Untitled Texas Attorney General Opinion ( 2000 )

OFFICE OF THE ATTORNEY GENERAL. STIITE OF TEXAS
JOHN CORNYN
November 30,200O
The Honorable Jeff Wentworth Opinion No. JC-03 13
Chair, Committee on Nominations
Texas State Senate Re: Whether a component committee of the
P.O. Box 12068 Edwards Aquifer Authority is subject to the Qpen
Austin, Texas 7871 l-2068 Meetings Act when a majority of the members of
the Authority’s Board attends a meeting of the
committee (RQ-0262-K)
Dear Senator Wentworth:
You have requested our opinion as to whether a component committee of the Edwards
Aquifer Authority (the “Authority”) is subject to the Open Meetings Act, chapter 551 of the
Government Code, when a majority of the voting members of the Authority’s Board is present at a
meeting of the committee. For the reasons indicated below, we conclude that it is, under such
circumstances, subject to the Act.
The Board of the Edwards Aquifer Authority (“the Board”) is composed of seventeen
directors, fifteen ofwhom are elected officials entitled to vote on matters before the Board. See Act
of May 29,1995,74th Leg., R.S., ch. 261, § 1,1995 Tex. Gen. Laws 2505,2506 (amending Act of
May 30, 1993,73d Leg., R.S., ch. 626, 5 1.09, 1993 Tex. Gen. Laws 2350,2356). The remaining
two directors are appointed officials who serve as nonvoting members, See id. A quorum is
constituted by eight members who are entitled to vote. See id.
You explain that the Authority has eight standing committees, composed ofboth voting and
nonvoting members, whose function is to make recommendations to the full Board.’ “[Elach
committee is organized to include less than eight voting members.” Request Letter, note 1, at 2.
You assert that, “[a]lthough the Edwards Aquifer Authority is subject to the Texas Qpen Meetings
Act, the committee meetings of the Board are not required to be open meetings as long as a quorum
of the Board is not present. The practice of the Edwards Aquifer Authority is not to appoint a
quorum of the voting members of the Board to a committee.” Id. We assume, for purposes of this
opinion, that on the basis of both their composition and their function, these committees are not
themselves subject to the Qpen Meetings Act. See Tex. Att’y Gen. Op. No. JC-0060 (1999) at 5;
see also TEX. WATER CODE ANN. $36.064(b) (Vernon 1999).
‘See Letter from Honorable Jeff Wentworth, Chair, Committee on Nominations, to Honorable JohnComyn,
Texas Attorney General at 2 (July 20,200O) (on tile with Opinion Committee) [hereinafterRequest Letter].
The Honorable Jeff Wentworth - Page 2 (X-0313)
You indicate that “[i]n some instances, one or more members of the Board who are not
members of a committee may attend a committee meeting in order to receive the benefit of the staffs
presentation of an issue, the discussion between committee members and staff, and the comments
of the public attending the meeting. This may lead to the presence of a quorum of the voting
members of the Board at a particular committee meeting.” Request Letter, supra note 1, at 2. You
ask whether this resulting presence of a quorum brings the committee’s meeting within the ambit
of the Open Meetings Act.
The Open Meetings Act defines “meeting,” in relevant part, as follows:
(A) a deliberation between a quorum of a governmental body, or
between a quormn of a governmental body and another person,
during which public business or public policy over which the
governmental body has supervision or control is discussed or
considered or during which the governmental body takes formal
action; or
(B) except as otherwise provided by this subdivision, a gathering:
(i) that is conducted by the governmental body or
for which the governmental body is responsible;
(ii) at which a quorum of members of the
governmental body is present;
(iii) that has been called by the governmental body;
and
(iv) at which the members receive information from,
give information to, ask questions of, or receive
questions from any third person, including an
employee of the governmental body, about the public
business or public policy over which the
governmental body has supervision or control. The
term does not include the gathering of a quorum of a
governmental body at a social function.
TEX. GOV'T CODE ANN. $55 l.OOl(4) (Vernon Supp. 2000). “Deliberation” is defined as “a verbal
exchange during a meeting between a quorum of a governmental body, or between a quorum of a
governmental body and another person, concerning an issue within the jurisdiction of the
governmental body or any public business.” Id. 5 551.001(2).
