MemorandumCONFIDENTIALATTORNEY / CLIENT

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DArE March 6,2014

ro The Honorable Mayor and Members of the City Council

suBrEcr City Council Taking Straw Votes During Executive Session

Councilmember Griggs and others recently asked some important questions about city councilmeetings. We agreed that it would be helpful for the city council to receive the responses, asattached. Please let me know if you have any questions.

WARREN M. S. ERNCity Attorney

Attachment

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Memorandum CITY OF DALLAS

DATE March 4,20t4

TO The Honorable Scott Griggs, City Councilmember

SUBJECT Taking A Straw Vote and Other Agreements Between Councilmembers DuringExecutive Session

This responds to your questions regarding the city council taking straw votes during executivesession, gving instructions to the city attomey during executive session, and councilmembersagreeing in executive session not to raise concerns during open sessions.

Brief Answers

City councilmembers can discuss their views in executive session, but taking straw votes orotherwise attempting to count votes in executive session on an issue that will be voted on in opensession can be viewed as a violation of the Texas Open Meetings Act. Taking a straw vote onissues regarding legal strategy and instructions to the city attomey are permissible in executivesession because these votes are covered by attorney-client confidentiality and will not be finaldecisions voted on in open session. Agreements between city councilmernbers in executivesession not to discuss concems in open session are not council actions and do not violate theTexas Open Meetings Act, but they are also not binding on the city council or individualcouncilmembers.

Discussion

1. Straw Votes.

The core purpose of the Texas Open Meetings Act,is "to enable public access to and increasepublic knowledge of government decisionmaking."' As such, the Texas Open Meetings Actprovides: "A final action, decision, or vote on a matter deliberated in a closed meeting . . . mayonly be made in an open meeting that is held in compliance with the notice provisions of thischapter."2 The Attorney General's Office has opined that govemmental bodies should not take

City of San Antonio v. Fourth Ct. of Appeals, 820 S.W.2d'762,765 (Tex. l99l).

Tex. Gov'TCoDEANN. $ 551.102 (Vernon 2014).

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straw votes or otherwise attempt to count votes during an executive session.3 This does notmean that while in executive session city councilmembers are prohibited from expressing theiropinion (without deliberation) or how they intend to vote once they are back in open session.' Inaddition, in certain circumstances, a governmental body may make a decision in executivesession that will not be considered a "final action, decision, or vote" that must be taken in anopen session. The court in Cox Enterpruses held that a school board did not take a "final action"when it discussed making public the names and qualifications of the candidates forsuperintendent or when it discussed selling surplus property and instructed the administration tosolicit bids. The court concluded that the board was simply announcing the law would befollowed, rather than taking any action, in deciding to make the names and qualifications of thecandidates public. The court also noted that further action would be required before the boardcould decide to sell the surplus properfy; therefore, the inskuction to solicit bids was not a "finalaction."5 Making a final decision in executive session, however, and then merely reporting thatdecision, or reporting a formal unanimous front, to the public in open session thwarts the purposeof the Texas Open Meetings Act and can be viewed as rubber stamping a final decision made inexecutive session.6

OFFTCE oF rHE ATToRNEY GmrnnI- 2014 Texes OprN Meernqcs HANDBooK39 (2014).

Texas State Board of Public Accountqncy v. Bass,366 S.W.3d 751,762 (Tex. App.-Austin 2012, no pet,)(quoting Board of Trustees of the Austin Indep. Sch. Dist. v. Cox Enters., [nc.,679 S.W.2d 86, 89-90 (Tex.App.-Texarkana L984),rev'donothergrounds,To6 S,W.2d956 (Tex. 1986)) CTOMA'doesnotprohibit[the Board] members in an executive session from expressing their opinions on an issue or announcing howthey expect to vote on the issue in the open meeting, so long as the actual vote or decision is made in theopen session.' . . . Thus to establish that the Board's orders violated the Act, the accountants must establishthat 'the actual vote or decision' to adopt the orders was not made in open session."); Weatherford v. Cityof San Marcos, 157 S.W.3d 473,486 (Tex. App.-Austin 2004, pet. denied) ("[E]ven if opinions wereexpressed by Councilmembers in the closed session, such expression is not prohibited, as long as thedecision or vote was made in an open session,").

