Open Government Training, TAGD Leadership Training, September 2014: Bill Dugat

Texas Alliance of Groundwater Districts
Leadership Training
Open Government Training
Bill Dugat
512-472-8021
bdugat@bickerstaff.com
3711 S. MoPac Expwy.
Bldg. 1, Suite 300
Austin, TX 78746
www.bickerstaff.com
© 2014 BICKERSTAFF HEATH DELGADO ACOSTA LLP
Lubbock, TX
September 16-17, 2014

Open Meeting Training: Required by Law
 “TOMA” = Texas Open Meetings Act (Ch. 551, TEX. GOV’T CODE)
 “Stakes are high” -- CIVIL AND CRIMINAL suits can be filed against
TOMA violator
 IT’S THE LAW:
 each elected/appointed member of governmental body shall complete 1-hour of
approved training within 90-days of oath or otherwise assuming responsibilities of
office; and
 course completion certificate must be filed with governmental body for public
inspection
TEX. GOV’T CODE §§551.005, 551.141-551.146

Texas Attorney General’s (TXOAG)
Open Meetings Handbook
• TXOAG publishes the Open Meetings Handbook
• IT’S FREE -- Download from TXOAG website
• VALUABLE RESOURCE TOOL -- OBTAIN AND
READ THIS HANDBOOK

TOMA Statutory Analysis:
History and Policy Goals
 GENERAL RULES:
 Every meeting is open to the public.
 Actions taken in violation of TOMA are voidable.

Any interested person (including the media) can file a civil
suit to void actions taken in violation of TOMA.
 Criminal prosecution may result from TOMA violations.
TEX. GOV’T CODE §§551.141–551.144

Key Definitions
• “Meeting” means deliberation between a quorum of a body subject to
TOMA during which public business is discussed or considered.
• “Deliberation” means a verbal exchange (including oral or written
communication) during a meeting between a quorum of a governmental
body, or between that quorum and another person, concerning the public
business of the governmental entity.
• “Governmental Body” includes a GCD.
• “Quorum” means a majority of the governmental body, unless
differently defined by other law.
TEX. GOV’T CODE §551.001

“Walking Quorum” Prohibited
 Under TOMA §551.143, it is a crime to knowingly conspire to circumvent
the requirements of TOMA by meeting in numbers less than a quorum for
the purpose of secret deliberation.
 “Walking Quorum” = prohibited, sequential conferencing in numbers less
than a quorum.
 The “physical presence of a quorum in a single place at the same time is not
always necessary for a violation...to occur.” Op. Tex. Att’y Gen. No. DM-
095 (1992) at 4.
 Members of a governmental body may “violate the Open Meetings Act even
though they are not physically present in one place, for example by
discussing public business of the governmental body over the telephone.”
Tex. Att’y Gen. No. LO-055 (1995) at 3-4.
TEX. GOV’T CODE §551.143

2011 TXOAG Opinion Regarding “Walking Quorum”
• Op. Tex. Att’y Gen. No. GA-0896 (2011) at 1-2, citing
Op. Tex. Att’y Gen. No. DM-095 (1992) and relevant case
law
• Facts = Email disseminated among members of governing
body in numbers less than a quorum
TEX. GOV’T CODE §§551.001, 551.143-.144

2011 TXOAG Opinion Regarding “Walking Quorum”
 TXOAG concluded that:
 Although TOMA applies to a “verbal exchange” of a “quorum” of the members of
the body, the: (1) words need not be spoken in person; and (2) members need not be
in the physical presence of each other to constitute a quorum.
 Electronic communication (including email) may constitute “deliberation” and a
“meeting” under TOMA -- thereby requiring TOMA compliance.
 A determination of whether the members of the body violated TOMA involved an
analysis of the “respective states of mind” of each member involved in an alleged
violation -- this because the TOMA “walking quorum” statute (§551.143) requires
the violator to “knowingly” commit the violation.
 Risk exists for a “walking quorum” in view of the widespread use of electronic
communication -- including email, texting, and social media.
TEX. GOV’T CODE §§551.001, 551.143-.144

