Honorable  Stephen C. Howard          Opinion    No. JM-1191
Orange County Attorney
County Courthouse                     Re:    Whether section      2(g)  of
Orange, Texas    77630                article 6252-17, V.T.C.S.,       au-
                                      thorizes the school      principal
                                      and   school   district   superin-
                                      tendent to require a teacher's
                                      grievance   to be   heard in exe-
                                      cutive session    (RQ-2027)

Bear Mr.   Howard:

      You inform us that an employee of the West            Orange-Cove
Consolidated     Independent    School     District     has    filed    a
grievance   about his evaluation.      The statement     of grievance,
which you have     submitted  to us,     contests the substance        of
the evaluation    and complains     about the principal's       and  the
superintendent's    actions in the evaluation       process.

      By rule of    the State Board       of Education,     each     public
school district    in   the state     must adopt      a written      policy
establishing    a grievance    procedure    for employees     to    present
complaints   concerning    wages, hours,      or conditions      of    work.
19 T.A.C.     § 61.232;     see    Educ.    Code   59   11.24,      13.323;
see also 19 T.A.C. § 149.43(d)(2).           The procedure     must allow
for presenting    the grievance      to the various       administrative
levels of the     school district.       19 T.A.C. § 61.232(a)(2).
It must     also    "provide     a     reasonable     opportunity         for
presentment    to the local board       of trustees    if the     employee
is not satisfied    with the     response to the grievance          at   the
final administrative     level."       Id. 5 61.232(a)(3).          Section
61.231 of Title 19, Texas Adminzrative             Code, sets out        the
minimum    procedural    standards      for   hearings     before      local
boards.    School   board    meetings      are subject     to    the    Open
Meetings Act.     V.T.C.S.   art. 6252-17, 5 l(c).

      The employee has requested that           his hearing    take   place
in an   open   session in accordance             with   the    "personnel"
exception  of the Open Meetings Act:




                                      p. 6286
Honorable     Stephen   C. Howard    - page    2     (JM-1191)




            Nothing   in   this act     shall be    construed     to
            require governmental       bodies to hold     meetings
            open to    the public      in cases    involving    the
            appointment,      employment,     evaluation,     reas-
            signment,    duties, discipline,      or dismissal    of
            a public     officer    or   employee    or   to   hear
            complaints    or charges against such officer or
            employee,    unless    such    officer   or   emtzdovee
            reouests   a DUbliC hearing.

V.T.C.S.     art.   6252-17,   5 2(g)    (emphasis    added).

      However,  the principal    and superintendent       insist     that
the grievance    hearing   should    be   conducted      in   executive
session.    The grievant has    charged them with violating           his
constitutional   rights as well    as district policies.            Since
the Open Meetings     Act allows   the school board         to meet     in
closed session "to     hear complaints    or    charges"    against     an
officer    or  employee,   *@unless such      officer     or    employee
requests a public hearing, II the principal       and superintendent
believe that    they   are  entitled to      an   executive      session
hearing about    the grievant's     charges against       them.      They
also rely on    the following policy      of the West       Orange-Cove
Consolidated   Independent  School District      regarding      employee
grievances:

            EXECUTIVE    SESSION - If the complaint          involves
            the   appointment,        employment,        evaluation,
            reassignment,         duties,        discipline,
            dismissal      of   the     employee    bringing       4-z
            complaint,     it shall be heard by the Board           in
             executive     session,       unless     the     employee
             requests   it to be     public.     I.f the    comDlaint
            involves    comDlaints     or charoes about        another
             emdovee.     it shall be      heard bv the Board        in
            executive        session      unless     the     emDlovee
             ComDlained     about reouests     it to be heard        in
            public.     (Emphasis added.)

