Untitled Texas Attorney General Opinion ( 1999 )

OFFICE OP THE Arr0RNF.V GENERAL. ST*TE OF TEXAS
JOHN CORNYN
May 26,1999
Ms. Kimberly K. Edwards Opinion No. JC-0053
Executive Director
Texas Public Finance Authority Re: Whether a bond pricing attended by less than
300 West 15th Street, Suite 411 a quorum of the Texas Public Finance Authority
P.O. Box 12906 Board of Directors constitutes a meeting subject
Austin, Texas 7871 l-2047 to the Open Meetings Act (RQ-0016)
Dear Ms. Edwards:
You ask whether the meeting of a committee of less than a quorum of the Texas Public
Finance Authority Board of Directors (the “Board”) appointed by the Board to act on its behalf in
selling bonds pursuant to article 717q of the Revised Civil Statutes is subject to the Open Meetings
Act, TEX. GOV’T CODE ANN. ch. 55 1 (Vernon 1994 & Supp. 1999). If so, you ask whether meetings
of such committees may be held outside the state. We conclude that a pricing committee appointed
by the Board is a governmental body within the meaning of the Open Meetings Act and that its
meetings are subject to the Act. This conclusion applies to pricing committees composed of staff
or staff and board members; it is not limited to pricing committees composed of board members.
We also conclude that because the Act requires a meeting of a governmental body to be held in a
location accessible to the public, it precludes a pricing committee from meeting in an inaccessible
location, such as the office of an underwriter in another state.
We begin with a brief review of the Texas Public Finance Authority (the “Authority”) and
the nature of the committees at issue in your request. The Authority, established and governed by
the Texas Public Finance Authority Act, TEX. REV. Crv. STAT. ANN. art. 601d (Vernon Supp. 1999),
is a “public authority and body politic and corporate,” id. 5 3, authorized to issue and sell bonds on
its own behalf and on behalf of certain state agencies, see id. $5 9-9D. It is governed by the Board,
which is composed of six members appointed by the Governor with the advice and consent of the
Senate. Id. 5 4(a). A majority ofthe full membership ofthe Board constitutes a quorum. Id. § 6(b).
You inform us that the Authority is charged with issuing and selling general obligation and
revenue bonds and other obligations and is an issuer under article 717q of the Revised Civil Statutes,
Ms. Kimberly K. Edwards - Page 2 (X-0053)
Section 3 of article 717q requires a goveming body authorized to act on behalf of an issuer’ to adopt
an ordinance, order or resolution authorizing the sale of bonds and permits the governing body to
designate one or more officers or employees to act on its behalf in selling bonds. See id. art. 717q,
5 3. Section 3 provides in pertinent part:
The issuance of obligations shall be authorized by resolution,
order, or ordinance of the governing body of an issuer, which
resolution, order, or ordinance shall fix the maximum amount of
obligations to be issued or, if applicable, the maximum principal
amount which may be outstanding at any time, the maximum term
obligations issued and delivered pursuant to such authorization shall
be outstanding, the maximum interest rate to be borne by the
obligations, the manner of sale (which may be by either public or
private sale), price, form, terms, conditions, and the covenants
thereof. The resolution, order, or ordinance authorizing the issuance
of obligations may provide for the designation of a paying agent and
registrar for the obligations and may authorize one or more
designated ofleers or employees of the issuer to act on beharfof the
issuer from time to time in the selling and delivering of obligations
authorized andfrxing the dates,price, interest rates, interestpayment
periods, and other procedures as may be specified in the resolution,
order, or ordinance. Obligations may be issued in such form or such
denomination, payable at such time or times, in such amount or
amounts or installments, at such place or places, in such form, under
such terms, conditions, and details, in such manner, redeemable prior
to maturity at any time or times, bearing no interest, or bearing
interest at any rate or rates (either fixed, variable, floating, adjustable,
or otherwise, all as determined in accordance with the resolution,
.order, or ordinance providing for the issuance of the obligations,
which resolution, order, or ordinance may provide a formula, index,
contract, or any other arrangement for the periodic determination of
interest rates), not to exceed the maximum net effective interest rate
allowed by law and may be signed or otherwise executed in such
manner, with manual or facsimile signatures, and with or without a
seal, all as shall be specified by the governing body of the issuer in
the resolution, order, or ordinance authorizing the issuance of the
obligations.
Id. (emphasis added).
‘“Governing body” in article 717q means “the board, council, commission, commissioners court, or other
designated body (acting either individually or jointly, when authorized by law) authorized by law to issue bonds for or
on behalf of an issuer.” TEX. E&v. CIV. STAT. ANN. art. 717q, g l(7) (Vernon Supp. 1999).