Meeting Requirements – Public Participation
 “A meeting that is ‘open to the public’ under the Act is one that the public is
entitled to attend. The Act does not give the public a right to speak at such
meetings.” Op. Tex. Att’y Gen. No. JC-0169 (2000) at 1.
 As a courtesy, many local governments provide a “public comment” time for
attendees to address the body.
 Reasonable rules may be imposed regarding “public comment” and “public
hearings” -- including fair limitations on the number of speakers and presentation
length.
 Access for disabled persons is required under the federal Americans with
Disabilities Act.
 Interpreters for the hearing impaired may be provided upon request, although not
required by TOMA.
TEX. GOV’T CODE §§551.001-.002
42 U.S.C. §§ 12131-12165

Meeting Requirements – Meeting Types
 TOMA recognizes three types of meetings: (1) regular; (2) special (or
called); and (3) emergency.
 Meeting cannot begin until quorum is present.
 TOMAapplies to committee meetings when committee: (1) contains one
or more members of body; (2) meets to discuss public business; and (3)
has ability to supervise/control business of body.
 “Workshop Meetings” (no formal action taken) not defined by TOMA --
but TOMA still applies.
 TOMAdoes not apply to quorum gathering at social function,
convention, ceremonial event, or press conference -- so long as formal
action not taken and discussion of public business only incidental.
TEX. GOV’T CODE §§551.001-.002, 551.141-.143

Meeting Requirements -- Agenda Posting (Time)
 TOMArequires date, hour, place, and subject of any meeting (Agenda)
to be posted AT LEAST 72 HOURS IN ADVANCE
 EXCEPTION: Emergency meeting notice = (1) must define the
emergency -- imminent threat to public health/safety or reasonably
unforeseeable situation, must exist and be clearly identified in notice;
(2) must be sent to the media by telephone, facsimile, or e-mail; and
(3) public notice must be posted AT LEAST 2 HOURS IN
ADVANCE
 EXCEPTION: “Recessed Meeting” = No posting required if meeting
recessed until following business day -- subsequent recess requires
new posting
TEX. GOV’T CODE §§551.041-.0411, 551.045-.047

Meeting Requirements -- Agenda Posting (Location)
 GENERAL RULE = Notice must be posted in place readily accessible to
public -- capable of being read at all times of day/night
 COMMON PRACTICE = Posting notice backwards on inside of exterior
door of authorized building
TEX. GOV’T CODE §§551.043, 551.048-.056

Meeting Requirements -- Open Session Rules
 Meeting cannot begin until quorum present -- must begin in open session pursuant to
proper agenda posting
 Final action/decision can occur only in open session held in compliance with TOMA.
 Secret ballots or unanimous written consent prohibited -- ACTUAL VOTE AT
MEETING BY MEMBERS OF BODY REQUIRED
 BEST PRACTICE = Adopt rules for: (1) placing items on agenda; (2) order of
agenda; (3) motions and voting; (4) tabling or postponing action; (5) input from
governing body, staff, consultants, and public; (6) recording equipment used by public
during meeting
 REQUIRED RECORD OF OPEN SESSION = minutes or tape recording (public
records); minutes must be permanently preserved
TEX. GOV’T CODE §§551.021-.023, 551.101-.102

Meeting Requirements -- Closed Session Rules
 Move to closed session through pronouncement of TOMA
statute/authorized topic to support closed session
 Weatherford v. City of San Marcos, 157 S.W.3d 473, 485 (Tex. App. --
Austin 2004, pet. denied) (TOMA does not prohibit opinions being
expressed in closed session -- but decision must occur in open session)
 REQUIRED RECORD = (1) certified agenda (describes subject matter,
action taken, and announcement by presiding officer of date/time and
beginning/end of session); or (2) tape recording;
 Record must be (1) preserved at least 2 years -- and to completion of any
suit filed regarding meeting, and (2) is EXPRESSLY CONFIDENTIAL
TEX. GOV’T CODE §§551.071-.074, 551.087, 551.101-.104, 551.129

 No person may be admitted whose interest is adverse to
government -- exclusion extends to opposing suit parties
and proposed seller of property to government
TEX. GOV’T CODE §§551.071-.074, 551.087, 551.101-.104, 551.129

 Many authorized topics exist under TOMA -- including:
(1) personnel matters;
(2) consultation with attorney;
(3) deliberation regarding real property;
(4) gifts and donations;
(5) economic development negotiations.
TEX. GOV’T CODE §§551.071-.074, 551.087, 551.101-.104, 551.129

