           THE    ATTORNEY          GENERAL
                     OF  TEXAS

                      lanyard a, 1988




Mr. Robert 0. Viterna               opinion No. m-840
Executive Director
Commission on Jail Standards        Re: "Certified agenda" re-
P. 0. Box 12985                     quirements    imposed     by
Austin, Texas 78711                 recent amendments    to the
                                    open Meetings   Act,    art.
                                    6252-17, V.T.C.S. (RQ-1244)

Dear   Mr. Viterna:

       The Texas Open      Meetings Act, article      6252-17,
V.T.C.S., requires governmental bodies, as defined in the
act, to deliberate and take all final actions on govern-
ment policy and business in meetings that are open to the
public.      See 52(a).    The act authorizes     governmental
bodies to deliberate     under certain limited circumstances
      closed or executive     sessions.    See art. 6252-17,
ii:2 (e)   (f), ($0, (W, (j), Cm), (n), Co), (p).      Because
the public has been excluded from executive sessions,       the
public has       been unable    to determine     whether    the
governmental body met the requirements for the executive
session. During the recent legislative session, the Texas
Legislature responded to this problem by enacting        Senate
Bill No. 168     (Acts 1987,  70th Leg., ch.   549, 51).    See
Bill Analvsis to Senate Bill No. 168 70th Leg. (1987), on
file in Legislative     Reference Library.    Senate Bill No.
168 added section 2A to the act, a section requiring
governmental bodies to keep a "certified agenda" or a tape
recording for each of its meetings that is closed to the
public.

     YOU ask what constitutes           a   "certified   agenda."
Section 2A provides:

            (a) For each of its meetings    that is
         closed to the public, except for consulta-
         tions in accordance with Subsection (e) of
         Section 2 of this Act, a governmental  body
         shall keep a     certified aaenda of    the
         proceedings.




                          p. 4051
Mr. Robert 0. Viterna - Page 2   04-a40)




          (b) The presiding  officer must certify
       that the agenda kept under Subsection (a).of
       this section is a true and correct record of
       the oroceedinas.

          (c) The certified agenda shall include an
       announcement made by the presiding   officer
       at the beginning   and end of the meeting
       indicating the date and time. The certified
       agenda shall state the subject matter     of
       each deliberation and shall include a record
       of any further action taken. The certified
       agenda of closed or executive sessions shall
       be made available for public inspection  and
       copying only upon court order in an action
       brought under this Act.

          (d) In lieu of the requirements for main-
      taining a certified agenda as provided      in
      Subsections    (a), lb), and    (c) of    this
       section, a governmental body may make a tape
       recording of the proceedings     which  shall
       include an     announcement  made    by   the
      presiding officer at the beginning and end
                                                       -.
      .of the meeting indicating the date and time.

          (e).The certified agenda or tape shall be
       available for in camera inspection by the
       judge of a district court if litigation  has
       been initiated involving an alleged viola-
       tion of this Act. The court upon entry of a
       final judgment may admit the       certified
       agenda or tape into evidence in whole or in
       part. The court may grants equitable      or
       legal relief    it considers    appropriate,
       including an order that the governmental
       body make available    to the public     the
       certified agenda or tape of any part of a
       meeting that was not authorized to be closed
       under this Act.

          (f) The governmental body shall preserve
       the certified agenda or tape for at least
       two years after the date of the meeting.  If
       an action involving the meeting is commenced
       during the required preservation period, the
       certified agenda or tape shall be preserved
       pending the outcome of the action.




                      p. 4052
     Mr. Robert 0. Viterna - Page 3    (JM-840)

,-


               (g) No member of a governmental       body
            shall participate   in a meeting    of    the
            governmental  body closed to the       public
            knowing that a certified     agenda of the
            meeting is not being kept or tape recording
            is not being made. A person who violates
            this   subsection   commits   a   Class     C
            misdemeanor.

               (h) No individual, corporation, or part-
            nership   shall, without   lawful authority,
            knowingly make public the certified     agenda
            or tape recording of a meeting or that por-
            tion of a meeting that was closed under
            authority   of this   Act.    A. person    who
            violates this subsection shall be liable to
            any 'person injured    or damaged     thereby
            . . . . (Emphasis added.)

     YOU ask, in general, what constitutes        a   "certified
     agenda." You ask specifically whether an announcement    of
     the. date and time accompanied      by a statement     that
     unspecified W1litigation" was discussed with your attorney
     meets the requirements of section 2A.

          Subsection (a) of Section 2A resolves your specific
     question about a "certified agenda" for executive sessions
     to discuss unspecified   litigation with your attorney.
     Subsections (a) requires a governmental   body to keep a
     "certified agenda" Il[f]or each of its meetings that is
     closed to the public,      excevt for consultations
     accordance with subsection (e) of section 2 of this act:
     (emphasis added). Subsection (e) of section 2 provides:

               Private consultations  between a govern-
            mental body and     its attorney are     not
            permitted except in those instances in which
            the body seeks the attorney's advice with
            respect to pending or contemplated   litiga-
            tion, settlement offers, and matters   where
            the duty of a public body's counsel to his
            client, pursuant to the Code of Professional
            Responsibility of the State Bar of Texas,
            clearly conflicts with this Act.

