Open Meetings Act Training

Kym OltroggeAssociate Director of Policy

Office of Chief Counsel

Committee’s Enabling Act

42 U.S.C. §300x-3: “A funding agreement for a grant under section 300x [for community mental health services] … is that the State … will establish and maintain a …mental health planning council ….”

1 Tex. Admin. Code §351.807: BHAC established to make recommendations concerning the allocation and adequacy of mental health and substance use disorder services and programs.

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House Speaker Gus Mutscher, Governor Preston Smith, former president Lyndon Johnson, and Lieutenant Governor Ben Barnes, at "Gus Mutscher Day" in Brenham, August 17, 1970. Within two years the political careers of Mutscher, Smith, and Barnes, along with numerous other officials, would be ended by the Sharpstown stock-fraud scandal. 1970/140-1, Current Events Photographic Documentation Program collection, Courtesy of Texas State Library and Archives Commission, Courtesy of Texas State Library and Archives Commission

Sharpstown Scandal

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GOVERNMENT CODE

TITLE 5. OPEN GOVERNMENT; ETHICS

SUBTITLE A. OPEN GOVERNMENT

CHAPTER 551. OPEN MEETINGS

Every meeting of a governmental body is open to the public, with some exceptions.

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Meeting =Quorum + Discussion of the committee’s public business

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REPLY ALL

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Contributions to http://formadoresinglessantafe1.wikispaces.com/ are licensed under a Creative Commons Attribution Share-Alike 3.0 License. 7

Wiki4des at English Wikipedia 8

Candidate Forum

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Larry D. Moore 10

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Guest Contribution of guest authors towards Techno FAQ blog. https://creativecommons.org/licenses/by-nc-sa/4.0/12

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Public NoticeAGENDA:

Mental Health Condition and Substance Use Disorder Parity Workgroup

January 16, 2018

9:00 a.m.

Meeting Site: Health and Human Services Commission

John H. Winters Human Services Complex Public Hearing Room

701 West 51st St. Austin, TX 78751

Conference line: 1-877-820-7831

Code: 941266

This meeting will be webcast. To access the webcast, go to https://hhs.texas.gov/about-hhs/communications-events/live-archived-meetings the day and time of the meeting.

1. Welcome and opening remarks

2. Review and approve November 27, 2017, meeting minutes

3. Review and approve Bylaws

4. Review and approve meeting dates

5. Review subcommittee structure survey and approve subcommittees

6. Establish subcommittee membership and leadership 14

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Contributions to http://alexisrowland.wikispaces.com/ are licensed under a Creative Commons Attribution Share-Alike 3.0 License. 22

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Thank youKym Oltrogge

Kymberly.Oltrogge@hhsc.state.tx.us512-424-6513

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Behavioral Health Advisory Committee

Presenter: Kym Oltrogge January 11, 2019

• 42 U.S.C. §300x-3 + 1 Tex. Admin. Code §351.807. • The Committee is subject to the Open Meetings Act because it is the

HHS Enterprise policy that all advisory committees comply with the Open Meetings Act.

• It is lawful for a licensed handgun holder to carry any handgun, openly or concealed, into a Committee meeting.

Open Meetings Act, Tex. Gov't Code ch. 551:

The OMA requires a governmental body to hold all meetings in public, in an accessible location.1

Meeting requirements: Under the terms of the OMA, a meeting is:

1. A deliberation between a quorum of a governmental body, or between a quorum and another person, during which the public business over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; or

2. A gathering of a quorum that the governmental body conducts or for which it is responsible, that the governmental body has called, and at which the members receive information from, give information to, ask questions of, or receive questions from any third person about the public business or public policy over which the governmental body has supervision or control.2

1 Tex. Gov't Code § 551.002; see also id. § 551.001(3) (defining "governmental body"). An advisory committee is not subject to the Open Meetings Act under the terms of that Act, but an HHSC advisory committee that is established under Texas Government Code § 531.012 is subject to the Open Meetings Act by rule, 1 Tex. Admin. Code § 351.801(c). 2 Tex. Gov't Code § 551.001(4).

