DAN MORALES

ATTORNEY GENERAL 

## QBffice

of t@ Bttornep QBeneral %tate of

## Z!Lexae March 4,1992

Honorable Gary Watkins Committee on Higher Education Texas House ofRepresentatives P.0. Box2910 Austin, Texas 78768-2910 Opinion No.DM-95
Re: Whether a city council violates the Qpen Meetings Act when a majority of the council signsa letter that has not been authorized in an open meeting (RQ-252)
Dear Representative Watkins: You ask whether members of a city council violate the Qpen Meetings Act, article 6252-17,V.T.C.S. (hereinafter the “act”),when the members, constituting a majority ofthe council, signa letter expressing an opinion on matters relevant to the city government. You enclose as an example a letter signed by a majority of members of a city council, expressing the support of the “undersigned majority” of the citycouncil for an attached resolution. While we can discussrelevant provisions of the act and case law with respect to questions of law raised by your inquiry, a determination ofwhether a violation of the act has actually occurred in a specific situation requires factual determinations, which we cumot make in an attorney general opinion. Your question is therefore considered hypothetically, without reference to anyparticular incident. For purposes ofthis~discussion,wewill assume that (1) the letter in question concerns public business or public policy over which the governmental body has control or supervision, and (2) the letter has not been considered and approved in ameeting held incompliance with the act. We realize that a dispute may occur over whether a letter signed by a majority of a governmental body represents an “official”action or merely an action ofeach ofa group ofindividuals who all happen to serve on the same governmental body. Every person has a First Amendment right to express an opinion. However, when a governmental body acts, the lawrequires that the action taken complies with its terms. It is a well established rule, predating the Qpen Meetings Act, that a governmental body must act as a body. Websterv. Tam &Paci$cMotor Transpoti Co., 166S.W.2d75 (Tex. 1942). The purpose ofthis rule

p. 478Honorable Gary Watkins - Page 2 (DM-95)

is to afford each member of the body an opportunity to be present and to impart to his associates the benefit of his experience, counsel, and judgment, and to bring to bear upon them the weight ofhis argument on the matter to be decided by the Board, in order that the decision, when finally promulgated, may be the compositejudgment ofthe body as awhole. Id at 77. Presumably, when a group ofpeople act in concert, some meeting of the minds has occurred to make that action possible. With respect to actions taken by governmental bodies, it isthe process bywhichthis meeting ofthe minds occurs that the act isintended to open to public scrutiny. Car Enters.Inc. v.Board ofTtzutees of Austin Zrufep.School D&., 706 S.W.2d956, 960 (Tex. 1986) (the act is intended to safeguard the public’sinterest inknowingthe workings ofits governmental bodies). While we are unable to anticipate every possible fact situation that might occur, we think an action taken by a quorum ofa governmental body on a matter of public policy ofconcern to that governmental entity isnot merely the action ofeach member ofa group ofindividuals, but is an action ofthe governmental body. When a majority of a governmental body acts on a matter of public policy under its jurisdiction, even in a way that is not binding upon the governmental entity served by the body, the policy enunciated by the Texas Supreme Court in Webstersuggests that such action must be taken by the governmental body as a whole, subject to the laws,including the Gpen Meetings Act, governing the behavior ofthe governmental body. Therefore, for purposes of this discussion, a letter signed by a quorum of a governmental body, concerning public business or public policy over which the governmental body has control or supervision, would normally be an official action ofthe signatory members subject to the requirements ofthe act. To accomplish its end, the act requires that every meeting ofa governmental body, with certain narrowly drawn exceptions, be open to the public and that the public be given notice ofmeetings. V.T.C.S. art. 6252-17,$0 2,3k “Meeting,”for purposes ofthe act, isdefined as

any deliberation between a quorum of members of a governmental body, or between a quorum of members of a governmental body and any other person, at which any public business or public policy over which the governmental body has supervision or control isdiscussed or considered, or at which any formal action istaken.

. . .

P. 479Honorable Gary Watkins - Page 3 (DM-95)

V.T.C.S.art 6252-17,s l(a). “Deliberation” isdefined as

a verbal exchange during a meeting between a quorum of members of a governmental body, or between a quorum of members of a governmental body and any other person, concerning any issue within thejurisdiction ofthe governmental body or anypublic business. Id g l(b). The act provides criminal penalties for a member of a governing body who knowingly calls or aids in calling an improper closed meeting. Id 34(a). The act also criminally sanctions a member ofa governing bodywho knowinglyconspires to circumvent the act by meeting with other members in numbers less than a quorum for secret deliberations. Za! 9 4(b). The act provides mandamus or injunction as civil remedies to stop, prevent, or reverse violations of the act. Id 53(a). Actions taken by a governmental body in violation of the act are voidable. Id If it were established as a matter of fact that members of a governmental body had gathered together in numbers sufficient for a quorum to discuss the wording of a letter concerning public business or public policy over which the governmental body had control or supervision, and ifsuch gathering were not open to the public or preceded bynotice in compliance with the act, itwould followfrom the definitions quoted above that aviolation ofthe act had occurred.
A more problematic fact situation occurs when one or more members, but less than a quorum, drafts a letter, and then presents the material (or has the material presented) to the other signatories, always meeting in numbers less than a quorum In this way a “meeting” and a “deliberation” as defined in the act are arguably avoided because even though the verbal exchange among the council members may at any one time engage less than a quorum ofthe council, the verbal exchanges do not occur during a meeting where a quorum of members is simultaneously in each other’sphysical presence.1