     Consequently, section 2A does not require a       "certified
     agenda" for executive  sessions in which only     subsection
     (e) matters are discussed.




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Ml-. Robert 0. Viterna - Page 4   (m-840)




     You should note, however, that executive       sessions
under subsection     (e) of  section 2 are limited        to
situations in which governmental bodies seek legal advice
from their attorneys with regard to specific    anticipated
or pending   litigation. Attorney   General Opinion   JM-100
(1983). Moreover, the "certified agenda" requirements     of
section 2A are distinct from the notice provisions of the
Open Meetings Act. V.T.C.S.   art. 6252-17. Notice of an
executive sessicn that addresses unspecified   l'litigationL'
may not satisfy the act's notice requirements.      Sea cox
Lntervrises v. Board ofTrustees   of the Austin Indevendst
S&hoc1 District, 706 S.W.2d 956 (Tex. 1986).

     Your concern also focuses on the detail necessary  to
comply with the "certified .agenda" requirement for 0tAer
closed or executive sessions. You suggest that subsection
(c) of section 2A indicates that the only two requirements
of a "certified agenda" are 1) an announcement of the date
and time of the executive session at the beginning and end
of each session and 2) a statement of the subject matter
and of further action taken on each deliberation.1     The
question  is the detail the statement must        contain.
Section 2A does not provide much guidance.  Subsection (b)
of section ?A provides that the agenda is to be "a true
and correct record of the proceedingsl' of the execut iv2
session.

     The primary concern in interpreting a statute is to
ascertain  and give effec,t to legislative     intent    as
expressed in the language of the statute.        State VL
Terrell, 588 S.W.Zd 784 (Tex. 1979). The language    chosen
by the legislature in this case is somewhat     ambiguous.
Two extremes   in interpreting   "certified  agenda"    are
possible.  At the least, the agenda must include a one or
two word statement  of every subject actually   discussed.
At the most, the agenda must be a verbatim transcript    of
the executive session.

        Interpreting   legislative  intent    also   requires
consideration of the old law, the evil to be remedied, and
the remedy provided by the amendment.    Prior to amendment,
because    the public was excluded from executive   sessions,
the public       had no    way to   determine   whether   the



   1. You should note that this reference to "further
action" does not mean final action. As indicated, final
action may only be taken-open   meetings.




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Mr. Robert 0. Viterna - Page 5     (34-840)




governmental body met the requirements for holding     the
executive session.. The legislature intended the amendment
to provide a method of verifying in court proceedings that
executive sessions comply with the Open Meetings Act.

     The other provisions contained in Senate Bill No. 168
provide   only indirect    guidance on     the meaning    of
"certified agenda." Senate Bill No. 168 also amended the
provisions governing meetings that are open to the public
by requiring governmental bodies to prepare and retain
minutes or a tape of each of their meetings.     Acts  1987,
70th Leg., ch. 549, 54 (adding section 3B to article
6252-17).   "Minutes" is defined as a memoranda or notes of
a transaction or proceeding, see Black's Law Dictionary
(5th Ed.), or as the official record of the proceedings of
a meeting; See Webster's Ninth New Colleaiate Dictionarv.
To "minute" somethins is to make notes or a brief summary
of the thing. Id. The common usage of "minutes" is more
likely to connote something     like a verbatim   transcript
than the common usage of "agenda." On the other hand, the
legislature amended the act to require that minutes       of
open meetings be kept and that the "minutes shall state
the subject matter of each deliberation" and each action
taken by the gov.ernmental body. A verbatim transcript     is
not required by this       language.    As indicated,    the
"certified agenda" must also "state the subject matter    of
each deliberation."   The phrase l'agenda'lmeans a memoranda
of things to be done, as items of business or discussion
to be brought up at a meeting, see Black's Law Dictionary
(5th Ed.), or a list, outline or plan of things to be
considered or done at a meeting. See Webster's Ninth New
Colleaiate Dictionarv.   If the legislature had meant the
"minutes" or "certified       agenda" to    be a    verbatim
transcript, the legislature would have so indicated.     Two
things are apparent   from the language of the amendment.
First, the legislature intended that l'minutes'l be less
than a verbatim   transcript.   Second, despite the use of
the same general description for ltminutesl'and "certified
agenda," the legislature intended that the "agenda" be
something less detailed than tlminutes.UV

     The history of the passage of Senate Bill No. 168
through the Texas Legislature reinforces this conclusion.
As originally   introduced, the bill would have required
governmental  bodies to     keep "minutesVq of    executive
sessions to "state the substance of each deliberation."
The requirement   for a "certified agenda" was, however,
substituted for "minutes."    Additionally, subsection   (c)
was modified from "minutesl' stating "the substance of each
deliberation" to an "agenda" stating "the subject matter



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Mr. Robert 0. Viterna - Page 6    (JM-840)




of each deliberation."   The committee hearing tapes reveal
two thing.s:   1) that opponents  of the bill feared that
80minutes*1 meant a    verbatim  transcript  or   something
similar, and 2) that the bill as originally introduced was
not intended to require a verbatim transcript.       It is
clear, however that a one-word description        such   as
"personnel" will p& suffice.

