                          QBfficeof t@ Bttornep QBeneral
                                  %tate of Z!Lexae
DAN MORALES                             March 4,1992
 ATTORNEY
      GENERAL

     Honorable Gary Watkins                        Opinion No. DM-95

     Committee on Higher Education                 Re: Whether a city council violates the
     Texas House of Representatives                Qpen Meetings Act when a majority of
     P. 0. Box 2910                                the council signs a letter that has not been
     Austin, Texas 78768-2910                      authorized in an open meeting (RQ-252)

     Dear Representative Watkins:

             You ask whether members of a city council violate the Qpen Meetings Act,
     article 6252-17, V.T.C.S. (hereinafter the “act”), when the members, constituting a
     majority of the council, sign a letter expressing an opinion on matters relevant to the
     city government. You enclose as an example a letter signed by a majority of
     members of a city council, expressing the support of the “undersigned majority” of
     the city council for an attached resolution. While we can discuss relevant provisions
     of the act and case law with respect to questions of law raised by your inquiry, a
     determination of whether a violation of the act has actually occurred in a specific
     situation requires factual determinations, which we cumot make in an attorney
     general opinion. Your question is therefore considered hypothetically, without
     reference to any particular incident. For purposes of this~discussion, we will assume
     that (1) the letter in question concerns public business or public policy over which
     the governmental body has control or supervision, and (2) the letter has not been
     considered and approved in a meeting held in compliance with the act.

             We realize that a dispute may occur over whether a letter signed by a
     majority of a governmental body represents an “official”action or merely an action
     of each of a group of individuals who all happen to serve on the same governmental
     body. Every person has a First Amendment right to express an opinion. However,
     when a governmental body acts, the law requires that the action taken complies with
     its terms. It is a well established rule, predating the Qpen Meetings Act, that a
     governmental body must act as a body. Webster v. Tam & Paci$c Motor Transpoti
     Co., 166 S.W.2d 75 (Tex. 1942). The purpose of this rule




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Honorable Gary Watkins - Page 2           (DM-95)




          is to afford each member of the body an opportunity to be
          present and to impart to his associates the benefit of his
          experience, counsel, and judgment, and to bring to bear upon
          them the weight of his argument on the matter to be decided by
          the Board, in order that the decision, when finally promulgated,
          may be the composite judgment of the body as a whole.

Id at 77. Presumably, when a group of people act in concert, some meeting of the
minds has occurred to make that action possible. With respect to actions taken by
governmental bodies, it is the process by which this meeting of the minds occurs that
the act is intended to open to public scrutiny. Car Enters. Inc. v. Board of Ttzutees of
Austin Zrufep. School D&., 706 S.W.2d 956, 960 (Tex. 1986) (the act is intended to
safeguard the public’s interest in knowing the workings of its governmental bodies).

        While we are unable to anticipate every possible fact situation that might
occur, we think an action taken by a quorum of a governmental body on a matter of
public policy of concern to that governmental entity is not merely the action of each
member of a group of individuals, but is an action of the governmental body. When
a majority of a governmental body acts on a matter of public policy under its
jurisdiction, even in a way that is not binding upon the governmental entity served
by the body, the policy enunciated by the Texas Supreme Court in Webster suggests
that such action must be taken by the governmental body as a whole, subject to the
laws, including the Gpen Meetings Act, governing the behavior of the governmental
body. Therefore, for purposes of this discussion, a letter signed by a quorum of a
governmental body, concerning public business or public policy over which the
governmental body has control or supervision, would normally be an official action
of the signatory members subject to the requirements of the act.

       To accomplish its end, the act requires that every meeting of a governmental
body, with certain narrowly drawn exceptions, be open to the public and that the
public be given notice of meetings. V.T.C.S. art. 6252-17, $0 2,3k “Meeting,” for
purposes of the act, is defined as

          any deliberation between a quorum of members of a
          governmental body, or between a quorum of members of a
          governmental body and any other person, at which any public
          business or public policy over which the governmental body has
          supervision or control is discussed or considered, or at which any
          formal action is taken. . . .



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V.T.C.S. art 6252-17,s l(a). “Deliberation” is defined as

           a verbal exchange during a meeting between a quorum of
           members of a governmental body, or between a quorum of
           members of a governmental body and any other person,
           concerning any issue within the jurisdiction of the governmental
           body or any public business.

Id g l(b). The act provides criminal penalties for a member of a governing body
who knowingly calls or aids in calling an improper closed meeting. Id 3 4(a). The
act also criminally sanctions a member of a governing body who knowingly conspires
to circumvent the act by meeting with other members in numbers less than a
quorum for secret deliberations. Za! 9 4(b). The act provides mandamus or
injunction as civil remedies to stop, prevent, or reverse violations of the act. Id
5 3(a). Actions taken by a governmental body in violation of the act are voidable.
Id

       If it were established as a matter of fact that members of a governmental
body had gathered together in numbers sufficient for a quorum to discuss the
wording of a letter concerning public business or public policy over which the
governmental body had control or supervision, and if such gathering were not open
to the public or preceded by notice in compliance with the act, it would follow from
the definitions quoted above that a violation of the act had occurred.

