Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Mr. Ernie W. Tullis opinion NO. ``-578
Supreme Court Building
Administrator
P. 0. BOX 12546
Texas Employment Commission Re: Whether Texas Employment
Austin. TX. 78711. 2546
5121475.2501 T.E.C. Building commission must meet in an
Telex !310/674~1367 Austin, Texas 78778 0pl?* meeting to consider
Telecopier 51214750266 unemployment insurance benefit
cases
1607 Main St., Suite 1400
Dallas. TX. 75201-4709 Dear Mr. Tullis:
2141742.6944
You ask:
4624 Alberta Ave., Suite 160
El Paso, TX. 799052793
Does the Open Meetings Law require the [Texas
91515333464 Employment] Commission to meet in an open meeting
when the Commission is considering and voting on
cases involving unemployment insurance benefits
1220 Dallas Ave.. Suite 202
pursuant to the provisions of the Texas
Houston, TX. 77002.6966
7131650-0666
Unemployment Compensation Act (article 5221b-4,
V.T.C.S.)?
606 Broadway. Suite 312 Articles 5221b-1 et seq., V.T.C.S., create the three-member Texas
hbbock, TX. 79401-3479
Employment Commission and establish its duties. One of its duties is
6061747-5236
to act as the final administrative appellate review body in
unemployment insurance benefit cases. V.T.C.S. art. 5221b-4. We
4309 N. Tenth, Suite B understand that the commission reviews approximately 100 cases each
McAllen, TX. 76501-1685 week.
5121662.4547
The answer to your question depends upon whether, when the
200 Main Plaza. Suite 400 commission convenes to review unemployment insurance benefit cases, it
San Antonio, TX. 76205.2797 engages in a "meeting" within the meaning of the Open Meetings Act,
5121225.4191 article 6252-17, V.T.C.S.. and if it does, whether the requisite
authority exists for said meeting to be held behind closed doors. The
An Equal OpportunityI Open Meetings Act provides in pertinent part:
Affirmative Action Employer
Section 1. As used in this Act:
(a) 'Meeting' means any deliberation between a
quorum of members of a governmental body at which
any public business or public policy over which
the governmental body has supervision or control
p. 2137
Mr. Ernie W. Tullis - Page 2 0~5 78)
is discussed or considered, or at which any formal
action is taken....
(b) 'Deliberation' means a verbal exchange
between a quorum of members of a governmental body
attempting to arrive at a decision on any public
business.
Cc) 'Governmental body' means any...
commission....
(d) 'Quorum' unless otherwise defined by
constitution, charter, rule or law applicable to
such governing body, means a majority of the
governing body.
Unemployment insurance benefit cases are certainly "public
business." Thus, given the foregoing definitions, we conclude that:
(1) the Texas Employment Commission is a "commission"; (2) two or
three members of this commission constitute a "quorum"; (3) when a
quorum of the commission sits as the final administrative appellate
review body in an unemployment insurance benefit case and discusses
the case, it engages in a "deliberation"; and (4) the gathering at
which such deliberation takes place is a "meeting." Accordingly, when
the commission convenes to consider and vote upon cases involving
unemployment insurance benefits pursuant to article 5221b-4, V.T.C.S.,
it engages in a "meeting" which is subject to the requirements of the
Open Meetings Act.
Section 2(a) of the Open Meetings Act provides:
Except as otherwise provided in this Act or
specifically permitted in the Constitution, every
regular, special, or called meeting or session of
every governmental body shall be open to the
public; and no closed or executive meeting or
session of any governmental body for any of the
purposes for which closed or executive meetings or
sessions are hereinafter authorized shall be held
unless the governmental body has first been
convened in open meeting or session for which
notice has been given as hereinafter provided and
during which open meeting-
officer has publicly announced that a closed or
executive meeting or session will be held and
identified the section or sections under this Act
authorizing the holding of such closed or
executive session. (Emphasis added).
p. 2138
Mr. Ernie W. Tullis - Page 3 (MW-578)
Section 4(a) of the act provides:
Any member of a governing body who wilfully calls
or aids in calling or organizing a special or
called meeting or session which is closed to the
public, or who wilfully closes or aids in closing
a regular meeting or session to the public, or who
wilfully participates in a regular, special, or
called meeting or session which is closed to the
public where a closed meeting is not permitted by
the provisions of this Act, shall be guilty of a
misdemeanor and on conviction is punishable by a
fine of not less than $100 nor more than $500 or
imprisonment in the county jail for not less than
one month nor more than six months, or both.
