TARPLEY Are 864. the Last Three Digits of the Social

8/14/2019 TARPLEY Are 864. the Last Three Digits of the Social

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PETITIONERS ORIGINAL PETITION FOR WRIT OF MANDAMUS, TEMPORARY

RESTRAINING ORDER, INJUNCTION, AND DECLARATORY JUDGMENT

address: 2744 Bay Meadow Ct., Farmers Branch, TX 75234. Service of said Respondent as

described above can be effected by personal delivery.

G. Respondent, C-FB ISD on behalf of C-FB ISD Board of Trustees, may be served

with process by serving on BOBBY BURNS, an Individual who is a resident of Texas, in his

capacity as Superintendent of C-FB ISD, and may be served with process at the following

address: 1445 N. Perry Road, Carrollton, TX 75006. Service of said Respondent as described

above can be effected by personal delivery.

III. JURISDICTION AND VENUE

A. The subject matter in controversy is within the jurisdictional limits of this court.

B. This court has jurisdiction over the parties because Respondents are Texas

residents.

C. Venue in DALLAS County is proper in this cause under Section 15.002(a)(3) of

the Texas Civil Practice and Remedies Code because this county is the county of the principal

office of C-FB ISD Board of Trustees, Respondent herein. Furthermore, because venue is proper

with respect to Respondent C-FB ISD Board of Trustees, venue for this action with respect to all

Respondents is proper under 15.005 of the Texas Civil Practice and Remedies Code.

D. Section 551.142 of the Open Meetings Act confers jurisdiction on this, the

District Court, over actions seeking mandamus or injunction to stop, prevent, or reverse

violations or threatened violations under the Texas Open Meetings Act (referred to as TOMA

or the Act)thereby waiving sovereign immunity to this type of lawsuit and its request for

attorney fees. Tex. Govt Code Ann. (Vernon 2004).


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E. This, the District Court, also has jurisdiction under Article 5, section 8 of the

Texas Constitution, and may issue declarations under the Uniform Declaratory Judgment Act

(UDJA), Tex. Civ. Prac. & Rem. Code Ann., 37.001 et seq. (Vernon 1997).

IV. STANDING

Texas Government Code 551.142(a) provides, An interested person, including a

member of the news media, may bring an action by mandamus or injunction to stop, prevent, or

reverse a violation or threatened violation of this chapter by members of a governmental body.

Tex. Govt Code Ann. 551.142 (Vernon 2004). The standing conferred by Texas Government

Code 551.142 is broader than taxpayer standing, and its citizens do not need to prove an

interest different from the general public because the interest protected in the Open Meetings

Act is in the interest of the general public. Hays County Water Planning Pship v. Hays

County, 41 S.W.3d 174, 177-8 (Tex. App.Austin 2001, pet. Denied).

An individual entitled to seek a writ of mandamus or injunction may also seek a

declaratory judgment pursuant to the Uniform Declaratory Judgment Act, chapter 37 of the

Texas Civil Practice and Remedies Code. Cox Enters., 679 S.W.2d 86 (Tex.. App.Texarkana

1984) (recognizing news medias right to bring declaratory judgment action to determine if the

board had violated TOMA); See also City of Fort Worth v. Groves, 746 S.W.2d 907 (Tex. App

Fort Worth 1998, no writ) (resident of Arlington had standing to bring suit for declaratory

judgment and injunction against the city for a violation of the Texas Open Meetings Act). A

taxpayer living within the School district has standing to file a suit under 551.142. Salazar v.

Gallardo, 57 S.W.3d 629 (Tex AppCorpus Christi 2001, no pet.). Finally, members of the


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public have the right to seek relief by mandamus to correct an abuse of discretion and/or to

compel the performance of a ministerial duty by public officials Tex. Govt Code Ann.

551.142

Petitioner, SHIRLEY DEMUS TARPLEY, is a resident living within the tax district for

the Carrollton-Famers Branch Independent School District (hereafter called C-FB ISD; she is a

retired C-FB ISD teacher; she began to work in the C-FB ISD in 1969; and she is a former City

of Carrollton City Council member. SHIRLEY DEMUS TARPLEY strongly believes that the C-

FB ISD Board of Trustees actions result in harm to the children of the district for which she

cares so much about. SHIRLEY DEMUS TARPLEY has standing to file this suit.

V. SUMMARY

The C-FB ISD Board of Trustees has a pattern and practice of violating the notice and

open meeting provisions of the TOMA, as evidenced by the fact that C-FB ISD has continued to

violate the TOMA prior to this suit. SHIRLEY DEMUS TARPLEY seeks a declaratory

judgment under the UDJA that C-FB ISD has violated the TOMA through its past actions.

SHIRLEY DEMUS TARPLEY seeks injunctive relief to prevent C-FB ISD from continuing to

violate the TOMA through these actions.

VI. SUMMARY OF PEOPLE DISCUSSED IN THE FACTS AND THE FACTS

1. Summary of People Discussed in the Statement of Fact

Mr. Robert Luna, Esq.Purported Attorney for Respondent, C-FB ISD Board of Trustees andLynn Chaffin, in Cause No. 09-07085 filed in the 95

thDistrict Court of Dallas County, Texas and

Attorney for Appellant, C-FB ISD Board of Trustees and Lynn Chaffin, in the Texas Court ofAppeals, Dallas Division case assigned Cause No. 05-09-01166-CV

Ms. Lynn ChaffinPresident for C-FB ISD Board of Trustees.


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Ms. Nancy ClineVice President of C-FB ISD Board of Trustees

Mr. Frank ShorSecretary of C-FB ISD Board of Trustees

Ms. Nancy WattenAssistant Secretary of C-FB ISD Board of Trustees

Mr. James Goodemember of C-FB ISD Board of Trustees

Ms. Karin Webbmember of C-FB ISD Board of Trustees

Mr. Richard Flemingmember of C-FB ISD Board of Trustees

Dr. Bobby BurnsSuperintendent of C-FB ISD

Ms. Georgeanne Warnock-Principal of R.L. Turner High School, Carrollton TX

Mr. Mark Gommesena concerned resident living in the C-FB ISD with a child attending a C-

FB ISD school.

2. Statement of the FactsC-FB ISD Board of Trustees is appointed by the voters residing in its school district to

conduct business, develop policy, and make decisions on behalf of the school district regarding

the local education system for the benefit of the children and the community at large residing in

that school district.

On June 25,, 2009 at a Regular Board Meeting of the Carrollton-Farmers Branch

Independent School District (C-FB ISD), where a quorum of board members were present and

seated. Then Ms. Chaffin proceeded to adjourn the open meeting and announced they would

reconvene in closed session. The presiding officer did not identify the section or sections under

which they were closing the meeting. Ms. Chaffins exact words were, Anything else, alright,


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we do have items for closed session, it is 9:38, I am going to adjourn the meeting at 9:38 and we

will come back at 9:45 in closed session. Ms. Chaffin then adjourned the meeting.

On June 25, 2009, at a Regular Board Meeting of the Carrollton-Farmers Branch

Independent School District (C-FB ISD ), where are quorum of board members were present

and seated, the board reconvened from executive session after the failure of a vote to call a

special election James Goode stated as follows:

I believe we have one other item based upon closedsession, and that is that I would like to make a motion that we

approve all the matters that we discussed in close session that weneed to take future action on.

Nancy Watten seconded the Motion. Lynn Chaffin called the Motion and the Motion was

passed. Three items were discussed in closed session. There is no designation as to which item

or itemsone of the three, two of the three, or all of themwere actually designated as items

(quoting James Goode) that that we [the board] need to take future action on.

