On May 24, 2019, Attorney General Ken Paxton handed down an opinion, at the request of Commissioner of Education Mike Morath, providing some much needed clarity regarding “walking quorums” and the Texas Open Meetings Act (“the Act”). The Request for Opinion came after the Court of Criminal Appeals ruled in State v. Doyal that Section 551.143 of the Open Meetings Act was unconstitutionally vague on its face. Section 551.143(a) provides:
“A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent [the Act] by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”
The questions asked by the Commissioner were likely similar to the questions most, if not all, school trustees, officials, and representatives had been asking since the Court of Criminal Appeals handed down their ruling in February. First, does the Open Meetings Act continue to prohibit a quorum of a governmental body from deliberating an item of public business outside of an authorized meeting through multiple communications, each making up less than a quorum (i.e. a walking quorum)? Second, if criminal sanctions no longer apply, what sanctions exist for those who violate the Act? Answering these questions requires a review of other sections of the Act, untouched by the Court of Criminal Appeals’ ruling.
In reference to the first question regarding whether “walking quorums” are still prohibited, the answer is yes. The Legislature’s overall purpose in adopting the Open Meetings Act is clearly to safeguard the public’s interest and encourage good government by ending closed-door dealings without public scrutiny. This intent is evidenced in Section 551.002 of the Act which requires “every regular, special, or called meeting of a governmental body” to be open to the public, with limited exceptions set forth in the Act.
The Act furthers this purpose in Sections 551.001(4)(A) and 551.001(2) which define “meeting” and “deliberation” respectively. A “meeting” includes “a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the body has supervision or control is discussed or considered.” Deliberation is “a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business.” A plain reading of these two definitions provides that a meeting occurs when a quorum of a governmental body has a verbal exchange about public business or policy within that governmental body’s jurisdiction.
There is no requirement deliberation occur simultaneously or in the same location to constitute a meeting, nor is there any support that a quorum must be physically present at the same time and same location for a violation of the Act to occur. For example, prior Attorney General Opinions state a series of email communications may constitute a deliberation and meeting depending on the specific facts of the case. In other words, simply because deliberation may occur through multiple communications (i.e. text messages, emails, phone calls, etc.), as opposed to a single place at a single time, does not mean deliberation among a quorum did not occur. The Texas Supreme Court held, “When a majority of a public decision-making body is considering a pending issue, there can be no ‘informal’ discussion. There is either formal consideration of a matter in compliance with the Open Meetings Act or an illegal meeting.” Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 300 (Tex. 1990). Therefore, if a governmental body, such as a school district’s board of trustees, deliberates about public business within their jurisdiction outside of an authorized meeting, that body has violated the Open Meetings Act.
In reference to the second question regarding whether sanctions exist for violating the Act, the answer is, once again, yes. While the Court of Criminal Appeals struck down the criminal sanctions for violating Section 551.143, civil remedies remain in place. For example, under Section 551.141, any action taken by a governmental body in violation of the Act is voidable. Additionally, Section 551.142 allows any interested person, such as community members, to file an action by mandamus or injunction to stop, prevent, or reverse a violation (or threatened violation) by the governmental body.
Lastly, regulatory sanctions may be imposed on certain governmental bodies who violate the Open Meetings Act. For example, Section 39.057 of the Texas Education Code gives authority to the Texas Education Agency (“TEA”) to conduct investigations of school districts that allegedly violate certain state or federal laws and take action, if warranted, based on the results of the investigations. At the same time, Section 11.051 of the Education Code requires a school board to only act by majority vote of present members at a lawfully called meeting. As a result, if the TEA conducts an investigation and finds a school board violated the Open Meetings Act, it could take any action authorized under Section 39.057(d) of the Education Code. These actions could potentially lower a school district’s accreditation status or accountability rating and the Commissioner could sanction the school district by taking any action authorized by Chapter 39A of the Education Code, including but not limited to issuing a public notice of deficiency, ordering a hearing before the commissioner, or appointing a conservator to oversee district operations.
While the Court of Criminal Appeals may have done away with the criminal sanctions for violating Section 551.143 of the Texas Open Meetings Act, governmental bodies, like school districts’ boards of trustees, must still comply with the Act. This Opinion makes clear “walking quorums” remain prohibited and civil remedies exist for violations.
If you would like to read the full opinion, click here.
If you have any additional questions about this ruling or any other issue, please do not hesitate to contact the attorneys at Leasor Crass.