                          November 3, 1989




Honorable Bob McFarland       Opinion No. JM-1112
Chairman
Criminal Justice Committee    Re: Should notice of a school
Texas State Senate            board meeting    to consider  an
P. 0. Box 12068               employee's grievance   in execu-
Austin, Texas   78711         tive session under section 2(g),
                              article 6252-17, V.T.C.S., state
                              the employee's name and subject
                              of grievance   (RQ-1830)

Dear Senator McFarland:

     You ask about the notice required by the Texas Open
Meetings Act, article   6252-17, V.T.C.S.,  for an executive
session meeting of a school board to consider the appeal of
an employee's   grievance.  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. 8 61.232; see Educ. Code
55 11.24, 13.323. This procedure must allow a reasonable
opportunity for an appeal to the local board of trustees.
19 T.A.C.   § 61.232(a)(3).   The aggrieved  party  is given
written notice of the time and place of the hearing.      Id.
5 61.231(c)(2)(D).   The board's hearing on the appeal of an
employee's grievance is subject to section 2(g) of the Open
Meetings Act, which provides as follows:

           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,  re-
        assignment, 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 employee
        requests a public hearing.

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

     Section 3A of the Open Meetings Act requires the board
of trustees for the school district to give advance written




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Honorable Bob McFarland   - page 2   (JM-1112)




notice of the "date, hour, subject, and place"      of its
meetings.   L    5 3A(a).   The notice must    specifically
disclose the subjects to be considered    at the upcoming
meeting,  including  subjects   slated for discussion     in
executive session. Cox Enterorises v. Board of Trustees   of
Austin IndeD. School Dist., 706 S.W.Zd 956    (Tex. 1986);
Attorney General Opinion H-1045 (1977).

     You inform us that the Arlington    Independent  School
District states notice for an employee grievance as follows:

        Grievance of (name of employee).

     Some associations of school district employees  suggest
that the notice  should not identify the employee by name,
because naming the employee "creates a chilling effect which
discourages employees from bringing forward their appeal to
the board of trustees."     They suggest that the written
notice of the subject matter should state only the title of
the employee, for example:

        Grievance of teacher.

     It has also been suggested the written notice of    the
subject matter  should include the subject matter  of    the
grievance, for example:

        Grievance of  (name or title of employee)
        relating to appeal of a written reprimand.

     You ask us how specific the notice of an executive
session must be under the circumstances you have described,
in particular, whether the notice must contain the name of
the aggrieved  employee and the specific nature of the
grievance.

     We will first deal with the suggestion that inclusion
of the employee's  name in the notice creates a "chilling
effect."  You do not identify any statute or constitutional
provision  that would prevent a governmental      body from
identifying the employee in the notice.1   A brief,submitted




     1. The "chilling effect" refers to statutes         that
"chill" First Amendment free speech rights because they are
vague or overbroad.  1 Levy, Karst, Mahoney, Encyclopedia of
the American Constitution, Chillina Effect, at 249.




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Honorable Bob McFarland - Page 3   (JM-1112)




on behalf of a teachers' association argues that protection
of the individual employee's privacy is at issue here.