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A meeting is any gathering at which a quorum of the governmental body is present and at which the governmental body's business is discussed.3 A meeting can be virtual! Under the Committee’s rule, 1 Tex. Admin. Code §351.807(f)(1), the Committee has “no more than 19 members.” If the Committee has 19 members, a quorum is 10. Gatherings of a quorum that may not be a meeting:

1. Social function4 2. Regional, state, or national convention or workshop, ceremonial

event, or press conference5 3. Candidate forum, appearance, or debate6 4. Legislative committee or legislative agency meeting or hearing7

Meeting by teleconference or video conference: Each governmental body member who attends a meeting by phone or video is counted when determining whether a quorum is present. Telephone conference call: Under the Open Meetings Act, an advisory committee may hold a meeting by telephone conference call at any time.8

• Same notice requirements as a face-to-face meeting9 • Location of the meeting in the notice is the location where

governmental meetings are usually held.10 • Location must provide two-way communication during entire

call.11 • Each party must be clearly identified before speaking.12 • Public must be able to hear open portions of the meeting.13

3 See id.; see also id. § 551.001(2), (6) (defining "deliberation" and "quorum"). 4 Id. § 551.001(4). 5 Id. 6 Id. 7 Id. § 551.0035. 8 Id. § 551.125(b)(3). 9 Id. §551.125(c). 10 Id. § 551.125(d). 11 Id. § 551.125(f). 12 Id. 13 Id. § 551.125(e).

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• Open portions of the meeting must be recorded.14 • Recording is an open, public record, and must be made available

“in an online archive located on the Internet website of the entity holding the meeting.”15

Videoconference call: A governmental body may hold a meeting by videoconference call.16 Additionally, a member may participate by means of a videoconference call if the video and audio feed of the member’s participation is broadcast live at the meeting.17

• Same notice requirements as a face-to-face meeting, except that the notice must state: • the location where the presiding officer will be located; and • the committee’s intent to have the presiding officer there.18

• Member participating by videoconference is counted as present unless audio or video communication is lost or disconnected; if the disconnection causes the governmental body to lose a quorum, the governmental body may not continue the meeting.19

• Presiding officer must be physically present at the location that is open to the public.20

• Location open to the public must have an audio and video display. If meeting loses audio/video, meeting must be recessed or, after six hours, adjourned. 21

• Public must be able to participate in the meeting to the same extent they would at any other meeting.22

• Texas Government Code § 551.127 sets out other technical requirements.

Notice requirements:

14 Id. 15 Id. § 551.121(f) 16 Id. § 551.127(a). 17 Id. § 551.127(a-1). 18 Id. § 551.127(d). 19 Id. § 551.127(a-2), (a-3). 20 Id. § 551.127(c). 21 Id. §551.127(f). 22 Id. § 551.127(c).

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• Substance of the notice: The Open Meetings Act requires a governmental body to notify the public in writing that a meeting will occur. The written notice must include the following:

• Date of the meeting • Hour of the meeting • Place at which the meeting will be held • Subject or subjects to be discussed at the meeting.23

• Posting: With respect to an HHSC advisory committee, notice must be

posted on the Secretary of State’s website “at least seven days before the date of the meeting.”24 Under a Secretary of State rule interpreting the seven-day posting requirement, this means “seven full 24-hour periods before the day of the meeting” and “[t]he day of posting and the day of the meeting are not included in calculating the seven-day period.”25 In addition, notice must be posted on the agency website “within the time required for posting under” the OMA.26

• In emergency circumstances, a governmental body may post notice or post a supplement to an already-posted notice fewer than seven days before the meeting. “In an emergency or when there is an urgent public necessity,” notice or a supplemental notice is sufficient if it is posted at least two hours before the meeting.27 Circumstances constituting an “emergency” or “urgent public necessity” are strictly limited: An emergency or an urgent public necessity exists only if a governmental body must take immediate action because of: (1) an imminent threat to public health and safety; or (2) a reasonably unforeseeable situation.28

Open portion of meeting:

1. Quorum must convene and adjourn in the open.29 2. Any action, decision, or vote must be in the open.30

23 Id. § 551.041. 24 Id. § 551.044(a). 25 1 Tex. Admin. Code § 91.21(a)(1). 26 Tex. Gov’t Code § 531.0165(d). 27 Id. § 551.045(a). 28 Id. § 551.045(b). 29 Id. § 551.101. 30 Id. § 551.102.

