N MAY 18, 2005, ATTORNEY GENERAL
Greg Abbott issued Attorney General Opinion No.
GA-0326, construing the provision of the Open Meet-
ings Act that prohibits conspiring to circumvent the
Act by meeting in numbers of less than a quorum. Less than a week
later, the Upshur County grand jury, at the request of the Attorney
General, returned an indictment charging that the president of a
school board violated this provision of the Act by conferring indi-
vidually with several board members to gauge support for a proposal
he planned to bring to the board.
In announcing the indictment, General Abbott said "Public of-
ficials cannot flout the Open Meetings Act and expect to get away
with it. Texans want their government to operate in the light of day
and these indictments show we will pursue officials who betray that
responsibility."
The unmistakable message is that the Attorney General is very
serious about enforcing the Act and that officials must be vigilant to
ensure they do not violate the Act. How, though, in this type situa-
tion, can a member of a governing body know where the line is that
separates what is legal from what is not?
Successive conferences with individual board members
The issue addressed in Attorney General Opinion No. GA-0326
involved a hypothetical situation in which a county commissioner
had telephone conversations with two other members of the com-
missioners court to discuss a matter that would be coming before
the commissioners court to urge that the two commissioners vote a
particular way on the matter. .,
Three members of the five-member commissioners court consti-
tutes aquorum. Since these were one-on-one phone calls, they never
involved more than two persons at a time, and thus no single call
involved a quorum of the court.-Nevertheless, when Che calls are
...aggregated, a quorum participated, and the Attorney General found
that a violatiori occurred. Thus, any time a member meets one-on-
one or in small groups with ocher members of the board in an effort
ultimately to confer with at least a quorum, there is a reasonable
chance a violation can occur. As a result, any time a board member
systematically confers with other board members with the intent of
conferring with at least a quorum of the board on an item of board
business, he or she is in danger of committing a criminal act.
In fact, from the description set out in the Attorney General's
press release, that is what is alleged to have happened in the case
that led to the Upshur County indictment. A school board presi-
dent visited with members of the board to see how they felt about
a proposed severance package for the superintendent. Although no
single conversation was with a quorum of the board, when all the
conversations were combined, the board president had talked with
a quorum. Subsequently, the package was presented to the board in
a formal meeting and adopted. In the view of the grand jury, this
justified a charge of conspiring to circumvent the Open Meetings
Act by meeting in a number less than a quorum for the purpose of
.secret deliberation.
Conferences with anon-board member
In Attorney General Opinion No. jC-0307 (2000), Attorney
General John Cornyn addressed the situation when anon-board
member confers individually about public business with all, or at
least with a quorum of the board. Since these are one-on-one con-
versations, no single conversation involves a quorum of the board. if
the conversations are initiated by the non-board member, as would
happen when a lobbyist or citizen approached the member-s of the
board to advocate a position, there is no violation. It is not an of-
fense for a citizen to confer individually with a number of board
members that equals a quorum.
The Attorney General, however, noted that if the non-board
member is enlisted by a member of the board xo go from member"
to member to work out an understanding among a quorum: of the
board, there. could be a violation. Although the prohibition in the
Act applies only to members of the board, the Attorney General
ruled that under section 7.01 of the Penal Code a person can be
criminally responsible for an offense committed by another if he acts
with intent to promote or assist in the commission of the offense
and aids the other person to commit the crime. Thus, for example,
if a board member and anon-board member agree that the non-
board member will act as an intermediary to conduct discussion
among a quorum, both can be liable.
Presumably, the.grearest danger rnayarise when a memkse-r ofehe
board uses stafl'to communicate t© other members of the board. If
there is a conscious effort to use this device to establish a discussion
among a quorum, then there may be a violation.
It is not at all unusual for a staff member or administrator to pro-
vide information to board members on matters to come before the
board and to confer with individual members about those matters.
For example, the superintendent of a school district, the chancellor
of a university, or the general manager of a river authority will typi-
callyprovide information packets to members of the board both on
matters set for upcoming agendas and on issues that may not have
ripened into an agenda item. Similarly, they will visit with individual
board members to answer their questions and sometimes to suggest
possible action. Although Attorney General Opinion JC-0307 does
not specifically address the issue of a series of conversations initiated
by the chief administrative officer of a governing body, the logic of
the opinion suggests the:-key is whether the administrator is acting
in concert with the members ofthe-.board. Thus, isolated discussions
by an agency official with enough board members to constitute a
quorum might not be a problem. On the other hand, any concerted
action by the agency. official and one armore members of the board `
to poll or convince a quorum could cause the agency official and the
boa~id memE?¢rs with whom he acted jointly to beliable to prosecu-
tion. Some of the things a prosecutor might look for is evidence of
collusion between the agency official and one or more board mem-
bers that would suggest they are acting together to circumvent the
provisions of the Act.
Exchange of written communications
It is possible to discuss matters through the exchange of writ-
ten materials outside the physical presence of a quorum. The two
best examples are using a-mail to discuss a matter with a quorum
of the board or circulating a document to which board members
can note their agreement. In Esperanza Peace and justice Center v.