Criminal Enforcement
• TEX. GOV’T CODE § 551.143 -- Member of body commits offense if he knowingly
conspires to circumvent TOMA by meeting in numbers less than quorum for secret
deliberations in violation of TOMA; PUNISHMENT = fine of not less than $100 or
more than $500, jail confinement for not less than one month or more than six months,
or both such fine and confinement
• TEX. GOV’T CODE § 551.144 -- Member of body commits offense if closed meeting is
not permitted under TOMA, and he knowingly: (1) calls/aids in calling or organizing
closed meeting, whether special or called meeting; (2) closes or aids in closing meeting
if a regular meeting; or (3) participates in closed meeting, whether regular, special, or
called meeting; PUNISHMENT = fine of not less than $100 or more than $500, jail
confinement for not less than one month or more than six months, or both such fine and
confinement.
TEX. GOV’T CODE §§551.143-.146

Criminal Enforcement
 TEX. GOV’T CODE § 551.145 -- Member of body commits offense if he
participates in closed meeting knowing that certified agenda is not being
kept or tape recording is not being made. PUNISHMENT = fine of not
more than $500.
 TEX. GOV’T CODE § 551.146 -- Individual, corporation, or partnership
commits offense if, without lawful authority, he/it knowingly discloses to
member of public certified agenda or tape recording of meeting lawfully
closed to public under TOMA. PUNISHMENT = fine of not more than
$2,000, jail confinement for not less than 180 days, or both such fine and
confinement.
TEX. GOV’T CODE §§551.143-.146

Legislative Update:
From 2013 Legislative Session
 TEX. GOV’T CODE § 551.127 -- A member or employee of a
governmental body may participate in a public meeting of the
body via a videoconference call if the audio and video feed of
that person’s participation is broadcast live at the meeting and
otherwise complies with TOMA.
TEX. GOV’T CODE §§551.127

Legislative Update:
A meeting of a governing body may be held by a videoconference
call if:
• Quorum is physically present at one location of the meeting.
• Quorum exception if a space is made available for public to
actively participate in meeting via audio and video display, and
the presiding member is present with the public participants.
TEX. GOV’T CODE §§551.127

Legislative Update:
 TEX. GOV’T CODE § 551.125, 551.131 -- Water districts with
jurisdictional territory located in three or more counties may
conduct a meeting by telephone conference call or
videoconference call only if:
(a) the meeting is a special/called meeting and immediate
action is required; and
(b) the convening of a quorum of the body at one location is
difficult or impossible.
TEX. GOV’T CODE §§551.125, 551.131

Public Information Act

Reminders
 Texas Public Information Act (Ch. 552, Tex. Gov’t
Code -- TPIA) is subject of legislative changes, case
law, and opinions of Office of the Texas Attorney
General (TXOAG)
 TXOAG publishes: 2012 Public Information
Handbook of the Attorney General of Texas –
Download a copy
 Public Information Officer MUST DISPLAY
SPECIAL SIGN at on or more plainly visible locations
in administrative offices

Public Information Defined
 “Public Information” = all information collected, assembled or maintained under law or
ordinance or in connection with transaction of official business:
 by governmental body
 for governmental body -- if body owns the information or has a right of access to it
 Includes all formats/media/types of information
 Watch out for:
 “Personal Information” (maintained on personal information devices: private emails)
• Was the information collected, assembled, or maintained by the governmental
body
• If so, is the information owed by the district or does it have access to it
 Example: directors’ degrees
 “3rd Party Information” (maintained by 3rd party for governmental body)
• Does the Board own the information or have a right to access
 Example: consultant or lawyer report

 Adkisson v. Abbott, ___S.W.3d ___, 2014 WL 2708424
(Tex. App.―Austin, June 13, 2014)
 Facts:
• San Antonio Express News requested emails
between a Bexar County Commissioner and two
citizens related to the Commissioner’s official
capacity as a County Commissioner and all
correspondence between the Commissioner and six
other people from devices used in official capacity
• The Commissioner and Bexar County did not
release emails of the Commissioner that were on
the Commissioner’s personal devices

 Court’s Decision:
• A public official cannot circumvent the PIA
requirements by maintaining the
information on personal devices or in
personal emails
• All records of public or official business
maintained on a personal device (computer,
iPad, cell phone, notepad, calendar) belongs
to the governmental entity

