Untitled Texas Attorney General Opinion ( 1980 )

The’ Attorney General. of Texas
January 25, 1980
MARK WHITE
Attorney Genecal
Honorable Joe Resweber Opinion Bo. Mw-12 9
Harrk County Attornei
1001Preston, Suite 634 Re: Whether a govemmenlul Sodi
Houston, Texas 77002 may meet in closed session to
discuss the employment of (iti
engineering, . architectmu or
consultant firm.
Dear Mr. Besweber:
You have asked:
Can the Commissioners Court, puauant to provisions
Of article 6252-17, Vernon’s Ann. Civ. St., meet in
closed session to discuss the employment of an
engineering, architectural, or consultant firm whose
professional services are to be provided to the county
by Specific, written contract?
The
. . Texas’ Open Meetings. Act, . article.._ 6252-17, V.T.C.S., require;
commlssioners oourtx to meet in sessions which are open to the public.
Various exceptions to the act permit governmental bodies to close portion,.
Df meetings. The only exception which is relevant to your inquiry is fzuud 1.7
section 2(g) of the act. It provides:
Nothing in thk act shall be construed to req*Are
governmental bodies to hold meetings open to the
public in cases involving the appointment, employ-
ment, evaluation, reassignment, duties, ~discipline, or
dismissal of a public officer or employee or to hear
complaints ap charges egainst such officer or
em lo ee unless such officer or employeects u
&i&&ring. (Emphasised).
By its terms, section 2(g) applies only to discussions involving ofS~ce~*si;:
employees. Engineeri,ng,‘~nrchitectural or consultant firms would, however,
be classified as independent contractors since they would undertake to dit L
specificpiece of work for the county using their own means end methods
without submitting themselves to the control of the county in respect to ull
Honorable Joe Resweber i Page TWO (Nw-129)
the details of the work. Industrial lndemnity Exchange v. Southard, 160 S.W.ZG905, SSy
(Tex. 1942); Restatement (second) of Agency Sg 2, 229 (1957). An independent contractor
k not an officer a employee. Attorney General Opinions H-1304 (1978); C-307 (1964i;
V-1527 tl!%Z); V-343, V-303 (1947).
The Texas Open Meetings Act k required to be liberally coustrued to cfiect Its
purpose wtiich k to assure that the public has an opportunity to be .informed concr.mii~g
the transaction of public business. Tovah lnd. Sch. Dist. V. Pecos-Barstow lnd hi. Dis:..
466 S.W.2d 377 (Tex. Civ. App. - San Antonio 1971,no writ). Aycordirgiy, vx believe thz’.
the Open Meetings Act does not permit a governmental body to met; in CIOSCSI s%iur. k.
dkcum the employment of an independent contractor such as an engineeri:lg, rcchhxtut~i
or consultant firm.
We note that our. conclusion k consistent with that of other states w&L IQ
considered the question. lthok Attorney General Opinion ‘No. S-1116(1976).(comncizL:.
may not meet in executive session to discuss financial respohsibility of buil%g
wntractors’who submitted bids on a project); Olclahoma Attorney General Opinion I+;.
75L702 (1975) (governmental body may not meet in executive session to dkcun s&&cl:
of an architect or lawyer or to discuss retention, dkci line or granting of privihzgti’vf
physician who was found to be an independent contractor.P
SUMMARY
A governmental body may-not. meet in closed &ssion ,to dkcum the
employment of an independent contractor such as an en@tecring,
architectural or eotwultant ftrm.
‘~ my-+-g7
MARK WHITE
Attorney General of Texas
JOHNW. FAINTER, JR.
Fit Assistant Attorney General
TED L. HARTLEY
Executive Aasiitant Attorney General
Prepared by C. R&&t Heath
Assktant Attorney General
APPROVED:
OPlNIONCOMMITTEE
C. Robert Heath, Chairman
p. 414
Honorable Joe Resweber - Page Three (MW-129)
David B. Brooks
*wgygTg
Rick Gilpin
Bruce Youngblood