DAN MORALES

ATTORNEY GENERAL 

## QBffice

of the !Ztttornep&hem1 &ate of Qexae August 12,1992

Mr. Michael Hines Executive Director Opinion No.DM-149 Texas Commission onFire Protection Re: Whether section 2(g) of the Open P.0. Box 1607 Meetings Act permits an executive Austin, Texas 78767 session discussion about persons considered for appointment to advisory committees created pursuant to the Government Code, sections 419.023 and 419.072 (RQ-249) Dear Mr. Hines: The Texas Commission on Fire Protection, established by consolidating the former Fire Department Emergency Board with the former Commission on Fire Protection Personnel Standards and Education, Acts 1991, 72d Leg., ch. 628, is required to establish and appoint certain advisory committees pursuant to sections 419.023 and 419.072 of the Government Code. The commission wishes to know whether it may meet in executive session under section 2(g) of the Texas Qpen Meetings Act, V.T.C.S. article 625’2-17,to discuss the qualifications of persons considered for appointment to these committees. The two advisory committees are the Fire Protection Personnel Advisory Committee, governed by section 419.023 of the Government Code, and the Volunteer Fire Fighter Advisory Committee, governed by section 419.072 of the Government Code. Section 419.023provides inpart:

(a) The commission shall establish a fire protection personnel advisory committee to assist the commission in matters relating to fire protection personnel and fire departments. The committee shall be composed of nine members appointed by the commission. Six members must be fire protection personnel or retired fire protection personnel..

. . A committee member serves at the will of the commission.

p. 780Mr.Michael Hines - Page 2 m-149)

(b) The committee shall meet at least twice each calendar year at the call of the presiding officer or at the call of the commission. (c) The committeeperiodicallyshall review commission rules relating to fire protection personnel and fire departments and recommend changes in the rules to the commission. Notwithstanding Section S(f).

.. [of V.T.CS. article 6252-13a]t the commission shall submit all proposed changes and additions to the rules that relate to fire protectionpersonnel and fire departments to the committee for development. Ifthe commissiondoes not approve a rule developed by the committee, the commission shall indicate to the committee the reasons that the commission did not approve the rule and return the rule to the committee for further development. Gov’tCode 9419.023. The Texas Gpen Meetings Act, V.T.CS. article 6252-17,which establishes the general rule that every meeting ofevery governmental body shall be open to the public, permits closed meetings for certain purposes. Section 2(g) 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

. ..unless such officer or employee requests a public hearing. V.T.CS. art. 6252-1702(g). This exception applies only when the governmental body’s deliberations concern a public officer or public employee. In Attorney General Opinion H-246 (1974).this office concluded that section 2(g) does not allowthe board ofregents of

‘8ectioa S(f)ofariick

62S2-l3a, V.T.C.S., authh am

agency touse iaformal coafarences

to obtaiatheadvice.

of iatere5tcd

persons conccraing

contemplated

mlem~ andto appoint committees

toadvise it with respect tocontemplated

rulemaking.

p. 781Mr. Michael Hines - Page 3 m-149)

a state university to meet in closed session to discuss the qual&ations of persons under consideration for award ofan honorary degree, unless the candidate was also a “publicofficer or employee” of the governmental body. The opinion stated that the exception “was designed primarily to prevent the unjustified harm to an employee that might result from public discussion about matters related to his employment status whichare traditionally kept confidential.” Id. at 2. Attorney General Opinion MW-129 (1980) determined that a governmental body may not meet in closed session to discuss the employment of an independent contractor, such as an engineering, architecturaI, or consultant !km. It cited the rule of liberal construction of the Gpen Meetings Act and established that an independent contractor is not an officer or employee and is thus not within the section 2(g) exception. Members of the Fire Protection Persomtel Advisory Committee are neither officers nor employees within section 2(g) of the Gpen Meetings Act. A public officer generally has a fixed term and may be removed only in accordance with the applicable provisions oflaw. AkfineIndep.SchoolDirt v.Stmdlq, 280 S.W.2d578 (Ten 1955);DonrnjieIdv.Stare, 73 S.W.2d83 (Tex. 1934);seetilro Tex. Const. arts. V, 824; XV, 97; XVI, 930; V.T.C.S. art. 5961. Members of the committee, in contrast, serve at the willofthe commission. Gov’tCode #419.023(a). They do not have sufficient authority over public business to be public officers within the followingdefinition stated bythe Texas Supreme Court:

