Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 6, 2008
The Honorable Jeff Wentworth Opinion No. GA-0668
Chair, Committee on Jurisprudence
Texas State Senate Re: Whether certain posted agenda items satisfy
Post Office Box 12068 the notice requirements ofthe Open Meetings Act,
Austin, Texas 78711-2068 chapter 551, Government Code (RQ-0696-GA)
Dear Senator Wentworth:
You ask whether certain posted agenda items satisfy the notice' requirements under the Texas
Open Meetings Act, chapter 551, Government Code (the "Act,,).2 See TEx. GOV'T CODE ANN. ch.
551 (Vernon 2004 & Supp. 2008). Your questions relate to section 551.041 of the Act, which
requires that written notices ofmeetings held by a governmental body include the date, hour, place,
and subject ofeach meeting. See id. § 551.041 (Vernon 2004). Youare specifically concerned about
the requisite specificity ofthe description ofthe subject ofameeting. See Request Letter, supra note
2, at 6.
I. Factual Background and Questions
You explain that the Corpus Christi City Council has for several years included "City
Manager's Report," "Mayor's Update," and "Council and Other Reports" as items on the agenda for
meetings of the governing body. Id at 2. You tell us that the report by the city manager ofthe City
of Corpus Christi ("City") is generally posted on the agenda as follows:
CITY MANAGER'S REPORT
Upcoming items.
Id. In conjunction with this agenda item, you indicate that the city manager traditionally states,
describes, and announces upcoming agenda items, the date and time for local meetings, the status
IThis office has explained in previous opinions that the tenns ~'agenda" and "notice" are often used
interchangeably in discussions ofthe Open Meetings Act because ofthe couuuou practice of posting the agenda as the
notice or as an appendix to the notice. See, e.g., Tex. Att'y Gen. Op. Nos. DM-473 (1998) at 3 n.IO, DM-228 (1993)
at 2 n.2.
'See Letter from Honorable Jeff Wentworth, Chair, Couuuittee on Jurisprudence, Texas State Senate, to
Honorable Greg Abbott, Attorney General of Texas, at 6 (Apr. 4, 2008) (on file with the Opinion Couuuittee, also
available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
The Honorable Jeff Wentworth - Page 2 (GA-0668)
of City department issues, the receipt of City awards, and the arrival of new department directors.
See id.
You explain that the mayor's update and council report have traditionally been posted as
follows:
REPORTS
The following reports include questions by Council to Staff regarding City
policies or activities: request by Council for information or reports from
Staff: reports of activities of individual Council members and Staff:
constituent concerns: current topics raised by media: follow-up on Staff
assignments: scheduling of future Council meetings and activities: and other
brief discussions regarding city-related matters.
MAYOR'S UPDATE
COUNCIL AND OTHER REPORTS
Id. at 3-4. During the "Mayor's Update" and "Council and Other Reports," you relay that the
governing body generally extends its gratitude to staff or other members of the public and advises
the city manager ofcitizen complaints, the location ofpotholes needing repair, and City-related news
and matters. Id. at 2, 4.
In light of these facts, you ask the following questions:
(1) Does the "City Manager's Report" provide adequate notice
under the Open Meetings Act if the individual Council members do
not engage in any discussion or take any action regarding these items,
or does the Open Meetings Act require that every topic addressed by
the City Manager during "City Manager's Report" be specifically
listed on the Agenda?
(2) Do the "Mayor's Update" and "Council and Other Reports"
provide adequate notice under the Open Meetings Act if the
individual Council members provide the information, and the
remaining Council members do not discuss further or take any
consideration regarding these items, or does the Open Meetings Act
require that every topic addressed by an individual Council member
or Mayor during "Mayor's Update" and "Council and Other Reports"
be specifically listed on the Agenda?
/d. at 6.
The Honorable leffWentworth - Page 3 (GA-0668)
II. Analysis
We begin our analysis by providing an overview of relevant requirements of the Act. We
then set out factors that may be relevant in determining whether a notice is adequate and the standard
by which provisions ofthe Act should be construed. We next compare the notice at issue with those
that have been determined by the courts to be inadequate under the Act. And, finally, we discuss
when it is permissible to address a subject not included on a meeting notice and the extent to which
such a subject may be addressed.
The Act requires that meetings of a governmental body, such as a city council, be preceded
by written notice of the date, hour, place, and subject of the meeting. See TEx. GOV'TCODEANN.
