Q: Our school board just accepted the resignation of a trustee. Then the board went into executive session to discuss his replacement citing “personnel.” How can that be? The replacement is not an employee of the school district, so how could this person be considered personnel? If the exception allows for closed-session discussion of an appointment to what would otherwise be an elected position, that’s so wrong.
A: Let’s check the Attorney General Paxton’s 2016 Texas Open Meetings Handbook. Please find this text on page 49:
“Personnel Matters, (Government Code) Section 551.074, authorizes certain deliberations about officers and employees of the governmental body to be held in executive session: (a) This chapter does not require a governmental body to conduct an open meeting: (1) to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee; or (2) to hear a complaint or a charge against an officer or employee. (b) Subsection (a) does not apply if the officer or employee who is the subject of the deliberation or hearing requests a public hearing. This section permits executive session deliberations concerning an individual officer or employee.”
The school board relied on the exception to conduct the executive session but its use of the simple term “personnel” as the reason for going into executive session is inadequate for the purpose of public notice. Attorneys General Mattox, Morales, Cornyn, Abbott and now, Paxton, have cited various court cases in their opinions to stress that generic terms such as “personnel,” “real estate” and “consultation with attorney” fall short of informing the public of the subject of an executive session or an action item on the agenda. Language to that effect can be found in AGs’ Texas Open Meetings handbooks going back more than 25 years.
Q: A representative of a group of local citizens brought in an advertisement for publication in my newspaper. The ad is to drum up support for an issue that is not on any ballot, and is not in support of any candidate. The group doesn’t want a disclaimer on the ad, and that gives me heartburn. If I run the ad as requested — without a disclaimer — my staff is going to be deluged with calls from naturally curious folks who will ask — or demand — to know who paid for the ad. What do you think?
A: The editor of a newspaper is within his or her prerogative to require a disclaimer identifying the group or individual who is paying for the ad. Consistency is key here. It’s better to have a no-exceptions policy on the inclusion of a disclaimer applying to any special interest group that wants to run an ad making an issue of something. That way you can’t be accused of playing favorites.
Now, in the likelihood that it becomes relevant in the coming months, please bookmark —https://www.ethics.state.tx.us/guides/Gpolad.htm. It’s the Texas Ethics Commission publication, “Political Advertising: What You Need to Know.” Here’s an excerpt:
To figure out if a communication is political advertising, you must look at what it says and where it appears. If a communication fits in one of the categories listed in Part A (below) and if it fits in one of the categories listed in Part B (below), it is political advertising.
Part A. What Does It Say?
1. Political advertising includes communications supporting or opposing a candidate for nomination or election to either a public office or an office of a political party (including county and precinct chairs).
2. Political advertising includes communications supporting or opposing an officeholder, a political party, or a measure (a ballot proposition).
Part B. Where Does It Appear?
1. Political advertising includes communications that appear in pamphlets, circulars, fliers, billboards or other signs, bumper stickers, or similar forms of written communication.
2. Political advertising includes communications that are published in newspapers, magazines, or other periodicals in return for consideration.
3. Political advertising includes communications that are broadcast by radio or television in return for consideration.
4. Political advertising includes communications that appear on an Internet website.
Q: We are considering selling photographs through one of the many third-party platforms that offer those services. Are you aware of any issues that restrict the selling of the images we take? I guess our biggest concern is posting images to the web without people’s permission. Is there a precedent that has been set in this area? Do they have no expectation of privacy? Are we facing liability issues? Could we face royalty requests/model release issues? Are there additional considerations if minor(s) are in the pictures? I know newspapers have been selling their images for years, but the Internet poses new risks/threats, and we just want to make sure we have all our ducks in a row before proceeding.
A: I agree with you that all those things you mentioned are potential triggers for lawsuits. A private citizen who is not a public figure, and who is participating in a public event like a parade or a sporting event, can end up in a group shot you have published without having consented to being photographed, etc.
This has been a big subject for a long time in the newspaper business. Your colleagues do their best to avoid publishing an image of any adult who has told them not to take their picture, and of any child, unless parental consent is granted.
I suggest you join the Texas Press Association Publishers List server and kick this around. You may learn about intellectual property and common law privacy issues that have arisen over selling images through a third-party provider, and outcomes.
Q: We have a nonprofit that’s raffling a gun. They’d like ads. I’ve been over the state statutes several times. We know we can’t advertise a raffle, but they’re questioning this. Does the fact that they’re raffling a gun make any difference to no advertising in the newspaper, whether the ad is donated or not, and regardless of what the “prize” is?
A: The prohibition on raffle advertising in a newspaper remains in effect. I am not an attorney and can’t dispense legal advice, but these official sources can help you and possibly settle minds in the organization that is asking you to run a raffle ad.
1. The Charitable Raffle Enabling Act’s section about advertising, Occupations Code 2002.054 is at this link:
2. The Texas Attorney General’s publication about charitable raffles is at this link, and please make sure to read the paragraph titled “Restrictions”: