Case Information
*1 Honorable David Wade Opinion No. Ii- Commlssloner
Texas Department of Mental Health Re: Construction and Mental Retardation Article P. 0. Box 12668, Capitol Station Vernon’s Civil Austin, Texas Statutes (the
“Open Neet lnga Dear Dr. Wade: Act“).
Your letter requesting an opinion of this office states:
“In order for the Texas Board of Uental Health and Mental Retardation to more effl- clently manage its affairs, It desires to dtvlde Its membership Into various committees. Those matter8 to be presented to the Texae Board of Mental Health and Mental Retardation would first be assigned to the appropriate committee. The various committees would at their discretion meet with members of the Texas Board of Mental Health and Mental Retardation staff to discuss and rtudy the matter before It and.would recommend a course of action to the Texas Board of Mental Health and Mental Retardation at Its open public meeting. Any member of the Texas Board of Mental Health and Mental Retardation could attend these committee meetings and dlecuss the matters under consideration but only co&nlttee members would be allowed to vote on what recommendation the committee was to make to the Texas Board of Mental Health and Mental Retardation.
“These committee meetings would not be open to the public and no notice of euch meetlnge would be posted.
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Dr. David Wade, page 2, "Your opinion la reepectfully requested with respect to whether or not the procedure yAo;t;l?ed above violates Article . . . .
Appropriate portions of Article 62 Vernon’s Texas Civil Statutes (the “Open Meetings Act" read a8 follows:
“Section 1. (a) Except as otherwlae provided In thle Act, every regular, special, or called meeting or eeaslon of every govern- mental body ehall be open to the public. “(b) A ‘governmental body, ’ within the meaning of this Act, Is any board, commlsslon, department, or agency w,lthln the executive department of the etate, which Is under the direction of three or more-elected or appolnt- cd members. . .’
“Sec. 2.
II . . . .
“(d) The provisions of this Act shall not apply to periodic conferencee held among staff membere the governmental body. Such staff meetings will be only for the purpose of Internal admlnlatratlon and no matters public business or agency pollclee fihat affect public business will be acted upon.
n . * . .
“Sec. 3A. (a) Written notice of the date, place, and subject of each meeting held by a governukntal body shall be given before the meeting as described bg this Section.” The provlslone of Article 6252-17, V.T.C.S. are mandatory and are to be liberally construed to effect Its purpose. Toyah Ind. Sch. Met. 0. Pecoe - Ihretow Ind. Sch. Dizt .,
66 s W 2d 371 (Tex.Clv.App. . The Coui33E that caee recited the leglelatlveJp~~p~~e for the enactment *3 Dr. David Wade, page 3,
of the statute to be one”of aeIsurlng that the public has the opportunity to be Informed concerning the transactions public bualness”, In determining whether a particular meeting of the School Board was to be declared voidable, the Court asked Itself:
“IO fihe above .Btate legl8latlVe7 purpose effected 6y an Interpretation which declares that action taken at an Illegal meeting cannot be questioned?” (466 S.w.tiat 380) The Texas Board of Mental Health and Mental Retardation le a “governmental body” within the meaning of the statute. Texas Liquor Control &. v, Continental Dlitllllnn Salee
199 S W 2 1009 1015 (Te Cl A I ) ii$‘meetl& ofdthe f;ll Board “fir ~t;eP~;rpoaeJo~d:rf~aelng and etudylng a matter and deciding upon a course of action Is required to be open to the public unless one of the etatutory exceptions applies, _
One of the exceptions provided by the Act Is: “(d) The provlolone of this Act shall not apply to periodic conferences held among staff members of the governmental body. Such staff meetings will be on1 for the purpose of Internal admlnlstrat on and no --f matters public buslneee or agencycles that affect public buslnees will be acted upon.
Tnls exception would be unnecessary unless the Act applies to meetings within the body other than formal board meetings. .
Your letter Indicates an expectation that Board Members composing a committee created by the authority of the full Board would themselves periodically meet with the agency staff “to dlecuse and study the matter before It and. , , recommend a couree of action to the Texas! Board of Mental Health and Xental Retardation at Its open public meeting".
