Untitled Texas Attorney General Opinion ( 1989 )

November 3, 1989
Honorable Bob McFarland Opinion No. JM-1112
Chairman
Criminal Justice Committee Re: Should notice of a school
Texas State Senate board meeting to consider an
P. 0. Box 12068 employee's grievance in execu-
Austin, Texas 78711 tive session under section 2(g),
article 6252-17, V.T.C.S., state
the employee's name and subject
of grievance (RQ-1830)
Dear Senator McFarland:
You ask about the notice required by the Texas Open
Meetings Act, article 6252-17, V.T.C.S., for an executive
session meeting of a school board to consider the appeal of
an employee's grievance. 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. 8 61.232; see Educ. Code
55 11.24, 13.323. This procedure must allow a reasonable
opportunity for an appeal to the local board of trustees.
19 T.A.C. § 61.232(a)(3). The aggrieved party is given
written notice of the time and place of the hearing. Id.
5 61.231(c)(2)(D). The board's hearing on the appeal of an
employee's grievance is subject to section 2(g) of the Open
Meetings Act, which provides as follows:
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, re-
assignment, 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 employee
requests a public hearing.
V.T.C.S. art. 6252-17, 5 2(g).
Section 3A of the Open Meetings Act requires the board
of trustees for the school district to give advance written
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Honorable Bob McFarland - page 2 (JM-1112)
notice of the "date, hour, subject, and place" of its
meetings. L 5 3A(a). The notice must specifically
disclose the subjects to be considered at the upcoming
meeting, including subjects slated for discussion in
executive session. Cox Enterorises v. Board of Trustees of
Austin IndeD. School Dist., 706 S.W.Zd 956 (Tex. 1986);
Attorney General Opinion H-1045 (1977).
You inform us that the Arlington Independent School
District states notice for an employee grievance as follows:
Grievance of (name of employee).
Some associations of school district employees suggest
that the notice should not identify the employee by name,
because naming the employee "creates a chilling effect which
discourages employees from bringing forward their appeal to
the board of trustees." They suggest that the written
notice of the subject matter should state only the title of
the employee, for example:
Grievance of teacher.
It has also been suggested the written notice of the
subject matter should include the subject matter of the
grievance, for example:
Grievance of (name or title of employee)
relating to appeal of a written reprimand.
You ask us how specific the notice of an executive
session must be under the circumstances you have described,
in particular, whether the notice must contain the name of
the aggrieved employee and the specific nature of the
grievance.
We will first deal with the suggestion that inclusion
of the employee's name in the notice creates a "chilling
effect." You do not identify any statute or constitutional
provision that would prevent a governmental body from
identifying the employee in the notice.1 A brief,submitted
1. The "chilling effect" refers to statutes that
"chill" First Amendment free speech rights because they are
vague or overbroad. 1 Levy, Karst, Mahoney, Encyclopedia of
the American Constitution, Chillina Effect, at 249.
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Honorable Bob McFarland - Page 3 (JM-1112)
on behalf of a teachers' association argues that protection
of the individual employee's privacy is at issue here.
In addressing these concerns, we observe that an
employee does not achieve permanent confidentiality for his
grievance by keeping his name out of the notice. In
~~~',~li~~o~tgrlevance.he runs thearisk that the public will
his grievance, since any "final action,
decision, or vote" by the school board on the grievance
would have to be made in open session. V.T.C.S. art.
6252-17, § 2(l). Thus, excluding an employee's name from
the posted notice would guarantee only a 72-hour delay in
the time at which information about his grievance became
public. x 5 3A(h) (notice must be posted for at least 72
hours before a meeting). Any embarrassment the employee
might feel at having other people know that he has a problem
related to his job would only be delayed, not avoided.2 It
is difficult to see how excluding his name from the notice
would prevent the "chilling effect" you refer to.
Nor does excluding an employee's name from the notice
prevent members of the school board from knowing about his
grievance before the meeting at which they will hear the
appeal. See, e.a Attorney General Opinions JW-119 (1983)
(trustee of school district has access to all district
records needed in his official capacity): H-436 (1974)
(documents supporting agenda of regents meeting are distri-
buted to regents before meeting). Thus, the wchilling
effect" you refer to does not result from the board's
knowledge of the appeal.
The purpose of the notice is to inform the "general
public" of the meeting. V.T.C.S. art. 6252-17, 5 =(h).
