    OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

    JOHN CORNYN




                                                 May 1,200l



The Honorable Mike Moncrief                             Opinion No. JC-0375
Chair, Comrnittee on Human Services
Texas State Senate                                      Re: Whether a contractual requirement that a
P.O. Box 12068                                          superintendent   of schools   attend executive
Austin, Texas 787 1 l-2068                              sessions of meetings of her board of trustees
                                                        violates the Open Meetings Act (RQ-0327-JC)


Dear Senator Moncrief:

        Your predecessor as chair of the Senate Human Services Committee requested our opinion
regarding the validity, under the Open Meetings Act, TEX. GOV’T CODEANN. ch. 55 1 (Vernon 1994
& Supp. 2001), of a contractual requirement whereby a superintendent of schools must attend all
executive sessions of her board of trustees. We conclude that such a requirement does not violate
the Open Meetings Act.

         Information furnished with the request indicates that the employment contract of the
superintendent of the school district that includes Randolph Air Force Base contains the following
language: “‘The Superintendent, or the Superintendent’s designee shall attend all meetings of the
Board, both public and closed, with the exception of those closed meetings devoted to the
consideration of any action or lack of action on the Superintendent’s contract or the Superintendent’s
salary and benefits as set forth in this contract or the Superintendent’s evaluation.“‘* The letter
suggests that this provision contravenes chapter 55 1, Government Code, the Open Meetings Act, by
requiring an individual who is not a member of the board of trustees to attend executive sessions.

         The Open Meetings Act provides that “[elvery regular, special, or called meeting of a
governmental body shall be open to the public, except as provided by this chapter.” TEX. GOV’T
CODE ANN. 0 551.002 (Vernon 1994). Subchapter D of the Act furnishes a number of limited
exceptions to the requirement that meetings of a governmental body be open to the public. In those
instances, a governmental body is permitted to meet in executive, or closed, session. Neither
subchapter D nor any other provision, however, specifies whether any persons other than members
of the governmental body may attend an executive session.



         ‘Letter from Honorable Judith Zafftii, Chair, Human Services Committee, to Honorable John Cornyn, Texas
Attorney General (Dec. 11, 2000) ( on file with Opinion Committee)           [hereinafter Request Letter]; Letter
from Ms. Deb Knopf, to Honorable Judith Zafftii,       Chair, Human Services Committee, Texas State Senate, at I
(Nov. 28,200O) (attached to Request Letter) [Knopf Letter].
The Honorable Mike Moncrief       - Page 2          JC-0375




         A number of prior opinions of this office touch on this issue. In Attorney General Opinion
JM-6, the attorney general held that the commissioners court of Frio County could exclude the
county clerk from its executive sessions, because “only the members of a governmental body-in
this instance, the commissioners court-have       the right, when authorized by section 2 of the Open
Meetings Act, to convene in executive session.” Tex. Att’y Gen. Op. No. JM-6 (1983) at 1; see also
Tex. Att’y Gen. Op. No. JM-1004 (1989) (individual school trustees who were suing district could
be excluded from executive session); Tex. Att’y Gen. LO-97-017 (hospital district’s board of
managers may exclude county attorney from executive session). And in Attorney General Opinion
JM-238, this office said that, with regard to an executive session held under the attorney consultation
exception, a governmental body was permitted to admit

               those officers and employees who are their representatives or agents
               with respect to the particular litigation in question and whose
               presence is necessary to effective communication with the attorney.
               Furthermore, the governmental body may not admit to its closed
               discussion of litigation those third parties who are adversaries or
               whose presence would otherwise prevent privileged communication
               from taking place. We do not believe that governmental bodies may
               simply admit anyone they wish regardless of whether that person is
               likely to make a legitimate contribution to the discussion.

Tex. Att’y Gen. Op. No. JM-238 (1984) at 5. To summarize, Attorney General Opinion JM-238
addressed only the admission of persons to an executive session held under the attorney consultation
exception, and found that persons with an interest adverse to that of the governmental body could
not be permitted to attend.

         These opinions address who may or must be excluded from an executive session and who
may be included in executive sessions held under the attorney consultation exception. This office
has never addressed whether the Open Meetings Act permits a governmental body to routinely
include an officer or employee of the governmental body, such as a school superintendent, in its
executive sessions. A superintendent is not, of course, a member of the public vis a vis her board
of trustees, but neither is she a member of the board with a right to attend its executive sessions. We
believe it is clear from our prior opinions, however, that a governmental body has discretion with
regard to who may attend its executive sessions. While those whose attendance is contrary to the
legal basis for the executive session may not be included, see id., a governmental body may include
officers and employees of the governmental body whose participation is necessary to the matter
under consideration.     See id.

        An independent     school district’s board of trustees oversees the management of the district.
See TEX. EDUC. CODEANN. 8 11.05 1 (Vernon 1996). The superintendent is employed by the board
to serve as the educational leader and chief executive officer of the district. See id. 8 11.201. Given
the superintendent’s    pivotal role in the district, we believe a board of trustees may reasonably
conclude that its superintendent’s presence is necessary at all executive sessions. Consequently, we
The Honorable Mike Moncrief       - Page 3           JC-0375




do not believe that contractual provision requiring a superintendent   to   attend the board’ S executive
sessions violates the Open Meetings Act.

         Since, however, the Open Meetings Act gives only the members of a governmental body the
right to attend an executive session and gives a governmental body discretion with respect to what
other persons may attend an executive session, see Tex. Att’y Gen. Op. Nos. JM-1004 (1989), JM-6
(1983), we would be troubled by a contractual provision that purported to give the superintendent
a right, in contrast to a duty, to attend all executive sessions. The provision at issue does not appear
to give the superintendent such a right. Furthermore, we do not believe that provision would prevent
a board of trustees from excluding its superintendent from meetings whenever it chooses to do so.
The Honorable   Mike Moncrief      - Page 4          JC-0375




                                         SUMMARY

                         A contractual provision requiring a superintendent of schools
                to attend all executive sessions of her board of trustees is valid under
                the Open Meetings Act, TEX. GOV’T CODE ANN. ch. 551 (Vernon
                1994 & supp. 2001).




                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
