Q: Our hospital district board of trustees went into closed session with an outside independent auditor, the board’s attorney, the district attorney and local law enforcement to discuss a forensic audit of district’s finances under its former president. Afterward, the board reconvened in open session and did not discuss the audit results, but voted to send the audit report to law enforcement. Didn’t the board have a duty to discuss the audit report and say why they are sending it to law enforcement before calling a vote?
A: Maybe the board refrained from public discussion of the audit because it contains information related to an active criminal investigation, or the audit is in draft form containing “audit working papers” which are confidential.
Final/completed audit reports are public information. Audit working papers are not. You will find the following language in the Texas Attorney General’s 2016 Public Information Handbook, beginning on page 135:
(b) In this section: (1) “Audit” means an audit authorized or required by a statute of this state or the United States, the charter or an ordinance of a municipality, an order of the commissioners court of a county, the bylaws adopted by or other action of the governing board of a hospital district, a resolution or other action of a board of trustees of a school district, including an audit by the district relating to the criminal history background check of a public school employee, or a resolution or other action of a joint board described by Subsection (a) and includes an investigation. (2) “Audit working paper” includes all information, documentary or otherwise, prepared or maintained in conducting an audit or preparing an audit report, including: (A) intra-agency and interagency communications; and (B) drafts of the audit report or portions of those drafts.
“Audit working paper” is defined as including all information prepared or maintained in conducting an audit or preparing an audit report, including intra-agency or interagency communications and drafts of audit reports. A governmental body that invokes section 552.116 must demonstrate the audit working papers are from an audit authorized or required by an authority mentioned in section 552.116(b)(1) and must identify that authority.
To the extent that information in an audit working paper is also maintained in another record, such other record is not excepted by section 552.116, although such other record may be withheld from public disclosure under the Act’s other exceptions. There are no cases or formal opinions interpreting the current version of section 552.116.
Q: Our county operates an airport. A notice to bidders was published for construction of airport improvements, but not in the county seat newspaper. What is the publication requirement?
A: It’s a notice to bidders, not a public notice. That is the key. In the situation you describe, the political subdivision is required to post a notice to bidders in the Texas Register and on the Texas Department of Transportation website. There is no requirement for a public notice in a newspaper. Texas Press Association lobbies in favor of broader public notice rather than a mere notice to bidders, because (1) public notice is especially helpful to smaller local contractors and (2) our position has forever been that the public has a right to know about all publicly funded projects.
Rules concerning notice to bidders are in Title 43, the transportation portion of the Texas Administrative Code. See also Local Government Code Sec. 271.055, titled Notice to Bidders. Unlike a notice to bidders concerning a construction project, that section relates to acquisition, sale or lease of property and it does include a public notice requirement. The law says: a) An issuer must give notice of the time, date, and place at which the issuer will publicly open the bids on a contract for which competitive bidding is required by this subchapter and read the bids aloud. The notice must be given in accordance with Subsection (b) or in accordance with:
(1) Chapter 252, if the issuer is a municipality;
(2) the municipal charter of the issuer, if the issuer is a home-rule municipality; or
(3) the County Purchasing Act (Subchapter C, Chapter 262), if the issuer is a county.
(b) If an issuer gives notice under this subsection, the notice must:
(1) be published once a week for two consecutive weeks in a newspaper, as defined by Subchapter C, Chapter 2051, Government Code, that is of general circulation in the area of the issuer, with the date of the first publication to be before the 14th day before the date set for the public opening of the bids and the reading of the bids aloud; and
(2) state that plans and specifications for the work to be done or specifications for the machinery, supplies, equipment, or materials to be purchased are on file with a designated official of the issuer and may be examined without charge.
(c) If the contract is to be let on a unit price basis, in addition to the other information required to be in the notice, the notice must specify, based on the best available information, the approximate quantities of the items needed by the issuer that are to be bid on.
Q: I am in a rush to get my newspaper to press and drive, as fast as the law will allow, to the airport to get on a plane to Washington, D.C. I plan to drop in on my congressman, but I need a backup plan in case he isn’t available when I show up. Please email me the names and contact information for each member of his staff.
