A few months ago the Texas Court of Criminal Appeals shot down a portion of the Texas Open Meetings Act (TOMA).  The court held that the part of the law dealing with a “walking quorum” was unconstitutionally vague.  In an effort to fix that problem, the legislature has passed SB 1640. 

If the governor signs it, SB 1640 will makes it a crime for a member of a governing body (such as a school board) to knowingly engage in any communication concerning an issue that is within the body’s jurisdiction if that communication is part of a series of communications all of which occur outside of a duly called meeting and collectively involve a quorum of the board.  This single communication (text, email, phone call, etc.) might be a criminal act if the member knew at the time that the series of communications would involve a quorum, and would amount to an exchange among the members concerning an issue within the body’s jurisdiction.

Let’s break that down with an example.  Board Member A sends a text message to Board Member B that says “I really like that guy we interviewed for A.D. last night.”  Board Member B responds: “Me too.” 

So far, no problem.  Just two board members are involved.

But suppose that Board Member B’s “Me too” response was cc’d to all of the other board members.  Board Member B has just violated TOMA.  He has knowingly engaged in a communication about school business with a quorum of the board, outside of a proper meeting. 

Suppose that Board Member A responds to the text from Board Member B with “Glad to hear it!”  Has he now violated TOMA?  If he hit “reply to all” he has definitely violated TOMA.  If he only replied to Board Member B, it’s not as clear.  But the case can be made that he knew that all of the board members were in on this “series of communications” and therefore, his participation in it is a violation.

To summarize, it’s an offense if a board member:

A. Knows that his/her single communication is going to a quorum of the board, or is part of a series that will, eventually, involve a quorum; and
B. Knows that the communications are about issues within the board’s jurisdiction.

Is that too vague?  We shall see. Statutes are presumed to be constitutional until a court says they are not. So unless Governor Abbott vetoes it, this new law will be our guiding light regarding communications among board members outside of a board meeting. Be careful.

DAWG BONE: AND DON’T EVER HIT “REPLY ALL.”

Tomorrow: Toolbox Tuesday!!