• The public official is therefore responsible for
maintaining the public information created or
received by him, his employees, or his office
(no matter where the information is physically
created or received) for the governmental
entity
• These documents are subject to the open
records requirements

Proper and Improper Requests
 Written request required
• May seek inspection/review/copying
• No requirement to respond to a verbal request
• Must provide uniform treatment
 Improper request
• Information not in existence at time of request
• District not required to create new information,
• Not required to do legal research, answer questions
• Not required to treat request as continuing duty to
provide information

Proper and Improper Requests (cont’d)
 Clarification Procedure
• If request is overbroad or unclear, district may seek good faith
clarification
• Clarification request must inform requestor of consequences of
failure to timely respond within 61 days (request considered
withdrawn)
• Note “Reset Rule”
 May not inquire regarding the requestor’s motive or intended use of
information
 Practice Tip - Confirm Receipt Facts
• Date/time of receipt
• Method of receipt
• Correct name of receipt person

Procedures to Access
 Written request for public information is received
 The District must promptly produce for inspection, duplication, or
both, the requested documents. “Promptly” means as soon as
possible under the circumstances, without delay.
 To withhold documents from public disclosure, the District must
ask for a decision from the Attorney General about whether the
information is within one of the exceptions:
• Must make that request within 10 days of receipt of the open
records request
• Must submit representative copies of the documents, along
with other information, within 15 days of receipt of the open
records request
 If no timely request is made by the governmental entity, the
information is presumed public

Exceptions to Disclosure
 More than 50 in TPIA; other non-TPIA statutory exceptions exist, too
 Most TPIA disclosure exceptions are discretionary
 Commonly encountered exceptions involve information regarding:
• Attorney-client privilege matters
• District employee personal contact data
• Trade secrets/commercial information of 3rd party
• Memoranda of law, recommendations or opinions that relate to governmental
body’s policymaking
• Social security number of living person
• Contemplated or active litigation
• Location/price of property
• Information that relates to e-mail addresses
 “Super Public Information” not excepted -- unless deemed confidential by TPIA or
other law

Repetitious Requests
 May refuse to process repetitious/redundant requests only when district previously furnished copies
(Section 552.232)
• Must certify to requestor:
 Information previously provided
 Date original request received
 Date information originally provided
 Certify no changes in information
 Name, title, and signature
 Not necessary to request decision if a previous decision has been made
• Key is “previous determination”
• Same entity requested/received an AG opinion
• Precise information
• No change in circumstance
 Broader determination by AG:
• AG explicitly provides applies to all requests
• Example: certified agendas

Time-Consuming Requests
By a Single Requestor
 May establish a reasonable limit, not less than 36
hours in a 12 month period, on amount of time
spent responding to a requestor, without
recovering costs
• i.e., if more than 36 hours spent responding
to requests of one person in 12 months, then
can recover costs for materials, labor, and
 Requires board to adopt policy and to issue cost
statement

Civil Enforcement Suits
 Requestor may file suit against district to compel disclosure of information
for TPIA violations
 TXOAG or District/County Attorney may file suit against district to compel
disclosure of information for TPIA violations
 District may file suit against TXOAG challenging unfavorable disclosure
ruling by TXOAG
 Third-party may file suit against TXOAG challenging unfavorable
disclosure ruling by TXOAG regarding protected third-party information
 In some circumstances, costs of litigation and reasonable attorney’s fees
may be recovered against the district for the civil enforcement suit

Criminal Prosecution Against Individuals
who Violate TPIA
 Destruction, Removal, or Alteration of Public Information
• Willfull destruction, mutilation, removal without permission, or alteration of public
information
• Maximum punishment = $4,000 fine plus 3 months in jail
 Tampering with Governmental Record
• Tampering with or destruction, removal, or concealment of district records
• Maximum punishment = 1 year in jail plus $4,000 fine
• Felony prosecution/punishment can occur
 Distribution or Misuse of Confidential Information
• Distribution of information considered confidential under TPIA
 Failure to Allow Access/Copying of Public Information
• Failure (by criminal negligence) to give access to, or permit copying of, public
information as required by TPIA
 Criminal Convictions
• Official misconduct for which officials may be removed from office

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