Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas December 22, 1981 MARK WHITE Attorney General Supreme Court Building Honorable Jim Mapel Opinion No. m-417 P. 0. Box 12546 Criminal District Attorney Austin. TX. 76711 Brazoria County Courthouse Re: Application of open 5121475-2501 Angleton, Texas 77515 Meetings Law to joint execu- Telex 9101674-1367 tive session of two political Telecopier 51214750266 subdivisions 1607 Main St., Suite 1400 Dear Mr. Mapel: Dallas. TX. 75201 21417428944 You have requested our opinion regarding the applicability of the Open Meetings Act, article 6252-17, V.T.C.S., to a joint executive 4624 Alberta Ave.. Suite 160 session of two political subdivisions. You state that in May and June El Paso, TX. 79905 1981, the governing bodies of the Brazes River Harbor Navigation 9151533-3464 District and the city of Quintana met jointly to discuss the formation of an industrial district, and, in connection therewith, the 1220 Dallas Ave., Suite 202 annexation and deannexation of certain land. The respective bodies Houston, TX. 77002 each posted notice of their individual meetings and then retired to a 713/650-0666 joint executive session. A quorum of each body was present at the joint meeting. You ask: 606 Broadway, Suite 312 Lubbock, TX. 79401 1. Can the governing bodies of two political 6061747-5236 subdivisions discuss the formation of an industrial district which would involve the deannexation of lands owned by one of the 4309 N. Tenth, Suite B subdivisions in a joint executive session? McAllen, TX. 76501 5121062-4547 2. Can the governing bodies of two political subdivisions discuss the annexation by one 200 Main Plaza, Suite 400 subdivision of land owned by or under the control San Antonio, TX. 76205 of the other? 5121225.4191 3. Does the annexation or deannexation of An Equal Opportunity/ land amount to a 'land acquisition' and therefore Affirmative Action Employer qualify as an exemption under the Tqxas Open Meetings Law? From the facts you have described, it would appear that the Open Meetings Act was applicable to the joint meetings, since a quorum of each body was present. See Attorney General Opinion MW-28 (1979). Section 2(a) of the statute makes every "regular, special, or called meeting or session" open to the public "except as otherwise provided p. 1422 Honorable Jim Mapel - Page 2 (MW-417) in this Act or specifically permitted in the Constitution." The only exception listed in section 2 which might be applicable to the situation you have described is section 2(f), which provides: The public may be excluded from that portion of a meeting during which a discussion is had with respect to the purchase, exchange, lease, or value of real property, negotiated contracts for prospective gifts or donations to the state or the governmental body, when such discussion would have a detrimental effect on the negotiating position of the governmental body as between such body and a third person, firm or corporation. It does not appear that a discussion of the formation of an industrial district or the annexation or deannexation of land could reasonably be construed to constitute a discussion of "the purchase, exchange, lease, or value of real property." We need not decide this issue, however, because you have not indicated how public discussion of the described matters would have a detrimental effect on either governmental body's negotiating position with respect to a third party. As a result, the Brazes River Harbor Navigation District and the city of Quintana were not authorized to meet jointly in executive session, under the circumstances you have indicated, on the basis of section 2(f). A brief from the city of Quintana suggests that the litigation exception authorized the district and town to meet in executive session, since the discussions were intended to avoid litigation between them. Section 2(e) of article 6252-17, V.T.C.S., provides as follo"s: consultations between a gover``~ntalPr``ad:eand its attorney are not permitted except in those instances in which the body seeks the attorney's advice with respect to pending or contemplated litigation, settlement offers, and matters where the duty of a public body's counsel to his client, pursuant to the Code of Professional Responsibility of the State Bar of Texas, clearly conflicts with this Act. This provision gives public bodies,a right to privileged communication on litigation with their counsel and it also recognizes that the Code of Professional Responsibility would under some circumstances prohibit an attorney from consulting publicly with his client. Attorney General Opinion M-1261 (1972). -see Code of Professional Responsibility, Canon 4. In the present case, the two political subdivisions contemplated suing one another. Neither party consulted privately with its attorney but did so in the presence of its potential adversary, the p. 1423 Honorable Jim Mapel - Page 3 &W-417) party from whom it would normally conceal its intentions and strategy. We do not believe section 2(e) applies to this discussion. It may not . . . be invoked on these facts to exclude the public from the discussion. SUMMARY The Brasos River Harbor Navigation District and the city of Quintana were not authorized to meet jointly in executive session, under the circumstances described, on the basis of section 2(e), 2(f) t or any other exception to the Open Meetings Act, article 6252-17, V.T.C.S., for the purpose of discussing the formation of an industrial district, and, in connection therewith, the annexation and deannexation of certain land. w+?xg MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR. First Assistant Attorney General RICHARD E. GRAY III Executive Assistant Attorney General Prepared by Rick Gilpin Assistant Attorney General APPROVED: OPINION COMMITTEE Susan L. Garrison, Chairman Jon Bible Rick Gilpin Jim Moellinger Bruce Youngblood p. 1424