The general public in this case might include other school
district employees, parents of school children in the
district, and possibly members of the media. If the name of
the aggrieved employee is included in the notice, more
people might attend the meeting to learn how the board ruled
2. According to testimony in Hubert v. H rte-Hanks
Texas Newsoaners, 652 S.W.2d 546, 554 n.2 (Texa APP. -
Austin 1988, writ ref'd n.r.e.), a candidate for the
presidency of Texas A & M University wanted confidential
treatment for his candidacy because his present employers
were likely to wonder why he was unhappy working for them.
If he was not chosen for the presidency, they would wonder
what was wrong with him.
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Honorable Bob McFarland - Page 4 (JM-1112)
on the grievance, and media attention could be drawn to the
employee and his dispute with the school district. These
consequences of naming the employee in the notice would in
fact help achieve the purpose of the Open Meetings Act, "to
safeguard the public's interest in knowing the workings of
its governmental bodies.01 Cox EnterDriSeS, suDra, at 960.
Judicial decisions on grievances and related matters
suggest that a school district employee has no constitu-
tional right to confidential handling of his grievance.
A school district did not deprive two non-contractual
employees of a constitutional or statutory right when it
refused them a hearing before the board of trustees to
complain of the superintendent's denial of their employ-
ment grievances. Corvus Christi IndeD. School Dist. v.
Padilla, 709 S.W.2d 700 (Tex. App. - Corpus Christi 1986, no
writ). The employees alleged that the district's refusal of
a hearing "chilled and violated their first amendment right
to freedom of expression and denied them equal protection of
the laws." & at 705. The court pointed out that time was
allotted at every regular meeting of the board for an "open
forum" at which any person could address the board about any
matter, and that this opportunity to address the board gave
adequate protection to their constitutional rights.
In considering whether information about workmen's
compensation claims was available to an association of
employers under the Open Records Act, the Supreme Court of
Texas stated as follows:
Even though a workman's knowledge that in-
formation concerning his claim will be
available for public inspection may deter him
from exercising his statutory right to file a
claim, the general availability of such
information would not adversely affect any
right thus far recognized to be within a
constitutionally protected zone of privacy.
Industrial Found. of the South v. Texas Indus. Accident Bd.,
540 S.W.2d 668, 681 (Tex. 1976), cert. denied, 430 U.S. 930
(1977). We believe this discussion also applies to the
"chilling effect" you assert.
Decisions of the courts and this office under the Open
Records Act have considered whether various items of
information about public employees comprise *linformation
deemed confidentiall' by a constitutional or common-law right
of privacy or "information in personnel files, the dis-
closure of which would constitute a clearly unwarranted
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invasion of personal privacy." V.T.C.S. art. 6252-17a,
§ 3(a) (I), (4 (2). The following items of information have
been found not to be private information under these
standards: letters of reprimand sent to public employees;
basic facts about citizen complaints against law enforcement
officers, including the officer's name and the nature and
disposition of the complaint: the names of school teachers
who have not passed the TECAT exam: and details of a
complaint of employment discrimination against a city filed
with the city human rights commission. Attorney General
Opinion MN-372 (1981); Open Records Decision Nos. 484
(1987) ; 441 (1986): 155 (1977). These items of information,
like a notice that the school board will hear the grievance
of a named employee, reveal that someone has complained
about the public employee, or that the public employee has a
complaint against his employer. The fact that a public
employee has a grievance against his employer is not private
information.
Some early open records decisions of our office appear
to support a contrary conclusion. These opinions were based
on a particular method of construing the Open Records Act
and the Open Meetings Act in harmony. See Open Records
Decision Nos. 82, 68 (1975). Open Records Decision No. 60
(1974) considered whether information in school board
minutes on the hiring, compensation, discipline, and
dismissal of employees was subject to disclosure under the
Open Records Act. The opinion determined that the public
policy embodied in the Open Meetings Act permits non-
disclosure of the parts of the minutes recording executive
session discussion of these matters. It found them con-
fidential under sections 3(a)(l) and 3(a)(2) of the Open
Records Act. Open Records Decision No. 68 (1975) held that
an employee's letter of resignation submitted at an execu-
tive session meeting of a school board was excepted from
public disclosure by sections 3(a)(l) and 3(a)(2). Open
Records Decision No. 103 (1975) accorded confidentiality
to the name of a school district employee when the board
discussed him in executive session but took no action.
See also Open Records Decision No. 159 (1977) (overruled by
Open Records Decision No. 485 (1987)).