On August 13, 2009 at Regular Meeting of the Board of Trustees, where are quorum of

board members were present and seated, the presiding officer asked for any comments from

board members. Then Ms. Chaffin proceeded to adjourn the open meeting and announced they

would reconvene in closed session. The presiding officer did not identify the section or sections

under which they were closing the meeting. Ms. Chaffins statement was,

Um Item Number, Number 6, comments from board members

regarding posted agenda items. Board members? Hearing noneseeing none, item number 7 closed meeting as authorized under the

Texas Government Code including but not limited to, to uh,551.071 Consultation with Attorney; 551.072 Real Property;

551.074 Personnel Matters; 551.076 Security Devices; 551.082School Children/District Employees/Disciplinary Matter or


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Complaint; 551.0821 - Personally Identifiable StudentInformation; 551.084 Investigation.We will now leave closed

session and go into or leave open session and go into closedsession for items a, b and c. We are adjourned from open session

at 11:32. You guys get to leave; lucky you.

The Agenda for the closed session states:

A. Consider All Matters Related to Purchase, Exchange,Lease, or Value of Real Property

B. Consider All Matters Related to Cause Number 09-

07085, Richard Fleming v. Carrollton-Farmers Branch independentSchool District and Lynn Chaffin, Presiding Officer, 95

thJudicial

District Court, Dallas County (Texas Government Code 551.071 Consultation With Attorney)

C. Report From Attorney

The August 13, 2009 Regular Meeting of the Board of Trustees, notice of meeting and

agenda item for the closed session only states Report from Attorney. There was no designation

as to what the attorney was reporting on. This deviates from the school districts prior practices

of at least designating the case or topic for discussion when acting in close session. The C-FB

ISD conducted the meeting, where a quorum of board members were present and seated, and

received a report from an unidentified attorney in closed sessions. Because the report was made

in closed session, the public still does not have an understanding as to which attorney

communicated the report and the public still does not have a clear understanding as to the subject

of such report by an unidentified attorney .

On August 27, 2009 the C-FB ISD Board of Trustees sat in quorum and conducted an

opened and closed meeting. The C-FB ISD Board of Trustees discussed the Flemingcase in

closed session. August 27th

2009, Regular Meeting of the Board of Trustees, notice of meeting


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and agenda items do not list any mention of the 95th

District Court Case Number 09-07085.

There was no supplemental agenda item placed on the agenda such that this information could be

discussed. However, in a subsequent Freedom of Information Request by Mr. Mark Gommesen,

Mr. Gommesen received documentation which reveals that board member Karin Webb posed a

question as to why such litigation was not on the agenda with a reply by Mr. Mark Hyatt. Mr.

Hyatt stated, At this time there is no apparent action that is required. Any new information

related to the lawsuit may be presented to the Board under the closed meeting agenda item.

The Board discussed theFlemingCase at this meeting; however, no such item was listed on the

Agenda. Most importantly, it should be noted that the C-FB ISD Board of Trustees attorney

was not seen at the school board meeting or through the windows during the closed session.

At the August 272009 Regular Board Meeting of C-FB ISD, where the board sat in

quorum, Lynn Chaffin asked for comments from board members, following that section of the

agenda, Chaffin stated,

We will close the regular board meeting and we will go into

closed meeting as authorized by Texas Government Code toSection 551.071 Consultation with Attorney; 551.072 RealProperty; 551.074 Personnel Matters; 551.076 Security Devices;

551.082 School Children/District Employees/Disciplinary Matteror Complaint; 551.0821 - Personally Identifiable Student

Information; 551.084 Investigation. So I will declare this regularmeeting to be closed at 10:06 and we will reconvene in 5 minutes

in closed session.

At no time did Ms. Chaffin specify which exception the meeting was allowing the board to close

the meeting.


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At the September 10, 2009 Regular Board Meeting of C-FB ISD, while the board sat in

quorum, Lynn Chaffin stated as follows:

Okay in that case we are going to adjourn the openmeeting and go into closed session as authorized by the Texas

Government Code 551. Um, So I will adjourn this meeting at8:57 and we will reconvene in 10 minutes.

At no time did Ms. Chaffin specify which exceptions to the Open Meetings Act allowed them to

close the open meeting.

At the September 24,2009 Special Board Meeting of C-FB ISD, while the board sat in

quorum, Lynn Chaffin stated

Um that said we will move on to our agenda item, our firstagenda item for tonight is a closed meeting to hear a third level

grievance, so we are going to have to ask you all to leave. We areso sorry, but I am going to go ahead and close this open session

and we will reconvene in 5 minutes in closed session.


close the session.

At the October 8,2009 Regular Board Meeting of C-FB ISD, while the board sat in

quorum, Ms. Chaffin stated,

Agenda item 4 which will be closed meeting as authorized underthe Texas Governement Codeincluding but not limited to,

551.071 .071 Consultation with Attorney; 551.072 Real Property;551.074 Personnel Matters; 551.076 Security Devices; 551.082

School Children/District Employees/Disciplinary Matter orComplaint; 551.0821 - Personally Identifiable Student

Information; 551.084 Investigation. So we will go, we willadjourn from open session at 9:06 and we will reconvene in closed

session.


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Ms. Chaffin did not disclose which exceptions allowing a closed meeting were provided for the

meeting to be properly closed.

Reconvening from closed meeting, while the board sat in quorum, Ms. Chaffin disclosed

that the board was in closed session for Real Property (or 551.072) by stating,

Alright, I will reconvene this meeting of the Carrollton FarmersBranch ISD Board of Trustees in open session at 9:35PM on

October the 8th. And Board members we've just been discussingitem 5, (pause) 4 a. all matters related to Real Property is there

anything, any action that needs to be taken at this time? Hearingnone seeing none. Board Members we are going to adjourn public

session at 9:36 and we will go back into closed session in 5minutes."

Again, Ms. Chaffin did not disclose which exceptions allowing a closed meeting were provided

for the meeting to be properly closed.

At the November 12, 2009 Regular Board Meeting of C-FB ISD, the notice and agenda

read,

Counsel Briefing From Henslee Schwartz, LLP, to Include Oral

Report and Update on Legal Matters Regarding Laningham vs. C-FB ISD and Wade vs. C-FB ISD. At the point where Lynn

Chaffin stated, Item 3 Comments from Board Members Hearing none and seeing none, we are going to take a brief recess

and we will reconvene at 8:45 in closed session for agenda itemnumber 4 which is a closed session.

The C-FB ISD Board of Trustee sat in quorum and conducted a meeting. At no point did Ms.

Chaffin publically state the specific sections allowing the board to go into closed session.

During this closed session, the Board discussed the investigation of R. L. Turner High School.

No mention of an investigation of a high school, or more specifically R.L. Turner High School

was mentioned anywhere on the agenda. The investigation at R. L. Turner High School is not in


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any way related to Laningham vs. C-FB ISD and Wade vs. C-FB ISD. Coincidently, Mark

Gommesen received an email from Nancy Watten regarding a Public Information Act request

regarding an unknown investigation and Nancy Watten confirmed the investigation pertained to

Lance Campbell, a former principal of R.L. Turner. At least, one of the board members left the

closed meeting after the board began to discuss this topic due to fear of a possible open meetings

violation.

After the closed session on November 12, 2009, the board reconvened in open session.

Lynn Chaffin asked if there were any items discussed in closed session requiring action. No

members of the board responded. Lynn Chaffin then stated,

Hearing none and seeing none, I would like to make astatement to the public. The board had received an allegation of

issues of impropriety and the board took those allegations veryseriously. We initiated an investigation with an external firm. No

violations of law were identified. No violations of policy wereidentified that rose to the level of a reportable ethical complaint.