§ 551.041 (Vernon 2004); see also id § 551.001(3)(C) (defining "governmental body" to include
a municipal governing body) (Vernon Supp. 2008). The term "meeting" is defined as follows:
(A) 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; or
(B) except as otherwise provided by this subdivision, a gathering:
(i) that is conducted by the governmental body or for which
the governmental body is ~esponsible;
(ii) at which a quorum of members of the governmental body
is present; .
(iii) that has been called by the governmental body; and
(iv) at which the members receive information from, give
information to, ask questions of, or receive questions from any
third person, including an employee ofthe governmental body,
about the public business or public policy over which the
governmental body has supervision or control. ...
Id. § 551.001(4)(A)-(B); see also id § 551.001(2) (defining "deliberation").
In determining the adequacy of a particular notice, courts have considered various factors.
A court will, for example, compare the content of the notice to the action taken at the meeting. See
Markowskiv. City ofMarlin, 940 S.W.2d 720,726 (Tex. App.-Waco 1997, writ denied). Acourt
may also consider whether the notice departs from any customary practice where such custom
establishes an expectation in the public about the subject of the meeting. See River Rd.
The Honorable Jeff Wentworth - Page 4 (GA-0668)
Neighborhood Ass 'n v. S. Tex. Sports, 720 S.W.2d 551, 557 (Tex. App.-San Antonio 1986, writ
. dism'd). Whether the subject is of special interest to the public is also a factor that may impact the
adequacy ofanotice under the Act. See Cox Enters., Inc. v. Bd ofTrs. ofAustin Indep. Sch. Dist.,
706 S.W.2d 956, 958-59 (Tex. 1986); Point Isabel Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176,
179-81 (Tex. App.-Corpus Christi 1990, writ denied). Underlying these considerations is the fact
that the provisions of the Act "are mandatory and are to be liberally construed in favor of open
government." City ofFarmers Branch v. Ramos, 235 S.W.3d 462, 467 (Tex. App.-Dallas 2007,
no pet.).
We next consider instances in which the subject matter of a meeting has been determined to
be inadequately described in a notice. In a 1986 case, the Texas Supreme Court considered a
meeting notice that included general terms such as "personnel," "litigation," and "real estate
matters." Cox Enters., Inc., 706 S.W.2d at 957. After explaining that notice under the Act "should
specifically disclose the subjects to be considered at the upcoming meeting" the court held that those
general terms "did not provide full and adequate notice, particularly where the subject slated for
discussion was one of special interest to the public." Id. at 959.
In a 2000 opinion, this office concluded that the generic notice "employee briefing sessions"
was inadequate under the Act. See Tex. Att'y Gen. Op. No. JC-0169 (2000) at 6. The opinion
reasoned that because a governmental body exercises control over its staff, it presumably can
ascertain in advance what subjects will be addressed such that those subjects should be included in
the meeting notice. Id. And in a 2001 case, this same reasoning was applied by the Austin Court
of Appeals to "comments by members of the governmental body itself." Hays County Water
Planning P 'ship v. Hays County, 41 S.W.3d 174, 180 (Tex. App.-Austin 2001, pet. denied) (citing
Tex. Att'y Gen. Op. No. JC-0169 (2000».
In Hays County Water Planning Partnership, the Austin Court considered the following
posting: "Presentation by Commissioner Russ Molenaar." Id. at 178. The court held that
'" [p]resentation' is a vague description. There is nothing in the posting that would give a resident
ofHays County any inkling ofthe substance ofMolenaar's proposed presentation." Id. at 180. Use
of the term fails "to inform a reader as a member of the interested public ... of the topics to be
addressed by Molenaar." !d.
Based on these cases and the standard to be used in construing the Act's provisions, we
conclude the notice set out supra is inadequate as a matter oflaw. See supra p. 2; City ofPort Isabel
v. Pinnell, 207 S.W.3d 394, 406 (Tex. App.-Corpus Christi 2006, no pet.) (explaining that"[i]fthe
contents ofa notice are undisputed, its adequacy is a question oflaw"); City ofFarmers Branch, 235
S.W.3d at 467 (providing that the Act should be liberally construed in favor of open government).
The general and generic nature ofthe notice does not sufficiently notify a reader, as a member ofthe
interested public, ofthe subjects ofthe update and reports to be discussed at any particular meeting.
