Case Information
*1 QMfice of the Igttornep QBeneral &ate of QCexae
DAN MORALES April 13,1998 ATTORNEY CENERAL
The Honorable Steven D. Wolens Opinion No. DM-473
Chair, Committee on State Affairs Texas House of Representatives Re: Validity of Dallas City Council rule that P.O. Box 2910 requires request by five council members or majority Austin, Texas 78768-2910 of a city council committee to place items on agenda
for council meeting (RQ-952) Dear Representative Wolens:
You ask whether the following city council rule of procedure for the City of Dallas violates the Texas Gpen Meetings Act, Government Code chapter 55 1:
Presentations by Members of Council The mayor shall include on an agenda any item requested by five city council members or by a majority of a city council committee to be brought before the city council. The item must be placed on the tirst voting agenda scheduled at least 30 calendar days after receipt of request, unless the request is withdrawn by any of the five city council members or by a majority of the city council committee, whichever applies.’
Five city council members constitute one-third of the till city council membership.2
You further state:
As applied by the Dallas City Council, this rule has been utilized to prohibit placement of an item on the council’s agenda unless request for placement has been made by five city council members, or by a majority of a city council committee. This rule has been utilized to severely circumscribe and restrict what matters of public interest come before the council for consideration.
‘City of Dallas, Texas, City Council Rules of Procedure, Rule 6.2, as adopted 8/l l/93 and amended by Resolution Nos. 94-0297,94-2571,94-3328,94-3675,95-1545,95-2450,95-2451,95-2760, 954204, and 96-0713.
‘Letter from Sam Lindsay, City Attorney, City of Dallas, to The Honorable Dan Moraks, Office of Texas Attorney Ciencral (Oct. 1, 1997). See Texas State Directory 475 (38th cd. 1995); Ciq of Dallas, Mayor and City Council, (Sept. 6, 1997)<hnp:Nwebster.ci.dallas.tx.usmhnVmay (listing mayor and city council members).
The rule you cite is not the only provision for raising a matter of public interest at a city council meeting. The Dallas city chatter provides that
Special meetings shall be called by the city secretary upon the written request of the mayor, the city manager or three members of the council. Any such notice shall state the subject to be considered at the special meeting and may provide for the taking up of any other matters presented at such meeting.3
The Open Meetings Act (the “‘act”) includes the following provision:
(a) If, at a meeting of a governmental body, a member of the public or of the governmental body inquires about a subject for which notice has not been given as tequired by this subchapter, the notice provisions of this subchapter do not apply to:
(1) a statement of specific factual information given in response to the inquiry; or
(2) a recitation of existing policy in response to the inquiry. (b) Any deliberation of or decision about the subject of the inquiry shall be limited to a proposal to place the subject on the agenda for a subsequent meeting.’
While this provision does not mandate that the item be placed on the agenda of a &me meeting, it does allow an individual member of the governmental body to bring up a subject of public interest and to request consideration of it in the future.
We turn to your question as to the validity under the act of the rule requiring the agreement of five council members to place an item on the agenda of a meeting. The City of Dallas, like other home-rule cities: has broad discretionary powers to legislate on its own behalf, provided that no charter provision or ordinance “shah contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.‘* An ordinance of a home-rule city that attempts to regulate a subject matter preempted by a state statute is unenforceable to the
‘Dallas, Tex., CIhartq ch. III, $7 (1993).
‘Clov’t Code 0 551.042.
