Untitled Texas Attorney General Opinion

Honorable Stephen C. Howard Opinion No. JM-1191
Orange County Attorney
County Courthouse Re: Whether section 2(g) of
Orange, Texas 77630 article 6252-17, V.T.C.S., au-
thorizes the school principal
and school district superin-
tendent to require a teacher's
grievance to be heard in exe-
cutive session (RQ-2027)
Bear Mr. Howard:
You inform us that an employee of the West Orange-Cove
Consolidated Independent School District has filed a
grievance about his evaluation. The statement of grievance,
which you have submitted to us, contests the substance of
the evaluation and complains about the principal's and the
superintendent's actions in the evaluation process.
By rule of the State Board of Education, each public
school district in the state must adopt a written policy
establishing a grievance procedure for employees to present
complaints concerning wages, hours, or conditions of work.
19 T.A.C. § 61.232; see Educ. Code 59 11.24, 13.323;
see also 19 T.A.C. § 149.43(d)(2). The procedure must allow
for presenting the grievance to the various administrative
levels of the school district. 19 T.A.C. § 61.232(a)(2).
It must also "provide a reasonable opportunity for
presentment to the local board of trustees if the employee
is not satisfied with the response to the grievance at the
final administrative level." Id. 5 61.232(a)(3). Section
61.231 of Title 19, Texas Adminzrative Code, sets out the
minimum procedural standards for hearings before local
boards. School board meetings are subject to the Open
Meetings Act. V.T.C.S. art. 6252-17, 5 l(c).
The employee has requested that his hearing take place
in an open session in accordance with the "personnel"
exception of the Open Meetings Act:
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Honorable Stephen C. Howard - page 2 (JM-1191)
Nothing in this act shall be construed to
require governmental bodies to hold meetings
open to the public in cases involving the
appointment, employment, evaluation, reas-
signment, duties, discipline, or dismissal of
a public officer or employee or to hear
complaints or charges against such officer or
employee, unless such officer or emtzdovee
reouests a DUbliC hearing.
V.T.C.S. art. 6252-17, 5 2(g) (emphasis added).
However, the principal and superintendent insist that
the grievance hearing should be conducted in executive
session. The grievant has charged them with violating his
constitutional rights as well as district policies. Since
the Open Meetings Act allows the school board to meet in
closed session "to hear complaints or charges" against an
officer or employee, *@unless such officer or employee
requests a public hearing, II the principal and superintendent
believe that they are entitled to an executive session
hearing about the grievant's charges against them. They
also rely on the following policy of the West Orange-Cove
Consolidated Independent School District regarding employee
grievances:
EXECUTIVE SESSION - If the complaint involves
the appointment, employment, evaluation,
reassignment, duties, discipline,
dismissal of the employee bringing 4-z
complaint, it shall be heard by the Board in
executive session, unless the employee
requests it to be public. I.f the comDlaint
involves comDlaints or charoes about another
emdovee. it shall be heard bv the Board in
executive session unless the emDlovee
ComDlained about reouests it to be heard in
public. (Emphasis added.)
The Open Meetings Act requires all meetings to be open,
with certain exceptions. Section 2(g) does not require a
governmental body to deliberate in executive session in
cases involving the personnel matters set out therein.
Attorney General Opinion H-1047 (1977), which concerned a
governmental body's appointment of its officers, stated as
follows:
[Wlhile section 2(g) of the OpenMeetings Act
generally permits public bodies to consider
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Honorable Stephen C. Howard - Page 3 (JM-1191)
the selection of officers of a governing
board in a closed session, it certainly does
not require that a meeting of this kind be
closed. Rather, such a meeting may be opened
to the public either by request of a
prospective appointee, by charter or rule, or
by a determination by the public body that
the process of selecting its officers should
be fully open to public scrutiny.
Attorney General Opinion H-1047 at 2.
A public employee who is the subject of deliberations
has no right under section 2(g) to insist on a closed
session. In contrast, a public employee who is the subject
of a hearing described in section 2(g) does have a right to
insist on a public hearing if he makes an appropriate
request for it. &8 James v. Hitchcock Indeo. School Dlst.,
742 S.W.Zd 701 (Tex. App. - Houston [lst Dist.] 1987, writ
denied); Citv of Dallas v. Parker, 737 S.W.Zd 845 (Tex. App.
- Dallas 1987, no writ): Corpus Christi Classroom Teachers
Ass 'n v. Corous Christi Indeo . School Dist., 535 S.W.2d 429
(Tex. Civ. App. - Corpus Christi 1976, no writ). The board
of trustees must hear the teacher's grievance in open
session despite the objections of the superintendent and
principal. To the extent that the school district's rule
denies an employee his right under section 2(g) to open his
hearing before the board, it is invalid as inconsistent with
the Open Meetings Act. m Anderson v. Can on I.S.D., 412
S.W.2d 387 (Tex. Civ. App. - Amarillo 1967, no writ).
Moreover, based on the facts before us, the board does
not propose "to hear complaints or charges" against the
superintendent and principal within the meaning of section
2(g). "Hearing" has been defined as follows:
Proceeding of relative formality with
definite issues of fact or of ia; 'to be
tried, in which parties proceeded against
have right to be heard . . . .
Black's Law Dictionary 649 (5th ed. 1979).
The board is holding a hearing about the teacher's
grievance concerning his evaluation, as required by rule of
the State Board of Education. The teacher's complaints
about the principal and superintendent are incidental to his
grievance against the school district, which necessarily
acts through its agents. If the boarddid plan **to hear
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Honorable Stephen C. Howard - Page 4 (JM-1191)
complaints or charges" against the two officials, we would
expect the board to have notified them of the charges and to
give them an opportunity to answer them in accordance with
the applicable school district policies. The employee
before the school board is the teacher who disputes the
correctness of his evaluation, not the officials who
allegedly engaged in mistaken or wrongful conduct when they
gave him that evaluation. If the grievance raises charges
and complaints about the principal's and the
superintendent's conduct that the board wishes to examine,
it may do so only in compliance with applicable statutes and
rules. See. e.o., V.T.C.S. art. 6252-17, 5 3A(a).
SUMMARY
Section 2(g) of the Open Meetings Act,
article 6252-17, V.T.C.S., permits, but does
not require a school board of trustees to
hold an executive session to consider a
teacher#s grievance. An employee who is the
subject of deliberations under section 2(g)
has a right to an open hearing, but has no
right to insist upon a closed hearing.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan Garrison
Assistant Attorney General
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