City of San Antonio members of the San Antonio city council met
with the mayor and the city manager in small groups taking care to
always avoid the physical presence of a quorum. In addition, some
members spoke with the mayor by telephone. The purpose of the
discussion was to reach a consensus on the city budget, which was
to be voted on by the council the next day After the discussions, >
MARCH/APRIL 2008 COUNTY ~ 17
the members signed a memorandum setting forth the council's
consensus on the budget and outlining amendments that would be
presented to implement the consensus. While the council members
realized that the memorandum was not binding, no one departed
from it in the meeting. Although the issue was presented in the civil
rather than the criminal context, the court had no problem finding
that the council had violated the Act. The court's decision was based
in large part on its finding that the purpose of the small meetings
and circulation of the memorandum was to avoid the requirements
of the Act - to arrive at a majority decision in private while avoid-
ing the technical requirements of the Act.
In Attorney General Opinion No. JC-0307, one of the questions
raised. the issue of a commissioners court circulating a claim or in--`
voice in an effort to obtain the signatures of atnajoriry of the court
and then considering it approved for payment. The Attorney Gener-
al determined that any sort of written approval by a majority of the.
commissioners court outside of a formal meeting was notpermitted~;
by the Act. He did not specifically address the issue in terms of the
criminal prohibition of conspiring to circumvent the provisions of
the Act by meeting in numbers less than a quorum, but it seems
logical that it could apply.
~ Of course, in the current computer-dependent age, the issue of
written deliberations most readily arises in the context of e-mails.
Neither the courts nor the Attorney General appear to have directly
addressed the e-mail issue, but there is no doubt that the Attorney
General believes an e-mail discussion can run afoul of the Act.
The basic argument to take e-mails outside the scope of the Act
arises from the fact that the requirements of the Act are phrased in
terms of "deliberations," which is defined as "a verbal exchange"
The Attorney General noted that at least two courts have discussed
the concept of deliberation under the Act in terms of an exchange
of spoken words - in Gardner v. Herring and Dallas Morning News
Co. v. Board of Trustees -however, he relied on dictionary defi-
nitions that equate "deliberation" with "dealing in or with words,"
rather than necessarily being limited to spoken words.
"Were we to conclude that only spoken communications are in-
eluded in the definition of `deliberation,' then members of a govern-
mental body could easily avoid the Act's requirements by discussing
public business via written notes and electronic mail. We decline
to give the term `deliberation' such a limited construction," the At-
` torney General stated.
In light of this approach, there seems to be little room for doubt
that the Attorney General would not hesitate to find that an e-mail
conversation could violate the Act.
What's a Board Member to Do?
In a legislative-type body it is customary for members to discuss
ideas to get an understanding of the position of other members
before drafting a formal proposal to submit for a vote. Similarly,
members also consult with their colleagues to urge them to vote for
or against an upcoming measure. Indeed, in larger legislative bod-
ies, such as the Congress, an elaborate "whip" system exists for the
express purpose of learning the position of all the Democrats or Re-
publicans and attempting to influence how they vote. In the Texas
Legislature, which the Texas Open Meetings Act purports to cover,
it is customary for senators not to bring a bill up for vote unless they
have commitments of support from 20 other senators, which will
give them the 21 votes necessary to suspend the rules to bring the
bill to the floor. Each of these practices suggests conduct that could
-run afoul of the prohibition against conspiring to circumvent the
provisions of the Act by meeting in numbers of less than a quorum.
What, then, should a Texas public official do to be sure he or she
does not violate this penal provision?
1. Avoid conferring with a quorum of the governmental body.
Don't talk about public business with a group of members that is
sufficiently large to constitute a quorum. Further, don't talk with
individual members who, when added together, constitute a
quorum. Obviousl}; over time a person will likely have informal
contact with enough members to equal a quorum, but he or she
should avoid planned efforts to confer with a quorum of mem-
bers on a single issue. It would also be wise to avoid situations
where there is reason to anticipate that the discussion group will
expand to include a quorum.
2. Be extremely careful with email. It is often the case that per-
sons will copy numerous members on an email or that one per-
son will forward it to others. As a result, one can very quickly
reach a quorum, even if that was not intended. In addition, the
email, with its list of recipients, provides a written record of the
contact and essentially proves the prosecutor's case.
3. Do not use intermediaries to engage in discussion that is pro-
hibited to members of the board. Even though the Act does
not extend to non-members of a governing body board, a board
member can violate the Act by using a staff person as a surrogate,
and the staff person who assists the board member can be cul-
pable aswell. Thus, don't have a staff member do something that
is prohibited to the board member.
4. Keep the purposes of the Act in mind. The prosecutions that
have occurred and the opinions discussing possible violations
have generally involved situations where persons have tried to
put together a consensus or reach a decision prior to a meet-
ing. As a result, there is little, if an}; discussion at the meeting.
The prohibition relates to circumventing the purposes of the
Act. Thus, the type of conduct that is clearly deliberate and is
designed to avoid or stifle public discussion of an issue is most
likely to pose a problem. The fact that an individual had in-
cidental, isolated contacts with enough members of the board
to constitute a quorum will probably not cause a problem. A
planned effort to meet with all or most of the board individually
in order to put together a consensus on a specific issue very likely
will constitute an offense. ,~
C. Robert Heath is an attorney with Bickerstaff Heath Delgado Acosta
LLP. in Austin.
18 ~ COUNTY MARCH/APRIL 2008