However, as a result of this investigation, the board has extensivelyreviewed its policies. And those policies are being reviewed at all

of our campuses to ensure that we have a consistency ofapplication of those policies. So we appreciate the public for, uhm,

having reported those, those issues and those concerns and broughtthem to our attention.

At no time, has the C-FB ISD Board of Trustees publically voted to take action to initiate

an investigation. Additionally, the C-FB ISD Board of Trustees has not provided the public with

enough information to determine the scope and topic of investigation. Lynn Chaffin by her own

statement indicates that the investigation was brought to the C-FB ISD Board of Trustees

attention by the public; however, all discussions and action were taken in closed session. Lynn

Chaffin, by her own statement, indicated there was some wrong committed but according to


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her standards it did rise to an ethical violationthe public has never been informed as to what

the violation is or consists oftherefore, how the public cannot measure honesty and integrity of

the system.

Taxpayer funds paid for the investigation, no public action or agenda has ever been

published on this investigation authorizing the Board of Trustees to take action to initiation the

investigation and hire an outside firm to conduct the investigation. The public, at this time, does

not know the person or persons hired to conduct such investigation. Since there has been no

action to start an investigation or hire counsel to conduct an investigation, there is no proof that

any investigation has actually been conducted. If this investigation in any way relates the R.L

Turner, then the subject of the investigation was initiated to explore purported profound

improprietiesthe extent of which can be determined through, live testimony, discovery and any

in camera1

reviews of certified closed session minutes or recordings.

VII. STATEMENT OF LAW

1. Duties and Authority of the C-FB ISD Board of Trustees

Texas Education Code 11.051 regarding governance of an independent school district

and the number of trustees that may be elected reads as follows: (a) An independent school

district is governed by a board of trustees who, as a body corporate, shall: (1) oversee the

management of the district; and (2) ensure that the superintendent implements and monitors

plans, procedures, programs, and systems to achieve appropriate, clearly defined, and desired

results in the major areas of district operations. (a)(1) Unless authorized by the board, a member

1 Petitioner files contemporaneously with the Petition a Motion to Tender Documents forIn Camera Inspection


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of the board may not, individually, act on behalf of the board. Tex. Educ. Code 11.051

(http://www.statutes.legis.state.tx.us 2009).

The C-FB ISD Board of Trustees internal policy says board members as individuals shall

not exercise authority over the District, its property, or its employees. See C-FB ISD Board of

Trustee Policy BBE(Local). Except for appropriate duties and functions of the Board President,

an individual member may act on behalf of the Board only with the express authorization of the

Board. Id. Without such authorization, no individual member may commit the Board on any

issue. Id. Also, because the Board is a body corporate, members can perform no valid act

except as a body at meetings properly convened and conducted by a board sitting in quorum.

Toyah ISD v. Pecos-Barstow ISD, 466 S.W.2d 377 (Tex. Civ. App.-San Antonio, 1971, no writ);

Buchele v. Woods, 528 S.W.2d 95 (Tex. Civ. App.-Tyler, 1975, no writ) .

Texas Education Code 11.1511(a) describes the specific powers and duties of a school

board, and reads as follows: (a) In addition to powers and duties under Section 11.151 or other

law, the board of trustees of an independent school district has the powers and duties provided by

Subsection (b). Texas Educ. Code 11.1511 (http://www.statutes.legis.state.tx.us 2009).

Texas Education Code 11.1511(b)(5) reads, the board shall adopt a policy to establish a

district- and campus-level planning and decision-making process as required under Section

11.251. 11.1511

Texas Government Code 551.001 subsection (3)(E) indicates that a school board is a

governmental body to which the Act will apply. Tex. Govt Code 551.001

(http://www.statutes.legis.state.tx.us 2009). The board of trustees may act only by majority


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vote of the members present at a meeting, held in compliance with the Texas Open Meets Act

(referred to as TOMA or the Act located in Chapter 551 of the Texas Government Code, at

which a quorum of the board is present and voting. Tex. Govt Code 551.002


2. History and General Definition of the Texas Open Meeting Act

Even prior to the passage of the TOMA, Texas Government Code 551.001 et seq., a

collegial entity, with power shared equally between colleagues, could only act as an entity at a

properly noticed meeting, not through its individual members. Webster v. Texas & Pacific Motor

Transport Co., 166 S.W. 2d 75 (Tex. 1942). This principle is still good law 60 years later. See

Taxpayers for Sensible Priorities v. City of Dallas, 79 S.W.3d 670, 675 (Tex.App.-Dallas 2002,

pet denied); see also Austin Neighborhoods Council, Inc. v. Board of Adjustment of City of

Austin, 644 S.W.2d 560 (Tex.App.-Austin 1982, writ refused n.r.e.).

With the passage of the TOMA, came the Golden Rule of the Act: all "meetings" held

by "governmental bodies" must be open to the public unless an executive [or closed] session is

expressly permitted. 551.002. A meeting is defined under the TOMA as all "deliberations"

between a quorum of members of a governmental body or between a quorum and any other

person.. 551.001(4). A "deliberation" is a verbal exchange between a governmental body or a

quorum and any other person concerning an issue within the governmental body's jurisdiction or

any public business. Tex. Govt Code 551.001(2). Texas Government Code 551.103(a)

requires a governmental body to keep either a certified agenda or make a tape recording of the

proceedings of each closed meeting, except for when the governmental entity is participating in a


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private consultation permitted under Texas Government Code 551.071 when the governmental

body is consulting with the governmental bodys attorney. Tex. Govt Code 551.103 &

551.071 (http://www.statutes.legis.state.tx.us 2009).

There are numerous Texas Attorney General Opinions regarding TOMA. The U.S.

Supreme Court, has stated that even though most Attorney General opinions are considered

advisory on the courts, they are entitled to careful consideration. Point Isabel Indep. Sch. Dist. v.

Hinojosa, 797 S.W.2d 176,179-81 (Tex. App.-Corpus Christi 1990, writ denied). (citing Harris

County Comm'rs Court v. Moore, 420 U.S. 77, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975);

Commissioners Court of El Paso County v. El Paso County Sheriff's Deputies Ass'n, 620 S.W.2d

900, 902 (Tex.Civ.App.---El Paso 1981, writ ref'd n.r.e.).

3. Notice Requirement of the TOMA

The Texas Government Code 551.041 reads, [a] governmental body shall give written

notice of the date, hour, place, and subject of each meeting held by the governmental body.

Tex. Govt Code 551.041 (http://www.statutes.legis.state.tx.us 2009). That means a

governmental body must give the public notice of the subjects that will be discussed and

considered in an open meeting or a closed session. Cox Enters., Inc. v. Bd ofTrs. Of Austin

Indep. Sch. Dist., 706 S.W.2d 956, 958 (Tex. 1986); Porth v. Morgan, 622 S.W. 2d 470 (Tex.

App.Tyler 1981, writ refd n.r.e). When the notice specifically discloses the subject to be

considered at the upcoming meeting, the statute's notice requirement is met. See Cox Enter., 706

S.W.2d at 959.


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The only way that the general public can monitor its governmental body is by notification

of topics to be discussed in both open and closed sessionsthis is done by way of publishing an

agenda. The courts have ruled that the more important a particular issue is to the community, the

more specific the posted notice in the agenda must be. Id. at 958-59; Point Isabel Indep. Sch.

Dist, 797 S.W.2d at 179-81. Underlying these considerations is the fact that the provisions of the

Act "are mandatory and are to be liberally construed in favor of open government." City of

Farmers Branch v. Ramos, 235 S.W.3d 462, 467 (Tex. App.-Dallas 2007, no pet.); Cox Enters.,

Inc., 706 S.W.2d at 957. After explaining that notice under the Act "should specifically disclose

the subjects to be considered at the upcoming meeting", the court held that describing agenda

items as litigation when the suit was related to a desegregation lawsuit and personnel when it

pertained to the selection of a new superintendent, "did not provide full and adequate notice,

particularly because the subject slated for discussion was one of special interest to the public."