     In addressing    these concerns, we observe that an
employee does not achieve permanent confidentiality for his
grievance by keeping his name out of the notice.            In
~~~',~li~~o~tgrlevance.he runs thearisk that the public will
               his grievance,    since any "final     action,
decision, or vote" by the school board on the grievance
would have to be made in open session.         V.T.C.S.   art.
6252-17, § 2(l). Thus, excluding an employee's name       from
the posted notice would guarantee only a 72-hour delay      in
the time at which    information about his grievance    became
public. x     5 3A(h) (notice must be posted for at least 72
hours before a meeting).     Any embarrassment  the employee
might feel at having other people know that he has a problem
related to his job would only be delayed, not avoided.2     It
is difficult to see how excluding his name from the notice
would prevent the "chilling effect" you refer to.

     Nor does excluding an employee's name from the notice
prevent members of the school board from knowing about his
grievance before the meeting at which they will hear the
appeal.  See, e.a   Attorney General Opinions JW-119  (1983)
(trustee of school district has access to all district
records needed  in his official capacity):     H-436  (1974)
(documents supporting agenda of regents meeting are distri-
buted to regents before meeting).      Thus, the wchilling
effect" you refer to does not result      from the board's
knowledge of the appeal.

     The purpose of the notice is to inform the "general
public" of the meeting.    V.T.C.S. art. 6252-17,   5 =(h).
The general public in this case might include other school
district  employees,  parents  of school children    in the
district, and possibly members of the media.  If the name of
the aggrieved  employee  is included in the notice, more
people might attend the meeting to learn how the board ruled



     2. According to testimony    in Hubert v. H rte-Hanks
Texas Newsoaners,  652 S.W.2d 546, 554 n.2 (Texa APP. -
Austin   1988, writ ref'd n.r.e.),    a candidate   for the
presidency of Texas A & M University    wanted  confidential
treatment for his candidacy because his present    employers
were likely to wonder why he was unhappy working for them.
If he was not chosen  for the presidency, they would wonder
what was wrong with him.




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Honorable Bob McFarland - Page 4   (JM-1112)




on the grievance, and media attention could be drawn to the
employee and his dispute with the school district.      These
consequences of naming the employee  in the notice would   in
fact help achieve the purpose of the Open Meetings Act,   "to
safeguard the public's interest  in knowing the workings   of
its governmental bodies.01 Cox EnterDriSeS, suDra, at 960.

     Judicial decisions   on grievances  and related matters
suggest that a school district employee has no constitu-
tional right to confidential handling     of his grievance.
A school district    did not deprive    two   non-contractual
employees of a constitutional    or statutory  right when   it
refused them a hearing before the board of trustees         to
complain of the superintendent's    denial of their employ-
ment grievances.    Corvus Christi IndeD. School Dist. v.
Padilla, 709 S.W.2d 700 (Tex. App. - Corpus Christi 1986, no
writ).  The employees alleged that the district's refusal of
a hearing "chilled and violated their first amendment    right
to freedom of expression and denied them equal protection of
the laws." &     at 705. The court pointed out that time was
allotted at every regular meeting of the board for an "open
forum" at which any person could address the board about any
matter, and that this opportunity to address the board gave
adequate protection to their constitutional rights.

     In considering   whether  information about workmen's
compensation claims was available    to an association  of
employers under the Open Records Act, the Supreme Court of
Texas stated as follows:

        Even though a workman's    knowledge that in-
        formation  concerning  his    claim will    be
        available for public inspection may deter him
        from exercising his statutory right to file a
        claim, the general    availability   of   such
        information would not adversely    affect any
        right thus far recognized to be within       a
        constitutionally protected zone of privacy.

Industrial Found. of the South v. Texas Indus. Accident Bd.,
540 S.W.2d 668, 681 (Tex. 1976), cert. denied, 430 U.S.  930
(1977). We believe this discussion     also applies  to the
"chilling effect" you assert.

     Decisions of the courts and this office under the Open
Records Act have considered      whether various   items   of
information about public    employees   comprise *linformation
deemed confidentiall' by a constitutional or common-law right
of privacy  or "information   in personnel files, the dis-
closure of which would constitute      a clearly unwarranted




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Honorable Bob McFarland - Page 5     (JM-1112)




invasion of personal       privacy."   V.T.C.S.   art. 6252-17a,
§ 3(a) (I), (4 (2).    The  following items of  information  have
been   found not to be private         information under these
standards:   letters of reprimand     sent to public   employees;
basic facts about citizen complaints against law enforcement
officers, including the officer's name and the nature and
disposition of the complaint:      the names of school teachers
who have not passed the TECAT exam: and details             of a
complaint of employment discrimination against a city filed
with the city human rights commission.          Attorney  General
Opinion MN-372      (1981); Open Records     Decision Nos. 484
(1987) ; 441 (1986): 155 (1977). These items of information,
like a notice that the school board will hear the grievance
of a named employee,       reveal that someone has complained
about the public employee, or that the public employee has a
complaint against his employer.        The fact that a public
employee has a grievance against his employer is not private
information.

     Some early open records decisions of our office appear
to support a contrary conclusion.    These opinions were based
on a particular   method of construing   the Open Records   Act
and the Open Meetings    Act in harmony. See Open Records
Decision Nos. 82, 68 (1975).     Open Records Decision No. 60
(1974) considered    whether  information   in school     board
minutes  on the     hiring,  compensation,   discipline,    and
dismissal of employees was subject to disclosure under the
Open Records Act.    The opinion determined   that the public
policy embodied   in the Open Meetings Act permits         non-
disclosure of the parts of the minutes recording     executive
session discussion   of these matters.    It found them con-
fidential under sections 3(a)(l) and 3(a)(2) of the Open
Records Act. Open Records Decision No. 68 (1975) held that
an employee's letter of resignation submitted at an execu-
