DANMORALES

ATTORNEY GENEMI. 

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April 16,199l

Honorable John Whitmire chaitman Intergovernmental Relations Committee Texas State Senate P.0. Box 12068 Austin, Texas 78711 Opinion No. DM-17 Re: Whether the Houston Metropolitan Transit Authority may meet in closed session to reviewbids for a proposed rail system (RQ-32) Dear Senator Whitmire: Youinquire about the application ofthe Open Meetings Act, article 6252-17, V.T.C.S., to the Houston Metropolitan Transit Authority (METRO). You ask whether METRO has authority to meet inprivate to reviewbids for aproposed rail system. A metropolitan rapid transit authority is required to hold its meetings pursuant to the Open Meetings Act. V.T.C.S. art. 1118x, 8 4(g). The Open Meetings Actprovides inpart:

Except as otherwise provided in this Act or specifically permitted in the Constitution, every regular, special, or called meeting or session ofevery governmental body shall be open to the public. V.T.C.S.art. 6252-17,s 2(a). Ameeting 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 whichthe governmental body has

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supervision or control isdiscussed or considered, or at which any formal action istaken. Id 5 l(a) (emphasis added). “Deliberation,” including deliberation leading to formal action, is thus a key element of a meeting that is subject to the Open Meetings Act. SeeAttorney General Opinions H-772 (1976); H-438 (1974); H-238 (1974). This term 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 issuewithin thejurisdiction ofthe governmental body or anypublic business.

Thus, if a quorum of members of the METRO board engages in deliberations as defined by the above provision, it will be subject to the Open Meetings Act, A board may not deliberate in private about an issue within its jurisdiction, or anypublic business, unless a closed session or meeting is authorized by section 2ofthe Open Meetings Act. In addition, the board must first convenein an open meeting for which notice has been given as provided by section 3A ofthe act, and the presiding officer must publicly announce that a closed session willbe held and must identify the section or sections of the act authorizing the closed session. SeealsoV.T.C.S.art. 1118x,94(g). The requirements ofthe Open Meetings Act do not apply when a quorum of a governmental body merely assembles in the same room without engaging in deliberations. See,e.g, Attorney General Opinion JM-1127 (1989). Thus, a quorum of a governmental body may assemble as an audience at the meeting of another entity without being subject to the requirements of the act. See id A quorum of board members mayreceive information from and askquestions ofstaffmembers at an orientation or briefing session without being subject to the Open Meetings Act, aslong asboard members do not engage in discussion among themselves. Attorney General Opinion JM-1058 (1989); see UZSO Attorney General Opinions JM-640 (1987) (licensing board may conduct oral examinations of applicants, asking questions and listening to answers, without being subject to requirements of act);

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JM-248 (1984) (trustees of Employees Retirement System receiving information from “particular individuals”); cf: Attorney General Opinion H-785 (1976) (breakfast meetings of commissioners court are subject to Open Meetings Act unless they are purely social in nature and involveno discussion ofpublic business). In askingquestions ofthe persons who address the board in abriefing session,board members must avoid engaging in dehtirations by means of addressing remarks intended for one another to the persons providing the briefing. See Attorney General Opinion JM-1127. A letter from the general counsel ofMETRO, whichyou submitted withyour request letter, describes an executive session meeting of the METRO board on proposals submitted in response to its Request for Proposals for a Pied Guideway Transit System. The letter states that the meeting was conducted pursuant to section 2(r)’ ofthe Open Meetings Act,whichprovides asfollows:

Nothing in this Act shall be construed to require a quorum of the members of a governmental body to confer with an employee or employees of the governmental body in an open meeting where such conference is for the sole purpose of receiving information from the employee or employees or to ask questions of the employee or employees; provided, however, that no discussion ofpublic business or agencypolicy that affects public business shall take place between the members of the governmental body during the conference. A prior opinion ofthis office has interpreted this provision as removing the conferences it describes from the coverage ofthe act. Attorney General Opinion JM-1058. Thus, abriefing session as described by section 2(r) is not subject to the notice or other procedural requirements of the Open Meetings Act. Section 2(r) codifies in part the decisions of this office holding that deliberation among the members of a governmental body is an essential element in the definition of “meeting”under the Open Meetings Act, and that if deliberations do not occur, there isno meeting subject to the requirements ofthe act.

‘ASaddedbyActs1987,7Oth Leg.,ch.549,sz

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The letter from METRO’s general counsel describes section 2(r) as authorizing a public body to confer witb staff for the purpose of receiving information, provided that no discussion of public business or agency policy that affects public business takes place between the members ofthe governmental body during the conference. The letter continues asfollows:

mhe contents of the meeting were in fact strictly
‘informational.’ No decisions of any kind were made by the Board in the meeting, nor were there any proposed decisions even discussed. The presentations by tbe RPP proposers were part ofthis information gathering process and were designed to provide each proposer the opportunity to present information whichit claimed tobeproprietary toall Board members at once. This office cannot investigate fact questions or resolve disputed questions of fact in the opinion process. See,e.g., Attorney General Opinions M-307 (1968); O-3382 (1941). We can state the legal consequences that will flow from certain events. Ifthe METRO board members did no more than receive information from proposers and staff members, ask questions and listen to the answers, and did not discussthe information or other matters ofpublic business among themselves, then they were not participating in a meeting subject to the Open Meetings Act. On the other hand, if the board members actually discussed the proposals among themselves, section 2(r) didnot authorize the board to hold a closed session for such deliberations. See uLroAttorney General Opinions JM-595 (1986) (governmental body isnot authorized by section 3(a)( 11)ofOpen Records Act to discuss selection ofcompetitive bidders inclosed session); MW-129(1980) (governmental body must meet inopen session to hire independent contractors). SUMMARX The board of Houston Metropolitan Transit Authority was not participating in a meeting subject to the Open Meetings Act, article 6252-17,V.T.C.S., ifit met in a closed session to receive information and ask questions of staff and companies that responded to its request for proposals for aproposed rail system and did not engage in any discussion of any matter of public business among board members. Section 2(r) of the Open

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Meetings Act does not authorize the board to hold a closed meeting to engage in a discussion among the board members about the proposals.

DAN MORALES Attorney General ofTexas WILLPRYOR First Assistant Attorney General MARY KELLER Executive Assistant Attorney General JUDGE ZOIUE STEAKLEY (Ret.) Special Assistant Attorney General RENEAHIcIcs SpecialAssistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by SusanGarrison Assistant Attorney General

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