open government training, tagd leadership training, september 2014: bill dugat

© 2014 BICKERSTAFF HEATH DELGADO ACOSTA LLP

Open Government Training

Bill Dugat

512-472-8021

[email protected]

3711 S. MoPac Expwy.

Bldg. 1, Suite 300

Austin, TX 78746

www.bickerstaff.com

Texas Alliance of Groundwater DistrictsLeadership Training

Lubbock, TXSeptember 16-17, 2014

mailto:[email protected]

http://www.bickerstaff.com/


“TOMA” = Texas Open Meetings Act (Ch. 551, TEX. GOV’T CODE)

“Stakes are high” -- CIVIL AND CRIMINAL suits can be filed against TOMA violator

IT’S THE LAW:

each elected/appointed member of governmental body shall complete 1-hour of approved training within 90-days of oath or otherwise assuming responsibilities of office; and

course completion certificate must be filed with governmental body for public

inspection

TEX. GOV’T CODE §§551.005, 551.141-551.146

Open Meeting Training: Required by Law


Texas Attorney General’s (TXOAG)Open Meetings Handbook

• TXOAG publishes the Open Meetings Handbook

• IT’S FREE -- Download from TXOAG website

• VALUABLE RESOURCE TOOL -- OBTAIN AND READ THIS HANDBOOK


GENERAL RULES:

Every meeting is open to the public.

Actions taken in violation of TOMA are voidable.

Any interested person (including the media) can file a civil suit to void actions taken in violation of TOMA.

Criminal prosecution may result from TOMA violations.

TEX. GOV’T CODE §§551.141–551.144

TOMA Statutory Analysis: History and Policy Goals


TOMA Statutory Analysis:Key Definitions

• “Meeting” means deliberation between a quorum of a body subject to TOMA during which public business is discussed or considered.

• “Deliberation” means a verbal exchange (including oral or written

communication) during a meeting between a quorum of a governmental body, or between that quorum and another person, concerning the public business of the governmental entity.

• “Governmental Body” includes a GCD. • “Quorum” means a majority of the governmental body, unless

differently defined by other law.

TEX. GOV’T CODE §551.001


TOMA Statutory Analysis:“Walking Quorum” Prohibited

Under TOMA §551.143, it is a crime to knowingly conspire to circumvent the requirements of TOMA by meeting in numbers less than a quorum for the purpose of secret deliberation.

“Walking Quorum” = prohibited, sequential conferencing in numbers less than a quorum.

The “physical presence of a quorum in a single place at the same time is not always necessary for a violation...to occur.” Op. Tex. Att’y Gen. No. DM-095 (1992) at 4.

Members of a governmental body may “violate the Open Meetings Act even though they are not physically present in one place, for example by discussing public business of the governmental body over the telephone.” Tex. Att’y Gen. No. LO-055 (1995) at 3-4.

TEX. GOV’T CODE §551.143


TOMA Statutory Analysis: 2011 TXOAG Opinion Regarding “Walking Quorum”

• Op. Tex. Att’y Gen. No. GA-0896 (2011) at 1-2, citing Op. Tex. Att’y Gen. No. DM-095 (1992) and relevant case law

• Facts = Email disseminated among members of governing body in numbers less than a quorum

TEX. GOV’T CODE §§551.001, 551.143-.144


TXOAG concluded that:

Although TOMA applies to a “verbal exchange” of a “quorum” of the members of the body, the: (1) words need not be spoken in person; and (2) members need not be in the physical presence of each other to constitute a quorum.

Electronic communication (including email) may constitute “deliberation” and a “meeting” under TOMA -- thereby requiring TOMA compliance.

A determination of whether the members of the body violated TOMA involved an analysis of the “respective states of mind” of each member involved in an alleged violation -- this because the TOMA “walking quorum” statute (§551.143) requires the violator to “knowingly” commit the violation.

Risk exists for a “walking quorum” in view of the widespread use of electronic communication -- including email, texting, and social media.

TEX. GOV’T CODE §§551.001, 551.143-.144

TOMA Statutory Analysis: 2011 TXOAG Opinion Regarding “Walking Quorum”


TOMA Statutory Analysis: Meeting Requirements – Public Participation

“A meeting that is ‘open to the public’ under the Act is one that the public is entitled to attend. The Act does not give the public a right to speak at such meetings.” Op. Tex. Att’y Gen. No. JC-0169 (2000) at 1.

