TEXAS OPEN MEETINGS ACT: UPDATE 2017 NORTH AND EAST TEXAS COUNTY JUDGES AND COMMISSIONERS ASSOCIATION ANNUAL CONFERENCE MAY 17, 2017 BEAUMONT, TEXAS

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1 TEXAS OPEN MEETINGS ACT: UPDATE 2017 NORTH AND EAST TEXAS COUNTY JUDGES AND COMMISSIONERS ASSOCIATION ANNUAL CONFERENCE MAY 17, 2017 BEAUMONT, TEXAS Charles R. Kimbrough and Joshua Katz Bickerstaff Heath Delgado Acosta LLP 3711 South MoPac Expressway Building One, Suite 300 Austin, Texas (512) (512) Facsimile Bickerstaff Heath Delgado Acosta LLP 2017 Slide 1

2 PRELIMINARY REMARKS You work as a public servant -- you serve in challenging times. Contentious circumstances often exist regarding important, complex issues within the scope of your official duties. Traps exist for the public servant who is unaware of the latest developments in the open government laws of Texas -- including the Texas Open Meetings Act (TOMA) and the Texas Public Information Act (TPIA). A clear understanding of the Texas open government laws -- resulting from your continued effort to pursue and complete regular training -- will provide the best opportunity for you to avoid the serious problems associated with an alleged open government violation. Slide 2

3 OPEN MEETING TRAINING: REQUIRED BY LAW TOMA = Texas Open Meetings Act (Ch. 551, TEX. GOV T CODE) Stakes are high -- CIVIL AND CRIMINAL suits can be filed against TOMA violator Open Meetings Training = Important Risk Management Tool for Local Gov t Officials IT S THE LAW: each elected/appointed member of governmental body shall complete 1-hour of approved training within 90-days of oath or otherwise assuming responsibilities of office; and course completion certificate must be filed with governmental body for public inspection TEX. GOV T CODE , Slide 3

4 TEXAS ATTORNEY GENERAL (TXOAG) OPEN MEETINGS HANDBOOK TXOAG publishes the Open Meetings Handbook IT S FREE -- Download from TXOAG website Contains latest TOMA statutory amendments/analysis, case law, and TXOAG opinions regarding open meeting issues VALUABLE RESOURCE TOOL -- OBTAIN AND READ THIS HANDBOOK Slide 4

5 HISTORY AND POLICY GOALS TOMA enacted in 1967 by Texas Legislature POLICY GOAL = To provide for meaningful public participation in government GENERAL RULES: Every meeting is open to the public. Actions taken in violation of TOMA are voidable. Any interested person (including the media) can file a civil suit to void actions taken in violation of TOMA. Criminal prosecution may result from TOMA violations. TEX. GOV T CODE , Slide 5

6 KEY DEFINITIONS Meeting -- means deliberation between a quorum of a body subject to TOMA during which public business is discussed or considered. Deliberation -- means a verbal exchange (including oral or written communication) during a meeting between a quorum of a governmental body, or between that quorum and another person, concerning the public business of the governmental entity. Governmental Body -- includes a school district board, city council, and county commissioners court, as well as other entities and committees. Quorum -- means a majority of the governmental body, unless differently defined by other law. Recording -- means any type of audio or audiovisual recording may be used to make the record of a meeting. TEX. GOV T CODE Slide 6

7 WALKING QUORUM PROHIBITED Under TOMA , it is a crime to knowingly conspire to circumvent the requirements of TOMA by meeting in numbers less than a quorum for the purpose of secret deliberation. Walking Quorum = prohibited sequential conferencing in numbers less than a quorum. The physical presence of a quorum in a single place at the same time is not always necessary for a violation...to occur. Op. Tex. Att y Gen. No. DM-095 (1992) at 4. Members of a governmental body may violate the Open Meetings Act even though they are not physically present in one place, for example by discussing public business of the governmental body over the telephone. Tex. Att y Gen. No. LO- 055 (1995) at 3-4. TEX. GOV T CODE Slide 7

8 2011 TXOAG OPINION REGARDING WALKING QUORUM Op. Tex. Att y Gen. No. GA-0896 (2011) at 1-2, citing Op. Tex. Att y Gen. No. DM-095 (1992) and relevant case law Facts = disseminated among members of governing body in numbers less than a quorum TXOAG concluded that: Although TOMA applies to a verbal exchange of a quorum of the members of the body, the: (1) words need not be spoken in person; and (2) members need not be in the physical presence of each other to constitute a quorum. Electronic communication (including ) may constitute deliberation and a meeting under TOMA -- thereby requiring TOMA compliance. A determination of whether the members of the body violated TOMA involved an analysis of the respective states of mind of each member involved in an alleged violation -- this because the TOMA walking quorum statute ( ) requires the violator to knowingly commit the violation. Risk exists for a walking quorum in view of the widespread use of electronic communication -- including , texting, and social media. TEX. GOV T CODE , Slide 8