IThe possibiity of fmdiog that deliberations ia violation of the act have occurred would be much less likelyia the situation where a letter was circulated among a quorum of the council, but where notwo members ofthe council at anytime discussed the contents ofthe letter. Agaia, however, the totality of circums~ would have to bc coasidcred if the governmental pody ’s aetioas were chaUcnged under the ad. See Attorney General Opinions MW-32 (1979) (a procedure permitting individual members ofagovernmental body towriteto the executivedirector suggesting items to place

p. 480Honorable Gary Watkins - Page 4 (DM- 951

InHitt v.Mabv, 687S.W.2d791.(Tex. App.--San Antonio 1985,no writ), the court of appeals considered an appeal from a permanent injunction, issued by the district court, enjoining the San Antonio Independent School District from, among other things, conducting informal meetings or telephone conferences to discuss or decide on matters of public policy. The district court had found that such discussions or decisions were in violation of sections 2(a) and 3A of the act. Id at 794. The event that caused the litigation inM&y was the discovery by the plaintiff that the San Antonio Independent School District intended to mail a letter to all parents in the district, “advising recipients of their voting rights and stating the message was a service of the school district’s Board of Trustees.” The plaintiff complained, among other things, that there had been no discussion of the letter in an open meeting ofthe board. Id. at 793. The court ofappeals modified certain aspects ofthe injunction, but let stand apermanent injunction against the board enjoining them from:

Arriving at a decision involving public business or public policy affecting SAISD by way of private informal meetings or conferences, including telephone polls of the members of the Board

. . . . Id at 796. The argument set forth in the dissenting~opinion in M&y is helpful in understanding the significance of the majority holding in that case. In dissenting from the majority holding, ChiefJustice Cadena stated:

There is another diffkuhy with the injunction as modified. Plaintiffs alleged that the use of telephone polls was a conspiracy to circumvent the provisions of the Open Meeting Act

. . . . As applicable to this case, the “governmental body” which isrequired to meet publicly is the Board ofTrustees, and the requirement that meetings of that body be public applies

(footnote contimlcd) oa the.agendaof a future meetingdoes not violate the Open Meetings Act); H-1163 (1978) (prohibiting the use ofsecret ballots bygovernmental bodies).

P- 481Honorable Gary Watkins - Page 5 (DM-951

onlywhen aquorum ispresent, since inthe absence ofa quorum there isno “meeting.” Id at 798 With respect to polling the members ofthe govemmental’body individually, the dissent appears to take the view that the simultaneous physical presence of a quorum in one place is necessary for a violation of the act’s requirement that meetings be open to the public. Though the majority opinion doesnot expressly discuss this point, it is clear that it takes the opposite view, i.e., a view consistent with the district court’sfinding that the practice constitutes a violation of sections 2 and 3A of the act. This view is the basis for the district court’s issuance of the injunction, whichthe majority opinion upheld. Though polling members of a governmental body by telephone was specifically at issue in Mubry, it seems immaterial to the applicatipn of the law whether such polling was done by telephone or otherwise. Following Mabry, it appears that the physical presence ofa quorum in a single place at the same time is not always necessary for a violation of sections 2 and 3A to occur. Avoiding the technical definition of “meeting” or “deliberation” is not, therefore, a foolproof insulator from the effect of the act. Indeed, it would appear that the legislature intended expressly to reach deliberate evasions of these definitions in enacting section 4(b) of the act. See also Attorney General Opinion JM-584 (1986) (in the absence of specific legislative authority, a governmental body that meets by telephone conference callwillnot complywiththen act). Whether any specific behavior or pattern ofbehavior constitutes a violation ofthe act must ultimately be determined by a trier offact. There is a continuum of behavior from that which clearly complies with the act to that which clearly violates it. We think, however, that a governing body that deliberates through a series of closed meetings ofmembers ofless than a quorum risks a finding by a trier offact that either aviolation ofsections 2or 3Ahas occurred, orworse, that members have conspired to circumvent the act inviolation ofsection 4(b). The Open Meetings Act isintended to open to public scrutiny the process by which governmental bodies reach decisions affecting public policy or business over which the governmental bodies have supervision or control. CoxEnterpties, supru. Ifa quorum ofa governmental body agrees on ajoint statement on a matter of such business or policy, the deliberation bywhich that agreement isreached is subject to

P. 482Honorable Gary Watkins - Page 6 (m-l-951

the requirements ofthe act, and those requirements are not necessarily avoided by avoiding the physical gathering ofa quorum in one place at one time. Hitt v.Mubry, SUpltZ. SUMMARY

If a quorum of a governmental body agrees on a joint statement on a matter of governmental business or policy, the deliberation bywhich that agreement isreached is subject to the requirements ofthe Open Meetings Act, and those requirements are not necessarily avoided by avoiding the physical gathering of a quorum in one place at one time. Whether any specific behavior or pattern ofbehavior constitutes aviolation ofthe act must ultimately be determined by atrier offact.

DAN MORALES Attorney General ofTexas WILL PRYOR First Assistant Attorney General
MARY KELLER Deputy Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General RENEA HICKS Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byJohn Steiner Assistant Attorney General

p. 483