Can a Texas school board require the superintendent to attend its closed executive sessions?

Plain-English summary

The chair of the Senate Human Services Committee asked the Attorney General whether the Open Meetings Act is violated by a contract clause requiring a school superintendent to attend her board's closed sessions. The contract, for the superintendent of the district that includes Randolph Air Force Base, required her or her designee to attend all board meetings, public and closed, except closed meetings about her own contract, salary, benefits, or evaluation. The concern was that this forced someone who is not a board member to sit in on executive sessions.

The opinion concluded the requirement is valid. The Open Meetings Act says every meeting of a governmental body must be open to the public except as the Act allows, and subchapter D lists the limited reasons a body may meet in closed executive session. But nothing in the Act says who, other than members, may attend an executive session. Prior opinions had held that only members have a right to attend (so a body may exclude others, like a county clerk or a county attorney, and may exclude trustees who are suing the district), and that in an attorney-consultation session a body may admit officers or employees whose presence is necessary to communicate with the lawyer but not adversaries whose presence would defeat the privilege. Reading those together, the opinion found a governmental body has discretion over who attends its closed sessions: it may not include people whose attendance is contrary to the legal basis for the session, but it may include its own officers and employees whose participation is necessary.

Because an independent school district's board oversees district management and the superintendent is the district's educational leader and chief executive officer, the opinion said a board could reasonably conclude the superintendent's presence is necessary at all executive sessions. So a contract requiring her to attend does not violate the Act. The opinion flagged one limit: it would be troubled by a clause that gave the superintendent a right (as opposed to a duty) to attend every closed session, because only members have that right. This contract did not purport to give her such a right, and the opinion did not read it to stop the board from excluding her whenever it wished.

Currency note

This opinion was issued in 2001. 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. The Open Meetings Act and the Education Code provisions on school boards and superintendents can change, so verify the current statutes before relying on anything here.

What the opinion meant for those who asked

School boards of trustees (what the opinion held for them): The opinion held that a board may require its superintendent to attend all executive sessions by contract without violating the Open Meetings Act, because the board has discretion to include officers and employees whose participation is necessary and may reasonably find the superintendent necessary at every closed session.

School superintendents (what the opinion held for them): The opinion held that such a clause imposes a duty to attend, not a right; the board may still exclude the superintendent when it chooses, especially from sessions about her own contract, salary, or evaluation.

Anyone reviewing such contracts (what the opinion held for them): The opinion held that a clause purporting to give a non-member a right to attend all executive sessions would be a problem, since only members of a governmental body have that right.

Common questions

Can a Texas school board make the superintendent attend closed meetings?
Under this opinion, yes. A board has discretion over who attends executive sessions and may require its superintendent to attend as a contractual duty without violating the Open Meetings Act.

Doesn't the Open Meetings Act limit who can be in a closed session?
The opinion explained that only board members have a right to attend, and the body may not include anyone whose attendance is contrary to the legal basis for the session, but it may include officers and employees whose participation is necessary.

Could the contract give the superintendent a right to attend every closed session?
The opinion said that would be troubling, because only members have a right to attend; a valid clause imposes a duty to attend, not a right.

Can the board still keep the superintendent out of certain closed sessions?
Yes. The opinion read the contract as not preventing the board from excluding the superintendent when it chooses, including sessions about her own contract or evaluation.

Background and statutory framework

The Open Meetings Act requires that every regular, special, or called meeting of a governmental body be open to the public except as the chapter provides, and subchapter D lists limited exceptions allowing closed executive sessions. Tex. Gov't Code Ann. ch. 551, § 551.002 (Vernon 1994 & Supp. 2001). The Act does not specify who, besides members, may attend an executive session. The opinion drew on prior opinions: JM-6 (1983) (commissioners court could exclude the county clerk because only members have the right to convene in executive session), JM-1004 (1989) (trustees suing the district could be excluded), LO-97-017 (hospital district board may exclude the county attorney), and JM-238 (1984) (in an attorney-consultation session, a body may admit officers and employees necessary to communicate with the attorney but not adversaries who would defeat the privilege).

An independent school district's board of trustees oversees management of the district, and the superintendent is employed by the board as the educational leader and chief executive officer. Tex. Educ. Code Ann. §§ 11.051, 11.201 (Vernon 1996). Given that role, the opinion concluded a board may reasonably find the superintendent's presence necessary at all executive sessions.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. ch. 551 (Open Meetings Act), § 551.002 (Vernon 1994 & Supp. 2001)
• Tex. Educ. Code Ann. §§ 11.051, 11.201 (Vernon 1996)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. Nos. JM-6 (1983); JM-238 (1984); JM-1004 (1989); LO-97-017

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0375
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0375.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

May 1, 2001

The Honorable Mike Moncrief
Chair, Committee on Human Services
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0375

Re: Whether a contractual requirement that a superintendent of schools attend executive sessions of meetings of her board of trustees violates the Open Meetings Act (RQ-0327-JC)

Dear Senator Moncrief:

Your predecessor as chair of the Senate Human Services Committee requested our opinion regarding the validity, under the Open Meetings Act, TEX. GOV'T CODE ANN. ch. 551 (Vernon 1994 & Supp. 2001), of a contractual requirement whereby a superintendent of schools must attend all executive sessions of her board of trustees. We conclude that such a requirement does not violate the Open Meetings Act.

Information furnished with the request indicates that the employment contract of the superintendent of the school district that includes Randolph Air Force Base contains the following language: "'The Superintendent, or the Superintendent's designee shall attend all meetings of the Board, both public and closed, with the exception of those closed meetings devoted to the consideration of any action or lack of action on the Superintendent's contract or the Superintendent's salary and benefits as set forth in this contract or the Superintendent's evaluation.'" The letter suggests that this provision contravenes chapter 551, Government Code, the Open Meetings Act, by requiring an individual who is not a member of the board of trustees to attend executive sessions.

(Footnote: Letter from Honorable Judith Zaffirini, Chair, Human Services Committee, to Honorable John Cornyn, Texas Attorney General (Dec. 11, 2000) (on file with Opinion Committee) [hereinafter Request Letter]; Letter from Ms. Deb Knopf, to Honorable Judith Zaffirini, Chair, Human Services Committee, Texas State Senate, at 1 (Nov. 28, 2000) (attached to Request Letter) [Knopf Letter].)

The Open Meetings Act provides that "[e]very regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter." TEX. GOV'T CODE ANN. § 551.002 (Vernon 1994). Subchapter D of the Act furnishes a number of limited exceptions to the requirement that meetings of a governmental body be open to the public. In those instances, a governmental body is permitted to meet in executive, or closed, session. Neither subchapter D nor any other provision, however, specifies whether any persons other than members of the governmental body may attend an executive session.

A number of prior opinions of this office touch on this issue. In Attorney General Opinion JM-6, the attorney general held that the commissioners court of Frio County could exclude the county clerk from its executive sessions, because "only the members of a governmental body, in this instance, the commissioners court, have the right, when authorized by section 2 of the Open Meetings Act, to convene in executive session." Tex. Att'y Gen. Op. No. JM-6 (1983) at 1; see also Tex. Att'y Gen. Op. No. JM-1004 (1989) (individual school trustees who were suing district could be excluded from executive session); Tex. Att'y Gen. LO-97-017 (hospital district's board of managers may exclude county attorney from executive session). And in Attorney General Opinion JM-238, this office said that, with regard to an executive session held under the attorney consultation exception, a governmental body was permitted to admit

those officers and employees who are their representatives or agents with respect to the particular litigation in question and whose presence is necessary to effective communication with the attorney. Furthermore, the governmental body may not admit to its closed discussion of litigation those third parties who are adversaries or whose presence would otherwise prevent privileged communication from taking place. We do not believe that governmental bodies may simply admit anyone they wish regardless of whether that person is likely to make a legitimate contribution to the discussion.

Tex. Att'y Gen. Op. No. JM-238 (1984) at 5. To summarize, Attorney General Opinion JM-238 addressed only the admission of persons to an executive session held under the attorney consultation exception, and found that persons with an interest adverse to that of the governmental body could not be permitted to attend.

These opinions address who may or must be excluded from an executive session and who may be included in executive sessions held under the attorney consultation exception. This office has never addressed whether the Open Meetings Act permits a governmental body to routinely include an officer or employee of the governmental body, such as a school superintendent, in its executive sessions. A superintendent is not, of course, a member of the public vis a vis her board of trustees, but neither is she a member of the board with a right to attend its executive sessions. We believe it is clear from our prior opinions, however, that a governmental body has discretion with regard to who may attend its executive sessions. While those whose attendance is contrary to the legal basis for the executive session may not be included, see id., a governmental body may include officers and employees of the governmental body whose participation is necessary to the matter under consideration. See id.

An independent school district's board of trustees oversees the management of the district. See TEX. EDUC. CODE ANN. § 11.051 (Vernon 1996). The superintendent is employed by the board to serve as the educational leader and chief executive officer of the district. See id. § 11.201. Given the superintendent's pivotal role in the district, we believe a board of trustees may reasonably conclude that its superintendent's presence is necessary at all executive sessions. Consequently, we do not believe that contractual provision requiring a superintendent to attend the board's executive sessions violates the Open Meetings Act.

Since, however, the Open Meetings Act gives only the members of a governmental body the right to attend an executive session and gives a governmental body discretion with respect to what other persons may attend an executive session, see Tex. Att'y Gen. Op. Nos. JM-1004 (1989), JM-6 (1983), we would be troubled by a contractual provision that purported to give the superintendent a right, in contrast to a duty, to attend all executive sessions. The provision at issue does not appear to give the superintendent such a right. Furthermore, we do not believe that provision would prevent a board of trustees from excluding its superintendent from meetings whenever it chooses to do so.

SUMMARY

A contractual provision requiring a superintendent of schools to attend all executive sessions of her board of trustees is valid under the Open Meetings Act, TEX. GOV'T CODE ANN. ch. 551 (Vernon 1994 & Supp. 2001).

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee