January27,1976

The Honorable Bevington Reed OpinionNo. H-772 Commissioner,CoordinatingBoard Texas College and University Re: Whether certain System universitygroups are P. 0. Box 12788, Capitol Station required to hold open Austin, Texas 78711 meetings.
The Honorable Grover E. Murray President Texas Tech University P. 0. Box 4349 Lubbock, Texas 79489
Gentlemen:

you have asked our opinion on the applicabilityof the Texas Open Meetings Act, article 6252-17,V.T.C.S., to meetings of particularbodies. Dr. Reed asks if themeetings of the general'faculty of a state-supportedcollege or university are covered by the Open Meetings Act. Dr. Murray asks if the meetings of the Texas Tech UniversityAthletic Council are coveredby theAct.
The extent of the Open MeetingsAct's coverage is established in the definitions of "governmentalbodies" and "meetings." Section l(c) of the Act provides in part:

(c)'Governmentalbody' means any board, commission,department, committee, or agency within the executive or legislative department of the state,which ,is under the direction of one or more elected or appointedmembers.

. . .

p.3261The Honorable Bevington Reed

The Honorable Grover E. Murray - page 2 (H-772)

Section l(a) of the Act provides in part:

(a) 'Meeting'means any deliberation between a quorum of members of a governmental body at which any public business or public policy over which the governmental body has supervisionor control is discussed or considered,or at which any formal action is taken.
Thus, it is apparent that before the.Act is applicable to a meeting of a statewidepublic body, five prerequisitesmust be met. These are:

(1) The body must be an entitywithin the executiveor legislativedepartment of the state:
(2) The entitymust be under the control of one or more elected or appointed members;
(3) The meetingmust involve formal action or deliberationbetween a quorum of members. Cornare Attorney General Opinions I-l-2.64)~ and H-3 (1973) holding thatmeetings of committees consistingof less than a quorum of the parent bodymust be open; (4) The discussionor actionmust involvepublic business or public policy; and (5) The entitymust have supervisionor control over that public business or policy.

We believe it is clear that the first, third and fourth of these tests are satisfied in each of the cases about which you inquire. It is necessary, however, to determine (1)whether these two bodies are under the direction of one or more elected or appointedmembers and (2)whether they discuss business or policy over which they have supervision
or control.

p. 3262The HonorableBevington Reed

The HonorableGrover E. Murray - page 3 (H-772)

We believe the Legislature'suse of the word "appointed"

_ _. _ in this contextwas designed to signify somethingmore than normal employment. We are supported in this belief by the proceedings on the floor of the House of Representativeson January 29, 1973,when the bill providing for substantial changes in the law was being debated. Acts 1973, 63rd Leg., ch. 31, p. 45. The author of the bill explained that the word "member" in section l(c)was not intended to include staff. A colloquy between RepresentativePoff and the author of the bill, RepresentativeParker, used the Insurance Commission as an example and indicated:

Poff: Mr. Parker, in. your definition ne word member aren't you excluding staff? Now that was the way I understood it. When you talk about a quorum of members, you don'tmean to cover staff do you?
Parker:. No.
Poff: All right, undaood it. that was the way I So by 'member'you mean the actual~Insurance Commissioners. Now if they all get togetherwith,some s,taff~you've

got a quorum of members plus its,staff. But as long as its just employeesyou're not going tom make it an open meeting,~

right?
Parker: Mr. Poff, your astuteness sometZii&YZazes me. Accordingly,we believe that where the general faculty of an institution is solely a group of employees, as would normally be the case, itsmeetings are not covered by the Open Meetings,Act.

p.3263The Honorable Bevington Reed

The Honorable Grover E. Murray - page 4 (H-772)