Cox Enters., Inc. at 959. No judicial decision or attorney general opinion states that a

governmental body must indicate in the notice whether a subject will be discussed in open or

closed session. Tex. Atty Gen. Op. No. JC-0057 (1999) at 6. However, if the notices posted

for a governmental bodys meetings consistently distinguish between subjects for public

deliberation and subjects for executive session deliberation, an abrupt departure from this

practice may raise a question as to the adequacy of the notice. Id.

In Cox, the Texas Supreme Court stated that notice is sufficient as long as a reader is

alerted to the topic for consideration and that the reader need not be alerted to all the

consequences that may flow from such topic up for consideration. Id. at 958. (quoting Lower


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Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex.1975). The

Supreme Court proceeds to state that general notice in certain cases is substantial compliance

with the notice provision of the Act even though the notice may not be as specific as it could be;

but, it cautions that less than full disclosure is not substantial compliance.Id. at 959-960. The

Supreme Court concludes by saying the TOMA is intended to protect publics interest through

knowledge of the workings of its government and the public should not be compelled to resort to

the assistance of Courts to receive assurance that a public body has complied with TOMA

rather a public body should act with such apparent willingness to comply with TOMA that the

public needs no assistance from the Courts.Id. at 960.

The C-FB ISD Board of Trustees own policy posted on its website is as follows:

Agendas for all meetings shall be sufficiently specific to informthe public of the subjects to be deliberated at the meeting, setting

out any special or unusual matters to be considered or any matterin which the public has a particular interest. Deliberations or

actions pertaining to the Superintendent and principals are of particular public interest, and notice of those subjects must be

worded with such clarity that the public will understand what theBoard proposes to discuss or accomplish. Cox Enterprises, Inc. v.

Austin Indep. Sch. Dist., 706 S.W.2d 956 (Tex. 1986); Point IsabelIndep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176 (Tex. App.

Corpus Christi 1990, writ denied); Atty. Gen. Ops. M-494 (1969),H-419 (1974), H-662 (1975), H-1045 (1977). See C-FB ISD

Board of Trustee Policy BE (Legal).

The terms employee briefing or staff briefing do not giveadequate notice of the subject matter to be presented to the Board

by employees or staff members. Atty. Gen. Op. JC-169 (2000).Id.

The subject of a report or update by District staff or a member of

the Board must be set out in the notice in a manner that informs areader about the subjects to be addressed. Atty. Gen. Op. GA-668


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(2008). Id.

4. Meeting Must be Open to the Public Unless the Topic Falls Under an Exception

Every regular, special, or called meeting of a governmental body shall be open to the

public, except as provided by this chapter. 551.002. Only certain deliberations may be held in

closed sessions. In Cox, decided by the Supreme Court of Texas, the court held, The Texas

Open Meetings Act requires every regular, special, or called meeting of a governmental body to

be open to the public, with certain narrowly-drawn exceptions. Cox Enters., Inc., 706 S.W.2d at

958. The Supreme Court of Texas in Cox states, The Act's purposes cannot be circumvented

by mere reference to one of the section 2 exceptions.Id. The advance notice given under section

3A(a) should specifically disclose the subjects to be considered at the upcoming meeting. Id. at

959. Finally the Supreme Court of Texas in Cox held, The Act's exceptions, however, do not

extend to any "final action, decision, or vote." Id. The reference to the section 2 exception has

been codified into the current Texas Government Code and is described in detail under

subchapter D of 551 of the Texas Government Code.

Texas Govt Code 551.101 states the requirements for holding a closed session. It

provides: If a closed meeting is allowed under this chapter, a governmental body may not

conduct the closed meeting unless a quorum of the governmental body first convenes in an open

meeting for which notice has been given as provided by this chapter and during which the

presiding officer publicly: (1) announces that a closed meeting will be held; and (2) identifies the

section or sections of this chapter under which the closed meeting is held. Tex. Govt Code

551.101 (http://www.statutes.legis.state.tx.us 2009). A careful and plain reading of the TOMA


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reveals that if a closed meeting is authorized (i.e. an exception applies), the governing body must

comply with the procedural steps enumerated in TOMA. Martinez v. State, 879 S.W.2d 54, 56

(Tex.Crim.App.1994). On the other hand, if one of the exceptions does not apply, then the

closed meeting violates the Act regardless of whether the governing body complied with the

procedural steps. Id. The policy behind the TOMA is that the public should be aware of which

members of a governing body are present in a closed meeting and whether a quorum exists. Id.

Additionally, the presiding officer must identify the section or sections that authorize the closed

session for the following reasons: 1) to cause the governmental body to assess the applicability

of the exceptions before deciding to close the meeting; 2) to fix the governmental bodys legal

position as relying upon the exceptions specified; and 3) to inform those present of the

exceptions, thereby giving them an opportunity to object intelligently. Lone Star Greyhound

Park, Inc. v. Tex. Racing Commn, 863S.W.2d 742, 747 (Tex. App.Austin 1993, writ denied).

However, when judging the sufficiency of the presiding officers announcement in light of

whether it effectuated or hindered the purposes of 551.101, theLone StarCourt found that the

presiding officers reference to the content of a section, rather than to the section number,

sufficiently identified the exception. Id. at 747.

5. Exceptions to the Requirement of Publicly Held Meetings

The Consultation with Attorney exception is located in the Texas Government Code at

551.071. Section 551.071 reads, A governmental body may not conduct a private consultation

with its attorney except: (1) when the governmental body seeks the advice of its attorney about:

(A) pending or contemplated litigation; or (B) a settlement offer; or (2) on a matter in which


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the duty of the attorney to the governmental body under the Texas Disciplinary Rules of

Professional Conduct of the State Bar of Texas clearly conflicts with this chapter. Tex. Govt

Code 551.071 (http://www.statutes.legis.state.tx.us 2009).

This provision allows the attorney to perform his duty to counsel his client while

upholding notions of attorney-client privilege and the attorneys duty to preserve client

confidences. Tex Atty Gen. Op. Nos. JC-0506 (2002) at 4; JC-0233 (2000) at 3; JM-238 (1984)

(as modified by Tex. Atty Gen. Op. No. JC 0506 (2002)); H-816 (1976); M-1261 (1972). It

allows the governmental body to seek the attorneys advice regarding pending or contemplated

litigation or settlement offers. Lone Star Greyhound Park, Inc., 863S.W.2d at 748. However,

General Discussions of policy, unrelated legal matters, is not permitted under the language of

[this exception] merely because an attorney is present Tex. Atty Gen. Op. No. JM-100 (1983)

at 2.

In Cox, the Supreme Court acknowledged that a school board is not expected to

disclose its litigation strategy, but it cannot totally conceal that a pending desegregation lawsuit

will be discussed and the Texas Attorney General John Cornyn opined that even though the

school board discussed the lawsuit in executive session, the school board could not escape

publishing adequate notice as required by the TOMA. See Cox Enters., Inc. at 959.; Tex. Atty

Gen. Op No. JC-0057 (1999). Since a governing body can consult privately with its attorney,

logic dictates that the information discussed at that meeting should be protected by the attorney-

client privilege. Markowski v. City of Marlin, 940 S.W.2d 720, 727 (Tex.App.-Waco 1997,

pet. denied). However, the party asserting the privilege has the burden of proving that the


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attorney-client privilege applies. Id. (citingPeeples v. Hon. Fourth Supreme Judicial Dist., 701

S.W.2d 635, 637 (Tex. 1985) (in the discovery context). Sometimes the only way to prove the

privilege is through an in-camera inspection of the privileged documents or other materials. Id.

at 727) (citing Weisel Enter., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986); Kavanaugh v.

