Tag Archives: Texas Open Meetings Act

Dawg Bones

Student misses out on top 10%. Files suit.

Rafael Rubalcaba III graduated just a bit outside of the top ten percent of his graduating class at Raymondville High School in 2013.  He claimed that this was a mistake, that the district should have given him more credit for a geometry class that he took in 8th grade.  In the suit, Mr. Rubalcaba alleged that the district’s error cost him a college scholarship and the opportunity to enroll in some of our top universities.

The trial court dismissed the suit and now the Court of Appeals has affirmed that decision.  The court held that the district was immune from liability.  The suit alleged that the board discussed the policy pertaining to GPAs in closed session, which would not be permitted under the Texas Open Meetings Act (TOMA). However, there was no allegation or proof that the board took a vote in closed session.  Therefore, there was no basis for the court to exercise jurisdiction. On top of that, the student had graduated and enrolled in college, and thus, the court deemed the matter “moot.”

The decision also notes that Mr. Rubalcaba had administrative remedies available to him that he failed to take advantage of. He never filed a formal complaint with the district as per district policy.  Having never presented the matter to the RISD board, he did not have a basis to appeal a decision to T.E.A.  The court summarized: “We hold that Rubalcaba failed to exhaust his administrative remedies, i.e., he did not appeal to the Commissioner of Education, filed no formal complaint, and did not sign up to present his challenge to the Board.”

Case dismissed.  After the trial court ruled against Mr. Rubalcaba he filed a motion for new trial and sought sanctions against the district. That did not turn out so well.  The trial court not only denied the motion for new trial, it also slapped Mr. Rubalcaba with an order to pay $1500 to the school district as a sanction.  The Court of Appeals reversed that order.  It noted that such sanctions are reserved for “those egregious situations where the worst of the bar uses our honored system for ill motive without regard to reason and the guiding principles of the law.”  That was not the case here.  So Mr. Rubalcaba does not owe the district $1500, but he has lost his lawsuit.  In fact, he did not even get to present the merits of his argument because of his failure to overcome the district’s immunity, and his failure to pursue administrative remedies.

It’s just about graduation time here in Texas, so we thought we’d tell you about this case.  Be sure that you follow your district policy in calculating GPA.  With our top ten percent law and the scholarships that are available to students based on class rank, there is more at stake than bragging rights.  If parents or students feel they have been treated unfairly, refer them to your local district grievance procedures.

The case of Rubalcaba v. Raymondville ISD was decided by the Texas Court of Appeals for Corpus Christi-Edinburg on March 31, 2016. We found it at 2016 WL 1274486.

DAWG BONE: CALCULATING GPA IS SERIOUS BUSINESS. BE SURE YOU GET IT RIGHT.

TOMORROW! IS A SCHOOL BOARD MEMBER’S PERSONAL EMAIL ADDRESS ALWAYS CONFIDENTIAL?

Dawg Bones

HAPPY PRESIDENTS’ DAY!

Well of course today is about Washington, Lincoln and those guys, but it reminded the Dawg that school boards have presidents also!  The selection process for board president is—thankfully—a lot simpler and cheaper than the process we inflict on ourselves as a nation every four years.  The board president is chosen by the members of the board, so there is not a lot of campaigning or debating to be done.  But there can be legal challenges.

In fact, one of the early Attorney General opinions interpreting the Texas Open Meetings Act involved the selection of a board officer, presumably the president, by secret ballot in closed session.  Attorney General John Hill expressed the opinion that you can’t do that.  It would be OK to talk about board officers in closed session, as that is a “personnel” matter, but no straw votes or secret ballots. The vote must take place in open session.

Practically speaking, if you participate in the closed session when an issue is being discussed, you can usually figure out how each board member is going to vote. After all, the purpose of closing the meeting to the public is to allow the board members to discuss freely the more sensitive issues, such as personnel matters, behind closed doors. But no voting. Not even for president.

That AG Opinion is H-1163 from 1978.

DAWG BONE: SOMETIMES I WISH THE ENTIRE PRESIDENTIAL ELECTION WOULD MOVE INTO CLOSED SESSION.

Dawg Bones

How can the board get away with taking action in closed session? Isn’t that a violation of the Open Meetings Act?

Monday we told you about Dallas ISD v. Peters, a case in which the board voted to terminate an assistant principal’s contract.  The hitch was that the board voted to do this while still in closed session.  Whoops!!

As we explained on Monday, the Court of Appeals brushed this aside, because the case was brought under the Education Code, not the Open Meetings Act.  Monday’s Daily Dawg explained why that was important.

But the A.P. also filed a straightforward suit under TOMA, claiming that this vote in closed session was void. Therefore, he argued, he was never properly terminated and should be put back to work with back pay.

The Court ruled against him on that point also.  The Court held that the A.P. did not have “standing” to bring this case.  The Court noted that our Texas Courts of Appeal have disagreed about what it takes to have “standing” under TOMA.  But in this case, the Court held that no possible theory would avail the A.P.  The Court noted that the main thing TOMA guarantees the general public is 1) notice of the meeting; and 2) an opportunity to observe to vote.  The A.P. in this case had notice, and he observed the vote, having been present in the closed session when the vote took place.  Thus he did not suffer an injury, and was not in a position to sue over the TOMA violation.

