ATTORNEY GENERAL ISSUES FAVORABLE OPEN MEETINGS OPINION
The Texas attorney general recently released Opinion No. GA-0957 (2012). The opinion addressed several questions relating to the Texas Open Meetings Act (Act) and its application to the attendance of a quorum of a governmental body at a committee of the governmental body.
It concludes, among other things, that a committee posting indicating that “a quorum of [a city council] ‘may attend’ a committee meeting” complies with the notice requirements of the Act for the city council. According to the opinion:
[A] court would likely conclude that a public notice that announces a committee meeting and indicates a quorum of the governmental body may attend is sufficient to notify the public of the governmental body’s meeting under the Act.
Why did this question arise? In 1999, an additional definition of a “meeting” in the Act was added to eliminate the so-called “staff-briefing exception.” A staff briefing would occur when a staff member briefed a quorum of a city council, but the councilmembers did not deliberate amongst themselves or ask questions of the staff member. The fact that there was no “deliberation” meant that there wasn’t a “meeting” under the original definition of a meeting (which is still in the Act).
The elements necessary to establish a gathering under the additional definition are:
- a quorum of the governmental body must be present;
- the governmental body calls the gathering;
- the governmental body is responsible for or conducts the gathering;
- members of the governmental body receive information from, give information to, ask questions of, or receive questions from any third person; and
- the information concerns public business or policy over which the governmental body has supervision or control.
The mere presence of a quorum of the governing body at a committee meeting satisfies the above elements. Opinion No. JC-0313 (2000) confirmed this when it concluded that – if a quorum of a governmental body attends a meeting of a committee created by the governmental body, and the members of the governmental body “receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy” over which the governmental entity has authority – the attendance is subject to the requirements of the Act, regardless of whether the members engage in a deliberation.
Some would submit that this is what has been referred to as an “unintended consequence” of the way the staff briefing exception was eliminated in 1999. In any case, many governmental bodies have simply been posting a notice on committee agendas that a quorum of the city council may attend but will not participate in any discussion or take any action.
That approach is reasonable and gives members of the public the right to attend and see what their representatives are doing. Contrast that with the posting of two separate but identical agendas (one for the committee and one for the governmental body), or posting of a joint meeting of a committee and the governmental body, which would do nothing but create confusion for the public.
Duplicative postings of both a committee and the governmental body itself, when all that is actually taking place is a committee meeting, are confusing and needless. Opinion No. GA-0957 appears to confirm that two detailed agendas aren’t necessary so long as additional councilmembers who attend a committee meeting don’t deliberate about the issues at the committee meeting.