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DAN MORALES
 ATTORNEY
     GENEMI.                          April 16,199l




   Honorable John Whitmire                            Opinion No. DM-17
   chaitman
   Intergovernmental Relations Committee          Re: Whether the Houston Metro-
   Texas State Senate                             politan Transit Authority may meet
   P. 0. Box 12068                                in closed session to review bids for a
   Austin, Texas 78711                            proposed rail system (RQ-32)

   Dear Senator Whitmire:

          You inquire about the application of the Open Meetings Act, article 6252-17,
   V.T.C.S., to the Houston Metropolitan Transit Authority (METRO). You ask
   whether METRO has authority to meet in private to review bids for a proposed rail
   system.

          A metropolitan rapid transit authority is required to hold its meetings
   pursuant to the Open Meetings Act. V.T.C.S. art. 1118x, 8 4(g). The Open
   Meetings Act provides in part:

                 Except as otherwise provided in this Act or specifically
             permitted in the Constitution, every regular, special, or called
             meeting or session of every governmental body shall be open to
             the public.

   V.T.C.S. art. 6252-17,s 2(a).

          A meeting 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




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Honorable John Whitmire - Page 2 ( DM-17 )




          supervision or control is discussed or considered, or at which any
          formal action is taken.

Id 5 l(a) (emphasis added). “Deliberation,” including deliberation leading to
formal action, is thus a key element of a meeting that is subject to the Open
Meetings Act. See Attorney General Opinions H-772 (1976); H-438 (1974); H-238
(1974). This term 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.



        Thus, if a quorum of members of the METRO board engages in
deliberations as defined by the above provision, it will be subject to the Open
Meetings Act, A board may not deliberate in private about an issue within its
jurisdiction, or any public business, unless a closed session or meeting is authorized
by section 2 of the Open Meetings Act. In addition, the board must first convene in
an open meeting for which notice has been given as provided by section 3A of the
act, and the presiding officer must publicly announce that a closed session will be
held and must identify the section or sections of the act authorizing the closed
session. See also V.T.C.S. art. 1118x, 9 4(g).

       The requirements of the Open Meetings Act do not apply when a quorum of
a governmental body merely assembles in the same room without engaging in
deliberations. See, e.g, Attorney General Opinion JM-1127 (1989). Thus, a quorum
of a governmental body may assemble as an audience at the meeting of another
entity without being subject to the requirements of the act. See id A quorum of
board members may receive information from and ask questions of staff members at
an orientation or briefing session without being subject to the Open Meetings Act,
as long as board members do not engage in discussion among themselves. Attorney
General Opinion JM-1058 (1989); see UZSOAttorney General Opinions JM-640
(1987) (licensing board may conduct oral examinations of applicants, asking
questions and listening to answers, without being subject to requirements of act);




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Honorable John Whitmire - Page 3 (DM- 17 )




JM-248 (1984) (trustees of Employees Retirement System receiving information
from “particular individuals”); cf: Attorney General Opinion H-785 (1976)
(breakfast meetings of commissioners court are subject to Open Meetings Act
unless they are purely social in nature and involve no discussion of public business).
In asking questions of the persons who address the board in a briefing session, board
members must avoid engaging in dehtirations by means of addressing remarks
intended for one another to the persons providing the briefing. See Attorney
General Opinion JM-1127.

       A letter from the general counsel of METRO, which you submitted with your
request letter, describes an executive session meeting of the METRO board on
proposals submitted in response to its Request for Proposals for a Pied Guideway
Transit System. The letter states that the meeting was conducted pursuant to
section 2(r)’ of the Open Meetings Act, which provides as follows:

               Nothing in this Act shall be construed to require a quorum
          of the members of a governmental body to confer with an
          employee or employees of the governmental body in an open
          meeting where such conference is for the sole purpose of
          receiving information from the employee or employees or to ask
          questions of the employee or employees; provided, however,
          that no discussion of public business or agency policy that affects
          public business shall take place between the members of the
          governmental body during the conference.

       A prior opinion of this office has interpreted this provision as removing the
conferences it describes from the coverage of the act. Attorney General Opinion
JM-1058. Thus, a briefing session as described by section 2(r) is not subject to the
notice or other procedural requirements of the Open Meetings Act. Section 2(r)
codifies in part the decisions of this office holding that deliberation among the
members of a governmental body is an essential element in the definition of
“meeting” under the Open Meetings Act, and that if deliberations do not occur,
there is no meeting subject to the requirements of the act.



       ‘AS added by Acts 1987,7OthLeg.,ch. 549,s z




                                              p.     78
Honorable John Whitmire - Page 4      (DM-17 1




        The letter from METRO’s general counsel describes section 2(r) as
authorizing a public body to confer witb staff for the purpose of receiving
information, provided that no discussion of public business or agency policy that
affects public business takes place between the members of the governmental body
during the conference. The letter continues as follows:

          mhe      contents of the meeting were in fact strictly
          ‘informational.’ No decisions of any kind were made by the
          Board in the meeting, nor were there any proposed decisions
          even discussed. The presentations by tbe RPP proposers were
          part of this information gathering process and were designed to
          provide each proposer the opportunity to present information
          which it claimed to be proprietary to all Board members at once.

        This office cannot investigate fact questions or resolve disputed questions of
fact in the opinion process. See, e.g., Attorney General Opinions M-307 (1968);
O-3382 (1941). We can state the legal consequences that will flow from certain
events. If the METRO board members did no more than receive information from
proposers and staff members, ask questions and listen to the answers, and did not
discuss the information or other matters of public business among themselves, then
they were not participating in a meeting subject to the Open Meetings Act. On the
other hand, if the board members actually discussed the proposals among
themselves, section 2(r) did not authorize the board to hold a closed session for such
deliberations. See uLro Attorney General Opinions JM-595 (1986) (governmental
body is not authorized by section 3(a)( 11) of Open Records Act to discuss selection
of competitive bidders in closed session); MW-129 (1980) (governmental body must
meet in open session to hire independent contractors).

                                  SUMMARX

               The board of Houston Metropolitan Transit Authority was
          not participating in a meeting subject to the Open Meetings Act,
          article 6252-17, V.T.C.S., if it met in a closed session to receive
          information and ask questions of staff and companies that
          responded to its request for proposals for a proposed rail system
          and did not engage in any discussion of any matter of public
          business among board members. Section 2(r) of the Open




                                          p.   79
Honorable John Whitmire - Page 5 ( DM-17 1




         Meetings Act does not authorize the board to hold a closed
         meeting to engage in a discussion among the board members
         about the proposals.




                                              DAN      MORALES
                                              Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOIUE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEAHIcIcs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan Garrison
Assistant Attorney General




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