Lawyers will want to read this part of the Court’s analysis carefully, especially the description of the split among the courts as to the proper standard for “standing.”

Now that I have written about this case twice, I hope you are interested in knowing why this guy got canned.  If so, you’ll need to tune in tomorrow for a discussion of the proper, and improper, use of force by educators.

The case of Dallas ISD v. Peters was decided by the Court of Appeals for the 5th District of Texas (Dallas) on December 14, 2015.  It can be found at 2015 WL 8732420.

DAWG BONE: REGARDLESS OF WHAT YOU JUST READ, DON’T EVER LET THE BOARD TAKE A VOTE IN CLOSED SESSION.

Dawg Bones

The board voted to fire me while in closed session. They can’t do that….right???

A decision from the Court of Appeals in Dallas validates the termination of an assistant principal’s contract, even though the board voted to terminate the man while in closed session. This may surprise you, as it is well known that official action of the board must be taken in open session. If the board happens to take an official vote while behind closed doors, isn’t that action void?

First, a bit of background. The board in Dallas ISD voted to terminate the assistant principal’s contract based on the recommendation of an independent hearing examiner who concluded that the man used excessive force in dealing with a student.  The board considered the case in closed session, at the request of the A.P.  Attorneys representing the A.P. were present during the closed session.  Those attorneys, without objection, watched the board take its vote to terminate the contract while still in closed session.  The A.P. appealed the termination to the Commissioner, who upheld the board’s action.

Then the A.P. appealed to district court. The district court sided with the A.P.  The judge concluded that there was substantial evidence in the record to justify the termination of the man’s contract, but because the board had screwed up and done it in closed session, the action was void.

The Court of Appeals reversed that decision, thus upholding the DISD’s board action to terminate the contract.

How can that be? Taking a final vote in closed session is a clear cut violation of the Texas Open Meetings Act.  The court was well aware of that, but pointed out that this case was not a “free-standing complaint” under the Open Meetings Act, but rather, an appeal of the Commissioner’s decision. Therefore, the guiding law is the Education Code.  With regard to teacher termination and nonrenewal, the Education Code includes a sort of “no harm, no foul” principle.  It states that  a decision of the Commissioner cannot be overturned based on a procedural irregularity “unless the court determines that the irregularity or error was likely to have led to an erroneous decision by the Commissioner.”  In other words: did it make any difference?  Did taking the vote in closed session lead to the wrong result?

No. It did not. The result was proper, it was just improperly executed. Open or closed, the man was going to be terminated, and there was substantial evidence to support that decision.

The A.P.’s lawyers must have anticipated that turn of events because they were smart enough to also file a “free-standing complaint” under the Open Meetings Act.  Here, there is no “no harm no foul” standard to hide behind—you either complied with the Open Meetings Act or you didn’t.

How the court dealt with that issue is worthy of a separate Daily Dawg entry.  So we will keep you hanging on that one, but we can tell you right now that the A.P. is not going back to work in Dallas ISD. Stay tuned for details on Wednesday!

The case of Dallas ISD v. Peters was decided by the Court of Appeals for the Fifth District (Dallas) on December 14, 2015.  It can be found at 2015 WL 8732420.

DAWG BONE: GETTING FIRED IN CLOSED SESSION MIGHT BE LESS EMBARRASSING, BUT IT STILL HURTS.

Dawg Bones

CAN PHOTO ID BE REQUIRED TO ATTEND A SCHOOL BOARD MEETING?

Can we require people who attend our school board meetings to show a photo ID?

More and more government buildings are increasing security by requiring visitors to show a photo ID.  Most of the schools I have visited of late have imposed this requirement, and so I have grown accustomed to being run through the system before I gain entry.  The Attorney General was asked how such a requirement would mesh with the Texas Open Meetings Act.

Courts have made it clear that an “open meeting” must be physically accessible to the general public.  You can’t call your meeting in a private dining room, or in a school office halfway across the state.  Suppose, however, that your local school district adopts a requirement that everyone who comes to the school board meeting must show a proper government-issued photo ID, like the ones you show at the airport. The meeting is “physically accessible.” But if you don’t happen to have one of those IDs, they won’t let you in. Is that OK?

Mr. Paxton’s opinion notes that a lot of fact issues would have to be considered in resolving that question, and his office is not the place to resolve fact issues. But he did render a carefully worded, lawyer-like opinion:

A court is unlikely to conclude as a matter of law that the Open Meetings Act prohibits a governmental body from holding meetings at a location that requires the presentation of photo identification for admittance. 

Interestingly, the Opinion points out that some states (Kentucky, Michigan, Nebraska) have adopted statutes that specifically prohibit any sort of ID requirement. Texas has not, and thus the question was ripe for an AG Opinion.

If your school board is thinking of imposing such a requirement, advance input from your school attorney would be very wise. As the AG Opinion notes, a court addressing an issue like this would probably “weigh the need for the identification requirement as a security measure against the public’s right of access guaranteed under the Act.”  Your attorney can help with that analysis.

The opinion is Attorney General Opinion KP-20, issued on May 11, 2015.

DAWG BONE: BE CAREFUL ABOUT TURNING PEOPLE AWAY AT AN OPEN SCHOOL BOARD MEETING.