These decisions are characterized by an expansive
notion of employee privacy. Moreover, they treat section
2(g) of the Open Meetings Act as if it were a statute that
deemed information "confidential by lawI' within section
3(a)(l) of the Open Records Act. These constructions have
been rejected by subsequent decisions of the courts and this
office. Open Records Decision No. 485 pointed out that
section 3(a)(2) of the Open Records Act applies only to
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Honorable Bob McFarland - Page 6 (JM-1112)
information about an employee that is highly intimate or
embarrassing, such that a reasonable person would object to
its release, and that is of no legitimate concern to the
public. Hubert v. Harte-Hanks Texas Newsoaoers, 652 S.W.2d
546 (Tex. App. - Austin 1983, writ ref'd n.r.e.) (citing
Industrial Found. of the South v. Texas Indus. Accident Bd.,
540 S.W.2d 668, 683-85 (Tex. 1976)); see alSp Open Records
Decision Nos. 260 (1980); 168 (1977). Thus, Open Records
Decision No. 485 concluded that the "standard for applying
section 3(a)(2) clearly does not justify the conclusion that
any report concerning a public employee which is discussed
in an executive session necessarily may be withheld under
section 3(a)(2)." Open Records Decision No. 485, at 9.
The standard for determining whether personnel information
is confidential under sections 3(a)(l) and 3(a)(2) stated in
Open Records Decisions Nos. 60, 68, 82, and 103 has been
rejected. These decisions do not state the law correctly
and should not be followed.
Open Records Decision No. 485 also dealt with the
question of harmonizing the Open Records Act and the Open
Meetings Act. In rejecting the argument that a report
considered in an executive session was exempted from public
disclosure by section 2(g) of the Open Meetings Act, Open
Records Decision No. 485 stated as follows:
The implication of your argument is that
any document, regardless of its contents and
regardless of whether it would otherwise be
available to the public, is perpetually
8confidential* within section 3(a)(l) if it
is ever considered in an executive session
of the governmental body which prepared
or maintains it. We cannot accept this
conclusion. Section 14(d) of the Open
Records Act provides that the act is to be
liberally construed in favor of granting
requests for information. Our courts,
moreover, have held that close judgment calls
are to be resolved in favor of public access
to information. Hubert v. Harte-Hanks Texas
Newsoaoers.Inc. . . . at 552. An interpre-
tation of the two statutes which would effec-
tively place beyond the reach of the public
any document discussed ' executive
session of a governmental igdyatould hardly
be in keeping with these statutory and
judicial mandates.
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Id. at 9-10. The fact that an employee's grievance is to
be discussed in an executive session does not make the
employee's name confidential. A school district ordinarily
should include the employee's name in the posted notice of
the meeting.
You also ask whether the Open Meetings Act requires
identification of the aggrieved employee by name and the
subject matter of the appeal. The court in Cox Enterorises,
suora, discussed the notice requirement as follows:
We have held that general notice in
certain cases is substantial compliance even
though the notice is not as specific as it
could be. &,g Lower Colorado River Authority
V. Citv of San Marcos, 523 S.W.Zd 641 (Tex.
1975), and Texas Turnoike Authoritv v. CitV
of Fort Worth, 554 S.W.2d 675 (Tex. 1977).
However, less than full disclosure is not
substantial compliance. Our prior judgments
should have served as notice to all public
bodies that the Open Meetings Act requires a
full disclosure of the subject matter of the
meetings. The Act is intended to safeguard
the public's interest in knowing the workings.
of its governmental bodies. A public body's
willingness to comply with the Open Meetings
Act should be such that the citizens of Texas
will not be compelled to resort to the courts
to assure that a public body has complied
with its statutory duty.
Id. at 959-60.
Notice of a school board meeting should fully disclose
the subject matter of the meeting, including any considera-
tion of an employee's grievance. The information necessary
in a given case to disclose this subject fully to the public
depends on the facts and circumstances relevant to that
case. We cannot give you a formula stating the exact infor-
mation that must be included in the notice. Ordinarily, the
employee's name should be included in the notice.
This office is not in the best position to know what
information will alert the public to the subject matter of a
meeting. When in doubt as to the contents of the notice, we
advise the school district to err on the side of including
information.
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Honorable Bob McFarland - Page 8 (JM-1112)
SUMMARY
The notice of a school board meeting at
which the board will hear the appeal of an
employee grievance in executive session
should fully disclose the subject matter of
the meeting. The notice about the grievance
ordinarily should include the name of the
employee who is pursuing the grievance. We
cannot state what items of information the
notice should include in a given case, but we
advise you to err on the side of including
information. Open Records Decision Nos. 60
(1974), 68, 82, and 103 (1975) do not apply
the correct standard for determining whether
personnel information is confidential under
the Open Records Act and should not be
followed.
Ll /ytfQltt
Very truly yo
&
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
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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