The Honorable Jeff Wentworth - Page 3 (X-0313)
Under the first definition of “meeting,” the situation you describe constitutes a “meeting”
when a quorum is present and when one or more members of the Board, including committee
members, engages in a deliberation with any other member of the Board or committee or with any
other person about public business or policy over which the Board has supervision or control. See
id. 5 55 1.001(4)(A). Note that the visiting members of the Board do not have to participate in the
deliberation for the statute to apply. Their mere presence, which results in a quorum, is sufficient
to bring the meeting within the Open Meetings Act as long as any voting member of the committee
participates in a verbal exchange about public business or policy over which the Board has
supervision or control. See Tex. Att’y Gen. Op. No. JC-203 (2000) at 3 (citing Bexar Medina
Atascosa Water Dist. v. Bexar Medina Atascosa Landowners’ Ass’n, 2 S.W.3d 459, 462 (Tex.
App.-San Antonio 1999, pet. denied) (“deliberations took place at informational gathering ofwater
district board with landowners, where one board member asked question and another board member
answered questions, even though board members did not discuss business among themselves”).
The second definition of “meeting” is in some respects broader than the first because it does
not require any sort of deliberation between Board members. It thus may apply to a situation in
which the meeting’s only purpose is for members ofthe Board to “receive information from” a “third
person,” including staff. TEX. GOV’T CODE ANN. 5 551.001(4)(B)(iv) (Vernon Supp. 2000). But
this definition of “meeting” requires, inter alia, that the gathering be one “that is conducted by the
governmental body or for which the governmental body is responsible,” and that the gathering “has
been called by the governmental body.” Id. 5 551.001(4)(B)(i), (iii). Because the Authority’s Board
appoints the component committees, we have no difficulty in concluding that such a gathering is one
“for which the governmental body is responsible.” See id. 4 551,001(4)(B)(i).
We also conclude that the gathering of which you inquire “has been called by the
governmental body,” i.e., the Board of the Edwards Aquifer Authority. The second definition of
“meeting” was enacted in 1999 in part to eliminate the perceived abuse of “staff briefings.” See
HOUSECOMM. ONSTATEAFFAIRS,BILLANALYSIS,T``. H.B. 156,76thLeg., R.S. (1999). Were we
to conclude that a committee ofthe Board rather than the Board itselfwas the agent responsible for
the gathering in the circumstances you describe, a governmental body could re-establish the staff
briefing exception merely by appointing a committee to summon members ofthe governmental body
for such briefings. Furthermore, the gathering of which you inquire has in the larger sense been
“called” by the Authority’s Board. The committee is wholly a creature of the Board; it is not
independently subject to the Open Meetings Act; and the presence of a quorum of the Board at one
of its gatherings is the event that triggers the application of the Act.
We conclude that a component committee of the Board of the Edwards Aquifer Authority
is subject to the Open Meetings Act under the following circumstances: the committee meeting is
attended by additional voting members of the Authority’s Board so that a quorum of the Board is
present, and the members of the Board “receive information from, give information to, ask questions
of, or receive questions from any third person, including an employee of the governmental body,
about the public business or public policy over which the governmental body has supervision or
control.” See TEX. GOV’T CODE ANN. § 551,001(4)(B)(iv). Under these circumstances, the
The Honorable Jeff Wentworth - Page 4 (JC-0313)
committee is subject to the Open Meetings Act regardless ofwhether the committee members or any
attending Board members engage in a deliberation with one another or any third party.
SUMMARY
A component committee of the Board of the Edwards Aquifer
Authority is subject to the Open Meetings Act when a majority of the
voting members of the Authority’s Board, including the committee
members, is present at a meeting of the committee, and the Board
members “receive information from, give information to, ask
questions of, or receive questions from any third person, including an
employee of the governmental body, about the public business or
public policy” over which the Edwards Aquifer Authority has
authority, regardless ofwhether the committee members or any Board
members engage in a deliberation as defined by Government Code
section 551.001(2). TEX. GOV’T CODE ANN. 5 551.001 (Vernon
supp. 2000).
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVJN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee