Can a Governmental Body Meet Behind Closed Doors?

Sep 17

Yes, Under These Exceptions to the Texas Open Meetings Act.

The Texas Open Meetings Act (TOMA) requires meetings of governmental bodies to be open to the public. TOMA was enacted to encourage “good government” by ending closed-door sessions in which deals are cut without public scrutiny.[1] But closed meetings can—and often do—still occur, under narrow exceptions to TOMA’s general rule of openness.

Only authorized persons may attend a closed session. Primarily, that means only the members of the governing body and any government employee necessary for the discussion to be held.

When conducting a closed session, a quorum of the governmental body must first convene in an open meeting that has been noticed. Tex. Gov’t Code § 551.101. The notice for a public meeting must include all subjects that the governmental body will discuss, including those that may be discussed in a closed meeting.[2] Generally, the notice does not have to state (i) which of the agenda items may be discussed in closed session rather than in open session or (ii) the specific section number(s) of TOMA authorizing the closed meeting.[3] However, the notice must be more specific if the public has a special interest in the topic under discussion.[4] For example, the Texas Supreme Court held insufficient the notice of a school board’s executive session that listed only general topics such as “litigation” and “personnel” when the items considered at the closed session included a major desegregation suit and the appointment of a new school superintendent.[5]

At the meeting, the presiding officer must announce that a closed meeting will be held and identify the section number(s) of TOMA or the content of the section(s) under which the closed meeting will be held. While a governmental body can deliberate in private, any final vote or action must be taken in open session.[6]

The most common reasons for a closed meeting are the deliberation of litigation, personnel matters, and the acquisition of real property.

Litigation: A governmental body may conduct a private consultation with its attorney only when it seeks the attorney’s advice about pending or contemplated litigation or a settlement offer, or on a matter in which the attorney’s duty of confidentiality conflicts with the requirement for open meetings. Tex. Gov’t Code § 551.071. A governmental body can’t engage in general discussion unrelated to legal matters merely because counsel is present.[7] The admission of adverse parties or lawyers to a closed session to discuss litigation is not permitted.[8]
Acquisition of Property: A governmental body may conduct a closed session to deliberate the purchase, exchange, lease, or value of real property if deliberation in an open meeting would have a detrimental effect on the governmental body’s position in negotiations with a third person. Tex. Gov’t Code § 551.072. This does not mean that a governmental body can “cut a deal in private, devoid of public input or debate.”[9]
Personnel Matters: A governmental body may conduct a closed session to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee or to hear a complaint or charge against an officer or employee. Tex. Gov’t Code §§ 551.074; 551.0745. However, the governmental body may not conduct a closed meeting if the officer or employee who is the subject of the deliberation requests a public hearing. The closed meeting exception for personnel matters does not apply when the governmental body discusses an independent contractor who is not a school employee, such as an engineering, architectural, or consultant firm, or when the governmental body discusses a class or group of employees, not a particular employee.[10]

A governmental body is also authorized to meet in closed session to deliberate the following topics:

Economic Development Negotiations: A governmental body may conduct a closed session: (i) to discuss or deliberate regarding commercial or financial information that the governmental body has received from a business prospect that the governmental body seeks to have locate, stay, or expand in or near the territory of the governmental body and with which the governmental body is conducting economic development negotiations; or (ii) to deliberate the offer of a financial or other incentive to such a business prospect. Tex. Gov’t Code § 551.087.
Security Matters: A governmental body may conduct a closed session to deliberate: (i) the deployment, or specific occasions for implementation, of security personnel or devices; or (ii) a security audit. Tex. Gov’t Code § 551.076. A governmental body may also conduct a closed session to deliberate: (i) security assessments or deployments relating to information resources technology; (ii) network security information; or (iii) the deployment, or specific occasions for implementation, of security personnel, critical infrastructure, or security devices. Tex. Gov’t Code § 551.089.
Prospective Gifts or Donations: A governmental body may conduct a closed session to deliberate a negotiated contract for a prospective gift or donation if deliberation in an open meeting would have a detrimental effect on the governmental body’s position in negotiations with a third person. Tex. Gov’t Code § 551.073.
Medical or Psychiatric Records: TOMA does not require a medical board or medical committee to conduct an open meeting to deliberate the medical or psychiatric records of an individual applicant for a disability benefit from a public retirement system. Tex. Gov’t Code § 551.078. Similarly, TOMA does not require a benefits appeals committee for a public self-funded health plan or a governmental body that administers a public insurance, health, or retirement plan to conduct an open meeting to deliberate: (i) the medical records or psychiatric records of an individual applicant for a benefit from the plan; or (ii) matter that includes a consideration of information in the medical or psychiatric records of an individual applicant for a benefit from the plan. Tex. Gov’t Code § 551.0785.
Certain School Board Deliberations: A school board is not required to deliberate in open session (i) any case involving the discipline of a public school child or a complaint by one school district employee against another school district employee that results in the need for an immediate hearing or (ii) a matter regarding a public school student if personally identifiable information about the student will necessarily be revealed. Tex. Gov’t Code §§ 551.082; 551.0821. A school board operating under a consultation agreement with a representative of an employee group, as authorized by the Education Code, may deliberate in closed session regarding matters involving the standards, guidelines, terms or conditions that either the board or the board’s representatives will follow. Tex. Gov’t Code § 551.083.
Test Items for License Renewal/Certification: A governmental body may conduct a closed session to deliberate a test item or information related to a test item that might be included in a test for license renewal or the certification for participation in a governmentally sanctioned activity. Tex. Gov’t Code § 551.088.
Certain Contract Negotiations: The Texas Facilities Commission and the commissioners court of a county may conduct a closed meeting to deliberate business and financial issues relating to a contract being negotiated if, before conducting the closed meeting: (i) the Commission/commissioners court votes unanimously that deliberation in an open meeting would have a detrimental effect on the position of the state in negotiations with a third person; and (ii) the attorney advising the Commission/commissioners court issues a written determination finding that deliberation in an open meeting would have a detrimental effect on the position of the state in negotiations with a third person. Tex. Gov’t Code §§ 551.0725; 551.0726.
Conference Relating to Investments and Potential Investments Attended by Board of Trustees of Texas Growth Fund: TOMA does not require the board of trustees of the Texas Growth Fund to confer with one or more employees of the Texas Growth Fund or with a third party in an open meeting if the only purpose of the conference is to obtain certain investment information. Tex. Gov’t Code § 551.075. Tex. Gov’t Code § 551.079.
Solvency of Individual Regulated by Texas Department of Insurance: TOMA does not apply to certain meetings of the Texas Department of Insurance regarding the solvency of regulated persons.
Interviews of Inmates: TOMA does not require the Board of Pardons and Paroles to conduct an open meeting to interview or counsel an inmate of the Texas Department of Criminal Justice. Tex. Gov’t Code § 551.080.
Exclusion of Witness from a Hearing: A governmental body investigating any matter can exclude a witness from a hearing while examining another witness involved in the same investigation. Tex. Gov’t Code § 551.084.
Certain Matters Confidential by Law: TOMA does not require the Credit Union Commission or the Finance Commission of Texas to conduct an open meeting to deliberate a matter made confidential by law. Tex. Gov’t Code §§ 551.081; 551.0811.
Certain Deliberations by Health Care Providers: The governing board of a municipal hospital, municipal hospital authority, or hospital district may deliberate in closed session regarding the pricing or financial planning information relating to either a bid or negotiation for the arrangement or provision of services or product lines if disclosure of the information would advantage the competitors of the governing board. Tex. Gov’t Code § 551.085.
Competitive Matters for Public Power Utilities: TOMA does not require does not require a public power utility governing body to conduct an open meeting to deliberate, vote, or take final action on any competitive matter as defined in section 551.086(b)(3) of TOMA. Tex. Gov’t Code § 551.086.
Enforcement Committee Appointed by Board of Public Accountancy: TOMA does not require an enforcement committee appointed by the Texas State Board of Public Accountancy to conduct an open meeting to investigate and deliberate a disciplinary action. Tex. Gov’t Code § 551.090.

