Does an open meetings notice have to say a city council will vote on a motion, not just discuss it?

TX AG Opinion GA-0477: How specific must an open meetings notice be?

Plain-English summary

State Representative Allan Ritter, chairing the House Committee on Economic Development, asked the Attorney General how detailed an Open Meetings Act notice has to be. The question grew out of a Fairfield City Council meeting. The posted notice listed "Discussion and Possible Action on Mayor's Report." At the meeting, the mayor announced he had appointed a committee to investigate the disclosure of city banking information, and a council member then offered a "personal endorsement" motion supporting that action, which the council approved. Someone argued the vote violated the Act because the endorsement motion was not specifically named in the posted notice.

The Attorney General laid out the governing rule from Texas case law. The Act requires a governmental body to post written notice of the date, hour, place, and subject of a meeting, generally at least seventy-two hours ahead. A notice is adequate when it alerts a reader to the topic that will be considered. It does not have to list every consequence that might flow from the discussion, and it generally does not have to say that a vote or adoption will take place, so long as the topic itself is disclosed. There is an exception: if a city's own established custom is to flag when action will be taken (for example, by writing "discussion/action" when a vote is planned and just "discussion" when none is), then a notice that omits the action flag may not alert the public. Notices also must be more detailed when the subject is of special or significant interest to the public.

Applying that, the opinion said a notice must alert the public that the council may consider some action on the endorsement topic. The Act allows, but does not require, the notice to state specifically that the motion will be put to a vote, unless the city's notices routinely indicate when action is contemplated. The posted "Discussion and Possible Action on Mayor's Report" would generally alert the public that the council might vote. But whether that wording adequately alerted the public to the specific endorsement topic, and whether the subject's significance demanded more detail, were fact questions the opinion process cannot answer. Finally, the opinion addressed the cure question: if the vote was taken on inadequate notice, the council could ratify the motion at a later, properly noticed meeting, with the motion effective only from the date of re-adoption.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Open Meetings Act has been amended several times since 2006. Anyone evaluating the adequacy of a current meeting notice should check the present statute and recent court decisions rather than relying on this opinion.

Who this opinion affected (as of 2006)

City councils and other governmental bodies: The opinion told them that their posted notices had to alert the public to the topic that would be considered, but did not have to announce that a vote would be taken, unless their own customary practice was to flag pending action.

Residents, journalists, and open-government watchers: The opinion described how courts judge whether a notice gave fair warning, by comparing the notice to the action taken and weighing the topic's significance to the public.

Officials worried about a defective vote: The opinion explained that an action taken on inadequate notice could be voided by a court, but could also be cured by re-adopting it at a later, properly noticed meeting, effective only from the re-adoption date.

Common questions

Does a meeting notice have to say the council will actually vote, not just discuss?
Generally no. The opinion concluded the Act requires the notice to alert the public to the topic. It does not require the notice to state that a vote or adoption will occur, unless the city's own posting practice routinely signals when action is planned.

Is "Discussion and Possible Action on Mayor's Report" enough notice?
The opinion said that kind of wording would generally alert the public that the council might vote. Whether it adequately alerted the public to the specific endorsement topic, and whether the subject's importance required more detail, were fact questions the Attorney General could not resolve.

When does a notice have to be more detailed?
When the subject is of special or significant interest to the public. The opinion noted that whether a topic carries that level of public interest is itself a question of fact for a court.

If a vote was taken on bad notice, is it permanently void?
Not necessarily. The opinion explained that the council can cure an invalid action by re-adopting the motion at a later meeting held on adequate notice. The re-adopted motion takes effect only from the date of re-adoption, with no retroactive effect.

Background and statutory framework

The Open Meetings Act requires a governmental body to give written notice of the date, hour, place, and subject of each meeting (Tex. Gov't Code Ann. § 551.041 (Vernon 2004)), and a local body such as a city council must generally post that notice at least seventy-two hours before the meeting (id. § 551.043(a) (Vernon Supp. 2006)). Notice is adequate when it alerts a reader to the topic to be considered, and it need not list every consequence that may flow from the topic (Cox Enters., Inc. v. Bd. of Trs., 706 S.W.2d 956, 958 (Tex. 1986); Rettberg v. Tex. Dep't of Health, 873 S.W.2d 408, 411 (Tex. App.-Austin 1994, no writ)).

