   OFFiCE   OF THE   ATTORNEY     GENERAL   STATE   “P   TEXAS

   JOHN CORNYN




                                                         June 2,1999



The Honorable Jack Skeen, Jr.                                    Opinion No. JC-0060
Smith County Criminal District Attorney
Smith County Courthouse                                          Re:    Whether a committee       appointed by a
Tyler, Texas 75702                                               commissioners court to recommend the selection
                                                                 of an architect is subject to the Open Meetings
                                                                 Act (RQ-0063)


Dear Mr. Skeen:

        You have requested our opinion as to whether a committee appointed by a commissioners
court to recommend the selection of an architect is subject to the Open Meetings Act. Under the
circumstances you describe, we conclude that it is. Section 2254.003 of the Government Code
provides, in relevant part:

                         (a) A governmental       entity may not select a provider of
                     professional services or a group or association ofproviders or award
                     a contract for the services on the basis of competitive bids submitted
                     for the contract or for the services, but shall make the selection and
                     award:

                              (1) on the basis of demonstrated                  competence    and
                     qualifications to perform the services; and

                                (2) for a fair and reasonable price.

TEX. GOV’T CODEANN. 5 2254.003 (Vernon                      1999).

         You indicate that, pursuant to section 2254.003, the Commissioners Court of Smith County
appointed an “Evaluation Committee” composed of the county judge, one commissioner, the county
auditor, the county purchasing agent, the county engineer, the county director of maintenance, and
three members of a citizens’ task force. The function of the Committee is to receive written
information from interested architectural tirms, “evaluate written documents, listen to presentations,
research previous work history and then rank them as to the most qualified. The recommendation
presented to the [commissioners] court         is not in any form binding [on] the court.” Letter from
Nancy F. Braswell, Smith County Auditor, to Honorable John Cornyn, Attorney General 2
(May 4, 1999) (on tile with Opinion Committee) [hereinafter Braswell letter of 5/4/99]. After the
The Honorable   Jack Skeen, Jr. - Page 2          (~~-0060)




court has “determined the ‘most qualified,’ then the same committee would begin negotiations with
that firm, and then the negotiated price [will] be considered by [the] commissioners court.” Id You
ask whether the presence of the county judge and one commissioner on the Evaluation Committee
violates any open meeting requirement.

         The Open Meetings Act, chapter 55 1 ofthe Government Code, defines “governmental body”
to include, on the state level, “a board, commission, department, committee, or agency within the
executive or legislative branch of state government that is directed by one or more elected or
appointed members,” TEX. GOV’T CODE ANN. 8 551.001(3)(A) (Vernon 1994), and on the local
level, “a county commissioners court in the state,” id. 5 551.001(3)(B), as well as “a deliberative
body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or
political subdivision of a county or municipality,” id. $ 55 1.001(3)(D). The Act further defines
“meeting” as “a deliberation between a quorum of a governmental body, or between a quorum of a
governmental body and another person, during which public business or public policy over which
the governmental body has supervision or control is discussed or considered or during which the
governmental body takes formal action.” Id. $ 551.001(4). Because the Act defines a meeting to
involve discussion, consideration, or final action on public business or public policy over which the
governmental body has supervision or control, a governmental body must have the authority to
supervise or control public business or policy in order to fall within the Act’s scope. See GulfReg’l
Educ. Television Affiliates v. University ofHouston, 746 S.W.2d 803,809 (Tex. App.-Houston [ 14th
Dist.] 1988, writ denied). See also Tex. Att’y Gen. Op. No. JM-331(1985) (citizens advisory panel
to state agency with no power to supervise or control public business not subject to Open Meetings
Act); Tex. Att’y Gen. LO-93-064 (public university’s student fee advisory committee that made
recommendations      for consideration by board of regents not subject to Act).

