Texas Attorney General Ken Paxton recently issued Opinion No. KP-205 which addressed a number of questions posed by Representative Rafael Anchia stemming from issues surrounding the termination of the Executive Director of the Texas Railroad Commission (the “Commission”). Two of Representative Anchia’s questions implicate aspects of the Texas Open Meetings Act (the “OMA”).
First, can a Railroad Commissioner unilaterally terminate the Executive Director without taking such action at a properly posted open meeting?
The Attorney General stated that the “[e]mployment decisions regarding [the Commission’s] executive director involve significant public business of the Commission, and any formal action taken in that regard must occur at an open meeting. Thus, a single commissioner lacks authority to unilaterally terminate or hire an executive director without deliberation and a decision from the Commission at a properly-called meeting in compliance with the Open Meetings Act.”
Second, does non-verbal, substantive written communication attempted by one Commissioner at an open meeting on the dais constitute a violation of the [OMA]?
Here, the Attorney General acknowledged that previous Attorney General opinions consistently conclude that written communication between a quorum of members of a governmental body can, in certain instances, constitute an illegal meeting under the OMA. However, the opinion goes on to state that a note passed from one Railroad Commissioner to another on the dais may not be sufficient, by itself, to constitute a deliberation (note that since the Commission’s governing body is comprised of three members, a quorum is created with just two commissioners). The Attorney General offered three elements that must be evaluated to determine whether an unlawful meeting occurred in the circumstances described by Rep. Anchia: (1) the communication must be received; (2) it must be deliberated; and (3) it must involve the public business of the governing body.
As is common practice when dealing with issues which raise questions of fact, the Attorney General did not reach a conclusion on whether an unlawful meeting occurred at the Railroad Commission. Nevertheless, the opinion is a useful guide for governmental entities facing similar scenarios in that it provides a framework for evaluating whether certain internal communications constitute an open meeting under the OMA.