Public attendance restrictions on open meetings have not been lifted

Q: Recently our governor and attorney general seem to be pushing to re-open life as it was before the coronavirus pandemic. I have a city council meeting on “Zoom” tonight, which isn’t a problem, except that the agenda is too danged long! Have we gotten any guidance on how the governor’s more recent COVID-19 related executive orders affect open meetings?

A: Kelley Shannon, Freedom of Information Foundation of Texas, checked on this with the governor’s office in May and was told the Texas Open Meetings Act waiver remains in place, to avoid crowds gathering to watch meetings. 
“And with social distancing regulations supposedly still in place,” Shannon said, “I imagine governments will keep having mainly video meetings for a while. Of course, they can always choose to meet in person, and I don’t see how there would be any repercussions from the state.”
In response to what Shannon learned from the governor’s office, Texas Press Association Executive Vice President Donnis Baggett said, “It seems clear that we’ll need legislation clarifying the notice provisions for meetings during a crisis like this, plus clarification on media attendance of in-person meetings when having the reporter in attendance would push the limit beyond 10 people.”
TPA members are invited to join the association’s Legislative Advisory Committee. The LAC, chaired by Bill Patterson, publisher of the Denton Record-Chronicle, will be working on this issue and many other issues pertaining to the newspaper business in the coming months and during the 87th Regular Session of the Texas Legislature, scheduled to convene on Jan. 12, 2021.

Q: A majority of the school board expressed a need to make a leadership change, prompting the superintendent to resign. I know open records and education get a little dicey, but is a school superintendent’s evaluation public record? What about emails between the superintendent and any/all board members? 

A: Our state’s current attorney general, Ken Paxton, in his 2020 Public Information Act Handbook, cites a 1996 open records decision by Dan Morales that says those evaluations are confidential:
However, emails concerning official business are not confidential, even if any communications are on the school board members’ personal cell phones. See page 17 of the AG’s 2020 Texas Public Information Act Handbook, which states:
Adopting the attorney general’s long-standing interpretation, the definition of “public information” now takes into account the use of electronic devices and cellular phones by public employees and officials in the transaction of official business. The Act does not distinguish between personal or employer-issued devices, but rather focuses on the nature of the communication or document. If the information was created, transmitted, received, or maintained in connection with the transaction of “official business,” meaning, “any matter over which a governmental body has any authority, administrative duties, or advisory duties,” the information constitutes public information subject to disclosure under the Act.

Q: Does the font size for legals need to be the same as the other text in my newspaper? Can it be smaller? If so, what size?

A: Public notices and legals that are printed in your newspaper are important and are placed there to be noticed. The smaller the type size you use for them, the harder it is to read them. What happens if you choose a type size for legals that is smaller than the type size that is your normal style for classified advertising? Imagine a reader who has to hunt down a magnifying glass to be able to read a notice.
It may help also to consider that state law, Government Code Sec. 2051.045, LEGAL RATE CHARGED FOR PUBLICATION, says: “The legal rate for publication of a notice in a newspaper in the newspaper’s lowest published rate for classified advertising.” For that reason, many Texas newspaper publishers run public notices and legals in the same font and type size as their classifieds. 
One more thing: Texas laws, as deeply rooted as some of them are, may grow, shrink, collapse, sprout, come and go, depending on the sensibilities of a Legislature that meets for 140 days every two years. If you check Texas statutes for a variety of requirements for public notices, you’ll see the effective dates of laws over a wide range of years, and that most requirements don’t include a specific point size.