OPEN MEETINGS ACT: SUNSHINE OR SHACKLES?
On December 13, 2011, the Texas attorney general issued opinion GA-0896. The opinion answered whether “certain kinds of electronic communication among members of the board of directors of a river authority constitute a violation of the Open Meetings Act.” The League did not submit comments on the request that led to the opinion. The reason is that we already knew the answer from previous attorney general opinions: they certainly could. As expected, the summary of the opinion provides that:
Electronic communications could, depending on the facts of a particular case, constitute a deliberation and a meeting for purposes of the Texas Open Meetings Act.
On December 28, 2011, yet another opinion relating to open meetings was requested. That request asks:
Whether a member of a governmental body would be subject to the Open Meetings Act under various scenarios, including a press conference, a luncheon speech, a crisis simulation exercise, and a political candidate forum.
Once again, the League will not submit comments. Why? We already know the answer: they certainly could.
The Open Meetings Act is intended to allow the public to view the business of the city council. But does the Act distinguish between official meetings and other gatherings of the city council? Absolutely not. If a gathering of a quorum takes place anywhere, a “meeting” of the city council may have occurred, and all the Act’s requirements (e.g., a properly posted agenda, public access, and a specific listing of subject matter) may apply.
Just one example from the pending request is whether a political candidate forum would be subject to the Act. The Act would apply if a quorum of a city council attends a “candidate forum” to debate among new candidates, themselves, or to answer questions from an audience.
Why not just post the forum as a meeting of the city council? That’s a possibility, but in that case the dilemma is the inability to list the items for discussion. The attorney general concluded in opinion GA-0668 (2008) that general postings such as “Council and Other Reports” provide insufficient notice to the public. The same would be true of a candidate forum. For example, posting an agenda listing “candidate forum to discuss campaign matters” would probably be insufficient for incumbents to discuss any specific matter in detail. Thus, while a non-incumbent candidate could respond in detail, an incumbent would arguably have to state that he or she cannot do so at the present time. It is unlikely that attendees would understand why.
An analysis of the other scenarios in the request yields similar results: if a quorum is present and discusses city business, the Act applies. Every city official should be aware of the pitfalls of gathering outside of official meetings. It certainly appears that the Act may sometimes hinder the free flow of ideas from city officials to their constituents. But was it meant to limit the ability to hold a press conference, speak at a luncheon, hinder a crisis simulation exercise, or limit debate at a political candidate forum? You decide.