‘Lkdkw Mmhant ‘s & cOacess&naire ‘s Ass ‘II v. City of Dallas, 852 S.W.Zd 489.490-91 (Tex. 1993). extent it wnflicts with the state statutes Thus, the Dallas City Council may adopt rules of procedure for its meetings as long as they are not inwnsistent with the constitution, legislation, or city charter provisions.*
The Texas Open Meetings Act does not cover the details of agenda preparation. “Although the drawing up of an agenda is a matter related to a noticed public meeting, it essentially is an inkgal part of the actual me&anics and procedures for conducting that meeting and, therefore, aptly relegated to local practice and procedure as prescribed by city charters and ordinances.‘* Any procedures for agenda preparation adopted by the city council must nonetheless be consistent with the act’s requirements that each meeting of a govermnental body be open to the public, subject to certain exceptions, and that written noticeto of the “‘date, hour, place, and subject of each meeting” be posted prior to the meeting.” Thus, agenda preparation procedures may not involve deliberations among a quorum of members of a governmental body except in a public meeting for which notice has been posted in accordance with the act. As noted in Attorney General Opinion DM-95 deliberations among a quorum of members of a govermnental body may be subject to the act even if a quorum never gathers in one place at one time, but wmmunicates by telephone or by circulating a memorandum.‘* Acconlingly, rules on prep sring an agenda may not involve delibemtions among a quorum of members of a governmental body, unless they are conducted in wmpliance with the act.13 Moreover, if a member or group of members of a governmental body knowingly conspires to circumvent the act by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of the act, the person or persons commit a criminal offense. We caution members of
‘Dallas Merchant ‘s & ConcessioMire ‘s Ass ‘II, 852 S.W.2d at 490-91; see C&v of Sweehvaler v. Germ, 380 S.W.2d 550,552 (Tex. 1964) (iflegislahue choosu to preempt subject matter usually encompassed by broad powers of h-rule city, it must do so with unmistakable clarity).
‘Seegenerally 56 Ahi. JUR. [20] Municipal Gwporatiom 5 156 (1971).
‘Hough v. .%mbridge, 278 S&d 288,291 (Fla Disk CX App. 1973); see dw La. Att’y Gut. Ops. Nos. 94-152 (1994) (WL 379277 (1994)), 90-541(1990) (WL 544987 1990)) (setting agenda is matter of internal procedure to be -cd by go” elmnental body).
The written notice pcstod prior to the meeting is often desaibed as the “age&” because of the practice of posting the agenda as the notice or as an appendix to the notice. See Ciry of San Antonio v. Fourth Court ofAppeals, 820 S.W.Zd 762,761 (Tex. 1991); Attorney General Opinion DM-228 (1993) at 2 n.2.
“G&t cc-de pp 5s1.002, all.
%x Attorney General Opiion DM-95 (1992). Attorney General Opinion Mw-32 upheld as not violating the act an agenda preparation procedure under which the members of Aii Ckmlrol Board n&tied the wxutive director to place a particular item on UK. ageada of a meeting. Attorney General Opinion MW-32 (1979). Prior to its abolition in 1991, see Act of July 30, 1991,72d Leg., 1st C.S., ch. 3, 0 1, 1991 Tex. Gen. Laws 4,46, the Air control Board consisted of nine members. Act ofMay 24,1967,6Otb kg., R.S., ch. 727.5 3.1967 Tex. Gen. Laws 1941.1942.
“The Dallas City Council is a gov cmmental body subject to tbe act. See Gov’t Code 0 551.001(3)(C). Whetbamyofthe commiti that may place items on the agenda are governmen talbodicsmustbccktemincdma casaby-case basis by nrsmining tbei authority in light of the deftitions in tbe act.
governmental bodies to be aware of this provision when proposing items for inclusion on the agenda of a meeting.
You do not ask us to evahtate any other statute in connection with this rule of procedure nor have we found any provision that governs the preparation of the agenda for council meetings of a home-rule city. Attorney General Opinions JhI-63 and DM-228, which determine that each member of a county wmmiss’ toners court may place items on the agenda, relied on statutes applicable to wwties, not cities. Attorney General Opinions DM-228 (1993), JM-63 (1983).
