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2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Leading your Board to
Success
RuralWaterCon
TRWA 48th Annual
Convention
March 29-31, 2017
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Conducting Effective Board
Meetings
• The Law - Transparency
• The Agenda - Putting it together
• Meeting Leadership – The President’s
role
• Decorum – Board Members and the
Public
• Making it Happen – Conducting an
Effective Meeting
2
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
GENERAL MEETING
REQUIREMENTS
3
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Meetings
• Different Requirements for
– Water Supply Corporations and
– Districts
4
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
District Meetings
• Required to hold regular and special
meetings as necessary to conduct
District’s business
• Required to keep complete account of all
meetings and proceedings.
– Water Code, Chapters 49 and 65
– Government Code, Chapter 551
5
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
District Offices and Meetings
• District must establish District
administrative office and publish notice of
location of any meeting places outside
the District in newspapers.
6
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
WSC Annual Meetings
• Annual meeting of members is required, unless
– Bylaws provide for more than one meeting of members each
calendar year.
• Annual meeting for retail WSC must be between January 1st
and May 1st
• Retail WSC Board must have written procedures for annual
meeting
• A member can demand annual meeting and file proceeding
in court to enforce requirement.
– Water Code, Chapter 65
– Bus. Org Code, Chapter 22
7
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
WSC Annual Meetings
• Written Notice of Member Meetings is Required
– Must be delivered between 60th and 10th day before
meeting
• EXCEPT
– Bylaws may alter notice requirements
– If more than 1000 members, may publish notice instead
• Written notice must be provided at least 30 days in
advance of retail WSC annual meeting
• Quorum of members (majority) must be represented
at WSC Annual Meeting in person or by ballot
8
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
OPEN MEETINGS ACT
9
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Open Meetings Act
• Chapter 551, Texas Government Code
• Public Officials are Required to Have
Attorney General-Approved Training
• Open Meetings Handbook
– https://texasattorneygeneral.gov/og/open-
government-related-publications
• Open Meetings Resources
– TRWA Keep it Legal
– TML Open Meetings
10
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Governmental Bodies
• Act applies to Governmental Bodies
• Common-law rule
– decisions entrusted to governmental bodies must
be made by the body
• as a whole
• at a properly called meeting.
– Each member of the body has an opportunity to
state his or her views to other board members
and to give them the benefit of his or her
judgment
– Then the decision is a decision by the whole
body.
11
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Governmental Bodies
• a board, commission, department,
committee, or agency within the
executive or legislative branch of state
government that is directed by one or
more elected or appointed members;
• a county commissioners court in the
state;
• a municipal governing body in the state;
• a deliberative body that has rulemaking
or quasi-judicial power and that is
classified as a department, agency, or
political subdivision of a county or
municipality;
• a school district board of trustees;
• a county board of school trustees;
• a county board of education;
• the governing board of a special
district created by law;
• a local workforce development board
created under Section 2308.253;
• a nonprofit corporation that is eligible
to receive funds under the federal
community services block grant
program and that is authorized by this
state to serve a geographic area of
the state; and
• a nonprofit corporation organized
under Chapter 67, Water Code, that
provides a water supply or
wastewater service, or both, and is
exempt from ad valorem taxation
under Section 11.30, Tax Code; and
• a joint board created under Section
22.074, Transportation Code.
12
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Open Meetings Generally
• 72 hours notice of meeting (unless
emergency)
• Notice (agenda) must state time, date and
place of meeting
– Post agenda with County Clerk and at
administrative office
• Notice must describe matters to be discussed
sufficiently
• Public has right to attend
13
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
CONDUCTING OPEN
MEETINGS
14
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Conducting an Open Meeting
• Quorum?
• Call to Order
– Time
– Date
– Place
• Agenda Topics (Notice?)
• Record keeping
• Adjourn
– Time
15
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
QUORUM
16
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Quorum Required
• Texas Statutes define quorum of a public
body as:
– a majority of the number of members
» Texas Government Code, 311.013 and 551.001(6)
• A Quorum of public body is required to act,
unless a statute specifies otherwise.
• A Quorum of a WSC board is required to act.
» Texas Business Organizations Code, 22.213
17
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Quorum Required
• Generally, meetings of less than a
quorum of a governmental body are not
subject to the Act.
• Special Utility Districts require the vote of
a quorum of the entire membership to act
18
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Quorum Required
• BUT, a committee of less than a quorum that
has authority to supervise or control public
business or public policy may itself be a
“governmental body”
– If a committee actually makes final decisions and
the governing body merely “rubber stamps”
those acts, the committee is subject to the Act.
– If a quorum of a governmental body attends a
meeting of a committee at which deliberation
takes place, the committee meeting is a meeting
of the governmental body and subject to the Act
19
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Walking Quorums
• Serial deliberations of members in
numbers less than a quorum
– After meeting discussions
– Social settings
– Telephone calls
– Emails, texts, social media, etc.
20
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
THE AGENDA
Notice of an Open Meeting - aka
21
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Notice of Meetings
• Notice of Meeting Required
– A governmental body shall give written notice
of the date, hour, place and subject of each
meeting held by the governmental body.
22
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Posting Notice of Meetings
• District or Political Subdivision in fewer than
Four Counties
– The governing body is required to:
• post notice of each meeting at a place convenient to
the public in the administrative office of the district or
political subdivision; and
• provide notice of each meeting to the county clerk of
each county in which the district or political
subdivision is located.
• As an alternative to posting with the county clerk the
entity may post notice on its internet website.
23
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Posting Notice of Meetings
• A county clerk shall post the notice on a
bulletin board at a place convenient to the
public in the county courthouse.
• If entity extends into four or more
counties, must send notice to Secretary
of State for posting too.
24
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
CONTENT OF THE AGENDA
25
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Wording for Notice
• The posting must be sufficient to alert the public,
in general terms, of the subject that will be
considered in the meeting.
– Descriptions such as “old business,” “new business,”
“other business,” “personal,” and “litigation matters”
are not sufficiently detailed to meet the requirements
of the Act
26
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Wording for Notice
• The more important a particular issue is to the
community, the more specific the posted notice
must be.
– the phrase “employment of personnel” was held to be a
sufficient posting for hiring a school teacher.
