Introduction to the Texas Open Meetings Act
In Texas, all elected boards are governed by the same laws when it comes to conducting business in the public eye. We all want to know, or at the very least, have the ability to know what business our elected officials are carrying out utilizing our tax dollars. Every state in our Union has what is called a “sunshine law”. In Texas, ours is called the Texas Open Meetings Act and comprises Chapter 551 of the Texas Government Code. You can find these laws here.
The TOMA exists for the purpose of keeping our elected bodies honest and ensuring that all decisions are made with public knowledge and with the ability for public involvement. At its most basic form, the TOMA gives (and yes, some appointed) boards explicit instructions on how and where to post meeting agendas, how agendas are to be worded and created and what may and may not be discussed in these open meetings. It is worth noting here that every single elected official in our great state is required to take Open Meetings Training within 90 days of election. Are you wondering whether your boards have gotten that training? It’s simple to find out. Just submit a Public Information Request asking your board (city, county, school, etc.) for copies of training certificates. It’s easy to prove. This training also makes them 100% culpable for ensuring that the TOMA is followed to the letter. Subverting the Act is punishable by criminal prosecution (551.143). There are serious consequences for our elected officials conducting business outside of this act.
The Agenda and Public Comment
The TOMA requires that an agenda outlining exactly what is to be discussed be posted in public places and online (where applicable…and in most places today, it’s applicable). This agenda should outline every single topic to be discussed at the meeting. (551.041) The agenda exists to make you aware of what your public officials will be deliberating on and possibly making decisions. Anything that is posted on the agenda is fair game for any and all discussion by the governing body. There is nothing in the act limiting what can or cannot be said (either to the public or amongst the governing body) regarding topics which have been specifically laid out on the agenda. If it’s on the agenda, it’s fair game for all discussion.
Public Testimony is mentioned in the act, but the rules by which public testimony take place can be adopted by each particular board. For example, some boards have a 5 minute limit on public comment and others have 3 minute limits. It is understandable that limits would need to be placed on public comment. However, and this is where it gets interesting, there is NO reason that your elected boards cannot interact with you during your public testimony, so long as what you are speaking on has been “noticed” on the agenda. For example, my school board places the following on its agenda for the next meeting:
Item 4. Discuss and Take Action on Reversal of Traffic Flow Pattern on 8th Avenue for School Drop Off/Pick Up.
I sign up to speak during the public comment period and I am asked to fill out which agenda item I will be addressing, if any. (Yes, you can sign up to speak on items not on the agenda, the board just cannot have conversations with you about those). I sign up to discuss Item 4. When I come to the podium to speak, I speak on that agenda item. Because my public testimony is on a topic that has been “noticed” on the agenda, the board is free to discuss the item at length amongst themselves and WITH me, because they have notified the public they would be discussing this item. The whole reason an agenda is posted is to tell the public what will be discussed, therefore, all conversation relating to posted agenda items is acceptable under the law. Conversely, if I choose to speak on a subject that has not been “noticed” on the agenda, the law gives four possible ways the board can respond. (551.042)
“First, an official may respond with a statement of specific factual information or recite the governmental body’s existing policy on that issue. Second, an official may direct the person making the inquiry to visit with staff about the issue. Third, the governing body may offer to place the item on the agenda for discussion at a future meeting.46 Finally, the governing body may offer to post the matter as an emergency item if it meets the criteria for an emergency posting.”1
With all that stated, it is clear that any elected official can and should interact with members of the public during public testimony on matters which have been posted on an agenda at least 72 hours prior to the discussion taking place. It is becoming increasingly commonplace that elected officials are hiding behind the TOMA in order to refuse to communicate with constituents and answer their questions. The law is clear regarding when discussions are limited. Limits are only placed on items which have not been “noticed.” It should also be stated that the law regards interactions between staff and board members the same as it does public and board members. Therefore, if an item on the agenda is being discussed by board members and they choose to ask staff questions, it is the same as the board members asking a public speaker a question during his testimony. Again, and finally, as long as the item is “noticed”, there is no limit as to the discussion which can take place between any participants at the meeting.
Upcoming blogs will cover appointed bodies and their requirements with TOMA, recordings and record-keeping, executive session and more. Also, feel free to ask questions if you have a specific incident about which you’re curious. Any member of the public may, at any time, choose to contact the Texas Attorney General’s Open Government Hotline at (512) 463-2013 with questions. It’s time the public takes back control of the elected officials running our government!
Jamie Allen is a guest writer with Texans Wake Up and resides in Amarillo, TX. She was a practitioner of the Texas Open Meetings Act (TOMA) for 7 years after graduating with her Master’s Degree in Public Administration from Texas Tech University in 2007. She administered several elected boards in the West Texas region and acted as a City Manager for 5 years until God called her away from her career to homeschool her children. Her TOMA data comes from a place of practical knowledge and vast experience with Chapter 551.