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 on Fire 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 419.023 provides in part: 

(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. 

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Mr. 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 committee periodically shall 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 protection personnel and fire 

departments to the committee for development. If the commission does 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’t Code 9 419.023. 

The Texas Gpen Meetings Act, V.T.CS. article 6252-17, which establishes 

the general rule that every meeting of every 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. 6252-17 0 2(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 allow the board of regents of 

‘8ectioa S(f) of ariick 62S2-l3a, V.T.C.S., authh am agency to use iaformal coafarences to 

obtaia the advice. of iatere5tcd persons conccraing contemplated mlem~ and to appoint 

committees to advise it with respect to contemplated rulemaking. 

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Mr. 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 of an honorary degree, unless the candidate was also 

a “public officer 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 which are 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 of law. Akfine Indep. School Dirt v. Stmdlq, 280 S.W.2d 578 

(Ten 1955); DonrnjieId v. Stare, 73 S.W.2d 83 (Tex. 1934); see tilro Tex. Const. arts. 

V, 824; XV, 9 7; XVI, 930; V.T.C.S. art. 5961. Members of the committee, in 

contrast, serve at the will of the commission. Gov’t Code # 419.023(a). They do not 

have sufficient authority over public business to be public officers within the 

following definition stated by the 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 

control of others. 

Aldine, 280 S.W.2d at 583 (emphasis in original) (concluding that a school district 

tax-assessor-collector was an employee and not an officer of the 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. 99 419.022(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 

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Mr. Michael Hines - Page 4 w-149) 

reliability of persons 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. 0 419.023(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 specifics to implement the 

commission’s purpose in proposing the rule and revises the rules it develops as 

necessary to comply with the co mm&ion’s requirements. Authority to adopt rules is 

vested in the 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’S LAW DICTIONARY 525 (6th ed. 1990) (definitions of “employee” and 

“employer”). See also Civ. F’rac. & Rem. Cede 0 101.001(l) (“employee” is person in 

the paid service of a governmental unit). Members of an advisory committee serve 

without compensation. Gov’t Code Q 419.008(j). Moreover, section 419.009 of the 

Government Code authorizes the commissi on to “employ an 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) of the Gpen Meetings Act to discuss their 

appointment. 

Section 419.071 of the Government Code requires the cormmsst ’ ‘on to 

develop a voluntary certification and regulation program for volunteer fire fighters 

2siacc the aIatute dooa noI dcfme ‘de.volo~~ it is to be c.omtnd according to ammom usage. 

God Cdc 0 311.011(a). A dictionaq has d&d “devdop” as ‘to set forth or make clear by degnXS 

OriadalaiL” WEBSNIt’S NINIII NEW COLIEGIATE DICtlONARY 347 (1983). 

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Mr. Michael Hines - Page 5 m-149) 

and volunteer fire departments. The co mm&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. 0 419.072(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 of the 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 of chapter 419 of the Govrmment Code rqubes the commksion toUcvelop a 

voluntary cwtiticatioa and regulation program for volunteer fire fighters and volunteer fire 

dopattmeats. G&t ’ Code 0 419.071. 

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

session under section 2(g) of the Open Meetings Act to discuss the 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 by the Texas Commission on Fire 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) of the Open Meetings Act to discuss the 

qualifications of persons under consideration for appointment to 

either of these advisory committees. 

DAN MORALES 

Attorney General of Texas 

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 

p. 785