9 MEETING REQUIREMENTS PUBLIC PARTICIPATION A meeting that is open to the public under the Act is one that the public is entitled to attend. The Act does not give the public a right to speak at such meetings. Op. Tex. Att y Gen. No. JC-0169 (2000) at 1. As a courtesy, many local governments provide a public comment time for attendees to address the body. PUBLIC HEARINGS ARE DIFFERENT -- the public must be given a reasonable opportunity to speak at the hearing. Reasonable rules may be imposed regarding public comment and public hearings -- including fair limitations on the number of speakers and presentation length. Access for disabled persons is required under the federal Americans with Disabilities Act. Interpreters for the hearing impaired may be provided upon request, although not required by TOMA. TEX. GOV T CODE U.S.C Slide 9

10 MEETING REQUIREMENTS MEETING TYPES TOMA recognizes three types of meetings: (1) regular; (2) special (or called); and (3) emergency Meeting cannot begin until quorum present TOMA applies to committee meetings when committee: (1) contains one or more members of body; (2) meets to discuss public business; and (3) has ability to supervise/control business of body Workshop Meetings (no formal action taken) not defined by TOMA -- but TOMA still applies TOMA does not apply to quorum gathering at social function, convention, ceremonial event, or press conference -- so long as formal action not taken and discussion of public business only incidental TEX. GOV T CODE , Slide 10

11 MEETING REQUIREMENTS -- AGENDA POSTING (TIME) TOMA requires date, hour, place, and subject of any meeting ( Agenda ) to be posted AT LEAST 72 HOURS IN ADVANCE EXCEPTION: Emergency meeting notice = (1) must define the emergency an imminent threat to public health/safety or reasonably unforeseeable situation must exist and be clearly identified in notice; (2) must be sent to the media by telephone, facsimile, or ; and (3) public notice must be posted AT LEAST 2 HOURS IN ADVANCE EXCEPTION: Recessed Meeting = No posting required if meeting recessed until following business day a longer recess requires new posting TEX. GOV T CODE , Slide 11

12 MEETING REQUIREMENTS -- AGENDA POSTING (CONTENT) GENERAL RULE = Must be sufficient to apprise public of subject matter -- but not necessary to describe all consequences which may result Tex. Turnpike Auth. v. City of Fort Worth, 554 S.W.2d 675, 676 (Tex. 1977) (notice not required to state all consequences which may result) Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth., 96 S.W.3d 519, 531 (Tex. App. -- Austin 2002, no pet.) (notice sufficient if an inkling of meeting s substance appears) Notice must contain: (1) name of body; (2) type of meeting; (3) time, date and place of meeting; and (4) agenda topics sufficiently described TEX. GOV T CODE , , Slide 12

13 MEETING REQUIREMENTS -- AGENDA POSTING (LOCATION) GENERAL RULE = Notice must be posted in place readily accessible to public -- capable of being read at all times of day/night COMMON PRACTICE = Posting notice backwards on inside of exterior door of authorized building COUNTY POSTING = at place readily accessible to public at county courthouse + internet posting (if website exists) TEX. GOV T CODE , Slide 13

14 MEETING REQUIREMENTS -- OPEN SESSION RULES Meeting cannot begin until quorum present -- must begin in open session pursuant to proper agenda posting Final action/decision can occur only in open session held in compliance with TOMA. Secret ballots prohibited -- ACTUAL VOTE AT PUBLIC MEETING BY MEMBERS OF BODY REQUIRED BEST PRACTICE = Adopt rules for: (1) placing items on agenda; (2) order of agenda; (3) motions and voting; (4) tabling or postponing action; (5) input from governing body, staff, consultants, and public; (6) recording equipment used by public during meeting REQUIRED RECORD OF OPEN SESSION = minutes or recording (public records); minutes must be permanently preserved TEX. GOV T CODE , Slide 14

