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Open Meetings Act

DID THE BOARD MEMBERS VIOLATE THE OPEN MEETINGS ACT?

Case citation:  Foreman v. Whitty, __ S.W.3d __, 2012 WL 6186336 (Tex. App. – San Antonio 2012).

Editor’s Note:  This case does not involve a school district, but is relevant to school districts.  The litigation involves alleged violations of the Texas Open Meetings Act.  The provisions of the Open Meetings Act discussed in this case apply equally to school board members.

Summary:  The Junction Texas Economic Development Corporation (“the Board”) was comprised of seven voting members.  It operated pursuant to bylaws providing that a simple majority of four members constituted a quorum and that all board meetings would be conducted in accordance with the Open Meetings Act.

In January of 2010, a dispute arose when Lynn Foreman, the board treasurer, questioned whether the board’s executive director, Patricia Witty, used board funds for unauthorized expenses.  Foreman asked the board president, J.D. Kidwell, to provide her with documentation regarding the expenditures, but Kidwell and Witty allegedly declined to do so.

At around the same time, the City of Junction Mayor allegedly indicated to the board that he had been made aware of possible violations of the Open Meetings Act.  He warned the board that discussions of board matters outside of an open meeting would violate the Act and that any member who intentionally violated the Act would be considered for removal from the board.

In February of 2010, Foreman alleged that Kidwell attempted to discuss board matters with her over the phone but she refused.  In March of 2010, the board’s legal counsel resigned at a board meeting and stated that, in his opinion, certain board members were having meetings in violation of the Open Meetings Act.

Foreman later met with the legal counsel to discuss Witty’s expenses and alleged violations of the Open Meetings Act.  In an effort to schedule a board meeting, email correspondence was exchanged between the board members.  As part of the scheduling, one board member sent an email addressed to the entire board asking whether Foreman and newly elected board member Cesar Vasquez had met with the lawyer.  The board member stated further that if Foreman did not like the way the board was handling the matter, she could resign.  Witty quickly emailed all of the recipients of that email, cautioning them not to respond in case it violated the Open Meetings Act.  Foreman and Vasquez construed the email as a threat to remove them from the board or subject them to official discipline.

In April of 2010, the agenda for an upcoming City Council meeting contained an item regarding disciplining or removing unnamed board members.  The day before the meeting was held, Foreman and Vasquez sued the City of Junction, the board, and individual board members.  The suit alleged violations of the Open Meetings Act, misappropriation of property, breach of fiduciary duty, and official oppression.  The defendants filed motions requesting judgment in their favor prior to trial.  The trial court granted the motions and also awarded one defendant attorney’s fees in the amount of $20,000.  Foreman and Vasquez appealed.

Ruling:  The appeals court upheld the judgments in favor of the city and individual defendants, but reversed the award of attorney’s fees against Foreman and Vasquez.  The main issue on appeal was whether Foreman and Vasquez had produced sufficient evidence to support their claims under the Open Meetings Act.  Under the Act, every regular, special, or called meeting of a governmental body shall be open to the public unless a specific exception applies.  The purpose of the Open Meetings Act is to enable public access to, and to increase public knowledge of government decision making.

A violation of the Act occurs when a quorum of a governmental body meets in private to deliberate over public business.  A “meeting” is defined as a “deliberation between a quorum of a governmental body, or between a quorum and another person.”  The deliberation must involve discussion, consideration, or formal action on public business or public policy over which the governmental body has supervision or control.  Further, “deliberation” is defined as a “verbal exchange.”

The appeals court held that Foreman and Vasquez failed to establish that any meeting took place by a quorum of the board in violation of the Open Meetings Act.  The plaintiffs pointed to evidence that the mayor had warned the board not to violate the Act and that legal counsel for the board alleged possible violations when he resigned.  However, the appeals court determined that those allegations did not prove that a violation actually occurred.  The plaintiffs failed to submit specifics about the complained-of communications, such as the timing and subject matter of the alleged communications.  They also failed to show which specific board members may have been involved.  Foreman testified that the board president called her personally to “get her up to speed” with board business, but Foreman refused to continue the conversation.  Thus, no verbal exchange occurred that could constitute a deliberation over public business.  Because Foreman and Vasquez failed to produce sufficient evidence that board members violated the Open Meetings Act, the appeals court upheld the judgments in favor of the city, the board, and the individual board members.

Things to Remember:   When boards have internal conflicts it is common for members to accuse other members of violating the Open Meetings Act.  The many vague terms and standards in the law facilitate this.  However, once the matter ends up in court, some specific evidence is necessary to make the case.  Here, the evidence fell short of proof.