It is a violation of the Texas Open Meetings Act for a school board member, or a group of members, to knowingly conspire to circumvent the Act by meeting in numbers less than a quorum for secret deliberations. However, to prove that the Act has been violated, you have to show that a quorum of the board is involved. Thus evidence that three of the seven board members are meeting secretly to discuss school business will likely fall short of proving a TOMA violation.
This came up in Harper v. Best, a Court of Appeals decision from April of this year. The state charged Mr. Harper, a member of the Somervell County Hospital District, with violating TOMA via text messages that he sent to other members. The Hospital District Board, like a school board, has seven members. So a quorum is four.
The evidence came close to proving that Mr. Harper violated the law, but fell one person short. The evidence showed that Mr. Harper had “conversations” with two other board members via text about the tax rate and other matters involving the hospital district. But three board members doth not a quorum make. The only evidence about a fourth board member was a single text in which Mr. Harper referenced that he had informed the fourth member of the motions he intended to make. Importantly, there was no indication that this fourth board member responded or in any way took part in the “conversation.”
The court pointed out that the charge of “conspiracy to circumvent” TOMA requires proof that the purpose of the parties was to conduct “secret deliberations.” (Emphasis added). A “deliberation” is “a verbal exchange.” Thus to prove that Mr. Harper conspired to circumvent TOMA there would have to be some evidence of an “exchange.” Since there was no evidence that the fourth board member had joined in on the discussion, the case fell short.
Is it risky for school board members to communicate about school business outside of a duly called meeting? Absolutely. But as this case indicates, “risky” does not always lead to liability.
The case of Harper v. Best was decided by the 10th Court of Appeals on April 21, 2016.
DAWG BONE: IT IS RISKY, AND SOMETIMES ILLEGAL, FOR BOARD MEMBERS TO COMMUNICATE ABOUT SCHOOL BUSINESS VIA TEXT OR EMAIL. BE CAREFUL!
File this one under: GOVERNANCE
Tomorrow: Have you heard of The After School Satan Club?