And like the notices at issue in Hays County Water Planning P 'ship and Attorney General Opinion
JC-O169, the subjects to be addressed can presumably be ascertained by the governmental body in
advance. Hays County Water Planning P'ship, 41 S.W.3d at 180; Tex. Att'y Gen. Op. No. JC-0169
(2000) at 6; but see, Tex. Att'y Gen. Op. No. JC-0169 (2000) at 4 (discussing "public comment" as
The Honorable Jeff Wentworth - Page 5 (GA-0668)
sufficient notice where, unlike with staff, the governmental body cannot predict the subject matter
of citizen comments and questions).
Our conclusion here is not altered by the fact that the governing body does not, as you assert,
"engage in any discussion" or "take any action regarding these items." Request Letter, supra note
2, at 6. Under the Act's defInition of "meeting" a governmental body is subject to the Act, and its
notice requirements, even when its members merely receive information about public business or
public policy over which the body has supervision and control and do not engage in deliberations.
See TEx. GOy'r CODE ANN. § 551.001(4)(B) (Vernon Supp. 2008); Martin v. Victoria Indep. Sch.
Dist., No. 13-01-096-CV, 2002 WL 34215930, at *3 (Tex. App.-Corpus Christi Aug. 8,2002, no
pet.) (not designated for publication) ("[A] governmental body is subject to the Act even if the
members merely receive information and do not engage in deliberations among themselves or with
a third party including an employee of the governmental body[.]").
You also ask whether every subject addressed by the city manager or governing body in a
report or update must be specifIcally listed on the agenda. Request Letter, supra note 2, at 6.
Because you raise section 551.042 of the Act as applicable to your questions, we presume you are
inquiring about how this section might be applicable to a report or update delivered by the city
manager or by a member of the governing body at a meeting. See id. at 1-2.
Section 551.042 provides the following:
(a) If, at a meeting of a governmental body, a member ofthe
public or oj the governmental body inquires about a subject for which
notice has not been given as required by this subchapter, the notice
provisions of this subchapter do not apply to:
(1) a statement of specifIc factual information given in
response to the inquiry; or
(2) a recitation of existing policy in response to the
inquiry.
(b) Any deliberation of or decision about the subject of the
inquiry shall be limited to a proposal to place the subject on the
agenda for a subsequent meeting.
TEx. Goy'r CODE ANN. § 551.042 (Vernon 2004) (emphasis added).
The purpose of section 551.042 is to authorize "a limited response to an inquiry about a
subject not included in the posted notice while preventing" deliberations or decisions about the
subject matter of the inquiry. Hays County Water Planning P'ship, 41 S.W.3d at 181. Thus, if a
member of the governmental body is, for example, responding to an inquiry by a member of the
public or a member ofthe governmental body arising from the delivery ofa report or update, section
The Honorable Jeff Wentworth - Page 6 (GA-0668)
551.042 would authorize a statement of factual information or a recitation of existing policy in
response to the inquiry, even where the subject was not included in the meeting notice. ld.; TEx.
GOV'TCODEANN. § 551.042(a)(Vernon 2004); see also Gardner v. Herring, 21 S.W.3d 767, 774
(Tex. App.-Amarillo 2000, no pet.) (holding that a spontaneous inquiry by a member of the
governing body coupled with a recitation of factual and policy information did not violate the Act
as it was authorized by section 551.042). To the extent authorized by section 551.042, not every
subject addressed by the city manager or a member of the governing body must be specifically listed
on the agenda. Other than a situation under section 551.042, which authorizes a limited response
to certain inquiries, the subject of a report or update by city staff or a member ofthe governing body
must be set out in the notice in a manner that informs a reader about the subjects to be addressed.
The Honorable Jeff Wentworth - Page 7 (GA-0668)
SUMMARY
The notice at issue does not sufficiently notifY a reader, as a
member of the interested public, of the subjects to be addressed at a
meeting subjectto the Open Meetings Act, Government Code chapter
551.
Section 551.042 of the Act authorizes a limited response to
inquiries of a member of the public or of the governmental body
about a subject not included in the posted notice. To the extent that
a subject is addressed by a city manager or a member ofthe goveruing
body in the manner and under the circumstances authorized under
section 551.042, it does not have to be included in a posted meeting
notice.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Christy Drake-Adams
Assistant Attorney General, Opinion Committee