Perkins, 838 S.W.2d 616, 620 (Tex.App.---Dallas 1992, orig. proceeding).

InRamos, the City of Farmers Branch claimed it properly closed the session regarding an

new ordinance and that if it discussed anything outside of the attorney client privilege then it was

merely to state opinions. Ramos 235 S.W.3d at 468. The Court agreed that opinions may be

discussed in closed session. Id. However, the Court also stated,

Ramos alleged that the City, in closed meetings, drafted,deliberated, negotiated, debated, and agreed upon the provisions

of the ordinance and then "negotiated, modified and revised" theordinance to "secure the votes" of appellants. Further, Ramos

alleged that the public vote was no more than a rubberstamp of the"agreement reached in secret." These allegations, if true, suggest

appellants acted outside the lawful bounds of an executive sessionand would constitute more than an expression of opinion.Id.

Other Exceptions cited by the Board include:

DELIBERATION REGARDING REAL PROPERTY; CLOSEDMEETING. A governmental body may conduct a closed meeting

to deliberate the purchase, exchange, lease, or value of real property if deliberation in an open meeting would have a

detrimental effect on the position of the governmental body innegotiations with a third person. Tex. Govt Code 551.072


PERSONNEL MATTERS; CLOSED MEETING. (a) Thischapter does not require a governmental body to conduct an open

meeting: (1) to deliberate the appointment, employment,evaluation, reassignment, duties, discipline, or dismissal of a


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public officer or employee; or (2) to hear a complaint or chargeagainst an officer or employee. (b) Subsection (a) does not apply

if the officer or employee who is the subject of the deliberation orhearing requests a public hearing. Tex. Govt Code 551.074


DELIBERATION REGARDING SECURITY DEVICES ORSECURITY AUDITS; CLOSED MEETING. This chapter does

not require a governmental body to conduct an open meeting todeliberate: (1) the deployment, or specific occasions for

implementation, of security personnel or devices; or (2) a securityaudit. Tex. Govt Code 551.072


SCHOOL CHILDREN; SCHOOL DISTRICT EMPLOYEES;DISCIPLINARY MATTER OR COMPLAINT. (a) This chapter

does not require a school board to conduct an open meeting todeliberate in a case: (1) involving discipline of a public school

child; or (2) in which a complaint or charge is brought against anemployee of the school district by another employee and the

complaint or charge directly results in a need for a hearing. (b)Subsection (a) does not apply if an open hearing is requested in

writing by a parent or guardian of the child or by the employeeagainst whom the complaint or charge is brought. Tex. Govt


SCHOOL BOARD: PERSONALLY IDENTIFIABLEINFORMATION ABOUT PUBLIC SCHOOL STUDENT. (a)

This chapter does not require a school board to conduct an openmeeting to deliberate a matter regarding a public school student if

personally identifiable information about the student willnecessarily be revealed by the deliberation. (b) Directory

information about a public school student is considered to bepersonally identifiable information about the student for purposes

of Subsection (a) only if a parent or guardian of the student, or thestudent if the student has attained 18 years of age, has informed the

school board, the school district, or a school in the school districtthat the directory information should not be released without prior

consent. In this subsection, "directory information" has themeaning assigned by the federal Family Educational Rights and

Privacy Act of 1974 (20 U.S.C. Section 1232g), as amended. (c)Subsection (a) does not apply if an open meeting about the matter


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is requested in writing by a parent or guardian of the student or bythe student if the student has attained 18 years of age. Tex. Govt


INVESTIGATION; EXCLUSION OF WITNESS FROM

HEARING. A governmental body that is investigating a mattermay exclude a witness from a hearing during the examination ofanother witness in the investigation. Tex. Govt Code 551.072


6. Final Actions and Explanation of Compliance with Notice Provisions of TOMA

Texas Government Code 551.102 reads, [a] final action, decision, or vote on a matter

deliberated in a closed meeting under this chapter may only be made in an open meeting that is

held in compliance with the notice provisions of this chapter. Tex. Govt Code 551.102

(http://www.statutes.legis.state.tx.us 2009). A governmental body can only take steps to put into

action a governmental decision only after a final action, decision, or vote in open session is

voted upon at a time when a majority of the board is presentconstituting a quorum and such

item has been adequately described in the Agenda for such meeting. 551.001(6); Tex. Govt

Code 311.013(b) (http://www.statutes.legis.state.tx.us 2009); and 551.041. This act of

taking a final action, decision, or vote will be referred to as final action throughout this

Petition.

One of the key requirements to final actions is compliance with the notice provision.

The notice under the Act is located in the Texas Government Code 551.041 and reads, [a]

governmental body shall give written notice of the date, hour, place, and subject of each meeting

held by the governmental body. 551.041 . The only way that the general public can monitor

its governmental body is by notification of topics to be discussed in both open and closed


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sessionsthis is done by way of publishing an agenda. Once the board publishes an agenda, it

may not deviate from that agenda for to do so would result in a violation of TOMAthis is a

violation because notice would be rendered ineffective. 551.041; Tex. Govt Code Ann.

551.142 (http://www.statutes.legis.state.tx.us 2009).



consequences that may flow from such topic up for consideration. Cox Enters., Inc.. at 958.

(quoting Lower Colorado River Authority, 523 S.W.2d at 646. The Supreme Court proceeds to

state that general notice in certain cases is substantial compliance with the notice provision of the

Act even though the notice may not be as specific as it could be; but, it cautions that less than

full disclosure is not substantial compliance.Id. at 959-960.

The courts have ruled that the more important a particular issue is to the community, the

more specific the posted notice in the agenda must be. See Id. at 958-59; Point Isabel Indep.

Sch. Dist., 797 S.W.2d at 179-81. Underlying these considerations is the fact that the provisions

of the Act "are mandatory and are to be liberally construed in favor of open government."

Ramos, 235 S.W.3d at 467; Cox Enters., Inc., 706 S.W.2d at 957.

Again, the Supreme Court concludes by saying the TOMA is intended to protect publics

interest through knowledge of the workings of its government and the public should not be

compelled to resort to the assistance of Courts to receive assurance that a public body has

complied with TOMArather a public body should act with such apparent willingness to

comply with TOMA that the public needs no assistance from the Courts. Cox Enters., Inc., 706


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S.W.2d at 960.

Unfortunately, examples of adequate notice of final actions are scant according to

Texas case law. However, here are a few snippets of cases addressing such issues.

Respondent violated the Texas Open Meetings Act when italtered the Transportation Plan from the form it [sic] was approved

and voted on in public on May 16, 2000. Any changes made to theTransportation Plan ... were not made with the public being able to

observe how its government was conducting public business. Assuch, Respondent violated ... Tex. Gov't Code 551.002,

551.021, 551.022, 551.041, 551.043, and/or 551.102." HaysCounty v. Hays County Water Planning P'ship, 69 S.W.3d 253

(Tex.App.-Austin 2002, no pet.).

First, the City Council voted to table the approval ofWeatherford's second rezoning application before it went into

closed session and then simply voted again to table the applicationafter the closed session. Further, the action taken by the City

Council before and after the closed session was essentially theaction Weatherford requested; namely, that the Council not

consider his second rezoning application. Finally, even if opinionswere expressed by the Council members in the closed session, such

expression is not prohibited, as long as the final decision or votewas made in an open session. Weatherford v. City of San Marcos,

157 S.W.3d 473, 483 (Tex.App.-Austin 2004, pet. denied).

If a notice specifically discloses the subject to be considered,TOMA's requirements are met and the governmental body can take

final action, decide, or vote on a matter. City of San Angelo v. Tex. Nat'l Resource Conservation Comm'n, 92 S.W.3d 624, 629

(Tex.App.-Austin 2002, no pet.).