Cox Enterprises,6T9 S.W.2d at 89-90.

Cox Enterprises, 679 S.W.2d at 89-90 (Taking a straw vote to see how the board was leaning in theselection of a board president and then voting to unanimously elect the winner of the straw vote in opensession held to be an actual resolution of the issue in executive session in violation of the Act). But seeNash v. Civil Sen. Comm'n,864 S.W,2d 163, 166 (Tex. App.-Tyler 1993, no writ) ("In the instant case,while it appearc that the Commission had reached a tentative decision in executive session and that thetentative decision was announced in open session, each of the three commissioners had the oppornrnity tocomment on the case and cast a vote contrary to that decision, Nevertheless, Commissioners . . . declinedto comment further on their decision or vote contrarily, and they consented to the vote as expressed by[another commissioner]. This case will not be reversed on the fine distinction between the votingrequirements of Section 143.053(d) and the procedure followed by the Commission here. We hold therewas substantial compliance [with the Act]").

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2, Instructions to Attorney in Executive Session.

The city council may seek confidential legal advice from the city attomey in executive session.TThis exception to the open meetings requirement incorporates attorney-client privilege andallows discussions between the city council and the city attomey regarding the provision of legalservices.8 The city council may by straw vote in executive session give the city attorneydirection conceming legal strategies as long as the vote does not constitute a final decision. Forexample, in executive session the city council could direct the city attomey to follow a certainstrategy in negotiating a contract or litigating a case because doing so would not be a finaldecision of the city council; rather the city council would be consulting with the city attomeyconcerning confidential attorney-client matters. In contrast, the city council should only approvea contract or final settlement in open session, because this constitutes a final decision of the citycouncil and does not involve a confidential attomev-client comrnunication.

3. Agreements Not to Raise Concerns in Open Sessions.

An agreement between city councilmembers made during an executive session not to raiseconcerns during open session is not a council action and therefore does not violate the TexasOpen Meetings Act. The city council may only act-as a body,e and, except as discussed above,may only act as a body during an open meeting.ru This means that any agreement reachedbetween councilmembers during an executive session is not binding on the city council orindividual councilmembers.

E,tttuy>>--URGESS

Assistant City Attorney

TEx. cov ' rCoDE ANN. $ 551.071 (vemon 2014).

Texas Stote Board of Public Accountancy,366 S.W.3d at759;Olympic l(aste Services v. City of GrandSaline,204 S.W.3d 496, 502 (Tex. App.*Tyler 2006, no pet.); Markowski v. City of Marlin,940 S.W.2d720,726-727 (Tex. App.-Waco 1997, no writ).

Austin Neighborhoods Cottnci| Inc. v. Board of Adjustment of Cily of Austin,644 S.W.2d 560, 564 (Tex.App.-Austin 1982, writ refd n.r.e.); l l /ebsler v. Texas & Pac. Motor Transport Co.,l66 S,W.2d 75,76-?7 (Tex. 1942); McAlisterv. City of Frost,l3l S.W.2d 975,9'7'7 (Tex. Civ. App.-Waco 1939, writ dism'djudgm't cor.).

TEX. Gov' r CoDE ANN. $ 55 1.002 (Vemon 2014).

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c: Wanen Ernst, City AttorneyChris Bowers, First Assistant City AttomeyIleana Femandez, Assistant City AttomeyJohn Rogers, Assistant City AttomeyArt Hudman, Assistant City AttomeyRobert Sims, Assistant City AttomeyTammy Palomino, Assistant City Attorney

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