15 MEETING REQUIREMENTS -- CLOSED SESSION RULES Notice of authorized closed session topic in agenda = BEST PRACTICE Move to closed session through pronouncement of TOMA statute/authorized topic to support closed session Weatherford v. City of San Marcos, 157 S.W.3d 473, 485 (Tex. App. -- Austin 2004, pet. denied) (TOMA does not prohibit opinions being expressed in closed session -- but ACTION must only occur in open session) REQUIRED RECORD = (1) certified agenda (describes subject matter, action taken, and announcement by presiding officer of date/time and beginning/end of session); or (2) recording Record must be (1) preserved at least 2 years -- and to completion of any suit filed regarding meeting, and (2) is EXPRESSLY CONFIDENTIAL Many authorized topics exist under TOMA -- including (1) personnel matters, (2) consultation with attorney, and deliberation regarding (3) real property, (4) gifts and donations, (5) contract negotiations, and (6) economic development negotiations No person may be admitted whose interest is ADVERSE -- exclusion extends to opposing suit parties and proposed seller of property to government TEX. GOV T CODE , , , Slide 15

16 MEETING REQUIREMENTS -- RATIFICATION When governmental body fails to comply with TOMA it later may meet to RATIFY (or re-authorize) incorrect action through meeting conducted in full compliance with TOMA RETROACTIVE EFFECT NOT PERMISSIBLE -- Ratification effective only from date of proper ratification Ratification must be explicit and in strict TOMA compliance Slide 16

17 CIVIL ENFORCEMENT TEX. GOV T CODE Interested person (including media) may sue TO STOP, PREVENT, OR REVERSE violation of TOMA through injunction, mandamus, or declaratory judgment action Court may assess costs and attorney s fees, dependent on whether: (1) action was brought in good faith, and (2) the Body s conduct had reasonable legal basis Body may be ordered to stop violation or perform duty required by statute. ALSO, COURT MAY (BUT IS NOT REQUIRED TO) VOID ACTION TAKEN IN VIOLATION OF TOMA TEX. GOV T CODE Individual, corporation, or partnership can be held liable for damages if, without lawful authority, he/it KNOWINGLY DISCLOSES to public certified agenda/recording of meeting lawfully closed under TOMA DAMAGES = (1) actual damages -- including personal injuries, lost wages, defamation, or mental/emotional distress; (2) attorney s fees and court costs; and (3) exemplary damages DEFENSE = (1) good reason existed to believe disclosure was lawful; or (2) disclosure was result of mistake TEX. GOV T CODE , Slide 17

18 CRIMINAL ENFORCEMENT TEX. GOV T CODE Member of Body commits offense if he knowingly conspires to circumvent TOMA by meeting in numbers less than quorum for secret deliberations in violation of TOMA; PUNISHMENT = fine of not less than $100 or more than $500, jail confinement for not less than one month or more than six months, or both such fine and confinement TEX. GOV T CODE Member of Body commits offense if closed meeting is not permitted under TOMA, and he knowingly: (1) calls/aids in calling or organizing closed meeting, whether special or called meeting; (2) closes or aids in closing meeting if a regular meeting; or (3) participates in closed meeting, whether regular, special, or called meeting; PUNISHMENT = fine of not less than $100 or more than $500, jail confinement for not less than one month or more than six months, or both such fine and confinement. TEX. GOV T CODE Member of Body commits offense if he participates in closed meeting knowing that certified agenda is not being kept or recording is not being made. PUNISHMENT = fine of not more than $500. TEX. GOV T CODE Individual, corporation, or partnership commits offense if, without lawful authority, he/it knowingly discloses to member of public certified agenda or recording of meeting lawfully closed to public under TOMA. PUNISHMENT = fine of not more than $2,000, jail confinement for not less than 180 days, or both such fine and confinement. TEX. GOV T CODE Slide 18

19 CONCLUDING REMARKS You work as a public servant -- you serve in challenging times. Being a public servant today is hard work. You should acknowledge the challenging environment and try hard each day to succeed at three seemingly simple but often difficult tasks in the performance of your official duties: BE RIGHT ON THE LAW; BE RIGHT ON THE ETHICS; AVOID EVEN THE APPEARANCE OF AN IMPROPRIETY. We wish you the best of success in your work as a public servant. Slide 19

20 TEXAS OPEN MEETINGS ACT: UPDATE 2017 NORTH AND EAST TEXAS COUNTY JUDGES AND COMMISSIONERS ASSOCIATION ANNUAL CONFERENCE MAY 17, 2017 BEAUMONT, TEXAS Charles R. Kimbrough and Joshua Katz Bickerstaff Heath Delgado Acosta LLP 3711 South MoPac Expressway Building One, Suite 300 Austin, Texas (512) (512) Facsimile Bickerstaff Heath Delgado Acosta LLP 2017 Slide 20