Untitled Texas Attorney General Opinion

Honorable David Wade Opinion No. Ii- 3
Commlssloner
Texas Department of Mental Health Re: Construction of
and Mental Retardation Article 6252-17,
P. 0. Box 12668, Capitol Station Vernon’s Civil
Austin, Texas Statutes (the
“Open Neet lnga
Dear Dr. Wade: Act“).
Your letter requesting an opinion of this office
states:
“In order for the Texas Board of Uental
Health and Mental Retardation to more effl-
clently manage its affairs, It desires to
dtvlde Its membership Into various committees.
Those matter8 to be presented to the Texae
Board of Mental Health and Mental Retardation
would first be assigned to the appropriate
committee. The various committees would at
their discretion meet with members of the
Texas Board of Mental Health and Mental
Retardation staff to discuss and rtudy the
matter before It and.would recommend a course
of action to the Texas Board of Mental Health
and Mental Retardation at Its open public
meeting. Any member of the Texas Board of
Mental Health and Mental Retardation could
attend these committee meetings and dlecuss
the matters under consideration but only
co&nlttee members would be allowed to vote
on what recommendation the committee was to
make to the Texas Board of Mental Health and
Mental Retardation.
“These committee meetings would not be
open to the public and no notice of euch meetlnge
would be posted.
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Dr. David Wade, page 2, (H-3)
opinion la reepectfully
"Your requested
with respect to whether or not the procedure
yAo;t;l?ed above violates Article 6252-17,
. . . .
Appropriate portions of Article 62 Vernon’s Texas
Civil Statutes (the “Open Meetings Act" read a8 follows:
“Section 1. (a) Except as otherwlae
provided In thle Act, every regular, special,
or called meeting or eeaslon of every govern-
mental body ehall be open to the public.
“(b) A ‘governmental body, ’ within the
meaning of this Act, Is any board, commlsslon,
department, or agency w,lthln the executive
department of the etate, which Is under the
direction of three or more-elected or appolnt-
cd members. . .’
“Sec. 2.
II. . . .
“(d) The provisions of this Act shall not
apply to periodic conferencee held among staff
membere of the governmental body. Such staff
meetings will be only for the purpose of
Internal admlnlatratlon and no matters of
public business or agency pollclee fihat affect
public business will be acted upon.
n. * . .
“Sec. 3A. (a) Written notice of the
date, place, and subject of each meeting held
by a governukntal body shall be given before
the meeting as described bg this Section.”
The provlslone of Article 6252-17, V.T.C.S. are mandatory
and are to be liberally construed to effect Its purpose.
Toyah Ind. Sch. Met. 0. Pecoe - Ihretow Ind. Sch. Dizt .,
66 s W 2d 371 (Tex.Clv.App. 1971 . The Coui33E
that caee recited the leglelatlveJp``p``e for the enactment
Dr. David Wade, page 3, (H-3)
of the statute to be one”of aeIsurlng that the public has the
opportunity to be Informed concerning the transactions of
public bualness”, In determining whether a particular meeting
of the School Board was to be declared voidable, the Court
asked Itself:
“IO fihe above .Btate legl8latlVe7 purpose
effected 6y an Interpretation which declares
that action taken at an Illegal meeting cannot
be questioned?” (466 S.w.tiat 380)
The Texas Board of Mental Health and Mental Retardation
le a “governmental body” within the meaning of the statute.
Texas Liquor Control &. v, Continental Dlitllllnn Salee
199 S W 2 1009 1015 (Te Cl A 1947 I )
ii$‘meetl& ofdthe f;ll Board “fir ~t;eP~;rpoaeJo~d:rf~aelng
and etudylng a matter and deciding upon a course of action
Is required to be open to the public unless one of the
etatutory exceptions applies, _
One of the exceptions provided by the Act Is:
“(d) The provlolone of this Act shall
not apply to periodic conferences held among
staff members of the governmental body.
Such staff meetings will be on1 for the
purpose of Internal --f on and no
admlnlstrat
matters of public buslneee or agencycles
that affect public buslnees will be acted
upon.
Tnls exception would be unnecessary unless the Act
applies to meetings within the body other than formal board
meetings. .
Your letter Indicates an expectation that Board Members
composing a committee created by the authority of the full
Board would themselves periodically meet with the agency
staff “to dlecuse and study the matter before It and. , ,
recommend a couree of action to the Texas! Board of Mental
Health and Xental Retardation at Its open public meeting".