– the same court found that this phrase was not sufficient
when the school was considering hiring a key supervisor
such as a principal.
– another Texas court ruled that a posting that said
“personnel” was not specific enough to allow a city
council to discuss the firing of a police chief.
27
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Wording for Notice
• Must be sure that postings are consistent
with prior practice.
– a Texas court has ruled that a notice calling
for “discussion” of a certain item was not
sufficient to allow a board to take action on
that item when the board’s previous notices
had always explicitly stated when an action
might be taken.
28
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Notice Regarding
Public Comment
• “Public comment” generally provides
sufficient notice where members of the
general public address a governing body
about their concerns.
• But might be insufficient notice, if the
governing body is aware or should be
aware of the specific topics that may be
discussed at the meeting before the
meeting.
29
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Notice Indicating
Employee Briefing Session
• Simply indicating “employee briefing session”
or “staff briefing session” does not provide
the public with sufficient notice as to the
subject that will be discussed at a public
meeting.
• A governing body should be able to
ascertain from its employees or officers in
advance what subjects will be addressed in a
briefing session.
30
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Notice Indicating
Executive Session
• The Act does NOT require the agenda to
state which items will be discussed in closed
session.
• BUT, if a governing body consistently
distinguishes between subjects for public
deliberation and subjects for executive
session, an abrupt departure from this
practice could deceive the public and thereby
render the notice inadequate.
31
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Authority to Address Items
Not on the Agenda
• Members of the governing body may
NOT deliberate OR make any decision
about an issue that was not part of the
notice of a meeting of the governmental
body.
32
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Authority to Address Items
Not on the Agenda
• If a topic is raised by board members or the
general public, the governing body has four
options:
1. respond with a statement of specific factual
information or recite the governmental body’s existing
policy on that issue;
2. direct the person making the inquiry to visit with staff
about the issue;
3. offer to place the item on the agenda for discussion
at a future meeting; OR
4. offer to post the matter as an emergency item IF it
meets the criteria for an emergency posting.
33
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Emergency Meetings
• 2 Hours Notice
• President must notify the media if
previously requested
• Emergency or urgent public necessity
– imminent threat to public health and safety
– reasonably unforeseeable situation
• Notice must identify emergency
34
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
RECORD KEEPING
35
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Record of Open Meeting
• Must prepare and keep minutes or make
a tape recording of each open meeting of
the body.
• Minutes must:
– state the subject of each deliberation; and
– indicate each vote, order, decision and other
action taken.
36
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Record of Open Meeting
• Minutes and Tape Recordings of Open
Meeting
– are public records, and
– shall be available for public inspection and
copying on request
37
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Record of Open Meeting
• Recording of Meeting by Person in
Attendance
– A person in attendance may record all or any
part of an open meeting of a governmental body
– A governmental body may adopt reasonable
rules to maintain order at a meeting, including
rules relating to:
• the location of recording equipment; and
• the manner in which the recording is conducted.
– A rule may not prevent or unreasonably impair a
person from exercising a right to record a
meeting.
38
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
CONDUCTING CLOSED
MEETINGS
39
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Conducting a Closed Meeting
• Must convene an open meeting first!
• Announce Closed (aka Executive) Session
– State Time
– State Reason (announce statutory cite or explain basis)
• Topic must be on Notice of Meeting (aka Agenda)
• Conduct Closed Session
• No Action can be taken during Closed Session
• Keep Certified Agenda (unless advice from counsel)
• Reconvene in Open Session
– State Time
– Take action, if required.
40
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Closed Meetings
• Only under specific statutory authority
• Examples:
– Consultation with Attorney
– Real Property Acquisition
– Personnel Matters
– Gifts to WSC/District
41
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Record of Closed Meetings
• Certified Agenda or Tape Recording
Required
– Must keep
• certified agenda or
• make a tape recording
• except for a private consultation with an attorney.
– The presiding officer must certify that a
certified agenda is a true and correct record
of the proceedings.
42
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Record of Closed Meetings
• The certified agenda (or recording) must
include:
– a statement of the subject matter of each
deliberation;
– a record of any further action taken; and
– an announcement by the presiding officer at
the beginning and the end of the meeting
indicating the date and time.
• A recording must include these announcements.
43
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Record of Closed Meetings
• Board must:
– Preserve the certified agenda or tape
recording for at least two years after the date
of the meeting.
– If an action involving the meeting is brought
within that period, preserve the certified
agenda or tape while the action is pending.
44
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Record of Closed Meetings
• In litigation in a district court involving an
alleged violation of this chapter:
– Court may inspect the certified agenda or tape in
camera;
– Court may admit all or part of the certified
agenda or tape as evidence, on entry of a final
judgment; and
– Court may grant legal or equitable relief it
considers appropriate, including an order to
make the certified agenda or tape of any part of
a meeting that was required to be open under
this chapter available to the public .
45
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Record of Closed Meetings
• The certified agenda or tape of a closed
meeting is available for public inspection
and copying ONLY under a court order
46
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
VIOLATIONS OF THE ACT
47
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Enforcement and Remedies;
Criminal Violations
• An action taken by a governmental body in violation
of the Act is voidable.
• An interested person, including a member of the
news media, may bring an action by mandamus or
injunction to stop, prevent, or reverse a violation or
threatened violation of the Act by members of a
governmental body.
– The court may assess costs of litigation and reasonable
attorney fees incurred by a plaintiff or defendant who
substantially prevails in an action.
– In exercising its discretion, the court shall consider whether
the action was brought in good faith and whether the
conduct of the governmental body had a reasonable basis
in law.
48
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Enforcement and Remedies;
Criminal Violations
• A member or group of members of a
governmental body commits an offense if the
member or group of members knowingly
conspires to circumvent this chapter by meeting
in numbers less than a quorum for the purpose
of secret deliberations in violation of this
chapter.
• An offense is a misdemeanor punishable by:
– a fine of not less than $100 or more than $500;
– confinement in the county jail for not less than one
month or more than six months; or
– both the fine and confinement.