As a courtesy, many local governments provide a “public comment” time for attendees to address the body.

Reasonable rules may be imposed regarding “public comment” and “public hearings” -- including fair limitations on the number of speakers and presentation length.

Access for disabled persons is required under the federal Americans with Disabilities Act.

Interpreters for the hearing impaired may be provided upon request, although not required by TOMA.

TEX. GOV’T CODE §§551.001-.002

42 U.S.C. §§ 12131-12165


TOMA Statutory Analysis:Meeting Requirements – Meeting Types

TOMA recognizes three types of meetings: (1) regular; (2) special (or called); and (3) emergency.

Meeting cannot begin until quorum is present.

TOMA applies to committee meetings when committee: (1) contains one or more members of body; (2) meets to discuss public business; and (3) has ability to supervise/control business of body.

“Workshop Meetings” (no formal action taken) not defined by TOMA -- but TOMA still applies.

TOMA does not apply to quorum gathering at social function, convention, ceremonial event, or press conference -- so long as formal action not taken and discussion of public business only incidental.

TEX. GOV’T CODE §§551.001-.002, 551.141-.143


TOMA requires date, hour, place, and subject of any meeting (Agenda) to be posted AT LEAST 72 HOURS IN ADVANCE

EXCEPTION: Emergency meeting notice = (1) must define the emergency -- imminent threat to public health/safety or reasonably unforeseeable situation, must exist and be clearly identified in notice; (2) must be sent to the media by telephone, facsimile, or e-mail; and (3) public notice must be posted AT LEAST 2 HOURS IN ADVANCE

EXCEPTION: “Recessed Meeting” = No posting required if meeting recessed until following business day -- subsequent recess requires new posting

TEX. GOV’T CODE §§551.041-.0411, 551.045-.047

TOMA Statutory Analysis: Meeting Requirements -- Agenda Posting (Time)


GENERAL RULE = Notice must be posted in place readily accessible to public -- capable of being read at all times of day/night

COMMON PRACTICE = Posting notice backwards on inside of exterior door of authorized building

TEX. GOV’T CODE §§551.043, 551.048-.056

TOMA Statutory Analysis: Meeting Requirements -- Agenda Posting (Location)


Meeting cannot begin until quorum present -- must begin in open session pursuant to proper agenda posting

Final action/decision can occur only in open session held in compliance with TOMA.

Secret ballots or unanimous written consent prohibited -- ACTUAL VOTE AT MEETING BY MEMBERS OF BODY REQUIRED

BEST PRACTICE = Adopt rules for: (1) placing items on agenda; (2) order of agenda; (3) motions and voting; (4) tabling or postponing action; (5) input from governing body, staff, consultants, and public; (6) recording equipment used by public during meeting

REQUIRED RECORD OF OPEN SESSION = minutes or tape recording (public records); minutes must be permanently preserved

TEX. GOV’T CODE §§551.021-.023, 551.101-.102

TOMA Statutory Analysis: Meeting Requirements -- Open Session Rules


TOMA Statutory Analysis: Meeting Requirements -- Closed Session Rules

Move to closed session through pronouncement of TOMA statute/authorized topic to support closed session

Weatherford v. City of San Marcos, 157 S.W.3d 473, 485 (Tex. App. -- Austin 2004, pet. denied) (TOMA does not prohibit opinions being expressed in closed session -- but decision must occur in open session)

REQUIRED RECORD = (1) certified agenda (describes subject matter, action taken, and announcement by presiding officer of date/time and beginning/end of session); or (2) tape recording;

Record must be (1) preserved at least 2 years -- and to completion of any suit filed regarding meeting, and (2) is EXPRESSLY CONFIDENTIAL

TEX. GOV’T CODE §§551.071-.074, 551.087, 551.101-.104, 551.129



No person may be admitted whose interest is adverse to government -- exclusion extends to opposing suit parties and proposed seller of property to government

TEX. GOV’T CODE §§551.071-.074, 551.087, 551.101-.104, 551.129



Many authorized topics exist under TOMA -- including:

(1) personnel matters;

(2) consultation with attorney;

(3) deliberation regarding real property;

(4) gifts and donations;

(5) economic development negotiations.