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3. If public comment is taken, the governmental body may not restrict on discriminatory grounds.

4. Do not discuss items not listed on the agenda. If a member of the public raises an issue not included in the posted notice, the governmental body may respond by:

a. Stating specific factual information; b. Reciting existing policy; or c. Telling the speaker that the subject will be on a future

agenda.31 5. Minutes must be kept or a recording made.32 If minutes are kept,

the minutes must note the subject of each deliberation and note each vote, order, decision, or action taken. The minutes or recording is subject to release under the Public Information Act.33

Closed portion of meeting: 1. A governmental body may meet in a closed meeting only if a

statute expressly authorizes the closure. Examples of authorized closed meetings:

a. Attorney-client consultation.34 b. Deliberation of a real-estate transaction or the value of real

estate if an open discussion would harm the governmental body's position in negotiations with a third person.35

c. Deliberation of a gift or donation if an open discussion would harm the governmental body's position in negotiations.36

d. Discussion of personnel matters.37 A discussion of the qualifications of persons under consideration for appointment to a statewide advisory committee is not a "personnel matter" that may be discussed in a closed session.38

e. Deliberation of the medical or psychiatric records of an applicant for benefits by a benefits appeals committee for a governmental body that administers a public insurance, health, or retirement plan.39

31 Id. § 551.042. 32 Id. § 551.021. 33 Id. § 551.022. 34 Id. § 551.071. 35 Id. § 551.072. 36 Id. § 551.073. 37 Id. § 551.074. 38 Tex. Att'y Gen. Op. No. DM-149 (1992). 39 Tex. Gov't Code § 551.0785.

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2. The members who are present must convene in the open.40 3. Before the governmental body goes into a closed meeting, the

presiding officer must announce that the body will go into a closed meeting and must announce the law or laws that allow the closure.41

4. No final actions, decisions, or votes may be taken.42 5. The governmental body must keep a certified agenda or recording

of each closed meeting.43 a. A certified agenda must:

i. State the subject matter of each item discussion; ii. Record any further action taken; iii. Reflect an announcement by the presiding officer of the

starting date and time and ending date and time of the closed meeting; and

iv. Include a certification by the presiding officer that the agenda is a true and correct record of what happened.44

b. A tape recording must include announcements by the presiding officer at the beginning and end of the meeting indicating the date and time.45

c. The certified agenda or recording is not available to the public under the Public Information Act.46

d. A member of the governmental body is not a member of the public.47

6. Only members of the governmental body have a right to attend. Other individuals may be admitted, but the governmental body should carefully consider the need for "other individuals" to be included.48

Penalties for violations:

1. Action is voidable, not void.49

40 Id. § 551.101. 41 Id. § 551.101. 42 Id. § 551.102. 43 Id. § 551.103. 44 Id. § 551.103(c). 45 Id. § 551.103(d). 46 Id. § 551.104. 47 Tex. Att'y Gen. Ops. DM-227 (1993); JC-120 (1999). 48 Tex. Att'y Gen. Op. No. GA-0277 (2004) and opinions cited therein. 49 Tex. Gov't Code § 551.141.

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2. If the advisory committee is subject to the Open Meetings Act by statute, criminal penalties are possible.50

Problems:

1. The Texas Dog Sled Racing Commission is a nine-member governmental body. Six of its members attend a legislative hearing on a proposed bill that would ban races in a state park on the Texas-Mexico border. The Commission did not post notice that a quorum would be attending the hearing. Commissioner Snow testifies before the legislative committee, and Commissioner White answers some questions posed by the legislators. After the hearing, the members discuss the bill in the hall. At what point is there a violation of the Open Meetings Act?

