November 3, 1989

Honorable BobMcFarland 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 ofgrievance (RQ-1830)

Dear Senator McFarland:

You ask about the notice required by the Texas Open Meetings Act, article 6252-17, V.T.C.S., foran 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 awritten policy establishing agrievance procedure foremployees topresent complaints concerning wages, hours,
or conditions ofwork. 19 T.A.C. 8 61.232; see Educ. Code 55 11.24, 13.323. This procedure must allow a reasonable opportunity foran appeal to the local board of trustees. 19T.A.C. § 61.232(a)(3). The aggrieved party is given written notice of the time andplace of thehearing. 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 inthisAct shall be construed to require governmental bodies tohold meetings open to thepublic incases involving the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal ofapublic officer or employee or to hear complaints orcharges against such officer or employee, unless such officer or employee requests apublic hearing.

V.T.C.S. art. 6252-17, 52(g).

Section 3Aof theOpenMeetings Act requires the board of trustees forthe school district to give advance written

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notice of the "date, hour, subject, and place" of its meetings. L 53A(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 ofTrustees of Austin IndeD. School Dist., 706 S.W.Zd 956 (Tex. 1986); Attorney General Opinion H-1045 (1977).

You inform us that theArlington Independent School District states notice foran employee grievance as follows:

Grievance of (nameofemployee).

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 frombringing forward their appeal to theboard 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.

Ithas 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 awritten reprimand.

You ask ushow specific the notice of an executive session must be under the circumstances youhave described, inparticular, whether the notice must contain the name of the aggrieved employee and the specific nature of the grievance.

Wewill firstdeal with the suggestion that inclusion of the employee's name in the notice creates a "chilling effect." You donot identify any statute or constitutional provision that would prevent a governmental body from identifying the employee inthe notice.1 Abrief,submitted

1. The "chilling effect" refers to statutes that "chill" First Amendment free speech rights because they are vague or overbroad. 1Levy, Karst, Mahoney, Encyclopedia of theAmerican Constitution, Chillina Effect, at 249.

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onbehalf of ateachers' association argues that protection of the individual employee's privacy isat issuehere.

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 theposted notice would guarantee only a 72-hour delay in the time atwhich information about his grievance became public. x 5 3A(h) (noticemust beposted forat least 72 hours before ameeting). Any embarrassment the employee might feel athaving other people know thathehas aproblem related tohis jobwould onlybedelayed, not avoided.2 It isdifficult to seehow 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 fromknowing 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 ofregents 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 isto inform the "general public" of themeeting. V.T.C.S. art. 6252-17, 5=(h). The general public inthis casemight include other school district employees, parents of school children in the district, and possibly members of themedia. Ifthe name of the aggrieved employee is included in the notice, more people might attend themeeting to learn how the board ruled

2. According to testimony inHubert 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 &MUniversity wanted confidential treatment forhis candidacy because his present employers
were likely towonder why hewas unhappy working for them. Ifhewas not chosen for thepresidency, theywould wonder whatwaswrong with him.

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on the grievance, andmedia attention could be drawn to the employee andhis dispute with the school district. These consequences ofnaming the employee inthe notice would in facthelp achieve thepurpose of the OpenMeetings Act, "to safeguard the public's interest inknowing theworkings of itsgovernmental bodies.01 Cox EnterDriSeS, suDra, at 960.

Judicial decisions ongrievances 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 aconstitutional or statutory rightwhen 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
ahearing "chilled andviolated their first amendment right to freedom of expression anddenied them equal protection of the laws." & at 705. The court pointed out that timewas allotted at every regular meeting of theboard foran "open forum" atwhich anyperson could address theboard about any matter, and that this opportunity to address theboard gave adequate protection to their constitutional rights.

In considering whether information about workmen's compensation claims was available to an association of employers under theOpen Records Act, the Supreme Court of Texas stated as follows:

Even though aworkman's knowledge that information concerning his claim will be available forpublic 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 ofprivacy.

Industrial Found. of the Southv. Texas Indus. Accident Bd., 540 S.W.2d 668, 681 (Tex.1976), cert. denied, 430U.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 aconstitutional or common-law right ofprivacy or "information in personnel files, the disclosure of which would constitute a clearly unwarranted

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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 topublic employees; basic facts about citizen complaints against lawenforcement officers, including the officer's name and the nature and disposition of the complaint: the names of school teachers whohave not passed the TECAT exam: and details of a complaint of employment discrimination against acity filed with the cityhuman rights commission. Attorney General Opinion MN-372 (1981); Open Records Decision Nos. 484 (1987);441 (1986): 155 (1977). These items of information, like anotice that the schoolboard will hear the grievance ofa 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 agrievance against his employer isnot private information.

Some early open records decisions of our office appear to support acontrary conclusion. These opinions were based
on aparticular method ofconstruing the Open Records Act and the OpenMeetings 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 theparts of theminutes 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
anemployee's letter of resignation submitted atan executive session meeting ofa 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 OpenMeetings Act as if itwere 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. 485pointed out that section 3(a)(2) of the Open Records Act applies only to

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information about an employee that is highly intimate or embarrassing, such that areasonable person would object to itsrelease, and that is ofno 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)); seealSp 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 inan executive session necessarily may bewithheld under section 3(a)(2)." Open Records Decision No. 485, at 9. The standard for determining whether personnel information isconfidential under sections 3(a)(l) and 3(a)(2) stated in Open Records Decisions Nos. 60, 68, 82, and 103has 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 ofharmonizing the Open Records Act and the Open Meetings Act. In rejecting the argument that a report considered inan executive session was exempted from public disclosure by section 2(g) of the OpenMeetings Act, Open Records Decision No. 485 stated as follows:

The implication of your argument is that any document, regardless of its contents and regardless ofwhether itwould otherwise be available to the public, is perpetually 8confidential* within section 3(a)(l) if it isever considered in an executive session of the governmental body which prepared
ormaintains it. We cannot accept this conclusion. Section 14(d) of the Open Records Act provides that the act isto be liberally construed in favor of granting requests for information. Our courts, moreover, have held that close judgment calls
are tobe resolved in favor ofpublic 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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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 intheposted notice of themeeting.

You also askwhether the Open Meetings Act requires identification of the aggrieved employee by name and the subject matter of the appeal. The court inCox Enterorises, suora, discussed the notice requirement as follows:

We have held that general notice in certain cases issubstantial compliance even though the notice isnot as specific as it could be. &,g Lower Colorado River Authority

**V.** Citv of San Marcos, 523S.W.Zd 641 (Tex. 1975), and Texas Turnoike Authoritv v. CitV of **Fort** Worth, 554 S.W.2d 675 (Tex. 1977). However, less than fulldisclosure is not substantial compliance. Our prior judgments should have served asnotice to all public bodies that the OpenMeetings Act requires a fulldisclosure of the subject matter of the meetings. The Act is intended to safeguard thepublic's interest inknowing theworkings. of itsgovernmental bodies. Apublic body's willingness to complywith theOpen Meetings Act should be such that the citizens ofTexas 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 themeeting, including any consideration ofan employee's grievance. The information necessary inagiven case todisclose 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 thatmust be included inthe notice. Ordinarily, the employee's name should be included inthe notice.

This office isnot inthebest position toknow what information will alert the public to the subject matter ofa meeting. When indoubt as to the contents of the notice, we advise the school district to err on the side of including information.

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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 themeeting. 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 inagiven case, butwe 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 fordetermining whether personnel information isconfidential under the Open Records Act and should not be followed.

Very truly yo 

# Ll/ytfQlttTA

& JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY 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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