49
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Enforcement and Remedies;
Criminal Violations
• Closed Meeting Without Certified Agenda or
Tape Recording; Offense; Penalty
– A member of a governmental body commits an
offense if the member participates in a closed
meeting of the governmental body knowing that
a certified agenda of the closed meeting is not
being kept or that a tape recording of the
meeting is not being made.
– Violation is a Class C misdemeanor.
• Up to $500 fine
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Enforcement and Remedies;
Criminal Violations
• Disclosure of Certified Agenda or Tape
Recording of Closed Meeting; Offense; Penalty;
Civil Liability
– An individual, corporation, or partnership that without
lawful authority knowingly discloses to a member of
the public the certified agenda or tape recording of a
meeting that was lawfully closed to the public under
this chapter:
• commits an offense; and
• is liable to a person injured or damaged by the disclosure
for:
– actual damages, including damages for personal injury or
damage, lost wages, defamation, or mental or other emotional
distress;
– reasonable attorney fees and court costs; and
– at the discretion of the trier of fact, exemplary damages.
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Enforcement and Remedies;
Criminal Violations
• Disclosure of Certified Agenda or Tape
Recording of Closed Meeting; Offense;
Penalty; Civil Liability
– An unauthorized disclosure is a Class C
misdemeanor.
– It is a defense to prosecution that:
• the defendant had good reason to believe the
disclosure was lawful; or
• the disclosure was the result of a mistake of fact
concerning the nature or content of the certified
agenda or tape recording.
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
15 MINUTE BREAK!
53
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
MEETING LEADERSHIP
The presiding officer
54
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
WSC Board
• Maximum of 21 Board Members
• 2 or 3 year terms
• Bylaws Establish Details
55
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
WSC Board
• Board of directors required to elect:
– President and
– Secretary
• Board of directors may elect”
– one or more vice presidents,
– treasurer, and
– other officers and assistant officers as considered
necessary.
• Any two or more offices, other than the offices of
president and secretary, may be held by the
same person.
56
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
WSC Board
• President or Board may call a meeting
– Bylaws may authorize another person to call
meetings
• President, Secretary or other person
calling the meeting must give notice of
meeting
57
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Water Districts
• Composition of board varies by type of
District (most 5 members, SUDs up to 11
members)
• Election to 4-year terms (3-year terms for
SUDs)
• Vacancies (most filled by Board
appointment)
58
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Water Districts
• Board required to elect:
– President
– Vice-president
– Secretary, and
– Any other officers or assistant officers as the
board may deem necessary.
59
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Water Districts
• President’s duties:
– chief executive officer of the district
– presides at all meetings of the board
– shall execute all documents on behalf of the
district
• unless the board by resolution authorizes the
general manager or other employee of the district
to execute a document or documents on behalf of
the district.
60
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Water Districts
• Vice-president shall act as President in
case of the absence or disability of the
President.
• Secretary is responsible for seeing that
all records and books of the district are
properly kept and may attest the
President's signature on documents.
61
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
A RECIPE FOR GOOD
LEADERSHIP
The Making of a President
62
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Key Ingredients
• Honest and Trustworthy
• Able to Delegate
• Able to Communicate Clearly
• Commited to the Organization
• Maintain a Positive Attitude
• Creative Problem Solver
• Empathetic Listener
• Confident Decision Maker
• Inspirational Vision
63
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
DECORUM
Board Member and Public participation
64
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Public Participation
• According to the Attorney General, “the
Open Meetings Act (the “Act”) was
adopted to help make governmental
decision-making accessible to the public.
”
• From the 2016 Edition of the Open Meetings Handbook
65
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Public Participation
• The Public DOES NOT have a right to
speak unless specifically called for in
statute.
• HOWEVER, the Public DOES want to be
able to let you know what they think.
• Consider providing “Public Comment”
item on Agenda.
• REMEMBER …
66
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Authority to Address Items
Not on the Agenda
• If a topic is raised by board members or the
general public, the governing body has four
options:
1. respond with a statement of specific factual
information or recite the governmental body’s existing
policy on that issue;
2. direct the person making the inquiry to visit with staff
about the issue;
3. offer to place the item on the agenda for discussion
at a future meeting; OR
4. offer to post the matter as an emergency item IF it
meets the criteria for an emergency posting.
67
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Public participation
• Open Meetings Act provides:
– Right to notice of topics
– Right to attend open sessions
• Good Practices
– Allow Public Comments
– Have clearly audible deliberations
– Remember that conflict WILL happen
– Maintain respectful interaction with Public (and
other Board Members)
68
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
BOARD MEMBER ISSUES
69
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Ethical Issues for Board
Members
• Fiduciary Duties
• Conflicts of Interest
• Nepotism
• Dual Office Holding/Incompatibility
70
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Fiduciary Duties
• Position of Trust or Confidence
• Relationship is One-Sided
• Duty of Care
– Participate and exercise independent judgment
• Duty of Loyalty
– Put organization before own interests
• Duty of Obedience
– Be faithful to organization’s mission
71
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Fiduciary Duties
• State Law requires a director to discharge
the director's duties, including duties as a
committee member,
– in good faith,
– with ordinary care, and
– in a manner the director reasonably believes
to be in the best interest of the corporation.
72
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Conflict of Interest
• Common Law – Public Officials
If a public official directly or indirectly has a
pecuniary interest in a contract, no matter how
honest he may be, and although he may not
be influenced by the interest, such a contract
so made is violative of the spirit and letter of
our law, and is against public policy. Meyers
v. Walker
73
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Conflict of Interest
• A local public official commits an offense if the
official knowingly:
– violates Local Government Code Section 171.004
(Next Slide)
– acts as surety for a business entity that has work,
business, or a contract with the governmental entity; or
– acts as surety on any official bond required of an
officer of the governmental entity.
• An offense under this section is a Class A
misdemeanor – punishable by up to 1 year in jail
and/or up to $4000 penalty.
74
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Conflict of Interest
• If a local public official has a substantial interest
in a business entity or in real property, the
official must:
– file an affidavit stating the nature and extent of the
interest before a vote or decision on any matter
involving the business entity or the real property, and
– abstain from further participation in the matter if:
• the action on the matter will have a special economic
effect on that business entity that is distinguishable from
the effect on the public; or
• it is reasonably foreseeable that an action on the matter
will have a special economic effect on the value of the
property that is distinguishable from its effect on the
public.