TEX. GOV’T CODE §§551.071-.074, 551.087, 551.101-.104, 551.129


• TEX. GOV’T CODE § 551.143 -- Member of body commits offense if he knowingly conspires to circumvent TOMA by meeting in numbers less than quorum for secret deliberations in violation of TOMA; PUNISHMENT = fine of not less than $100 or more than $500, jail confinement for not less than one month or more than six months, or both such fine and confinement

• TEX. GOV’T CODE § 551.144 -- Member of body commits offense if closed meeting

is not permitted under TOMA, and he knowingly: (1) calls/aids in calling or organizing closed meeting, whether special or called meeting; (2) closes or aids in closing meeting if a regular meeting; or (3) participates in closed meeting, whether regular, special, or called meeting; PUNISHMENT = fine of not less than $100 or more than $500, jail confinement for not less than one month or more than six months, or both such fine and confinement.

TEX. GOV’T CODE §§551.143-.146

TOMA Statutory Analysis:Criminal Enforcement


TEX. GOV’T CODE § 551.145 -- Member of body commits offense if he participates in closed meeting knowing that certified agenda is not being kept or tape recording is not being made. PUNISHMENT = fine of not more than $500.

TEX. GOV’T CODE § 551.146 -- Individual, corporation, or partnership commits offense if, without lawful authority, he/it knowingly discloses to member of public certified agenda or tape recording of meeting lawfully closed to public under TOMA. PUNISHMENT = fine of not more than $2,000, jail confinement for not less than 180 days, or both such fine and confinement.

TEX. GOV’T CODE §§551.143-.146

TOMA Statutory Analysis:Criminal Enforcement


Legislative Update:From 2013 Legislative Session

TEX. GOV’T CODE § 551.127 -- A member or employee of a governmental body may participate in a public meeting of the body via a videoconference call if the audio and video feed of that person’s participation is broadcast live at the meeting and otherwise complies with TOMA.

TEX. GOV’T CODE §§551.127



A meeting of a governing body may be held by a videoconference call if:• Quorum is physically present at one location of the meeting.• Quorum exception if a space is made available for public to

actively participate in meeting via audio and video display, and the presiding member is present with the public participants.

TEX. GOV’T CODE §§551.127



TEX. GOV’T CODE § 551.125, 551.131 -- Water districts with jurisdictional territory located in three or more counties may conduct a meeting by telephone conference call or videoconference call only if:

(a) the meeting is a special/called meeting and immediate action is required; and

(b) the convening of a quorum of the body at one location is difficult or impossible.

TEX. GOV’T CODE §§551.125, 551.131


Public Information Act


Reminders

Texas Public Information Act (Ch. 552, Tex. Gov’t Code -- TPIA) is subject of legislative changes, case law, and opinions of Office of the Texas Attorney General (TXOAG)

TXOAG publishes: 2012 Public Information Handbook of the Attorney General of Texas – Download a copy

Public Information Officer MUST DISPLAY SPECIAL SIGN at on or more plainly visible locations in administrative offices


Public Information Defined “Public Information” = all information collected, assembled or maintained under law or

ordinance or in connection with transaction of official business: by governmental body for governmental body -- if body owns the information or has a right of access to it

Includes all formats/media/types of information

Watch out for: “Personal Information” (maintained on personal information devices: private emails)• Was the information collected, assembled, or maintained by the governmental body• If so, is the information owed by the district or does it have access to it

Example: directors’ degrees “3rd Party Information” (maintained by 3rd party for governmental body)• Does the Board own the information or have a right to access

Example: consultant or lawyer report


Adkisson v. Abbott, ___S.W.3d ___, 2014 WL 2708424 (Tex. App.―Austin, June 13, 2014)

Facts:

• San Antonio Express News requested emails between a Bexar County Commissioner and two citizens related to the Commissioner’s official capacity as a County Commissioner and all correspondence between the Commissioner and six other people from devices used in official capacity

• The Commissioner and Bexar County did not release emails of the Commissioner that were on the Commissioner’s personal devices


Court’s Decision:

• A public official cannot circumvent the PIA requirements by maintaining the information on personal devices or in personal emails

• All records of public or official business maintained on a personal device (computer, iPad, cell phone, notepad, calendar) belongs to the governmental entity


• The public official is therefore responsible for maintaining the public information created or received by him, his employees, or his office (no matter where the information is physically created or received) for the governmental entity

