Records 

Decision Nos. 260 (1980); 168 (1977). Thus, Open Records 

Decision No. 485 concluded that the "standard for applying 

section 3(a)(2) clearly does not justify the conclusion that 

any report concerning a public employee which is discussed 

in an executive session necessarily may be withheld under 

section 3(a)(2)." Open Records Decision No. 485, at 9. 

The standard for determining whether personnel information 

is confidential under sections 3(a)(l) and 3(a)(2) stated in 

Open Records Decisions Nos. 60, 68, 82, and 103 has been 

rejected. These decisions do not state the law correctly 

and should not be followed. 

Open Records Decision No. 485 also dealt with the 

question of harmonizing the Open Records Act and the Open 

Meetings Act. In rejecting the argument that a report 

considered in an executive session was exempted from public 

disclosure by section 2(g) of the Open Meetings Act, Open 

Records Decision No. 485 stated as follows: 

The implication of your argument is that 

any document, regardless of its contents and 

regardless of whether it would otherwise be 

available to the public, is perpetually 

8confidential* within section 3(a)(l) if it 

is ever considered in an executive session 

of the governmental body which prepared 

or maintains it. We cannot accept this 

conclusion. Section 14(d) of the Open 

Records Act provides that the act is to be 

liberally construed in favor of granting 

requests for information. Our courts, 

moreover, have held that close judgment calls 

are to be resolved in favor of public access 

to information. Hubert v. Harte-Hanks Texas 

Newsoaoers.Inc. . . . at 552. An interpretation of the two statutes which would effectively place beyond the reach of the public 

any document discussed ' executive 

session of a governmental igdyatould hardly 

be in keeping with these statutory and 

judicial mandates. 

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Honorable Bob McFarland - Page 7 (JM-1112) 

Id. at 9-10. The fact that an employee's grievance is to 

be discussed in an executive session does not make the 

employee's name confidential. A school district ordinarily 

should include the employee's name in the posted notice of 

the meeting. 

You also ask whether the Open Meetings Act requires 

identification of the aggrieved employee by name and the 

subject matter of the appeal. The court in Cox Enterorises, 

suora, discussed the notice requirement as follows: 

We have held that general notice in 

certain cases is substantial compliance even 

though the notice is not as specific as it 

could be. &,g Lower Colorado River Authority 

V. Citv of San Marcos, 523 S.W.Zd 641 (Tex. 

1975), and Texas Turnoike Authoritv v. CitV 

of Fort Worth, 554 S.W.2d 675 (Tex. 1977). 

However, less than full disclosure is not 

substantial compliance. Our prior judgments 

should have served as notice to all public 

bodies that the Open Meetings Act requires a 

full disclosure of the subject matter of the 

meetings. The Act is intended to safeguard 

the public's interest in knowing the workings. 

of its governmental bodies. A public body's 

willingness to comply with the Open Meetings 

Act should be such that the citizens of Texas 

will not be compelled to resort to the courts 

to assure that a public body has complied 

with its statutory duty. 

Id. at 959-60. 

Notice of a school board meeting should fully disclose 

the subject matter of the meeting, including any consideration of an employee's grievance. The information necessary 

in a given case to disclose this subject fully to the public 

depends on the facts and circumstances relevant to that 

case. We cannot give you a formula stating the exact information that must be included in the notice. Ordinarily, the 

employee's name should be included in the notice. 

This office is not in the best position to know what 

information will alert the public to the subject matter of a 

meeting. When in doubt as to the contents of the notice, we 

advise the school district to err on the side of including 

information. 

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Honorable Bob McFarland - Page 8 (JM-1112) 

SUMMARY 

The notice of a school board meeting at 

which the board will hear the appeal of an 

employee grievance in executive session 

should fully disclose the subject matter of 

the meeting. The notice about the grievance 

ordinarily should include the name of the 

employee who is pursuing the grievance. We 

cannot state what items of information the 

notice should include in a given case, but we 

advise you to err on the side of including 

information. Open Records Decision Nos. 60 

(1974), 68, 82, and 103 (1975) do not apply 

the correct standard for determining whether 

personnel information is confidential under 

the Open Records Act and should not be 

followed. 

Very truly yo Ll & /ytfQltt

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

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