A: Thanks to the Texas Tribune, here is the quick and easy path I took to fulfill your request. I opened https://www.texastribune.org/.directory/ and clicked the “U.S. Congress” tab. Next, I clicked the name of your U.S. representative. On the page that opened, I found a list of his staff members and links to their contact information.
Q: Our city council is not as forthcoming as it should be in its meeting notices, and in particular, the topics of closed sessions. The public is in the dark about what is going to be discussed. Is there something I can share with the powers that be, to get more specificity in regards to agenda items?
A: First, here is a link to the Texas Attorney General’s 2016 Texas Open Meetings Handbook:
Open that link and scroll down to page 27. The title at the top of the page is VII. Notice Requirements. I hope you will read the entire section, but for now, please see:
B. Sufficiency. The notice must be sufficient to apprise the general public of the subjects to be considered during the meeting.
Next, on page 30, please see: C. Generalized Terms Generalized terms such as “old business,” “new business,” “regular or routine business,” and “other business” are not proper terms to give notice of a meeting because they do not inform the public of its subject matter.
Now, to submit a request to the city secretary in order to name the exact topic of the closed session, please open this link:
Copy, cut and paste the text of the letter into a new file and print it on your company letterhead stationery. Customize the text as you see fit.
Next, to add weight to your request, at the bottom of your letter, include this:
cc: Justin Gordon, Open Records Chief, Office of the Attorney General, P.O. Box 12548, Austin, TX 78711
You may ask the city secretary to put a date stamp on your letter. If you succeed at that, you may ask for a copy of the date-stamped letter. Then, when you return to your office, you can make copies of the public information request for your files and mail a copy to Justin Gordon.
Sometimes, just going through this process is enough to get a governmental body to give you the information you’re requesting. The city secretary or the mayor might see the carbon copy addressee and end up saying, “Please don’t send that letter. We’ll just give you the information.”
Q: I attended a city council meeting Monday evening. I could tell some of the council members had previously discussed an agenda item. I am correct in saying that if a quorum of the council is present anywhere, they cannot discuss city business, right? What should I tell them if two or three meet up and discuss city business?
A: According to the Texas open meetings law, to deliberate on public business, a quorum of a governmental body is required to meet in public, and the public must be provided notice at least 72 hours before the meeting begins.
See Government Code § 551.143, Conspiracy to Circumvent Chapter; Offense; Penalty (a) A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter. (b) An offense under Subsection (a) is a misdemeanor punishable by: (1) a fine of not less than $100 or more than $500; (2) confinement in the county jail for not less than one month or more than six months; or (3) both the fine and confinement.
And here is what the Texas Attorney General’s 2016 Open Meetings Handbook tells us about that:
Meetings of Less than a Quorum in Attempt to Evade the Act: “Walking Quorums” On occasion, a governmental body has tried to avoid complying with the Act by deliberating about public business without a quorum being physically present in one place and claiming that this was not a “meeting” within the Act. Conducting secret deliberations and voting over the telephone, when no statute authorized this, was one such method. A “walking quorum” is described in Esperanza Peace and Justice Center v. City of San Antonio. The night before an open city council meeting was to be held, the mayor met with several city council members in the city manager’s office and spoke with others by telephone about the city budget. A decision was made that night and ratified at the public meeting the next day. The federal court stated that it would violate the spirit of the Act and render a result not intended by the Legislature “[i]f a governmental body may circumvent the Act’s requirements by ‘walking quorums’ or serial meetings of less than a quorum, and then ratify at a public meeting the votes already taken in private.” The Esperanza court said that a meeting of less than a quorum is not subject to the Act “when there is no intent to avoid the Act’s requirements.” On the other hand, the Act would apply to meetings of groups of less than a quorum where a quorum or more of a body attempted to avoid the purposes of the Act by deliberately meeting in groups less than a quorum in closed sessions to discuss and/or deliberate public business, and then ratifying their actions as a quorum in a subsequent public meeting. The evidence showed that the city council intended to avoid the Act. For example, the mayor met with council members constituting less than a quorum to reach a conclusion; the city manager kept track of the number of council members present so as to avoid a formal quorum; the consensus reached was memorialized in a memorandum containing the signatures of each council member; and the consensus was “manifested” when adopted at an open meeting.