Open Meetings Act:  Agenda Item Specificity

 

Last week, the Dallas Court of Appeals issued a favorable open meetings opinion in the case of Baker v. City of Farmers Branch.  The case relates to an executive session agenda item regarding pending litigation, and the opinion clarifies the sufficiency of the written notice of such an agenda item. 

The City of Farmers Branch was involved in a Voting Rights Act lawsuit.  While the Voting Rights Act case was pending, the city provided notice that its council would discuss the case with its attorney in an executive session.  Specifically, the agenda provided:

J. EXECUTIVE SESSION

J.1 TMP-0171 Consultation with City Attorney regarding pending litigation - Texas Government Code Section 551.071:
. . .

(b) Discuss pending litigation relating to Fabela, et. al v. City of Farmers Branch, et. al., Civil Action No. 3:10-CV-1425-D in the US Dist Ct. for the Northern District of Texas (Dallas Division). 

During the meeting, the council retired to executive session with its attorney.  When the council returned to open session, the council voted to approve a settlement in the lawsuit.  The council voted to dismiss the pending appeal and pay the plaintiffs in the case $240,000.

After learning of the settlement, Baker filed a lawsuit against the City of Farmers Branch alleging that the meeting notice was insufficient under the Texas Open Meetings Act.  The trial court concluded that the notice was sufficient.  Baker appealed, arguing that: (1) the city’s notice of the meeting did not comply with the Open Meetings Act; and (2) the council agreed to settle a lawsuit in secret and “merely rubberstamped” the settlement in the open meeting.

The appeals court disagreed.  An agenda must “specifically disclose the subjects to be considered” and alert the reader “to the topic for discussion.”  It is not necessary, though, to “state all of the consequences which may flow from consideration of the topic” or to divulge specific litigation strategy. 

The court concluded that the city’s notice was specific and alerted the public to the specific lawsuit that would be discussed in the executive session.  The court went on to point out three key components of the notice that made it acceptable.  The agenda item:

  • Included the section of the Open Meetings Act giving the council authority to go into closed session;
  • Stated that it would discuss “pending litigation” related to the Fabela lawsuit; and
  • Identified the lawsuit by name, case number, and court in which the lawsuit was pending.

The court also concluded that Baker failed to cite any evidence showing that the council knew about, discussed, or voted on the settlement agreement prior to the meeting.  Additionally, the court stated that the “Open Meetings Act does not prohibit the council members from expressing in a closed session how they intend to vote when they go back into open session.” 

The opinion is available here.  

 

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