75
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Conflict of Interest
• A person has a substantial interest in a business
entity if:
– the person owns 10 percent or more of the voting stock or
shares of the business entity or owns either 10 percent or
more or $15,000 or more of the fair market value of the
business entity; or
– funds received by the person from the business entity
exceed 10 percent of the person's gross income for the
previous year.
• A person has a substantial interest in real property if
the interest is an equitable or legal ownership with a
fair market value of $2,500 or more.
• Applies to Spouse, Child and Parent Interests Too.
76
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Conflict of Interest
• Local public officials may serve as a
member of the board of directors of
private, nonprofit corporations if they
receive no compensation or other
remuneration from the nonprofit
corporation or other nonprofit entity.
• Conversely, a board member of a
nonprofit that receives compensation or
remuneration may not serve as a local
public official.
77
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Nepotism
• Public official may not appoint an individual to
a position that is compensated from public
funds or fees of office if:
– related to the public official within a degree
described by Texas Government Code, Section
573.002; or
– the public official holds the appointment or
confirmation authority as a member of a state or
local board, the legislature, or a court and the
individual is related to another member of that
board, legislature, or court within a degree
described by Section 573.002.
78
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Nepotism
• Except as provided by Texas Government
Code, Section 573.043, this chapter
applies to relationships within the third
degree by consanguinity or within the
second degree by affinity.
79
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Nepotism
Consanguinity
Civil Law Degrees Of Relationship
1st 2nd 3rd 4th
Officer Child Grandchild Great Grandchild Great Great
Grandchild
Parent Sibling Niece/Nephew Grand
Niece/Nephew
Grandparen
t
Great
Grandparent
Great Great
Grandparent
Aunt/Uncle Great Aunt/Uncle
1st Cousin
80
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Nepotism
Affinity
Civil Law Degrees Of Relationship
1st 2nd 3rd
Officer Spouse Spouse’s Sibling Child of Spouse’s
Sibling
Spouse’s
Parent
Spouse’s
Grandparent
Spouse’s Great
Grandparent
Child’s
Spouse
Parent of Child’s
Spouse
Grandparent of Child’s
Spouse
Sibling’s Spouse Parent of Sibling’s
Spouse
Spouse’s Aunt/Uncle
81
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
SEVEN STEPS TO AN
EFFECTIVE MEETING
Advice from Forbes – Leadership Forum
February 5, 2014 Article by Neil Hartman
82
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Seven Steps to an Effective
Meeting
I. Make your objective clear. A meeting
must have a specific and defined purpose.
Before you send that calendar invite, ask
yourself:
• What do I seek to accomplish?
• Are you alerting people to a change in management
or a shift in strategy?
• Are you seeking input from others on a problem
facing the company?
• Are you looking to arrive at a decision on a particular
matter?
• Standing meetings with vague purposes, such as
“status updates,” are rarely a good use of time.
83
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Seven Steps to an Effective
Meeting
II. Consider who is invited. When you’re
calling a meeting, take time to think about
who really needs to be there.
• If you’re announcing a change, invite the people who
are affected by the announcement.
• If you’re trying to solve a problem, invite the people
who will be good sources of information for a solution.
• When people feel that what’s being discussed isn’t
relevant to them, or that they lack the skills or
expertise to be of assistance, they’ll view their
attendance at the meeting as a waste of time.
84
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Seven Steps to an Effective
Meeting
III. Stick to your schedule. Create an
agenda that lays out everything you
plan to cover in the meeting, along with
a timeline that allots a certain number
of minutes to each item, and email it to
people in advance.
• Once you’re in the meeting, put that agenda
up on a screen or whiteboard for others to
see. This keeps people focused.
85
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Seven Steps to an Effective
Meeting
IV. Take/Allow no hostages. Nothing
derails a meeting faster than one
person talking more than his fair share.
• If you notice one person monopolizing the
conversation, call him out. Say, “We appreciate
your contributions, but now we need input from
others before making a decision.” Be public about
it.
• Establishing ground rules early on will create a
framework for how your group functions.
86
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Seven Steps to an Effective
Meeting
V. Start on time, end on time. If you have
responsibility for running regular meetings
and you have a reputation for being
someone who starts and ends promptly,
you will be amazed how many of your
colleagues will make every effort to attend
your meetings.
• People appreciate it when you understand that
their time is valuable.
• Another note on time: Do not schedule any
meeting to last longer than an hour. Sixty minutes
is generally the longest time workers can remain
truly engaged.
87
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Seven Steps to an Effective
Meeting
VI. Ban technology. The reality is that if
people are allowed to bring cell phones
or tablets into the meeting, they won’t
be focusing on the meeting or
contributing to it.
• Instead, they’ll be emailing, surfing the web, or
just playing around with their technology.
• Eyes up here, please.
88
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Seven Steps to an Effective
Meeting
VII. Follow up. It’s quite common for people to
come away from the same meeting with
very different interpretations of what went
on. To reduce this risk, email a memo
highlighting what was accomplished to all
who attended within 24 hours after the
meeting. Document the responsibilities
given, tasks delegated, and any assigned
deadlines. That way, everyone will be on
the same page.
89
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Seven Steps to an Effective
Meeting
• Meetings truly can be valuable and
productive.
• You just have to take the steps to make
them that way.
90
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
RESOURCES
91
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Helpful Websites
• Texas Rural Water Association
– www.trwa.org
• Texas Attorney General
– www.texasattorneygeneral.gov
• Texas Legislature
– http://www.legis.state.tx.us
• Forbes – Leadership Forum
– http://www.forbes.com/leadership
92
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
Laws that Apply to
Districts and WSCs
• Water Code, Chapter 13 (Utilities)
– http://www.statutes.legis.state.tx.us/Docs/WA/htm/WA.13.htm
• Water Code, Chapter 49 (General Law for Water Districts)
– http://www.statutes.legis.state.tx.us/Docs/WA/htm/WA.49.htm
• Water Code, Chapter 65 (Special Utility Districts)
– http://www.statutes.legis.state.tx.us/Docs/WA/htm/WA.65.htm
• Water Code, Chapter 67 (Water Supply Corporations)
– http://www.statutes.legis.state.tx.us/Docs/WA/htm/WA.67.htm
• Business Organizations Code, Chapter 22 (NonProfit
Corporations)
– http://www.statutes.legis.state.tx.us/Docs/BO/htm/BO.22.htm
• Government Code, Chapter 551 (Open Meetings Act)
– http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.551.htm
• Government Code, Chapter 552 (Public Information Act)
– http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.552.htm
93
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2017
QUESTIONS?
John Carlton
(512) 614-0901
john@carltonlawaustin.com

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2017 TRWA Annual Convention - Leading Your Board to Success

  • 1. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Leading your Board to Success RuralWaterCon TRWA 48th Annual Convention March 29-31, 2017
  • 2. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Conducting Effective Board Meetings • The Law - Transparency • The Agenda - Putting it together • Meeting Leadership – The President’s role • Decorum – Board Members and the Public • Making it Happen – Conducting an Effective Meeting 2
  • 3. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 GENERAL MEETING REQUIREMENTS 3
  • 4. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Meetings • Different Requirements for – Water Supply Corporations and – Districts 4
  • 5. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 District Meetings • Required to hold regular and special meetings as necessary to conduct District’s business • Required to keep complete account of all meetings and proceedings. – Water Code, Chapters 49 and 65 – Government Code, Chapter 551 5
  • 6. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 District Offices and Meetings • District must establish District administrative office and publish notice of location of any meeting places outside the District in newspapers. 6
  • 7. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 WSC Annual Meetings • Annual meeting of members is required, unless – Bylaws provide for more than one meeting of members each calendar year. • Annual meeting for retail WSC must be between January 1st and May 1st • Retail WSC Board must have written procedures for annual meeting • A member can demand annual meeting and file proceeding in court to enforce requirement. – Water Code, Chapter 65 – Bus. Org Code, Chapter 22 7
  • 8. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 WSC Annual Meetings • Written Notice of Member Meetings is Required – Must be delivered between 60th and 10th day before meeting • EXCEPT – Bylaws may alter notice requirements – If more than 1000 members, may publish notice instead • Written notice must be provided at least 30 days in advance of retail WSC annual meeting • Quorum of members (majority) must be represented at WSC Annual Meeting in person or by ballot 8
  • 9. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 OPEN MEETINGS ACT 9
  • 10. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Open Meetings Act • Chapter 551, Texas Government Code • Public Officials are Required to Have Attorney General-Approved Training • Open Meetings Handbook – https://texasattorneygeneral.gov/og/open- government-related-publications • Open Meetings Resources – TRWA Keep it Legal – TML Open Meetings 10
  • 11. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Governmental Bodies • Act applies to Governmental Bodies • Common-law rule – decisions entrusted to governmental bodies must be made by the body • as a whole • at a properly called meeting. – Each member of the body has an opportunity to state his or her views to other board members and to give them the benefit of his or her judgment – Then the decision is a decision by the whole body. 11
  • 12. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Governmental Bodies • a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members; • a county commissioners court in the state; • a municipal governing body in the state; • a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality; • a school district board of trustees; • a county board of school trustees; • a county board of education; • the governing board of a special district created by law; • a local workforce development board created under Section 2308.253; • a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that is authorized by this state to serve a geographic area of the state; and • a nonprofit corporation organized under Chapter 67, Water Code, that provides a water supply or wastewater service, or both, and is exempt from ad valorem taxation under Section 11.30, Tax Code; and • a joint board created under Section 22.074, Transportation Code. 12
  • 13. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Open Meetings Generally • 72 hours notice of meeting (unless emergency) • Notice (agenda) must state time, date and place of meeting – Post agenda with County Clerk and at administrative office • Notice must describe matters to be discussed sufficiently • Public has right to attend 13
  • 14. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 CONDUCTING OPEN MEETINGS 14
  • 15. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Conducting an Open Meeting • Quorum? • Call to Order – Time – Date – Place • Agenda Topics (Notice?) • Record keeping • Adjourn – Time 15
  • 16. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 QUORUM 16
  • 17. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Quorum Required • Texas Statutes define quorum of a public body as: – a majority of the number of members » Texas Government Code, 311.013 and 551.001(6) • A Quorum of public body is required to act, unless a statute specifies otherwise. • A Quorum of a WSC board is required to act. » Texas Business Organizations Code, 22.213 17
  • 18. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Quorum Required • Generally, meetings of less than a quorum of a governmental body are not subject to the Act. • Special Utility Districts require the vote of a quorum of the entire membership to act 18
  • 19. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Quorum Required • BUT, a committee of less than a quorum that has authority to supervise or control public business or public policy may itself be a “governmental body” – If a committee actually makes final decisions and the governing body merely “rubber stamps” those acts, the committee is subject to the Act. – If a quorum of a governmental body attends a meeting of a committee at which deliberation takes place, the committee meeting is a meeting of the governmental body and subject to the Act 19
  • 20. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Walking Quorums • Serial deliberations of members in numbers less than a quorum – After meeting discussions – Social settings – Telephone calls – Emails, texts, social media, etc. 20
  • 21. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 THE AGENDA Notice of an Open Meeting - aka 21
  • 22. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Notice of Meetings • Notice of Meeting Required – A governmental body shall give written notice of the date, hour, place and subject of each meeting held by the governmental body. 22
  • 23. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Posting Notice of Meetings • District or Political Subdivision in fewer than Four Counties – The governing body is required to: • post notice of each meeting at a place convenient to the public in the administrative office of the district or political subdivision; and • provide notice of each meeting to the county clerk of each county in which the district or political subdivision is located. • As an alternative to posting with the county clerk the entity may post notice on its internet website. 23
  • 24. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Posting Notice of Meetings • A county clerk shall post the notice on a bulletin board at a place convenient to the public in the county courthouse. • If entity extends into four or more counties, must send notice to Secretary of State for posting too. 24
  • 25. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 CONTENT OF THE AGENDA 25
  • 26. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Wording for Notice • The posting must be sufficient to alert the public, in general terms, of the subject that will be considered in the meeting. – Descriptions such as “old business,” “new business,” “other business,” “personal,” and “litigation matters” are not sufficiently detailed to meet the requirements of the Act 26
  • 27. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Wording for Notice • The more important a particular issue is to the community, the more specific the posted notice must be. – the phrase “employment of personnel” was held to be a sufficient posting for hiring a school teacher. – the same court found that this phrase was not sufficient when the school was considering hiring a key supervisor such as a principal. – another Texas court ruled that a posting that said “personnel” was not specific enough to allow a city council to discuss the firing of a police chief. 27
  • 28. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Wording for Notice • Must be sure that postings are consistent with prior practice. – a Texas court has ruled that a notice calling for “discussion” of a certain item was not sufficient to allow a board to take action on that item when the board’s previous notices had always explicitly stated when an action might be taken. 28