      The Open Meetings Act requires all meetings          to be open,
with certain exceptions.        Section 2(g) does       not require     a
governmental    body   to  deliberate    in   executive    session    in
cases involving      the  personnel    matters     set   out   therein.
Attorney   General Opinion     H-1047 (1977),      which concerned      a
governmental    body's appointment    of    its officers,    stated   as
follows:

            [Wlhile section 2(g) of the OpenMeetings     Act
            generally permits public  bodies to    consider




                                         P. 6287
Honorable     Stephen    C. Howard      - Page   3      (JM-1191)




            the selection    of   officers     of   a governing
            board in a closed session, it certainly          does
            not require that     a meeting of      this kind    be
            closed.   Rather, such a meeting may be opened
            to   the  public    either     by   request   of     a
            prospective   appointee,   by charter or rule, or
            by a determination     by the     public body    that
            the process of selecting     its officers      should
            be fully open to public scrutiny.

Attorney     General    Opinion    H-1047    at 2.

      A public employee who         is the subject of       deliberations
has no   right    under section       2(g)   to insist      on   a closed
session.    In  contrast,   a   public  employee    who  is  the    subject
of a hearing described      in section 2(g) does have a right              to
insist on    a public      hearing if he        makes    an    appropriate
request for it. &8      James v. Hitchcock       Indeo. School        Dlst.,
742 S.W.Zd 701 (Tex. App.         -  Houston   [lst  Dist.]    1987,    writ
denied);   Citv of Dallas v. Parker, 737 S.W.Zd 845 (Tex. App.
- Dallas 1987, no      writ): Corpus Christi Classroom             Teachers
Ass 'n v. Corous Christi Indeo . School Dist., 535 S.W.2d                 429
 (Tex. Civ. App. - Corpus Christi 1976, no writ).               The    board
of trustees     must   hear     the   teacher's     grievance      in   open
session despite      the objections       of the    superintendent        and
principal.     To the   extent that the       school district's         rule
denies an employee his right under section 2(g) to open                   his
hearing before the board, it is invalid as inconsistent                 with
the Open Meetings Act.        m      Anderson v. Can on I.S.D.,           412
S.W.2d 387 (Tex. Civ. App. - Amarillo           1967, no writ).

      Moreover,   based on the facts before us, the board       does
not propose     "to hear   complaints    or charges"   against    the
superintendent    and principal   within   the meaning of    section
2(g).    "Hearing" has been defined as follows:

            Proceeding   of relative   formality            with
            definite   issues   of   fact   or of   ia; 'to   be
            tried, in which      parties    proceeded   against
            have right to be heard . . . .

Black's     Law   Dictionary      649   (5th ed.     1979).

      The board    is holding     a hearing about      the   teacher's
grievance  concerning   his evaluation,     as required by rule       of
the State    Board   of Education.      The   teacher's     complaints
about the principal    and superintendent     are incidental     to his
grievance  against    the    school district,     which    necessarily
acts through     its agents.     If the  boarddid      plan **to hear




                                            P. 6288
Honorable     Stephen     C. Howard     - Page     4   (JM-1191)




complaints   or charges" against       the two officials,    we   would
expect the board to have notified them of the charges and to
give them an opportunity      to   answer them in accordance        with
the   applicable    school    district    policies.     The    employee
before the    school board     is the    teacher who    disputes     the
correctness     of  his   evaluation,     not   the   officials      who
allegedly   engaged in mistaken     or wrongful   conduct when      they
gave him that evaluation.         If the grievance    raises    charges
and    complaints       about      the    principal's       and      the
superintendent's    conduct that the       board wishes to     examine,
it may do so only in compliance        with applicable    statutes and
rules.    See. e.o., V.T.C.S.     art. 6252-17, 5 3A(a).

                                   SUMMARY

                  Section 2(g) of     the Open Meetings      Act,
            article 6252-17, V.T.C.S.,      permits, but     does
            not require     a school   board of    trustees    to
            hold   an   executive    session    to  consider     a
            teacher#s   grievance.    An employee who is      the
            subject of deliberations       under section     2(g)
            has a right     to an open    hearing, but has      no
            right to insist upon a closed hearing.




                                                   JIM      MATTOX
                                                   Attorney General   of Texas

MARY KELLER
First Assistant         Attorney     General

LOU MCCREARY
Executive  Assistant        Attorney         General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney            General

RENEA HICKS
Special Assistant         Attorney     General

RICK GILPIN
Chairman,  Opinion        Committee

Prepared by Susan Garrison
Assistant Attorney General




                                             P. 6289