       A more problematic fact situation occurs when one or more members, but
less than a quorum, drafts a letter, and then presents the material (or has the
material presented) to the other signatories, always meeting in numbers less than a
quorum In this way a “meeting” and a “deliberation” as defined in the act are
arguably avoided because even though the verbal exchange among the council
members may at any one time engage less than a quorum of the council, the verbal
exchanges do not occur during a meeting where a quorum of members is
simultaneously in each other’s physical presence.1

         IThe possibiity of fmdiog that deliberations ia violation of the act have occurred would be
much less likely ia the situation where a letter was circulated among a quorum of the council, but
where no two members of the council at any time discussed the contents of the letter. Agaia, however,
the totality of circums~       would have to bc coasidcred if the governmental pody’s aetioas were
chaUcnged under the ad. See Attorney General Opinions MW-32 (1979) (a procedure permitting
individual members of a governmental body to write to the executive director suggesting items to place



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        In Hitt v. Mabv, 687 S.W.2d 791. (Tex. App.--San Antonio 1985, no writ), the
court of appeals considered an appeal from a permanent injunction, issued by the
district court, enjoining the San Antonio Independent School District from, among
other things, conducting informal meetings or telephone conferences to discuss or
decide on matters of public policy. The district court had found that such
discussions or decisions were in violation of sections 2(a) and 3A of the act. Id at
794. The event that caused the litigation in M&y was the discovery by the plaintiff
that the San Antonio Independent School District intended to mail a letter to all
parents in the district, “advising recipients of their voting rights and stating the
message was a service of the school district’s Board of Trustees.” The plaintiff
complained, among other things, that there had been no discussion of the letter in
an open meeting of the board. Id. at 793.

      The court of appeals modified certain aspects of the injunction, but let stand
a permanent injunction against the board enjoining them from:

                 Arriving at a decision involving public business or public
            policy affecting SAISD by way of private informal meetings or
            conferences, including telephone polls of the members of the
            Board . . . .

Id at 796.

       The argument set forth in the dissenting~ opinion in M&y is helpful in
understanding the significance of the majority holding in that case. In dissenting
from the majority holding, Chief Justice Cadena stated:

               There is another diffkuhy with the injunction as modified.
           Plaintiffs alleged that the use of telephone polls was a
           conspiracy to circumvent the provisions of the Open Meeting
           Act . . . . As applicable to this case, the “governmental body”
           which is required to meet publicly is the Board of Trustees, and
           the requirement that meetings of that body be public applies


(footnote contimlcd)
oa the. agenda of    a future meeting does not violate the Open Meetings Act); H-1163 (1978)
(prohibiting the use of secret ballots by governmental bodies).




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Honorable Gary Watkins - Page 5          (DM-95 1




            only when a quorum is present, since in the absence of a quorum
            there is no “meeting.”

Id at 798

        With respect to polling the members of the govemmental’body individually,
the dissent appears to take the view that the simultaneous physical presence of a
quorum in one place is necessary for a violation of the act’s requirement that
meetings be open to the public. Though the majority opinion doesnot expressly
discuss this point, it is clear that it takes the opposite view, i.e., a view consistent
with the district court’s finding that the practice constitutes a violation of sections 2
and 3A of the act. This view is the basis for the district court’s issuance of the
injunction, which the majority opinion upheld.

        Though polling members of a governmental body by telephone was
specifically at issue in Mubry, it seems immaterial to the applicatipn of the law
whether such polling was done by telephone or otherwise. Following Mabry, it
appears that the physical presence of a quorum in a single place at the same time is
not always necessary for a violation of sections 2 and 3A to occur. Avoiding the
technical definition of “meeting” or “deliberation” is not, therefore, a foolproof
insulator from the effect of the act. Indeed, it would appear that the legislature
intended expressly to reach deliberate evasions of these definitions in enacting
section 4(b) of the act. See also Attorney General Opinion JM-584 (1986) (in the
absence of specific legislative authority, a governmental body that meets by
telephone conference call will not comply with thenact).

        Whether any specific behavior or pattern of behavior constitutes a violation
of the act must ultimately be determined by a trier of fact. There is a continuum of
behavior from that which clearly complies with the act to that which clearly violates
it. We think, however, that a governing body that deliberates through a series of
closed meetings of members of less than a quorum risks a finding by a trier of fact
that either a violation of sections 2 or 3A has occurred, or worse, that members have
conspired to circumvent the act in violation of section 4(b).

       The Open Meetings Act is intended to open to public scrutiny the process by
which governmental bodies reach decisions affecting public policy or business over
which the governmental bodies have supervision or control. Cox Enterpties, supru.
If a quorum of a governmental body agrees on a joint statement on a matter of such
business or policy, the deliberation by which that agreement is reached is subject to



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the requirements of the act, and those requirements are not necessarily avoided by
avoiding the physical gathering of a quorum in one place at one time. Hitt v. Mubry,
SUpltZ.


                                   SUMMARY

               If a quorum of a governmental body agrees on a joint
          statement on a matter of governmental business or policy, the
          deliberation by which that agreement is reached is subject to the
          requirements of the Open Meetings Act, and those requirements
          are not necessarily avoided by avoiding the physical gathering of
          a quorum in one place at one time. Whether any specific
          behavior or pattern of behavior constitutes a violation of the act
          must ultimately be determined by a trier of fact.




                                                  DAN      MORALES
                                                  Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by John Steiner
Assistant Attorney General



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