Some state agencies are authorized by their governing law to hold closed meetings on subjects in addition to those authorized by TOMA. For example, under the Texas Disaster Act, a governmental body can conduct a closed meeting to discuss certain information relating to emergencies and disasters. Tex. Gov’t Code § 418.183(f).

Despite the exceptions enumerated in TOMA, a governmental body cannot close a meeting that its charter prohibits from being closed or requires to be open. Tex. Gov’t Code § 551.004.

Holding a closed meeting that is not properly noticed or not authorized can have serious ramifications. A member of a governmental body is subject to criminal penalties if a closed meeting is not authorized under TOMA and he or she knowingly (i) calls or aids in calling or organizing the closed meeting (special or called), (ii) closes or aids in closing a regular meeting to the public, or (iii) participates in the closed meeting, whether it is a regular, special, or called meeting. Tex. Gov’t Code § 551.144. A member of a governmental body is also subject to criminal penalties if he or she participates in a closed meeting knowing that no certified agenda is being kept or no recording is being made. Tex. Gov’t Code § 551.145. In addition, action taken during a closed meeting that violates TOMA is voidable. Tex. Gov’t Code § 551.144.

[1] Save Our Springs Alliance, Inc. v. Lowry, 934 S.W.2d 161, 162 (Tex.App.-Austin 1996, orig. proceeding).

[2] Tex. Att’y Gen. Op. No. GA-0511 (2007).

[3] Tex. Att’y Gen. Op. No. GA-0511 (2007) (“Neither [TOMA] nor judicial decisions require the notice to state the section number of the provision authorizing the closed meeting.”); Tex. Att’y Gen. Op. No. JC-0057 (1999) (“Neither [TOMA] nor cases interpreting it require the notice to state that a particular subject will be discussed in executive session rather than in open meeting . . . [However,] when the notices posted for a governmental body’s meetings consistently distinguish between subjects for public deliberation and subjects for executive session deliberation, an abrupt departure from this practice may deceive the public and thereby render the notice inadequate.”).

[4] Cox Enter. v. Board of Trustees of Austin Indep. Sch. Dist., 706 S.W.2d 956, 959 (Tex. 1986).

[5] Cox Enter. v. Board of Trustees of Austin Indep. Sch. Dist., 706 S.W.2d 956, 959 (Tex. 1986).

[6] Martinez v. State, 879 S.W.2d 54, 56 n.5 (Tex. Crim. App. 1994); Lone Star Greyhound Park, Inc. v. Tex. Racing Comm’n, 863 S.W.2d 742, 747 (Tex. App.—Austin 1993, writ denied).

[7] Tex. State Bd. of Pub. Accountancy v. Bass, 366 S.W.3d 751, 759 (Tex. App.—Austin 2012, no pet.)

[8] Tex. Att’y Gen. Op. No. MW-0417 (1981).

[9] Finlan v. City of Dallas, 888 F. Supp. 779, 787 (N.D. Tex. 1995).

[10] Tex. Att’y Gen. Op. No. MW-129 (1980); Tex. Att’y Gen. Op. No. JH-496 (1975).

Bill Cobb