tive session meeting   of a school board was excepted      from
public disclosure   by sections   3(a)(l) and 3(a)(2).     Open
Records Decision No. 103 (1975) accorded       confidentiality
to the name of a school district employee when the board
discussed him in executive      session but took no action.
See also Open Records Decision No. 159 (1977) (overruled by
Open Records Decision No. 485 (1987)).

     These decisions   are characterized   by an expansive
notion of employee privacy. Moreover,    they treat section
2(g) of the Open Meetings Act as if it were a statute that
deemed information  "confidential  by lawI' within   section
3(a)(l) of the Open Records Act. These constructions    have
been rejected by subsequent decisions of the courts and this
office. Open Records Decision No. 485 pointed      out that
section 3(a)(2) of the Open Records Act applies only to




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Honorable Bob McFarland - Page 6     (JM-1112)




information about an employee that is highly intimate or
embarrassing, such that a reasonable person would object to
its release, and that is of no legitimate      concern to the
public.   Hubert v. Harte-Hanks Texas Newsoaoers, 652 S.W.2d
546 (Tex. App. - Austin     1983, writ ref'd n.r.e.)   (citing
Industrial Found. of the South v. Texas Indus. Accident Bd.,
540 S.W.2d 668, 683-85 (Tex. 1976)); see alSp Open Records
Decision Nos. 260   (1980); 168 (1977).    Thus, Open Records
Decision No. 485 concluded    that the "standard for applying
section 3(a)(2) clearly does not justify the conclusion that
any report concerning a public employee which is discussed
in an executive   session necessarily may be withheld    under
section 3(a)(2)."     Open Records   Decision No. 485, at 9.
The standard for determining whether personnel     information
is confidential under sections 3(a)(l) and 3(a)(2) stated in
Open Records Decisions   Nos. 60, 68, 82, and 103 has been
rejected.   These decisions   do not state the law correctly
and should not be followed.

     Open Records  Decision No. 485 also dealt with the
question of harmonizing   the Open Records Act and the Open
Meetings Act.   In rejecting the argument    that a report
considered in an executive session was exempted from public
disclosure by section   2(g) of the Open Meetings Act, Open
Records Decision No. 485 stated as follows:

           The implication of your argument is that
        any document, regardless of its contents      and
        regardless of whether    it would otherwise     be
        available   to the public,      is    perpetually
        8confidential* within section 3(a)(l) if it
        is ever considered in an executive        session
        of the governmental      body which      prepared
        or maintains   it.    We cannot accept       this
        conclusion.    Section   14(d)     of the    Open
        Records Act provides that the act is to be
        liberally   construed   in favor of granting
        requests   for   information.       Our   courts,
        moreover, have held that close judgment calls
        are to be resolved in favor of public      access
        to information.    Hubert v. Harte-Hanks    Texas
        Newsoaoers.Inc.    . . . at 552. An interpre-
        tation of the two statutes which would effec-
        tively place beyond the reach of the public
        any document    discussed     '         executive
        session of a governmental igdyatould       hardly
        be in keeping with these statutory             and
        judicial mandates.




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Honorable Bob McFarland - Page 7   (JM-1112)




Id. at 9-10. The fact that an employee's grievance is to
be discussed in an executive    session does not make the
employee's name confidential.  A school district ordinarily
should include the employee's name in the posted notice  of
the meeting.

     You also ask whether the Open Meetings Act requires
identification of the aggrieved   employee by name and the
subject matter of the appeal. The court in Cox Enterorises,
suora, discussed the notice requirement as follows:

           We have held that general      notice    in
        certain cases is substantial compliance   even
        though the notice  is not as specific as it
        could be. &,g Lower Colorado River Authority
        V. Citv of San Marcos, 523 S.W.Zd 641    (Tex.
        1975), and Texas Turnoike Authoritv v. CitV
        of Fort Worth,  554 S.W.2d 675 (Tex. 1977).
        However, less than full disclosure     is not
        substantial compliance.  Our prior judgments
        should have served as notice to all public
        bodies that the Open Meetings Act requires   a
        full disclosure of the subject matter of the
        meetings.  The Act is intended to safeguard
        the public's interest in knowing the workings.
        of its governmental bodies. A public body's
        willingness to comply with the Open Meetings
        Act should be such that the citizens of Texas
        will not be compelled to resort to the courts
        to assure that a public body has complied
        with its statutory duty.

Id. at 959-60.

     Notice of a school board meeting should fully disclose
the subject matter of the meeting, including any considera-
tion of an employee's grievance.  The information  necessary
in a given case to disclose this subject fully to the public
depends on the facts and circumstances relevant     to that
case. We cannot give you a formula stating the exact infor-
mation that must be included in the notice. Ordinarily, the
employee's name should be included in the notice.

     This office is not in the best position to know what
information will alert the public to the subject matter of a
meeting.  When in doubt as to the contents of the notice, we
advise the school district to err on the side of including
information.




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Honorable Bob McFarland - Page 8        (JM-1112)




                       SUMMARY

           The notice of a school board meeting     at
        which the board will hear the appeal of an
        employee grievance    in executive     session
        should fully disclose the subject matter    of
        the meeting.  The notice about the grievance
        ordinarily should include the name of the
        employee who is pursuing the grievance.     We
        cannot state what items of information     the
        notice should include in a given case, but we
        advise you to err on the side of including
        information.  Open Records Decision Nos.    60
        (1974), 68, 82, and 103 (1975) do not apply
        the correct standard for determining   whether
        personnel information  is confidential   under
        the Open Records Act and should not be
        followed.




                                 Ll /ytfQltt
                                   Very truly yo


                                       &
                                   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

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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