NOTES:

2. During a break in a meeting of the Texas Sandcastle Regulatory Commission—which is a three-member governmental body—two members went to the restroom and, while in the restroom, discussed a pending permit application for a sandcastle to be built on South Padre Island in an area that is important for sea turtle nesting. The members agreed that the needs of the sea turtles outweigh the need for a sandcastle and agreed that it would be best to vote against the application. When the Commission subsequently considered the application in the open meeting, there was no discussion but the two commissioners voted against the application. The remaining member voted in favor of the application. As a result, the proposal was rejected. Is there a violation of the Open Meetings Act in this situation?

NOTES:

50 Id. §§ 551.143 (conspiracy to circumvent chapter), 551.144 (closed meeting), 551.145 (closed meeting without certified agenda or recording), 551.146 (disclosure of certified agenda or recording of closed meeting).

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3. The Texas Dog Sled Racing Commission (nine members) has two committees. One committee has three commissioners, the other has six commissioners. Both committees are advisory only; decisions made by the committees are always brought to the full Commission for discussion and a vote. Is either committee subject to the Open Meetings Act?

NOTES:

4. The state employee responsible for coordinating the Texas Dog Sled Commission's meetings emails each member, in the week before the Commission's November meeting, a meeting packet that includes the agenda and supporting materials. One of the agenda items is a discussion of the Commission's planned trip to Alaska to experience the Iditarod. Upon receiving the email, one member responds that the Iditarod trip is an inappropriate use of state money and hits "Reply All." Is there a violation of the Open Meetings Act?

NOTES:

5. The Texas Sandcastle Regulatory Commission has a meeting

scheduled on September 10. Notice was timely posted. On September 8, the presiding officer learns of a new issue that the Commission should discuss at its meeting. Can the presiding officer add the subject to the agenda if the subject is:

a. Use of imported colored sand in sand castle construction? b. Loss of beach sand at South Padre Island due to a hurricane that

struck on September 6?

NOTES:

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6. In the notice for its October meeting, the Texas Dog Sled Racing Commission listed, as one of the subjects for discussion, "Evaluation, designation, and duties of the Commission’s Executive Director." At the meeting, the Commission, after discussion, voted to terminate the Executive Director. The Executive Director sued, saying the notice didn’t indicate he might be terminated and was therefore insufficient. Is he correct?

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7. A member of the Texas Sandcastle Regulatory Commission took notes

during a closed meeting. The notes are not the certified agenda; the commissioner took the notes for her personal use. A member of the public subsequently files a Public Information Act request for any notes taken during the closed meeting. Must the Commission release the notes to the requestor?

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8. The Texas Dog Sled Racing Commission voted to terminate the contract of its executive director at its June meeting. The executive director had been implicated in a betting scandal that was covered by several newspapers. The Commission posted timely notice, which listed as a subject item "Personnel matters." The Commission considered the matter in a closed meeting, although the agenda did not indicate that the item would be discussed in a closed meeting. The closed meeting was held first thing, after the presiding officer and one other commissioner convened the meeting in open session; the other commissioners waited in the meeting where closed meetings were held. The embattled executive director, her attorney, and her spouse were allowed into the closed meeting for part of the discussion. The Commission voted in the open portion of the meeting to terminate the executive director's contract, but it did not allow any public comment

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on the issue. In July, the (former) executive director filed suit alleging that the Commission violated the Open Meetings Act. Is she right? NOTES:

Resources: Tex. Gov't Code ch. 551, Open Meetings Act: http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.551.htm Open Meeting Handbook 2018: https://www.texasattorneygeneral.gov/og/open-government-related-publications Open Meetings Act Training: https://www.texasattorneygeneral.gov/og/oma-training Tex. Gov’t Code ch. 552, Public Information: http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.552.htm Public Information Handbook 2018: https://www.texasattorneygeneral.gov/og/open-government-related-publications Public Information Act Training: https://www.texasattorneygeneral.gov/og/pia-training Questions/Comments