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What can I do if a government body regularly goes into unnecessary executive sessions?

Question: Under the Open Meetings Act, what can I do if a government body goes into executive session under a vague “personnel matters” exception every meeting, even if the body is doing other things such as receiving reports or discussing other matters about high-level government employees during this closed session?

Answer: First, to be clear, a government body can go into executive session to discuss personnel matters (551.074). To comply with the notice requirements under 551.001, the government body must (a) meet in open session and announce that a closed session will be held and (b) state the exception under which the body is going into executive session. So, technically, a city council that meets in open session and states that it will be going into closed session to discuss personnel matters – without any further detail – is complying with the notice part of the Open Meetings Act.

While some government bodies voluntarily disclose which personnel are being discussed or otherwise provide more detail, there is nothing in the statute or court/attorney general rulings demanding that government bodies provide more clarity, except in cases involving a “special public interest.” Texas courts have only required more than “employment of personnel” for hiring decisions when such a “special public interest” is involved (for example, courts required more for school boards hiring principles or superintendents; see Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, Texas Supreme Court, 1986).

Thus, hiring and firing of high-level personnel – perhaps including city managers and tax assessors/collectors – would seem to require an additional level of notice beyond merely stating “personnel matters.”

However, the “personnel matters” exception does not cover anything dealing with government personnel. Under 551.074(a)(1), the only personnel discussions that can be closed are sessions “to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal” of a public employee. So, if the body is receiving a report about the aforementioned matters – particularly, say, an audit or investigation about a public employee – that portion of the meeting can be closed.

That said, the personnel matters exception can be (and surely often is) abused. If a government body is trying to dodge public scrutiny by wrongfully hiding behind an exception, it is in violation of the Open Meetings Act. If you hear that matters have been discussed besides those claimed as the reason for meeting in closed session, then you can challenge the validity of closing the meeting in court.

Proceedings of closed sessions must be recorded, either through video/audio recording or through a certified agenda that includes details about any business conducted during the closed session (551.103(a)] This includes at least a brief summary of the subject matter discussed and any actions taken.

Unfortunately, there is no way for you to gain access to the recording or the certified agenda without court intervention – a court can conduct in camera review of the recording/agenda and can admit it into evidence if the case proceeds. I would normally suggest that you seek a friendly member of the board to leak you a copy, but doing so is a misdemeanor.

To be clear, the closed session on personnel matters is only for deliberation, not for final votes and decisions, which must be made on the record. Any final decisions made regarding the public employee (or final decision on any other issue, for that matter) must be made in open session.

By Chip Stewart

Dr. Chip Stewart joined the Schieffer School from the University of Missouri, where he finished his Ph.D. while teaching and working at the Columbia Missourian.
Stewart is currently editor-in-chief of Dispute Resolution Magazine, a quarterly publication of the Dispute Resolution Section of the American Bar Association.
His journalism experience includes working as city editor of the Missourian. He is also a sports freelance writer and has worked as a sports public relations assistant at Southern Methodist University.
Stewart earned his law degree at the University of Texas and is licensed to practice both by the Texas bar and the Missouri bar. He worked as an attorney in Killeen in the late 1990s, practicing criminal, bankruptcy and family law. He also clerked in the Travis County Attorney's office.