Municipal Corner

by Jacqueline Perrin

Having involvement with an agreement that might benefit property belonging to city officials does not run afoul of the conflicts provisions of the Local Government Code when those city officials lack the authority to vote on the relevant agreement. Tex. Att’y Gen. Op. No. KP-0244 (2019).

The City of Conroe (the “City”) sought an opinion by the Attorney General (“AG”) to determine whether the City Attorney and City Administrator were local public officials subject to the conflicts provisions of Chapter 171 of the Texas Local Government Code (“TLGC”).

On behalf of the City, the City Attorney and City Administrator negotiated an agreement whereby a landowner would donate public park lands in exchange for an exception from the City’s tree preservation ordinance and consent to include the landowner’s property in a municipal utility district, in accordance with the owner’s planned development.

Concerns arose from the fact that the City Attorney and City Administrator owned homes adjacent to the relevant property. If approved, some wondered whether the terms of the agreement would yield economic benefits for the properties owned by the City Attorney and the City Administrator.

TLGC § 171.004 prohibits a “local public official” from participating in a vote or decision involving property in which the official has a substantial interest. A “local public official” is a member of the governing body or another officer of a municipality whose responsibilities are more than advisory in nature. TLGC § 171.001.

In this opinion, the AG declared that an individual may be subject to the conflicts provisions if the individual (1) has a substantial interest in real property that may be involved in municipal action; (2) is a local public official of the municipality as that term is statutorily defined; and (3) votes or makes a decision on a matter that will have a special economic effect on the value of the individual’s property. Tex. Att’y Gen. Op. No. KP-0244 (2019) at 2. Finding that home ownership may constitute a “substantial interest in real property,” the first element was fulfilled.

However, because the City Attorney and City Administrator lacked the authority to vote on the agreement, the AG determined the inquiry as to whether they were “local public officials” was unnecessary. Thus, the City Attorney and City Administrator were not subject to the requirements of TLGC § 171.004 with respect to the agreement, despite the fact that they had economic ties to the agreement they negotiated. The AG ended by cautioning that conflicts such as these are fact specific and should be evaluated on a case-by-case basis as they relate to particular government actions.

The AG and the newly passed SB 1640 effectively clarify the definition of a walking quorum to cure it of its former constitutional vagueness. Tex. Att’y Gen. Op. KP-0254 (2019).

The Texas Education Agency (“TEA”) sought an opinion from the AG to determine whether the Texas Open Meetings Act (“TOMA”) continues to prohibit a quorum of a governmental body from deliberating on an item of public business outside of an authorized meeting through multiple communications, each involving less than a quorum—a so-called “walking quorum.”

In a recent opinion by the Court of Criminal Appeals in State v. Doyal, the Court struck a criminal provision of the TOMA on the grounds that it was unconstitutionally vague. 2019 WL 944022 (Tex. Crim. App. Feb. 27, 2019). The section provided that a “member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent [the TOMA] by meeting in numbers less than quorum for the purpose of secret deliberations.” Texas Government Code (“TGC”) § 551.143(a). The purpose of the TOMA is to encourage good government by ending closed-door sessions where deals are cut without public scrutiny.

Statutorily, the TOMA requires each “regular, special, or called meeting of a governmental body” to be open to the public, except as provided by the TOMA. TGC § 551.002. Accordingly, the AG stated that, “a meeting occurs when a quorum of a governmental body has a verbal exchange about public business or policy within the jurisdiction of the governmental body.” Tex. Att’y Gen. Op. No. KP-0254 (2019) at 2. Here, the AG found that a deliberation need not occur simultaneously or in the same location to constitute a meeting. In Esperanza Peace & Justice Center. v. City of San Antonio, the City Council made illegal budget reductions when members conducted multiple meetings, each less than a quorum, to reach a consensus on their budget, signing a consensus memorandum at the conclusion of those meetings. 316 F. Supp.2d 433, 471-78 (W.D. Tex. 2001).

Previous AG opinions have also concluded that TOMA violations can occur even when there is no physical presence of a quorum in a single place at the same time. Tex. Att’y Gen. Op. No. JC-0307 (2000) at 5. Even a series of emails may sometimes constitute a deliberation and a meeting. Tex. Att’y Gen. Op. No. GA-0896 (2011) at 3–4. In Acker v. Texas Water Commission, the Texas Supreme Court highlighted that there is either formal consideration in compliance with the TOMA or an illegal meeting. 790 S.W.2d 299, 300 (Tex. 1990).

Although the Court in State v. Doyal struck the criminal penalty for a walking quorum, civil remedies for the TOMA remain. Actions taken in violation of the TOMA are voidable and any interested person may still file suit for mandamus or injunctive relief.

The TEA also inquired about its authority to conduct regulatory investigations of a school district. The AG confirmed that TEA could bring a civil action if it found that school district officials violated their duty to act only by a majority vote of members present at a meeting held in compliance with the Texas Education Code.

Senate Bill 1640, effective as of June 10, 2019, amends TGC
§ 551.143 in response to the constitutional infirmities raised by the Court of Criminal Appeals in State v. Doyal. A member of a governmental body now commits an offense if the member knowingly engages in at least one of a series of communications that ultimately amounts to a quorum if such communications are outside a public meeting and concerning an issue within the body’s jurisdiction. An offense can result in a fine and/or jail time.

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Municipal Corner is prepared by Jacqueline Perrin. Jacqueline is an Associate in the Firm’s Districts Practice Group. If you would like additional information or have any questions related to these or other matters, please contact Jacqueline at 512.322.5839 or jperrin@lglawfirm.com.