Our citizens are entitled to more than a result. They are entitlednot only to know what government decides but to observe how and

why every decision is reached." Ramos, at 470. (quotingAcker v.Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990).

As a reminder to the Court, Petitioner highlights C-FB ISD Board of Trustees own

policy related to notice posted on its own website and is as follows:


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actions pertaining to the Superintendent and principals are of

particular public interest, and notice of those subjects must beworded with such clarity that the public will understand what theBoard proposes to discuss or accomplish. Cox Enters., Inc., 706

S.W.2d at 959; Point Isabel Indep. Sch. Dist., 797 S.W.2d at 179(Tex. App.Corpus Christi 1990, writ denied); Atty. Gen. Ops.

M-494 (1969), H-419 (1974), H-662 (1975), H-1045 (1977). SeeC-FB ISD Board of Trustee Policy BE (Legal).

The terms employee briefing or staff briefing do not give

adequate notice of the subject matter to be presented to the Board by employees or staff members. Atty. Gen. Op. No. JC-169

(2000). Id.

The subject of a report or update by District staff or a member ofthe Board must be set out in the notice in a manner that informs a

reader about the subjects to be addressed. Atty. Gen. Op. No. GA-668(2008). Id.

7. Enforcement of TOMA

Texas Government Code 551.142(a) provides, An interested person, including a

member of the news media, may bring an action by mandamus or injunction to stop, prevent, or

reverse a violation or threatened violation of this chapter by members of a governmental body.

Tex. Govt Code 551.142 (http://www.statutes.legis.state.tx.us 2009). Additionally, Texas

Government Code 551.142(b) provides, The court may assess costs of litigation and

reasonable attorney fees incurred by a Petitioner or Respondent who substantially prevails in an

action under Subsection (a). 551.142. In exercising its discretion, the court shall consider

whether the action was brought in good faith and whether the conduct of the governmental body

had a reasonable basis in law. 551.142.


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8. Consequences of TOMA Violation According to State Law

Compliance with the Open Meetings Act is mandatory, and actions taken by a

governmental body in violation of the Act are subject to judicial invalidation. City of Bells v.

Greater Texoma Util. Auth., 744 S.W.2d. 636, 640 (Tex. App.Dallas 1987, no writ). See

Lower Colorado River Authority, 523 S.W.2d at 646.; Garcia v. City of Kingsville, 641 S.W.2d

339, 341 (Tex.App.---Corpus Christi 1982, no writ). The Court of Appeals in Dallas stated,

Although the trial court, in its amended findings of fact and conclusions of law, concluded that

GTUA had substantially complied with the Act with respect to any meetings relevant to the bond

issues in question (including the meeting which authorized this suit), we need not decide whether

the trial court was correct because substantial compliance is not sufficient. City of Bells, 744

S.W.2d. at 640. Literal compliance is required under the Act. Id.; See Smith County v.

Thorton, 726 S.W.2d 2, 2--3 (Tex.1986). The Dallas Court of Appeals preceded to instruct the

District court to vacate its judgment and dismiss the caseprocedurally speaking the Petitioner

in the case was the party who violated the open meeting act and the Petitioners action were

invalidated. City of, 744 S.W.2d. at 640.

VIII. LEGAL ARGUMENT

Petitioner has a clear right to the relief requested herein and clearly demands that right.

The Respondent had a clear legal duty to perform the act which is the subject of relief

herein, and the Respondent has refused to perform a ministerial act that the Respondent is

required to perform. There is no other adequate remedy at law available, whether through

appeal to the Board itself or otherwise, to rectify the improper action or omission complained of


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herein. In fact such appeals have been made to the Board itself by the public but such appeals

have been largely ignored.

1. The Texas Opens Meeting Act Applies to the C-FB ISD Board of Trustees

The TOMA applies to the C-FB ISD Board of Trustees. The Texas Education Code

11.1511(b)(5) which reads, the board shall adopt a policy to establish a district- and campus-

level planning and decision-making process as required under Section 11.2512. 11.1511. The

C-FB ISD Board of Trustees is the entity whereby its members are appointed by vote of the

people and given the authority to act on behalf of the school district to initiate policy, make

decisions, and direct and steer the school district into the future. Furthermore, the Texas

Government Code 551.001(3)(E) indicates that a school board is a governmental body to

which the Texas Open Meetings Act (also referred to as TOMA or the Act) will apply.

551.001. The C-FB ISD Board of Trustees is a governmental body; therefore, the TOMA

applies to the C-FB ISD Board of Trustees.

2. Alleged TOMA Violations at Certain C-FB ISD Board Meetings

The C-FB ISD Board of Trustees has violated the TOMA on several occasions. TOMA

requires meetings of governmental bodies to be publicly held when exercising governmental

authority where all discussions are open to the public subject to a few exceptions that allow

deliberations and discussions to take place in closed sessions. Regardless of whether a

particular item is discussed in an open or closed sessions--before the governmental authority can

take any action-- the decided action must be finalized and voted on in an open (public)

2 Texas Education Code 11.251 provides a comprehensive definition of Planning and Decision Making as

applied to school districts.


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session. TOMA also requires advance notice for each meeting, and TOMA provides for civil and

criminal enforcement when a governmental body violates the Act. Implicit in the requirement

for advance notice is the requirement for clarity so that the public can identify what is being

discussed and what is being acted upon. The Board of Trustees may not discuss any item or

subject not listed on the Agenda in an open or closed meeting; except to say that such item

should be scheduled for discussion at a later time when it can properly be listed on the agenda.

A. Final Action Too Vague for Public Understanding

The C-FB ISD Board of Trustees violated TOMA on June 25, 2009 when the board

passed a motion to take action which failed to designate which items on the agenda where being

voted on at that time thereby denying the public the ability to determine what agenda discussion

items resulted in a decided action. Texas Government Code 551.102 reads, [a] final action,

decision, or vote on a matter deliberated in a closed meeting under this chapter may only be

made in an open meeting that is held in compliance with the notice provisions of this chapter.

551.102. A governmental body can only take steps to put into action a governmental decision

only after a final action, decision, or vote in open session is voted upon at a time when a

majority of the board is presentconstituting a quorum and such item has been adequately

described in the Agenda for such meeting. 551.001(6); 311.013(b); and 551.041. This act

of taking a final action, decision, or vote will be referred to as final action throughout this

Petition.




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held by the governmental body. 551.041 . The only way that the general public can monitor




violation because notice would be rendered ineffective. 551.041; 551.142.



consequences that may flow from such topic up for consideration. Cox Enters., Inc.. at 958.














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governmental body is by notification of topics to be discussed in both open and closed sessions.

The Texas Government Code 551.041 reads, [a] governmental body shall give written notice

of the date, hour, place, and subject of each meeting held by the governmental body.

551.041. That means a governmental body must give the public notice of the subjects that will

be discussed and considered in an open meeting or a closed session. Cox Enters., Inc., 706

S.W.2d at 958; Porth, 622 S.W.2d at 470. When the notice specifically discloses the subject to

be considered at the upcoming meeting, the statute's notice requirement is met. See Cox Enter.,

706 S.W.2d at 959.


more specific the posted notice in the agenda must be. Id. at 958-59; Point Isabel Indep. Sch.