  • 29. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Notice Regarding Public Comment • “Public comment” generally provides sufficient notice where members of the general public address a governing body about their concerns. • But might be insufficient notice, if the governing body is aware or should be aware of the specific topics that may be discussed at the meeting before the meeting. 29
  • 30. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Notice Indicating Employee Briefing Session • Simply indicating “employee briefing session” or “staff briefing session” does not provide the public with sufficient notice as to the subject that will be discussed at a public meeting. • A governing body should be able to ascertain from its employees or officers in advance what subjects will be addressed in a briefing session. 30
  • 31. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Notice Indicating Executive Session • The Act does NOT require the agenda to state which items will be discussed in closed session. • BUT, if a governing body consistently distinguishes between subjects for public deliberation and subjects for executive session, an abrupt departure from this practice could deceive the public and thereby render the notice inadequate. 31
  • 32. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Authority to Address Items Not on the Agenda • Members of the governing body may NOT deliberate OR make any decision about an issue that was not part of the notice of a meeting of the governmental body. 32
  • 33. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Authority to Address Items Not on the Agenda • If a topic is raised by board members or the general public, the governing body has four options: 1. respond with a statement of specific factual information or recite the governmental body’s existing policy on that issue; 2. direct the person making the inquiry to visit with staff about the issue; 3. offer to place the item on the agenda for discussion at a future meeting; OR 4. offer to post the matter as an emergency item IF it meets the criteria for an emergency posting. 33
  • 34. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Emergency Meetings • 2 Hours Notice • President must notify the media if previously requested • Emergency or urgent public necessity – imminent threat to public health and safety – reasonably unforeseeable situation • Notice must identify emergency 34
  • 35. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 RECORD KEEPING 35
  • 36. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Record of Open Meeting • Must prepare and keep minutes or make a tape recording of each open meeting of the body. • Minutes must: – state the subject of each deliberation; and – indicate each vote, order, decision and other action taken. 36
  • 37. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Record of Open Meeting • Minutes and Tape Recordings of Open Meeting – are public records, and – shall be available for public inspection and copying on request 37
  • 38. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Record of Open Meeting • Recording of Meeting by Person in Attendance – A person in attendance may record all or any part of an open meeting of a governmental body – A governmental body may adopt reasonable rules to maintain order at a meeting, including rules relating to: • the location of recording equipment; and • the manner in which the recording is conducted. – A rule may not prevent or unreasonably impair a person from exercising a right to record a meeting. 38
  • 39. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 CONDUCTING CLOSED MEETINGS 39
  • 40. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Conducting a Closed Meeting • Must convene an open meeting first! • Announce Closed (aka Executive) Session – State Time – State Reason (announce statutory cite or explain basis) • Topic must be on Notice of Meeting (aka Agenda) • Conduct Closed Session • No Action can be taken during Closed Session • Keep Certified Agenda (unless advice from counsel) • Reconvene in Open Session – State Time – Take action, if required. 40
  • 41. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Closed Meetings • Only under specific statutory authority • Examples: – Consultation with Attorney – Real Property Acquisition – Personnel Matters – Gifts to WSC/District 41
  • 42. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Record of Closed Meetings • Certified Agenda or Tape Recording Required – Must keep • certified agenda or • make a tape recording • except for a private consultation with an attorney. – The presiding officer must certify that a certified agenda is a true and correct record of the proceedings. 42
  • 43. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Record of Closed Meetings • The certified agenda (or recording) must include: – a statement of the subject matter of each deliberation; – a record of any further action taken; and – an announcement by the presiding officer at the beginning and the end of the meeting indicating the date and time. • A recording must include these announcements. 43
  • 44. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Record of Closed Meetings • Board must: – Preserve the certified agenda or tape recording for at least two years after the date of the meeting. – If an action involving the meeting is brought within that period, preserve the certified agenda or tape while the action is pending. 44
  • 45. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Record of Closed Meetings • In litigation in a district court involving an alleged violation of this chapter: – Court may inspect the certified agenda or tape in camera; – Court may admit all or part of the certified agenda or tape as evidence, on entry of a final judgment; and – Court may grant legal or equitable relief it considers appropriate, including an order to make the certified agenda or tape of any part of a meeting that was required to be open under this chapter available to the public . 45
  • 46. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Record of Closed Meetings • The certified agenda or tape of a closed meeting is available for public inspection and copying ONLY under a court order 46
  • 47. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 VIOLATIONS OF THE ACT 47
  • 48. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Enforcement and Remedies; Criminal Violations • An action taken by a governmental body in violation of the Act is voidable. • An interested person, including a member of the news media, may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Act by members of a governmental body. – The court may assess costs of litigation and reasonable attorney fees incurred by a plaintiff or defendant who substantially prevails in an action. – In exercising its discretion, the court shall consider whether the action was brought in good faith and whether the conduct of the governmental body had a reasonable basis in law. 48
  • 49. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Enforcement and Remedies; Criminal Violations • A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter. • An offense is a misdemeanor punishable by: – a fine of not less than $100 or more than $500; – confinement in the county jail for not less than one month or more than six months; or – both the fine and confinement. 49
  • 50. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Enforcement and Remedies; Criminal Violations • Closed Meeting Without Certified Agenda or Tape Recording; Offense; Penalty – A member of a governmental body commits an offense if the member participates in a closed meeting of the governmental body knowing that a certified agenda of the closed meeting is not being kept or that a tape recording of the meeting is not being made. – Violation is a Class C misdemeanor. • Up to $500 fine
  • 51. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Enforcement and Remedies; Criminal Violations • Disclosure of Certified Agenda or Tape Recording of Closed Meeting; Offense; Penalty; Civil Liability – An individual, corporation, or partnership that without lawful authority knowingly discloses to a member of the public the certified agenda or tape recording of a meeting that was lawfully closed to the public under this chapter: • commits an offense; and • is liable to a person injured or damaged by the disclosure for: – actual damages, including damages for personal injury or damage, lost wages, defamation, or mental or other emotional distress; – reasonable attorney fees and court costs; and – at the discretion of the trier of fact, exemplary damages.