To decide whether a notice adequately informs the public, a court compares the notice to the action taken (Markowski v. City of Marlin, 940 S.W.2d 720, 726 (Tex. App.-Waco 1997, pet. denied)) and may weigh the body's established posting customs (River Rd. Neighborhood Ass'n v. S. Tex. Sports, 720 S.W.2d 551, 557 (Tex. App.-San Antonio 1986, writ dism'd)). A notice must be more specific when the subject is of special or significant interest to the public, which is a fact question (Gardner v. Herring, 21 S.W.3d 767, 773-74 (Tex. App.-Amarillo 2000, no pet.)). A body need not add language indicating that it might act on a matter under consideration (City of San Angelo v. Tex. Natural Res. Conservation Comm'n, 92 S.W.3d 624, 630 (Tex. App.-Austin 2002, no pet.)). Because the adequacy of the Fairfield notice turned on facts, the opinion declined to resolve it (Tex. Att'y Gen. Op. No. GA-0156 (2004)).

A court may void actions taken in violation of the Act's notice requirements (Tex. Gov't Code Ann. § 551.141 (Vernon 2004); Swate v. Medina Cmty. Hosp., 966 S.W.2d 693, 697-99 (Tex. App.-San Antonio 1998, pet. denied)), but an invalid action may be ratified at a later, validly noticed meeting so long as there is no retroactive effect (Markowski, 940 S.W.2d at 726).

Citations

Statutes:

• Tex. Gov't Code Ann. §§ 551.001-.146 (Vernon 2004 & Supp. 2006)
• Tex. Gov't Code Ann. §§ 551.041, 551.141 (Vernon 2004); § 551.043(a) (Vernon Supp. 2006)

Cases:

• Cox Enters., Inc. v. Bd. of Trs., 706 S.W.2d 956, 958 (Tex. 1986)
• Rettberg v. Tex. Dep't of Health, 873 S.W.2d 408, 411 (Tex. App.-Austin 1994, no writ)
• Markowski v. City of Marlin, 940 S.W.2d 720, 726 (Tex. App.-Waco 1997, pet. denied)
• River Rd. Neighborhood Ass'n v. S. Tex. Sports, 720 S.W.2d 551, 557 (Tex. App.-San Antonio 1986, writ dism'd)
• Gardner v. Herring, 21 S.W.3d 767, 773-74 (Tex. App.-Amarillo 2000, no pet.)
• City of San Angelo v. Tex. Natural Res. Conservation Comm'n, 92 S.W.3d 624, 630 (Tex. App.-Austin 2002, no pet.)
• Swate v. Medina Cmty. Hosp., 966 S.W.2d 693, 697-99 (Tex. App.-San Antonio 1998, pet. denied)
• Tex. Att'y Gen. Op. No. GA-0156 (2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0477
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0477.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

October 30, 2006

The Honorable Allan Ritter
Chair, Committee on Economic Development
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0477

Re: Whether the Open Meetings Act requires specific notice of a non-binding vote on a "personal endorsement" motion (RQ-0477-GA)

Dear Representative Ritter:

You ask about the notice required by the Open Meetings Act, Government Code chapter 551 (the "Act"). See TEX. GOV'T CODE ANN. §§ 551.001-.146 (Vernon 2004 & Supp. 2006). You first ask whether "a non-binding vote on a ceremonial 'personal endorsement' motion taken during the open session of a City Council meeting [must] be specifically noticed at least seventy-two hours prior to the meeting in order to fully comply with the . . . Act." A letter from the city's mayor states that the posted notice for the city council meeting listed "Discussion and Possible Action on Mayor's Report." At the meeting, the mayor announced that he had appointed a committee to investigate the disclosure of city banking information. See Hill Letter, supra note 2, at 1. After the announcement, a city council member offered a personal endorsement motion in support of the mayor's action, which was approved by the city council. See id. It has been suggested that adoption of the motion violated the Act because it was not specifically mentioned in the posted notice. Id.

