Can we talk about what happened in closed session?

Suppose that you are a school board member and you are giving a deposition in a civil case brought by a former employee of the district who alleges that he was illegally terminated.  The employee’s lawyer pursues a line of questioning about what happened when the board met in closed session.  Can you answer those questions?  Isn’t closed session confidential?  Can you get in trouble for answering the questions?

In one recent case, a board member, acting on advice of counsel, refused to answer the questions.  The lawyer informed the board member that there were both criminal and civil penalties for disclosing “what occurred in a closed meeting.” 

The court held that the lawyer’s interpretation of the statute went too far. The statute, Texas Government Code 551.046, does provide for civil and criminal penalties but only for the improper disclosure of “the certified agenda or recording” of a closed meeting.  The court held that:

This is not a blanket prohibition against testifying about conversations occurring in a closed meeting, it merely penalizes disclosure of the certified agenda or recording—nothing more.

The court overruled the district’s objections to this line of questioning.  There might be other reasons not to answer certain questions, such as attorney-client privilege. But the mere fact that something was said in closed session does not prevent its disclosure.

This came up in a preliminary motion in the case of Hardy v. Carthage ISD, decided by the federal court for the  Eastern District of Texas on March 1, 2022.  It’s published at 2022 WL 609151. 


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Tomorrow: “Football is dangerous.”