Dear Superintendent:

The Attorney General issued an opinion yesterday interpreting the Texas Open Meetings Act. See Texas Attorney General Opinion GA-511. The Attorney General was asked three questions. First, does the TOMA require school districts to specifically state the section the district is relying on to go into closed session? Second, whether the Board could invite select members of the public and exclude the news media pursuant to Section 551.074? The last question dealt with criminal penalties and was not specifically answered as it is question for a jury.

Is a governmental body on its agenda required to state the specific section authorizing executive session?

The Attorney General has opined that you are not required to state the specific section of the TOMA on your agenda. However, you must give the public notice of the topic of your discussion. The agenda in question did not specifically list section number, but did give the public sufficient notice of the topics to be discussed in closed session. I recommend that you list the specific section you are relying upon to enter closed session. By listing the specific section and explaining the topic, there is no question as to whether the public is receiving proper notice.

Admission of selected members of the public into a closed meeting

The school district in question allowed some members of the public to give input about the superintendent, but excluded other members of the public. It was essentially a public comment in closed session. As you are aware, school districts can conduct a closed meeting to “hear a complaint or charge against an officer or employee.” In this case, members of the public were merely invited to give input. The Attorney General held the Board was not hearing a complaint or charges against an officer or employee.

Many school districts around the state will recess into closed session when a member of the public complains about an employee. Unless the District specifically has an agenda item to hear the complaint, the Board cannot recess into closed session.

Does this opinion mean that Boards cannot invite selected individuals into a closed session? No, but their presence must be necessary and the agenda must allow the governmental body to meet in closed session on topic. The individuals should also be excused when their presence is no longer necessary.

I do not believe this opinion substantially limits the Board’s existing discretion to determine who is allowed to be in closed session. However, they need to exercise caution. However, the ability of prosecutors and members of the public to second-guess decisions made in “good faith” demonstrates the need to exercise caution. If there is a question as to whether the Board should allow someone into closed session, please contact me before acting and minimize the potential criminal liability and negative publicity.