  • 52. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Enforcement and Remedies; Criminal Violations • Disclosure of Certified Agenda or Tape Recording of Closed Meeting; Offense; Penalty; Civil Liability – An unauthorized disclosure is a Class C misdemeanor. – It is a defense to prosecution that: • the defendant had good reason to believe the disclosure was lawful; or • the disclosure was the result of a mistake of fact concerning the nature or content of the certified agenda or tape recording.
  • 53. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 15 MINUTE BREAK! 53
  • 54. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 MEETING LEADERSHIP The presiding officer 54
  • 55. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 WSC Board • Maximum of 21 Board Members • 2 or 3 year terms • Bylaws Establish Details 55
  • 56. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 WSC Board • Board of directors required to elect: – President and – Secretary • Board of directors may elect” – one or more vice presidents, – treasurer, and – other officers and assistant officers as considered necessary. • Any two or more offices, other than the offices of president and secretary, may be held by the same person. 56
  • 57. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 WSC Board • President or Board may call a meeting – Bylaws may authorize another person to call meetings • President, Secretary or other person calling the meeting must give notice of meeting 57
  • 58. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Water Districts • Composition of board varies by type of District (most 5 members, SUDs up to 11 members) • Election to 4-year terms (3-year terms for SUDs) • Vacancies (most filled by Board appointment) 58
  • 59. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Water Districts • Board required to elect: – President – Vice-president – Secretary, and – Any other officers or assistant officers as the board may deem necessary. 59
  • 60. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Water Districts • President’s duties: – chief executive officer of the district – presides at all meetings of the board – shall execute all documents on behalf of the district • unless the board by resolution authorizes the general manager or other employee of the district to execute a document or documents on behalf of the district. 60
  • 61. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Water Districts • Vice-president shall act as President in case of the absence or disability of the President. • Secretary is responsible for seeing that all records and books of the district are properly kept and may attest the President's signature on documents. 61
  • 62. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 A RECIPE FOR GOOD LEADERSHIP The Making of a President 62
  • 63. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Key Ingredients • Honest and Trustworthy • Able to Delegate • Able to Communicate Clearly • Commited to the Organization • Maintain a Positive Attitude • Creative Problem Solver • Empathetic Listener • Confident Decision Maker • Inspirational Vision 63
  • 64. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 DECORUM Board Member and Public participation 64
  • 65. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Public Participation • According to the Attorney General, “the Open Meetings Act (the “Act”) was adopted to help make governmental decision-making accessible to the public. ” • From the 2016 Edition of the Open Meetings Handbook 65
  • 66. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Public Participation • The Public DOES NOT have a right to speak unless specifically called for in statute. • HOWEVER, the Public DOES want to be able to let you know what they think. • Consider providing “Public Comment” item on Agenda. • REMEMBER … 66
  • 67. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Authority to Address Items Not on the Agenda • If a topic is raised by board members or the general public, the governing body has four options: 1. respond with a statement of specific factual information or recite the governmental body’s existing policy on that issue; 2. direct the person making the inquiry to visit with staff about the issue; 3. offer to place the item on the agenda for discussion at a future meeting; OR 4. offer to post the matter as an emergency item IF it meets the criteria for an emergency posting. 67
  • 68. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Public participation • Open Meetings Act provides: – Right to notice of topics – Right to attend open sessions • Good Practices – Allow Public Comments – Have clearly audible deliberations – Remember that conflict WILL happen – Maintain respectful interaction with Public (and other Board Members) 68
  • 69. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 BOARD MEMBER ISSUES 69
  • 70. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Ethical Issues for Board Members • Fiduciary Duties • Conflicts of Interest • Nepotism • Dual Office Holding/Incompatibility 70
  • 71. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Fiduciary Duties • Position of Trust or Confidence • Relationship is One-Sided • Duty of Care – Participate and exercise independent judgment • Duty of Loyalty – Put organization before own interests • Duty of Obedience – Be faithful to organization’s mission 71
  • 72. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Fiduciary Duties • State Law requires a director to discharge the director's duties, including duties as a committee member, – in good faith, – with ordinary care, and – in a manner the director reasonably believes to be in the best interest of the corporation. 72
  • 73. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Conflict of Interest • Common Law – Public Officials If a public official directly or indirectly has a pecuniary interest in a contract, no matter how honest he may be, and although he may not be influenced by the interest, such a contract so made is violative of the spirit and letter of our law, and is against public policy. Meyers v. Walker 73
  • 74. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Conflict of Interest • A local public official commits an offense if the official knowingly: – violates Local Government Code Section 171.004 (Next Slide) – acts as surety for a business entity that has work, business, or a contract with the governmental entity; or – acts as surety on any official bond required of an officer of the governmental entity. • An offense under this section is a Class A misdemeanor – punishable by up to 1 year in jail and/or up to $4000 penalty. 74
  • 75. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Conflict of Interest • If a local public official has a substantial interest in a business entity or in real property, the official must: – file an affidavit stating the nature and extent of the interest before a vote or decision on any matter involving the business entity or the real property, and – abstain from further participation in the matter if: • the action on the matter will have a special economic effect on that business entity that is distinguishable from the effect on the public; or • it is reasonably foreseeable that an action on the matter will have a special economic effect on the value of the property that is distinguishable from its effect on the public. 75