[Tlhe determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individuaj to be exercised by him for the benefit of the public, &rgeiy independent of the controlofothers. Aldine, 280 S.W.2d at 583 (emphasis in original) (concluding that a school district tax-assessor-collector wasan employee and not an officer ofthe district). The commission has general rule-making authority to adopt rules “for the administration of its powers and duties.” Gov’t Code #419.00& In addition, it is authorized to promulgate rules relating to fire protection personnel and fire departments. See,e.g.,id. 99419.022(S)(standards for admission to employment as tire protection personnel); 419.029(curriculum requirements for schools for training 6re protection personnel); 419.032(b) (qualifcations relating to competence and

p. 782Mr. Michael Hines - Page 4 w-149)

reliability ofpersons to be.fire protection personnel); 419.040 - 419.041 (standards for protective clothing and self-contained breathing apparatus for fire protection personnel). The Fire Protection Personnel Advisory Committee reviews commission rules on fire protection personnel and fire departments and recommends changes in the rules to the commission. Id. 0419.023(c). If the commission proposes to change or add to its rules on fire protection personnel and fire departments, the committee develops2 the rules incorporating the proposed changes and additions. Thus, the committee provides the specificsto implement the commission’s purpose in proposing the rule and revises the rules it develops as necessary to complywiththe co mm&ion’s requirements. Authority to adopt rules is vested inthe ammi5sio1~ The Fire Protection Personnel Advisory Committee has only advisory and ministerial functions, and its members do not exercise any sovereign function of government, largely independent of others. Accordingly, the members of this committee are not officers. An employee is a person who works for another for salary or wages. BLACK’SLAW DICTIONARY525 (6th ed. 1990) (definitions of “employee” and

“employer”). Seealso Civ.F’rac.& Rem. Cede 0 101.001(l) (“employee”isperson in the paid service of a governmental unit). Members ofan advisory committee serve without compensation. Gov’t Code Q 419.008(j). Moreover, section 419.009of the Government Code authorizes the commission to “employan executive director who shall employ other personnel,” while other provisions authorize the commission to appoint advisory committees. Id. Q# 419.009,419.OONj),

419.023,419.072. Thus, the structure of the statute reflects the legislature’s understanding that a member of an advisory committee is not an employee of the commission. The members of the Fire Protection Personnel Advisory Committee are not employees of the commission. Since the committee members are neither officers nor employees of the Texas Commission on Fire Protection, the commission may not meet in executive session pursuant to section 2(g) ofthe Gpen Meetings Act to discusstheir appointment. Section 419.071 of the Government Code requires the cormmsst ’ ‘on to develop a voluntary certification and regulation program for volunteer fire fighters
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as‘toset forth ormake clear bydegnXS OriadalaiL”

WEBSNIt’S NINIII

NEW COLIEGIATE

DICtlONARY

347 (1983).

p. 783Mr.Michael Hines - Page 5 m-149)

and volunteer fire departments. The comm&ion is also required to establish a Volunteer Fire Fighter Advisory Committee to assist it in matters relating to volunteer fire fighters and volunteer fire departments. Id. 0419.072. The composition and duties of the Volunteer Fire Fighter Advisory Committee closely resemble those of the Fire Protection Personnel Advisory Committee. The members of both committees are appointed by and serve at the will of the commission. Id. 00419.023(a), 419.072(a). Both committees must meet at least twice a year, and their members serve without compensation. Id. ~~419.008(j), 419.072(a). The duties of the Volunteer Fire Fighter Advisory Committee are as follows: The committee shall develop and recommend to the

commission for approval the rules of the program under this subchapter. [Gov’t Code ch. 419, subch. D]s. The committee periodically shall review commission rules relating to the commission’s program under this subchapters and recommend changes in the rules to the commission. Notwithstanding Section 5(f).

. . [of article 6252-13a, V.T.C.S.]. the commission shall submit all proposed rules and all proposed changes and additions to the rules that relate to the program under this subchapter to the committee for development. If the commission does not approve a rule developed by the committee, the commission shah indicate to the committee the reasons that the commission did not approve the rule and return the rule to the committee for further development, Id. 0419.072(c). The commission is authorized to make rules relative to certification as a volunteer firefighter. Id. 5419.071(e). The Volunteer Fire Fighter Advisory Committee provides the commission with advice and ministerial services in connection with preparing these rules. For the same reasons advanced with respect to members ofthe Fire Protection Personnel Advisory Committee, the members of the Volunteer Fire Fighter Advisory Committee are neither officers nor employees. Accordingly,~

the Texas Commission on Fire Protection may not meet in executive %hchapter

D ofchapter

419 ofthe Govrmment

Code rqubesthe

commksion

toUcvelop

a voluntary

cwtiticatioa

and regulation

program

for volunteer

fire fighters

andvolunteer

fire dopattmeats.’

G&t Code

0419.071.

p. 784Mr.Michael Hines - Page 6 0x-149)

sessionunder section 2(g) ofthe Open Meetings Act to discussthe qualifications of persons under consideration for appointment to the Volunteer Fire Fighter Advisory Committee. 

### SUMMARY

Members of the Fire Protection Personnel Advisory Committee and the Volunteer Fire Fighter Advisory Committee appointed bythe Texas Commission onFire protection pursuaut to chapter 419 of the Government Code are not public officers or employees within section 2(g) of the Texas Open Meetings Act, V.T.C.S. article 6252-17. Accordingly, the Texas Commission on Fire Protection may not meet in executive session pursuant to section 2(g) ofthe Open Meetings Act to discussthe qualifications ofpersons under consideration for appointment to either ofthese advisory committees.

DAN MORALES Attorney General ofTexas WILL PRYOR First Assistant Attorney General MARY KELLER Deputy Assistant Attorney General RENEAHlcK!s Special Assistant Attorney General MADELElNE B.JOHNSON Chair, Opinion Committee Prepared by Susan L Garrison Assistant Attorney General

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