The Act requires a governmental body to "give written notice of the date, hour, place, and subject of each meeting held by the governmental body." TEX. GOV'T CODE ANN. § 551.041 (Vernon 2004). A local governmental body such as a city council must generally post the notice at least seventy-two hours before the scheduled time of the meeting. See id. § 551.043(a) (Vernon Supp. 2006). Notice is adequate when it alerts a reader to the subject to be considered relative to a topic. See Cox Enters., Inc. v. Bd. of Trs., 706 S.W.2d 956, 958 (Tex. 1986). And "[a]s long as a reader is alerted to the topic for consideration, it is not necessary to state [in the notice] all of the consequences which may flow from consideration of the topic." Id.; see also Rettberg v. Tex. Dep't of Health, 873 S.W.2d 408, 411 (Tex. App.-Austin 1994, no writ) ("The fact that possible consequences [of discussion and evaluation of the board's executive secretary's duties] might include a change in job description, a raise in salary or even termination does not invalidate the action taken if the . . . notice was sufficient to alert the reader of the topic under consideration."). To determine if the notice adequately informs the public of the topic under consideration, a court will compare the content of the notice given and the action taken at the meeting. See Markowski v. City of Marlin, 940 S.W.2d 720, 726 (Tex. App.-Waco 1997, pet. denied). As part of that analysis, a court may consider the established notice-posting customs and practices of the governmental body. See River Rd. Neighborhood Ass'n v. S. Tex. Sports, 720 S.W.2d 551, 557 (Tex. App.-San Antonio 1986, writ dism'd) (holding that notice stating "discussion" did not alert the public that action would be taken, in light of district's well-established practice of stating "discussion/action" when action was contemplated and merely "discussion" when no action was taken). The notice must be more specific or detailed when the subject considered is of special or significant interest to the public. See Markowski, 940 S.W.2d at 726; Rettberg, 873 S.W.2d at 411. Whether the topic is of special or significant interest to the city residents is a question of fact. See Gardner v. Herring, 21 S.W.3d 767, 773-74 (Tex. App.-Amarillo 2000, no pet.). But "irrespective of whether the topic is of special or no interest, the Act still requires the governing body to make 'full disclosure of the subject matter of the meetings.'" Id. at 773.

Turning back to your question, a notice of the city council meeting must alert the public that some action will be considered with respect to the topic of the personal endorsement motion. See Cox Enters., Inc., 706 S.W.2d at 958; Gardner, 21 S.W.3d at 773. As long as the notice alerts the public of the topic, the Act permits the notice to specifically state that a personal endorsement motion or resolution will be considered for adoption or vote but does not require the notice to do so unless the city's meeting notices routinely indicate when a motion or resolution will be adopted. See Cox Enters., Inc., 706 S.W.2d at 958; River Rd. Neighborhood Ass'n, 720 S.W.2d at 557; see also City of San Angelo v. Tex. Natural Res. Conservation Comm'n, 92 S.W.3d 624, 630 (Tex. App.-Austin 2002, no pet.) ("We hold . . . that the Commission did not have to include additional language indicating that it might act on issues under consideration."). The posted notice "Discussion and Possible Action on Mayor's Report" would generally alert the public that the city council may vote on such a matter. But whether the posted notice would adequately alert the public of the topic of the endorsement-investigation of the disclosure of city banking information as we understand it-and whether more specificity was required because of the topic's significance to the city's residents are questions of fact. See Gardner, 21 S.W.3d at 773-74. The attorney general's office does not determine questions of fact in the opinion process. See Tex. Att'y Gen. Op. No. GA-0156 (2004) at 10 (stating that fact questions cannot be answered in the opinion process).

You next ask: "If the City Council, at a subsequent meeting, re-adopts the non-binding, ceremonial 'personal endorsement,' after that motion has been specifically set forth on the agenda and posted . . . does that revote 'cure' any [shortcomings] in the prior action[?]" Request Letter, supra note 1, at 1.

A court may void governmental actions taken in violation of the notice requirements of the Act. See TEX. GOV'T CODE ANN. § 551.141 (Vernon 2004); Swate v. Medina Cmty. Hosp., 966 S.W.2d 693, 697-99 (Tex. App.-San Antonio 1998, pet. denied). But such an invalid action can be ratified at a later, validly noticed meeting as long as there is no retroactive effect. Markowski, 940 S.W.2d at 726. Accordingly, in the event that the city council's adoption of the personal endorsement motion violated the Act's notice provisions, the city council may cure the invalid action by readopting the motion at a subsequent meeting after giving adequate notice of the motion. In such an event, the motion would be effective only from the date of its readoption.

SUMMARY

To comply with the Open Meetings Act (the "Act"), a city must give advance notice that it will consider the topic of a "personal endorsement" motion. The city may specifically state in the notice that a personal endorsement motion will be considered for adoption but is not required by the Act to do so unless the city's meeting notices routinely indicate when a motion or resolution will be adopted. If adoption of the personal endorsement motion was invalid because it violated the Act's notice provisions, the invalid action may be cured by readopting the motion at a subsequent meeting after giving adequate notice. The motion would be effective only from the date of its readoption.

Very truly yours,

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from Honorable Allan Ritter, Chair, Committee on Economic Development, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas (Apr. 10, 2006) (on file with the Opinion Committee, also available at www.oag.state.tx.us) [hereinafter Request Letter].

2. Letter from Honorable Roy W. Hill, Mayor, City of Fairfield, to Honorable Byron Cook, Texas House of Representatives, at 1 (Feb. 22, 2006) (on file with the Opinion Committee) [hereinafter Hill Letter].