A case styled Hansbro v. Neiderhofer, 83 S.W.2d 685 (Tex. Civ. App.-Beaumont 1935, no writ), which Attorney General Gpinion DM-228 relied upon, can also be distinguished The wurt held that a county judge, as presiding officer of the commissioners court, ‘has no discretion in receiving motions offered in the regular discharge of the court’s business, and submitting said motions to a vote of the members of the court for their decision.“” Thus, the county judge was subject to a writ of mandamus where he refused to rewgnixe a motion duly proposed and seconded at a commissioners court meeting. Hansbro indicates that a single member of the commissioners court may raise a subject before the court by proposing a motion. That right can only be implemented under present law if the individual member may place subjects on the agenda posted as notice of a commissioners court meeting. Thus, the result in Hunsbro is consistent with our wnclusions in Attorney General Opinions JM-63 and DM-228, that individual members of the commissioners court may place items on the agenda. However, the rule of procedure stated in Hansbro does not wntrol the city council of a home-rule city. If this case is based on statutes applicable only to the commissioners court, it does not apply to the governing body of a city. If it is based on a common-law rule of meeting procedure, a home-rule city may change the rule by exercise of its legislative power. IJ Accordingly, Hansbro does not prevent the city council of a home-rule city t?om adopting reasonable mles of procedure for its meetings.
You state that the Dallas rule “has been utilii to severely circumscribe and restrict what mat&s of public interest wme before the wuncil for consideration,” but you do not identify any city charter provision or wnstitutional provision that may limit the city council’s authority to adopt this rule. In Attorney General Opinion H-188, this office determined that the Open Meetings Act does not authorixe the public to choose the items to be discussed or to discuss subjects on the agenda The opinion stated as follows:
So long as the requirements of. . . [the Open Meetings Act] are met and the right of citizens to apply to their government for redress of grievance by “Hansbm v. Neiderhofw, 83 S.W.Zd 685 (Tex. Civ. App.-Beaumont 1935, no writ). “See Attomey t3ene-d Opinion JM-1087 (1989) (h ome-rule city may ovcrcomc ccmmon-law do&k of inwmpatiiiIity for city offims by chatter provision).
The Honorable Steven D. Wolens - Page 5 @M-473)
“petition, addms or remonstranw’*16 is not abridged. . ., it is our opinion that a Commissioners Court need not provide a public forum for every citizen wishing to express an opinion on a matter.
Attorney General Opinion H-188 (1973) (footnote added).” We find no basis for concluding that the city council rule in question is invalid for being inwnsistent with the wnstitution, general laws, or city charter provisions.
We cannot determine in the opinion process whether the rule you inquire about is a reasonable exercise of the city council’s power to establish its rules of procedure. In addressing the reasonableness of this rule, however, we believe it is appropriate to consider it together with other procedures for placing items on the agenda of a meeting. The reasonableness of the city’s rules of procedure is in the first instance a matter for the discretion of the city council, subject to judicial review for abuse of discretion.
‘qex. Comt. art. I.5 27.
“The legislature has stated in section 22.043 of the Local Gov-ent Code, that “~]etitions and remonstrancea may be pnsented to the governing body of the municipality and must be. in witing.” While section 22.043 expressly &ies to type A gcneml-law cities, other Local Gov anmeat Code provisions make it applicable to tpe B and type C general-law cities. l%i.s provision illwhwes a method other than inclu.sion on the agenda of a city council meeting whereby matters of public interest may be presented to members of the city council.
SUMMARY A rule of Dallas City Council on preparing the agenda of a city council meeting requires five members (onethird) of the city council or a majority of a city council wmmittee to request the mayor to include an item on the agenda of a meeting. The City of Dallas, as a home-rule city, is author&d to adopt reasonable rules of procedure for its meetings as long as they are not inconsistent with the wnstitution, statutes, or city charter provisions. We see no basis for tinding the rule invalid under the Open Meetings Act or inwnsistent with the wnstitution, general laws, or city charter provisions. Whether a particular rule is reasonable cannot be determined in the opinion process. It is a matter for the discretion of the city council, subject to judicial review for abuse of discretion.
DAN MORALES Attorney General of Texas JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opiion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2677