Open meetings issues pop up again and again

Q: Stop me if you’ve heard this one before. Our superintendent approved a voluntary separation agreement with the school district. TASB was hired to do the search for a replacement with an interim to be appointed by the school board. At a special board meeting, the four controlling members blindsided everybody by naming the existing superintendent as her own interim. 

The board went into executive session. Then they came out and called for a vote — which went 4-3 — and adjourned. No details, such as her salary as interim, were given. Aren’t they required to at least say what they’re going to pay her? The next day, no one in administration (admitted they) knew the interim salary, either.

Where can I go for answers and/or help?

A: You can’t go wrong by calling the Texas Attorney General’s Open Government Hotline, (877) OPEN-TEX. 

Now, this is not legal advice, just two grizzled newspaper folks communicating. You could start by hand-delivering a public information request (printed on your office letterhead) to the gatekeeper(s). A request like this tends to be more effective when it describes exactly what you are looking for, like copies of the original, written motions that the board voted on, a copy of the official document on which the offer is written and a copy of the official document stating the amount of compensation, in case that information is not on the same document as the offer. If you don’t want to pay for copies, you can ask to visually inspect any responsive documents, and you can’t be charged for doing that. For more information about public information requests, go to: https://www.texasattorneygeneral.gov/og/how-to-request-public-information

You could follow up with the school district’s powers that be by asking for an interview. If they say “no comment” or something like “no dice” you could recount your efforts and the official responses in a news story. Tell your readers how your requests for an interview and information were handled when you asked for comments, and official documentation in a manner prescribed by the Texas Public Information Act. Newspapers have published copies of their requests for public information when local governmental bodies have failed to comply. Shaming might not be the best approach, though. What works best: honey or vinegar?

You also might visit with the school district’s lawyer. If that avenue in your quest for information turns out to be unproductive, you could bring the matter to the attention of your district attorney making sure to ask plenty of “why?” questions.

Here is a trusty, serviceable public information request letter, courtesy of the Freedom of Information Foundation of Texas, that you can copy, paste and customize according to your needs:

http://foift.org/resources/letter-templates/pia-letter/

It can help to put a carbon-copy addressee at the bottom of your PIA request letter. I suggest Justin Gordon, Open Records Chief, Office of the Attorney General, P.O. Box 12548, Austin, TX 78711. Then send him a copy.

 

Q: Three members of our five-member city council are regularly spotted talking together in the coffee shop on the square. Three members constitute a quorum. Is this technically a meeting under the Texas Open Meetings Act? When they get together like that, it’s reasonable to assume there is at least some discussion regarding matters that should only be deliberated upon in a regular meeting of the city council. Who has jurisdiction over matters like this? 

A: First, let’s check the Texas Attorney General’s 2014 Open Meetings Act Handbook. On page 17, Paragraph D, under the heading “Informal or Social Meetings” it is written:

When a quorum of the members of a governmental body assembles in an informal setting, such as a social occasion, it will be subject to the requirements of the Act if the members engage in a verbal exchange about public business or policy. The Act’s definition of a meeting expressly excludes gatherings of a “quorum of a governmental body at a social function unrelated to the public business that is conducted by the body.” The definition also excludes from its reach the attendance by a quorum at certain other events such as conventions, ceremonial events and press conferences. In both instances, there is no “meeting” under the Act “if formal action is not taken and any discussion of public business is incidental to the social function, convention, workshop, ceremonial event, or press conference.”

Second, let’s turn to page 58 of the Open Meetings Handbook. Under XI. Penalties and Remedies. Under A. Introduction, it is written:

The Act provides civil remedies and criminal penalties for violations of its provisions. District courts have original jurisdiction over criminal violations of the Act as misdemeanors involving official misconduct. The Act does not authorize the attorney general to enforce its provisions. However, a district attorney, criminal district attorney or county attorney may request the attorney general’s assistance in prosecuting a criminal case, including one under the Act.

Source: https://www.texasattorneygeneral.gov/files/og/openmeeting_hb.pdf

 

Q: Our school board called a special meeting on personnel matters, regarding the director of athletics. At the meeting, the board went into a closed-door executive session. After about two hours, they reconvened in open session. A member moved to instruct the administration and counsel to proceed with what was discussed in executive session and the motion was adopted. I asked the school district’s attorney if the vote was to fire the AD. The answer was no. I asked if the AD was going to be reassigned. The answer was no. And I was told that the motion was solely to act on what was discussed in executive session. This seems to undermine the Open Meetings Act. Any comments?

A: I concur. The motion seems to have been worded in such an opaque way that the public likely would not be able to decipher exactly what was being voting on. In most Texas communities, a school district’s director of athletics is close to or on par with the superintendent in importance.

Motions, like advance meeting agendas, should be worded with enough specificity to inform the public of what’s actually up for discussion and action. You can ask your district attorney if the Texas Open Meetings Act was violated.

A certain court case, nearly three decades old, is still cited by Texas attorneys general. The case was brought over the lack of clarity in the wording of meeting agendas, hence the acts of a local governmental body. On page 26 of the 2014 Open Meetings Act Handbook you will find text citing Cox Enterprises Inc. v. Board of Trustees (1986), in which the Texas Supreme Court held insufficient the notice of a school board’s executive session that listed only general topics such as “litigation” and “personnel”.