Dist, 797 S.W.2d at 179-81. Underlying these considerations is the fact that the provisions of the

Act "are mandatory and are to be liberally construed in favor of open government." Ramos, 235

S.W.3d at 467; Cox Enters., Inc., 706 S.W.2d at 957. After explaining that notice under the Act

"should specifically disclose the subjects to be considered at the upcoming meeting", the court

held that describing agenda items as litigation when the suit was related to a desegregation

lawsuit and personnel when it pertained to the selection of a new superintendent, "did not

provide full and adequate notice, particularly because the subject slated for discussion was one of

special interest to the public." Cox Enters., Inc. at 959. No judicial decision or attorney general

opinion states that a governmental body must indicate in the notice whether a subject will be

discussed in open or closed session. Tex. Atty Gen. Op. No. JC-0057 (1999) at 6. However, if

the notices posted for a governmental bodys meetings consistently distinguish between subjects


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for public deliberation and subjects for executive session deliberation, an abrupt departure from

this practice may raise a question as to the adequacy of the notice. Id.



consequences that may flow from such topic up for consideration. Id. at 958. (quoting Lower

Colorado River Authority, 523 S.W.2d at 646. The Supreme Court proceeds to state that general

notice in certain cases is substantial compliance with the notice provision of the Act even though

the notice may not be as specific as it could be; but, it cautions that less than full disclosure is not

substantial compliance. Id. at 959-960. The Supreme Court concludes by saying the TOMA is

intended to protect publics interest through knowledge of the workings of its government and

the public should not be compelled to resort to the assistance of Courts to receive assurance that

a public body has complied with TOMArather a public body should act with such apparent

willingness to comply with TOMA that the public needs no assistance from the Courts. Id. at

960.

The C-FB ISD Board of Trustees own policy posted on its website is as follows:



actions pertaining to the Superintendent and principals are of particular public interest, and notice of those subjects must be

worded with such clarity that the public will understand what theBoard proposes to discuss or accomplish. Cox Enterprises, Inc. v.

Austin Indep. Sch. Dist., 706 S.W.2d 956 (Tex. 1986); Point IsabelIndep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176 (Tex. App.

Corpus Christi 1990, writ denied); Atty. Gen. Ops. M-494 (1969),H-419 (1974), H-662 (1975), H-1045 (1977). See C-FB ISD


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FB ISD Board of Trustees was discussing an investigation which the board has determined that

situation to be a policy issue but that the board intentionally disguised the purpose of the report

under the concealment of attorney client privileged. However, because the public cannot

determine the subject of the report the board; it is unclear whether there is a clear violation of

TOMA for lack of adequate notice or whether there is a clear violation of TOMA for lack of

adequate notice and an intentional act to disguise a report under the guise of attorney client

privilege to cover discussions that are related solely to policy. Worst case scenario is that the C-

FB ISD Board of Trustees is hiding something so egregious and damaging that the Board has

resorted to misinformation as a way to hide the truth from the publicthis is something the

public would have a strong interest in knowing.

Because the public has not been adequately informed, it is suspected but not clearly

known at this time that the Board of Trustees was receiving a report from counsel regarding an

investigation ultimately announced to the public on November 12, 2009. However, there has

never been a public announcement, action, or agenda related to an investigation on August 13,

2009 or any other day, prior to November 12, 2009. The Board of Trustees has not taken action

to initiation any investigation and not taken any public action to hire an outside firm to conduct

the investigation. The public, at this time, does not know the person or persons hired to conduct

such investigation. Since there has been no action to start an investigation or hire counsel to

conduct an investigation, there is no proof that any investigation has actually been conducted. If

this investigation in any way relates the R.L Turner, then the subject of the investigation was

initiated to explore purported profound improprietiesthe extent of which can be determined


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through, live testimony, discovery and any in camera reviews of certified closed session minutes

or recordings. Petitioner will shortly a Motion to Tender Documents for In Camera Inspection

After such time, as the in camera inspection Petitioner can supplement her petition to more

accurately address this issue. It stands to reason that if the board has improperly used the

attorney client privilege to disguise discussions of policy; Texas law states that the C-FB ISD

Board of Trustees has the burden to prove the attorney client privilege applies. A closer review

of all claims of attorney client privilege related to the agenda items discussed in this petition may

need to be reviewed by this Court to determine if such privilege truly applies.

C. Discussion of an Item Not on the Agenda

The C-FB ISD Board of Trustee violated the TOMA by holding discussion about an the

Fleming case when such item was not listed on the agenda. The Texas Government Code

551.041 provides that [a] governmental body shall give written notice of the date, hour, place,

and subject of each meeting held by the governmental body whether such item is to be

discussed in opened or closed session. 551,041; Cox Enters., Inc., 706 S.W.2d at 958; Porth,

622 S.W.2d at 470..

As Petitioner has stated before, the only way that the general public can monitor its

governmental body is by notification of topics to be discussed in both open and closed

sessionsthis also applies to final actions taken by the Board . Courts have ruled that the more

important a particular issue is to the community, the more specific the posted notice in the

agenda must be. See CoxEnters., Inc., 706 S.W.2d at 958-59;Point Isabel Indep. Sch. Dist., 797

S.W.2d at 179-81. Underlying these considerations is the fact that the provisions of the Act "are


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mandatory and are to be liberally construed in favor of open government." Ramos, 235 S.W.3d

at 467; Cox Enters.,Inc., 706 S.W.2d at 957.

On August 27 2009, at a Regular Meeting of the Board of Trustees, the notice of meeting

and agenda items do not mention the discussion of the 95th

District Court Case Number 09-

07085 styledFleming v. C-FB ISD in closed or open session. The C-FB ISD Board of Trustees

discussed the Fleming case in closed session. The Agenda for the closed session states as

follows: A. Consider All Matters Related to Purchase, Exchange, Lease, or Value of Real

Property- Action. No supplemental agenda item was placed on the agenda such that this

information could be spoken about. In a subsequent Freedom of Information Request by Mr.

Mark Gommesen, Mr. Gommesen received documentation whereby board member Karin Webb

posed a question as to why such litigation was not on the agenda with a reply by Mr. Mark Hyatt.

Mr. Hyatt stated, At this time there is no apparent action that is required. Any new information

related to the lawsuit may be presented to the Board under the closed meeting agenda item.

The November 12th

, 2009 Regular Meeting of the Board of Trustees, notice of meeting

and agenda item for the closed session states:

A. Consider All Matters Related to Purchase, Exchange,Lease, or Value of Real Property Action Exec. Summary -

Real Property Closed Session 11-1

B. Counsel Briefing From Henslee Schwartz, LLP, to IncludeOral Report and Update on Legal Matters Regarding Laningham

vs. C-FB ISD and Wade vs. C-FB ISD Exec. Summary -Henslee Report Closed Session

There is no designation anywhere on the agenda that an investigation would be discussed either

in open session or in closed session. The investigation would not and is not related to


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Laningham vs. C-FB ISD and Wade vs. C-FB ISD. Testimony from the school board can and

will prove this. In fact, Nancy Watten admitted to Mark Gommesen that the investigation was

related to a former principal from R.L. Turner named Lance Campbell.

Texas is law is very clear. Any item discussed in open or closed session must be listed

on the agenda. The C-FB ISD Board of Trustees violated TOMA because the board discussed

the Fleming case on August 27, 2009 when such item was not on the agenda and the Board

discussed an investigation on November 12, 2009 when such item was on not the Agenda

because Texas law requires full disclosure of all items to be discussed at a Board Meeting

whether in open or closed session.

D. Never Voted to Initiate an Investigation Through an Outside Firm and Never

Voted to Accept Investigation Report

The Board of Trustees has violated the TOMA by starting an investigation without

providing notice to the public and taking any final action to hire an outside firm to conduct the

investigation. Texas Government Code 551.102 reads, [a] final action, decision, or vote on a

matter deliberated in a closed meeting under this chapter may only be made in an open meeting

that is held in compliance with the notice provisions of this chapter. 551.102. A

governmental body can only take steps to put into action a governmental decision only after a

final action, decision, or vote in open session is voted upon at a time when a majority of the

board is presentconstituting a quorum and such item has been adequately described in the

Agenda for such meeting. 551.001(6); 311.013(b); and 551.041. This act of taking a

final action, decision, or vote will be referred to as final action throughout this Petition.