     The fact that the legislature provided    governmental
bodies with the option of making a tape of the executive
session as an alternative    to the "certified agenda"    is
significant.    Because the amendment uses the two as
alternate methods   of effecting  one legislative  purpose,
the two must be intended to serve as substantial   equival-
ents. The requirement that the agenda be certified,     how-
ever, may have been intended as an alternative    safeguard
when a tape or full transcript is &    prepared.  The tapes
of the committee hearings reinforce this conclusion.     The
tapes suggest that the "certified agenda" is to serve
primarily as an affirmation that the governmental body did
not discuss matters   it is not authorized   to discuss   in
executive session. For example, if the governmental     body
holds an executive session under section 2(g) to discuss
the employment of a specific employee, the governmental
body must certify that it discussed only this topic.      On
the other hand, if the governmental body discussed a topic
such as a pay cut or pay hike for all employees, a topic
for which executive    sessions are not authorized,      the
certified agenda must also state that this topic was
discussed.   See Attorney General Opinion H-496 (1975).

     Ultimately, the question   of whether    a particular
"certified agenda" complies with the statute will be a
fact question for the courts. a      §2A(e). Because    the
question involves an ambiguous provision, the courts may
apply a substantial compliance  standard.   In the area of
Open Meetings,   however,  the courts have been moving
towards requiring stricter compliance.    See, e.a    smith
Countv v. Thornton, 726 S.W.2d 2 (Tex. 1986); Co;' Enter-
prises v. Board of Trustees    of the Austin    Indevendent
School District, 706 S.W.Zd 956 (Tex. 1986). In m,      the
Texas Supreme Court decided that the notice provisions   of
the act require more than broad, general, one-word   state-
ments of subjects such as "real estate," "personnel,"   and
"litigation.8' In light of this decision, it would be
unlikely   if similar statements    would be upheld      as
sufficient for the "certified agenda"      requirements  of
section 2A. Moreover, even if such statements were deemed
sufficient under section 2A, this would not negate the
requirements that notice be more specific.



                        p. 4056
Mr. Robert 0. Viterna - Page 7     (JM-840)




     This office cannot, however,     set forth iron-clad
guidelines for complying with the statutory requirement in
every situation.   It is clear that the agenda must contain
at least a brief summary of every specific           subject
actually discussed, not just those originally intended for
discussion.    So long as discussion     is restricted    to
matters contained in the notice for the executive    session
and matters for which an executive session is authorized,
a "certified agenda" need not contain a detailed     summary
or paraphrase of each question or idea presented on the
general subject of the executive      session.   Keeping   a
more detailed record of   discussions will, however,   serve
to protect the governmental body from violating      section
2A. If a discussion     addresses something that does not
appear in the notice or should not be discussed           in
executive session, greater detail    is necessary.    Enough
detail should be included to enable a district judge to
determine whether the      act has    been violated.      If
discussion strays into topics for which executive sessions
are not authorized, the certified agenda must state that
those topics were discussed but may also state that the
governmental body remedied the error by repeating        the
discuss~ion in open meeting. The greater the likelihood of
violation, the greater the detail necessary.   Governmental
bodies can avoid problems in this area of ambiguity ~by
opting to keep a tape of executive sessions rather than a
"certified agenda."

                       SUMMARY

          The  Texas Open Meetings Act, article
       6252-17,   V.T.C.S.,  requires    governmental
       bodies, as defined in the act, to deliberate
       and take all final actions on governmental
       policy and business     inT;zetagzs that .are
       open to the public.                 authorizes
       governmental   bodies to deliberate      under
       certain limited circumstances    in closed or
       executive sessions.   In Senate Bill No. 168,
       Acts 1987, 70th beg., ch. 549, 51, the
       legislature added section 2A to the act to
       require governmental     bodies   to keep
       "certified agenda" or a tape recording      foZ
       each of their meetings that is closed to the
       public. Section 2A expressly does not apply
       to consultations between a governmental body
       and its attorney when those consultations
       comply with subsectidn (e) of section 2 of
       the act, i.e., when only subsection         (e)
       matters  are discussed.   For other executive



                         p. 4057
Mr. Robert 0. Viterna - Page 8    m-840)




       sessions, a tape or "certified agenda" must
       be kept.   The agenda must be 'Iatrue and
       correct record of the proceedings" of the
       executive session. Although the agenda need
       not be    a verbatim     transcript   of   the
       executive session, section 2A requires more
       than a one or two word list of the subjects
       actually   discussed.      Ultimately,     the
       question of whether a particular    "certified
       agenda" complies with the act is a fact
       question for the courts, but in general, the
       greater the likelihood    of violation,    the
       greater the detail necessary.




                                  J /vLtGx
                                   Ver       truly   rs,


                                         k
                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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