WHEN WILL ELECTION IRREGULARITIES INVALIDATE A SCHOOL BOARD ELECTION?
Case citation: Garza v. Peña, 2013 WL 485800 (Tex. App. – Corpus Christi 2013) (unpublished).
Summary: Four school board candidates who were not elected to the La Joya Independent School District board of trustees sued the four elected board members, claiming that election irregularities invalidated the election. The four unsuccessful candidates claimed that 1100 voters who were ineligible for assistance were illegally assisted in voting in the election in violation of Texas Election Code § 64.031. They also alleged that some of the voters were illegally assisted by their employers or an agent of their employers, in violation of Election Code § 64.032. Finally, they claimed that election officials engaged in fraud by allowing the illegal assistance. The candidates requested that the court either declare them the winners or declare the results void and order a new election.
In response to the lawsuit, the four elected board members requested judgment in their favor prior to trial, arguing that the plaintiffs could not produce any evidence to support their claims. The trial court granted the motion and the plaintiffs appealed.
Ruling: The appeals court upheld the judgment in favor of the elected school board members, finding no evidence to invalidate the school board election. The appeals court observed that the “right to vote should be zealously guarded as are natural rights, and statutes regulating that right should be liberally interpreted in favor of the right.” As a result, elections generally will not be invalidated due to election irregularities unless those irregularities are shown to have affected or changed the results of an election.
The appeals court stated that election contestants must “allege and prove particularized material irregularities in the conduct of the election and establish either: (1) that a different and correct result should have been reached by counting or not counting certain specified votes affected by the irregularities; or (2) that the irregularities were such as to render a determination of the true will of the majority of the voters impossible.” Further, according to the appeals court, absent evidence that any voter actually voted pursuant to faulty instruction of an election judge, and absent evidence of fraud on the part of any election official, an election should not be invalidated.
In this case, election contestants provided no evidence that any voter actually voted pursuant to instructions provided by people who allegedly assisted in voting. They produced affidavits of a number of poll watchers and other people stating that certain voters, totaling approximately 1100, were not eligible for the assistance they received at the polls. Even assuming that to be the case, the appeals court observed that the candidates were still required to produce evidence that those 1100 illegally-assisted voters actually voted pursuant to instructions of the people assisting them. They also had to provide proof that the illegal assistance “affected the outcome of the election or created a situation that rendered determining the true will of the voters impossible.” Because the candidates failed to provide evidence that any procedural irregularity affected the outcome of the election, the appeals court upheld the judgment in favor of the elected board members.
DOES AN ELECTION CHALLENGE HAVE TO BE APPEALED TO T.E.A.?
Case citation: Roma ISD v. Guillen, 2013 WL 684781 (Tex. App. – San Antonio 2013) (unpublished).
Summary: On December 19, 2011 and November 15, 2012, the Roma Independent School District Board of Trustees passed resolutions changing the election dates for the seven-member board. The December 19 resolution changed the term of the board members from three to four years and changed the election dates for board members to May of odd-numbered years. The November 15 resolution changed the election dates for board members to November of even-numbered years. The result of the changes was to allow current board members to extend their original three-year terms to between four and a half and five and a half years.
Noelia M. Guillen, Raul Moreno, Dagoberto Salinas, and Tony Saenz (plaintiffs), taxpayers and voters in the district, had announced their intent to run for the board in the May 2013 election. Accordingly, when the board passed the November 15 resolution changing the election dates for the second time, and thereby extending the terms of the current board members, the plaintiffs filed suit under the Uniform Declaratory Judgments Act, asking the court to (1) declare the board’s actions void, and (2) award temporary injunctive relief. Specifically, they asked the court to abate the application and enforcement of the December 19 resolution, prevent the district from taking action to extend the terms of the current board members, and order that an election be held in May of 2013 for all board trustees whose terms were scheduled to expire.
In response, the district filed a plea to the jurisdiction, challenging the trial court’s jurisdiction over the suit. It argued that sovereign immunity barred the claims, that the plaintiffs failed to exhaust administrative remedies, and that they did not comply with statutory prerequisites to file suit. The district also claimed that the court did not have jurisdiction over the district’s discretionary election decisions. The trial court denied the district’s plea to the jurisdiction and the district appealed.
Ruling: The appeals court affirmed the trial court’s decision to deny the district’s plea to the jurisdiction. According to the appeals court, the plaintiffs were not required to exhaust administrative remedies on their claims for alleged violations of the Election Code and Texas Administrative Code. Under Texas law, an aggrieved party whose claim relates to the administration of school laws must exhaust administrative remedies with the Commissioner of Education before filing suit. Courts, however, recognize several exceptions to this rule which include, among others, when the aggrieved party will suffer irreparable harm and the Commissioner is unable to provide the relief requested.
