Case Information
*1 Gerald C. Mann
Hon. A. M. Pribble Opinion NO. O-2446 Be: Validity of school superintend- county Attorney Goldt hw laite , Texas ent’s ,contract where a board member
was-misled causing him not to attend meeting of board at which contract Dear Sir: was made.
In your of May 30, 1940, you submit to us the following facts:
“The president of the board of trustees of an in- dependent school district told one member of the board on being asked if a meeting of the school board would be held that night replied that he knew of no reason why there should be a meeting. However he had already notified the other members of the board and a called meeting of the board was held that night and the trus- tee mentioned above and another trustee were absent. The other four trustees met with the president board and the question of rehiring the superintendent of the school was raised, and two votes were cast for rehiring the superintendent and two against. The pres- ident then voted to rehire the superintendent. The trustee mentioned above would have voted not to rehire the superintendent .I1
You request our opinion as to whether is a legal quote from 34 Texas Jurisprudence, p. as fol-
lows:
In order the acts of a governmental or admin- istrative board may be valid it must act as a body. Consent or acquiescence of, or agreements by, dividual members acting separately and not as a body do not bind the board or the political subdivision and all persons are chargeable with represent, knowledge such the case.”
From Mechem on Public Offices and Officers, pp. 375- we quote: Where, however, a trust or agency is created law or is public its nature and requires the exercise *2 Hon. A. M. Pribble,
of deliberation, discretion or judgment, whether it be judicial or m-judicial in its character, the rule is otherwise, and while all of the trustees, agents or officers, except where the law makes a less number a quorum, must be present to deliberate or, what is the same thing must be duly notified and have an oppor- tunity to be present, yet, except where the law clearly requires the joint action of them all, is well set- tled a majority of them, where the number is such as to admit of a majority, if present, may act and their act will be deemed the act of the body....
I’....
‘;The act of the majority can only be upheld, how- ever, -when the conditions named exist. For if the minority took no part in the transaction, ignorant of what was done, gave no implied consent to the action and were neither consulted nor had any opportunity to exert their legitimate influence in determining the course to be pursued, the action of the majority will be unavailing. I’
We quote from the Amarillo Court of Civil Appeals City of Floydada vs. Gilliam, 111 S.W. (2) as follows:
,I . ..The statute does not provide how the expression shall.be made, but is well settled the govern- as well as boards of direc- ing authorities of cities, tors of corporations and other representative bodies, can express themselves and bind institution represent only by acting together in a meeting duly assembled.. .‘I
From King vs. Guerra, 1 S.W.(2) San Antonio Court of Civil Appeals, we take following:
“It is true, as a matter of course,‘that friendly expressions obtained from the mayor and two commissioners, in private conversations--whether made casually, upon impulses of the moment and without defi- nite knowledge or consideration true facts the proposed projects, or whether given deliberately and after mature consideration of all the ascertain- can have no bearing upon the case. Even able facts-- had they been so disposed, which they deny the case, those officials, acting singly, individually, and sep- arately, at different places and times and upon dlffer- could not bind themselves in their offi- ent occasions, cial capacity, nor the board of city commissioners as a *3 Ron. A. M. Pribble,
body, nor the government of the city, nor any of its departments...."
InPeople ;s. Bachelor, 22 N.Y. 128, the Supreme Court of New York said:
"It is'not only a plain dictate of reason, but a general rule of law, that no power or function trusted to a body consisting of a number of persons, can be legally exercised without notice to all members composing such body." cite also State vs. &ion Light, Heat & Power Co.,
182 N.W. 538, N. Dak.; P. & F.R.Ry.Co. vs. Com'rs., 16 Kan.302.
We think is plainly contemplated by Article 2781, Revised Civil Statutes that in employing teachers and superin- tendents the Board of *rustees must meet and act as a board, accordance with general rules. Residents of the district entitled to have acted upon at a meeting Board, at which all members were present or had been given no- tice and an opportunity to be there. We note that the presi- dent of the board did not advise the member unequivocably that there would be no meeting, but simply stated that "he knew of no reason why there should be a meeting." This statement would naturally give impression there-would be no meeting and we think your implies it was so understood the member and that it caused his absence. If such be estab- lished as true, is our opinion the contract cannot be enforced.
Our answer to your question therefore is a negative Very truly yours APPROVED JUN 11, 19443 &l!TORNEY GENERAL OF TEXAS
Ls/ Ge~rald. C. Mann ATTORNEY GEI$ERAL OF TEXAS
By /s/ Glenn R;-Lewis '~ APPROVED: CP~~~ON-CO~~TTEE Glenn R. Lewis, Assistant ._-. B!@, .CHwm.N _ _ BY;
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