How the state defines ‘walking quorum’ attempts to avoid TOMA rules

Q: How does the state define walking quorum? I think we’ve got one going with our county commissioners.

A: Here’s an excerpt from a transcript of the Office of the Attorney General’s official Texas Open Meetings Act training that elected and appointed public officials are required to take:
It is an offense to knowingly circumvent the Open Meetings Act by meeting in numbers less than a quorum for the purpose of secret deliberations. This provision penalizes participants in what is sometimes called a “walking quorum” where members of a governmental body gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of the body with the objective of avoiding an open meeting. A governmental body may be subject to both civil and criminal liability for conducting business by a “walking quorum.”
Your county commissioners and any other public officials who are having trouble understanding the walking-quorum prohibition in the Texas Open Meetings Act might not have taken the required training. Suggestion: Ask them if they have. You may be surprised at the answers you get.
Here is a link to the training:
https://www.texasattorneygeneral.gov/og/open-government-training

Q: The school board refused to release its preliminary budget when I requested a copy of it under the public information law. My requests for preliminary budgets have never been refused, so I persisted. The school board responded by requesting an attorney general opinion on the question. According to the resulting AG opinion, a prior Texas attorney general opinion citing Government Code 552.106(a) allows the school board to withhold the information. But it’s my understanding that “working papers” are public information and should be released. What thoughts can you share on this?

A: While the attorney general’s opinion writer seems to equate the two, I would say, in my non-lawyerly perception of things, that a preliminary budget is not an “audit working paper.” A preliminary budget is written before the final budget is approved. An audit working paper is written in the process of an audit of the school district’s budget and expenditures. Texas law considers audit working papers to be confidential.
On page 195 of the Texas Public Information Handbook, you will find this passage with a reference to working papers that matches your point of view:
“§ 552.022. Categories of Public Information; Examples (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure unless made confidential under this chapter or other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108; (2) the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a governmental body; (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body; (4) the name of each official and the final record of voting on all proceedings in a governmental body; (5) all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate; …”
You might continue your effort by finding a qualified requestor to ask for another AG opinion that includes a legal brief explaining your point of view in legalese, with excerpts from Texas law and case law citations. 
A general information page on the AG’s website says: “Courts have stated that attorney general opinions are highly persuasive and are entitled to great weight; however, the ultimate determination of a law’s applicability, meaning or constitutionality is left to the courts.” So, it might take a court of law to settle the matter. Before you contemplate going that route, I suggest you get in touch with a Texas Press hotline attorney.

Q: I cover school district board meetings for the newspaper. What they do is convene an open meeting at 4:30 p.m., then immediately go into closed session. In that closed session, they discuss items out of agenda order. They briefly reconvene in open session to take any necessary votes before returning to closed session. The “regular meeting” begins at 6 p.m. They start with agenda item 1, and go in order. When they reach the items discussed in closed session, no mention is made of the votes taken, so the public doesn’t know what happened on those items (which are usually touchy subjects like lawsuit settlements or contract terminations for employees). Isn’t the board required to go through the agenda in order, so the public is properly kept informed of the board’s business? There are quite a few people in the community who believe this should be the case.

A: The Texas Open Meetings Act requires that the public be notified — at least 72 hours in advance of a regular meeting — of each item to be deliberated by a governmental body in the meeting. There are AG opinions and information in the AG’s TOMA Handbook to the effect that the public notice need not distinguish between action items that are to be discussed in open session and items that are to be discussed in closed session. Agenda items should be described in enough detail to give the general public a clear idea of what each item is. 
As to the order in which items are laid out for discussion in a meeting, the TOMA handbook is silent. So to me, a non-lawyer, it’s more of a question of procedure. With a nod to Robert’s Rules or Order, you may readily discern how helpful it is for any deliberative body to be consistent in its procedures. If taking items seemingly at random is causing problems, adversely affected parties should exercise their civic duty and complain through official channels. Also, Op/Eds and letters to the editor may help nudge the governmental body toward the desired action.

Have a question for TPA Hotline? Contact Ed Sterling, member services director, at 512-477-6755 or by email to edsterling@texaspress.com