         There are five members of the commissioners court in Smith County-four    commissioners
and the county judge. The Evaluation Committee thus consists of less than a quorum of the
commissioners    court. An entity appointed by a governmental body but containing less than a
quorum of members of that governmental body may be subject to the Open Meetings Act, either
because it falls within a definition of the term “governmental body” or as a subcommittee of a
governmental body. In Attorney General Opinion JC-0053 (1999), we recently said that a pricing
committee appointed by the Board of Directors of the Texas Public Finance Authority to act on the
board’s behalf in negotiating a bond sale and executing a bond purchase contract is a state level
“governmental body” within the meaning of section 551.001(3)(A), subject to the Open Meetings
Act. And in Letter Opinion No. 97-058, this oftice concluded that a committee ofthe Texas Funeral
Commission consisting of two Commission members and other individuals and that was delegated
authority to investigate    complaints   and supervise investigations    exercised and controlled
public business and was itself a governmental body for purposes of that provision. Tex. Att’y Gen.
LO-97-058, at 5. On a few occasions, we have concluded that a subcommittee is subject to the Act
exclusively on the basis of its membership.      In Attorney General Opinion H-238 (1974), for
example, the attorney general said that standing committees of the Harris County Hospital District,
each composed of three but less than a quorum of the District’s board of managers, were subject to
The Honorable   Jack Skeen, Jr. - Page 3         UC-0060)




the Open Meetings Act. See also Tex. Att’y Gen. Op. No. JM-1072 (1989) (subcommittees        ofboard
of trustees of independent school district are subject to Open Meetings Act).

          But not every body that includes less than a quorum of a governmental body is subject to the
Act. In Attorney General Opinion H-994, the attorney general found that a fifteen-member
“Committee to Study the Selection Process of Chief Administrative Officers of the Component
Institutions of The University of Texas System” was not subject to the Act, even though it
was appointed by the Chairman of the Board of Regents and itself contained three regents. Tex.
Att’y Gen. Op. No. H-994 (1977) at 3. The “presence of three Regents on the fifteen-member
committee” was insufficient to “bring it within the provisions of the Open Meetings Act as a
committee of the Board.” Id. at 2. Despite the recognized danger that a “board might become the
rubber stamp of its committees        this danger is diminished in the present case by the appointment
of twelve other members who might represent different viewpoints within the university system.”
Id. The committee’s purpose, according to its enabling resolution, was “to make an extensive study
of the selection process and submit its recommendations      to the Board of Regents.” Id. The opinion
concluded that “[tlhis resolution appears to make the Committee an advisory body only, without
power to supervise or control public business.” Id. Because of “the absence of facts showing that
the Committee is more than an advisory body,” the attorney general was unable to “say that its
meetings are required to be open by the Open Meetings Act.” Id.

          The Evaluation Committee, which contains less than a quorum of the commissioners court,
 is not itself a “commissioners court” for purposes of section 551.001(3)(B) of the statute. Nor is it
obvious that it may properly be classified as “a deliberative body that has rulemaking or quaai-
judicial power and that is classified as a department, agency, or political subdivision of a county”
within the meaning of section 55 1.001(3)(D). Thus we consider whether the Evaluation Committee
 is subject to the Open Meetings Act based on its membership, which includes two members of the
 commissioners court.

         In our view, the initial work of the Evaluation Committee falls within the ambit of Attorney
General Opinion H-994. The Evaluation Committee’s mission is to perform evaluations of
architectural firm applicants and submit a recommendation in the form of a ranking of the firms to
the commissioners court. As you indicate, the Committee’s recommendation is not binding in any
way on the court. Even though two members of the commissioners court are members of the
Committee, the presence of seven other individuals attests to the likelihood that other viewpoints
will be considered. In these circumstances, the commissioners court is less likely to “rubber-stamp”
the Committee’s choice. On the contrary, you indicate that, even if the Committee ranked one firm
in last place, the court could nevertheless award that firm the contract. The Committee’s initial work
thus appears to be that of an advisory body only, without power to supervise or control public
business.

       The negotiation process, however, which begins after the commissioners court has selected
the “most qualified” firm, raises different concerns. In F'inlun v. City of Dallas, 888 F.Supp. 779
(N.D. Tex. 1995), city taxpayers and residents sought an injunction against an “Ad Hoc
The Honorable   Jack Skeen, Jr. - Page 4         (Jc-0060)




Committee-Downtown         Sports Development Project,” appointed by the Mayor of Dallas for the
purpose of conducting negotiations with the owners of professional basketball and hockey teams
regarding their proposed move from a city-owned arena. The committee was composed of
five council members, less than a quorum of the full council of fifteen. As the court found, the group
comprised “an official committee appointed by the Mayor for the purpose of negotiating behind
closed doors with third parties, involving millions of dollars of taxpayer money with no public
input.    .” Id. at 785 (footnote omitted).  Even though the committee was required by the city
charter and council rules to comply with the Open Meetings Act, it was necessarily subject to the
Open Meetings Act’s requirements under “a fair reading of the [Act] itself in light of the strong
public policy considerations    for which the law was created.” Id. The court noted that the
composition of the committee weighted the work in favor of whatever recommendation it rendered:
“With the five members of the Committee in favor of a new arena, as well as the Mayor who
appointed them, only two more votes are needed from the remaining nine City Council members to
go along with whatever deal the Committee cuts.” Id. at 785-86.               The court even found
“circumstantial evidence that the Committee was designed to circumvent the [Act].” Id. at 786.

        Likewise, in the situation you pose, the Evaluation Committee is appointed by the
commissioners court to conduct negotiations with private parties regarding the expenditure ofpublic
funds. Unlike the ranking of architectural firms in the initial stage of the process, from which the
commissioners     court is at liberty to select the firm that the Evaluation Committee ranked in last
place, the result of the negotiating process leaves no room for the commissioners’ input: the court
must either adopt or reject the contract negotiated by the Evaluation Committee. If the county judge
and the commissioner who serve on the Committee agree on the terms negotiated, only one more
vote would be needed from the remaining commissioners to adopt the privately-negotiated        terms.
These circumstances, we believe, render the Committee’s work more than advisory and suggest that
the commissioners court is more likely to act as a rubber-stamp.

         The information you have supplied indicates that “[i]t would be difficult or impossible for
the commissioners court to negotiate fees in open court.” See Braswell letter of 5/4/99 supra, at 2.
Although, contrary to the court in Finlan, we have no reason to believe that the appointment of the
Evaluation Committee “was designed to circumvent the Act,“neither this office nor any Texas court
has recognized that the “difficulty” or “impossibility” of conducting business in public is a valid
reason for exempting a governmental body from the command of the Open Meetings Act. To the
contrary, the provisions of the Act are to be liberally construed in favor of open government.   See
Cox Enterprises, Inc. Y. Board of Trustees, Austin Zndep. Sch. Dist., 706 S.W.2d 956, 960 (Tex.
 1986); Acker v. Texas Water Comm’n, 790 S.W.2d 299,300 (Tex. 1990).

         Although we have in our analysis considered the two distinct tasks of the Committee, we do
not believe that the Committee’s work can be effectively bifurcated for purposes of its compliance
with the Open Meetings Act. It would be anomalous to conclude that an identical group of
individuals, created by the same appointing power to perform two distinct tasks that nevertheless
form a coherent whole, is a “governmental body” at one moment but not the next. If one of its
functions renders it a “governmental body” for purposes of the Open Meetings Act, it must be so
The Honorable   Jack Skeen, Jr. - Page 5       (X-0060)




in all its endeavors. In our opinion, therefore, under the terms of the order of the Commissioners
Court of Smith County dated April 12, 1999, appointing an Evaluation Committee, and under the
terms of the Request for Qualifications dated March 17, 1999, the Evaluation Committee is a
“governmental body” subject to chapter 551 of the Government Code, the Open Meetings Act.

         You also ask whether the Evaluation Committee would be a “governmental body” under the
Open Meetings Act if the county judge and commissioner are “removed from the committee.”
Although the question is close, we believe that the exclusion of those individuals would place the
Committee more squarely in the category of a strictly “advisory” body, and thus remove it from the
designation of “governmental body.” The absence of any member of the commissioners court on
the Evaluation Committee will necessarily require the court to consider afresh the negotiated
contract, without the risk that two members will have already made up their minds. We therefore
conclude that, if, under the circumstances you have described, the county judge and commissioner
are excluded from the Evaluation Committee, the Committee is more clearly identifiable as an
advisory body only. As was said in Attorney General Opinion H-994, in the absence of facts
showing that such a reconstituted committee is more than advisory, its meetings are not required to
be open by the Open Meetings Act.
The Honorable   Jack Skeen, Jr. - Page 6       (~~-0060)




                                       SUMMARY

                         An “Evaluation Committee” appointed by the Smith County
                Commissioners Court to recommend the selection of an architect and
                negotiate a contract with the selected firm is, under the facts
                described, a “governmental body” subject to the Open Meetings Act.
                If, however, the county judge and one commissioner are excluded
                from the Committee, it becomes merely an advisory body not subject
                to the Act.




                                             Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney   General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General