With regard to the Athletic Council at Texas Tech University, Dr. Murray informsus that the Council consists of nine members appointed by the President,who is the chief executive officer of the University. Texas Education Code s 109.23. We have previouslyheld that the University of Texas Athletics Council includes appointedmembers. Attorney General Opinion H-438 (1974). That Council included five members appointedby the President of the University and two members appointedby the Board of Regents. Furthermore, the State Textbook Committeehas been found to be composed of appointedmembers. Attorney General Opinion M-136 (1967). That Committeewascomposed of persons nominated by the Commissionerof Education and approvedby the,State Board of Education. Acts 1949, 51st Leg., ch. 299, p. 537 at 542. Accordingly, it is our opinion that the Athletic Council at Texas Tech University is composedof one or more appointed members.
The remaining question is whether the Athletic Council has supervisionor control over public business or policy.
The Texas Tech UniversityBoard of Regents has adopted a resolutionwhich provides:

Resolved that the Board of Regents of Texas Tech University does hereby declare that it'shall continue to exercise its exclusive statutoryauthority to govern, control and direct the policies for the Department of Athletics and all other intercollegiateathleticprograms of the University,within the regulationsof the NCAA and SouthwestConference as accepted by the Board;
And it is furtherResolved and declared by this Board, that it shall continue to exercise its exclusive and final authority to supervise and control all matters concerning the public business and internal affairs of the Department of Athletics and all other intercollegiate athleticprograms of the University;

p.3264The Honorable Bevington Reed

The Honorable Grover E. Murray - page 5 (H-772)

And it is further Resolved that the Athletic Council of the University may review and make recommendationsto the Office of the President of the University on any matters pertaining to the enforcementof eligibility rules and regulations establishedby any athletic conferenceor national association in which the Universityholds membership. Also, the Athletic Councilmay review, offer suggestionsand make recommendations on any pertinent.mattersrelated to the Universityls intercollegiateathletic program, however, such recommendations and suggestions shallbe made to and channeled through the Office of the Presidentof the University, and it is further specificallyprovided that the Athletic Council shall not have final .authority,todirect; control or supervise:the operation or activities of the Department of Athletics or intercollegiate athleticprograms of the University.
Furthermore, Dr. Murray advises us that:
The Athletic Council,at this University has no authority to hire or fire the Athletic Director, coaches or staff personnel. Personnel contracts are made by and between the individual and the University. The Athletic Council has no power or authority,delegated or otherwise, to contractwith any person, group or corporationconcerning athletics., The Council has no authority to direct, control or superviseathletics or anything else on this campus either by statute or Board authority. The Athletic Council's advice and recommendationsare not a prerequisite to action by either the Board or the Administration on a matter concerning athletics at this University.

p.3265The HonorableBevington Reed

The HonorableGrover E. Murray - page 6 (H-772)

Thus, both the structureof the Council and the resolution granting it power indicate that the Texas Tech Athletic Council is an advisorybody and has no power, actual or implied, to superviseor control public business. Compare Attorney General Opinion H-438 (1974),where the structure of a similarbody and all briefs submitted to the Attorney General on behalf of that body indicated that it exercised supervisoryauthority over public business or policy. We cannot resolve disputed questions of fact, and we necessarily have relied on the factspresented by the University. According to those facts, the "meetings"of the Texas Tech Athletic Council do not~meet the definition of that term set out in the Open Meetings Act,.and its proceedingswould not be required to be held in conformitywith the dictates of thatAct.
However,we strongly caution that should the Council actually function as somethingmore than a merely advisory body with the result that it in fact supervisesor controls public business or policy, it would have to comply with the mandate of the Open Meetings Act regardingpublic notice and openmeetings, and in that instance, its,membersmay be subject to sanctions imposed for failure to complywith the Act. Open Meetings Act, V.T.C.S. art. 6252-17, S 4;Attorney General Opinion H-467 (197.4).

SUMMARY

A meeting of a group of employees such as the general faculty of a state college or university is not covered by the Open Meeting~s Act.
Under the facts presented here, the Texas Tech Athletic Council is not required to conduct itsmeetings under the dictates of the Open MeetingsAct so long as it has no supervisionor control, actual or implied, over public business

p. 3266The Honorable Bevington Reed

The Honorable Grover E. Murray - page 7 (H-772)

or policy. If it in actuality supervises or controlspublic business or policy, it must comply with the mandate of theAct and in that instance its members may be subject to the sanctionsof the Act for any failure to comply.

APPROVED:

Opinion Committee jwb Texas

p. 3267