  • 76. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Conflict of Interest • A person has a substantial interest in a business entity if: – the person owns 10 percent or more of the voting stock or shares of the business entity or owns either 10 percent or more or $15,000 or more of the fair market value of the business entity; or – funds received by the person from the business entity exceed 10 percent of the person's gross income for the previous year. • A person has a substantial interest in real property if the interest is an equitable or legal ownership with a fair market value of $2,500 or more. • Applies to Spouse, Child and Parent Interests Too. 76
  • 77. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Conflict of Interest • Local public officials may serve as a member of the board of directors of private, nonprofit corporations if they receive no compensation or other remuneration from the nonprofit corporation or other nonprofit entity. • Conversely, a board member of a nonprofit that receives compensation or remuneration may not serve as a local public official. 77
  • 78. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Nepotism • Public official may not appoint an individual to a position that is compensated from public funds or fees of office if: – related to the public official within a degree described by Texas Government Code, Section 573.002; or – the public official holds the appointment or confirmation authority as a member of a state or local board, the legislature, or a court and the individual is related to another member of that board, legislature, or court within a degree described by Section 573.002. 78
  • 79. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Nepotism • Except as provided by Texas Government Code, Section 573.043, this chapter applies to relationships within the third degree by consanguinity or within the second degree by affinity. 79
  • 80. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Nepotism Consanguinity Civil Law Degrees Of Relationship 1st 2nd 3rd 4th Officer Child Grandchild Great Grandchild Great Great Grandchild Parent Sibling Niece/Nephew Grand Niece/Nephew Grandparen t Great Grandparent Great Great Grandparent Aunt/Uncle Great Aunt/Uncle 1st Cousin 80
  • 81. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Nepotism Affinity Civil Law Degrees Of Relationship 1st 2nd 3rd Officer Spouse Spouse’s Sibling Child of Spouse’s Sibling Spouse’s Parent Spouse’s Grandparent Spouse’s Great Grandparent Child’s Spouse Parent of Child’s Spouse Grandparent of Child’s Spouse Sibling’s Spouse Parent of Sibling’s Spouse Spouse’s Aunt/Uncle 81
  • 82. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 SEVEN STEPS TO AN EFFECTIVE MEETING Advice from Forbes – Leadership Forum February 5, 2014 Article by Neil Hartman 82
  • 83. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Seven Steps to an Effective Meeting I. Make your objective clear. A meeting must have a specific and defined purpose. Before you send that calendar invite, ask yourself: • What do I seek to accomplish? • Are you alerting people to a change in management or a shift in strategy? • Are you seeking input from others on a problem facing the company? • Are you looking to arrive at a decision on a particular matter? • Standing meetings with vague purposes, such as “status updates,” are rarely a good use of time. 83
  • 84. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Seven Steps to an Effective Meeting II. Consider who is invited. When you’re calling a meeting, take time to think about who really needs to be there. • If you’re announcing a change, invite the people who are affected by the announcement. • If you’re trying to solve a problem, invite the people who will be good sources of information for a solution. • When people feel that what’s being discussed isn’t relevant to them, or that they lack the skills or expertise to be of assistance, they’ll view their attendance at the meeting as a waste of time. 84
  • 85. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Seven Steps to an Effective Meeting III. Stick to your schedule. Create an agenda that lays out everything you plan to cover in the meeting, along with a timeline that allots a certain number of minutes to each item, and email it to people in advance. • Once you’re in the meeting, put that agenda up on a screen or whiteboard for others to see. This keeps people focused. 85
  • 86. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Seven Steps to an Effective Meeting IV. Take/Allow no hostages. Nothing derails a meeting faster than one person talking more than his fair share. • If you notice one person monopolizing the conversation, call him out. Say, “We appreciate your contributions, but now we need input from others before making a decision.” Be public about it. • Establishing ground rules early on will create a framework for how your group functions. 86
  • 87. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Seven Steps to an Effective Meeting V. Start on time, end on time. If you have responsibility for running regular meetings and you have a reputation for being someone who starts and ends promptly, you will be amazed how many of your colleagues will make every effort to attend your meetings. • People appreciate it when you understand that their time is valuable. • Another note on time: Do not schedule any meeting to last longer than an hour. Sixty minutes is generally the longest time workers can remain truly engaged. 87
  • 88. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Seven Steps to an Effective Meeting VI. Ban technology. The reality is that if people are allowed to bring cell phones or tablets into the meeting, they won’t be focusing on the meeting or contributing to it. • Instead, they’ll be emailing, surfing the web, or just playing around with their technology. • Eyes up here, please. 88
  • 89. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Seven Steps to an Effective Meeting VII. Follow up. It’s quite common for people to come away from the same meeting with very different interpretations of what went on. To reduce this risk, email a memo highlighting what was accomplished to all who attended within 24 hours after the meeting. Document the responsibilities given, tasks delegated, and any assigned deadlines. That way, everyone will be on the same page. 89
  • 90. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Seven Steps to an Effective Meeting • Meetings truly can be valuable and productive. • You just have to take the steps to make them that way. 90
  • 91. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 RESOURCES 91
  • 92. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Helpful Websites • Texas Rural Water Association – www.trwa.org • Texas Attorney General – www.texasattorneygeneral.gov • Texas Legislature – http://www.legis.state.tx.us • Forbes – Leadership Forum – http://www.forbes.com/leadership 92
  • 93. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 Laws that Apply to Districts and WSCs • Water Code, Chapter 13 (Utilities) – http://www.statutes.legis.state.tx.us/Docs/WA/htm/WA.13.htm • Water Code, Chapter 49 (General Law for Water Districts) – http://www.statutes.legis.state.tx.us/Docs/WA/htm/WA.49.htm • Water Code, Chapter 65 (Special Utility Districts) – http://www.statutes.legis.state.tx.us/Docs/WA/htm/WA.65.htm • Water Code, Chapter 67 (Water Supply Corporations) – http://www.statutes.legis.state.tx.us/Docs/WA/htm/WA.67.htm • Business Organizations Code, Chapter 22 (NonProfit Corporations) – http://www.statutes.legis.state.tx.us/Docs/BO/htm/BO.22.htm • Government Code, Chapter 551 (Open Meetings Act) – http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.551.htm • Government Code, Chapter 552 (Public Information Act) – http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.552.htm 93
  • 94. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2017 QUESTIONS? John Carlton (512) 614-0901 john@carltonlawaustin.com