Ms. Kimberly K. Edwards - Page 3 (X-0053)
You explain that when the Board sells bonds pursuant to a negotiated sale (as opposed to a
competitive sale, for which bids are opened in a public meeting), it appoints one or more of its
offtcers or employees under the authority of section 3 “to serve as a pricing committee to negotiate
the final terms and conditions of the bond sale within the parameters established in the bond
resolution and [to] complete the sale by signing a bond purchase contract.” Letter from
Ms. Kimberly K. Edwards, Executive Director, Texas Public Finance Authority, to Honorable
John Comyn, Texas Attorney General 2 (Feb. 1,1999) (on file with Opinion Committee) [hereinafter
“Request Letter”]. “[Alfter the Board has established the general parameters for the pricing and
other terms and conditions of the bonds in the bond resolution, which it adopts in a public meeting,
the exact, technical features ofthe bonds can be established through negotiations between the issuer
and the underwriter to maximize investor demand on the day of pricing and thus lower interest
rates.” Id. You state that “[a]hhough the pricing committee exercises some discretion with respect
to fixing the final terms of the sale, the discretion is limited to action within the provisions of the
bond resolution” adopted by the Board. Id. at 3. You also inform us that typically the meetings of
pricing committees occur on the premises of the underwriter’s trading desk, often inNew York City
or other financial centers outside the state, see id. at 2,6, and explain that the presence of a pricing
committee at the underwriter’s office “ensures meaningful negotiations, and guarantees that persons
with the authority to act are available to respond to market conditions,” id. at 6. We understand from
the facts presented in your letter that after the Board establishes the parameters of the sale in the
resolution and appoints the pricing committee, the pricing committee negotiates the sale and
executes the bond purchase contract. No further action is taken by the Board.
With this background, we turn to your questions. Again, you ask whether the meeting of a
pricing committee composed of two or more but less than a quorum of the Authority’s Board
appointed by the Board pursuant to a resolution under section 3 of article 717q is subject to the Open
Meetings Act. If so, you ask whether meetings ofpricing committees may be held outside the state.
Based on the facts you have provided, we conclude that a pricing committee appointed by
the Board pursuant to section 3 of article 717q to negotiate and finalize a bond sale is itself a
“governmental body” subject to the Act. For purposes of the Act, the term “governmental body” is
defined to include “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.” TEX. GOV’T CODE ANN. 4 551.001(3)(A) (Vernon 1994). In addition, the Act defines
a “meeting” as “a deliberation between a quorum of a governmental body, or between a quorum 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.” Id. 6 551.001(4). Because the Act defines a meeting to
involve discussion, consideration or final action on public business or public policy over which the
governmental body has supervision or control, see id., a governmental body must have the authority
to supervise or control public business or policy in order to fall within the Act’s scope. See Gulf
RegionnlEduc. Television AH. v. University ofHouston, 746 S.W.2d 803,809 (Tex. App.-Houston
[ 14th Dist.] 1988, writ denied). For this reason, Attorneys General have concluded that bodies that
Ms. Kimberly K. Edwards - Page 4 (JC-0053)
would otherwise fall within the definition of a state-level governmental body set forth in section
55 1.001(3)(A) that have merely advisory duties are not subject to the Act. See, e.g., Tex. Att’y Gen.
Op. Nos. JM-331 (1985) (citizens advisory panel to state agency with no power to supervise or
control public business not subject to the Act); H-994 (1977) (university committee that made
recommendations to board of regents regarding selection of administrative officers not subject to the
Act); Tex. Att’y Gen. LO-97-058, at 5-6 (Texas Funeral Service Commission complaint review
committee not subject to Act when it meets informally with licensees to make recommendations to
full Commission); LO-93-64 (student fee advisory committee at a public university that made
recommendations for consideration by board of regents not subject to the Act).
As you describe the pricing committees, the committee members are appointed by the Board
pursuant to a resolution under section 3 of article 7 17q and are authorized pursuant to the resolution
to negotiate and commit to bond sale terms and to execute a bond purchase contract on behalf of the
Board. Based on these facts, we believe a pricing committee is a “committee within the
executive branch that is directed by one or more appointed members,” TEX. GOV'T CODE
ANN. 5 55 1.001(3)(A) (Vernon 1994) members appointed by the Board pursuant to section 3 of
article 717q. Given that pricing committee members are appointed by the Board pursuant to
statutory authority, a pricing committee falls within this definition regardless ofits composition, i.e.,
whether it is composed of board members, staff, or a combination ofthe two. Furthermore, because
a pricing committee is authorized to negotiate the terms of a bond sale and to execute a bond
purchase contract without any further action by the Board, it has control over public business.
Accordingly, we conclude that a pricing committee appointed by the Board pursuant to section 3 of
article 717q is itself a governmental body within the Act’s definition of the term. See Tex. Att’y
Gen. LO-97-058, at 3-5 (TexasFuneral ServiceCommissioncomplaintreviewcommitteeconsisting
of two Commission members and others that was delegated authority to investigate complaints and
supervise investigations exercised and controlled public business and was itself a governmental body
subject to the Act when it reviewed investigations). Again, we stress that this conclusion is not
limited to pricing committees composed of board members; it applies with equal force to pricing
committees composed of staff or staff and board members. See id.
You urge us to conclude that a pricing committee is not subject to the Act because a “pricing
committee acts only after the full Board has deliberated the material terms of the bond issue in an
open meeting and adopted a resolution governing the sale” and because “the activities of the pricing
committee must be carried out only upon and within the limits of the Board’s delegation, which
occurs in an open meeting. Although the pricing committee exercises some discretion with respect
to fixing the final terms of the sale, the discretion is limited to action within the provisions of the
bond resolution already adopted by the Board.” Request Letter, supru, at 3. You also describe a
pricing committee’s duties as “technical and ministerial in carrying out the policy direction and
decisions of the full Board as set out in the bond resolution.” Id. at 5. Elsewhere in your letter,
however, you state that a pricing committee’s “ability to negotiate and renegotiate is extremely
important to ensuring that the Authority is borrowing for the State at the lowest possible cost,” id.,
and that the presence of a pricing committee at the underwriter’s office “ensures meaningful
Ms. Kimberly K. Edwards - Page 5 (X-0053)
negotiations, and guarantees that persons with the authority to act are available to respond to market
conditions,” see id. at 6, thus indicating that pricing committees exercise substantial authority.
You contend, in essence, that a pricing committee does not control public business within
the meaning of the Act because a committee’s discretion is limited in advance by the Board. While
we are not aware of any judicial or attorney general opinion addressing an analogous situation, we
believe that existing opinions of this office resolve your contention. This office has concluded that
a governmental body need not have total and complete control over public business or public policy
in order to be subject to the strictures of the Act. In Attorney General Opinion DM-284, for
example, this office considered whether several associations established under the Insurance Code
were governmental bodies subject to the Act. See Tex. Att’y Gen. Op. No. DM-284 (1994). The
opinion concluded that although the former State Board of Insurance and the Commissioner of
Insurance exercised some control over these associations and the associations were not completely
autonomous, they were nevertheless subject to the Act because they were not merely advisory bodies
and exercised some control and supervisory authority over public business. See id. at 4; see also
Tex. Att’y Gen. Op. No. H-438 (1974) (governmental body need not exercise complete control over
public business in order to be subject to the Act; supervision over public business is sufficient).
Here, although the Board’s resolution may limit the discretion of a pricing committee, it appears that
a resolution also authorizes a committee to exercise substantial delegated authority within those
limits to negotiate bond sale terms and to execute a bond purchase contract on the Board’s behalf
without subsequent action by the Board. Because a pricing committee exercises authority over a
bond sale that is not contingent on subsequent Board action, we believe that a pricing committee
exercises sufficient control over public business to constitute a governmental body within the
meaning of the Act.
Now we address whether a pricing committee may hold its meetings in the office of an
underwriter in New York City or another financial center outside the state. We conclude that the Act
requires a meeting of a governmental body to be held in a location accessible to the public and
therefore precludes a pricing committee from meeting in an inaccessible location, such as the office
of an underwriter in another state. The Act does not contain any language governing meeting
locations, and we have not been able to locate any Texas judicial or attorney general opinion
addressing this issue. Our conclusion is based on the language of the Act, which presupposes that
a meeting is physically accessible to the public.
“The Act is intended to safeguard the public’s interest in knowing the workings of its
governmental bodies.” Cox Enterprises, Inc. Y. Board of Trustees, 706 S.W.2d 956, 960 (Tex.
1986). To this end, section 551.002 of the Government. Code provides that every meeting of a
governmental body must be open to the public except as provided elsewhere in the Act. See TEX.
GOV’T CODE ANN. 5 551.002 (Vernon 1994). We believe that section 551.002 requires that a
meeting must be physically accessible to the public. While a governmental body may conduct
closed sessions regarding certain matters, see id. $5 551.071-.085 (Vernon 1994 & Supp. 1999)
(bases for executive sessions), it may do so only if the governmental body first meets in open
session, see id. 5 551.101 (Vernon 1994). Again, the announcement that a governmental body will
Ms. Kimberly K. Edwards - Page 6 (X-0053)
meet in executive session must be physically accessible to the public. Even the recent provision
authorizing a governmental body to conduct a meeting by videoconference call assumes that
members of the public will have physical access to each location of the meeting where a member of
the governmental body will be physically present. See id. 5 55 1.126(d) (Vernon Supp. 1999)(“Each
of the locations shall be open to the public during the open portions of the meeting.“)?
We note that section 55 l.OOl(4) of the Act provides that the term “meeting” does not include
the attendance of a quorum of a governmental body at a regional, state or national convention
or workshop “if formal action is not taken and any discussion of public business is incidental to
the convention[] or workshop.” Id. 5 55 l.OOl(4) (Vernon 1994). Section 55 l.OOl(4) allows
members of a governmental body to participate in certain types of conventions or workshops held
outside the governmental body’s jurisdiction if the members do not take final action or deliberate
regarding public business. Section 551.001(4) does not authorize a governmental body to hold a
meeting at a location inaccessible to the public,
In sum, although no provision of the Act mandates where meetings must be held or expressly
prohibits a governmental body from holding a meeting at an inaccessible location, the Act’s
provisions assume that meetings will be held in locations accessible to the public. A meeting held
in an inaccessible location would violate the Act. Whether a meeting location is accessible to the
public for purposes of the Open Meetings Act is ultimately a question of fact, however, and may
depend upon, for example, the type of governmental body, the nature of the interested public, the
meeting location, and its distance from the governmental body’s jurisdiction. See, e.g., Wiedemann
v. Town of Hilton Head Island, 500 S.E.2d 783, 785-86 (S.C. 1998) (town council required to
demonstrate necessity ofholding workshop at private club 45 miles outside city’s municipal limits);
Rhea Y. School Bd. ofAlachua County, 636 So. 2d 1383, 1386 (Fla. Dist. Ct. App. 1994) (meeting
of county school board held 100 miles from board’s headquarters at convention hotel did not afford
citizens of county reasonable opportunity to attend); Kan. Att’y Gen. Op. Nos. 86-153 (meeting of
Kansas Dental Board in Kansas City, Missouri at dental school reunion not inaccessible to the
interested public for purpose of Kansas Open Meetings Act); 82-133 (retreat of Kansas municipal
governing body in Colorado mountains unreasonably inaccessible to residents of municipality and
would violate Kansas Open Meetings Act). Although this office is not a trier of fact and may not
be able to resolve this fact-bound issue in other instances,” we find it highly unlikely that a meeting
of a Texas governmental body in an underwriter’s oftice in New York City, half a continent’s
distance from the state, is accessible to the public for purposes of the Texas Open Meetings Act.
‘The Seventy-sixth Legislahlre has enacted, and the Governor has signed into law, Senate Bill 1368, which
renumbers sectioti551.126,addedbyActofMay30,1997,75thLeg., R.S.,ch. 1038,f,2,1997Tex.Gen. Laws3896,
3897, as section 551.127. See Act of April 23, 1999, 76th Leg., R.S., S.B. 1368, 5 19.01(50) (1999) (enacting
nonsubstantive corrections to various codes) (effective September 1, 1999).
‘See Tex. Att’y Gen. Op. Nos. K-0007 (1999) at 5 (“[tlhis oftice does not make fact findings”); DM-383
(1996) at 2 (questions of fact are inappropriate for opinion process); DM-98 (1992) at 3 (questions of fact cannot be
resolved in opinion process); H-56 (1973) at 3 (improper for Attorney General to pass judgment on matter that would
be question for jury determination); M-187 (1968) at 3 (Attorney General cannot make factual findings).
Ms. Kimberly K. Edwards - Page 7 (X-0053)
SUMMARY
A pricing committee appointed by Texas Public Finance
Authority Board ofDirectors pursuant to section 3 of article 717q of
the Revised Civil Statutes to act on the Board’s behalf in negotiating
a bond sale and executing a bond purchase contract is a governmental
body subject to the Open Meetings Act, TEX. GOV’T CODE ANN. ch.
551 (Vernon 1994 & Supp. 1999). Because the Act requires a
meeting of a governmental body to be held in a location accessible to
the public, it precludes a pricing committee from meeting in an
inaccessible location, such as the office of an underwriter in another
state.
Yo s very truly,
Lo ;, O-b? “\
L
“i c “J
JOkN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General