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held by the governmental body. 551.041. The only way that the general public can monitor




violation because notice would be rendered ineffective. 551.041; 551.142.



consequences that may flow from such topic up for consideration. Cox Enters., Inc. at 958.













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complied with TOMArather a public body should act with such apparent willingness to

comply with TOMA that the public needs no assistance from the Courts. Cox Enters., Inc., 706

S.W.2d at 960.

The Board of Trustees has not taken action to initiation any investigation and has not

taken any public action to hire an outside firm to conduct the investigation. The public, at this

time, does not know the person or persons hired to conduct such investigation. Since there has

been no action to start an investigation or hire counsel to conduct an investigation, there is no

proof that any investigation has actually been conducted. If this investigation in any way relates

to irregularities at R.L. Turner, then the subject of the investigation was initiated to explore

purported profound improprieties. The C-FB ISD has violated TOMA by taking action without

a final action vote on open session.

E. Improper Closing of Open Session to go into Closed Session

The C-FBISD Board of Trustees violated TOMA when the presiding officer closed the

meeting and failed to publically identify the section or sections allowing them to close the

meeting. The Texas Government Code 551.101 states that if a closed session is allowed the

presiding officer must, publically (a) announce[s] that a closed meeting will be held; and (b)

identifies the section or sections of this chapter under which the closed meeting is held.

551.101.

A careful and plain reading of the TOMA reveals that if a closed meeting is authorized

(i.e. an exception applies), the governing body must comply with the procedural steps


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enumerated in TOMA. Martinez, 879 S.W.2d at 56. On the other hand, if one of the

exceptions does not apply, then the closed meeting violates the Act regardless of whether the

governing body complied with the procedural steps. Id. The policy behind the TOMA is that

the public should be aware of which members of a governing body are present in a closed

meeting and whether a quorum exists. Id. Additionally, the presiding officer must identify the

section or sections that authorize the closed session for the following reasons: 1) to cause the

governmental body to assess the applicability of the exceptions before deciding to close the

meeting; 2) to fix the governmental bodys legal position as relying upon the exceptions

specified; and 3) to inform those present of the exceptions, thereby giving them an opportunity to

object intelligently. Lone Star Greyhound Park, Inc, 863 S.W.2d at 747. However, when

judging the sufficiency of the presiding officers announcement in light of whether it effectuated

or hindered the purposes of 551.101, the Lone StarCourt found that the presiding officers

reference to the content of a section, rather than to the section number, sufficiently identified the

exception. Id. at 747.

On August 13, 2009 Regular Meeting of the Board of Trustees, where are quorum of

board members were present and seated, the presiding officer asked for any comments from

board members. Then Ms. Chaffin proceeded to adjourn the open meeting and announced they

would reconvene in closed session. The presiding officer did not identify the section or sections

under which they were closing the meeting. Ms. Chaffins statement was,

Um Item Number, Number 6, comments from board membersregarding posted agenda items. Board members? Hearing none

seeing none, item number 7 closed meeting as authorized under theTexas Government Code including but not limited to, to uh,


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551.071 Consultation with Attorney; 551.072 Real Property;551.074 Personnel Matters; 551.076 Security Devices; 551.082

School Children/District Employees/Disciplinary Matter orComplaint; 551.0821 - Personally Identifiable Student

Information; 551.084 Investigation. We will now leave closed

session and go into or leave open session and go into closedsession for items a, b and c. We are adjourned from open sessionat 11:32. You guys get to leave; lucky you.


A. Consider All Matters Related to Purchase, Exchange, Lease,or

Value of Real Property

B. Consider All Matters Related to Cause Number 09-07085,Richard Fleming v. Carrollton-Farmers Branch independent

School District and Lynn Chaffin, Presiding Officer, 95th JudicialDistrict Court, Dallas County (Texas Government Code 551.071

Consultation With Attorney)

C. Report From Attorney

The C-FBISD Board of Trustees Presiding Officer, Lynn Chaffin, says that the Board

will close the session relying on closed meeting as authorized under the Texas Government

Code including but not limited to, to uh, 551.071 Consultation with Attorney; 551.072 Real

Property; 551.074 Personnel Matters; 551.076 Security Devices; 551.082 School

Children/District Employees/Disciplinary Matter or Complaint; 551.0821 - Personally

Identifiable Student Information; 551.084 Investigation. This statement is confusing.

Furthermore, not all exceptions would apply according to the agenda so it appears the C-FB ISD

Board of Trustees is making a blanket statement of exceptions without considering whether such

exception apply to the items being discussed. This is a violation of TOMA.


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At the August 272009 Regular Board Meeting of C-FBISD, where the board sat in

quorum, Lynn Chaffin asked for comments from board members, following that section of the

agenda, Chaffin stated,

We will close the regular board meeting and we will go intoclosed meeting as authorized by Texas Government Code to

Section 551.071 Consultation with Attorney; 551.072 RealProperty; 551.074 Personnel Matters; 551.076 Security Devices;

551.082 School Children/District Employees/Disciplinary Matteror Complaint; 551.0821 - Personally Identifiable Student

Information; 551.084 Investigation. So I will declare this regularmeeting to be closed at 10:06 and we will reconvene in 5 minutes

in closed session.


A. Consider All Matters Related to Purchase, Exchange, Lease, or Value of Real

Property- Action. At no time did Ms. Chaffin specify which exception the meeting was

allowing the board to close the meeting. Petitioner says this because not all exceptions would

apply according to the agenda so it appears the C-FB ISD Board of Trustees is making a blanket

statement of exceptions without considering whether such exception apply to the items being

discussed. This is a violation of TOMA.

At the September 10, 2009 Regular Board Meeting of C-FBISD, while the board sat in

quorum, Lynn Chaffin stated as follows:

Okay in that case we are going to adjourn the openmeeting and go into closed session as authorized by the Texas

Government Code 551. Um, So I will adjourn this meeting at8:57 and we will reconvene in 10 minutes.



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A. Consider All Matters Related to Purchase, Exchange, Lease,orValue of Real Property - Action

B. Hear Level III Grievance Appeal of Ms. Linda Price

C. Hear Level III Workers Compensation Grievance Appeal of

Ms. Linda Price

D. Consider All Matters Related to Cause Number 09-07085

,Richard Fleming v. Carrollton-Farmers Branch IndependentSchool District and Lynn Chaffin, Presiding Officer, 95

thJudicial

District Court, Dallas County (Texas Government Code 551.071 Consultation With Attorney)


close the open meeting. This is a violation of TOMA.

At the September 24,2009 Special Board Meeting of C-FBISD, while the board sat in

quorum, Lynn Chaffin stated

Um that said we will move on to our agenda item, our first

agenda item for tonight is a closed meeting to hear a third levelgrievance, so we are going to have to ask you all to leave. We are

so sorry, but I am going to go ahead and close this open sessionand we will reconvene in 5 minutes in closed session.


A. Hear Level III Grievance Under Board Policy FNG (LOCAL)


close the session. This is a violation of TOMA.

At the October 8,2009 Regular Board Meeting of C-FBISD, while the board sat in

quorum, Ms. Chaffin stated,

Agenda item 4 which will be closed meeting as authorized underthe Texas Government Codeincluding but not limited to, 551.071


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.071 Consultation with Attorney; 551.072 Real Property; 551.074Personnel Matters;

TARPLEY Are 864. the Last Three Digits of the Social

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