(Emphasis added).
Section 2(a) unequivocally provides that a governmental body may
conduct a closed meeting only if the Open Meetings Act itself or the
constitution authorizes it to do so. This section further provides
that the presiding officer of a governmental body which is about to
adjourn into executive session must publicly identify the specific
provision which authorizes such session. Section 4(a) imposes
criminal penalties upon members of governmental bodies who wilfully
call, aid in calling, or participate in a closed meeting "where a
closed meeting is not permitted by the provisions of this Act."
(Emphasis added).
We have found no provision of the Texas Constitution or the Open
Meetings Act which specifically authorizes the Texas Employment
Commission to convene in closed session to hear unemployment insurance
benefit cases. You have not directed our attention to any such
provision. In light of the concerns which you voiced in your letters
to this office, however, we assume that you are in effect asking
whether implied authority to conduct closed hearings in these cases
exists. In one letter, you expressed concern about the fact that:
in some of these cases, very personal and
confidential, and possibly embarrassing
information is disclosed regarding claimants and
employers, which should not be made available to
the general public.
We are cognizant of this problem. As we have noted, however, the
Open Meetings Act simply does not permit closed meetings of
governmental bodies except where such meetings are specifically
authorized, and no such authority exists in this instance.~ The law is
settled that where statutory language is plain, words will not be
added on the theory that they were inadvertently omitted. Gaddy v.
p. 2139
.
Mr. Ernie W. Tullis - Page 4 (MW-578)
First National Bank of Beaumont, 283 S.W. 472 (Tex. 1926); State V.
Millsap, 605 S.W.2d 366 (Tex. Civ. App. - Beaumont 1980, no writ).
Thus, we lack authority to read into the Open Meetings Act an implied
exception which would authorize the commission to convene in closed
session to hear unemployment insurance benefit cases. To paraphrase
the old maxim that "[i]f Parliament does not mean what it says, it
must say so," quoted in Brazes River Authority v. City of Graham, 354
S.W.2d 99, 109 (Tex. 1961). if the Texas Legislature did not really
mean that closed meetings of governmental bodies may be held only
where specifically authorized, it must say so. In this context, we
note that the Open Meetings Act does authorize medical boards and
committees to meet in closed session to consider the individual
medical and psychiatric records of an applicant for a disability
benefit from a public retirement system. V.T.C.S. art. 6252-17,
§2(0). This shows that the legislature has devoted attention to the
matter of executive sessions to consider certain types of records and
other information.
We therefore conclude that meetings which the Texas Employment
Commission holds to review unemployment insurance benefit cases must
be open to the public. Unless some provision of the Open Meetings Act
or the constitution specifically authorizes the commission to adjourn
into executive session during such meetings, it may not do so. The
language in Attorney General Opinion H-223 (1974) and other opinions
which suggests otherwise is disapproved. See e.g., Attorney General
Opinions H-1154 (1978); H-780 (1976).
In closing, we make three observations regarding your concerns
about divulging information about claimants and employers which might
be personal and embarrassing. First, the scope of constitutional and
common-law privacy is quite narrow. See Open Records Decision Nos.
268 (1981); 262, 260. 258, 257 (1980).In all likelihood, little of
the information discussed in these cases would actually be protected
by either right of privacy. Second, the commission may protect
privacy rights which do exist by avoiding discussion of information
which is so protected. Third, with respect to your reference to
Attorney General Opinion H-626 (1975). which held that certain
information in the commission's files is within subsection (e) of
article 5221b-9, V.T.C.S., we note that even if we assume that that
decision is correct in terms of what information is embraced by this
subsection -- a question which is not at issue here -- the subsection
does not absolutely preclude public disclosure of the information
which it covers. Subsection (e) states in part:
Information thus obtained or otherwise secured
shall not be published or be open to public
inspection (other than to public employees in the
performance of their public duties) except as the
p. 2140
Mr. Ernie W. Tullis - Page 5 (MW-578)
Commission may deem necessary for the proper
administration of this Act. (Emphasis added).
Thus, the commission may, during a hearing in an unemployment
insurance benefit case, discuss any of the information which is
embraced by subsection (e) without violating any "right of
confidentiality" afforded by that subsection.
SUMMARY
The Texas Employment Commission must meet in
open session to hear unemployment insurance
benefit cases pursuant to article 5221b-4,
V.T.C.S.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Lance Beversdorff
Jon Bible
Rick Gilpin
Jim Moellinger
p. 2141