When is an Advisory Committee Subject to the Texas Open Meetings Act?
Under the Texas Open Meetings Act – except in certain scenarios dictated by the Act – Texas cities are required to hold every regular, special, or called meeting of the governmental body open to the public. The Act defines a governmental body to include any deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a municipality.
So, what about municipal boards, commissions, and committees? Are there any circumstances in which a committee can exclude members of the public from attending a committee meeting?
The answers can be nuanced and will require cities to carefully consider the powers of the committee and its relationship to the city.
A committee created by a governmental body is not subject to the Open Meetings Act if it is purely advisory in nature. Therefore, any committee created by a municipality in a purely advisory compacity is authorized to hold private meetings and prohibit non-committee members from attending. However, what does it mean to be purely advisory?
Texas courts have opined that a committee becomes a governing body when it possess certain quasi-judicial powers, such as: 1) the power to exercise judgment and discretion; 2) the power to hear and determine or to ascertain facts and decide; 3) the power to make binding orders and judgments; 4) the power to affect the personal or property rights of private persons; 5) the power to examine witnesses, to compel the attendance of witnesses, and to hear litigation of issues on a hearing; and 6) the power to enforce decisions or impose penalties. While a board, commission, or committee does not need all of these powers to be considered a governing body, the more powers it possess, the more clearly it is quasi-judicial and, thus, subject to the Act.
On the other hand, if a committee can only make recommendations without the power to adjudicate cases, enforce decisions, or impose penalties, it is likely advisory in nature.
Additionally, there are exceptions to this which would require the committee to keep its meetings open to the public. For example, if the committee issues recommendations that are usually approved in full by the governing body of the municipality without discussion or the governing body routinely “rubber-stamps” the committee’s recommendations, then the committee is subject to the Act.
Cities will need to review the authority of each committee and assess how each committee’s actions are treated by the municipality to determine whether the committee is authorized to exclude non-committee members or if the Act will apply to committee meetings.
Another factor that must be considered is the presence of city council members on the committee. Generally, meetings of less than a quorum of a governing body are not subject to the Act. However, if the presence of council members on a so-called advisory committee – even if less than a quorum – raises the question of whether a recommendation is more likely to be accepted by the governing body without discussion, the committee is more likely to be considered quasi-judicial and subject to the Act.
Cities should further review the committee’s bylaws, charters, ordinances or orders to see if there is a special provision requiring the committee to follow the open-meetings requirements. If there is such a local requirement, the Act would still apply even if it would not otherwise require compliance.
It must also be noted that the presence of a quorum of the city council members at a committee meeting will constitute a meeting of the governing body, regardless of whether the committee is considered purely advisory in nature.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice.
