ATTORNEY GENERAL OF TEXAS GREG ABBOTT

October 30,2006

The Honorable Allan Ritter Chair, Committee on Economic Development Texas House of Representatives Post Office Box 2910 Austin, Texas 78768-2910 Opinion No. GA-0477 Re: Whether the ‘Open Meetings Act requires specific notice of a non-binding vote on a“personal endorsement” motion (RQ-0477-GA)
Dear Representative Ritter: You ask about the notice required by the Open Meetings Act, Government Code chapter 551 (the “Act”). See TEX.GOV’TCODEANN.$5 551.001-,146 (Vernon 2004 & Supp. 2006). You first ask whether “a non-binding vote on a ceremonial ‘personal endorsement’ motion taken during the operrsession of a City Council meeting [must] be specifically noticed at least seventy-two hours prior to the meeting in order to fully comply with the

.Act.“’ A letter from the city’s mayor states that the posted notice for the city council meeting listed “Discussion and Possible Action onMayor’s Report.“’ At the meeting, the mayor announced that he had appointed a committee to investigate the disclosure of city banking information. See Hill Letter, supra note 2, at 1. After the announcement, a city council member offered a personal endorsement motion in support of the mayor’s action, which was approved by the city council. See 

### id. Ithas been suggested that adoption of the motion violated the Act because’it was not specifically mentioned in the posted notice. Id The Act requires a governmental body to “give written notice of the date, hour, place, and subject of each meeting held by the governmental body.” TFX. GOV’T CODE ANN. 5 551.041 (Vernon 2004). A local governmental body such as a city council must generally post the notice at least seventy-two hours before the scheduled time of the meeting. See 

### id. § 55 1.043(a) (Vernon ~~~~~~~~~~~~~~~~~~Supp.-2006)

-Noticeis~adequatewhen-it-alertsa-reader-~b~~ considered-relative~~~~~~~-~~~~~~~~~~~~~~~~~~~ to atopic. See Cox 

### Enters., Inc. Y.Bd. of Trs., 706 S.W.Zd 956,958 (Tex. 1986). And “[a]s long as a reader is alerted to the topic for consideration, it is not necessary to state [in the notice] all of the consequences which may flow from consideration of the topic.” 

### Id.;see alsoRettberg v. Tex.

‘Letter from Honorable Allan Ritter, Chair, Committee on Economic Development, Texas l&use of Representatives, to Honorable Greg Abbott, Attorney General of Texas (Apr. 10, 2006) (on file with the Opinion Committee, also avaihble nfwww.oag.state.tx.us) [hereinafier Request Letter].

‘Letter from Honorable Roy W. Hill, Mayor, City of Fairfield, to Honorable Byron Cook, Texas House of Representatives, at 1(Feb. 22, 2006) (on file with the Opinion Committee) [hereinafter Hill Letter]:The Honorable Allan Ritter - Page 2 (GA-0477)



### Dep’t. ofHealth, 873 S.W.2d 408,411 (Tex. App.-Austin 1994, no writ) (“The fact that possible consequences [of discussion and evaluation of the board’s executive secretary’s duties] might include a change in job description, a raise in salary or even termination does not invalidate the action taken if the

. .notice was sufficient to alert the reader of the topic under consideration.“). To determine ifthe notice adequately informs the public ofthe topic under consideration, acourt will compare the content ofthe notice given and the action taken at the meeting. See 

### Markowski v. City ofMarlin, 940 S.W.2d 720,726 (Tex. App.-Waco 1997, pet. denied). As part of that analysis, a court may consider the established notice-posting customs and practices ofthe governmental body. 

### SeeRiverRd. NeighborhoodAss’nv. S. Tex.

### Sports, 720 S.W.2d551,557(Tex.App.-SanAntonio 1986, writ dism’d) (holding that notice stating “discussion” did not alertthe public that action would be taken, in light of district’s well-established practice of stating “discussion/action” when action was contemplated and merely “discussion” when no action was taken). The notice must be more specific or detailed when the subject considered is ofspecial or significant interest to the public. See 

### Markowski, 940 S.W.2d at 

### 726;Rettberg, 873 S.W.2d at 411. Whether the topic is of special or significant interest to the city residents isaquestion offact. 

### See Gardnerv.Herring, 21 S.W;3d 767, 773-74 (Tex. App.-Amarillo 2000, no pet.). But “irrespective of whether the topic is of special or no interest, the Act still requires the governing body to make ‘full disclosure ofthe subject matter of the meetings.“’ 

### Id. at 773. Turning back to your question, anotice ofthe city council meeting must alert the public that some action will be considered with respect to the 

### topic of the personal endorsement motion. See 

### CoxEnters., Inc., 706 S.W.2d at 

### 958; Gardner, 21 S.W.3d at 773. As long as the notice alerts the public of the topic, the Act permits the notice to specifically state that a personal endorsement motion orresolution will be considered for adoption or vote but doesnot require the notice to do so unless the city’s meeting notices routinely indicate when amotion orresolution will be adopted. See 

### CoxEnters., Inc., 706 S.W.2d at 

### 958;RiverRd.NeighborhoodAss’n, 720 S.W.2d at 557; see also 

### City of San Angelo v. Tex. Natural Rex Conservation Comm’n, 92 S.W.3d 624, 630 (Tex. App.-Austin 2002, no pet.) (“We hold

. that the Commission did not have to include additional language indicating that itmight act on issues under consideration.“). The posted notice “Discussion and Possible Action on Mayor’s Report” would generally alert the public that the city council may vote on such amatter. But whether the posted notice would adequately alert the public of the topic of the endorsement-investigation ofthe disclosure of city banking information as we understand it-and whether more specificity was required because of the topic’s significance to the city’s residents are questions of fact. 

### See Gardner, 21 S.W.3d at 773-74. The attorney general’s office ~~~~~~~~~~~~~~~~~~~~~~~~~~.~~does-not-determine~~q~i~~s~~~~a~t~i~~~~h~~~i~~~i~~~~r~eess~~ee,~~e~~~~.~e~~~~~~~y~~~~en~~~~p~-~~o~~~~~~~~

GA-0156 (2004) at 10 (stating that fact questions cannot be answered in the opinion process). You next ask: “If the City Council, at a subsequent meeting, re-adopts the non-binding, ,ceremonial ‘personal endorsement,’ after that motion has been specifically set forth on the agenda and posted

. , does that revote ‘cure’ any [shortcomings] in the prior action]?]” Request Letter, 

### supra note 1, at 1. A court may void governmental actions taken in violation of the notice requirements ofthe Act. See TEX. GOV’T CODE~ANN. 3 551.141 (Vernon 

### 2004); Swate v.Medina Cm@ Hosp., 966The Honorable Allan Ritter - Page 3 (GA-0477)

S.W.2d 693,697-99 (Tex. App.-San Antonio 1998, pet. denied). But such an invalid action can be ratified at alater, validly noticed meeting aslong asthere isno retroactive effect. Markowski, 940 S.W:2d at 726. Accordingly, in the event that the city council’s adoption of the personal endorsement motion violated the Act’s notice provisions, the city council may cure the invalid action by readopting the motion at asubsequent meeting after giving adequate notice ofthe motion. In such an event, the motion would be effective only from the date of its readoption.The Honorable Allan Ritter - Page 4 (GA-0477)

SUMMARY To comply with the Open Meetings Act (the “Act”), a city must give advance notice that itwill consider the topic of a“personal endorsement” motion. The city may specifically state in the notice that apersonal endorsement motion will be considered for adoption but is noterequired by the Act to do so unless the city’s meeting notices routinely indicate when a motion or resolution will be adopted. Ifadoptton ofthe personal endorsement motion was invalid because itviolated the Act’s notice provisions, the invalid action may be cured by readopting the motion at a subsequent meeting after giving adequate notice. The motion would be effective only from the date of its readoption. Very truly yours,

KENT C. SULLIVAN First Assistant Attorney General ELLEN L. WITT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Sheela Rai Assistant Attorney General, Opinion Committee