Open Meetings Act requires citing of exception allowing closed session

Q: Our city clerk puts a boilerplate notice at the bottom of city council meeting agendas, notifying the public that the council may go into executive session under any of a number of exceptions allowing it under the Texas Open Meetings Act. The problem is, this council has a habit of going into executive session without stating exactly which TOMA exception they are using. I don’t think a reporter or anyone else should have to sit there for hours, wondering what council members are talking behind closed doors. Can you send something that fits a scenario like that?

A: Let’s look at a couple of readily available resources that get at your questions.

First, here’s an excerpt of the transcript of the Texas Attorney General’s Open Meetings Act Training video:

“To conduct a closed meeting that is permitted by law, the governmental body must: (1) have a quorum; (2) properly convene in an open meeting; (3) have announcement that a closed meeting will be held; and (4) identify in the open meeting the sections of the law that allows the closed meeting.

“Closed meetings must be specifically authorized by a provision of the Act or another statute. When a governmental body wishes to go into a closed meeting, the governmental body must first assemble in the meeting room and convene the meeting as an open meeting for which proper notice has been posted, even if the governmental body plans to proceed immediately to a closed meeting. After convening the meeting, the presiding officer must announce that a closed meeting will be held and must identify the statute that authorizes the closed meeting.”

Second, please see page 50 of 117 in the Texas Attorney General’s 2016 Texas Open Meetings Handbook and find this set of contiguous paragraphs:

“If a closed meeting is allowed under this chapter, a governmental body may not conduct the closed meeting unless a quorum of the governmental body first convenes in an open meeting for which notice has been given as provided by this chapter and during which the presiding officer publicly:

(1) announces that a closed meeting will be held, and

(2) identifies the section or sections of this chapter under which the closed meeting is held.

“Thus, a quorum of the governmental body must be assembled in the meeting room, the meeting must be convened as an open meeting pursuant to proper notice, and the presiding officer must announce that a closed session will be held and must identify the sections of the Act authorizing the closed session. There are several purposes for requiring the presiding officer to identify the section or sections that authorize the closed session: to cause the governmental body to assess the applicability of the exceptions before deciding to close the meeting; to fix the governmental body’s legal position as relying upon the exceptions specified; and to inform those present of the exceptions, thereby giving them an opportunity to object intelligently.”

Q: Our county clerk sent me an indigent person’s citation by publication for divorce. She insisted the newspaper is required to run it, free of charge if need be, but she couldn’t tell me the law that says so.

A: A public notice or legal notice is something that usually requires payment in advance. The petitioner or the petitioner’s attorney pays for the notice, even if it comes to you through the county clerk. Maybe there is a local legal aid office that can help the indigent person or the county work this out. Your newspaper is privately owned and not an appendage of the county or any other governmental body. In America, a newspaper like yours can’t be forced to publish anything against the publisher or editor’s will. Check with your supervisor. Your company may have a policy or some other form of guidance that addresses questions in regards to publication of an item free of charge in a situation like this.

Q: The president of our school board moved out of the district. Is the correct procedure for her to resign or can she continue to serve when she has no stake or standing?

A: To qualify for public office, a candidate or sitting official must reside in the district they represent or wish to represent. Example: Your Precinct 3 county commissioner resides in Precinct 3. See Texas Constitution Article XVI, Section 14, titled, CIVIL OFFICERS; RESIDENCE; LOCATION OF OFFICES. It states: “All civil officers shall reside within the State; and all district or county officers within their districts or counties, and shall keep their offices at such places as may be required by law; and failure to comply with this condition shall vacate the office so held.”

Q: According to the Tax Code and the Texas Comptroller’s Truth in Taxation guide, when a taxing unit wants to adopt a tax rate that is equal to or lower than the current effective tax rate, the taxing unit need simply adopt the tax rate at a regular meeting. (The maintenance & operation and interest & sinking fund rates must be adopted separately.) As for the public notice in that case, it is not a paid public notice, but a normal notice of the date, time and place of the meeting and the agenda items, posted 72 hours in advance of the meeting in a place convenient to the public. But what if our appraisal district or junior college district wants my newspaper to publish a paid, display-type notice of hearing on adoption of a tax rate that is equal to or lower than the effective tax rate?

A: The appraisal district and/or the junior college district seem to understand that the community is going to feel un-notified and underserved if the notice doesn’t appear in the newspaper. Those governmental bodies are free to pay for the notice to be published in your newspaper, that is, in a familiar form and fashion people easily find and recognize.