Paraphrasing the qu%etlon posed In the Toyah case,
supra, we ask:
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Dr. David Wade, page 0, (H-3)
“Isthe leglrlatlve purpose effected
by an Interpretation which declares that
Board members acting aa an official committee
of the Board may make decisions at private
meetings clored to the public, that the full
Board might lawfully accomplish Only at a
meeting open to the public?”
A committee, assuming that Its members did not compose
a quorum of the full Board, would have no power to bind the
Board on matters before It. Nevertheless a real danger
exists that the full Board might become merely the ‘rubber
etamp” of one or more of Its committees and thereby deprive
the public of access to the effective decision-making
process. Cf. Acord v. Booth, 35 Utah 279, 93 Pac. 734(1X)8).
A holding that a committee, which maket recommendations
only, Is governed by the Open Meetings Act la not without
precedent. The duty of the State Textbook Committee,
prescribed by statute, la to recommend to the State Commlealoner
of Fducatlon a complete list of textbooks which It approves
for adoption. Books not recommended by It cannot be adopted
by the State Board of Education. In Attorney General’s
Opinion M-136(1967) It was held that the exclusion of books
from echoole Is an Important exercise of a governmental
function, undertaken by an agency of the government, whatever
Its name, within the spirit and Intent of the Act and that,
therefore, the Act applied.
In Attorney General’s Opinion M-220(1968), the term
“meeting”, as used In the Open Meetings Act; was deflned
as “one In which thr cembere of the governmental body
transact official bus-with which such agency 1~s charged
to perform”. lhe word “transact” was not defined. However,
It connotes an Interchange of Ideas or actions and IE broader
than the word “contract”. A “transaction” may Involve
negotiations *or dealings only partly concluded. See Eozled
;;,;~;$$n, 58 N.W.2d .313 (Mlnn., 1953);
ommleelon v. Talley Induet;:
Clr .l*); Kn pfl S k , 106 N W
Webster’s ‘Zhtzd N~wv~nt~r~atlonal~Mctlona
Black’s Law Mctlonary, 4th Ed ., P. ;
335.
Dr. David Wade, page 5, (H-3)
Whatever are the llmltatlons placed on the aCtlVltleS
of Board Membere meeting in private, It 18 clear that Staff
members of the governmental body can meet and Confer pmely
-Tar purpose8 of Internal admlnlstratlon and that no
+ma ter affecting public bualneac may be acted upon at Such
meetings. Since Staff members themaelve~e no power to
act for the Board In the formal sense, the LeglSlatUre muet
have had In mind actions OS a leaa final nature when It
prohibited staff members from privately meeting to act on
public business. The obvious purpose was to avoid pro forma
public approval by the agency of matters already privately
determined by Its etaff, and to Insure that policy decisions
and deliberations would not be made In bureaucratic laolatlon,
but exposed to the view of the lntereeted public. A Staff
meeting called for the purpoee of making recommendations to
the bard for action In matters before the Board would seem
to be within the prohibition.
It would be strange If the Legislature Intended that
staff members could act otherwlee at private staff meetings
so long as one or more members of the Board, acting 85 a
committee, were present, and It la the opinion of this
I office that the Legislature had no @uch intention. It
follows that a committee of Board members mey not meet
privately and without complying with the provlslona of
Article 6252-17 with staff membere for the purpose of
formulating recommendations to be made to the full Board
concerning the dlepoeltlon of matters before the Board.
Therefore, our answer to the question posed by your letter
as It applies to this particular eltuatlon, Is In the
negative.
This opinion must be.construed as limited to the
question you asked. It Is our understanding that the Poard
Is concerned primarily with formulating basic and general
pollclee and not with particular, Individual casee or case
histories. Art. 5547-202, Sec. 2.11(a), V.T.C.S. It Is
not our Intent to hold that Information concerning Identified
lndlvlduala should be made public, In violation of Sec.
2.23(c) of Art. 5547-202, V.T.C.S.
-!O-
.
. Dr. rbvld Wade, page 6, (H-3)
-SUMFlARY-
Official commltteec compoced of members
of governmental bodice regulated by Article
6252-17, Vernon’8 Texas Civil Statutea,
meeting to formulate recommendations for
the disposition of matters pendlng before
the parent body, must comply with the
“notice” and “open meeting” provlalona of
Article 6252-17,
-Very truly youre,
Attorney General of Texas
APPROVED:
OEN M BARRON
krst ieelztant
T-v
h3Yzs++&
DAVID M. KENDALL, Chairman
Opinion Committee
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