• These documents are subject to the open records requirements


Proper and Improper Requests

Written request required• May seek inspection/review/copying• No requirement to respond to a verbal request• Must provide uniform treatment

Improper request• Information not in existence at time of request• District not required to create new information, • Not required to do legal research, answer questions • Not required to treat request as continuing duty to provide

information


Proper and Improper Requests (cont’d)

Clarification Procedure• If request is overbroad or unclear, district may seek good faith

clarification• Clarification request must inform requestor of consequences of failure

to timely respond within 61 days (request considered withdrawn)• Note “Reset Rule”

May not inquire regarding the requestor’s motive or intended use of information

Practice Tip - Confirm Receipt Facts• Date/time of receipt • Method of receipt • Correct name of receipt person


Procedures to Access

Written request for public information is received The District must promptly produce for inspection, duplication, or both,

the requested documents. “Promptly” means as soon as possible under the circumstances, without delay.

To withhold documents from public disclosure, the District must ask for a decision from the Attorney General about whether the information is within one of the exceptions:

• Must make that request within 10 days of receipt of the open records request

• Must submit representative copies of the documents, along with other information, within 15 days of receipt of the open records request

If no timely request is made by the governmental entity, the information is presumed public


Exceptions to Disclosure More than 50 in TPIA; other non-TPIA statutory exceptions exist, too

Most TPIA disclosure exceptions are discretionary

Commonly encountered exceptions involve information regarding:• Attorney-client privilege matters• District employee personal contact data• Trade secrets/commercial information of 3rd party• Memoranda of law, recommendations or opinions that relate to governmental body’s

policymaking• Social security number of living person• Contemplated or active litigation• Location/price of property• Information that relates to e-mail addresses

“Super Public Information” not excepted -- unless deemed confidential by TPIA or other law


Repetitious Requests May refuse to process repetitious/redundant requests only when district previously furnished

copies (Section 552.232)• Must certify to requestor:

Information previously provided Date original request received Date information originally provided Certify no changes in information Name, title, and signature

Not necessary to request decision if a previous decision has been made• Key is “previous determination”• Same entity requested/received an AG opinion• Precise information• No change in circumstance

Broader determination by AG:• AG explicitly provides applies to all requests• Example: certified agendas


Time-Consuming RequestsBy a Single Requestor

May establish a reasonable limit, not less than 36 hours in a 12 month period, on amount of time spent responding to a requestor, without recovering costs• i.e., if more than 36 hours spent responding to

requests of one person in 12 months, then can recover costs for materials, labor, and

Requires board to adopt policy and to issue cost statement


Civil Enforcement Suits Requestor may file suit against district to compel disclosure of information for

TPIA violations

TXOAG or District/County Attorney may file suit against district to compel disclosure of information for TPIA violations

District may file suit against TXOAG challenging unfavorable disclosure ruling by TXOAG

Third-party may file suit against TXOAG challenging unfavorable disclosure ruling by TXOAG regarding protected third-party information

In some circumstances, costs of litigation and reasonable attorney’s fees may be recovered against the district for the civil enforcement suit


Criminal Prosecution Against Individuals who Violate TPIA

Destruction, Removal, or Alteration of Public Information• Willfull destruction, mutilation, removal without permission, or alteration of public

information • Maximum punishment = $4,000 fine plus 3 months in jail Tampering with Governmental Record• Tampering with or destruction, removal, or concealment of district records• Maximum punishment = 1 year in jail plus $4,000 fine• Felony prosecution/punishment can occur Distribution or Misuse of Confidential Information• Distribution of information considered confidential under TPIA• Maximum punishment = $1,000 fine plus 6 months in jail Failure to Allow Access/Copying of Public Information• Failure (by criminal negligence) to give access to, or permit copying of, public

information as required by TPIA• Maximum punishment = $1,000 fine plus 6 months in jail Criminal Convictions• Official misconduct for which officials may be removed from office


Open Government Training

Bill Dugat

512-472-8021

[email protected]

3711 S. MoPac Expwy.

Bldg. 1, Suite 300

Austin, TX 78746

www.bickerstaff.com

Texas Alliance of Groundwater DistrictsLeadership Training

Lubbock, TXSeptember 16-17, 2014

mailto:[email protected]

http://www.bickerstaff.com/

open government training, tagd leadership training, september 2014: bill dugat

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