Paraphrasing the qu%etlon posed In the Toyah case, supra, we ask:
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Dr. David Wade, page 0,
“Is the leglrlatlve purpose effected by an Interpretation which declares that Board members acting aa an official committee of the Board may make decisions at private meetings clored to the public, that the full Board might lawfully accomplish Only at a meeting open to the public?” A committee, assuming that Its members did not compose a quorum of the full Board, would have no power to bind the Board on matters before It. Nevertheless a real danger exists that the full Board might become merely the ‘rubber etamp” of one or more of Its committees and thereby deprive the public of access to the effective decision-making process. Cf. Acord v. Booth, 35 Utah 279, 93 Pac. 734(1X)8).
A holding that a committee, which maket recommendations only, Is governed by the Open Meetings Act la not without The duty of the State Textbook Committee, precedent.
prescribed by statute, la to recommend to the State Commlealoner of Fducatlon a complete list of textbooks which It approves Books not recommended by It cannot be adopted for adoption. by the State Board of Education. In Attorney General’s Opinion M-136(1967) It was held that the exclusion of books from echoole Is an Important exercise of a governmental undertaken by an agency of the government, whatever function, Its name, within the spirit and Intent of the Act and that, therefore, the Act applied.
In Attorney General’s Opinion M-220(1968), the term “meeting”, as used In the Open Meetings Act; was deflned as “one In which thr cembere of the governmental body transact official bus-with which such agency 1~s charged lhe word “transact” was not defined. However, to perform”. It connotes an Interchange of Ideas or actions and IE broader A “transaction” may Involve than the word “contract”. See Eozled
negotiations *or dealings only partly concluded. ;;,;~;$$n, 58 N.W.2d .313 (Mlnn., 1953);
ommleelon v. Talley Induet;: S k , 106 N W Clr .l*); Kn pfl
Webster’s ‘Zhtzd N~wv~nt~r~atlonal~Mctlona
Black’s Law Mctlonary, 4th Ed ., P. ;
335.
Dr. David Wade, page 5,
Whatever are the llmltatlons placed on the aCtlVltleS of Board Membere meeting in private, It 18 clear that Staff members of the governmental body can meet and Confer pmely -Tar purpose8 of Internal admlnlstratlon and that no + ma ter affecting public bualneac may be acted upon at Such meetings. Since Staff members themaelve~e no power to act for the Board In the formal sense, the LeglSlatUre muet have had In mind actions OS a leaa final nature when It prohibited staff members from privately meeting to act on public business. The obvious purpose was to avoid pro forma public approval by the agency matters already privately determined by Its etaff, and to Insure that policy decisions and deliberations would not be made In bureaucratic laolatlon, but exposed to the view of the lntereeted public. A Staff meeting called for the purpoee of making recommendations to the bard for action In matters before the Board would seem to be within the prohibition.
It would be strange If the Legislature Intended that staff members could act otherwlee at private staff meetings so long as one or more members of the Board, acting 85 a committee, were present, and It la the opinion of this I office that the Legislature had no @uch intention. It
follows that a committee of Board members mey not meet privately and without complying with the provlslona Article 6252-17 with staff membere for the purpose of formulating recommendations to be made to the full Board concerning the dlepoeltlon of matters before the Board. Therefore, our answer to the question posed by your letter as It applies to this particular eltuatlon, Is In the negative.
This opinion must be.construed as limited to the It Is our understanding that the Poard question you asked. Is concerned primarily with formulating basic and general pollclee and not with particular, Individual casee or case histories. Art. 5547-202, Sec. 2.11(a), V.T.C.S. It Is not our Intent to hold that Information concerning Identified lndlvlduala should be made public, In violation of Sec. 2.23(c) of Art. 5547-202, V.T.C.S.
-!O- *6 . Dr. rbvld Wade, page 6,
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-SUMFlARY- Official commltteec compoced of members of governmental bodice regulated by Article 6252-17, Vernon’8 Texas Civil Statutea, meeting to formulate recommendations for the disposition of matters pendlng before the parent body, must comply with the “notice” and “open meeting” provlalona Article
-Very truly youre, Attorney General of Texas APPROVED:
OEN M BARRON
krst ieelztant
T-v h3Yzs++&
DAVID M. KENDALL, Chairman
Opinion Committee
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