The plaintiffs argued that they were not required to exhaust administrative remedies because their claims were not related to the school laws of Texas. The Commissioner has jurisdiction over claims related to the “school laws” of Texas and those involving the violation of an employment contract that caused or would cause monetary harm. The “school laws” of Texas, for the purposes of Commissioner jurisdiction, are the first two titles of the Education Code and related Texas Administrative Code provisions. The appeals court held that several of the plaintiffs’ claims related to the Election Code and Texas Administrative Code, were not grievances under the Texas “school laws.” Thus, the Commissioner would lack authority to review those claims. The plaintiffs were not required to exhaust administrative remedies as to those claims and the trial court properly denied the district’s plea to the jurisdiction on that basis.
As to the remaining claims that might fall within the “school laws” of Texas, the appeals court held that exhaustion also was not required because the plaintiffs were able to show that they would suffer irreparable harm and the Commissioner was unable to provide relief. Neither the Education Code nor the Administrative Procedure Act authorize the Commissioner to issue an injunction. According to the appeals court, “if an aggrieved party cannot be compensated by damages at a later date, and is seeking immediate injunctive relief rather than damages, the party is not required to exhaust the administrative process through the Commissioner of Education because he cannot provide the injunctive relief sought.” Thus, for any claims that might have been deemed “school law” claims, the plaintiffs were not required to exhaust administrative remedies.
The district next argued that the trial court lacked jurisdiction because “courts are wholly prevented from regulating school districts on discretionary decisions affecting elections.” The appeals court disagreed. According to the appeals court, Texas law is “replete with instances in which courts have ordered local governmental entities to hold elections when mandated by local or state law.” The appeals court, therefore, upheld the decision to deny the school district’s plea to the jurisdiction.
Open Meetings Act
WHAT CONSTITUTES A “MEETING” UNDER THE OPEN MEETINGS ACT?
Case citation: Tex. Att’y Gen. Op. GA-0989 (2013).
Summary: The Texas Attorney General recently was asked whether a member of a governmental body may leave an open meeting to confer privately with employees of that governmental body. The situation at issue involved a city council member voluntarily leaving a public meeting of the council to “visit privately” with one or more municipal employees. It was presumed that a quorum of the council was present both before and after the member left the meeting.
Ruling: The Texas Attorney General concluded that a private consultation between a member of a governmental body and an employee of that government body that does not take place within the hearing of a quorum of the other members of the government body does not, under the facts presented, constitute a “meeting” within the terms of the Open Meetings Act, Government Code, chapter 551. The Texas Open Meetings Act generally requires that every meeting of a governmental body be open to the public. The term “meeting” is defined in two ways. First, under Texas Government Code § 551.001(4)(A), a “meeting” is a “deliberation” between a quorum of a governmental body, or between a quorum and another person, during which business or public policy is discussed or considered or during which the governmental body takes formal action. Second, under § 551.001(4)(B), a “meeting” is a gathering that is conducted by the governmental body or for which the governmental body is responsible; at which a quorum of members is present; that has been called by the governmental body; and at which the members receive information from, give information to, ask questions of, or receive questions from any third person. This third person can include an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control.
Further, a “deliberation” is a “verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business.” Under subsection 551.001(4)(A), a deliberation involving a member of a governing body and a third person does not constitute a “meeting” unless there is a verbal exchange between a quorum of the governmental body and the third person. Under subsection 551.001(4)(B), a gathering is not a meeting unless a quorum of members receive information from, give information to, ask questions of, or receive questions from a third person, including an employee of the governmental body.
Thus, under either definition of the term “meeting,” there must be a deliberation or exchange between a quorum and the employee. Under the facts presented, an individual council member is consulting with a city employee. As a result, no “meeting” is taking place. The Attorney General emphasized that this conclusion was based on the facts presented in the opinion request. The Attorney General stated further that, “[i]f the consultation between the council member and the city employee takes place within the hearing of the other members of the council that are participating in the public meeting, that consultation may itself constitute a ‘meeting,’ particularly under section 5551.001(4)(B)(iv), which applies . . . to deliberations between a quorum of a governmental body and employees of that governmental body.”
Things to Remember: The parties to this dispute do not agree on the facts, but the A.G. will not resolve their differences. Taking the facts as given in the request, the A.G. could hardly have reached a different conclusion. If board members violate the TOMA when they have a private consultation with an employee during a board meeting, there would be no more breaks during meetings. Every trip to the bathroom would be fraught with danger.