Can a city council member step aside during a public meeting to talk privately with a city employee?

Plain-English summary

The 49th Judicial District Attorney asked the Attorney General whether a member of a governmental body may leave an open public meeting to confer privately with one or more employees of that body. The scenario he described: a city council member voluntarily steps away from a public council meeting to visit privately with a municipal employee, while a quorum of the council remains present both before and after the member leaves. The request framed the worry as whether a council member loses the ordinary ability to individually investigate public matters and confer with city employees just because a public meeting happens to be going on at the same time and place.

The opinion turned on the definition of "meeting" in the Open Meetings Act, chapter 551 of the Government Code. The Act requires that every meeting of a governmental body be open to the public. A "meeting" is defined two ways, but both require a quorum: under one definition, a deliberation between a quorum of the body (or a quorum and another person) about public business; under the other, a gathering at which a quorum receives information from, gives information to, or exchanges questions with a third person, including an employee. A "deliberation" likewise requires a verbal exchange involving a quorum.

Because both definitions require a quorum to be part of the exchange, the opinion concluded that when a single council member consults with a city employee, no "meeting" has taken place. The opinion limited its answer to the facts described and added an important caveat: if the consultation between the member and the employee occurs within the hearing of the other members participating in the public meeting, that consultation may itself be a meeting, particularly under the gathering definition that covers exchanges between a quorum and employees of the body. The opinion also explained that the situation did not involve a "walking quorum" (an overlapping series of sub-quorum meetings used to evade the Act), and noted that a brief disputing the underlying facts could not be resolved because the office does not decide disputed fact questions.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

City council members and members of other governmental bodies (as the opinion described it): The opinion told them that, on the facts presented, an individual member's private consultation with a single employee is not a "meeting" under chapter 551, but that the answer changes if a quorum can hear the exchange.

The requesting district attorney (as the opinion described it): The opinion answered the legal question about the definition of "meeting" while expressly declining to resolve the factual dispute raised in a competing brief about whether the member actually left the meeting.

City employees (as the opinion described it): The opinion described a one-on-one consultation with a member as outside the Open Meetings Act, but flagged that an exchange a quorum can hear may fall within it.

Common questions

Is a private chat between one council member and a city employee an open-meeting violation?
The opinion concluded it is not a "meeting" under chapter 551 on the facts presented, because the Act's definitions of "meeting" each require a quorum to take part in the deliberation or exchange.

What if the other council members can overhear the conversation?
The opinion cautioned that if the consultation takes place within the hearing of a quorum of the other members, it may itself constitute a meeting, particularly under section 551.001(4)(B)(iv).

Is this a "walking quorum"?
The opinion said no. A walking quorum involves an overlapping series of meetings of groups smaller than a quorum to circumvent the Act; a single meeting between one member and one employee is not a walking quorum.

Did the AG decide what actually happened at the meeting?
No. The opinion noted a brief disputed the facts, and explained that the office does not resolve disputed issues of fact.

Background and statutory framework

The Open Meetings Act, chapter 551 of the Government Code, requires that every meeting of a governmental body be open to the public (section 551.002). The whole question depended on whether the described consultation fit the statutory definition of "meeting" in section 551.001(4). That definition has two branches. The first covers a deliberation between a quorum of a governmental body, or between a quorum and another person, about public business or policy within the body's control. The second covers a gathering conducted by or for the body, at which a quorum is present, that the body called, and at which the members exchange information or questions with any third person, including an employee, about public business. A "deliberation" is separately defined in section 551.001(2) as a verbal exchange during a meeting between a quorum (or a quorum and another person) concerning public business.

The common thread is the quorum requirement: under either branch, there must be a deliberation or exchange between a quorum and the third person. An individual member talking with one employee does not meet that threshold. The opinion distinguished the walking-quorum concept (citing Willmann v. City of San Antonio) and declined to resolve a factual dispute about whether the member had actually left the meeting.

Citations

Cases:

• Willmann v. City of San Antonio, 123 S.W.3d 469, 478-79 (Tex. App.—San Antonio 2003, pet. denied)

Texas Attorney General opinion referenced:

• Tex. Att'y Gen. Op. No. GA-0876 (2011)

Statutes:

• Tex. Gov't Code Ann. § 551.002 (West 2012)
• Tex. Gov't Code Ann. § 551.001(4) (definition of "meeting"); § 551.001(2) (definition of "deliberation")

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0989
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0989.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 19, 2013

The Honorable Isidro R. Alaniz Opinion No. GA-0989
49th Judicial District Attorney
Post Office Box 1343 Re: Whether a member of a governmental body may
Laredo, Texas 78042 leave an open meeting to confer privately with
employees of that governmental body (RQ-1083-GA)

Dear Mr. Alaniz:

You ask whether a member of a governmental body may leave an open meeting to confer privately with employees of that governmental body.[1]

You describe a situation in which a city council member voluntarily leaves a public meeting of the council to "visit[] privately" with one or more municipal employees. Request Letter at 2. Your question presumes that a quorum of the council is present both before and after the member in question has left the meeting, and you state the following:

It is unthinkable that a city councilman's ability to individually investigate public matters and individually confer with the city's employees is somehow lost simply because there happens to be a public meeting going on at the same time under the same roof.

Id.

The Open Meetings Act, chapter 551 of the Government Code, requires that every meeting of a governmental body be open to the public, with exceptions not relevant here. TEX. GOV'T CODE ANN. § 551.002 (West 2012). A "meeting" is defined in either of two ways:

(A) a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; or

(B) except as otherwise provided by this subdivision, a gathering:

(i) that is conducted by the governmental body or for which the governmental body is responsible;

(ii) at which a quorum of members of the governmental body is present;

(iii) that has been called by the governmental body; and

(iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control.

Id. § 551.001(4) (emphasis added). A deliberation is "a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business." Id. § 551.001(2).

Under subsection 551.001(4)(A), a deliberation involving a member of a governing body and a third person does not constitute a "meeting" unless there is a verbal exchange between a quorum of the governmental body and a third person. Under subsection 551.001(4)(B), a gathering is not a meeting unless a quorum of members receive information from, give information to, ask questions of, or receive questions from a third person, including an employee of the governmental body. Consequently, under either definition of the term "meeting," there must be a deliberation or exchange between a quorum and the employee. Under the facts you present, an individual council member is consulting with a city employee. In such case, no "meeting" has taken place.[2]

We emphasize that our answer is limited to the facts you have described. If the consultation between the council member and the city employee takes place within the hearing of the other members of the council that are participating in the public meeting, that consultation may itself constitute a "meeting," particularly under section 551.001(4)(B)(iv), which applies, inter alia, to deliberations between a quorum of a governmental body and employees of that governmental body.[3]

SUMMARY

A private consultation between a member of a governmental body and an employee of that governmental body that does not take place within the hearing of a quorum of the other members of the governmental body does not, under the facts presented, constitute a "meeting" within the terms of chapter 551 of the Government Code.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Isidro R. Alaniz, Dist. Att'y, Webb & Zapata Counties, 49th Judicial District, to Honorable Greg Abbott, Tex. Att'y Gen. (Sept. 11, 2012), http://texasattorneygeneral.gov/opin ("Request Letter").

[2] The situation you present does not implicate the concept of a "walking quorum," which involves an overlapping series of meetings of groups smaller than a quorum for the purpose of circumventing the requirements of the Open Meetings Act. See Willmann v. City of San Antonio, 123 S.W.3d 469, 478-79 (Tex. App.—San Antonio 2003, pet. denied). A single meeting between an individual member of a governmental body and an employee of the governmental body is not a walking quorum.

[3] A brief submitted in response to your request disputes the facts as you have presented them, arguing that the council member in question "never left the meeting and met with [the fire chief] in council chambers with a quorum present in full view of everyone viewing the meeting." Brief from Hector Farias, Jr., Voices in Democratic Action at 1 (Oct. 12, 2012). This office does not resolve disputed issues of fact. See Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1.